Judge Overturns Total Prison Smoking Ban
Court Reinstates Prisoners' Right to Smoke Outside Buildings
Oct 31, 2009
On January 31, 2006, Correctional Services Canada (CSC) initiated a smoking ban in Canada’s penitentiaries. The ban prevented inmates from smoking inside prison buildings including their own cells. The ban applied to federal prisons that hold all prisoners in Canada that are sentenced to two years or more in custody. The 2006 directive was only a partial ban; inmates were still allowed to smoke outside buildings but within the boundaries of the prison’s property.
Correctional Services Canada found that allowing prisoners to have tobacco and smoke outside led to the flouting of the rules that prohibited smoking within the institutions’ buildings. So on May 5, 2008 the directive was changed and a total ban on smoking was initiated. It is estimated that at least 75% of all federal inmates are smokers.
Arguments of the Prisoners
Nineteen Quebec inmates, most of them notorious murderers and gang leaders who are serving life sentences, applied to the Federal Court of Canada to strike down the new directive. The inmates argued that their rights under sections 7, 12 and 15 of the Charter of Rights had been violated. Section 7 grants the right to life, liberty and security of the person while section 12 prohibits the use of cruel and unusual punishment. Section 15 is the equality section of the Charter and the inmates argued that they were being discriminated against by being prohibited from smoking outside. The prisoners gave evidence that they suffered from severe physical and psychological ailments that resulted from nicotine withdrawal. They also argued that their three to four-day conjugal visits were nullified when visitors who smoked refused to visit. The applicants also alleged that some of the guards taunted them about not being able to smoke.
The Government’s Response
Both CSC and the Attorney General of Canada were respondents in the action. They argued that second hand smoke was a health risk and they had the right to prevent inmates from smoking. If prisoners had the right to possess tobacco to smoke outside, the institutions could not prevent them from smoking inside contrary to the rules. This of course posed the risk to workers and other inmates of being exposed to second hand smoke.
The Decision
The Application came before Federal Court Justice Luc Martineau on Oct. 14, 2009. On October 23, the justice rendered his decision. The court referred to section 4(e) of the Corrections and Conditional Release Act. That section provides that offenders are to have the same rights and privileges that everyone else in society has except insofar as it is necessary to restrict those rights and privileges to properly carry out the inmate’s sentence.
The judge noted that the federal government does not prohibit smoking outside other federal buildings. The court also mentioned the fact that aboriginal offenders are allowed to have tobacco to use for ceremonial purposes. Judge Martineau further made reference to the definition of “intoxicant” under section 2 of the Act. Intoxicants are banned from federal penitentiaries but tobacco is specifically listed as an exception to the definition of intoxicants.
The court rejected the government of Canada’s argument that a total ban on smoking was necessary to prevent smoking inside. The justice noted that just as there are penalties for those who smoke inside other federal buildings, the penitentiaries have a range of sanctions that can be imposed on prisoners who break the rules of the institution.
In Justice Martineau’s opinion, the total ban on smoking simply went too far and he struck down the part of the directive that prohibited inmates from smoking outside. While that directive was in force, guards and other penitentiary workers were allowed to smoke outside in areas that were off limits to inmates.
As the outside smoking ban was decided on the interpretation of sections of the Corrections and Conditional Release Act, the court found that it was not necessary to consider the arguments that the applicants made under the Charter of Rights.
At the request of the Attorney General and CSC, the court suspended its judgment from coming into effect for 90 days so that the policy directive can be redrafted by Correctional Services Canada.
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