Doran v. Canada ( Commissioner of Correctional Services )
T-3034-94
MacKay J.
22/2/96
14 pp.
Application for declaration, order quashing decisions (a) to deduct room and board from payments to or on account of applicants from third party employers and (b) to require signature of consent to such deductions as condition of work release prior to January 24, 1996-Applicants serving federal prison sentences-Employed under work release arrangement during incarceration-Salaries paid by employers-Corrections and Conditional Release Act, s. 78 permitting Commissioner to authorize payments to inmates at rates approved by Treasury Board and to make deductions from those payments in accord with Regulations made under s. 96(z.2)-Corrections and Conditional Release Regulations, s. 104(4) providing inmate paid in accord with s. 78 may be required to pay room and board in accord with Commissioner's Directive-Commissioner's Directive 860 requiring as condition of participation in any income generating employment that inmate sign consent to have room and board deducted from pay-Amendments to s. 78(2) enacted as S.C. 1995, c. 42, s. 20, effective January 24, 1996 authorizing deductions after January 24, 1996-Application allowed-Commissioner not authorized to deduct room and board from pay received by applicants from outside employers not paying applicants from public funds or on basis of pay rates approved by Treasury Board as set out in s. 78-At relevant time, s. 78(2) allowing deductions only in connection with payments described in s. 78(1) i.e. payments to offenders, authorized by Commissioner at rates approved by Treasury Board-Applicants not paid under that provision; paid at rates approved by respective employers, not by Commissioner or Treasury Board-Act, s. 96(z.2) permitting regulations respecting deductions which may be made from payment authorized under s. 78(1)-Regulations, s. 104(4) permitting deductions for room and board only where inmate paid pursuant to s. 78(1)-Neither Act nor Regulations authorizing deductions from income sources other than payments received as authorized by Commissioner at rates approved by Treasury Board-Act, ss. 3, 4, 5, 18(3) not authorizing deductions given express provisions of ss. 78, 96(z.2)-Where provision expressly mentioning one or more items but silent with respect to other comparable items, presumption silence deliberate and reflecting intention to exclude items not mentioned: Driedger on the Construction of Statutes (3rd ed., Ruth Sullivan, 1994)-As Act expressly permitting deductions from certain types of payments, i.e. those covered by s. 78(1), by implication deductions from payments not covered by s. 78(1) not permitted-As s. 96(z.2) expressly permitting regulations, Commissioner's Directives to be made respecting deductions from pay received pursuant to s. 78(1), Act implicitly not authorizing regulations, Commissioner's Directive to be made authorizing deductions from payments to inmates not received under s. 78(1)-Commissioner's Directive 860 ultra vires to extent authorizing Commissioner to deduct amounts for room and board from pay received by or on account of applicant at rates approved by respective employers, not by Treasury Board-Respondents unable to rely on consent form signed by applicants-Contract void where terms prohibited, directly or implicitly by legislation: Prince Albert Properties & Land Sales Ltd. v. Kushneryk, [1955] 5 D.L.R. 458 (Sask. C.A.)-Failure to follow internal grievance procedure not precluding exercise of discretion to grant relief sought-Regulations, s. 81 suspending grievance procedure until application for legal remedy completed or abandoned-Contemplating legal proceedings at option of person with grievance-Commissioner's lawful authority ultimately determinable by judicial review-No unusual circumstances precluding exercise of discretion to grant appropriate remedies-Any unfairness in resulting treatment of inmates arising from legislation-For Parliament, not Court to remedy unfairness-Corrections and Conditional Release Act, S.C. 1992, c. 20, ss. 3, 4, 5, 18, 78 (as am. by S.C. 1995, c. 42, s. 20), 96(z.2) (as am. idem, s. 25)-Corrections and Conditional Release Regulations, SOR/92-620, s. 104(4).