Ruling lets federal inmates puff away outdoors

Sue Montgomery, Montreal Gazette
October 23, 2009

Smoking ban in federal prisons lifted by federal court.

Photo by: File

MONTREAL — Inmates who came under a complete smoking ban on federal prison properties in May 2008 will now be able to medicate their frayed nerves with nicotine — at least outdoors.

A Federal Court judge ruled Friday that the sweeping ban on smoking "simply goes too far."

"In our democratic society, there has been no general ban on smoking or tobacco in order to protect the health of non-smokers exposed to second-hand smoke," Judge Luc Martineau wrote in a judgment. "The necessary measures to protect non-smokers exposed to secondary smoke in penitentiaries should be the least restrictive possible."

Even prisoners enjoy the rights and privileges of all citizens, except those rights that must be taken away as a necessary part of their punishment, he added.

The ruling applies to all federal penitentiaries in Canada. Smoking rules in provincial jails vary by province.

Christa McGregor, a spokeswoman for Correctional Service of Canada, said Friday it was too early to comment on the ruling, since the government has 30 days to appeal.

Nineteen prisoners, including some of the most notorious murderers and gang leaders in Quebec, took the outdoor ban to court, complaining they were nervous wrecks.

Among them were Gerald Matticks, leader of Montreal's West End Gang, and Benoit Guimond, a bike gang member who killed a 17-year-old bystander outside a Montreal nightclub in 2001.

They collected money from inmates to pay well-known constitutional lawyer Julius Grey to represent them, and Martineau stipulated in his ruling that the prisoners must be reimbursed their legal fees by the defendants — the federal government.

In affidavits filed in court, one convict complained that his mother, 75, refused to see him in prison because she'd have to stop smoking during the two or three days they were allowed together in the trailer designated for family visits.

Another said his diabetes has worsened, because he craves more sweets, while another noted he gained weight after giving up cigarettes.

Some said they felt guards, who are allowed to smoke off prison property, taunt inmates about the matter.

Grey argued the ban only fuelled a black market for cigarettes.

Correctional Service of Canada banned smoking inside all federal penitentiaries, which house prisoners with sentences over two years, in January 2006. When they noticed prisoners not respecting the outdoor-only rule, they banned smoking completely.

The judge gave the government 90 days to revise the smoking directive.