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The applicant B sought judicial review of a decision made by the CSC to involuntarily transfer him from Kingston Penitentiary, a maximum-security institution, to the SHU. The decision to transfer was based on the allegation that B had been involved in the smuggling of a shotgun shell into the prison. At the time the recommendation to transfer was initiated, it was thought that B was involved in a conspiracy to bring weapons and ammunition into the prison for the purpose of effecting the escape of a number of inmates. This information came to the prison officials from another inmate who subsequently transferred down from Kingston Penitentiary to a medium security institution as a result of having provided the information to prison staff. Later, it became known that the information that had come from the other inmate, concerning an extensive plan to smuggle ammunition and weapons into Kingston Penitentiary, was itself a scam. That inmate had apparently persuaded B to have a shotgun shell smuggled into the institution and, then, fabricated the story of a larger plan which he communicated to prison officials in order to “buy” himself a transfer to medium security. As a result of this new information a member of the staff recommended to the warden that the recommendation for involuntary transfer to the SHU be withdrawn. This recommendation was made but the warden would not change his mind. Approximately one week later, B was notified of the warden’s decision not to change the recommendation. The Deputy Commissioner subsequently received the warden’s recommendation and approved the decision to transfer B to the SHU. In his submissions to the Court, B put forth two arguments. First, it was argued that the warden breached the principles of natural justice by not allowing B time to make representations concerning the warden’s decision not to accept the recommendations of the prison staff member, before forwarding his recommendation to transfer to the Deputy Commissioner. Second, it was asserted that the CSC’s decision to transfer B was unreasonable in light of the facts upon which it was based.
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In dismissing the application, Reed J. dealt with these two issues. Reed J. was not persuaded that merely because a recommendation in favour of an inmate is made by penitentiary staff, which recommendation the warden does not accept, that there is a breach of natural justice if the inmate is not given an opportunity to both know the warden’s reasons and respond thereto. In order for B’s argument to succeed, the new circumstances which came to light after the previous recommendation must be significant in that they fundamentally change the applicant’s understanding of the nature of the case against him. In such circumstances, if the applicant is not given a new opportunity to respond, he has in effect been denied natural justice. In terms of the applicant’s second argument, Reed J. stipulated that on judicial review a court does not substitute its conclusions on the facts from that made by the decision-maker, who presumably has more experience than the court in making such decisions. While Reed J. may have not reached the same conclusion as the warden and Deputy Commissioner in the application of the definition of what constitutes a dangerous inmate (found in CD 551) to the facts of B’s case, it nevertheless could not have been said that there was no basis in the evidence on which the warden or Deputy Commissioner could reach a contrary decision. Accordingly, Reed J. did not find that those decisions were unreasonable as being made without a factual basis.
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