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The applicant B, along with five other inmate applicants, were charged and convicted of the disciplinary offence of disobeying a lawful order of a penitentiary officer. At the hearing, the Independent Chairperson after making a finding of guilt dispensed the sentences. He did not invite, nor did he give the applicants an opportunity to make submissions as to sentences. There was one exception, where an applicant specifically asked to be heard and was heard. The issue before the Federal Court: Was there a breach of the duty to act fairly in regards to the sentencing phase of the hearing?
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Collier J. allowed the application in so far as the sentencing issue was concerned. The sentences imposed by the disciplinary court were quashed and the case was referred back to the tribunal for further rehearing. Collier J. was of the opinion that a breach of the duty to act fairly occurred in respect of sentence. The inmate should have been given an opportunity to make submissions as to punishment. The Penitentiary Act and the Penitentiary Service Regulations were silent on this point. However, when the statute and the regulations are read as a whole, particularly in respect of disciplinary proceedings, a right to make submissions before sentence is passed could be found in the scheme of the legislation. Moreover, the right to make submissions before the imposition of punishment or penalties seemed to be a basic point of procedural entitlement in our system of law and legal procedure. Collier J. saw no reason, in principle, why it should not apply to penitentiary disciplinary hearings.
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