Bruce v. Canada
(Attorney General)

(1992), 5 Admin. L.R. (2d) 258, 13 C.R. (4th) 384 (N.B.C.A.) [reversing (1991) 2 Admin. L.R. (2d) 26, 7 C.R. (4th) 93 (N.B.Q.B.)]

    This was an appeal where the CSC sought to have set aside an order issued by the New Brunswick Court of Queen’s Bench for relief in the nature of habeas corpus. The judge had granted B and three other inmates the habeas corpus application in response to their challenge of a CSC decision to involuntarily transfer them from a medium security institution to a maximum-security institution. The judge hearing the notice of application held that the transfers were invalid on the basis that the CSC had not complied with s14 of the Penitentiary Services Regulations when reviewing the files of each of the prisoners. The pertinent words in s14 were as follows: “14. The file of an inmate shall be carefully reviewed before any decision is made concerning the… transfer of the inmate.” The judge intimated that s14 mandated that the whole of an inmate’s file or records had to be carefully reviewed before any involuntary transfer could be made.
    In allowing the appeal, Ryan J.A. of the New Brunswick Court of Appeal held that the judge hearing the application had misinterpreted s14 of the Regulations in the context of the facts of this case. The judge of the Queen’s Bench was concerned that the documents before the court were not prepared as complete reviews of the entire files of the inmates. Ryan J.A. stipulated that in this case, the administrative authorities had to present sufficient evidence to the decision-maker to persuade him that it was in the best interests of the institution and the inmates in general that these four men be transferred. This was not a question of disciplining the inmates where other considerations might come into play. This was a question of security and being able, within the facility, to contain, control and manage what the CSC found to be an unacceptable situation. Under the circumstances, Ryan J.A. could see no reason why the inmates’ files should have to be completely or entirely reviewed as held by the judge hearing the application. S14 of the Regulations should be interpreted to mean that the decision-maker must carefully review all the relevant and material data of an inmate’s file pertinent to the issue under consideration. Ryan J.A. also dealt with the inmates’ principal argument that they could not properly reply to the allegations made against them because they were not provided with sufficient particulars. Ryan J.A. did not agree with this position. The Court highlighted the fact that the information given to the inmates named the drugs being sold, identified the method by which cash was transferred out of the prison, set forth which of the inmates was responsible for which parts of the drug operation, set out where the funds for purchase of drugs originated within the institution, described the method of transfer of drugs within the prison, described the method of payment, and made reference to the intimidation of other inmates with regard to the use of recreation equipment. Bearing in mind the information available and the accountability of the administrative personnel, it would have been irresponsible for the decision-maker to have followed a course other than the one he did.
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