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Dain J. delivering the judgment of the Court allowed the appeal, set aside
the judgment of the Court of Appeal, and restored the decision of the
trial judge to order the release of the inmates. For the reasons given
in Miller v, the Queen (1985), 23 C.C.C. (3d) 97 (SCC), Le Dain J. asserted
that in challenging segregation: (a) the provincial superior courts have
jurisdiction to issue certiorari in aid of habeas corpus; (b) provincial
superior courts could, on an application for habeas corpus alone, consider
affidavit evidence to determine whether there had been an absence or excess
of jurisdiction, and (c) that habeas corpus will lie to determine the
validity of the confinement of an inmate in administrative segregation,
and if such confinement be found to be unlawful, to order his release
into the general inmate population of the institution. Le Dain J. asserted
that this Court has affirmed that there is, as a general common law principle,
a duty of procedural fairness lying on every public authority making an
administrative decision which is not of a legislative nature and which
affects the rights, privileges or interests of an individual. In Martineau
(No.2), the Court held that the duty of procedural fairness applied in
principle to disciplinary proceedings within a penitentiary. Although
administrative segregation is distinguished from punitive or disciplinary
segregation under s40 of the Penitentiary Service Regulations, its effect
on the inmate in either case is the same and is such as to give rise to
a duty to act fairly. The right to a fair hearing must be regarded as
an independent, unqualified right which finds its essential justification
in the sense of procedural justice which any person affected by an administrative
decision is entitled to have. The denial of a right to a fair hearing
must always render a decision invalid, whether or not it may appear to
a reviewing court that the hearing would likely have resulted in a different
decision. Because of the apparently urgent or emergency nature of the
decision to impose segregation in the particular circumstances of this
case, Le Dain J. held that there was no requirement of prior notice and
an opportunity to be heard before the decision to segregate was carried
through. However, once the inmate was placed into segregation, a decision
to continue the administrative dissociation or segregation of that inmate
required that the warden inform the inmate of the reasons for his decision
and give the inmate an opportunity, however informal, to make representations.
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