| This was an application by C for the issuance of a writ of habeas corpus ad subjiciendum with certiorari in aid to secure his release from the SHU and to be returned to the general jail population. C was transferred from a maximum-security institution to the SHU, having been found to be "a particularly dangerous inmate." The transfer recommendation stemmed from an incident where C threw coffee, cigarettes and a lighter at a guard after having his scheduled two-hour visit with a companion reduced to one much less. For this C was found guilty of a disciplinary offence and served 75 days in solitary confinement in punitive dissociation. Soon afterwards C received a letter from the warden of Kent recommending his transfer to the SHU, the reasons given were as follows: "due to your violent and threatening behavior and your assault on a staff member which occurred on July 6, 1982." A letter from the National SHU Committee later advised C of the decision to transfer him and it indicated that the reason for the transfer was the incident of July 6, 1982. However, the evidence before the Court reflected the finding that the material before the National SHU Review Committee largely dealt with C's history and record before the incident of July 6, 1982. Moreover, although the relevant Commissioner's Directive at that time, CD 274, authorized the Deputy Commissioner (pursuant to s. 13 (3) of the Penitentiary Act) to order the transfer of inmates into and out of the SHU, the record before the court indicated that the actual decision to transfer C was made by another member of the Committee, only to be later "ratified" by the Deputy Commissioner. The Court dealt with two central issues: 1) Was the establishment of the SHU unlawful in the sense that the Commissioner was not empowered by the Penitentiary Act and Regulations to establish them? 2) Was procedural fairness violated in the manner in which C was placed in the SHU? |
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The application was granted. The transfer decision was quashed and C was ordered released into the general prison population. J. Holland J. began by holding that s. 13 of the Regulations authorized the establishment of the SHU by reason of the requirement that an inmate be confined to an institution with facilities capable of providing protection to the public and rehabilitation to the inmate. Moving on to the question of procedural fairness, J. Holland J. found that C was provided with a misleading notice. At the very least, the notice given to C was equivocal. A person reading that notice could fairly conclude that the reason behind the consideration was the incident of July 6, 1982. The conjunctive "and" appears just before the reference to that incident and feeds this as a rational conclusion to be drawn from the sentence. C's response was confirmation that this was the manner in which he interpreted the notice - his entire letter to the authorities was directed at explaining his conduct on July 6, 1982. In the end, the notice suggested that the basis for the transfer was a particular incident whereas the record indicated that C's total record had been considered. In order for an inmate to respond properly, a fair notice should include, at least, a comprehensive listing of the available material to be considered and a summary of the contents of such material. As well, prison authorities breached the duty to act fairly when the decision to transfer was not made by the person authorized to make it. CD 274 required that the Deputy Commissioner make a transfer decision. In C's case, the decision to transfer was made by the National SHU Review Committee, which was supposed to act solely in an advisory capacity to the Deputy Commissioner. The Deputy Commissioner was not even present when the decision was made, and in quashing the decision, J. Molland J. held that the ratification by the Deputy Commissioner after the event cannot correct this defect. It was conceded that the Commissioner's Directives do not have the force of law, and if any conflict exists between a directive and the Act or Regulations, the directive must give way. Absent such conflict, they are clearly binding.
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