Davidson v. Prison for Women

(1981), 61 C.C.C. (2d) 521, [1981] F.C.J. No.602 (F.C.T.D.)

    In dispute in this case was section 12 of Annex A to the Commissioner's Directive 213, which categorically dictated the response to a request that an inmate be represented by counsel shall be that "he is not entitled to counsel and that the hearing will proceed without the accused person being represented." The inmate D challenged by way of judicial review a disciplinary offence conviction, where the presiding officer of the disciplinary court refused her request to be represented by counsel on the basis of the above CD.
    Cattanach J. allowed the application and quashed the conviction, holding that there is no general rule of law that the Courts abdicate their jurisdiction as the arbitrators of the rights and liberties of a subject, even though a prisoner serving a sentence in a penitentiary as the result of a punitive process, unless Parliament has decreed otherwise by statute. The disciplinary board is under a duty to act fairly and has a discretion to permit legal representation for an inmate charged with a disciplinary offence where such representation may be essential to ensure a fair hearing. Cattanach J. asserted that it is only when the Penitentiary Service Act or Regulations specifically provides to the contrary that the discretion of the disciplinary board to allow representation is precluded. While it is difficult to envision circumstances where upon a trial for a disciplinary offence presence of counsel is essential to ensure that the duty of fairness is observed, that issue is for the disciplinary board to decide. In that vain, Cattanach J. held that paragraph 12(a) of CD 213 offended against a fundamental principle of natural justice in that it purported not only to fetter the discretion of the disciplinary court, but also to dictate to that court how its discretion should be exercised. It was therefore reprehensible and invalid. In other words, not only did the presiding officer fail to exercise an independent discretion, the CD purports to dictate how that discretion shall be exercised and if that dictation was followed by her, as it was, then she was not an independent tribunal. It is the right of a person to be heard by a deciding authority unbiased in the legal sense, which does not include a tribunal subject to the influence of an external authority, and in this particular instance an authority which improperly directs the deciding authority how her discretion, which is hers alone to exercise, shall be exercised. Cattanach J. further stipulated that Commissioner's Directives, which were rules made by the Commissioner under the authority of section 29(3) of the Penitentiary Act, are not to be considered "law" unlike the Penitentiary Act itself and the Penitentiary Service Regulations.
TOP