| This was an appeal from a decision of the Trial Division dismissing the appellant’s application for relief by way of certiorari. The appellant D was voluntarily transferred from a maximum to a medium penitentiary. Less than one week later he came under suspicion of having brought cyanide into the prison and was placed into segregation pending investigation until, approximately six weeks later, he was involuntarily transferred back to maximum security. No disciplinary or criminal proceedings were taken against him. D was given a “48-hour notice” where the warden set out the reasons justifying his retransfer this way: “ I have reasonable and probable grounds to believe that you are responsible for bringing contraband into the institution, ie, the poisonous substance cyanide.” A subsequent letter to the applicant repeated the allegation and added that it was based on confidential information. Both D and his lawyer tried on several occasions to obtain particulars of the allegation against him and of the information on which they were based. These requests were refused on the grounds: “that all preventive security information acquired by the Correctional Service of Canada was confidential and could not be released to an inmate’s legal representative.” The issue before the Court: Was the inmate given sufficient disclosure to satisfy the authorities’ duty to act fairly? |
| In allowing the appeal, Hugessen J.A. stipulated that there was no doubt that D was not treated with the fairness to which he was entitled. This case was an excellent example of the right to answer being frustrated and denied by the inadequacy of the notice. In the absence of anything more than the bold allegation that there were grounds to believe that he had brought in cyanide, D was reduced to a simple denial, by itself almost always less convincing than a positive affirmation, and futile speculation as to what the case against him really was. There is, of course, no doubt that the authorities were entitled to protect confidential sources of information. It should always be possible to give the substance of the information while protecting the identity of the informant. The burden is always on the authorities to demonstrate that they have withheld only such information as is strictly necessary for that purpose. In the final analysis, the test must be not whether there exist good grounds for withholding information but rather whether enough information has been revealed to allow the person concerned to answer the case against him. |
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