| The
applicant D sought certiorari to quash the decision of the warden of Joyceville
Institution and the confirmation of that decision by the Regional Transfer
Board transferring him from the medium security Joyceville Institution
to the maximum security Millhaven Institution. He also sought mandamus
requiring a transfer back to Joyceville or some other medium security
institution. The warden and D, chairman of the inmate committee, met and
briefly discussed a meeting with the committee to take place the following
week in relation to the lessening of tensions present in the institution
since the riots having taken place earlier in August. D then spoke with
the Executive Assistant to his Member of Parliament by way of telephone.
A correctional officer claimed to be in the room at the time of that telephone
conversation and apparently reported the substance of the conversation
to the warden. It was claimed that the correctional officer reported to
the warden that D had stated that if certain requests were not met, that
something "heavy" was going to go down in the institution. Consequently,
the warden prepared an emergency involuntary transfer notice. The grounds
for transfer were that D had made inciteful remarks to an M.P.'s office,
threatening incidents in the prison if good-faith negotiations did not
take place and demands were not met. This latter ground was based on an
original assertion that D had agreed not to discuss the agenda for the
inmate committee meeting with anybody outside the institution. The warden
viewed this discussion with his M.P.'s office as a breach of that agreement.
At the hearing of this matter the warden pulled back from that position
and simply asserted that it was inappropriate for D to discuss the agenda
with his M.P. or the M.P.'s Executive Assistant and, particularly, to
indicate the high degree of tension present in the institution. The day
following the transfer notice, the warden circulated a notice to the prison
population explaining his actions. It was not asserted that D intended
to or was involved in stirring up any trouble at the institution and no
action was taken by the warden to investigate the report of the telephone
conversation or to determine if, in fact, a disturbance was being planned.
In fact, on cross-examination the warden agreed that such a disturbance
was unlikely because of extensive restrictions. The warden appeared to
simply be annoyed at the fact that the applicant had spoken to his M.P.
An affidavit filed by the M.P.'s Executive Assistant confirmed the telephone
conversation. The Assistant deposed that the conversation was not inciteful,
that no demands or threats were made, and that the applicant sought advice
and assistance from his M.P. Moreover, the conversations were intended
to be private and confidential. The correctional officer who wrote out
the "unusual occurrence report" also wrote out the offence report which
led to the applicant being charged with committing an act "calculated
to prejudice the discipline or good order of the institution" contrary
to s39(k) of the Penitentiary Service Regulations. In that report she
stated that D, during the conversation with his M.P., indicated that if
inmate requests were not met something might happen and that the committee
had tried to defuse the situation but things were pretty hot. This report
was much milder in tone than the "unusual occurrence report." Furthermore,
there was no reference to something happening "this weekend". The warden
inquired into these differences and was advised by the supervisor that
the correctional officer felt uneasy about the visibility that was being
generated towards her as a result of the original report and consequently,
she toned down the wording of the offence report. The warden, on cross-examination,
indicated that he was concerned about the inciteful nature of the comments,
which could constitute a threat to the security of the institution. The
warden's theory was that such comments made to an M.P.'s office may be
disclosed to the press who in turn would publish it in newspapers creating
a "de-stabilizing" effect within the institution. The essential issue
was centred upon the question of whether this particular transfer was
made in an unreasonable or arbitrary manner? |
| In
allowing the application for certiorari to quash the transfer decision,
Reed J. asserted that s7 of the Charter required not only that there be
procedural fairness, in the narrow sense, but also that decisions not
be made in an unreasonable or arbitrary manner. The court concluded that
it was acceptable for the Executive Assistant for the M.P. to stand in
for the M.P. and that whatever privilege attached to the communications
between D and the M.P. would also attach to those with the M.P.'s Executive
Assistant. While the CDs provided for communication with an M.P. in writing
to be privileged, they were silent as to the status of oral communications.
Nevertheless, the policy reasons for granting privileged status to written
communications should be equally applicable to telephone communications.
Such communications could be monitored as can written correspondence to
ensure that they are bona fide. The court concluded that to base a decision
to transfer a prisoner form medium to maximum security on the fact that
he had a telephone conversation with his M.P., even if the prisoner was
saying things the prison officials did not want said or even if the communications
exaggerated in some way the actual facts, amounted to an arbitrary exercise
of administrative authority and further, that the choice of Millhaven
Institution was arbitrary in the extreme, given the availability of other
institutions closer to D's family. The court found that there was absolutely
no evidence to support the transfer as being necessary on an "emergency
basis". There was no suggestion that prison officials thought the applicant
was causing or planning to cause disturbances in the institution. Moreover,
it was repugnant to think that a communication of information about the
situation inside a prison to one's Member of Parliament could be considered
an inciteful activity. There was no indication that he was asked to keep
the information concerning the agenda or proposed negotiations within
the institution. While the warden may have felt that that was inappropriate,
there was no evidence that D was told of this. Reed J. accepted the doctrine
of curial deference that administrative decision makers have the "right
to be wrong" but found that that doctrine did not go so far as to prevent
judicial review of an arbitrary decision as one made without a factual
basis to support it. The court concluded that the decision to transfer
D was arbitrary and made in the absence of any evidence to support it.
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