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Spencer J. accepted the CSC’s argument that to name a prison informant may well expose that person to the risk of retaliation and injury. The prison staff owes a duty to protect them. Spencer J. also accepted that the prison staff, who know the precise nature of the allegations made against the petitioner, are in the best position to judge what detail may and may not be given to the petitioner without jeopardizing the safety of prison informants. However, with that said, Spencer J. asserted that the Court has a role to play in ensuring that the petitioner has been fairly treated, and fair treatment requires as much as possible that he know some detail of the charges against him so that he can respond to them. In this case, it was immediately apparent that E, while denying the allegations in a general sense, had no idea of the identity of those who named him as a trafficker or of the nature of their evidence against him. E had no record of conviction in any drug related matter, nor of any prior disciplinary proceeding in the prison system. With all due deference to the CSC, Spencer J. could not conclude that E could not have been given greater detail in this case. If other inmates have informed against him it would be reasonable to suppose they did not implicate themselves in any wrongdoing, thus making their evidence probably hearsay. If they informed about E’s reputation within the prison they could have nothing to say that would identify them. If the reputation they spoke of identified E with any specific activity he should have been given that detail so that he would know from what it was he must defend himself. Spencer J. thought it unlikely that a drug trafficking operation within a prison could be so devoid of system that specific allegations could not be put to a suspect. Citing Balian v. Canada (Regional Transfer Board) (1988), 62 C.R. (3d) 258 (Ont.H.C.), Spencer J. was inclined to the view that experience has shown that a great deal can be disclosed while protecting the identity of fellow inmates who inform. What was clear in this case was that E was not permitted to play a reasonable informed part in the whole process. As a consequence, E’s right to procedural fairness was violated. The application was granted.
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