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E applied for relief in the nature of habeas corpus, directed to the warden
of Kent Institution, ordering that he be released from Kent Institution
and returned to Mission Institution. E was involuntarily transferred from
the medium security Mission to the maximum security Kent on the grounds
that he had made four separate offensive or threatening statements to
staff members and a fellow inmate. E was transferred on the same day that
he was advised that he was being recommended for such a transfer. The
particulars of these alleged incidents were set out in the reasons for
transfer prepared by the warden. E responded to the allegations. E asserted
that two of the alleged acts were so minor that no incident report was
filed, and that a third incident – relating to the fellow inmate – was
an unfortunate misunderstanding. Finally, as to the allegation that E
physically threatened a Security Officer, E pointed out that he was charged
and a hearing was conducted in the institutional court where he was found
not guilty. After reviewing E’s submissions, the warden notified him that
he and two staff members had received the written response and advised
him that the transfer would be recommended. The Assistant Commissioner
approved the transfer. Both the warden and Assistant Commissioner provided
E with reasons for their decisions. In challenging their decisions before
the Court, E pointed out that there was no mention in the reasons of the
fact that he was found not guilty in disciplinary court of one of the
alleged infractions. Citing Lee
v. Canada (Correctional Service), [1993] F.C.J. No.759 (F.C.T.D.),
E argued that this omission indicated that the CSC failed to give this
significant fact any consideration, and as a consequence amounted to unfair
treatment. The issue before the Court: Did the CSC fail to consider E’s
submissions and responses, thereby violating the common law duty of fairness,
natural justice and his rights under s7 of the Charter of Rights and Freedoms?
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