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This was an appeal of a judgment by Dubé J. of the Trial Division quashing the CSC's decision to transfer involuntarily G and another inmate from a maximum-security institution to the SHU. The transfer had original been executed on the basis that G was allegedly involved in extortion. Dubé J. quashed the transfer on the grounds that the notice given to G was insufficient to satisfy the principles of procedural fairness in that the CSC refused to disclose the identity of the informants or the details of allegations made against G. The institution argued that the informants' lives would be endangered should their identity become known, and appealed the decision of the Trial Division.
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a split decision, the Trial Division's judgment was overturned on appeal.
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| Pratte
J.A. asserted that the requirements of procedural fairness, like those
of natural justice, vary with the circumstances. In the present case,
the notice given to G was drafted in such general terms that it probably
did not really grant G the ability to refute the case against him. However,
the uncontradicted evidence given by the warden established the CSC could
not give more particulars without endangering the safety of the informants.
These circumstances were enough to relieve the CSC from the obligation
under the principle of procedural fairness to give a more detailed notice.
Parliament cannot have intended, when it gave the Commissioner and its
delegates the power to transfer inmates from one penitentiary to another,
that they should be bound by the rules of procedural fairness even when
the application of those rules would endanger the lives of other inmates.
Pratte J.A. moved on to consider s7 of the Charter. Pratte J.A. was of the
view that "the right to a fair opportunity to be heard" is guaranteed
by the "principles of fundamental justice". However, a distinction was
drawn between the procedural rules of fundamental justice and the substantive
rules of fundamental justice. The former are akin to the rules of natural
justice and fairness and are "variable or flexible". The latter are not
"variable or flexible" and "can only be modified by Parliament in accordance
with s1 of the Charter; otherwise, Parliament would
have the unfettered power to reduce to nothing the protection afforded
by s7. As a result the transfer was held not
to be in accordance with the principles of fundamental justice, as G was
not given a real opportunity to answer the allegation made against him.
Yet, the transfer was saved by s1. The Penitentiary Act gives the Commissioner
and his delegates discretionary power to transfer an inmate. Pratte J.A.
stated that in a free and democratic society, it is reasonable, perhaps
even necessary, to confer such a wide discretion on penitentiary authorities.
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Marceau J.A. agreed with Pratte J.A. in allowing the appeal. As Marceau J.A. saw it, the problem here was whether the audi alteram partem principle, in the circumstances that prevailed, required that more information be given to the inmate before asking for his representations. In Marceau J.A.'s opinion it did not. Distinguishing the case at bar from Demaria v. Canada (Regional Classification Board), [1987] 1 F.C. 74 (F.C.A.), Marceau J.A. asserted that in the case of a decision aimed at imposing a sanction or a punishment for the commission of an offence, fairness dictates that the person charged be given all available particulars of the offence. Not so in the case of a decision to transfer made for the sake of the orderly and proper administration of the institution and based on a belief that the inmate should, because of concerns raised as to his behaviour, not remain where he is. In such a case, there would be no basis for requiring that the inmate be given as many particulars of all the wrong doings of which he may be suspected. Indeed, in the former case, what has to be verified is the very commission of the offence, and the person involved should be given the fullest opportunity to convince of his innocence; in the latter case, it is merely the reasonableness and the seriousness of the belief on which the decision would be based, and the participation of the person involved has to be rendered meaningful for that but nothing more. In the situation we are dealing with here, guilt was not what had to be confirmed, it was whether the information received from six different sources was sufficient to raise a valid concern and warrant the transfer. On the facts in this case, Marceau J.A. found that substantial information was disclosed and that cogent reasons for non-disclosure of further particulars were given.
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Desjardins J.A., dissenting, would not have allowed the appeal. When dealing with informers, prison authorities may properly follow the prudent approach. But at the same time, the burden is on these authorities, when a disciplinary measure is taken, to demonstrate that the circumstances are such that they cannot inform the inmate of the facts on which the charge is based. Desjardins J.A. held that G did not have enough information to defend himself. The record did not contain some underlying factual information from which the authorities could reasonably conclude that the informer was credible or the information reasonable. Where cross-examination, confrontation or adequate information are not available to sift out the truth, some measures must exist so as to ensure that the investigation is a genuine fact-finding procedure verifying the truth of wrongdoing and that the informers are not engaged in a private vendetta. In this case, the affidavits produced by the institution did not indicate that an independent investigation had been carried out or indicate why the authorities felt the information was reliable.
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