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This was an appeal by the applicant G from a judgment of the Quebec Court of Appeal dismissing his appeal from the dismissal of an application for habeas corpus with certiorari in aid. G was placed into administrative segregation and then involuntarily transferred from a maximum-security institution to the SHU on the grounds that he was involved in a plot to escape from prison. The authorities came to this belief on the basis of confidential information provided by informants. G submitted that he wished to have an oral hearing where he could cross-examine the witnesses, including the confidential sources who had provided information to the prison authorities. In his factum, G clearly raised the issue of whether it is possible to deprive a person of their liberty, even though only residual, on the basis of allegations contained in a confidential file, the credibility of which has never been tested. In light of these concerns, the general issue before the Court was the question of the scope to be accorded to the principle of procedural fairness in such circumstances.
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Lamer C.J.C., speaking for the Supreme Court of Canada, held orally that the entire Court is in agreement with the decision of Rothman J.A. of Quebec Court of Appeal and dismissed the appeal. Rothman J.A. asserted that while the penitentiary authorities did have a duty to act fairly and to afford the appellant an opportunity to know the reasons for the transfer and an opportunity to be heard or to make representations on his behalf, the prison context must be borne in mind. In this case, G was given the opportunity to consult counsel and to make representations in person and in writing as to the reasons for the transfer. The authorities, however, had no duty to provide G with copies of the statements given by informers, nor did they have a duty to grant G an opportunity to cross-examine these witnesses or the prison officials themselves. In a prison context, such a hearing would go considerably beyond procedural fairness into the realm of an unreasonable intrusion into the administration and security of the penitentiary. While the authorities have not provided G with statements of the confidential sources, he has been provided with a reasonably detailed summary of the reasons for his transfer and the substance of what the authorities have been told about his involvement in the alleged escape plot. Rothman J.A. found that the summary had been carefully framed to avoid identification of the sources, but did nonetheless provide more than a mere general statement of G’s involvement in the escape plan. These were sufficient details to enable one to identify some of the features of the plan and G’s involvement. The danger posed to the safety of informers and the intolerable burden that would be placed on prison authorities constitute the basis of justification for not permitting an inmate who has suffered a loss of residual liberty to confront confidential sources and test their credibility by cross-examination.
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