Gill v. Canada
(Deputy Commissioner,
Correctional Service)

(1988), 18 F.T.R. 266, [1988] 3 F.C. 361 (F.C.T.D.)

    This was an application for a stay of a court order pending appeal. Dubé J. of the Federal Court Trial Division quashed the decision to transfer two inmates, G and G, from a maximum-security institution to the SHU on the basis that insufficient information was provided. The Deputy Commissioner sought a stay of that court order pending appeal. According to the CSC, they initiated this application on behalf of members of the population of Kent Institution who are under its charge and who may suffer irreparable harm of the most extreme order should the learned chambers judge's order be implemented and subsequently be found incorrect. The issue before the Court: 1) Did the Deputy Commissioner have standing to apply for a stay of the Trial Division's order? 2) If the answer to the first question was " yes," was a stay of the Court's order justified in the circumstances of this case?
    In granting the application, Muldoon J. began by asserting that from time immemorial the duty of every constable, gaoler, or warden into whose care the custody of any prisoner or other person is committed, has been to keep that prisoner in safe custody. Apprehension of risk or danger to the safety of prisoners (of which the warden is the best judge) was sufficient to accord the appellant ample status in these proceedings. After reviewing affidavit evidence pertaining to the institutional records of G and G and the arguments made by the parties, Muldoon J. weighed the potential risk of violence to informants if the two inmates were returned to the maximum security penitentiary against the convenience of those two inmates and decided that the balance of convenience favoured the granting of the stay. Muldoon J. therefore ordered that the order pronounced by Dubé J. be stayed pending the disposition of the Deputy Commissioner's appeal therefrom by the Appeal Division of the Federal Court.
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