| In
allowing the application, Muldoon J. claimed that whether or not it was
made in good faith, the decision to transfer H was arbitrary and unfair.
In light of the well-founded notion of "a prison within a prison," transfers
from open to close or closer custody can certainly engage the provisions
of s7 and 9 of the Charter. The decision to affect such
an involuntary transfer, without any fault or misconduct on the part of
the inmate, was the quintessence of unfairness and arbitrariness. It may
be that the policy change invoked by the CSC affects a contemplated class
of inmates, but that, in the absence of fault, cannot prevail over the
inmate's individually guaranteed legal rights. H had been deprived of
his right to the qualified liberty and security of the person, which he
possessed at the Farm Institution, in derogation of the principles of
natural justice for no fault had been found in his prison record. He had
been arbitrarily subjected to intensified imprisonment because he committed
no misconduct to warrant such unusual treatment or punishment. The detriment
imposed upon the applicant's class of inmate by administrative policy
cannot in these circumstances deprive him of the rights conferred upon
him as an individual by constitutional imperative. The warrants ordering
H's transfer were accordingly quashed as they offended fairness and s7,
9 and 12 of the Charter. |
TOP