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The applicant L sought judicial review of a decision of the SHU National Review Board refusing L’s request for a voluntary transfer out of the SHU to a maximum-security penitentiary, and maintaining him at the SHU. The issue on this application was whether the decision of the Board was patently unreasonable, particularly in light of the recommendation of L’s Case Management Team that a transfer out of the SHU and back down to maximum was appropriate. Pinard J. asserted that the decision to transfer or to refuse to transfer an inmate is a discretionary one, which attracts the duty of procedural fairness. Citing McIntyre J. in Maple Lodge Farms Ltd. v. Canada, [1982] 2 S.C.R. 2, Pinard J stated that the general rule with respect to the standard of review applicable to discretionary decisions is that the courts should not interfere merely because the court might have exercised the discretion in a different manner. Where the statutory discretion has been exercised in good faith and, where required, in accordance with the principles of natural justice, and where reliance has not been placed upon considerations irrelevant or extraneous to the statutory purpose, then the courts should not interfere. In L’s case, Pinard J. found that the Board relied primarily on L’s lack of therapeutic progress as a basis for concluding that he continued to represent a high escape risk. The Board also took into account the very serious nature of L’s crimes and concluded that the risk for staff was exceedingly high. Although obliged to consider the recommendations of the applicant’s Case Management Team and of the psychologist, it was completely within the discretion of the Board to decline to follow these recommendations. On the basis of L’s previous convictions and evaluations, and the fact that he continued to be identified as presenting a high risk of escape and a high risk for staff and the community, Pinard J. held that it was not unreasonable for the Board to conclude that transfer out of the SHU to maximum represented an unacceptably high risk. L failed to satisfy the Court that the Board’s decision was based on an erroneous finding of fact made in a perverse or capricious manner or without regard for the material before it. The application was dismissed.
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