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This was an application for an order in the nature of certiorari, quashing the CSC’s decision to involuntarily transfer L from a maximum-security institution to the SHU, and for an order of mandamus directing the CSC to transfer him back down to maximum. L received the Notice of Recommendation for Involuntary Transfer on February 21, 1991. The decision to approve the transfer was made approximately four months later, on June 27, 1991. L submitted that the CSC failed to comply with the time limits set out in Commissioner’s Directive 540. Paragraphs 12 and 14 of that CD required that a decision to approve or deny a recommendation for involuntary transfer to higher security must be made within thirty days of the date the inmate received written notification of such recommendation, and that reasons for the decision be provided within ten days of that decision being made. Clearly, the CSC did not comply with the relevant CD. The issue before the Court: Does the failure of the CSC to comply with a CD result in a loss of jurisdiction or the breach of natural justice?
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In deciding the issue, Jerome A.C.J. examined past case authority. Citing Martineau v. Matsqui Institution Disciplinary Board, [1978] 1 S.C.R. 118, and R v. Beaver Creek Correctional Camp Head, [1969] 1 O.R. 373 (C.A.), Jerome A.C.J. stipulated that CDs do not carry the force of law, and therefore confer no rights upon an inmate, nor is any duty to adhere to the CDs owed by the Corrections staff to the inmates. They are rules directed towards internal procedure, designed to facilitate the administration of the penitentiary system. However, this does not mean that CDs can be disregarded without consequences. Citing Buyens v. Rippon (1992), 52 F.T.R. 95 (F.C.T.D.), Jerome A.C.J. asserted that where compliance with a CD would have brought about a different verdict, then non-compliance with that CD could very well be sufficient ground upon which to quash an impugned decision. Applying these principles to the facts in L’s case, Jerome A.C.J. determined that strict compliance with the time set out in CD 540 would have made no substantial difference. As such, the transgression was of a technical nature only and resulted in no failure to comply with the duty to act fairly. For these reasons, the application was dismissed.
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