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This appeal is from a decision of the Trial Division dismissing the appellant’s application for judicial review. The applicant W sought judicial review of the warden’s initial decision to place him in administrative segregation and to transfer him to the SHU on an emergency basis, and the subsequent decision made by the Assistant Deputy Commissioner confirming and approving that transfer. These actions on the part of prison officials were ordered on the basis of several alleged incidents occurring during an institutional lockdown. Criminal charges relating to this incident were initiated but later dropped. The alleged incidents were never made the subject of any disciplinary or other action against W. Prior to leaving Edmonton Institution, W was given a “Notice of Recommendation for Involuntary Transfer.” As soon as W was advised of the intention of the authorities to transfer him to the SHU, he asked to be allowed to consult counsel but his request was denied. After his arrival at the SHU, W again made several requests to consult his lawyer but this request was not granted until after he was given a second “Notice of Recommendation for Involuntary Transfer.” Throughout this process no “progress summary” was ever prepared or submitted to the Assistant Deputy Commissioner as mandated by the provisions of Commissioner’s Directive 540. Two issues were dealt with by the Court; namely the failure to respect the requirements of procedural fairness, and the question over the denial of the right to counsel.
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Hugessen J.A. first dealt with the question of procedural fairness. Although
it is common ground that the CDs do not have the force of law, it describes
the progress summary as being mandatory to the decision-making process.
Progress summaries are intended to give a brief picture of an inmate’s
general behavior and progress during his incarceration. It is a document
that may well be expected to contain material that will be favorable to
an inmate. In this case, there was evidence in W’s file of a ‘Progress
Report’ highlighting positive behavior written subsequent in time to all
of the alleged incidents mentioned in the Notices. Given the contents
of CD 540, the CSC can hardly contend that the progress summary would
not have been relevant to the decision made by the Assistant Deputy Commissioner.
The Assistant Deputy Commissioner reached his decision on the basis of
information relating to incidents that we now know, as a result of the
dropping of criminal charges, to be wrong. He also reached it on the basis
of allegations relating to previous incidents but without considering
more up-to-date material which was highly favorable to the appellant and
which was in the exclusive control of correctional authorities. Such material,
or a summary thereof, was required to be considered. In such circumstances
the decision cannot be allowed to stand. In terms of the right to counsel,
Hugessen J.A. wrote that it is settled law that a transfer to higher security
or administration segregation amounts to a new and separate detention
over and above the detention to which is imposed by a sentence of incarceration.
As such, s10 of the Charter is engaged. The authorities were under
a positive duty both to inform W of his right to counsel and to provide
him with a reasonable opportunity to exercise that right as soon as they
had decided to place him in administrative segregation and to transfer
him to the SHU. In this case, the denial of W’s request to consult his
lawyer could not be justified on the basis of the urgency of the situation.
Moreover, given that it was known to the Court that the warden’s decision
was based on a wrong understanding of the facts and that W was innocent
of the offences charged against him, Hugessen J.A. was unable to assert
with confidence that the intervention of a lawyer at the earliest stages
and prior to W’s removal from Edmonton might not have had a favorable
impact upon the warden’s decision. The denial of counsel by the latter
may have had very serious consequences indeed. Hugessen J.A. allowed the
appeal, set aside the decision of the warden as in breach of W’s Charter
rights. An order was issued quashing the decision of the Assistant Deputy
Commissioner approving and confirming the transfer of the appellant from
the Edmonton Institution to the SHU and that a copy of the judgment be
placed in the appellant’s file with the CSC. |
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