38. Purpose of disciplinary system - The purpose of the disciplinary system established by sections 40 to 44 and the regulations is to encourage inmates to conduct themselves in a manner that promotes the good order of the penitentiary, through a process that contributes to the inmates' rehabilitation and successful reintegration into the community.

39. System exclusive - Inmates shall not be disciplined otherwise than in accordance with sections 40 to 44 and the regulations.

40. Disciplinary offences - An inmate commits a disciplinary offence who

disobeys a justifiable order of a staff member;

is, without authorization, in an area prohibited to inmates;

wilfully or recklessly damages or destroys property that is not the inmate's;

commits theft;

is in possession of stolen property;

is disrespectful or abusive toward a staff member in a manner that could undermine a staff member's authority;

is disrespectful or abusive toward any person in a manner that is likely to provoke a person to be violent;

fights with, assaults or threatens to assault another person;

is in possession of, or deals in, contraband;

without prior authorization, is in possession of, or deals in, an item that is not authorized by a Commissioner's Directive or by a written order of the institutional head;

takes an intoxicant into the inmate's body;

fails or refuses to provide a urine sample when demanded pursuant to section 54 or 55;

creates or participates in

a disturbance, or

any other activity

that is likely to jeopardize the security of the penitentiary;

does anything for the purpose of escaping or assisting another inmate to escape;

offers, gives or accepts a bribe or reward;

without reasonable excuse, refuses to work or leaves work;

engages in gambling;

willfully disobeys a written rule governing the conduct of inmates; or

attempts to do, or assists another person to do, anything referred to in paragraphs (a) to (r)

41. (1) Informal resolution - Where a staff member believes on reasonable grounds that an inmate has committed or is committing a disciplinary offence, the staff member shall take all reasonable steps to resolve the matter informally, where possible.

      (2) Charge may be issued - Where an informal resolution is not achieved, the institutional head may, depending on the seriousness of the alleged conduct and any aggravating or mitigating factors, issue a charge of a minor disciplinary offence or a serious disciplinary offence.

42. Notice of charge - An inmate charged with a disciplinary offence shall be given a written notice of the charge in accordance with the regulations, and the notice must state whether the charge is minor or serious.

43. (1) Hearing - A charge of a disciplinary offence shall be dealt with in accordance with the prescribed procedure, including a hearing conducted in the prescribed manner.

      (2) Presence of inmate - A hearing mentioned in subsection (1) shall be conducted with the inmate present unless

the inmate is voluntarily absent;

the person conducting the hearing believes on reasonable grounds that the inmate's presence would jeopardize the safety of any person present at the hearing; or

the inmate seriously disrupts the hearing.

      (3) Decision - The person conducting the hearing shall not find the inmate guilty unless satisfied beyond a reasonable doubt, based on the evidence presented at the hearing, that the inmate committed the disciplinary offence in question.

44. (1) Disciplinary sanctions - An inmate who is found guilty of a disciplinary offence is liable, in accordance with the regulations made under paragraphs 96(i) and (j), to one or more of the following:

a warning or reprimand;

a loss of privileges;

an order to make restitution;

a fine;

performance of extra duties; and

in the case of a serious disciplinary offence, segregation from other inmates for a maximum of thirty days.

      (2) Collection of fine or restitution - A fine or restitution imposed pursuant to subsection (1) may be collected in the prescribed manner.

Corresponding Regulations: Sections 24- 42 Inmate Discipline

    - Right to make representations (present proof or arguments) and to have them taken into consideration

Martineau and Butters v. Matsqui Institution Inmate Disciplinary Board - (1977), 33 C.C.C. (2d) 366, 74 D.L.R. (3d) 1, [1978] 1 S.C.R. 118, 14 N.R. 285 (S.C.C.)

- An application for judicial review of a decision of the Inmate Disciplinary Board to convict and sentence several inmates for serious and flagrant disciplinary offences was made to the Federal Court of Appeal pursuant to section 28 of the Federal Court Act. Section 28 gives the Federal Court of Appeal exclusive jurisdiction to review decisions of federal tribunals "other than a decision or order of an administrative nature not required by law to be made on a judicial or quasi-judicial basis." The Federal Court of Appeal dismissed the application on the basis that it had no jurisdiction to review the decision of the Board, the decision not being one that must be made on a judicial or quasi-judicial basis but merely fairly and justly. On appeal to the Supreme Court of Canada, the narrow issue dealt with went to the heart of the jurisdiction conferred upon the Federal Court of Appeal to review decisions or orders of administrative tribunals. In a 5 to 4 split, the Supreme Court dismissed the appeal. Pigeon J., along with three other members, asserted the Court found it difficult to agree with the view that the detailed provisions guiding prison discipline set out in a Commission of Penitentiaries Directive enacted pursuant to the Penitentiary Act and penitentiary Service Regulations merely requires that a disciplinary decision be made fairly and justly. However, while there is no doubt that the Regulations are law, the Directives are not to be considered "law" within the meaning of section 28. The fact that the decisions of the Board may result in the loss of an inmate's statutory remission does not change the nature of the decision. The Board's decision was not one required by "law" to be made on a judicial or quasi-judicial basis and, thus, the Federal Court of Appeal had no jurisdiction to review the decision.

Martineau v. Matsqui Institution Inmate Disciplinary Board (No.2) - (1979), 13 C.R. (3d) 1, 50 C.C.C. (2d) 353, 106 D.L.R. (3d) 385, [1980] 1 S.C.R. 602, 30 N.R. 119 (S.C.C.)

- Speaking for a majority of the Supreme Court, Pigeon J. held that, when viewing the situation of a prison inmate in respect of disciplinary offence proceedings, the requirements of judicial procedure are not to be brought in and, consequently, these are not decisions which may be reviewed by the Federal Court of Appeal under s28 of the Federal Court Act - a remedy which is in the nature of a right of appeal. However, this does not mean that the duty of fairness may not be enforced by the Trial Division through the exercise of the discretionary remedies mentioned in s18 of the Federal Court Act. This is subject to the exercise of judicial discretion and in this respect it will be essential that the requirements of prison discipline be borne in mind. It is specially important that the remedy be granted only in cases of serious injustice and that proper care be taken to prevent such proceedings from being used to delay deserved punishment so long that it is made ineffective, if not altogether avoided. Dickson J., in a concurring decision, wrote that an inmate disciplinary board is not a court but rather a tribunal that has to decide rights after hearing evidence. Even though the board is not obliged, in discharging what is essentially an administrative task, to conduct a judicial proceeding observing the procedural and evidential rules of a court of law, it is nonetheless subject to a duty of fairness, and a person aggrieved through breach of that duty is entitled to seek relief from the Federal Court, Trial Division, on an application for certiorari. It should be emphasized that it is not every breach of prison rules of procedure that will bring intervention by the courts. The very nature of a prison institution requires officers to make "on the spot" disciplinary decisions, and the power of judicial review must be exercised with restraint. Interference will not be justified in the case of trivial or merely technical incidents. The question is not whether there has been a breach of the prison rules, but whether there has been a breach of the duty to act fairly in all the circumstances.

Laking v. Canada - (1995), 136 Sask.R. 24, [1995] S.J. No.571 (Sask.Q.B.), 1995 CanLII 6018 (SK Q.B.)

- While the provincial superior courts have broad powers on an application for habeas corpus to review the decision of prison officials who have ordered the involuntary transfer of an inmate to a higher security level, these courts nevertheless cannot review the decision of an independent chairperson even though that decision is a significant part of the reason for the transfer decision. In this case, although the provincial superior court was of the opinion that the disciplinary court conviction underlying the impugned transfer decision was unlawfully entered against the inmate because the hearing lacked procedural fairness, the provincial superior court held that it had no jurisdiction to review the validity of the disciplinary court decision. The Trial Division of the Federal Court is the court that has jurisdiction to review and possibly quash the decision of the Independent Chairperson.

Creed v. Canada (Solicitor General) - [1996] F.C.J. No.1207 (F.C.T.D.)

- This was an application for a costs award made in relation to an earlier finding, on consent by both parties, that the conviction of the inmate for a disciplinary offence be quashed. The Federal Court dismissed this application, holding that this was not a case for the award of costs under Rule 1618. The Court stipulated that here the truth of the averment made by the officer in his affidavit concerning a conversation which he may or may not have had with the inmate has not been tested under cross-examination, has not been argued on the merits, and has not necessitated a hearing for judicial review by reason of the respondent resisting the application through their agreement that the precipitating disciplinary conviction be quashed.

Morrisroe v. Canada (Minister of Justice) - (1996), 119 F.T.R. 276, [1996] F.C.J. No.1178 (F.C.T.D.)

- An inmate brought a motion for an order to allow his non-lawyer daughter to represent him in Federal Court. The court denied the motion on the grounds that the Federal Court Rules did not allow for "lay representation." Rule 300 provided that an individual may either represent themselves or be represented by a solicitor. This, however, did not mean that the inmate's daughter could not assist her father in preparing the documentary evidence and written arguments which, in a judicial review proceeding, are filed ahead of any oral argument thereon.

Trunzo v. Stony Mountain Penitentiary Disciplinary Court - (1996), 124 F.T.R.101, [1996] F.C.J. No.1500 (F.C.T.D.)

- After dismissing this application for judicial review on the part of an inmate and awarding costs of $300 against the inmate, the Federal Court stressed that while the inmate had the right to seek judicial review in this case, invoking the mechanism of the judicial system for such a trivial matter was close to absurd. There was significant public expenditure involved in a judicial review application and it was quite apparent this inmate had no regard for the burden he had placed on the legal system and the Canadian taxpayer. The Court had an obligation in these circumstances to demonstrate to the inmate and to signal to potential litigants and counsel that invoking the mechanism of the judicial system for frivolous cases will not be costless. While the award of $300 in this case was relatively low, litigants and counsel should be forewarned that increased awards of costs, including costs against counsel personally, could be made in similar cases in the future.

Faulkner v. Stony Mountain Institution - (1986), 6 F.T.R. 195, [1986] F.C.J. No.439 (F.C.T.D.)

- An inmate applied for a writ of certiorari quashing the decision of a disciplinary court almost two and a half years after the decision was made. The Federal Court dismissed the application. The Court found that the inmate had not satisfactorily explained the long delay in making his application, and the law was quite clear that an unreasonable delay in applying for relief by way of certiorari may be a bar to granting it. In the Court's view, the unexplained delay of 20 months in making the application was a bar to the granting of the relief sought in this case.

Forster v. Canada (Correctional Service) - (1999), 247 N.R. 300, [1999] F.C.J. No.1462 (F.C.A.), 1999 CanLII 8762 (F.C.A.)

- The Federal Court Trial Division struck the inmate's application for judicial review of a disciplinary court conviction on the basis that it was commenced outside the 30 day time limit. In dismissing the appeal, the Court asserted that the inmate had received the decision of the disciplinary hearing and most of the tapes of that hearing. The motions judge exercised his discretion properly when he found that waiting for the full tape-recorded transcript did not constitute a sufficiently good reason for the delay. Furthermore, as to whether confiscating the inmate's computer constituted a reasonable excuse for the delay, it was open to the motions judge to find as he did because the inmate did not file his application until some three months after the day he got his computer back.

    - Granting of interlocutory injunction (stay) of disciplinary court decision pending       judicial review

Crawford v. William Head Penitentiary - (1992), 56 F.T.R. 32, [1992] 3 F.C. 539 (F.C.T.D.)

- While it was not set out as a ground for relief in relation to the disciplinary court conviction in this decision, the Federal Court indicated that there appeared to be a perception that simply initiating proceedings in Federal Court should result in suspension of other proceedings, pending a decision of the Federal Court. While each board or authority must assess its own basis for proceeding when the basis of those proceedings are questioned by application to the Federal Court, it was noted that the Federal Court itself does not readily intervene to grant an application to stay other proceedings, though it has jurisdiction to do so.

[ CROSS REFERENCE - PLACEMENT AND TRANSFER OF INMATES standard of review section ]

Boudreau v. Canada (Attorney General) - [2000] F.C.J. No.2016 (F.C.T.D.), 2000 CanLII 16709 (F.C.)

- An inmate applied for judicial review of a disciplinary court decision to convict him pursuant to section 40(k) of the CCRA. The Federal Court held that the standard of review in the context of decisions made by the CSC officials is, on the balance of probabilities, whether the decision was patently unreasonable.

Durie v. Canada (Attorney General) - (2001), 201 F.T.R. 8, 2001 FCT 22, [2001] F.C.J. No.169 (F.C.T.D.)

- An inmate applied for judicial review of a disciplinary court decision to convict him pursuant to section 40(l) of the CCRA for failing or refusing to provide a urine sample upon demand. The Federal Court stated that it "accepted the standard of review of this decision to be patent unreasonableness since there is reviewable error no matter what standard of review is applied."

Landry v. Legal Services Society - (1986), 28 C.C.C. (3d) 138, 4 W.W.R. 645, [1986] B.C.J. No.336 (B.C.C.A.)

- An inmate charged with a disciplinary offence applied for an order requiring the Legal Services Society to provide him with legal aid. The application was not successful and an appeal to the British Columbia Court of Appeal was dismissed. Under section 3(2) of the Legal Services Society Act, R.S.B.C. 1979, c. 227, an inmate would have been entitled to have legal services provided if he were a "defendant in criminal proceedings that could lead to imprisonment," could be "imprisoned or confined through civil proceedings," or if he had a legal problem that threatened "his livelihood." The Court held that proceedings before the prison disciplinary court are neither civil nor criminal in nature. Moreover, the fact that the inmate may have been confined and unable to work at a job (that he was paid a small wage for) within the prison, if found guilty of a disciplinary offence, did not constitute a threat to his "livelihood" as within the meaning of the statute.

Gochanour v. Alberta (Solicitor General) - (1990), 105 A.R. 289, 74 Alta.L.R. (2d) 12, [1990] 5 W.W.R. 178, [1990] A.J. No.348 (Alta.Q.B.)

- This was an application by an inmate, who wished to challenge certain actions taken by officials and the disciplinary board of the Edmonton Remand Centre, requesting the Court to compel the Legal Aid Society of Alberta to appoint counsel to represent him or alternatively, to appoint publicly-funded counsel directly. The Queen's Bench held that the general principle is that the Court has an inherent power to appoint counsel in a proper case as part of its duty to ensure a fair trial. There is no absolute right to counsel. However, when a person who cannot afford legal services is charged with an offence that is serious and complex, he or she is entitled to have counsel provided at the expense of the state where certain criteria are met. An applicant must convince the Court that the matters in question are so serious and complex that he could not receive a fair hearing without legal assistance. In this case, the application was dismissed on the grounds that the inmate appeared capable of representing himself and that the matters in question were not complex.

Winters v. Legal Services Society (British Columbia) - (1999), 137 C.C.C. (3d) 371, 177 D.L.R. (4th) 94, 27 C.R. (5th) 1, [1999] 3 S.C.R. 160, [1999] 9 W.W.R. 327 (S.C.C.)

- As prison disciplinary proceedings can result in up to 30 days' solitary confinement (up to 45 days in the case of multiple convictions), the inmate in this case was within the entitlement to mandatory legal services provided under s3(2) of the Legal Services Society Act, R.S.B.C. 1997, c.227 - now R.S.B.C. 1996, c.256. However, the term "legal services" is not synonymous with "legal representation" and the Act nowhere specifies a right to publicly funded legal counsel at a trial or hearing. The Court was of the opinion that the Legislature intended the Society to have discretion to determine when mandatory legal services under s3(2) ought to rise to the level of legal representation. In making its decision the Society must consider all of the relevant circumstances of the application, including the nature of the charge, the procedure for its determination, the severity of the punishment of the inmate if convicted, and other potential indirect consequences such as loss of remission, or prejudice to a potential transfer to a lesser institution. When legal representation at the hearing is that which a reasonable person of average means expects to receive, the Society is under a statutory duty to provide counsel at the hearing. The prospect of solitary confinement would persuade a reasonable person of average means to have counsel at the hearing. However, the task of the Legal Services Society is complicated by the fact that solitary confinement is theoretically available for a vast range of offences under the CCRA. It may or may not be a remote possibility in a particular case.

R v. Berrie - (1975), 24 C.C.C. (2d) 66, 30 C.R.N.S. 145 (B.C.Prov.Ct.)

- Several correctional officers were charged with common assault as a result of an attempt to shave an inmate, who had disregarded an order from the warden to shave off his beard. In convicting the accused, the Court stated that the accused correctional officers were neither required by law nor authorized by law to shave the inmate. The warden wanted the inmate to shave and ordered that he "was to shave like the rest" but the only way that the provision could be enforced, absent the co-operation and consent of the inmate, was by a proper disciplinary hearing under the regulations. While the loss of remission time or privileges emanating from disciplinary proceedings may or may not be effective, the Court held that the use of brute force would not be reasonable to accomplish the enforcement of an order of this sort.

Schimmens v. Canada (Attorney General) - (1998), 157 F.T.R. 118, [1998] F.C.J. No.1486 (F.C.T.D.)

- The Federal Court agreed with the inmate's argument that section 41(1) of the Act establishes a condition precedent that must be met before the institutional court has jurisdiction to proceed with the hearing of a charge. The Court held that section 41(1) creates an obligation on the institutional court member before hearing a charge to investigate to be satisfied that "all reasonable steps to resolve the matter informally, where possible" have been taken. In this case, the Federal Court found that the chairperson misapprehended the meaning of section 41(1) and did not fulfill this obligation. The decision was set aside and the matter referred back to another member of the disciplinary court for rehearing.

Russell v. Radley - (1984), 11 C.C.C. (3d) 289, 5 Admin.L.R. 39, [1984] 1 F.C. 543 (F.C.T.D.)

- The rights guaranteed by s11 of the Charter apply to a person charged with an "offence." Offence means conduct defined and prohibited by law which, if found beyond a reasonable doubt to have been committed in fact, is punishable by fine, imprisonment or other penalty imposed according to law upon the offender. By that standard a disciplinary offence defined in the Penitentiary Service Regulations is an offence within the meaning of s11. Accordingly, s11(d) is applicable to the trial of serious or flagrant disciplinary offences by the inmate disciplinary board. The disciplinary "court," being in reality an administrative tribunal, performing an administrative function, is not required by any standard to evince the plenitude of independence possessed by true courts. By providing for the appointment of "a person to preside over a disciplinary court," and especially when that person bears the independence of a lawyer who is not associated with the Penitentiary Service, the reality as well as the appearance of independence of the trier of allegations of disciplinary offences is augmented. It is not necessary to fully judicialize either the tribunal or its procedures in order to achieve sufficient independence for prison disciplinary tribunals to remain validly constituted within the contemplation of s11(d) of the Charter. As constituted, the tribunal raises no reasonable apprehension in the minds of informed persons, viewing the matter realistically and practically, about the independence of the lawyer presiding over it.

Dion v. Canada - (1986), 30 C.C.C. (3d) 108, [1986] R.J.Q. 2196 (Que.S.C.)

- The Court declared that sections 39(i.1) and 41.1 of the Penitentiary Service Regulations did not satisfy the requirements of fundamental justice referred to in section 7 of the Charter and were thus of no force and effect. According to the Court, section 41.1 gave an officer or penitentiary employee the absolute power to require a urine sample, even if the inmate did not present any danger of committing discipline breaches or acts linked to the absorption of intoxicants. This section did not contain the essential elements of fundamental justice because it did not ensure an inmate of protection against abuse by one of the members of the penitentiary service. Arbitrariness has always been, and will always be, contrary to fundamental justice. The same went for section 39(i.1) because it did not qualify, in any fashion, the prohibition that it imposes on all prisoners, whoever they are, in what circumstances they find themselves, and regardless of the nature of the intoxicant that they consume or may consume, except where it is authorized medication that is used in the directed manner. Section 39(i.1) exhibited the same arbitrary characteristic that is reproached in section 41.1.

Beaulieu v. Canada (Director of Leclerc Institution) - (1987), 4 W.C.B. (2d) 211, [1991] F.C.J. No.1122 (F.C.T.D.)

- The denial to an inmate of rehabilitative programmes following conviction for a prison disciplinary offence did not constitute double jeopardy and an infringement of section 11(h) of the Charter.

Haines v. Kingston Prison for Women (Disciplinary Tribunal) - (1990), 40 F.T.R. 76, [1990] F.C.J. No.1064 (F.C.T.D.)

- The Federal Court was satisfied that disciplinary court proceedings and proceedings before a criminal court are totally different proceedings. Therefore, as pursuant to section 13 of the Charter, a witness who testifies in any proceedings has the right not to have any incriminating evidence so given used to incriminate that witness in any other proceedings, except in prosecution for perjury or for the giving of contradictory evidence.

Hanna v. Matsqui Institution (Disciplinary Court) - (1990), 36 F.T.R. 134, [1990] F.C.J. No.629 (F.C.T.D.)

- The Federal Court declared that there was no doubt that the independent chairperson has the power to consider if a section of legislation is contrary to the Charter. However, the Court was satisfied that only the superior courts have the jurisdiction to declare a section of legislation contrary to the Charter and that this declaration can only be obtained by filing an action to obtain a declaratory judgment.

R v. Shubley - (1990), 52 C.C.C. (3d) 481, 74 C.R. (3d) 1, 42 Admin.L.R. 118, 65 D.L.R. (4th) 193, [1990] 1 S.C.R. 3 (S.C.C.)

- Prosecution under the Criminal Code for misconduct that had earlier been dealt with by way of a prison disciplinary hearing did not violate section 11(h) of the Charter. Such prosecution did not amount to double jeopardy. The Supreme Court of Canada applied the Wigglesworth test and held that proceedings against the accused under the Criminal Code would be barred by s11(h) of the Charter only if in the earlier internal prison disciplinary proceedings the accused had been found guilty and punished for an offence. This depends on whether the earlier proceedings were either by their very nature criminal proceedings or whether the proceedings involved the imposition of true penal consequences. The Court concluded that the prison disciplinary proceeding to which the inmate was subject was not, by its very nature, criminal. The inmate was being called to account to the prison officials for breach of his obligation as an inmate of the prison to conduct himself in accordance with prison rules. The purpose of internal prison disciplinary proceedings is not to mete out criminal punishment, but to maintain order in the prison. Further, the Court concluded that the sanctions conferred on the superintendent for prison misconduct do not constitute true penal consequences.

Morin v. Saskatoon Correctional Centre - (1990), 86 Sask.R. 269, [1990] S.J. No.462 (Sask.Q.B.)

- Citing R v. Shubley (1990), 52 C.C.C. (3d) 481, 74 C.R. (3d) 1, 42 Admin.L.R. 118, 65 D.L.R. (4th) 193, [1990] 1 S.C.R. 3 (S.C.C.), the Queen's Bench held that s11 of the Charter, and in particular the requirement that the tribunal be independent and impartial in the context of subparagraph (d), does not apply to the proceedings of the disciplinary panel in this case. Although The Shubley case dealt primarily with s11(h) of the Charter, the principles apply equally to s11(d). In terms of s7 of the Charter, the Queen's Bench stipulated that there appeared to be no question that orders made by a disciplinary panel for cancellation of earned remission, solitary confinement, or transfer of an inmate have been interpreted by the courts to be equivalent to the deprivation of "liberty" as envisaged by s7. Yet, the Queen's Bench was not aware of any case which had gone to the extent of interpreting "fundamental justice" in s7 as requiring an independent make-up for a disciplinary tribunal, (or at least that it be "independent and impartial" as required by s11(d). This is to read into s7 a substantive requirement. Section 7 has consistently been interpreted by the courts as a procedural provision, namely, that in the process of carrying out its duties, a tribunal must be impartial and unbiased in the sense that it does not have an interest in the matter upon which it adjudicates. The decisions made in most of the cases appear to equate "fundamental justice" in s7 of the Charter to the concept of "natural justice" in our common law. This common law principle also requires that a tribunal not be tainted by partiality or bias in coming to its decision.

R v. Martell - (1991), 118 A.R. 47, [1991] A.J. No.1207 (Alta.Prov.Ct.)

- An inmate was charged criminally with possession of hashish. Meanwhile, he was charged and pleaded guilty to penitentiary disciplinary offences that stemmed from the same alleged act. After a criminal trial, the inmate was convicted. Yet, before sentencing, the inmate applied for a stay on the grounds that his section 7 Charter rights had been violated by double prosecution for the same offence. The Provincial Court dismissed the application, holding that section 7 of the Charter had not been violated as the prison disciplinary proceedings were not criminal by nature and did not have penal consequences.

Picard v. Drummond Institution - (1995), 107 F.T.R. 1, [1995] F.C.J. No.1628 (F.C.T.D.)

- The Federal Court agreed with the statement made in Jackson v. Joyceville Penitentiary Disciplinary Tribunal, [1990] 3 F.C. 55, 32 F.T.R. 96 (T.D.), that the collection of a urine sample in a penitentiary is a search within the meaning of section 8 of the Charter. The freedom of inmates from state examination of bodily wastes without consent ought not to be taken away except in accord with the principles of fundamental justice.

Beaudoin v. William Head Institution - (1997), 139 F.T.R. 133, [1997] F.C.J. No.1663 (F.C.T.D.)

- In obiter, the Federal Court stated that it remains open as to whether the reduced expectation of privacy of an inmate of a federal correction institution is so low as to permit, without contravention of the Charter, a demand for a urine sample where the individual demanding the sample does not have reasonable grounds to believe that the inmate of who, the sample is demanded had ingested an intoxicant, or in other circumstances where it cannot be demonstrated that the public interest in safety and security in the correctional institutions is a predominant interest. The procedures of the CSC consequent on such a demand are clearly intrusive into generally applicable privacy expectations.

Blanchard v. Disciplinary Board of Millhaven Institution - [1982] 1 F.C. 309 (F.C.T.D.)

- Except to the extent that there are statutory provisions or regulations having the force of law to the contrary, there is no requirement to conform to any particular procedure or to abide by the rules of evidence generally applicable to judicial or quasi-judicial tribunals or adversary proceedings. There is, however, an overall duty to act fairly in administrative matters and, when applied to an administrative hearing or enquiry, the duty to act fairly translates into one of ensuring that the enquiry is carried out in a fair manner and with due regard to natural justice. Although the hearing is not to be conducted as an adversary proceeding but as an inquisitorial one, there is no duty on the person responsible for conducting the hearing to explore every conceivable defence or to suggest possible defences to the prisoner, although there is a duty to conduct a full and fair enquiry which, of course, might lead to the obligation of asking questions of the prisoner or of any witness, the answers to which might prove exculpatory in so far as the prisoner is concerned. He must, in other words, examine both sides of the question.

McLeod - (Re)(1982), 9 W.C.B. 249 (F.C.T.D.)

- The chairperson of the disciplinary court breached the duty to act fairly when he entered a plea of guilty on the inmate's behalf after the inmate had pleaded "nolo contendere." As that plea was unknown in law, the chairperson should have considered there to be no plea entered in which case a plea of not guilty was required to be entered by the tribunal.

Lasalle v. LeClerc Institute (Disciplinary Tribunals) - (1983), 37 C.R. (3d) 145, 5 Admin.L.R. 23, [1983] F.C.J. No.1099 (F.C.T.D.)

- The Federal Court quashed the disciplinary convictions made against an inmate. The inmate raised an issue with respect to the fairness of the disciplinary hearing, stating that he was permitted to enter the hearing room only after the witnesses and the judge had conferred, and again that, after the conclusion of the hearing, the witnesses laying charges against him, the penitentiary representative and the judge remained in the room before he was called back and found guilty. The Court held that while it has been held that such a hearing is in the nature of an inquiry and not an adversary process, this practice appears to be unfair, if not actually prejudicial, to the inmate.

Gingras v. Canada - [1987] F.C.J. No.426 (F.C.T.D.)

- The duty to provide procedural fairness in the adjudication of disciplinary matters was not breached. The inmate was present at the hearing, permitted to question witnesses, permitted to call witnesses and to give evidence of his own. The hearing took place three days after the incident. The inmate's first language was French and an interpreter was available to him. He did not ask for further time to consider his situation or to prepare his case. If the disciplinary court had decided to proceed over his objections there were remedies available. Furthermore, the Federal Court could not agree with the CSC's argument that this application for judicial review was an academic exercise because the inmate had already served his time, and the charges would not effect his parole eligibility date. The Court held that although the date is not affected, these charges could very well determine whether he is in fact granted parole. Such circumstances are not academic to the inmate.

Tsang v. Kent Institution - (1988), 24 F.T.R. 103, [1988] F.C.J. No.845 (F.C.T.D.)

- An inmate applied to the Federal Court for an order prohibiting a disciplinary court from proceeding with disciplinary charges against him, arguing that the disciplinary court lost its jurisdiction when the charge did not proceed as originally scheduled. The hearing had to be postponed due to a disturbance at the institution that ultimately led to a "lockdown." In dismissing the application, the Federal Court found no violation of the inmate's section 7 or 11 Charter rights as a result of the disciplinary court's rescheduling of the hearing. The Court held that in the absence of any evidence that the disciplinary court failed to comply with its own rules of procedure or failed to comply with a statutory procedural requirement, it was difficult to see how a legal argument could be made that in not proceeding with the charge on the originally scheduled day, the disciplinary court lost jurisdiction. Moreover, even if the disciplinary court had failed to comply with some procedural rule, regulation or statutory provision, one would still have to ask whether that failure was of so severe a nature as to constitute a loss of jurisdiction. It would have been difficult on the facts of this case to classify a breach of the nature alleged by the inmate as so serious in nature as to deprive the disciplinary court of jurisdiction - one overriding reason for such difficulty was the fact that the inmate suffered no prejudice thereby.

Vilon v. Canada - (1989), 26 F.T.R. 227, [1989] F.C.J. No.66 (F.C.T.D.)

- At a hearing, the independent chairperson decided to suspend a sanction previously imposed on an inmate by the disciplinary court. By agreeing to suspend the punishment previously imposed by him the chairperson of the disciplinary court was reviewing his own decision and clearly acting unlawfully. There was nothing in the Penitentiary Service Regulations that authorized him to do that. While the chairperson was entitled to allow a new hearing in the event that he was presented with new evidence, he lacked jurisdiction to review his decision and suspend the punishment.

Hendrickson v. Kent Institution - (1990), 32 F.T.R. 296, [1990] F.C.J. No.19 (F.C.T.D.)

- The principles governing the penitentiary discipline are to be found in Martineau and Butters v. Matsqui Institution Inmate Disciplinary Board (1977), 33 C.C.C. (2d) 366, 74 D.L.R. (3d) 1, [1978] 1 S.C.R. 118, 14 N.R. 285 (S.C.C.); Martineau v. Matsqui Institution Inmate Disciplinary Board (No.2)(1979), 13 C.R. (3d) 1, 50 C.C.C. (2d) 353, 106 D.L.R. (3d) 385, [1980] 1 S.C.R. 602, 30 N.R. 119 (S.C.C.); Blanchard v. Disciplinary Board of Millhaven Institution (1982), 69 C.C.C. (2d) 171 (F.C.T.D.); Howard v. Stony Mountain Institution Inmate Disciplinary Court (1985), 19 C.C.C. (3d) 195, 19 D.L.R. (4th) 502, 11 Admin.L.R. 63, 45 C.R. (3d) 242 (F.C.A.), and may be summarized as follows: 1) A hearing conducted by an independent chairperson of the disciplinary court of an institution is an administrative proceeding and is neither judicial nor quasi-judicial in character. 2) Except to the extent there are statutory provisions or regulations having the force of law to the contrary, there is no requirement to conform to any particular procedure or to abide by the rules of evidence generally applicable to judicial or quasi-judicial tribunals or adversary proceedings. 3) There is an overall duty to act fairly by ensuring that the inquiry is carried out in a fair manner and with due regard to natural justice. The duty to act fairly in a disciplinary court hearing requires that the person be aware of what the allegations are, the evidence and the nature of the evidence against him and be afforded a reasonable opportunity to respond to the evidence and to give his version of the matter. 4) The hearing is not to be conducted as an adversary proceeding but as an inquisitorial one and there is no duty on the person responsible for conducting the hearing to explore every conceivable defence, although there is a duty to conduct a full and fair inquiry or, in other words, examine both sides of the question. 5) It is not up to this court to review the evidence as a court might do in a case of a judicial tribunal or a review of a decision of a quasi-judicial tribunal, but merely to consider whether there has in fact been a breach of the duty to act fairly. 6) The judicial discretion in relation with disciplinary matters must be exercised sparingly and a remedy ought to be granted only in cases of serious injustice.

Teneycke v. Matsqui Institution - (1990), 33 F.T.R. 181, 43 Admin.L.R. 294, [1990] 2 F.C. 106 (F.C.T.D.)

- An inmate was charged with a disciplinary offence which took place in his cell. Without notifying the inmate the independent chairperson took a view of the cell that included the moving of furniture and taking of measurements. The Federal Court held that in the absence of a specific statutory provision to the contrary, views may be conducted only for the very restrictive purpose of allowing the tribunal to better understand the evidence and may never have the purpose of allowing the gathering of evidence at the scene by the tribunal. The parties must always be present whenever a view is taken unless the right is waived since the parties are, except where certain administrative decisions are being considered, entitled as of right to be present or represented at all proceedings involved in the decision-making process. Views are part of that process. Under no circumstances is a person presiding either a trial or an administrative board or tribunal charged with a decision-making responsibility involving the rights of others, entitled to actively gather evidence or to decide matters on the basis of his own observation of material facts which have not been established in evidence.

Hanna v. Mission Institution Disciplinary Court - (1995), 102 F.T.R. 275, [1995] F.C.J. No.1370 (F.C.T.D.)

- Where an inmate maintained that the independent chairperson exceeded his jurisdiction by acting as both chairperson and prosecutor, and in calling witnesses after the inmate closed his case, the Federal Court held that it is well established in the jurisprudence that prison disciplinary proceedings are not adversarial in nature, but are inquisitorial. As such, it is not a breach of a right to a fair hearing to have the chairperson ask questions in order that a proper determination can be made as to whether or not the allegations in the offence report have indeed been substantiated. With respect to the calling of a witness after the applicant gave his evidence, the Federal Court noted that in Hendrickson v. Kent Institution (1990), 32 F.T.R. 296, [1990] F.C.J. No.19 (F.C.T.D.), it was held that having the chairperson of a disciplinary court call witnesses after an inmate has given evidence is not a violation of either the rules of fairness or outside the jurisdiction of the independent chairperson, provided the inmate is present, is given full opportunity to hear the evidence, to give his or her version of the case and to cross-examine the witness.

Stocking v. Joyceville Institution Disciplinary Court - (1995), 98 F.T.R. 157, [1995] F.C.J. No.936 (F.C.T.D.)

- An inmate had not provided to the Federal Court transcripts from the disciplinary hearing or with the original tapes of the hearing. While there was an allegation made by the inmate in his affidavit that two correctional officers gave contradictory evidence with respect to several facts, the Federal Court held that in the absence of any record to verify whether in fact these inconsistencies existed, it must disregard the statements pertaining to the alleged contradictions. Further, without a transcript (electronic or written) of the proceedings before the disciplinary court, the Court had no indication as to what evidence was relied upon by the independent chairperson. In the absence of sufficient particulars with respect to the hearing before the disciplinary court, the Court must conclude that the chairperson's decision was reasonable.

Belair v. Canada (Solicitor General) - [2000] F.C.J. No.199 (F.C.T.D.), 2000 CanLII 14967 (F.C.)

- An inmate had asked that the disciplinary court proceedings he faced go forward in French before a Francophone or bilingual chairperson without the assistance of an interpreter, as required by section 16 of the Official Languages Act. That request was denied and the inmate was convicted of a disciplinary offence by a unilingual anglophone chairperson aided by an interpreter. The inmate applied to the Federal Court for judicial review asking the Court to quash the tribunal's decision on the ground that he was entitled to the hearing he sought under section 16. In denying the inmate relief, the Federal Court held that the Official Languages Act states that the right claimed by the applicant inmate is only available before certain tribunals, which puts in question the classification of the tribunal. Accordingly, a disciplinary tribunal is not a tribunal that carries out adjudicative functions within the meaning of the Official Languages Act.

Bailey v. Mission Institution - (1986), 17 W.C.B. 155, 6 F.T.R. 69, 25 Admin.L.R. 219, [1986] F.C.J. No.505 (F.C.T.D.)

- An inmate was charged and convicted of having contraband in his possession, namely a ball point pen tube with marijuana residue, pursuant to section 39(i) of the Penitentiary Service Regulations. The Federal Court allowed the inmate's application for judicial review in part on the grounds that the inmate was denied the right to defend himself on the evidence that was used to obtain a guilty decision. A correctional officer's affidavit to the Court indicated that the memorandum showing the results on the testing of the substance in question was in the officer's possession during the hearing, was referred to by the officer during the hearing, but was never placed before the inmate during the course of the proceedings. The Court held that if the memorandum showing the results on the testing is not shown to the person charged with an offence, then that person cannot make a defence to that evidence.

Picard v. Drummond Institution - (1995), 107 F.T.R. 1, [1995] F.C.J. No.1628 (F.C.T.D.)

- An inmate refused to a demand to provide a urine sample and was convicted of a disciplinary offence pursuant to section 54(a) of the CCRA. While prison officials made the demand on the basis of a claim that the inmate had taken an intoxicant, they neither told the inmate anything about their grounds for believing that he was taking intoxicants, nor did they provide in the notice of disciplinary charges any summary of the evidence in support of their charge other than a statement that read as follows: "Reason Reason to believe." It was only at the hearing, after the inmate had pleaded not guilty to the charge, did officials indicate that the reasonable grounds to believe the inmate had committed the offence were based on information obtained from inmates or staff members but without giving any other particulars. The Federal Court allowed the inmate's application for judicial review challenging the conviction. Section 25 of the Regulations specifically requires that the notice of a charge of a disciplinary offence contain a summary of the evidence to be presented in support of the charge at the hearing. The Federal Court asserted that the simple statement provided by officials was not sufficient to meet the requirement and enable the inmate to prepare a full answer and defence. In Demaria v. Regional Classification Board, [1987] 1 F.C. 74, 69 N.R. 135 (F.C.A.), the Federal Court of Appeal confirmed that compliance with the principles of fundamental justice or the duty of fairness requires the provision of information on the reasonable grounds to believe that an offence has been committed. In light of the case law, it was the Federal Court's view in this case that, in the absence of evidence from the authorities demonstrating that they withheld only such information as was strictly necessary, the failure to give the inmate any information at all concerning the reasonable grounds of the officers to believe that an offence was committed violated the inmate's rights under not only sections 56 and 57 of the CCRA and section 25 of the Regulations, but also section 7 of the Charter.

Lasalle v. LeClerc Institute (Disciplinary Tribunals) - (1983), 37 C.R. (3d) 145, 5 Admin.L.R. 23, [1983] F.C.J. No.1099 (F.C.T.D.)

- The Federal Court quashed the disciplinary convictions made against an inmate. A Commissioner's Directive provided that no finding shall be made against an inmate charged with a disciplinary offence unless he has received written notice of the charge in sufficient detail at least 24 hours prior to the beginning of the hearing, so that the inmate would have reasonable time to prepare his defence. In this case, the inmate was given the written notice only immediately prior to the hearing. According to the affidavit of a correctional official, the inmate waived the 24 hour requirement. The Court held that the holding of a hearing without the 24 hour notice is an exception to the rule, and the burden of proof that the inmate has consented to waive the delay must devolve upon the prison authorities. At the very least, such a waiver should be made in writing in order to avoid subsequent questions of credibility of witnesses being raised.

Canada (Attorney General) v. Plante - (1995), 103 F.T.R. 161, [1995] F.C.J. No.1509 (F.C.T.D.)

- An inmate was acquitted of a disciplinary offense by the institution's disciplinary court on the grounds that the Inmate Offence Report and Notification of Charge was delivered to him after the expiration of a two-day period set out in the Commissioner's Directive. The Attorney General sought judicial review of the disciplinary court's decision. In allowing the application, the Federal Court found the disciplinary court to have wrongly attributed a legislative effect to the CD by concluding that compliance with the two-day limit set out in the CD mandatory, and to have failed to exercise its jurisdiction by not considering whether the failure to comply with the two-day limit prejudiced the inmate. Further, the Federal Court held that if the disciplinary court had looked into whether the failure to comply with the time limit set out had prevented the inmate from preparing a full answer and defence, it would have found that there was no such prejudice. The record revealed that the Notice was given to the inmate by the chairperson of the disciplinary court when the inmate appeared for the first time and pleaded not guilty to the offence charged. The hearing into the matter did not start until almost a month later. At that hearing the inmate was represented by a lawyer who, considering his submissions to the disciplinary court, was very familiar with the case. Accordingly, the Federal Court set aside the disciplinary court's decision and referred the case back to the disciplinary court to be reconsidered and decided on the premise that the date on which the offence report was delivered to the inmate did not prejudice his full answer and defence before that court.

Hanna v. Mission Institution Disciplinary Court - (1995), 102 F.T.R. 275, [1995] F.C.J. No.1370 (F.C.T.D.)

- In challenging a disciplinary court conviction, the inmate maintained that the notification of the charge was not delivered three working days before the proposed date of the hearing, contrary to section 28 of the Regulations. The Federal Court dismissed the application. The inmate was served with the notice of hearing on December 23. The hearing was originally scheduled for December 29. With various statutory holidays, the Court agreed that it appeared that December 29 did not allow for three working days. However, due to the unavailability of a key witness, the matter was put over to January 12. The only matter of substance that occurred prior to the adjournment was that the applicant entered a plea of not guilty. No evidence was led. More importantly, the inmate indicated that he was ready and willing to proceed on that day. The actual hearing of the matter, namely the calling of witnesses and the hearing of evidence, proceeded on January 12. In such circumstances, the Court was not certain that one could say in fact that the hearing did not take place well after the three-day notification period. In any event, the jurisprudence was clear that even if the disciplinary court failed to comply with some procedural rule, regulation or statutory provision, the question of whether that failure was so severe in nature as to constitute a loss of jurisdiction would still have to be addressed. In this regard, prejudice to the inmate is a consideration. In this case, whether the time limit was adhered to or not, it was clear that the inmate suffered no prejudice.

Jackson v. Stony Mountain Inmate Disciplinary Court - (1995), 90 F.T.R. 296, 38 C.R. (4th) 46, [1995] F.C.J. No.179 (F.C.T.D.)

- Sections 25 and 31(2) of the Regulations impose on the CSC the obligation of informing the inmate of the time, place and date of the disciplinary hearing, allowing the inmate to retain and instruct legal counsel, and allowing the inmate's counsel to fully participate in the hearing. However, they do not appear to impose an obligation on the CSC to directly notify the inmate's counsel of the hearing date. It may be sufficient if the inmate is given proper notice and is given a reasonable opportunity to inform his or her counsel of the time and date of the hearing. Or if counsel is present when an independent chairperson schedules a date, it may be that the CSC need do nothing further. However, if the CSC schedules a hearing and assumes the responsibility for notifying counsel, the information given to counsel obviously must be accurate. If the CSC has taken on this responsibility, and has failed to provide to counsel the correct time or date, then it fails to ensure that the inmate's legal counsel has been permitted to participate in the proceedings to the same extent as the inmate, as mandated by section 31(2).

Pearce v. Canada (Solicitor General) - [1995] F.C.J. No.1097 (F.C.T.D.)

- An inmate was required to appear before a disciplinary court to answer a charge of taking an intoxicant contrary to subsection 40(k) of the CCRA. During that hearing, the inmate was further charged with attempting to disobey a written rule governing the conduct of inmates pursuant to subsections 40(s) and (r) of the Act - an allegation that stemmed from the same set of events as the 40(k) charge. A separate hearing took place for this second charge where the inmate requested to be informed of the rule he was alleged to have violated. The inmate also pointed out to the independent chairperson the provisions of section 30 of the Regulations and objected to the jurisdiction of the Chairperson to hear the charge before it. The chairperson refused the request of the inmate to be informed as to the rule he had allegedly tried to breach and also ruled that he could hear this second charge despite the provisions of section 30. The chairperson proceeded to find the inmate guilty. The Federal Court allowed the inmate's application for judicial review challenging the conviction for this second charge. In the circumstances, it was clear that the inmate expected time to prepare his defence and to have counsel present. He was effectively denied both. Accordingly, the conviction and penalty were set aside and the matter sent for re-hearing before a different chairperson.

Opoonechaw v. Stony Mountain Institution, Inmate Disciplinary Court - (1996), 115 F.T.R. 229, [1996] F.C.J. No.1049 (F.C.T.D.)

- An inmate was convicted by a disciplinary court of taking an intoxicant into his body contrary to section 40(k) of the CCRA. As part of his sentence, the inmate was required to provide three negative urine samples over a three-month period. The inmate refused to provide a urine sample when requested and was charged with failing to provide the urine sample pursuant to "section 41(l)" of the CCRA and section 71 of the Regulations. The charge should have read "section 40(l)." The inmate also refused a second request for a urine sample. Concerning this second refusal, the Inmate Offence Report and Notification of Charge stated that the inmate was charged with failing to provide a urine sample under section 71 of the Regulations. The disciplinary court convicted the inmate for these acts. The inmate applied for judicial review, arguing that he was not aware of the charges that he had to meet. The Federal Court dismissed the application. The Court held that while the Notification of Charge forms indicate that he was charged under section 41(l), which was inapplicable, the nature of the charge must be otherwise apparent to the inmate. In the Court's view, the forms made it clear to the inmate that he was charged with refusing to provide a urine sample as per the disciplinary court order. It was an error for the first report to state that the charge related to section 41(l). However, both the first and second reports refer to the charge as being a failure or refusal to provide a urine sample as demanded pursuant to section 71 of the Regulations. The reference to section 71 of the Regulations brought the request for a urine sample within section 40(a) of the Act. Therefore, the inmate was aware of the charge that he had to meet and there was no denial of fairness or natural justice in this case.

Savard v. Canada (Attorney General) - (1997), 128 F.T.R. 271, [1997] F.C.J. No.105 (F.C.T.D.) (French version)

- The Federal Court allowed the inmate's application for judicial review on the basis that there was a flagrant breach of section 25 of the Regulations, as the notice of charge contained absolutely no "summary of the evidence to be presented in support of the charge at the hearing." In the Court's view, this breach is fatal. As the notice of charge in this case contained merely a description of the offence and no summary of the evidence to be presented in support of the charge at the hearing before the disciplinary tribunal is given, the Court was forced to find that the authorities did not carry out the will of Parliament, which intended to give an inmate charged with a disciplinary offence a specific and particular means of preparing a full and complete defence, which is a recognized rule of natural justice.

Howard v. Stony Mountain Institution Inmate Disciplinary Court - (1985), 19 C.C.C. (3d) 195, 19 D.L.R. (4th) 502, 11 Admin.L.R. 63, 45 C.R. (3d) 242 (F.C.A.)

- The duty to act fairly was not breached where prison authorities failed to fully complete the "Involuntary Transfer Check List" as prescribed by the "Instructions."

Hnatiuk v. Canada - (1987), 12 F.T.R. 44, [1987] F.C.J. No.624 (F.C.T.D.)

- The enactment of s7 of the Charter has not created any absolute right to counsel in all disciplinary court proceedings or hearings. It is undoubtedly of the greatest importance to a person whose life, liberty or security of the person are at stake to have the opportunity to present his case as fully and adequately as possible. The advantages of having the assistance of counsel for that purpose are not in doubt. But what is required is an opportunity to present the case adequately. Whether or not an inmate has a right to representation by counsel will depend on the circumstances of the particular case, its nature, its gravity, its complexity, the capacity of the inmate himself to understand the case and present his defence. The list is not exhaustive. Whether or not an inmate's request for representation by counsel can lawfully be refused is not properly referred to as a matter of discretion but is a matter of right where the circumstances are such that the opportunity to present the case adequately calls for representation by counsel. The presiding officer has no authority to adjudicate on the right of an inmate to counsel. The presiding officer will no doubt have to consider and take a position on whether the case is one in which the request for counsel can be denied and he must be prepared to act on his view. Yet, the presiding officer's denial of such a request cannot be regarded as an adjudication of the right and cannot prevent a superior court in the exercise of supervisory jurisdiction from determining the question on its own.

Faulkner v. Stony Mountain Institution - (1986), 6 F.T.R. 195, [1986] F.C.J. No.439 (F.C.T.D.)

- The Federal Court noted that there was no absolute right to counsel in every instance, and it was not uncommon for the chairman of an administrative tribunal, a quasi-judicial or judicial tribunal, to make the determination of the necessity of the requirement for counsel in a given situation in the interest of natural justice.

Mitchell v. Crozier - (1986), 1 F.T.R. 138, [1986] 1 F.C. 255 (F.C.T.D.)

- As a result of an inmate's refusal to read the charge sheets given to him, he was under the mistaken belief that the disciplinary charges facing him were categorized as minor rather than serious in nature. As a result, the inmate did not seek to have, and did not have, counsel present. The Court noted that it would appear that on the broad principle of Howard v. Presiding Officer, Inmate Disciplinary Court of Stony Mountain Institution, [1984] 2 F.C. 642 (F.C.A.) that the inmate was entitled to be represented by counsel in the proceeding before the disciplinary court because of the possibility of forfeiture of his earned remission. However, this right to representation by counsel must be judged according to the particular circumstances of the case. The Court dealt with the question of whether the inmate's failure to exercise his right to request representation by counsel in disciplinary proceedings, of which he is or should have been aware but for his own conduct, could be afterwards seen to constitute a deprivation of his right to liberty within the meaning of Section 7 of the Charter? The Court thought not. In this case, what led to the inmate's misconception of the nature of the charges was his own conduct and nothing else. The inmate refused on two occasions to read the charges and took it upon himself to categorize them as minor in nature. There was no inducement or representation by the disciplinary court to treat them as other than serious. The inmate was or should have been fully aware of his right to request representation by counsel in relation to the two charges complained of and he chose not to do so.

Savard v. Edmonton Institution Disciplinary Court - (1986), 3 F.T.R. 1 (F.C.T.D.)

- An inmate was charged with a "serious" disciplinary offence and applied to the Federal Court for a writ of prohibition to prevent the prison's disciplinary court and the warden from proceeding with the charge unless the inmate were permitted to be represented by counsel. The Federal Court refused to grant the order and dismissed the application. In reaching its decision, the Court applied the decision in Howard v. Presiding Officer, Inmate Disciplinary Court of Stony Mountain Institution, [1984] 2 F.C. 642 (F.C.A.) to the facts of this case. The Court held that in determining the seriousness of the charge, the first of the factors set out in Howard, it interpreted the Howard case as indicating that the particular circumstances of the individual case must be considered as well as the theoretical consequences which could flow from the charges generally of the type in question. With that said, since in this case there was no allegation of damage to property and due to the fact that the inmate was serving a 25-year life sentence, there was no possibility of the loss of earned or statutory remission. Thus, the Court could not find that the charge is of such a serious nature that, for the reason alone the right to counsel was required in order to ensure that the principles of fundamental justice were complied with. In considering the other elements listed in Howard, the Court found that the charge was not a complex one; it revolved primarily around determinations of fact. Further, there was no indication that the inmate lacked ability or capacity to present his own defence. There was no indication that any procedural difficulties were involved in the case.

Walker v. Kingston Penitentiary Disciplinary Board - (1986), 3 F.T.R. 109, 52 C.R. (3d) 106, [1986] F.C.J. No.249 (F.C.T.D.)

- Citing Howard v. Presiding Officer, Inmate Disciplinary Court of Stony Mountain Institution, [1984] 2 F.C. 642 (F.C.A.), the Court noted that whether the representation by counsel could be held to have been lawfully refused in a given case would depend on the circumstances, and that where the circumstances are such that the opportunity to present the case adequately calls for representation by counsel, then representation by counsel must be seen as a matter of right. The Court felt that in reviewing all the circumstances in this case it was not satisfied that all the circumstances were such that the opportunity to present his case adequately required representation by counsel.

Engen v. Kingston Penitentiary (Disciplinary Board) - (1987), 60 C.R. (3d) 109, 12 F.T.R. 7, [1987] F.C.J. No.641 (F.C.T.D.)

- Citing Howard v. Presiding Officer, Inmate Disciplinary Court of Stony Mountain Institution, [1984] 2 F.C. 642 (F.C.A.), the Court noted that whether the representation by counsel could be held to have been lawfully refused in a given case would depend on the circumstances of the particular case, its nature, its gravity, its complexity, the capacity of the inmate himself to understand the case and present his defence. This list is not exhaustive. In discussing the Howard criteria, the Court stipulated the following. In terms of the nature and gravity of the offence, the Court pointed out that the fact that the offence was classified as intermediary does not automatically preclude his right to counsel. It is the actual gravity of the offence that must be considered, not the name attached to it. The Court held that it would be naïve to suggest that the court, in weighing the seriousness of the offence committed, should ignore the possible consequences of a disciplinary conviction in subsequent proceedings - proceedings that will in turn deal a severe blow to the already shaky structure of an inmate's "liberty." Yet, a consideration of the gravity of the offence is only one of the aspects for analysis in determining the right to counsel. Where the gravity of the offence is established by the fact that a guilty verdict by the disciplinary court could greatly effect subsequent earned remission and parole considerations, the other criteria set out in Howard must be very strictly applied. On the circumstances of this case, the Court held that despite the severe consequences that could result from the inmate's conviction, it could not in light of the other criteria stated in Howard, conclude that the inmate was unable to present his case adequately without counsel. In obiter, the Court went on to say that although the CSC placed great emphasis on the fact that this case raised no complex questions of law and in light of the fact that the inmate here was fully competent to discuss questions of fact which were at issue, it nevertheless remains that the fact that a case raises only questions of fact does not always mean that counsel is not necessary.

Kelly v. Joyceville Institution (Disciplinary Board) - (1987), 11 F.T.R. 197, 25 Admin.L.R. 303, [1987] F.C.J. No.409 (F.C.T.D.)

- The Federal Court dismissed a challenge to a disciplinary court's refusal to allow the inmate to be represented by counsel. Citing Howard v. Presiding Officer, Inmate Disciplinary Court of Stony Mou