28. Criteria for selection of penitentiary - Where a person is, or is to be, confined in a penitentiary, the Service shall take all reasonable steps to ensure that the penitentiary in which the person is confined is one that provides the least restrictive environment for that person, taking into account

the degree and kind of custody and control necessary for

the safety of the public,

the safety of that person and other persons in the penitentiary, and

the security of the penitentiary;

accessibility to

the person's home community and family,

a compatible cultural environment, and

a compatible linguistic environment; and

the availability of appropriate programs and services and the person's willingness to participate in those programs.

29. Transfers - The Commissioner may authorize the transfer of a person who is sentenced, transferred or committed to a penitentiary to

another penitentiary in accordance with the regulations made under paragraph 96(d), subject to section 28; or

a provincial correctional facility or hospital in accordance with an agreement entered into under paragraph 16(1)(a) and any applicable regulations.

[1992, c. 20, s. 29; 1995, c. 42, s. 11.]

Corresponding Regulations: Sections 11-16 Placement and Transfers

    Editorial Note - Upon arrival in a federal prison the prisoner is usually received at a Regional Reception Assessment Centre (RRAC) where he is classified (see the following section on "security classification" under s30 and s17- 8 of the Regulations) as maximum, moderate or minimum and placed in a corresponding facility. S28 sets out the basic matters that the law requires the CSC to have regard to in deciding placement and arriving at the appropriate security classification. S29 authorizes the Commissioner or his delegate to transfer the prisoner accordingly, but subject to the requirements in s28.

    Similarly, after initial placement, a prisoner may 'cascade' to lower security by having obtained the support of his case management team (CMT) by virtue of having completed programming consistent with his correctional plan working towards early conditional release.

    Further, a prisoner may find himself to be the subject of an 'involuntary transfer', usually from lesser security to higher security, and therefore affecting acquired residual 'liberty' and bringing into play s7 of the Charter and 'the principles of fundamental justice'. Sometimes the transfer is to a prison of equal security but in a different region or to a 'special handling unit' (SHU). The latter clearly affects 'liberty' but the former does not, although it arguably affects 'the security of the person' having regard in particular to the factors set out in s28.

    While the essential criteria for placement and transfer are set out in the Act and s17- 8 of the regulations, the process, designed to achieve compliance with the 'duty to act fairly', is essentially set out in s11- 16 of the regulations. These Regulations provide for a process for providing reasons for placement and transfer and an opportunity to respond to or challenge such a decision, including provision for emergency transfers requiring the process to be followed as soon as possible afterwards, transfers and placements after assessments and voluntary requests for transfer.

Lussier v. Collin - (1984), 22 C.C.C. (3d) 124, 20 C.R.R. 29, [1985] 1 F.C. 124 (F.C.A.)

- Even if an inmate was entitled to claim damages, he could not do so by means of an application as opposed to an action. Presuming that s24 of the Charter gives a right to claim damages, it certainly does not permit the rules of procedure prescribing how such claims must be made to be ignored.

Gill v. Canada (Deputy Commissioner, Correctional Service) - (1988), 18 F.T.R. 266, [1988] 3 F.C. 361 (F.C.T.D.)

- A Federal Court Trial Division judge quashed a transfer decision sending two inmates from a maximum-security institution to the SHU on the basis that insufficient information was provided. The Deputy Commissioner had sufficient status to bring an application for a stay of the Federal Court's order pending appeal. Weighing the potential risk of violence to informants if the two inmates were returned to the maximum institution against the convenience of those two inmates, the balance of convenience favoured the granting of the stay. Application granted.

Kelly v. Canada (Correctional Service) - (1992), 56 F.T.R. 166, [1992] F.C.J. No.720 (F.C.T.D.)

- Mandamus is a remedy granted to compel the performance of an imperative public duty. If the duty involves the exercise of discretion, mandamus cannot compel a particular result. Since the decision to allow or refuse a voluntary transfer contains a discretionary element, mandamus is not an available remedy.

Zubi v. Canada - (1993), 21 Admin. L.R. (2d) 291, 71 F.T.R.168, [1993] F.C.J. No.1061 (F.C.T.D.)

- It was clear from the statement of claim that the relief sought was of the type contemplated by s18 of the Federal Court Act, and not simply damages against the Crown. Thus, the proper course of action for the plaintiff would be to bring an application for judicial review pursuant to ss18 and 18.1, and then, if successful, bring an action for damages.

Creed v. Canada (Solicitor General) - [1998] F.C.J. No.199 (F.C.T.D.), 1998 CanLII 7450 (F.C.)

- Zubi v. Her Majesty The Queen (1993), 71 F.T.R. 168 does not stand for the proposition that it is necessary to pursue a claim of damages by first completing a judicial review proceeding. Rather, Zubi set out that when part of the relief being sought was a declaration that a tribunal or board decision was invalid, that declaration must be sought by way of judicial review.

    - Whether inmate must first exhaust alternative remedy (i.e. internal grievance       process)

    - Proceeding by way of judicial review in either Federal Court or Provincial       Superior Court

Miller v. The Queen - (1985), 16 Admin. L.R. 184, [1985] 2 S.C.R. 613, 49 C.R. (3d) 1, 23 C.C.C. (3d) 97, 24 D.L.R. (4th) 9 (S.C.C.)

- A provincial superior court has jurisdiction to issue certiorari in aid of habeas corpus to review the validity of a detention authorized or imposed by a federal board, commission or other tribunal as defined by s2 of the Federal Court Act. "Certiorari in aid" is to be viewed as an ancillary procedure used to serve an essentially evidentiary purpose, and is in this way distinguishable from the Federal Court's exclusive jurisdiction under s18 of the Federal Court Act over certiorari as an independent and separate mode of review having as its object to quash the decision of an inferior tribunal. As well, a court may on an application for habeas corpus without certiorari in aid consider affidavit or other extrinsic evidence to determine whether there has been an absence or excess of jurisdiction. Habeas corpus should lie to determine the validity of a particular form of confinement in a penitentiary even though the same issue may be determined upon certiorari in the Federal Court. Given that there is a sliding scale in the degrees of possible deprivation of liberty within a prison itself, habeas corpus should lie to challenge the validity of a distinct form of confinement or detention in which the actual physical constraint or deprivation of liberty, as distinct from the mere loss of certain privileges, is more restrictive or severe than the normal one in an institution.

Morin v. National Special Handling Unit Review Committee - (1985), 16 Admin. L.R. 264, [1985] 2 S.C.R. 662, 49 C.R. (3d) 26, 23 C.C.C. (3d) 132, 24 D.L.R. (4th) 71 (S.C.C.)

- The provincial superior courts have jurisdiction to issue a writ of habeas corpus to determine the validity of an inmate's detention in a special handling unit despite the fact that the same issue may be determined upon certiorari in the Federal Court. The proper scope of the availability of habeas corpus must be considered first on its own merits, apart from possible problems arising from concurrent or overlapping jurisdiction.

Balian v. Canada (Regional Transfer Board) - (1988), 62 C.R. (3d) 258, [1988] O.J. No.87 (Ont.H.C.J.)

- Habeas corpus is conceived as a method of obtaining a prisoner's release either from confinement simpliciter or, on the basis of Miller and other cases, from a new and different detention that rests on its own foundation within a larger context of confinement. It becomes more difficult, therefore, but not inconceivable, that the remedy should be extended to a mere loss of a privilege or privileges. Each case will be decided on its facts.

Poirier v. Centre Federal de Formation (Comite Disciplinaire) et al - (1988), 26 F.T.R. 215 (F.C.T.D.)

- It has been acknowledged that the provincial superior courts have jurisdiction to issue certiorari ancillary to habeas corpus, notwithstanding the exclusive jurisdiction conferred on the Federal Court of Canada in matters of certiorari under s18 of the Federal Court Act. However, the converse has not been acknowledged. The Federal Court of Canada therefore lacks jurisdiction to issue writ of habeas corpus ancillary to a writ of certiorari that it does have exclusive jurisdiction to issue under s18. It is well established that while rule 334 authorizes the Federal Court to issue a writ of habeas corpus testificandum, it nevertheless lacks jurisdiction or competence to issue a writ of habeas corpus ad subjiciendum, except with regard to a member of the Canadian Armed Forces serving abroad under s19(5) of the Federal Court Act.

Young v. Canada (Correctional Service) - (1994), 119 Sask.R. 68, [1994] S.J. No.61 (Sask.Q.B.)

- A provincial superior court does not have the jurisdiction to issue a writ of mandamus ordering the CSC to transfer an inmate to a specific institution. Only the Federal Court could make such an order.

Bachynski v. William Head Institution - [1995] B.C.J. No.1715 (B.C.S.C.)

- Certiorari to quash is a remedy in the nature of an order setting aside the decision of a tribunal and is not available to a provincial superior court where it is directed at a federal tribunal because the granting of such an order is within the exclusive jurisdiction of the Federal Court. However, on an application for habeas corpus a court may inquire into the detention of a prisoner, determine whether it is lawful, and issue an order transferring that inmate back to the institution from which he came. Certiorari in aid is a remedy in the nature of an order allowing provincial superior courts to make the remedy of habeas corpus more effective by requiring production of the record of the proceedings in the tribunal below.

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 and extensive powers on an application for habeas corpus to review the decision of the penitentiary officials who have ordered the impugned detention (involuntary transfer), they nevertheless could not review the underlying decision of the Independent Chairperson to enter a disciplinary conviction even though that decision was a significant part of the reason for the detention order. The Trial Division of the Federal Court has jurisdiction to review and possibly quash the decision of the Independent Chairperson. Despite the fact that the provincial court judge hearing the application suggested that the disciplinary conviction was unlawful, as it stood, the conviction entered by the Independent Chairperson was valid and effective and remained so until a court of competent jurisdiction determined otherwise. The application for habeas corpus, even with certiorari in aid, did not empower the provincial superior court to proceed as if the conviction was invalid.

Fisk v. Canada (Pacific Region Correctional Service) - [1996] B.C.J. No.179 (B.C.S.C.), 1996 CanLII 489 (BC S.C.)

- Habeas corpus is available to an inmate who has been transferred from a lesser security institution to a greater security institution. However, in this case, there was no increase in security because the Regional Reception Assessment Centre (RRAC) is considered a maximum-security institution. Since F was transferred from one maximum-security facility to another and never acquired a status other than that of a maximum-security inmate, there was no deprivation of liberty by which habeas corpus could grant relief. The proper course for F to challenge the placement decision of the CSC in light of his claim of a lack of procedural fairness was by way of certiorari proceedings in the Federal Court Trial Division.

Hickey v. Kent Institution - [1999] B.C.J. No.2778 (B.C.S.C.), 1999 CanLII 4380 (BC S.C.)

- The Court lacked jurisdiction to issue habeas corpus where a proposed involuntary transfer had not yet occurred since the petitioner was at the time lawfully detained. In such circumstances, the proper procedure would be to challenge the underlying decision by judicial review under s18 of the Federal Court Act, as a petitioner may apply for a writ of certiorari to the Federal Court before he is transferred.

Bernard v. Kent Institution - 2000 BCCA 253, [2000] B.C.J. No.732 (B.C.C.A.)

- Where an inmate applied for habeas corpus in a matter in anticipation of a transfer as opposed to the situation where the transfer has been executed the Court asserted that Hickey v. Kent Institution, [1999] B.C.J. No.2778 (B.C.S.C.) was the decision on point. In that case, it was held that there is no anticipatory jurisdiction in habeas corpus in the provincial superior courts. Unless and until Hickey is overturned (leave to appeal having been granted) it remains the law.

May v. Ferndale Institution - 2001 BCSC 1335, [2001] B.C.J. No.1939 (B.C.S.C.)

- Referring to R. v. Miller, [1985] 2 S.C.R. 613, 23 C.C.C. (3d) 97 (S.C.C.), the Court asserted that it was authorized to review the validity of the transfer decisions in this situation because the applicants put their case on the basis of an alleged absence or excess of jurisdiction, rather than a challenge inquiring into the merits of the case. The alleged lack of jurisdiction here centred upon the applicant's submission that the CSC had simply applied an arbitrary new policy to the applicants without considering the individual merits of their cases as mandated by ss28 and 29 of the CCRA, and the Regulations.

Bonamy v. Canada (Commissioner of Corrections) - (2000), 198 Sask.R. 252, [2000] S.J. No.588 (Sask.Q.B.), 2000 SKQB 385

- Provincial superior courts have no jurisdiction to grant relief that essentially would contemplate the granting of a writ of mandamus directing the CSC to transfer B to a specific institution in British Columbia. However, provincial superior courts have jurisdiction by habeas corpus to make remedial orders in circumstances where the confinement or detention of a prisoner is more restrictive or severe than those contemplated by the CCRA. In this case, the placement of B in a facility approximately 2000 km from his home community, without any justification for doing so, was deemed under the CCRA a detention more severe than the placement of B in a penitentiary of the same security level closer to his home community.

St-Amand v. Canada (Attorney General) - (2000), 147 C.C.C. (3d) 48 (Que.C.A.) (French version)

- As opposed to other extraordinary remedies, habeas corpus is remedy as of right once evidence has led the Court to conclude that the applicant has been illegally deprived of his liberty. The enactment of the Charter has had the effect of expanding the scope of habeas corpus. The Supreme Court of Canada has ruled that the rules of common law governing habeas corpus motions should be applied in a flexible manner if the applicant has demonstrated that continued detention breaches the principles of fundamental justice recognized under the Charter. The possibility of recourse to habeas corpus as a remedy under paragraph 24(1) of the Charter thus allows the Courts a wider latitude when the application is truly of a constitutional nature.

Mousseau v. Drumheller Penitentiary - [2001] A.J. No.1488 (Alta.Q.B.)

- The Alberta Court of Queen's Bench held that it had jurisdiction to hear M's application for habeas corpus with certiorari in aid. Acknowledging that the Federal Court was a proper, appropriate and effective forum for M's application, the Queen's Bench nevertheless decided to exercise its concurrent jurisdiction and hear the habeas corpus application on the basis that M could be prejudiced if made to wait for a Federal Court hearing scheduled to take place at a later date than his hearing with the National Parole Board.

Myre v. Canada (Attorney General) - (1992), 53 F.T.R. 152, [1992] F.C.J. No.301 (F.C.T.D.)

- In allowing this application for an extension of time to file for judicial review, the Court was satisfied that the applicant maintained a continuing intention to bring a proceeding, that the respondent government was not prejudiced and that there was at least an arguable case. In terms of the latter condition, the Court held that the staying of criminal charges relating to the alleged event that precipitated the transfer recommendation indicated that the inmate's involvement in that event could not be shown, thereby establishing an arguable issue.

Bullock v. Canada - [1997] F.C.J. no. 1661, 221 N.R. 345 (F.C.A.), 1997 CanLII 5830 (F.C.A.)

- The basic rule established by s18(2) of the Federal Court Act is that judicial review must be sought within 30 days from the day the impugned decision is rendered. An extension of the time may be granted but, as a general rule, such extension will be allowed only if the entire delay is satisfactorily accounted for and if the application discloses a fairly arguable case within the jurisdiction of the Court. In this case, an extension was granted despite an eight-month delay.

Marshall v. Canada (Solicitor General) - [2002] F.C.J. No.221, 2002 FCT 168 (F.C.T.D.)

- In this case, the Court was not satisfied that justice required that the extension of time for the filing of an application for judicial review be granted. The Court was not satisfied in any way that M displayed due diligence. Also relevant was the absence of any evidence as to the intent to commence proceedings and the absence of any explanation for the delay in commencing proceedings. The length of delay was also a factor. In considering what justice requires, the Court also reviewed the merits of M's underlying application for judicial review. The filing of a supplementary affidavit is allowed in limited instances and special circumstances. The general test is whether the additional material will serve the interests of justice, will assist the Court and will not seriously prejudice the other side, it is also important that any supplemental affidavit neither deal with material which could have been made available at an earlier date.

    - Granting of interlocutory injunction (stay) of transfer pending judicial review

Horii v. Canada - (1991), 7 Admin. L.R. (2d) 1, 132 N.R. 48, [1992] 1 F.C. 142 (F.C.A.)

- The Trial Division dismissed the inmate's application for an interlocutory injunction. The Court of Appeal reversed and granted a stay of the transfer pending judicial review. The Court applied the tripartite test for the granting of an interlocutory injunction: 1) Has the applicant demonstrated that there is a serious issue to be tried? 2) Will the applicant suffer irreparable harm if an injunction is not granted? 3) Will the harm to the respondent or to the public interest in the event that an injunction is granted outweigh the harm to the applicant ("balance of convenience")?

Lavery v. Canada (Correctional Service) - (1996), 116 F.T.R. 207, [1996] F.C.J. No.869 (F.C.T.D.)

- In granting an application for a stay of an involuntary transfer, the Court discussed and applied the generally accepted tripartite test. The applicant demonstrated that there was a serious issue, that he would suffer irreparable harm if the stay were denied, and that the balance of convenience lay in his favour.

Jolivet v. Canada (Attorney General) - [2000] F.C.J. No.1856 (F.C.T.D.), 2000 CanLII 16592 (F.C.)

- The court dismissed a motion where an inmate sought an order from the court returning him to the penitentiary he had been transferred from, and an interlocutory injunction from the original decision to transfer pending review. The inmate did not persuade the court that he would suffer irreparable harm if his motion were to fail. Of particular note was the fact that since his arrival at the institution he was involuntarily transferred to, the inmate had not asked the penitentiary authorities for protection against his alleged antagonists. The inmate could have asked to be placed in administrative segregation but did not do so, preferring to work in the laundry, which had the effect of putting him in contact with the general population. For these reasons, the court did not allow the inmate's motion.

Quinta v. Canada (Attorney General) - [2000] F.C.J. No.1020 (F.C.T.D.), 2000 CanLII 15763 (F.C.)

- The tripartite test set out for such an application is whether the plaintiff has been able to establish the existence of a serious question for consideration, that irreparable harm could be done to him and finally, that the balance of convenience is in his favor. Q argued that the circumstances did not justify a transfer since his statutory release date was just over two months away from the date in time the decision to transfer was made, and the unit manager and Preventive Security Officer disagreed with the decision. The Court was not persuaded that there was a serious question for decision that required its intervention or that G would suffer irreparable harm as the result of his transfer.

Plamondon v. Canada (Attorney General) - [2001] F.C.J. No.221 (F.C.T.D.), 2001 FCT 77 (CanLII)

- In this motion an inmate sought an order to compel the responsible penitentiary authorities to return him to the Donnacona Institution, following his involuntary transfer to the Atlantic Institution, until his application for judicial review seeking cancellation of the said transfer is heard. This type of provisional remedy requested can only be granted if he is able to show that he can make out a prima facie case, that he will suffer irreparable harm if the remedy is not granted and that the balance of convenience is in his favour. In dismissing the application, the court was of the opinion that assuming, without deciding the point, a prima facie case has been made out, the inmate was not able to meet the other two requirements of the test. The evidence was that the effect of the inmate's transfer was to enable him to enter a regular prison population, whereas he was in involuntary administrative segregation at Donnacona. This situation certainly could not constitute "irreparable harm". On the remainder of the argument, the distance separating the inmate from his counsel and family, the fact that it was necessary for him to adjust to a particular social life at his new place of detention and the inmate's needs relating to education were only instances of inconvenience. As to the balance of convenience, the court felt that this was clearly in favour of the CSC. The inmate was no longer "integrable" into the regular population at Donnacona. The court therefore agree with the CSC's view that as the correctional authorities had a duty to ensure that the inmate would develop in surroundings which were as free of limitations as possible it was within their powers to take him out of involuntary administrative segregation and allow him to re-enter a regular population in another institution.

Tehrankari v. Canada (Correctional Service) - (2000), 38 C.R. (5th) 43, 188 F.T.R. 206, [2000] F.C.J. No.495 (F.C.T.D.)

- Citing Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R. 982 and Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817, the Court applied the pragmatic and functional approach to a correctional case. In order to determine the standard of review four factors must be considered: 1) The presence or absence of a privative clause in the Act. 2) The expertise of the decision-maker. 3) The purpose of the provision, in particular, and the Act as a whole. 4) The nature of the problem in question especially whether it relates to the determination of law or facts.

Fitzgerald v. William Head Institution - [1994] B.C.J. No.1534 (B.C.S.C.)

- The Court held that the government carried the onus of establishing that the ultimate decision to transfer was, on a balance of probabilities, not patently unreasonable. A definition for "patently unreasonable" may be grounded in the question: Is this a decision that we can let stand?

Légère v. Canada - (1997), 133 F.T.R. 77, [1997] F.C.J. No.749 (F.C.T.D.)

- The decision to transfer or to refuse to transfer an inmate is a discretionary one, which attracts the duty of procedural fairness. 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.

Harms v. Canada (Correctional Service) - (2000), 195 F.T.R. 144, [2000] F.C.J. No.1706 (F.C.T.D.)

- Citing Fitzgerald v. William Head Institution, [1994] B.C.J. No.1534 (B.C.S.C.), the Court set out that the standard of review in the context of decisions made by CSC officials is, on the balance of probabilities, whether the decision was patently unreasonable.

Dupras v. Kent Institution - [2001] F.C.J. No.968 (F.C.T.D.), 2001 FCT 632 (CanLII)

- In the past the standard of review on the ultimate decision to transfer was patent unreasonableness. However, it may be that the standard of review has been changed as a result of the decisions in both Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R. 982 and Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817. Accordingly, the Court utilized the standard of reasonableness simpliciter to review the decision in this case.

Dubois v Sauve et al - Unreported, January 20, 1984, No. T-1418-83 (F.C.T.D.)

- Incarceration in the SHU was not, in and of itself, a violation of s.12 of the Charter. The modern definition of "cruel and unusual punishment" in penal law goes beyond "barbaric physical punishments" and includes "unnecessary and wanton infliction of pain… without penological justification." The phrase must be understood in terms of "standards of decency that mark the progress of a maturing society." The true purpose of the penal function is "to punish justly, to deter future crime, and to return imprisoned persons to society with an improved chance of being useful, law-abiding citizens."

Hay v. Canada (National Parole Board) - (1985), 13 Admin. L.R. 17, 21 C.C.C. (3d) 408, 18 C.R.R. 313 (F.C.T.D.)

- In light of the well-founded notion of a "prison within a prison," transfers engage the provisions of the Charter. The decision to effect an involuntary transfer sending an inmate to a more secure facility, without any fault or misconduct on the part of the inmate, is the quintessence of unfairness and arbitrariness, and in this case was a violation of the s9 Charter right protecting one from arbitrary detention or imprisonment.

Demaria v.Canada (Regional Transfer Board) - (1988), 18 F.T.R. 68, 62 C.R. (3d) 248, [1988] 2 F.C. 480 (F.C.T.D.)

- It is well established that that s7 of the Charter applies to decisions taken with respect to involuntary transfers of prisoners from one institution to another, at least where the transfer involves a move from lower to higher security. S7 has been interpreted to require not only procedural fairness in the narrow sense, but also that decisions not be made in an unreasonable or arbitrary manner, as having been made without evidence to support it.

Pruneau v. Goulen, Perron and Methe - (1988), 23 F.T.R. 19 (F.C.T.D.)

- On the facts in this case, the applicant failed to establish a deprivation of the right accorded to him by s12 of the Charter. The Court held that the effect of his interregional transfer was not "grossly disproportionate to what would have been appropriate."

Gallant v. Canada (Deputy Commissioner Correctional Service) - (1989), 36 Admin. L.R. 261, 68 C.R. (3d) 173, [1989] 3 F.C. 329 (F.C.A.)

- There is no doubt that the decision to transfer an inmate is subject to the s7 Charter principles of fundamental justice. There is a distinction between the procedural rules of fundamental justice and the substantive rules of fundamental justice. The former are akin to the rules of natural justice and fairness and are variable or flexible. The latter are not variable or flexible and can only be modified by Parliament in accordance with s1 of the Charter.

Williams v. Canada (Correctional Service) - (1993), 15 Admin. L.R. (2d) 83, 19 C.R. (4th) 151, [1993] F.C.J. No. 21 (F.C.A.)

- 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.

Forrest v. Canada (Solicitor General) - (1998), 154 F.T.R. 22, [1998] F.C.J. No.1483 (F.C.T.D.)

- F argued a s15 violation on the grounds that the decisions resulted from systemic discrimination and targeting on the basis of race and membership in a group of black inmates. There was no evidence of bad faith. While correctional decisions, such as a transfer in this case, are to be scrutinized under s15, there was no evidence to support a conclusion that there was different treatment of the applicant or that he was discriminated against on the basis of some enumerated or analogous ground under s15.

Storry v. William Head Institution - [1997] F.C.J. No.1768 (F.C.T.D.), (1997), 139 F.T.R. 122

- The requirements of procedural fairness are applicable in a transfer that is involuntary regardless of whether the transfer is to a higher security institution or not.

St-Amand v. Canada (Attorney General) - (2000), 147 C.C.C. (3d) 48 (Que.C.A.) (French version)

- An inmate was transferred on an emergency basis pursuant to s13 of the CCR Regulations, which provides that the normal procedures set out in s12 giving an inmate prior notice and an opportunity to prepare representations do not apply, subject to s13(2), where it is determined that it is necessary to immediately transfer an inmate for the security of the penitentiary or the safety of the inmate or any other person. Section 13 of the Regulations must be applied solely and exclusively for the purpose of ensuring the security of the penitentiary, that of an inmate or of any other person.

Demaria v. Regional Classification Board and Payne - (1986), 21 Admin.L.R. 227, 30 C.C.C. (3d) 55, 53 C.R. (3d) 88, [1986] F.C.J. No. 493, [1987] 1 F.C. 74 (F.C.A.)

- The burden is always on the authorities to demonstrate that they have withheld only such information as is strictly necessary for that purpose [protecting the identity of informants]. In the final analysis, the test must be not whether there exist good grounds for withholding information but rather whether enough information has been revealed to allow the person concerned to answer the case against him.

Gallant v. Canada (Deputy Commissioner Correctional Service) - (1989), 36 Admin. L.R. 261, 68 C.R. (3d) 173, [1989] 3 F.C. 329 (F.C.A.)

- In overturning a Trial Division Court's decision quashing a transfer on the basis that the inmate had not been supplied with sufficient information, the Court of Appeal split three ways. Pratte J.A. held that the transfer was not in accordance with s7 of the Charter principles of fundamental justice since the inmate had not been given a real opportunity to answer the allegations made against him. However, the transfer decision was saved by s1 of the Charter. Marceau J.A. found that substantial information was disclosed and that cogent reasons for non-disclosure of further particulars were given. In dissent, Desjardins J.A. held that the inmate did not have enough information to defend himself.

Balian v. Canada (Regional Transfer Board) - (1988), 62 C.R. (3d) 258, [1988] O.J. No.87 (Ont.H.C.J.)

- A transfer decision was quashed on the basis that the inmate was not provided with sufficient information to enable him to effectively defend himself against possible arbitrariness. The use of informer evidence does not act as a justification for dispensing with fairness. Experience has shown that a great deal can be disclosed while protecting the identity of the fellow inmates who inform.

Cyr v. Canada (Correctional Service) - (1988), 22 F.T.R. 69, [1988] F.C.J. No.540 (F.C.T.D.)

- The inmate was provided with sufficient information and had plenty of opportunity to make submissions. The application was dismissed.

Camphaug v. Canada - (1990), 34 F.T.R. 165, [1990] F.C.J. No.333 (F.C.T.D.)

- Fairness does not require that the inmate be given all of the particulars of all alleged wrongdoings. It is sufficient if he can make representations to demonstrate that the recommendation that he be moved is an unreasonable one. The Court was satisfied that the inmate had available all of the information made available to the Deputy Commissioner.

Ericson v. Canada (Correctional Service) - (1991), 5 Admin. L.R. (2d) 206, 10 C.R. (4th) 235, [1991] B.C.J. No.3393 (B.C.S.C.)

- Procedural fairness had been breached where an inmate, alleged to be involved in drug trafficking, was not provided with sufficient disclosure regarding the details of the allegation and the names of the informants. While acknowledging that prison officials owed a duty to protect the identity of informants, the Court nevertheless claimed that experience has shown that a great deal can be disclosed while protecting the identity of fellow inmates who inform. What was clear in this case was that the applicant was not permitted to play a reasonable informed part in the whole process.

Bruce v. Canada (Attorney General) - (1992), 5 Admin. L.R. (2d) 258, 13 C.R. (4th) 384 (N.B.C.A.) [reversing (1991) 2 Admin. L.R. (2d) 26, 7 C.R. (4th) 93 (N.B.Q.B.)]

- An inmate was provided with sufficient disclosure where the information given to the inmates named the drugs being sold, identified the method by which cash was transferred out of the prison, set forth which of the inmates was responsible for which parts of the drug operation, set out where the funds for purchase of drugs originated within the institution, described the method of transfer of drugs within the prison, described the method of payment, and made reference to the intimidation of other inmates with regard to the use of recreation equipment.

Lee v. Canada (Correctional Service) - (1993), 17 Admin. L.R. (2d) 271, 67 F.T.R. 54, [1993] F.C.J. No.759 (F.C.T.D.)

- It is not for the decision-maker to pick and choose the information that will be disclosed to various inmates. All information in the possession of the decision-maker that is relevant must be disclosed unless doing so would reveal the identity of informants. In this case, disclosure came too late as to be of any use resulting in the denial of procedural fairness. Although not necessary in this case, in situations where allegations are made on the basis of confidential information provided to authorities by informants, it was suggested that it may be appropriate for the Court to review all of the information upon which decisions are based in order to determine what more could have been given to the applicants.

Fitzgerald v. William Head Institution - (1993), 15 Admin. L.R. (2d) 101, [1993] B.C.J. No.102 (B.C.S.C.)

- It was held that in order for the Court to decide whether the CSC satisfied their obligation of disclosure, the Court must be fully informed as to what the informant told the warden. If the Court was to properly deal with this matter then the warden must file a supplementary affidavit containing the full information required, namely, where, when and how, and who told him what. If the informant's identity requires protection, then that should be stated and an explanation as to why given. If the warden seeks to maintain his position of non-disclosure, then the proper procedure would be to submit the information together with any explanation in a sealed envelope.

Gaudet v. Merchand - (1994), 63 Q.A.C. 286 (Que.C.A), affirmed [1994] 3 S.C.R. 514, (sub nom. Gaudet v. Special Handling Unit Review Committee) 94 C.C.C. (3d) 1

- While the penitentiary authorities did have a duty to act fairly and to afford an inmate an opportunity to know the reasons for the transfer and an opportunity to be heard or to make representations on his behalf, there was no duty to provide the inmate with copies of the statements given by informers. The inmate had been provided with a reasonably detailed summary of the reasons for his transfer and the substance of what the authorities have been told about his involvement in the alleged escape plot. It was sufficient that the summary had been carefully framed to avoid identification of the sources, but did nonetheless provide more than a mere general statement of the inmate's involvement in the alleged escape plan. These were sufficient details to enable one to identify some of the features of the plan and the inmate's involvement.

Rowse v. Correctional Service of Canada - (1994), 86 F.T.R. 262, [1994] F.C.J. No.1674 (F.C.T.D.)

- In this case sufficient information had been provided to the applicant.

Armstrong v. Commissioner of Corrections (Can.) - (1994), 79 F.T.R. 299, [1994] F.C.J. No.811 (F.C.T.D.)

- The applicant was not provided with the exact identity of the source of some of the allegations made against him. The Court held that withholding the identity of the informants, as well as the details of their statements that would in all likelihood identify the source, was justified. The applicant was given enough information and knew the case he had to meet.

Johnston c. Centre régional de réception - [1995] R.J.Q. 3000, A.Q. No.1414 (Q.S.C.)

- An inmate's s7 Charter rights were violated where he was refused access to the complete report concerning his transfer. J was not given access to every document he had a right to.

Storry v. William Head Institution - [1997] F.C.J. No.1768 (F.C.T.D.), (1997), 139 F.T.R. 122

- In this case, insufficient information was provided to the applicant.

Forrest v. Canada (Solicitor General) - (1998), 154 F.T.R. 22, [1998] F.C.J. No.1483 (F.C.T.D.)

- There was sufficient information available to the applicant and sufficient opportunity for him to make representations before the transfer decision was made.

Cartier v. Canada (Attorney General) - (1998), 165 F.T.R. 209, [1998] F.C.J. No.1211 (F.C.T.D.), 1998 CanLII 8257 (F.C.)

- C was provided with enough information to enable him to understand the reasons for his transfer and to enable him to make the representations he considered appropriate. The rules of procedural fairness, having regard to the circumstances, were respected.

Bisson v. Canada (Attorney General) - [1998] F.C.J. No.1212 (F.C.T.D.), 1998 CanLII 8265 (F.C.)

- The information provided to B was sufficient to comply with the rules of procedural fairness.

Dorscheid v. Kent Institution - 39 W.C.B. (2d) 300, [1998] B.C.J. No.1866 (B.C.S.C.), 1998 CanLII 4576 (BC S.C.)

- Although the warden had the authority to withhold information from D in order to protect the safety of confidential informants, the amount of information that was, in fact, withheld was far more than what was "strictly necessary." This was made clear from the documentation submitted to the court by the warden in defence of this application. These documents were considered by institutional staff in making their decisions on the security reclassification and involuntary transfer but were not previously disclosed to D. The documents proffered to the Court had been edited so that as much information as possible was provided while protecting the identity of their sources. The Court held that these documents could have been provided to D (in edited form) without having jeopardized the safety of any of the informants.

Hiebert v. Canada (Correctional Service) - (1999), 182 F.T.R. 18, [1999] F.C.J. No.1957 (F.C.T.D.), 1999 CanLII 9184 (F.C.) [C.A. affirming [2001] F.C.J. No.297; Leave to appeal to the S.C.C. dismissed August 30 2001, [2001] S.C.C.A. No.227 - File No.28557]

- Documents are not subject to production unless they are before the decision-maker at the time the decision was made. In undertaking a resolution of claims for non-disclosure, the Court adopted the two-stage approach employed in the context of section 37 CEA applications. In the first stage, the Court considers the competing claims for disclosure and non-disclosure on the basis of the affidavit evidence before it, but without reviewing the documents themselves. Only if the Court cannot resolve the issue at that stage does the Court advance to the second stage, which is the review of the documents.

Gravel v. Canada (Correctional Service) - [1999] F.C.J. No.1569 (F.C.T.D.)

- The Court held that the documentary evidence, which was laid out in some detail in the judgment, demonstrated that the applicant received the information necessary to submit his various grievances. As well, although certain documents refer to confidential information that for "obvious" reasons were not shared with G, the information given to him was nonetheless sufficient as he was given the gist of the reasons for all the decisions relating to him.

Zarzour v. Canada (Attorney General) - [2000] F.C.J. No.103 (F.C.T.D.)

- The Court was not persuaded that Z was provided with sufficient disclosure.

Marachelian v. Canada (Attorney General) - (2000), 1 F.C. 17, 187 F.T.R. 238, [2000] F.C.J. No.1128 (F.C.T.D.)

- The Court found that the refusal to reclassify and voluntarily transfer M was based upon an allegation that had not been shared with M and to which he did not have the opportunity to respond. Although the refusal to reclassify in this application did nothing more than maintain the status quo, the disclosure obligations and constraints ought to be the same as a case of involuntary transfer for disciplinary reasons. As a result, it was the Court's view that the failure to advise M of the substance of the allegations, so as to allow him to meet those objections, was a breach of M's rights to procedural fairness.

Harms v. Canada (Correctional Service) - (2000), 195 F.T.R. 144, [2000] F.C.J. No.1706 (F.C.T.D.)

- The information contained adequate detail regarding H's involvement in the riot at Kent, other disciplinary and criminal charges, the concern on the part of officials that H may create further disturbances at Kent, and in general, the belief that H's risk could not be properly managed at Kent, in order for H to be able to make representations.

Dupras v. Kent Institution - [2001] F.C.J. No.968 (F.C.T.D.), 2001 FCT 632 (CanLII)

- The test on transfer is merely the reasonableness and seriousness of the belief on which the decision was based and that the applicant must have participated in a meaningful way - not every allegation has to be disclosed to the applicant. Although the Court accepted that the reasons for decision contained certain factual inaccuracies that were not disclosed to the applicant, the Court concluded that it would not have been sufficient to change the result. As a result, the Court found nothing unreasonable in the Assistant Deputy Commissioner's decision and the application for judicial review was dismissed.

Ayotte v. Canada (Attorney General) - [2001] F.C.J. No.5 (F.C.T.D.), 2001 CanLII 22114 (F.C.)

- The only information disclosed regarding the alleged escape plan was the following: "On 1999-09-14, we received information from a police source (SPCUM) that Gilles Ayotte was planning to escape. The source is considered very reliable." The applicant argued insufficient disclosure. Citing Marceau J.A. in Gallant, the Court claimed that procedural fairness does not require that the applicant have as many particulars as in the case of a disciplinary charge. The application was dismissed.

Mousseau v. Drumheller Penitentiary - [2001] A.J. No.1488 (Alta.Q.B.)

- The applicant was not provided with sufficient information to enable him to know the case to be met. The following particulars were not addressed in the CSC's disclosure: a) What "series of events" occurred? b) Who was the other "offender"? c) Who was the "staff member"? d) Whose "private family visit" was the subject of the alleged bribe? E) Did the "staff member" make a written report containing the circumstances of the allegations? The notice should have contained as much detail as possible to enable the applicant to make an informed response.

Lasalle v. Leclerc, Institution of Laval - (1983), 5 Admin. L.R. 23, 37 C.R. (3d) 145 (F.C.T.D.)

- The duty to act fairly was breached where an inmate was never given written notice of a transfer until after the decision had already been made.

R v. Chester - (1984), 5 Admin. L.R. 111, 40 C.R. (3d) 146 (Ont.H.C.)

- There had been a lack of procedural fairness regarding a transfer to the SHU where the inmate was provided with a misleading written notice. In this case, the notice suggested that the basis for the transfer was a particular incident whereas the subsequent reasons indicated that the inmate's total record had been considered in arriving at the decision. In order for an inmate to respond properly, a fair notice should include, at least, a comprehensive listing of the available material to be considered and a summary of the contents of such material.

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

- A transfer decision was quashed because the board relied on matters not disclosed or made available to the inmate. The notice served failed to make reference to these matters. In the Court's view, it would not have been a burdensome inconvenience or possible detriment to prison authorities to provide the inmate with those details by attaching documents to the notice or supplying the gist of the information on the notice itself.

McCauley v. Ferndale Institution - (1987), 15 F.T.R. 172, [1987] F.C.J. No.711 (F.C.T.D.)

- A transfer decision was quashed where the Court found that the applicant had not been given adequate notice of what was being alleged against him, nor had he been given a fair opportunity to answer.

Pilon et al v Yeomans - [1984] 2 F.C. 932 (F.C.T.D.)

- There is nothing in the Act or Regulations which mandatorily requires a full scale hearing as a necessary prelude to an administrative decision to transfer a prison inmate from one security institution to another. The duty of fairness does not require that such a hearing be held.

McInroy v R et al - (1985), 13 Admin. L.R. 8, [1985] F.C.J. No.448 (F.C.T.D.)

- Where an inmate was transferred to the SHU, there was no requirement in either the Act or the Regulations stipulating that an inmate be granted an oral hearing before the SHU Review Committee.

Jamieson v. Canada (Commissioner of Corrections) - (1986), 51 C.R. (3d) 155, 2 F.T.R. 146 (F.C.T.D.)

- The requirement of fairness flows from s7 of the Charter. In regards to transfer decisions taken within the prison system, the duty to act fairly does not involve the requirement of a formal hearing.

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

- The duty to act fairly does not entitle an inmate as of right to appear or be heard in person before the board on the matter of his transfer and reclassification.

Gaudet v. Merchand - (1994), 63 Q.A.C. 286 (Que.C.A), affirmed [1994] 3 S.C.R. 514, (sub nom. Gaudet v. Special Handling Unit Review Committee) 94 C.C.C. (3d) 1

- While the penitentiary authorities did have a duty to act fairly, they nevertheless had no duty to grant an inmate an opportunity to cross-examine informants or the prison officials themselves. In a prison context, such a hearing would go considerably beyond procedural fairness into the realm of an unreasonable intrusion into the administration and security of the penitentiary. The danger posed to the safety of informers and the intolerable burden that would be placed on prison authorities constitute the basis of justification for not permitting an inmate who has suffered a loss of residual liberty to confront confidential sources and test their credibility by cross-examination.

Murray v. Canada (Correctional Service) - (1995), 101 F.T.R. 84, [1995] F.C.J. No.1225 (F.C.T.D.)

- While procedural fairness does not create a requirement of personal attendance in every case, whenever the process would not cause undue hardship to the administration of the correctional system, the inmate should be allowed to make representations when a decision affects his rights, interests or privileges. In this case, not only was M not informed of the date when his case would be reviewed, his counsel's request to be present with M remained unanswered. The Court held that it would not have created an undue burden for the administration to have informed M of the date and to have given him the opportunity to make written representations if not the right to be present. As a consequence, the requirements of procedural fairness were not satisfied.

Forrest v. Canada (Solicitor General) - (1998), 154 F.T.R. 22, [1998] F.C.J. No.1483 (F.C.T.D.)

- The CCR Regulations do not infringe s7 of the Charter by permitting transfers without a prior oral hearing.

Williams v. Canada (Correctional Service) - (1993), 15 Admin. L.R. (2d) 83, 19 C.R. (4th) 151, [1993] F.C.J. No. 21 (F.C.A.)

- 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.

Crews v. Canada (Correctional Service) - (1994), 126 Sask.R. 181, [1994] S.J. No.396 (Sask.Q.B.), 1994 CanLII 4799 (SK Q.B.)

- An inmate's s10(b) Charter rights were not infringed upon where he was permitted to make only one telephone call to his attorney before being transferred to the SHU on an emergency basis.

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

Lasalle v. Leclerc, Institution of Laval - (1983), 5 Admin. L.R. 23, 37 C.R. (3d) 145 (F.C.T.D.)

- The duty to act fairly was infringed where an inmate was not given any chance to make representations prior to the decision to transfer him was made.

Jamieson v. Canada (Commissioner of Corrections) - (1986), 51 C.R. (3d) 155, 2 F.T.R. 146 (F.C.T.D.)

- Where there was no evidence that an inmate's reply had ever been taken into account by the decision-maker, or that the decision had been taken after consideration thereof, a decision to transfer was quashed. It should be clear that an inmate's response has been considered by the relevant decision-maker before a final decision is taken concerning a transfer.

Poirier v. Centre Federal de Formation (Comite Disciplinaire) et al - (1988), 26 F.T.R. 215, F.C.J. No.1178 (F.C.T.D.)

- An inmate was notified of a recommendation to transfer him to a particular medium security institution and submitted a written response opposing the transfer. Prison authorities then decided to transfer him to a different institution, classified as maximum security. The duty to act fairly was breached since the inmate was invited to offer his views on a transfer other than the one that was adopted. The applicant was misled because he was not given an opportunity to present his views on the transfer that actually took place.

Fitzgerald v. Canada (Correctional Service) - [1990] B.C.J. No.2873 (B.C.S.C.), 1990 CanLII 1499 (BC S.C.)

- An invitation to give the police a statement in the course of their criminal investigation is not the same as granting an inmate the opportunity to respond to the allegations against him in the context of a correctional decision regarding a proposed transfer. In this case, the inmate was not provided with as much substance and detail of the allegations against him as possible to allow him to know the case against him, and not given an opportunity to respond before the decision respecting his transfer was made.