7. Life, liberty and security of person - Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.

Howard v Presiding Officer of the Inmate Disciplinary Court of Stony Mountain Institution - (1983) 8 CCC (3d) 557 (FCTD); rev'd (1985) 19 CCC (3d) 195, 45 CR (3d) 242 (FCA); leave to appeal to SCC quashed (1988) 41 CCC (3d) 287n, 61 CR (3d) 387 (SCC)

- See detailed annotation under s39 of the Penitentiary Service Regulations to the effect that s7 of the Charter greatly enhances a prisoner's right to the protection of the principles of fundamental justice in disciplinary court proceedings and that where earned remission is at risk, there is virtually a presumption in favour of counsel.

    Editorial Note - Inmates do have a constitutional right to be represented by legal counsel in disciplinary hearings in which such representation is necessary to ensure that the proceedings are conducted fairly and that justice is done in a particular case. The Attorney General will argue, however, that the respondent did not need to be represented by legal counsel in this case and that therefore there was no error by the disciplinary court. (See Howard, supra). See also the following articles: M. Jackson, "The Right to Counsel in Prison Disciplinary Hearings" (1986) 20 UBC L Rev 221; A. Manson, “Counsel at Penitentiary Disciplinary Hearings" (1988) 60 CR (3d) 122; and C. Mandell, "Representation By Counsel At Penitentiary Disciplinary Hearings" (1987) 25 Admin LR 312.

Engen v Kingston Penitentiary - (1987) 60 CA (3d) 109 (FCTD)

- Factors which should be considered by a disciplinary court when deciding whether to allow counsel to attend the hearing are: 1) the nature and gravity of the offence, including any effect a conviction may have on the limited freedom enjoyed by an inmate; and 2) the complexity of the offence and the capacity of the inmate to represent j himself. The court pointed out that the mere absence of legal issues in a case should not preclude the presence of counsel. Counsel may assist in cross-examining witnesses and eliciting facts, and it may be that certain inmates would need counsel present to do this on their behalf.

Tremblay v Disciplinary Tribunal of Laval Institution - (1990) 25 Admin LA 235 (FCTD)

- Three factors should be considered when deciding whether to permit counsel to appear in disciplinary court: 1) the seriousness of the charge and the penalty which could be imposed; 2) the possibility that points of law will be raised; and 3) the inmate's ability to present his own case. Though the charge was classified as intermediary misconduct the court looked at the seriousness of the injuries suffered by the victim before concluding that the charge was a serious one. The court also said that the loss of remission, and the fact that legal arguments unfamiliar to the applicant could have been raised, meant that the denial of counsel constituted a breach of s7 of the Charter.

Cadieux v The Director of Mountain Institution and The National Parole Board - (1984),13 CCC (3d) 330, 41 CR (3d) 30 (FCTD)

- The interest of an inmate affected by a decision of the National Parole Board revoking his UTA program is similar to that affected when either his day parole or full parole is revoked. This is "liberty" of a more limited nature than is the case with full parole or day parole, but it IS similar in character to the latter. Thus, decisions respecting UTA's also fall within the scope of the rules respecting certiorari at common law as well as being subject to the requirements of fundamental justice prescribed by s7 of the Charter. The fact that there is no procedure set out by regulation for dialing with UTA's does not change their character. The distinction between "rights" and "privileges" is not one which should ground a difference between allowing and not allowing judicial review. The use of the word "right" in s7 of the Charter is to be interpreted in a generic sense as encompassing all concepts and not in a narrow sense. Consequently, the fact that one is dealing with the granting of a privilege does not lessen the applicability of either the rules of fairness applied through common law certiorari or the guarantee of fundamental justice provided for by the Charter.

    While it is a cardinal principle that a person whose liberty is being decided upon should have the right to know the case made against him and have an opportunity to respond, the rules of fairness do not always require disclosure of all information that a decision-making body has before it. Under the fairness doctrine or the rules of natural justice there may be circumstances in which an inmate may be denied knowledge of the reasons underlying the revocation of his UTJI, program. An inmate in prison is in a different situation so far as his "liberty" is concerned to the ordinary citizen charged with a criminal offence and consequently, the requirement of disclosure of the substance of claims against one whose liberty is affected will not necessarily be the same in a situation involving whether or not a UTA program is granted or revoked as for the ordinary citizen. Nevertheless, it will be rare that an inmate cannot be told at least the gist of the reasons against him. Some situations can be envisaged where it might be necessary to refuse to disclose even the gist of the case against him when the information relates to conduct occurring within the institution and if the content of the information is such that its disclosure might automatically lead to the identity of an informer becoming known. In the con- text of 'the prison situation, safety and order within the prison may particularly require the non-disclosure of the identity of informers. Non-disclosure might also be necessary if such disclosure would automatically lead to the revealing of information collection methods and thus substantially undermine the future functioning of the Board. In such circumstances the Board is not precluded from relying on such information even if the gist of it is not passed on to the inmate. The public interests in preventing repeat offences while the inmate is at large, in maintaining security and order in the penal institution, and in preserving the Parole Board's ability to function effectively may outweigh the normal rule that a person is entitled to know the gist of the case against him but, the occasions on which this is justified must be rare and there must be an element of necessity. Mere convenience for the functioning of the Board is not enough. Similarly, the mere fact that information was provided in confidence is not in itself sufficient reason to justify non-disclosure of that information. To allow non-disclosure to be justified merely on that ground is far too weak a justification for a limitation on the scope of a constitutional guarantee as contained in s7 of the Charter, particularly when a person's liberty is at stake, even though that liberty might be of a limited or conditional nature. Generally an inmate is entitled to know the substance of the reasons for revocation of his UTA program otherwise he is unable to make a reply. This does not mean that he is entitled to know the identity of the source of information, nor that he is entitled to production of the actual documents themselves, nor all the details of the case against him. While numerous interests exist that may justify non-disclosure on a class basis these interests may be sufficient to justify refusal to produce the actual confidential reports themselves, but are not sufficient to justify a refusal to disclose the gist of the case against a person and cannot be justified on the basis of a claim for class exemption where s7 of the Charter applies. Circumstances justifying non-disclosure of the gist of the case against an inmate must relate to the specific content of the information in question. There must be nexus between the content of that information and the protection of the public interest said to be served by non- disclosure. The provisions of the Policy and Procedures Manual of the National Parole Board issued pursuant to s25 of the Parole Regulations and which in relation to cancellation or termination of UTA's purports to allow for non-disclosure under the provisions of the Canadian Human Rights Act is not "prescribed by law" within the meaning of that term in s1 of the Charter because it has not been approved by the Governor in Council as required by s3(6) of the Parole Act. In any event, the provisions of the Policy and Procedures Manual, like s17 of the Regulations and the provisions of the Privacy Act and the Canadian Human Rights Act while perhaps a legally effective limitation on any common law fairness requirement of disclosure are not effective in limiting the right given under s7 of the Charter as the provisions are too broadly framed to be a reasonable limit pursuant to s1 of the Charter. The decision of the Board was quashed and the matter referred back for reconsideration and a determination to be made as to whether the applicant could be informed of the gist of the case against him.

     See also annotations under s1, supra.

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

- On an application for certiorari to quash transfer decisions and mandamus to compel return to an original institution, it was held that the application be dismissed. The transfer of the applicant to administrative segregation and then to the Special Handling Unit was a result of a new policy involving persons in S.H.U. if they have any history of serious violence. The applicant was considered a member of organized crime and had been convicted of murder. It was alleged that the conditions of detention in the S.H.U. involving sensory deprivation and danger to health amounted to an infringement of his "security of the person", and that the principles of fundamental justice had been infringed in relation to the decision. The Court dismissed the application.

R v Lyons - Unreported, January 30,1984, No. 8713 (NS Co Ct)

- This section cannot be invoked to quash an application made pursuant to s688 of the Code to have the accused declared a dangerous offender.

R v Cadeddu and Nunery - (1982), 40 OR (2d) 128 (HC) abated (because of death of respondent) (1983) 4 CCC (3d) 112 (CA)

- Section 7 of the Canadian Charter of Rights and Freedoms which provides among other things that

"Everyone has the right to...liberty...and the right to be deprived thereof except ill accordance with the principles of fundamental justice" mandatorily requires that a parolee must be given a hearing in accordance with the principles of fundamental justice when the question of the revocation of his parole is in issue because such a decision is one that may deprive him of his liberty and to revoke without a hearing violates s7 of the Charter.

Tonner v The Director of Mountain Institution et al - Unreported April 18, 1984, Vancouver, No. CC840645 (BCSC)

- An application for habeas corpus with certiorari in aid alleging a breach of s7 of the Charter in institutional disciplinary court proceedings was dismissed. It was held that no clear request for counsel had been made so as to call upon the chairperson to exercise his discretion in the circumstances and further, when a report was filed at the hearing no issue was taken with the content of the report and no opportunity requested to cross-examine its author. Therefore, this section was not violated and the mere filing of the report did not taint the proceedings in the circumstances.

Re Mason and The Queen - (1983) 7 CCC (3d) 426, 35 CR (3d) 393 (Ont HC)

- Where two members of the National Parole Board sit on a post-suspension hearing pursuant to the statutory framework under the Parole Act and Parole Regulations providing for in-person hearings before at least a majority of a full panel necessary in a particular case. If a majority is two members and they cannot agree then the third vote must occur after a further in-person hearing before each Board member necessary to constitute the full panel. The casting of a third vote in the absence of the party affected and his assistant and in the absence of submissions and the decision based on written materials and not personal plea is fundamentally unjust and unfair and violates s7 of the Charter.

R v Chester - (1984) 5 Admin LR 111, 40 CR (3d) 146 (sub nom Re Chester) (Ont HC)

- The protection given to a person confined in a Special Handling Unit or in segregation is the right to procedural fairness whether it be considered under the common law, the Bill of Rights or the Charter. Each affords the same measure. Section 7 of the Charter is not infringed by the failure to prescribe procedural safeguards in the process of administrative segregation and placement in Special Handling Units. Section 7 deals with procedural fairness and not substantive matters.

Re Gough and National Parole Board - Unreported, October 3, 1990, No. T-2439-90 (FCTD) (Butterworths No. 34845)

- The applicant had been on parole for five and one half years when he was apprehended and his parole revoked as a result of a complaint made to the Correctional Service office. The complaints alleged that he had (committed acts of sexual assault which involved the use of illegal drugs and that there had been acts of coercion towards a number of adult females. No information was given to the applicant as to the precise or even approximate dates or places or times when the alleged acts took place, nor were the names of the alleged victims given. The issue was whether the prisoner had been given sufficient information with respect to the allegations in order to satisfy the requirements of s7 of the Charter and whether the rules of fundamental justice were complied with. The court found that in this case there was no doubt that insufficient disclosure was made and that it was abundantly clear that both the common law principles of natural justice, which require a person to know the case against him, and the s7 Charter requirements of fundamental justice had not been met.

    The Board argued that the non-disclosure was justified by subs 17(5) of the Parole Regulations. But s17(5) of the Parole Regulations does not control the applicant's Charter rights - it is the other way around. As s7 of the Charter was not complied with can the non-compliance be justified pursuant to s.1 of the Charter? A process that allows an individual in the applicant's position to be deprived of liberty on the basis of allegations which it is impossible for him to answer because he is not given enough detail with respect thereto and the withholding of that information is not subject to review by any court or other body independent of the Board, can not be said to be "a reasonable limit". The applicant argued that at the very least the Court should review the confidential documents in an in camera hearing for the purpose of ascertaining the validity of the Board's assertion. This, it was argued, would give the applicant at least some assurance that the Board's judgment was not spurious or arbitrary.

    The Board's position was that there is no jurisdiction in the Court to require that the confidential information be brought before the Court as part of the application for certiorari and mandamus. That information is not under review because it is not part of the record. The Court did not find it necessary to decide whether the confidential information forms part of the record because it felt s24(1) of the Charter, which gives the applicant "such remedy as the Court considers appropriate and just in the circumstances" could be relied upon to enable it to call for the filing of the confidential documents.

    The Court offered the Board a choice of orders: (1) an in camera hearing at which the Board would be given the opportunity to substantiate its reasons for refusing to disclose; and, (2) an order quashing the Board's decision and ordering a rehearing on the condition that further information be supplied to the applicant.

Re Gough and National Parole Board - Unreported, October 29, 1990, No. A-827-90 (FCA)

- The Board appealed the order of the Trial Division ordering the confidential information considered by the Board at a hearing which cancelled the Respondent's parole, be produced and disclosed to the Respondent's counsel and be subject of an in camera hearing for the purpose of enabling the Board to present specific evidence as to why non-disclosure of the information in question is justified. Neither party questions that the trial judge had discretion to adjourn the hearing to permit the Board to add to the evidence in support of its s1 justification, but the Board argues that the Court has no power to coerce it to produce particular evidence in support of that justification. It argues that the Court's function is to decide whether a s1 justification has been made out, not to compel a party to produce the evidence which the Court considers may be necessary to make it out.

    While the Court sympathized with the trial judge not wishing to take the responsibility for putting a parolee back on the street when she knows that there may be good, but undivulged, reason why that would be unwise, that misconceives the Court's responsibility. It is the responsibility of the Parole Board both to take the parolee off the street and to justify that decision in the context of the parolee's constitutional rights. If it fails to justify the decision, when challenged, it is the Court's responsibility to give effect to the parolee's constitutional rights. An order requiring the party that has been found to have infringed the constitutional rights of another to produce evidence that may establish that the infringement was justified, cannot, by any reasonable stretch of language or imagination, be held to be a remedy, appropriate and just in the circumstances, granted to the aggrieved party. It is for the party required to justify the infringement, not the Court, to determine what evidence it is prepared to present in justification. Since the order made is not a remedy authorized by s24(1) of the Charter, the learned trial judge was without jurisdiction to make it. The appeal was allowed and the matter referred back to the trial judge for a resumption of the hearing.

Re Gough and the National Parole Board - Unreported, November 8, 1990, No. T-2439-90 (FCTD)

- Upon the matter being referred back to the court, the court ruled that it was open to the National Parole Board to submit further argument and evidence in answer to one or more of the following questions:

(1)   Why is s17(5) a reasonable limit ...demonstrably justifiable in a free and democratic society even though there is no independent review mechanism of Board decisions taken thereunder?

(2)   Was the Board's decision, determining that release of the information to the applicant "could reasonably be expected to threaten the safety of individuals", supportable on the basis of the material before it?

(3)   Does the public interest involved in non-disclosure pursuant to s17(5), in this applicant's case, outweigh the interest served by disclosure to the applicant?

Re Gough and the National Parole Board (No.2) - Unreported, December 14, 1990, No. T-2439-90 (FCTD) (Butterworths No. 35214)

- The applicant had been on parole for five and one half years when he was apprehended and his parole revoked as a result of a complaint made to the Correctional Service office. The complaints alleged that he had committed acts of sexual assault which involved the use of illegal drugs and that there had been acts of coercion towards a number of adult females. No information was given to the applicant as to the precise or even approximate dates or places or times when the alleged acts took place, nor were the names of the alleged victims given. The Board argued that the non-disclosure was justified by subs 17(5) of the Parole Regulations. The Board conceded that if the applicant were not a paroled inmate, it would be a flagrant breach of his Chatter rights for him to be deprived of his liberty without being given details of the allegations which underlie the deprivation. The requirement that an individual is entitled to know and be given an opportunity to respond to the case against him is essential not only to prevent abuses by people making false accusations, but also to give the persons who have been accused the assurance that he or she is not being dealt with arbitrarily or capriciously. The issue is not the information gathering process of Corrections, or whether the Board must disclose the complete Corrections file, or even if it has to disclose the identity of the informants. The issue is whether the Board is required to either release information to the applicant (when disclosure will necessarily reveal the source of that information) or forego reliance on that information in making a decision on the applicant's parole.

    The applicant's position (on full parole and "parole reduced" status) is as close to that of an individual who has unconditional liberty as it can be within the correctional system. An individual's liberty (even in a conditional liberty which a parolee enjoys) weighs very heavily on the scales when compared to competing interests. Regulation 17(5) is a limitation prescribed by law which the Board says justifies its refusal to provide the applicant with details. The applicant's s7 Chatter rights have been infringed by the Board's refusal to provide him with the confidential information upon which it relies. Thus the burden is on the respondent to demonstrate that regulation 17(5) is a reasonable limit demonstrably justifiable in a free and democratic society pursuant to s1.

    Regulation 17(5) is very broadly framed and no distinction is made between the non-disclosure of information essential to allow an individual to know the case against him or her and the non-disclosure of information which is more peripheral in nature. Furthermore, s17(5)(e) seems to authorize the non-disclosure merely because the information was received in confidence. This can never be a justification for limiting the guarantees of fundamental justice. Similarly, s17(5)(a) seems to require only the possibility of a threat and not a probability that harm would occur to an individual. These are disturbingly broad provisions. While regulation 17(5) can perhaps operate in certain circumstances, the regulation cannot be used to deny a paroled prisoner the kind of information which was denied in this case.

Re Gough and National Parole Board (No.2) - Unreported, January 24, 1991, No. A-1107-90 (FCA) (Butterworths No. 35213)

- The court noted that the trial judge had expressly declined to declare s17(5) of the Parole Regulations ultra vires and agreed with her conclusion that, in the circumstances of the case, the Board's recourse to that provision had violated the rights guaranteed to the Respondent by s7 of the Charter. The Board cannot take into account information it has not disclosed to the prisoner on parole applications.

In Re Conroy - (1983) 5 CCC (3d) 501 (Ont HC)

- The revocation of a parole without a hearing as required by s20 of the Parole Regulations constitutes a violation of s7 of the Charter. The imposition of additional conditions to a parole certificate without notice to the party affected does not involve the deprivation of "liberty" and such a decision can be made without a hearing and will not violate s7 which does not apply to such circumstances.

Re Martens and R - (1984) 8 CCC (3d) 336. 35 CR (3d) 149 (BCSC)

- Where the parolee was not present for a part of a post-revocation hearing and where subsequent reasons upon re-examination indicated that there were matters considered by the Board besides those contained in the original reasons given, the court held that there was a significant departure from the principles of fundamental justice to the extent that he was not present throughout the hearing and that some considerations were taken into account that were not revealed to him and which he had not had an opportunity to answer. A new post-revocation hearing was ordered at which he was to be present throughout the hearing and at which he was to be given a full opportunity to understand and answer all matters of concern to the Board.

Cardinal v National Parole Board - Unreported, September 19, 1990. No. T-2146-90 (FCTD) (Butterworths No. 34696)

- See annotation under Parole Act s13.

In Re Lowe - (1983) 9 WCB 349 (BCSC)

- The British Columbia Board of Parole would not allow a petitioner to be present during a part of the hearing when her liberty was being considered on the question of revocation of her parole. This refusal was considered tantamount to a refusal to be heard and not in accordance with the principles of fundamental justice and therefore in violation of s7 of the Charter. The revocation was quashed.

Richards v National Parole Board - (1985) 45 CR (3d) 382; aff'd (1986) 50 CR (3d) 240 (FCA)

- The applicant was excluded from his post-suspension hearing while the Board heard confidential information. He was only told that the information related to uttering threats. At the end of the hearing the applicant's day parole was revoked and he lost 6 months of earned remission. The decision was quashed on the ground that when an inmate is at risk of losing earned remission through revocation, the Board has an obligation to inform the inmate of that risk and the case against him. Here the information given to the applicant was not sufficient to permit him to defend himself.

O'Brien v National Parole Board - (1984) 2 FC 314, 43 CR (3d) 10, 17 CCC (3d) 163 (FCTD)

- A request for an unescorted temporary absence does not raise a question of the deprivation of any constitutionally enshrined right of liberty, conditional or otherwise, such as might occur with the revocation of parole and its consequences on earned remission or the suspension of mandatory supervision. A request for a temporary absence is a request for the granting of a privilege. A distinction must be drawn between a denial affecting the expectation of enjoyment of some anticipated privilege of liberty and the deprivation of some right of liberty, presently existing and enjoyed, where such deprivation is contrary to fundamental justice. Consequently, an administrative decision to deny such a request does not constitute a deprivation of liberty under s7 of the Charter and consequently, the request and denial do not have to be dealt with in accordance with the principles of fundamental justice. However, once the Board elects to embark upon a hearing even though one is not legally required, it follows that such hearing must be conducted in accordance with the rudiments of natural justice and the common law duty to act fairly. Fundamental fairness dictates that the applicant be afforded an in-person hearing before all members of the Board who had to vote on his application. A failure to do so resulted in the decision denying the application for an unescorted temporary absence being quashed on certiorari and a new hearing before a full panel of Board members required to determine the merits of the application was ordered.

     See also MacDonald v National Parole Board [1986] 3 FC 157 (FCTD) annotated under the Parole Act, 56.

Latham v Solicitor General of Canada et al - (1984) 12 CCC (3d) 9 (FCTD)

- See under 510, infra; and Parole Act, 520 and Parole Regulation, 520 supra.

     See also Schertow v National Parole Board -Unreported, May 18, 1984 No. T-655-84 (FCTD) in which it was held by consent that s7 of the Charter was violated when the National Parole Board followed a procedure in which the determining or deciding Board members were not present at a hearing deciding the question of whether or not to grant parole by deportation pursuant to s11.1 of the Parole Regulations.

Lussier v Collin - Unreported, December 12, 1984, No. A-294-84 (FCA)

- An award of damages for infringement of a prisoner's security of the person as a result of a transfer was set aside on appeal as being unavailable on an application that does not comply with the traditional rules of court regarding actions for damages and because there was no evidentiary basis to support that the prisoner's security of the person had in fact been affected by transfer.

     See also, Wilson v The National Parole Board -Unreported, January 25, 1985, No. T-8355-82 (FCTD), annotated under s17 of the Parole Regulations.

Hay v National Parole Board et al - Unreported, July 12,1985, No. T-692-85 (FCTD)

- A prisoner who had earned a transfer to minimum security was suddenly, due to a change in policy affecting a class of prisoners, transferred back to maximum security. The Court quashed the decision holding that the transfer back to the penitentiary as a result of a policy and due to no fault or misconduct on the part of the prisoner, was arbitrary, cruel and unusual treatment or punishment and unfair and in derogation of the principles of natural justice and therefore s7 of the Charter.

     See also MacDonald v National Parole Board - Unreported, March 17, 1986, No. T-2905-85 (FCTD) under Parole Act, s6.

Maxie v National Parole Board - (1985) 47 CR (3d) 22 (FCTD)

- 520 of the Parole Act was held not to conflict either substantively or procedurally with this section of the Charter. See detailed annotation under s20 of the Parole Act.

Maxie v National Parole Board - (1986) 55 CR (3d) 143 (FCA)

- On appeal, the decision of the Trial Division was affirmed. The Court of Appeal held that the Quantity of earned remission forfeited on revocation pursuant to s20 of the Parole Act is not a new sentence, but the old one and the effect of the revocation is simply that the sentence now has to be served in custody rather than at large on mandatory supervision. While circumstances may arise where the amount of remission lost as a result of revocation might appear unjust, the Board has the power under s20(3) to alleviate any such unjustness in the circumstances. Nor is the principle of double jeopardy for the same conduct offended by a person receiving a new sentence for an offence committed while on mandatory supervision and also losing remission on an old sentence for a breach of mandatory supervision. While the same conduct might bring about the two results, the considerations leading to them are not the same, nor are their legal basis.

     See also, Hewitt v National Parole Board (supra) in which s7 was violated at a post-suspension hearing by not permitting the parolee and his assistant to be present during part of the hearing.

Staples v National Parole Board - (1985) 47 CR (3d) 186 (FCTD)

- This section requires, that on an application for day parole under the Parole Act, the applicant must be made aware of the substance of the materials adverse to his cause that the Board will be considering in order that he may respond to it with evidence or argument. A decision to grant or refuse day parole is a decision pertaining to "liberty" and is not distinguishable from a decision to revoke parole. Though s11 of the Parole Act excludes the right to a hearing in relation to day parole, it does not exclude a right on the part of the applicant to be informed of the case against him. Whether or not s7 requires a hearing in the circumstances was not decided. If distinctions are to be made between full parole and day parole and revocations thereof those differences should be reflected in differences in the requirements of "principles of fundamental justice" or limitations under s1 of the Charter.

Mitchell v Crozier et al - (1986) 1 FTR 138 (FCTD)

- A prisoner charged with "serious" offences who does not read the notice setting out the charges and assumes that they are "minor" offences and then does not request counsel, is not entitled to have subsequent convictions for those offences quashed because there is no denial in such circumstances of any constitutionally guaranteed right. A prisoner failed to request representation by counsel due to his own misconception of the nature of the charges and therefore by his own conduct.

Litwack v National Board - (1986) 26 CCC (3d) 65, 51 CR (3d) 53 (FCTD)

- A decision by the National Parole Board to impose terms or conditions on parole, pursuant to s10 of the Parole Act and a subsequent decision reviewing such terms or conditions with a view to revoking or continuing them must be made in accordance with s7 of the Charter principles of fundamental justice. Though the decision to impose a condition in the circumstances was not unreasonable, given its object, nevertheless a subsequent decision on an application to revoke the condition violated s7 principles because of the delay and because, in the circumstances, bearing in mind the purposes of imprisonment and parole, the decision was inconsistent with those purposes and in substance patently unreasonable. Section 7 is not merely directed to procedural fairness but also to decisions that are reasonable in substance on the merits. An error of fact that is unreasonable may amount to an error of law and in turn an unreasonable error of law which will go to jurisdiction and thereby avoid a privative clause and result in the granting of certiorari to quash.

Jamieson v LeBlanc et al - (1986) 51 CR (3d) 155 (FCTD)

- There is a requirement of fairness when decisions are taken to transfer prisoners within the prison system. This does not involve the requirement of a formal hearing prior to a transfer decision. Section 7 of the Charter applies but the "principles of fundamental justice" do not require more than the common law duty of fairness. The requirement of fairness now flows from the Charter.

Re Evans and The Queen - (1987) 30 CCC (3d) 1 (Ont HC)

- On one hand, "there is nothing fundamentally unjust in revising parole rules in the course of a sentence being served It is difficult to appreciate how he (a prisoner) should be heard to complain when he is not being made the beneficiary of a system of parole that permitted release in order to facilitate integration into society, on the basis that he is judged to be a failure, that is, a danger to society and apt to commit violent acts. The new legislation changes not the sentence, but the manner in which it will be served". On the other hand, the legislation does involve the withdrawal of a right to release on mandatory supervision as a result of earned remission which might offend s7 even in the absence of arbitrariness if applied to prisoners who had earned remission prior to when the legislation came into effect. If s7 is breached, the new legislation is clearly saved by s1 of the Charter.

Re Evans and The Queen - (1987) 30 CCC (3d) 313 (Ont CA)

- On appeal, the constitutionality of the new gating ss15.1 through 15.6 of the Parole Act was affirmed. The intent of Parliament to make this legislation retrospective or retroactive is clear. The legislation does discern itself with depriving an inmate of his right to "Liberty'" within the meaning of s7 of the Charter, but it does not authorize such a deprivation in breach of the "principles of fundamental justice". The sections simply give the Parole Board the power to change the degree of supervision required in circumstances within the legislative guidelines and criteria. They do not change the sentence, nor impose an additional penalty. They do no more than change the manner or condition under which certain inmates would serve the balance of their sentence. However, before such a change can be effected, a procedural and substantive safeguard established by the Act must be complied with. They are designed to ensure a fair procedure and protect against arbitrary determination of rights. The legislative scheme does not violate s7 of the Charter, nor does it authorize the imposition of arbitrary detention. Section 1 of the Charter can be resorted to without hesitation if necessary.

Dempsey v The Queen - Unreported, November 17, 1986, No. T-1133-86 (FCTD)

- The mandatory supervision regime does not offend s7 of the Charter either. A prisoner can choose to go out on mandatory supervision or elect to remain in prison. The principles of fundamental justice in s7 do not require an adjudication or a hearing on the question of whether or not the prisoner is to go out on mandatory supervision.

Dempsey v The Queen and AG Ontario - Unreported, May 8, 1987, No. A-758-86 (FCA)

- The decision of the Trial Division (supra) was upheld on appeal. The Court of Appeal concluded that there was ample evidence before the trial judge upon which to conclude that persons sentenced to federal penitentiaries are not similarly situated to provincial convicts who, have been adjudged to deserve sentences of imprisonment of less than two years. The countless considerations which lead to the imposition of more or less severe sentences provide an ongoing and acceptable basis for differentiation. Because such prisoners are not similarly situated, the mandatory supervision regime set out in the Parole Act does not offend s15 of the Charter by discriminating against federal convicts notwithstanding that provincial convicts may be released from incarceration free of comparable restraints on their liberty.

Ross v Warden of Kent Institution et al - (1987) 57 CR (3d) 79 (BCCA); leave to appeal to SCC refused (1987) 59 CR (3d) xxxiv (SCC)

- These sections of the Parole Act l authorizing gating are not unconstitutional and are not inconsistent with s7 of the Charter. "Fundamental justice requires that the inmate know the case against him and have a fair opportunity to meet it." These provisions of the Parole Act and regulation 17(5) do not entitle the Board to withhold relevant information from the inmate so that he does not know the case that he must meet and have a fair opportunity of answering it. "It is not essential to comply with the principles of fundamental justice that he know the sources of all the information before the Board as long as he's informed of the substance of that information". While reg 17(5) authorizes the Board to withhold details from the inmate which might disclose the identity of an informer, it does not authorize the Board to withhold the substance of the information. The effect of these new provisions of the Parole Act is to alter the right of an inmate to serve a portion of his sentence on mandatory supervision by qualifying that right.

Tatham v National Parole Board - (1990) 77 CR (3d) 209 (BCSC), 1990 CanLII 169 (BC S.C.)

- The National Parole Board refused to give the applicant even the "gist" of the new information which they were relying on at the applicant's detention hearing. The Board said they could not release this information due to its extreme sensitivity. Following Ross v Kent Institution (1987) 34 CCC (3d) 452 (BCCA) Macdonell J quashed the decision of the detention hearing, holding that it was contrary to fundamental justice. To deprive the applicant: "...of his liberty on such private or secret information without his having even the barest outline or gist of what the case is against him is a clear abuse of his right to liberty." (p214)

Pulice v National Parole Board - Unreported, April 19, 1900 No. T-2871-89 (FCTD) (Butterworths No. 34066)

Pilon. et al v Yeomans - [1984] 2 FC 932 (TD)

- An application to quash a transfer from medium security to maximum security and for mandamus to compel retransfer on grounds that the decision violated ss7 and 9 of the Charter or, alternatively, the principles of procedural fairness, was dismissed. The Act or Regulations do not mandatorily require a full-scale hearing as a prelude to an administrative decision to transfer. The applicants did not avail themselves of the opportunity to respond to the notice of transfer. They were fully informed of the reasons for transfer in conformity with the Commissioner's Directives. The administrative decision to transfer the applicants did not constitute, in the circumstances, a deprivation of their right to life, liberty and the security of the person guaranteed by s7, nor did the implementation of the transfer constitute arbitrary detention or imprisonment, contrary to s9. There was no obligation to afford the applicant a hearing with respect to the transfer. Restrictions and limitations placed on prisoners for security reasons such as a transfer to a more secure institution are permissible under s1 of the Charter.

     See also Ibrahim v Disciplinary Tribunal of Montee St-Francois Institution et al - Unreported, November 4, 1985, No. T-1325-85 (FCTD) under s39 of Penitentiary Service Regulations at p952.1.

Re Dion and The Queen - (1987) 30 CCC (3d) 108 (Que SC)

- Section 39 (i.1) and 41.1 of I the Penitentiary Service Regulations were held unconstitutional as being inconsistent with s7 in that the powers given to penitentiary officials by those sections authorized the exercise of arbitrary power inconsistent with the principles of fundamental justice. The sections did not ensure that a prisoner was protected against abuse as they did not require officers to act on reasonable and probable grounds in demanding a urine sample, but only out of what they felt was necessary.

R v Marshall - Unreported, April 25, 1984 (Ont HC)

- A failure to comply with the mandatory provisions of s454(2) of the Criminal Code by failing to ensure the attendance of the accused for the identity hearing before the Justice of the Peace and that the accused is released within 6 days unless a s461 warrant is executed within that period effects an individual's liberty contrary to s7 and s9 of the Charter and will result in the granting of an appropriate and just remedy pursuant to s24(1).

Parker v Canada (Solicitor General) - (1990) 57 CCC (3d) 68,73 OR (2d) 193 (Ont HC)

- This case raised the issue of whether the delayed arrest of Parker resulted in a violation of s7 of the Charter by delaying his eligibility date for his 15-year review.

    Parker was convicted of two murders. The first occurred in Ontario on August 1st, 1974, the second in Alberta on August 22, 1974. He was arrested for the Alberta offence on August 22, 1974, however, the information charging Parker with the Ontario murder was not sworn until November 12, 1975 although the police knew he had been arrested on August 22. Parker was convicted of the Alberta murder on January 23, 1976 and was sentenced to life without eligibility for parole for 10 years. Then on May 25, 1976 he was transported to Ontario to appear in court on the Ontario charge. He was convicted of the Ontario murder on September 17, 1976.

    The applicant said his period of parole ineligibility commenced on November 12, 1975, the date the Ontario information was sworn. The Crown said the period commenced on the date of his arrest and transfer to Ontario, May 25, 1976. Mr. Justice Henry concluded that the police (p202 OR):

"...in effect delayed the commencement of the applicant's sentence for over six months, for the purposes of calculating the 15 years required to be served before application for judicial review under S745, as modified by s746. That the police can arbitrarily decide to delay arrest of the subject clearly constitutes the potential for abuse amounting to a failure of fundamental justice within the meaning of s7 of the Charter."

The impairment of the s7 right need not be deliberate or malicious, impairment even if rethinking or inadvertent is sufficient. The court fashioned a remedy under s24(1) of the Charter ordering that Parker was eligible to apply for review 15 years after the Ontario information was sworn.

Logan v Director of William Head Institution and National Parole Board - Unreported, May 30, 1986, No. 86/1307, Victoria (BCSC)

- The imposition of mandatory supervision with terms and conditions and the revocation thereof does not result in unlawful detention and offend rights under this section. The word "remission" in s24(1) of the Penitentiary Act does not mean that the sentence imposed by the court is "cancelled" or "expunged" but carried with it the concept of merely abstaining from enforcing an existing right without bearing the connotation of cancelling that right. Bearing in mind the provisions of s15(2), s13(1) and s10(1)(b) of the Parole Act, the imposition of mandatory supervision with terms or conditions is lawful.

Bailey v Dinsley, Chairperson of Disciplinary Court of Mission Institution - (1986) 25 Admin LR 219 (FCTD)

- It is a denial of principles of fundamental justice to fail to make an inmate aware of the evidence that is used to attempt to obtain a decision against him in disciplinary proceedings. Where a chairperson has in his possession a memorandum indicating the test results in relation to possession of contraband and does not place that memorandum before the inmate during the course of the proceedings, although the chairperson has it in his possession and refers to it, this amounts to a denial of fundamental justice by denying a fair hearing and denying the prisoner a right to defend himself on the evidence. On the facts of the case, there was no evidence upon which to sustain the conviction. Furthermore, the denial of an opportunity to be represented by counsel in the proceedings was, in the circumstances, a further denial of principles of fundamental justice accorded under s7 of the Charter. The offence was designated as "intermediary" and, in addition, the prisoner failed to earn remission as a result of the charge and was sentenced to punitive dissociation (solitary confinement). There was no rule or regulation that would prevent an inmate of the institution having legal counsel if charged with an intermediary offence and if such a prohibition did in fact exist, its validity would be questionable in light of the Charter.

Re Hanson and the Disciplinary Board of the Prison for Women - Unreported, August 15, 1986

- The prisoner Hanson was charged with disobeying or failing to obey a lawful order of a penitentiary officer. She had refused a direct order to provide a urine sample contrary to the Penitentiary Service Regulations. Hanson had been amongst a group of four prisoners, three of whom had been sent to the hospital to be examined by a nurse whereas Hanson was not considered "bad enough" to be checked and examined. Similarly, the others had been questioned as to the taking of drugs whereas Hanson had not. On the evidence, Hanson did not display signs of being under the influence but was simply a member of the group ordered to provide a sample. Submissions of counsel for both sides were received. The validity of s41.1(1) of the Penitentiary Service Regulations authorizing a demand for a urine sample was held to be valid and that, therefore, inmates could be requested to provide a sample of their urine and that such a request would amount to a lawful order of a penitentiary officer. However, in the circumstances, there was a complete absence of any reasonable and probable grounds to demand a sample from Hanson. While the regulation does not provide any specific direction as to the requirement of reasonable and probable grounds, the regulation must be enforced in accordance with the principles of fundamental justice. Here the re- quest was made in an arbitrary fashion without reasonable and probable grounds. The absence of any guidelines in the regulations require the application of the basic principles of fundamental justice to ensure that the regulation is not enforced in an arbitrary manner. Consequently, the charge against Hanson was dismissed.

Ward v Director of Whitehorse Correctional Centre, National Parole Board et al - Unreported, December 17, 1985, No. SC 415/85 (YTSC)

- A prisoner sentenced to three years imprisonment was permitted, under an agreement between the Yukon Territory and the Federal Government of Canada, to serve his sentence in a territorial prison, namely, the Whitehorse Correctional Centre. He was subsequently released on parole and then suspended. He was initially offered a hearing but then notified that this was in error because he was not considered a federal inmate but a territorial inmate and, as such, was not entitled to a post-suspension hearing. The Whitehorse Correctional Centre had never been designated as a federal penitentiary under either s1.1 or s1.2 of the Penitentiary Act. The Board revoked his parole. He sought habeas corpus. The Crown questioned the jurisdiction of the court to grant the relief sought in light of s18 of the Federal Court Act. The court found it had jurisdiction following Cardinal and Oswald v Director of Kent Institution (1982) 67 CCC (2d) 252 and Re Miller and the Queen (1982) 70 CCC (2d) 129 preferring the reasoning in those cases to the reasoning in Morin. The court went on to hold while there was no statutory right to a hearing because the prisoner did not come within the definition of a federal inmate in s2 of the Parole Regulations, nevertheless, following Caddedu (supra at p.5123), s7 of the Charter required that even the qualified liberty of parole not be deprived except in accordance with the principles of fundamental justice and these principles required that the inmate have a right to be heard and any hearing which took place without that right was a nullity and not appealable. In the circumstances, the court was not persuaded that the public interest required the court to order a hearing and accordingly, the court quashed the revocation order, ordered the reinstatement of the prisoner's remission and that he be released immediately.

Bryntwick v Canada (National Parole Board) - (1986) 55 CR (3d) 332, 32 CCC (3d) 321 (FCTD)

- The decision of the National Parole Board to impose a special condition upon a full parolee provided a "prohibition from any non-fortuitous meetings or communications with people having a criminal record or with whom you think might have a criminal record", because the parolee had, by chance, met a former accomplice and had had his parole previously revoked for committing an offence in the company of others with criminal records, was not in violation of s7 of the Charter. While the condition represented a further incursion on the parolee's freedom, it was imposed in accordance with the basic tenets of our legal system and as such, was in accordance with principles of fundamental justice. No substantive or procedural violation had been established. The parolee was given an opportunity to meet the case that was placed before the Board and his solicitor was able to make representations in relation to the imposition of the condition and those representations did not establish any breach of the principles of fundamental justice. Furthermore, the acts of the Board were not patently unreasonable and the Board had full authority to decide as it did under the Act and the condition imposed was not obviously so unreasonable as to constitute an excess of jurisdiction.

    The applicant/parolee further argued that the condition was "void for vagueness". The court held that the condition imposed was sufficiently clear and precise to be understood and enforced and was obviously not beyond the comprehension of any reasonable person. The court found the restriction to be reasonably and necessarily related to the interests of the community and stood as an additional safeguard for the parolee in his progress towards full rehabilitation. The court noted that if, by chance, the petitioner became the victim of any arbitrary discriminatory interpretation or enforcement of the condition, he could still look to the courts for redress.

Weatherall v AG Canada et al; Conway v The Queen; Spearman v Disciplinary Tribunal Collins Bay Penitentiary et al - (1989) 59 CR (3d) 247 (FCTD)

- The plaintiffs, Weatherall and Conway, sought declarations with respect to the legality of the use of female guards in federal penitentiaries and doing personal searches of male inmates or in surveillance of living quarters of male inmates. The applicant, Spearman, sought certiorari with respect to the legality of female guards doing "frisk searches" of male prisoners. The court concluded that the matters in issue involved "searches" which are dealt with under s8 of the Charter. While the court was able to accept the argument that searches of the person or his living quarters, in circumstances which constitute an invasion of normal privacy, is an infringement of individual's "security" and, therefore, potentially within the scope of s7, nevertheless, on reading ss7 and 8 together, the court was unable to conclude that the framers of the Charter intended to preclude, by s7, searches of this nature and not to preclude them by s8. The court found that s7 of the Charter was not applicable to the kind of searches in issue. The only relevant privacy protection provided in the Charter is s8.

Demaria v Regional Transfer Board and Warden of Joyceville Institution (No.2) - Unreported, January 29,1988, No. T-241 0-87 (FCTD)

- The applicant sought certiorari to quash the decision of the warden of Joyceville Institution and the confirmation of that decision by the Regional Transfer Board transferring him from Joyceville Medium Security to Millhaven Maximum security. He also sought mandamus requiring a transfer back to Joyceville or some other medium security institution. He also sought to have a disciplinary court charge, which had not been heard, quashed.

    There had been problems at Joyceville Institution in August of 1987. The applicant was elected chairman of the inmate committee subsequently. A new warden was appointed to Joyceville shortly thereafter. The warden and the applicant met and briefly discussed a meeting with the committee to take place the following week relating to the lessening of restrictions in place at the institution since the riots of early August.

    The applicant then spoke with the Executive Assistant to his member of Parliament. A corrections officer was in the room at the time of the telephone conversation and reported the conversation to the warden. The corrections officer reported to the warden that the applicant had stated that if certain re- quests were not met, that something heavy was going to go down in the institution. Consequently, the warden prepared an emergency and involuntary transfer notice relating to the applicant. The grounds for transfer were that the applicant had made inciteful remarks to the M.P.'s office, threatening incidents at Joyceville if demands were not met and failed to negotiate in good faith with the warden on serious matters regarding the normalization routine. This latter ground was based on an original assertion that the applicant had agreed not to discuss the agenda for the inmate committee meeting with anybody outside the institution and the warden viewed this discussion with his M.P.'s office as a breach of that agreement. At the hearing of this matter, the warden resiled from that position and took the position that he simply thought it was inappropriate for the applicant to discuss the agenda with his M.P. or the M.P.'s Executive Assistant and, particularly, to indicate the high degree of tension in the institution. The day following the transfer notice, the warden circulated a notice to the prison population explaining his actions.

    It was not asserted that the applicant intended to or was involved in stirring up any trouble at the institution and no action was taken by the warden to investigate the report of the telephone conversation or to determine if, in fact, a disturbance was being planned. In fact, on cross-examination, the warden agreed that such a disturbance was unlikely because of extensive restrictions. The warden appeared to simply be annoyed at the fact that the applicant had spoken to his M.P. An affidavit was filed by the M.P.'s Executive Assistant con- firming the telephone conversation and deposing that the conversations were neither inciteful nor intimidative, that the applicant sought advice and assistance from his M.P. and made no demands or threats, and that the conversations were intended to be private and confidential.

    The corrections officer who wrote out the unusual occurrence report also wrote out the offence report which led to the applicant being charged with doing an act "calculated to prejudice the discipline or good order of the institution" contrary to s39(k) of the Penitentiary Service Regulations. In that report she stated that the applicant, during the conversation with his M.P. indicated that if inmate requests were not met, something might happen and that the committee had tried to defuse the situation but things were pretty hot and if something didn't happen, it would not be the inmate's fault. This report was much milder in tone than the unusual occurrence report. Furthermore, there was no reference to something happening "this weekend". The warden inquired into these differences and was advised by the officer/supervisor that the officer felt uneasy about the visibility that was being generated towards her as a result of the original report and consequently, she toned down the wording of the offence report.

    The warden, on cross-examination, indicated he was concerned that the comments by the applicant to his M.P. were inciteful and could constitute a threat to the security of the institution because they were made to the M.P.'s office and this might lead the information to be disclosed to the press who in turn would report it in newspapers and the newspapers would be read by the prisoners and this would have a "de-stabilizing" effect.

    The application for certiorari was granted, quashing the transfer decision but the application for mandamus was refused as being unavailable but not necessary in any event.

    The court concluded that it was acceptable for the Executive Assistant for the M.P. to stand in for the M.P. and that whatever privilege attached to the communications between the applicant and the M.P. would also attach to those with the M.P.'s Executive Assistant. While Directives provided for communications with an M.P. in writing to be privileged, the Directive was silent as to the status of oral communications. Nevertheless, the policy reasons for granting privileged status to written communications should be equally applicable to telephone communications. Such communications can be monitored as can written correspondence to ensure that they are bona fide. The court concluded that to base a decision to transfer a prisoner from medium to maximum security on the fact that he had a telephone conversation with his M.P., even if the prisoner was saying things the prison officials did not want said or even if the communications exaggerated, in some way, the actual facts amounted to an arbitrary exercise of administrative authority and further, that the choice of Millhaven Institution was arbitrary in the extreme, given the availability of other institutions closer to the applicant's family.

    The court pointed out that it is now well established 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. In addition, the court concluded that 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. To set aside the decision of an administrative body on the ground that it is arbitrary, or unreasonable as having been made without evidence to support it, is one of the traditional grounds of judicial review and as such is within the concept of "fundamental justice",

    The court found that there was absolutely no evidence to support the transfer as being necessary on an "emergency basis". There was no suggestion that prison officials thought the applicant was causing or planning to cause disturbances in the institution and it was repugnant to think that a communication of information about the situation inside a prison to one's member of Parliament could be considered an inciteful activity. There was no evidence that the applicant was negotiating with the warden in bad faith. There was no indicator that he was asked to keep the information concerning the agenda or propose negotiations within the institution. While the warden may have felt that that was inappropriate, there was no evidence that the applicant was told of this,

    The court accepted the doctrine of curial deference that administrative decision makers have the "right to be wrong" but found that that doctrine did not go so far as to prevent judicial review of an arbitrary decision as one made without a factual basis to support it, The court concluded that the decision was arbitrary and made in the absence of any evidence to support it.

    With respect to the disciplinary charge, the court was of the view that that issue was somewhat moot in light of the decision in respect of the transfer. If there is a lack of factual basis to support a decision to transfer, there is equally a lack of factual basis on which the charge could be supported. Nevertheless, the court declined to grant the remedy as the matter was not argued in detail.

    With respect to the request for mandamus, the court was of the view that quashing the original transfer order carried with it the requirement that the applicant be either transferred back to the original institution or to another medium security institution. A failure to do so on the part of the authorities would amount to a breach of the order of certiorari which was granted.

    A request for a declaration with respect to the privileged nature of oral communications between the applicant and his member of Parliament was not procedurally open in the context of the motion,

R v Smith - (1988) 68 CR (3d) 92(Ont HC)

- At a parole suspension hearing before the Ontario Provincial Parole Board, the applicant requested an adjournment to consult counsel and to arrange for representation before the Board. This request was denied and the applicant's parole revocation confirmed. The applicant sought habeas corpus with certiorari in aid to quash the decision and secure his release.

    At the hearing before the court, it was not contested that there ought to have been an adjournment at the parole hearing and that the applicant ought to have been afforded access to counsel. The respondent had already offered the applicant a hearing with counsel before a reconstituted Board but the applicant had declined to accept that offer. At issue was the appropriate remedy to be awarded by the court.

    The court found that there is no right to counsel in such circumstances before the Parole Board at common law, relying upon Howarth v National Parole Board [1976] SCR 453, 3 NR 391 (SCC) and Fraser v Mudge [1975] 3 All ER 78 (CA).

     However, the court found that s7 of the Charter provides the rights in such circumstances such as a right to an in-person hearing (Re Cadeddu and The Queen (1982) 4 CCC (3d) 97 (Ont HC)); to minimum notice of the allegations against the inmate (Re Latham and Solicitor-General of Canada (1984) 12 CCC (3d) 9 (FCTD)); and most importantly, the right to counsel at hearings involving parole revocation (Kennedy v National Parole Service [sic], unreported, August 12, 1985, FCTD, at p12; and Re Latham, supra, at p20).

    that the Ontario Provincial Parole Board had violated the applicant's s7 Charter rights and committed an important procedural error. However, the court declined to set the applicant at liberty holding that a determination of the merits of the parole revocation should properly take place before the Parole Board. NotwithstanIt was held ding prevailing legal authority that the warrant of suspension is spent upon the further decision of the Board to revoke and notwithstanding that this court's decision to quash the revocation would therefore normally result in the applicant being put at liberty, nevertheless, the court, using s24 of the Charter ordered that the applicant remain in custody pending a re-hearing to be held expeditiously before a different panel of the Board.

Okeynan v Warden of Prince Albert Penitentiary - Unreported, March 25, 1988, No. T-261-88 (FCTD)

- In quashing on certiorari a National Parole Board detention order on the grounds that the applicant was not given sufficient, specific details of the allegations contained in written reports to enable him to defend himself, Strayer, J reaffirmed earlier decisions of the court (Latham and Cadieux) in holding that a hearing by the National Parole Board which can affect the amount of time a convicted person actually serves in prison affects his "liberty" and thus it must be conducted in accordance with the "principles of fundamental justice" as required by s7 of the Canadian Charter of Rights and Freedoms.

    The failure of the Board to record the hearing as required by s16.2 of the Parole Regulations did not automatically nullify the decision of the Board but was quite relevant to the exercise of judicial review of such a decision because the absence of a record makes it difficult for the court to determine whether or not the application had a fair hearing. A failure to provide the information necessary to the exercise of judicial review may, particularly where Charter s7 rights are involved, further justify judicial intervention under s24 of the Charter. A new hearing was ordered.

    The court exercised its discretion in favour of granting certiorari because of the importance of the interests affected, the inadequacy of the record of the Board hearing and the constitutional issues involved. The fact that the applicant had appealed to the Parole Board Appeal Division unsuccessfully and had not raised the fairness issue on that appeal, only went to the issue of the exercise of judicial discretion.

Lawrence v The Queen - Unreported, November 17, 1988, No. 2836, (Nfld SC)

- Having been released pending appeal of his conviction and after exhausting all his appeals, Lawrence tried to surrender himself to Penitentiary officials on April 24, 1988. However, the institution refused to accept Lawrence and advised him that a new committal order was required before he could be committed.

    After much communication with the RCMP and the Penitentiary to no avail Lawrence decided to return to work. Finally, on October 25, 1988 Lawrence was advised by the RCMP to surrender himself into custody, which he did on October 28, 1988.

    Lawrence's counsel then brought on an application for habeas corpus claiming that forcing Lawrence to complete his six-month sentence seven months after he originally surrendered himself would be contrary to s7 of the Charter.

    Finding for the applicant the court held that:

"Considering all the circumstances, including the commendable endeavour of Lawrence to complete his sentence, it would be unwarranted to order him now, several months after his term would have expired, to return to the Penitentiary. It would mean a sentence more perturbing -not longer as in Lachance -but more aggravating than ever anticipated by the trial judge. This would be the result caused, not by the failure of his appeal, but as a direct consequence of a mistaken belief and error on the part of penal system administrators. Return to the Penitentiary, months after the sentence would have expired but for administrative hindrance, would be a loss of liberty and security of the person not in accordance with principles of fundamental justice." (pp24-5)

Gamble v The Queen - [1988] 2 SCR 595 (SCC)

- The principles of fundamental justice are to be found in the basic tenets of the legal system: See BC Motor Vehicle Act at p503. Fundamental to any legal system which recognizes "the rule of law" (see the preamble to the Charter), an accused must be tried and punished under law in force at the time he was committed.

Wright v Chairman Stony Mountain Disciplinary Court - (1989) 4 WCB (2d) 47 (FCTD)

- The court quashed Wright's "intermediary" offence conviction because the Chairman did not consider the particular circumstances of the case (per Howard v Stony Mountain Institution (1984) 2 FC 642 (FCA)), before refusing Wright's request to have counsel present at his disciplinary court hearing.

    Collier, J held that (p8 unreported decision):

The principles set out in the decisions are, as I see it, as follows: Section 7 of the Charter has not created any absolute right to counsel in penitentiary disciplinary proceedings. The characterization of the offences as minor, intermediary or serious is not conclusive on the issue as to whether the request for counsel can be allowed or denied. Even for a so-called minor offence, in a proper case, the right might well have to be permitted.

Each case must be approached on its own particular circumstances.

Gallant v Canada, (Deputy Commissioner CSC) - (1989) 68 CA (3d) 173, 36 Admin LA 261 (FCA); revg (1988) 62 CA (3d) 267 (FCTD); leave to appeal to SCC refused (1989) 71 CA (3d) xxv (sub nom Trono v Gill; Trono v Gallant)

- Gill and Gallant were notified of a pending involuntary transfer from Kent Institution to Saskatchewan Penitentiary for allegedly operating an extortion scheme. They challenged the transfer in Federal Court on the basis that the Institution violated the principles of procedural fairness by refusing to disclose the identity of the informants or the details of allegations against them.

    The institution argued that the informants' lives would be endangered should their identity become known.

    Upon hearing the application Mr. Justice Dube held that the transfer decision had been made in violation of the principles of procedural fairness.

    The decision was overturned on appeal. Pratte, JA was of the view that:

"Parliaiment cannot have intended, when it gave the Commissioner and its delegates the power to transfer inmates from one penitentiary to another, that they should be bound by the rules of procedural fairness even when the application of those rules would endanger the lives of other inmates." (p6)

    He distinguished Demaria v Regional Classification Board [1987] 1 FC 74 on the basis that there the failure to give proper notice was not justified by any valid reason, which was held not to be the case here.

    Pratte, JA then went on to consider s7 of the Charter. His Lordship was of the view that "the right to a fair opportunity to be heard" is guaranteed by the "principles of fundamental justice". However, a distinction was drawn 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; otherwise, Parliament would have the unfettered power to reduce to nothing the protection afforded by s7." (p10)

    As a result the transfer was held not to be in accordance with the principles of fundamental justice as Gill and Gallant were not given a real opportunity to answer the allegation made against them. But, the transfer was saved by s1 of the Charter. Counsel did not address the issue of the applicability of s1, however, Pratte, JA stated that "the answer to the question appears to me to be so obvious that I do not need any evidence or argument to conclude that, in a free and democratic society, it is reasonable, perhaps, even necessary, to confer such a wide discretion on penitentiary authorities."

    In concurring reasons Marceau J summed up his view of the case as follows:

"In the case of a decision aimed at imposing a sanction or a punishment for the commission of an offence, fairness dictates that the person charged be given all available particulars of the offence. Not so in the case of a decision to transfer made for the sake of the orderly and proper administration of the institution and based on a belief that the inmate should, because of concerns raised as to his behaviour, not remain where he is. In such a case, there would be no basis for requiring that the inmate be given as many particulars of all the wrong doings of which he may be suspected. Indeed, in the former case, what has to be verified is the very commission of the offence and the person involved should be given the fullest opportunity to convince of his innocence; in the latter case, it is merely the reasonableness and the seriousness of the belief on which the decision would be based and the participation of the person involved has to be rendered meaningful for that but nothing more. In the situation we are dealing with here, guilt was not what had to be confirmed, it was whether the information received from six different sources was sufficient to raise a valid concern and warrant the transfer." (pp3-4)

    Marceau J found that substantial information was disclosed and that cogent reasons for non-disclosure of further particulars were given.

    Desjardins JA in a dissenting opinion stated that when dealing with informers prison authorities may properly follow the prudent approach:

But at the same time, the burden is on these authorities, when a disciplinary measure is taken, to demonstrate that the circumstances are such that they cannot inform the respondent of the facts on which the charge is based. This burden is not a light one since the protection of the law and of the Constitution does not stop at the prison gate.

    Madame Justice Desjardins held that Gill and Gallant did not have enough information to defend themselves. The record did not contain some underlying factual information from which the authorities could reasonably conclude that the informer was credible or the information reasonable:

"Where cross-examination, confrontation or adequate information are not available to silt out the truth, some measures must exist so as to ensure that the investigation is a genuine fact-finding procedure verifying the truth of wrongdoing and that the informers are not engaged in a private vendetta." (p9)

    Her Ladyship concluded that as the affidavits produced by the institution did not indicate that an independent investigation had been carried out or indicate why the authorities felt the information was reliable, that the appeal should be dismissed for lack of satisfying affidavits.

Fengstad v W J Scissons, Warden of Kent Institution - Unreported, March 18, 1991, No. T-276-91 (FCTD)

- The prisoner sought an order quashing a decision transferring him from the general population to segregation at the institution. Among his grounds, the applicant argued that the respondent acted in excess of or without jurisdiction in ordering the transfer without providing the applicant with sufficient information as to the reasons for such transfer and that this was contrary to s7 of the Charter. The applicant was notified that he was suspected of pressuring, through threats of violence and intimidation, other inmates and members of their families to purchase narcotics in the community and have them introduced into the institution. He was to be held in segregation pending an investigation of these allegations by both the CSC and RCMP. The applicant was also later provided with a copy of the review of his segregated status report. There were also allegations that since his placement in the segregation unit he has been a major instigator of problematic: behaviour. Considerable details were given. Fengstad denied the allegations and filed affidavits from the other prisoners in support. The names or identities of the informers or sufficient detail of the allegations that might lead to the disclosure of their identities was withheld for "security" reasons. It was appropriate to take into account the applicant's considerable history of past criminal offences and prison terms, including escaping custody and a lengthy record of mostly minor prison offences, in determining his placement.

    It is well established that although the decision to transfer is an administrative one, it must be made fairly, which involves informing the prisoner of the reasons for the decision and giving him an opportunity to respond. However, there is no basis for requiring that the prisoner be given all particulars of the wrongdoings of which he may be suspected. In this regard, the court adopted the test set out by Marceau, J in Gallant v Canada (198~1) 68 CR (3d) 173, otherwise known as Trono v Gallant, which distinguishes between cases involving a decision aimed at imposing a sanction or punishment for the commission of an offence which requires disclosure of all available particulars in contrast to a decision to transfer made for the sake of the orderly and proper administration of the institution and based on a belief that the inmate should, because of concerns raised as to his behaviour, not remain where he is. In the latter type of case, there would be no basis for requiring that the inmate be given as many particulars of all the wrongdoings of which he may be suspected. In situations where guilt is not what has to be confirmed, the question is whether the information received from the sources is sufficient to "raise a valid concern and warrant the transfer".

    In the circumstances, the court held that it would have been unwise and perhaps even dangerous to permit the prisoner more information as to the identity of the informants.

    In this regard, the court further relied on Trono v Gallant, supra, to the effect that while s15 may be in violation of s7 of the Charter, it is a reasonable limit prescribed by law which is obviously demonstrably justified in a free and democratic society to be saved by s1 of the Charter. No evidence or argument was required on that point. With respect to s7, the Penitentiary Act gives the Commissioner and his delegates certain powers to transfer inmates, a discretion tempered only by the principles of procedural fairness. The court was of the view that there was no breach of fairness by the respondent in either the decision to have the applicant transferred or in the subsequent review proceedings. The motion was dismissed.

Piche et aI v Canada (Solicitor General) - (1989) 47 CCC (3d) 495, 36 Admin LA 225 (FCA); aff'g 17 CCC (3d) 1 (FCTD)

- The Federal Court of Appeal dismissed an appeal from a decision of Nitikman, OJ which held that the introduction of "double bunking" at Stoney Mountain Institution was not contrary to s7 of the Charter (see (1985) 17 CCC (3d) 1 (FCTD)).

    MacGuigan JA, writing for the court, accepted the "residual right to privacy and dignity as a theoretically tenable position" (p9). However, the appellants' s7 argument failed as they did not establish that the right to privacy and dignity "included a one-person-one-room component." "What is not verified for those outside prison can hardly be taken to be required as a residual right for those within".

    This was a fact of which the court could not take judicial notice. The court was prepared to take judicial notice of the fact "that one-person-one-room is a deep-rooted aspiration of our society, but, beyond that, without sociological evidence, it could not go." (p10)

Protective Custody Inmates (Kent Institution) v Warden of Kent Institution - Unreported, March 5, 1991, No. T-3051-90 (FCTD)

- The plaintiffs sought an interlocutory injunction as a result of double-bunking in the Protective Custody sections of the institution, alleging that their treatment was contrary to ss12 and 15 of the Charter. In Piche v Canada (Solicitor General) (1989) 47 CCC (3d) 495 (FCA) aff'g 17 CCC (3d) 1 (FCTD) prisoners challenged double-bunking at Stoney Mountain Institution alleging it violated their s7 and s12 Charter rights. In that case, the court found that double-bunking was an administrative decision and did not constitute a denial of the principles of fundamental justice (s7), nor did it amount to cruel and unusual punishment (s12).

    With respect to the s15 issue, it was held that even if there was discrimination in bunking between the protective custody population and the general population at Kent Institution, this arose from an administrative policy decision which does not come within the application of s15 of the Charter, which guarantees equal protection "under the law". (See Andrews v Law Society of British Columbia [1989] 1 SCR 1 and 43 and Douglas/Kwantlen Faculty Association v Douglas College (1988) 21 BCLR (2d) 175 at 181-184).

    Piche (supra) was followed in striking out a Statement of Claim and dismissing an application for an interlocutory injunction in circumstances where Protective Custody inmates were alleging that double-bunking violated ss12 and 15 of the Charter. See annotation under s12 of the Charter (infra) at p5144.5 and under s15 of the Charter at p5146.3.

Jackson v Joyceville Penitentiary Disciplinary Tribunal - (1990) 55 CCC (3d) 50 (FCTD)

- After declining to provide a urine sample when ordered to do so by an institutional officer, the inmate was charged and convicted with refusing to obey a lawful order under s39(a) of the Penitentiary Service Regulations. The inmate then sought a declaration that s41. 1 of the Penitentiary Service Regulations was contrary to the Charter.

    In the court's view it was not necessary for the disposition of this case to determine whether the disciplinary court had jurisdiction to determine Charter issues, and declined to decide the Issue. However, the court held that s41.1 violated both ss8 and 7 of the Charter. Section 8 was violated because the regulation contained no standards or criteria to guide staff members and inmates as to when the demand for urine samples would be unreasonable. Requiring an inmate to give a urine sample was held to be an interference with the inmate's bodily integrity and could lead to psychological stress, which would deprive the inmate of security of his person as well. The risk of punishment for failing to comply with a demand for a sample was also an interference with the liberty of the inmate.

    Mr. Justice MacKay noted that though there was a limited privacy and protection of bodily integrity for those in a prison setting, that what remained of prisoner's rights should not be taken away except in accordance with the principles of fundamental justice. The lack of criteria for requiring a specimen combined with an absence of reasonable and probable cause for such an order violates the principles of fundamental justice.

    The court concluded that though the objection of regulation 41.1 related to pressing and substantial societal concerns, it is not a reasonable limitation within s1 of the Charter because it does not include any standards, criteria or circumstances for its application.

Olson v The Queen - Unreported, November 15, 1990, No. T-2603-89 (FCTD) (Butterworths No. 35008)

- The applicant challenged the institutional telephone policy which allowed inmates to make two "legal or business" calls per week, two resocialization calls per month and emergency calls. Calls could be made on a collect basis only. In addition, he challenged specific restrictions on himself which prohibited him from making "legal" phone calls for a month when he was found to have abused the privilege by pretending to call a lawyer when, in fact, he was not. The applicant had made extensive use of the telephone policy and was involved in 19 civil court actions.

    The court, following Re Latham and Solicitor General of Canada et al (1984) 9 DLR (4th) 393 (FCTD) (see annotation at p5135) held that s10(b) did not apply to the applicant's situation. The court further noted that the calls that the applicant wished to make did not relate to the situation such as internal disciplinary charges or possible further loss of residual liberty within the institution. Furthermore, there was no evidence before the court that the restrictions resulted in any prejudice to the applicant. There is no Charter right allowing penitentiary inmates to telephone their lawyers in an unrestricted fashion. The principles of fundamental justice in s7 of the Charter do not require unlimited access to the telephone by penitentiary inmates. While prisoners do not lose all of their civil rights upon incarceration, it is clear that many restrictions necessarily arise upon incarceration, including restrictions on a prisoner's freedom of expression, freedom of association and liberty.

Morin v Saskatoon Correctional Centre et al - Unreported, September 20, 1990, No. 2180/1990 (Sask QB) (Butterworths No. 34701)

- The applicant prisoner was charged with disobeying internal rules of conduct of the respondent facility set up under the Corrections Act of Saskatchewan. Disciplinary Panels for such matters in Saskatchewan are set up under the Correctional Facilities Administration Regulations which are made in accordance with the provisions of the Corrections Act. The applicant had pled guilty to a charge of disobeying internal rules of conduct by being in a state of impairment due to the use of an intoxicant and the Disciplinary Panel ordered that 15 days of his remission be cancelled. Later, he was charged with disobeying internal rules of conduct by fighting. He sought to retain and instruct counsel and the matter was adjourned. However, when the matter came on for re-hearing, he did not attend and was, therefore, found guilty and ten days of his remission was cancelled. The applicant then sought to quash the disciplinary orders on the grounds that the panel was biased and not an impartial and independent tribunal in violation of s11 (d) of the Charter, that he was denied natural justice, that the orders violated s7 of the Charter and that s15 of the Correctional Facilities Administration Regulations was unconstitutional and violated his s7 Charter rights. He claimed that the panel was not independent and impartial because it was composed of persons from within a correctional facility. He also asserted that cancellation of his remission was a "true penal consequence" and that, therefore, the Panel had to be independent like the court. The applications were dismissed. The court held, following Shubley (annotated at p5138.3) that s11 of the Charter did not apply to disciplinary proceedings as they were not criminal in nature and did not impose true penal consequences. The cancellation of remission was merely a loss of privileges and not equivalent to a sentence of imprisonment.

    Section 7 of the Charter did not require the Disciplinary Panel to be composed of person external to the correctional facility or system. "Fundamental justice" does not require an independent tribunal but only requires the panel to be impartial and unbiased in carrying out its duties consistent with natural justice.

    On the issue of "bias", it is not what the applicant believes, but what a reasonable person believes that is determinative. There must be actual circumstances from which such a belief can reasonably be arrived at that the Panel was or would be unfair. There must be a probability, a mere possibility is not sufficient. On the facts before the court, there was no reasonable apprehension of bias that could arise and s 15 of the Regulations was valid.

R v Stewart - Unreported, October 10, 1990, No. 8903-0693 (Alta CA) (Butterworths No. A-1 0797)

- The appellant sought an order in the nature of habeas Corpus with certiorari in aid urging that his rights under s7 of the Chatter were breached by his continued imprisonment following his conviction for first degree murder. The offence was committed before the proclamation of the Criminal Law Amendment Act (No.2) which was proclaimed between his first and second trials. Section 27 of that legislation contained transitional provisions relating to the charges faced by the appellant. A new indictment, which complied with these provisions, was preferred against the appellant and the appellant was convicted after the trial that followed. He was sentenced to life imprisonment without eligibility for parole for 25 years.

    This was a potentially more severe punishment under the new law than he would have faced under the law as it stood at the time of the offence. Had he been convicted at his first trial he would have been liable to imprisonment for life with parole ineligibility for a period of between 10 and 20 years depending on the judge's order. After his second trial, he faced parole ineligibility for 25 years unless he succeeded, after serving 15 years, in an application for judicial review of the period of parole ineligibility under s745 of the Criminal Code.

    The issue was whether Stewart had been correctly tried and convicted according to the law as it stood at the time such that there would be nothing requiring relief or whether he had been improperly tried and convicted such that relief was permissible. The Alberta CA agreed with the trial judge and distinguished Gamble in which the SCC held that the wrong law was applied at the trial. In this case, Stewart was tried in compliance with the transitional provisions and was thus tried and convicted under the "proper law" but not under the law in force at the time the offence was committed. The Court concluded that Gamble cannot be taken to have laid down a principle that Chatter relief must be granted in all pre-Chatter cases where an accused is not tried under the law in force at the time the offence was committed. The principle certainly applies where "the proper law" was "the law in force at the time the offence was committed". However, it does not apply where an accused was tried in pre-Charter days in accordance with a law requiring his trial under a provision different than that in force when the offence was committed. If that were not so, the decision in Gamble would effectively overrule, with- out explicitly saying so, those cases in the Supreme Court of Canada forbidding a retrospective application of the Charter. Gamble does not hold that Charter relief is to be granted whenever the law applied was not that in force at the time the offence was committed, even though the law was properly applied and the offender was properly convict- ed and sentenced.

R v Rogers - Unreported, December 19, 1990, No. CA012590 (BCCA)

- The accused was charged with possession of a weapon for a dangerous purpose and pled guilty to pos- session of a concealed weapon. He had a record of 19 convictions for assault, mischief, theft and drinking/driving offences. His peculiar conduct upon arrest led to his being remanded for psychiatric examination and he was diagnosed a schizophrenic. He had suffered intermittent bouts of severe schizophrenia for some years and though his condition improved with medicine, he had a history of resisting treatment and medication. He was under the care of a doctor and taking the medicine prescribed for him. The accused was sentenced to a one-day jail term and 15 months probation. It was a condition of that probation, pursuant to s737(2)(h) of the Criminal Code, that he undergo whatever psychiatric assessment or treatment probation authorities required. The accused appealed.

    The appeal was allowed. The court held that a probation order compelling a person to take psychiatric treatment or medicine is an unreasonable restraint upon liberty and the security of the person and is contrary to s7 of the Charter. Such a restraint cannot be justified under s1 except in exceptional circumstances which were not present in the circumstances. Other less restrictive means were available to protect the public. The probation terms were varied such that the accused maintain himself in such a condition that his illness would not likely make him dangerous and that, with his consent, he receive treatment and counselling. If he refused to consent to treatment, then he had to report daily to his probation officer.

R v Martell - Unreported, March 19, 1991, No. 172321690A01 (Alta Prov Ct Crim Div)

- On September 23rd, 1990, the accused prisoner at Edmonton Maximum Security Institution was alleged to be "in a condition other than normal" and to have threatened a guard, possessed a syringe and possessed a small amount of hashish. The Royal Canadian Mounted Police became involved in an investigation of the matter on September 26th, 1990. On September 27th, 1990, the accused was charged with four charges, pursuant to s39 of the penitentiary Service Regulations. On the same day, he pled guilty to all four charges, pursuant to the Regulations. He was sentenced to 30 days solitary confinement for being in a condition other than normal, 15 days consecutive for threatening a guard, 15 days concurrent for possession of a syringe and 15 days concurrent for possession of hashish for a total of 45 days solitary confinement. On October 4th, 1990, an Information was sworn, pursuant to the Narcotic Control Act charging him with pos- session of a narcotic, namely, the hashish found in his possession on September 23rd and forming the basis for the offence pursuant to the Penitentiary Service Regulations to which he pled guilty and received 15 days concurrent to the other sentences imposed for the other three charges. The Crown proceeded summarily. By December 18th, 1990 when the Narcotic Control Act charge came to trial, the accused had completed serving the solitary confinement sentence. He was found guilty in the Provincial Court of possession of a narcotic. He then sought a stay of proceedings before sentencing, asserting that he had been previously punished for the same offence and that to punish him a second time would violate s7 of the Charter

    The evidence established that during the 45 days in solitary confinement, the accused was isolated for 23 hours a day without work programs, television or stereo and suffered adverse physical and psychological effects. However, it was noted that the sentence for the possession of hashish was 15 days concurrent to the other sentences of solitary confinement imposed for the other offences.

    The court dismissed the application finding that the rights of the accused protected under s7 of the Charter have not been violated by this "dual procedure". The court followed the decisions of the Supreme Court of Canada in Regina v Shubley (1990) SCR 3,52 CCC (3d) 481 (SCC) and Regina v Wigglesworth (1987) 25 CR 541,37 CCC (3d) 385 (SCC) dealing with s11 (h) of the Charter to be equally applicable to cases arising under s7 of the Charter. The court held these decisions to have more general application and in so doing, relied on the decision of the Supreme Court of Canada in Seifers v The Queen (1980) 52 CCC (2d) 345 at p347 (SCC) to the effect that statements made in judgments by the Supreme Court of Canada are to be considered as statements of the law and not as obiter. Furthermore, the court appeared to interpret the remarks of the court in Shubley and Wigglesworth to be concerned with "procedural fairness" and held that s7 was limited thereto and there was no evidence or submissions alleging that the proceedings were unfair in the circumstances of this case.

    Following Shubley and Wigglesworth, the court held that prison disciplinary proceedings were not, by their nature, criminal proceedings and that, therefore, it was not involved with a situation involving the "same offence". Furthermore, because the 15 days solitary was concurrent to the other penalties, the sentence imposed was not "imposed for the purpose of redressing the wrong done to society at large" and, therefore, did not "involve true penal consequences".

    See also R v Shubley, annotated under s11 of the Charter at p5138.3.

Hay v National Parole Board et al - Unreported, June 24, 1991, No. T2705-90 (FCTD)

- The prisoner, serving a life sentence for kidnapping, sought the following orders:

(1)   certiorari to quash the National Parole Board's decision to deny his application for full parole and unescorted temporary absences, and to deny by failing to consider, his application for day parole;

(2)   mandamus to require the Board to hold a new in-person hearing on his applications for conditional release;

(3)   certiorari to review the program of temporary absences provided to him since the July 1985 Order and Reasons for Decision issued by The Honourable Mr. Justice Muldoon (see annotation under ss7, 9 and 12 of the Charter, s15 of the Penitentiary Act -Unreported, July 12th, 1985, No. T-692-85, (FCTD)); and

(4)   mandamus to require that the Board and the correctional service of Canada provide him with an appropriate program of temporary absences.

    The prisoner, who had been eligible for day parole since 1981 and full parole since 1983 had been denied either on every one of his applications. The most recent refusal was on August 25, 1989 and it is that decision which is attacked here. The prisoner argued in support of his application that the Board's decisions were contrary to the evidence and therefore in excess of jurisdiction and illegal; that the decisions could not have been based on a reasoned and reasonable application of the criteria set out in para 16(1)(a) of the Parole Act; that the decisions breached the common law duty of fairness and s7 of the Charter because the gist of all confidential information was not made available to him; that s7 of the Charter was also violated by Board's failure to consider the applicant for day parole; that the decisions contravene his rights under s9 and s12 of the Charter.

    With respect to the allegation of a breach of the duty to act fairly and s7 of the Charter because the gist of all confidential information was not made available, the court understood that allegation to be withdrawn as the Board had deposed that all information relied on by the Review Panels had been shared with the applicant. The reports filed outlined elements favourable and unfavourable to the applicant. It is not for the court to assess the validity of the numerous tests and reports from psychiatrists and psychologists who do not totally agree amongst themselves. It is for the National Parole Board to determine whether or not it is safe to release the applicant totally or gradually, escorted or unescorted into the community. It is not for the court to second guess the Board with respect to their findings of fact, at least if they appear not to be patently unreasonable,. In matters of judicial review and the Charter generally, the burden is upon the applicant to show that the administrative tribunal has not complied with procedural fairness or has not acted fairly or reasonably. It is not sufficient to demonstrate that the tribunal was not correct in its decisions. The applicant must establish the unreasonableness, arbitrariness or capriciousness of the application of the legislation to his own case. The Court was not satisfied that the Applicant succeeded in doing so in this case, nor that any of the applicant's Charter rights had been breached.

    There was no s7 Charter violation. Section 7 of the Charter does not entitle a prisoner to absolute liberty because he is not in the same position as a person who is charged with a criminal offence who is entitled to absolute liberty. In general, the deprivation of liberty or security of the person of an inmate is not in violation of the principles of fundamental justice. (See Cadieux v Director of Mountain Institution, supra). Following the unanimous decision of the Federal Court of Appeal in Dempsey v The Queen, supra (1987) 80 NR 159 (FCA) "conditional release from incarceration is an enhancement not a deprivation of the measure of liberty the convict has the right to enjoy" (at p160).

    As the prisoner was not arbitrarily detained, there is no s9 violation. Considering the nature of the offences committed by the applicant and the degree of risk to the public underlined in several of the reports, this is not one of the rare instances referred to in the Steele v Mountain Institution, supra [1990] 2 SCR 1385 at p1417 "that a court will find a sentence so grossly disproportionate that it violates s12 of the Charter."

    The prisoner's application was dismissed.

8. Search or seizure - Everyone has the right to be secure against unreasonable search or seizure.

Re Maltby et al and AG Saskatchewan - (1982), 2 CCC (3d) 153 (Sask QB)

- A strip search following a contact visit in a provincial remand detention centre that is conducted to prevent and control the influx of drugs and weapons and other contraband which may pose a threat to the security of the institution is no more than a minimum reasonable requirement and does not violate the right to be secure against unreasonable search and seizure under this section.

Re Soenen and Thomas et al - (1983),8 CCC (3d) 224, 35 CA (3d) 206 (Alta QB)

- When prison officials are searching for weapons or other contraband a requirement that a prisoner be stripped naked and bend over so that there may be a visual .examination of his rectal area does not constitute cruel treatment even if it is unusual and nor does it constitute an unreasonable search in violation of this section. A visual search of the rectum of a person just arrested in the absence of reasonable and probable cause to believe that an object has been concealed anally might be unreasonable and a violation of a reasonable expectation of privacy. However, such a search is not unreasonable and is not a violation of a reasonable expectation of privacy in the case of a pre-trial detainee in a detention facility provided that the visual search is conducted in good faith in a search for weapons or contraband and not for the purpose of punishment. Such searches may be made in the absence of reasonable and probable grounds to believe that the prisoner being searched has concealed an object in his body cavity.

R v Greenwood - Unreported, February 11, 1986, No. CC851712, Vancouver (BC Co Ct)

- An application to exclude evidence under s24(1) of the Charter was dismissed when a male correctional officer requested that two female officers search a visitor to a correctional facility when the male officer had reason to believe that the prisoner had received contraband from a visitor on a prior occasion. The female officers carried out the initial search in a reasonable manner and by the only reasonable method available. While there was some evidence that the search continued after the drugs were found and when circumstances did not require the continued search, nevertheless, assuming the subsequent search to be a violation of the visitor's s8 rights, the court was not persuaded that the admission of the evidence which was obtained on the search prior to the continuing of the search would bring the administration of justice into disrepute. There was no atmosphere of violence, nor a flagrant abuse or violation of rights. The female officers were acting under statutory authority (s18(1) of the BC Correctional Centre Rules and Regulations) to search a person who had voluntarily chosen to enter the secured area of the correctional centre.

Henry v The Queen - (1987) 25 Admin LA 1 (FCTD)

- The plaintiff prisoner sought an injunction to restrain the opening, by penitentiary authorities, of incoming mail addressed to him that was received from lawyers or persons designated as "privileged correspondence". The court held that the opening of mail could be viewed as a "search" within the meaning of s8 of the Charter. Following Hunter v Southam Inc [1984] 2 SCA 145 at 159, the court agreed that the guarantee in s8 goes at least so far as protecting the right of privacy and that it is not primarily designed for the protection of one's own property. The court was unable to find that any limits imposed on the plaintiff prisoner's rights in the form of the opening of private correspondence addressed to him, could be justified under s1 of the Charter. The only relevant "law" affecting mail opening was s9 of the Penitentiary Act which authorized the Governor in Council to make regulations for, among other things, the custody and discipline of inmates, and s28 of the Penitentiary Service Regulations which conferred a broad authority on the Commissioner and the institutional head to order censorship, among other things, for the "security of the institution". In the court's view, s28 of the Penitentiary Regulations could not be relied on as a provision in law which prescribes limits on tights because the criteria for censorship was much too vague. The court further noted that any Commissioner's Directives issued under s29 of the Penitentiary Act cannot be regarded as "law" but are merely internal administrative rules for the guidance of penitentiary staff. The court could not find any sufficient prescription by law of any limitation on the plaintiff's rights. The question as, therefore, limited to a consideration of s8 rights and a determination as to whether or not there had, in fact, been an invation of any right protected by that section through an "unreasonable" search.

    With respect to the plaintiff' claim regarding "solicitor/client correspondence" the evidence established that the plaintiff had received numerous pieces of correspondence in unopened condition and the various pieces of correspondence that he complained about did not contain sufficient identification on the envelope to e able the Visits and Correspondence staff of the institution to determine, wit in the limited time available, that the mail was, in fact, from a lawyer and was or the purpose of giving legal advice. Furthermore, there was no evidence of any improper use of any information derived from the opening of the mail or t at there was any danger of it being so us- ed within the meaning of the decision of the Supreme Court of Canada in Solosky v The Queen [1986] 1 SCR 8 1. Consequently, the court was unable to say that the correctional officers acted unreasonably in opening the inadequately identified correspondence and, therefore, the opening of this mail did not amount to a violation of s8 of the Charter.

    With respect to the plaintiff's claim regarding "privileged correspondence" the court was again unable to say that the correctional officers in using the Commissioner's Directives as a criteria for deciding what originator should be regarded as "privileged correspondent", had acted unreasonably in the circumstances. Furthermore, the rather stringent view which the officers took of identification requirements on the envelopes was not unreasonable in relation to a maximum security institution. me minor inconsistencies in the way that the mail was handled did not prove malice, negligence or a lack of rationality in the procedures for opening mail he lack of adequate identification of this type of mail did not disclose an u reasonable search and consequently, a violation of the plaintiff's s8 rights.

R v Hunter - (1987) 57 CR (3d) 1 (Ont CA)

- At trial, an accused charged with possession of cannabis for the purpose of trafficking sought disclosure of the sealed in- formation behind the search warrant and to exclude the evidence obtained as a result of the execution of the warrant. The trial judge held that disclosure of the information behind the search arrant would reveal the identity of an informer and refused the defence access. Consequently, the defence was unable to make full answer and defence and the evidence obtained from the search could not be admitted. He was, therefore, found not guilty and the Crown appealed. On appeal, a new trial was ordered. The Court of Appeal noted that there is only one exception to the common law principle that information that might tend to identify an informer is privileged and ought not to be disclosed. That exception was where the disclosure of the identity of the informer could help to show that the accused was innocent of the offence. The court held that there should be reasonable disclosure of information used to ill obtain a search warrant if it is needed and requested, even though it may disclose the identity of the informer. The procedure to be followed is that the trial judge should review the information in an attempt to delete any reference as to the identity of the informant. The accused should be provided with enough information to enable the court to determine whether there were reasonable and probable grounds for the issuance of the warrant. After the editing process, if the Crown decides it is still necessary to preserve the privilege and to not proceed or to proceed on the basis of a warrantless search, it will then be up to the trial judge to decide whether or not the evidence should be excluded under s24(2) of the Charter.

    Editorial Note - See also the case comment following the decision in R v Hunter at (1987) 57 CR (3d) 16 entitled "Hunter: Access to Sealed Documents and Informer Privilege" by James W. O'Reilly.

Weatherall v AG Canada et al; Conway v The Queen; Spearman v Disciplinary Tribunal, Collins Bay Penitentiary et al - (1989) 59 CR (3d) 247 (FCTD)

- The plaintiffs, Weatherall and Conway, sought declarations with respect to the legality of the use of female guards in federal penitentiaries and doing personal searches of male inmates or in surveillance of living quarters of male inmates. The plaintiff, Spearman, sought certiorari concerning the legality of female guards doing "frisk searches" of male prisoners.

    With respect to pre-conditions for searches, the court held that there is an element of relativity which must enter into any decision as to the prerequisites for the particular situation of a skin search of an inmate in a correctional institution. Searches of inmates do not require warrants. It is not reasonable to equate the expectation of privacy in a home or office with that in a prison. A convicted inmate cannot reasonably expect anything like the respect for privacy in respect of bodily searches that a non-inmate would normally be entitled to expect. In other words, one of the limitations on his normal rights implicit in conviction and imprisonment is his subjection to searches of his person for the protection of security and good order of the institution and its inmates. Nevertheless, such searches should be subject to some control to ensure that they are truly used for the purposes which justify the infringement of normal human rights. The court concluded that "while there is a place for routine skin searches without the need for prior authorization specific to that search, and without the need for showing reasonable and probable cause to suspect the particular inmate searched to be concealing some forbidden item, the circumstances in which such routine searches are authorized should be laid down by regulation. Such rules will have to be, in themselves, reasonable in identifying situations in which, by reason of probability of, or opportunity for, concealment of contraband, or the need for deterrence of smuggling, a routine strip search is justified in the public interest. As for non-routine searches, I can see no reason why there should not also be some legal rules pro- viding for such situations. There might be, for example, a rule providing that, in case of an immediate and specific security or enforcement problem, a general skin search could be conducted of all or a certain group of inmates. This could arise, for example, where an inmate has been stabbed in the cell block and it is thought necessary to search all inmates there for the weapon. But where, "'- apart from such routine or general skin searches, individual inmates are to be " skin searched, there should be a rule requiring those conducting the search to have reasonable and probable cause for believing that the inmate in question is concealing some prohibited matter on his person. Where time or circumstances do not permit those inducting non-routine searches to obtain authority from a superior office, there should be some meaningful requirement of review by such superior officer after the event."

    In the courts view, skin searches (but not frisk searches) are so intrusive of human dignity and privacy that there must be some material laid down for their use: with respect to defining circumstances where routine individual searches, non-routine general searches, and non-routine individual searches are justified; and with respect to requiring that reasonable and probable cause be demonstrated to a superior either before or after all non-routine searches. In the court's view, s41(2)(c) of the Penitentiary Service Regulations did not meet the requirements as the regulation did not establish a sufficiently objective pre-condition for any search. The regulation has the force of law and did not adopt, by reference, the criteria provided in the Commissioner's Directive which did not have the force of Iaw.

    With respect to the manner of conducting searches and, in particular, with respect to the reasonability of the manner in which a search, otherwise properly authorized is carried out, the curt was of the view that reasonability in execution includes respect for nor al standards of public decency to the extent that the constraints implicit in he situation reasonably permit. In the circumstances, the searches involved involuntary exposure of the body to fairly close and deliberate viewing by member of the opposite sex. The court was satisfied that in most circumstances, this type of search would offend normal standards of public decency and would not be justified even in a prison context, absent an emergency situation. Again, the court found that regulation 41(2)(c) of the Penitentiary Service Regulations did not adequately limit the power of strip searching in this reward. The clear implication of s41(3) was that male persons could be searched by female persons. Again, the Commissioner's Directives which purported to limit cross-gender searches of males to "urgent circumstances" did not have the force of law and, therefore, did not limit the general legal power in s41.

    With respect to frisk searches, the court concluded that the nature of the frisk searches in question in the proceedings did not infringe rights protected by s8 of the Charter. In the court view, such an invasion of privacy was, by any standard of measurement, trial and "trivial or unsubstantial" burdens do not give rise to Charter violations. Even if seen as something more than trivial, the very limited intrusion on privy in the circumstances was more than off-set by the public interest in the n ed for adequate security in the institutions and maintaining that security, as well as the important public interest to be served in the employment of women in federal penal institutions. In the court's view, to deny female guards the ability to frisk search would essentially preclude their employment.

    With respect to the complaint 0 the presence of female guards in the living areas of male inmates where they might view male inmates in lavatory facilities or in states of undress, the court felt there were reasonable alter- natives to the kind of intrusion of privacy which the system complained of permitted. Once again, the court felt hat s8 of the Charter cannot be invoked to remedy trivial detractions from privacy. On the one hand, inmates cannot reasonably expect to be free from surveillance and if they have concerns about being seen in a state of partial or complete nudity or performing some bodily function, they must be expected to take certain steps within their means to minimize such possibilities. On the other hand, the court felt it was an unnecessary intrusion on human dignity, in the absence of an emergency, for a female officer to view inmates in their cells in certain circumstances. In the court's view, absent an emergency, female officers should not be in a position to make unannounced or unscheduled visual examinations of occupied cells of male inmates. When female guards make observations in cells at “count" time, inmates are well aware of those times and can avoid being in embarrassing positions at those times when they know female officers may participate in the count. With respect to individual visits to the cell of the particular inmate, it was indicated in the evidence that the female officer approaching the cell would announce her presence before looking in and that this was properly respectful of the privacy rights of the inmate without detracting from prison management. On the other hand, where the visits are random and unannounced, the court felt that a prohibition on such viewing by female guards would not cause serious problems in the administration or be significantly harmful to the career opportunities of female officers. The court felt there were two reasonable alternatives in such circumstances.

    If a female officer is conducting the random, unscheduled viewing, here presence can be announced at the commencement of the search or otherwise male officers can to the actual walk through the cellblocks using female officers to watch from the vestibule as the other officer conducts the actual search. Furthermore, the court felt this would only be necessary during normal waking hours. If a prisoner chooses to leave himself exposed during the normal hours of sleep he can be taken to run the risk of cross-gender viewing.

AG Canada v Weatherall - (1989) 65 CR (3d) 27 (FCA)

- Varying the lower court decision in the Federal Court of Appeal found that 541 (2) (c) of the Penitentiary Service Regulations infringes a male inmate's s8 Charter right to the extent that it authorizes the strip searching of inmates in the presence of female corrections staff in non-emergency situations.

    The court stated at p21 that:

The authority contained in paragraph 41 (2)(a) is limited to situations where a member considers that the action is "reasonable" either to detect contraband or to maintain the good order of the institution. In my opinion, such searches must always be bona fide. They cannot be used with the intent of intimidating, humiliating or harassing inmates or of inflicting punishment. A meaningful post-search review process should also be available so that any abuses may be detected at an early opportunity.

    The court held that on the pleadings, the strip searching of inmates in general had not been put in issue.

Conway v Canada (Attorney General) - (1990) 10 WCB (2d) 250 (FCA); rev'g (1988) 3 WCB (2d) 41 (FCTD)

- Unannounced surveillance of male inmates by female guards is not an unreasonable search by the mere fact that it is being carried out by a female. The public interest served by having female guards is not only directed at improving the lot of women, but is also concerned with the enhancement of the quality of life in prisons and the rehabilitation of inmates. Any deterioration in the workload of women guards might bring more loss the prison system than the alleged intrusion of privacy claimed by the applicant. The court appeared to accept that the goals pursued by the state overrode the concerns of the applicant and accordingly s8 of the Charter was not violated.

    In concurring reasons Marceau JA said that a mere viewing or surveillance could not constitute a search within the meaning of s8. But, if a search was unreasonable because it offended a reasonable expectation of privacy, it could not be rendered reasonable by the fact that it created employment.

Warriner v Disciplinary Tribunal of Kingston Penitentiary - Unreported, December 7,1990, No. T-963-89 (FCTD) (Butterworths No. 35161)

- The prisoner brought an application for certiorari to quash the disciplinary tribunal's decision which found him guilty of a disciplinary offence (disobeying a lawful order). He claimed that the lawful order, to submit to a rectal cavity search, was an unreasonable search and violated s8 of the Charter.

    Upon completion of a contact visit at the institution, the guards ordered a cavity search of the prisoner, believing that the visitor passed contraband to the prisoner. The prisoner, who cooperated during two less intrusive searches conducted immediately after the visit, refused to comply.

    In the first determining if the search was authorized by law, the court found that authority for the strip search demand comes from the commissioner's directives which are not considered to have the force of law. However, although the regulations (s41 of the Penitentiary Service Regulations) do not place a limitation on the exercise of the authority to search, the commissioner is free to establish guidelines for such searches as long as the search falls within the general purposes of the regulation. As long as the search is within the allowable limits bf the act and regulations, then the search is authorized by law.

    Section 7 of the Charter (security to the person) is not applicable to issues which arise in relation to this search as it is general in nature. The more specific provisions of s8 (search and seizure) would apply.

    In analyzing a potential s8 violation, the Court found that: 1. the search was authorized by law in that the regulations deal specifically with searches of inmates; and 2. there is no issue as to the reasonableness of the manner of the search as it was never carried out. In assessing the reasonableness of the law itself, the court found that the expectation of privacy is lower in the prison setting than within the community. Searches and inspections are common and necessary in a maximum-security prison. The evidence before the court from the Warden and an institutional physician to the effect that this procedure was required for the safety of inmates and staff and the good order of the institution, was uncontradicted and no evidence before the court questioned or rebutted their conclusions or beliefs. Neither of them was examined in relation to their affidavits. Consequently, the court concluded that the search there required, namely, an order to bend over to permit visual inspection of the anal cavity area as part of a strip search instituted as a matter of routine following an open contact visit, in light of the reasons underlying the establishment of that routine, does not constitute an unreasonable search contrary to s8 of the Canadian Charter of Rights and Freedoms.

Jackson v Joyceville Penitentiary Disciplinary Tribunal - (1990) 55 CCC (3d) 50 (FCTD)

- After declining to provide a urine sample when ordered to do so by an institutional officer, the inmate was charged and convicted with refusing to obey a lawful order under s39(a) of the Penitentiary Service Regulations. The inmate then sought a declaration that s41. 1 of the Penitentiary Service Regulations was contrary to the Charter.

    In the court's view it was not necessary for the disposition of this case to determine whether the disciplinary court had jurisdiction to determine Charter issues, and declined to decide the issue. However, the court held that s41. 1 violated both ss8 and 7 of the Charter. Section 8 was violated because the regulation contained no standards or criteria to guide staff members and inmates as to when the demand for urine samples would be unreasonable. Requiring an inmate to give a urine sample was held to be an interference with the inmate's bodily integrity and could lead to psychological stress, which would deprive the inmate of security of his person as well. The risk of punishment for failing to comply with a demand for a sample was also an interference with the liberty of the inmate.

    Mr. Justice MacKay noted that though there was a limited privacy and protection of bodily integrity for those in a prison setting, that what remained of prisoner's rights should not be taken away except in accordance with the principles of fundamental justice. The lack of criteria for requiring a specimen combined with an absence of reasonable and probable cause for such an order violates the principles of fundamental justice.

    The court concluded that though the objection of regulation 41.1 related to pressing and substantial societal concerns, it is not a reasonable limitation within s1 of the Charter because it does not include any standards, criteria or circumstances for its application.

R v Rodney - Unreported, May 15, 1991, No. CC910259, Vancouver Registry (BCSC) (Butterworths No. 35639)

- In a voir dire during the trial the principal issue raised was the admissibility of a portion of a telephone call made by the accused from a telephone in the Lower Mainland Regional Correctional Centre where the prisoner was in custody awaiting trial. At the time of the call, Rodney had been in the institution for about six months. In addition to various signs indicating that "all personal calls may be monitored," all prisoners were given two pamphlets upon admission: one was an information guide and the other a copy of the Correctional Centre Rules and Regulations. The guide contained a section which read, in part:

Privileged

Phone calls, except to those persons designated as "privileged" as defined in Correctional Centre Rules and Regulations, may be monitored.

    The Rules provided in part:

Monitoring of Communications:

43.1 (1) Where a director or an officer authorized by the director has first advised the inmate that oral communication or telecommunication may be monitored the director or an officer authorized by the director may monitor such communication between an inmate and another person as the director believes may disclose a threat to the management, operation, discipline or security of the correctional centre.

    One evening the prisoner asked a corrections officer to place a call for him. The guard placed the call then handed the handset to the prisoner who, taking advantage of the long extension cord, took the telephone to a shower stall where he then had his conversation. From some distance away the guard heard the prisoner become agitated or excited and decided that the call should be monitored. He activated the telephone monitoring system and listened to at least part of the conversation and made notes. He subsequently enlarged on these and a full report was handed to the wing's director and ultimately to the RCMP.

    The Crown argued that the evidence was admissible because the prisoner could not have had a reasonable expectation of privacy within the meaning of s189 of the Criminal Code which would otherwise render the evidence inadmissible. Secondly, even if the accused's s8 Charter rights were infringed by the intercept, the evidence should not be excluded on the basis of s24(2) of the Charter as the administration of justice would not be brought into disrepute. The prisoner, on the other hand, argued that the evidence was inadmissible because it failed the precondition test of admissibility set out in s189 of the Code or, alternatively, that the interception infringed his s8 Charter rights and the evidence should therefore be excluded on the basis of s24(2).

    The court held that it is clear that a "person confined to prison retains all of his civil rights, other than those expressly or impliedly taken from him by law". Solosky v R (1980) 50 CCC (2d) 495 at p510. Because prisoners' privacy rights have not been expressly taken away by law, it appears reasonable to conclude that they are entitled to expectations of privacy which vary depending on the circumstances. In Weatherall v Canada (AG) (1987) 59 CR (3d) 247, (FCTD) and Jackson v Joyceville Penitentiary Disciplinary Tribunal (1990) 55 CCC (3d) 50, supra, constitutional challenges to sections of the Penitentiary Service Regulations succeeded because the regulations contained no standards, criteria or circumstances relating to their application for the guidance of staff or prisoners to ensure that their application would not be unreasonable. In neither case was it suggested that the institution did not have power or should not have had the power to intrude on the privacy interests of prisoners where institutional security was concerned. The focus of the reviews was the exercise of those powers. Both cases held that if a rule does not satisfy the standards required by s8 of the Charter it does not matter if the prisoner had notice of it or not.

    It was not disputed on the facts of this case that the prison authorities failed to comply with s189(1) of the Code because there was no prior judicial authorization obtained, nor did either of the parties to the telephone conversation consent to the interception. In light of the Supreme Court of Canada decision in R v Duarte (1990) 74 CR (3d) 281, which held that unauthorized electronic audio surveillance violates s8 of the Charter, the interception of the private oral communication in this case violated the prisoner's s8 right to be secure against unreasonable search and seizure.

    Furthermore, the Court found that even if the prisoner did not have a reasonable expectation of privacy, the manner in which the interception was carried out also offends s8 of the Charter because the rule contains no express criteria for the interception. There must be a balance struck between the public interest in the safety and security of the penal institution and the public interest in recognizing the very limited expectations of privacy which prisoners have. The very limited privacy interest that inmates have with regard to telephone contact with the outside world must not be interfered with except when security interests prevail. The regulations as they presently read provide no standard, guideline or direction for the interception. The power is arguably over-broad in that it is absolute. It can be exercised against all inmates at any time for whatever purpose. There is no need for a guard to establish reasonable and probable grounds and he can act on suspicion or whim. The regulations should be more precise. Prisoners and staff should have some guidance which indicates in a general way when monitoring will occur.

    On these facts, the Court found that the interception by the guard did not comply with the criteria outlined in the rule itself. The rule gives the requisite authority to intercept conversations between a prisoner arid another "as the director believes may disclose a threat..." The rule requires that the director or a person acting in his capacity have the belief and it is apparently not sufficient if the guard has the belief. There was no evidence that the guard contacted the director or a person acting in his capacity before intercepting the call. The guard acted without jurisdiction and as such the interception was an unreasonable search and seizure within the meaning of s8 of the Charter.

    Having found the s8 breach the Court concluded that the evidence of the intercepted call, containing as it did, incriminating statements, should be excluded on the basis of s24(2) of the Charter as its admission would render the trial unfair and bring the administration of justice into disrepute.

9. Detention or imprisonment - Everyone has the right not to be arbitrarily detained or imprisoned.

R v Lyons - Unreported, January 30,1984, No. 8713 (NS Co Ct)

- The applicability of the dangerous offender provisions are not arbitrary, bearing in mind the built-in precautions requiring the consent of the highest office of the Crown or his lawful deputy. The word "arbitrarily" means without a good reason in the sense that it is unreasonable, capricious, unjustifiable and applied purely by chance.

Re Mitchell and The Queen - (1983) 42 OR (2d) 481 (HC)

- The applicant failed to establish a prima facie violation of his right under this section as no evidence was adduced by him as to what criteria the National Parole Board in fact employed in reviewing his detention. The applicant was a person who had been declared a habitual criminal and sentenced to preventative detention under the old provisions of the Code since repealed and replaced by the Dangerous Offender pro- visions. However, s695.1(2) of the Code required the National Parole Board to review the applicant's condition, history and circumstances once every year for the purpose of determining whether he should be granted parole. Section 10(1)(a) of the Parole Act sets out clearly defined standards to guide the Board in making that decision. Consequently, there was nothing inherently capricious or unreasonable about the procedure and in the absence of evidence as to what criteria the Board in fact employed in reviewing the applicant's detention, the court could not find that his continued detention contravened s9 of the Charter. Simply because a statute sets out a specific procedure does not necessarily mean that the procedures are free from attack under s9. The procedure itself must be scrutinized to determine whether or not it is arbitrary in the sense of being capricious, unreasonable or unjustifiable.

    See also Editorial Note with respect to decisions of independent chairpersons on the affect of s7 and the right to counsel holding that s7 either does not apply or if it does apply it does not automatically provide a right either expressly or impliedly to counsel in disciplinary hearings, annotated under s39 of the Penitentiary Service Regulations, infra.

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

- It was held that an application by a prisoner to quash transfers to administrative segregation in a Special Handling Unit after being a model prisoner and then being affected by a new policy directive applying such additional detention, did not amount to arbitrary detention or imprisonment.

Dankoski v Warden of William Head Institution - Unreported, June 28, 1985, No. 851 1552 (BCSC)

- Where a prisoner applied for recredit of remission under s20(3) of the Parole Act after revocation of his parole, and the Parole Board communicated to the prisoner that they had decided that he would be recredited with 105 days, since the prisoner remained in custody after the time for release counting the recredit, that continued detention or imprisonment was arbitrary and the prisoner was ordered released forthwith on mandatory supervision until warrant expiry.

Hay v National Parole Board et al - Unreported, July 12, 1985, No. T -692-85 (FCTD)

- A prisoner who had earned a transfer to minimum security was suddenly, due to a change in policy affecting a class of prisoners, transferred back to maximum security. The court quashed the decision holding that the transfer back to the penitentiary as a result of a policy and due to no fault or misconduct on the part of the prisoner, was arbitrary, cruel and unusual treatment or punishment and unfair and in derogation of the principles of natural justice and therefore s7 of the Charter.

    See also MacDonald v National Parole Board [1986] 3 FC 157 (FCTD) undJr Parole Act, s6.

Maxie v National Parole Board - (1985) 47 CR (3d) 22 (FCTD)

- S20 of the Parole Act was considered in relation to this section of the Charter and was found not to authorize arbitrary detention or imprisonment, either in the circumstances of that particular case or in looking generally at the statutory provisions as a whole. See detailed annotation under s20 of the Parole Act.

Maxie v National Parole Board - (1986) 55 CR 3d) 143 (FCA)

- On appeal, the Court of Appeal affirmed the decision of the Trial Division. On the facts there was a sufficient basis for a decision by the Board to revoke the applicant's mandatory supervision and declined to re-credit any of the lost remission. There was no basis on the evidence for suggesting that the decision was not made by the use of appropriate criteria. The onus is on the applicant to establish something illegal or erroneous about the decision and it is not to be presumed that the Board acted improperly. There was no basis for concluding that the Board's decision or its consequences are arbitrary. In the circumstances it was not unreasonable or arbitrary capricious for the Board to deny any re-credit of remission. It was to be pre med that the Board did not consider and reach a conclusion on that question following appropriate criteria.

Re Evans and The Queen - (1987) 30 CCC (3d) 13 (Ont CA)

- On appeal, the constitutionality of the new gating ss15.1 through 15.6 of the Parole Act was affirmed. The intent of Parliament to make this legislation retrospective or retroactive is clear. The legislation does discern itself with depriving an inmate of his right to "liberty" within the meaning of s of the Charter, but it does not authorize such a deprivation in breach of the "principles of fundamental justice". The sections simply give the Parole Bard the power to change the degree of supervision required in circumstances within the legislative guidelines and criteria. They do not change the sentence, nor impose an additional penalty. They do no more than change the manner or condition under which certain inmates would serve the balance of their sentence. However, before such a change can be effected, a procedural and substantive safeguard established by the Act must be complied with. They are designed to ensure a fair procedure and protect against arbitrary determination of rights. The legislative scheme does not violate s7 of the Charter, nor does it authorize the imposition of arbitrary detention. Section 1 of the Charter can be resorted to without hesitation if necessary.

Pilon et al v Yeomans - [1984] 2 FC 932 (TD)

- An application to quash a transfer from medium security to maximum security and for mandamus to compel retransfer on grounds that the decision violated ss7 and 9 of the Charter or, alternatively, the principles of procedural fairness, was dismissed. The Act or Regulations do not mandatorily require a full-scale hearing as a prelude to an administrative decision to transfer. The applicants did not avail themselves of the opportunity to respond to the notice of transfer. They were fully informed of the reasons for transfer in conformity with the Commissioner's Directives. The administrative decision to transfer the applicants did not constitute, in the circumstances, a deprivation of their right to life, liberty and the security of the person guaranteed by s7, nor did the implementation of the transfer constitute arbitrary detention or imprisonment, contrary to s9. There was no obligation to afford the applicant a hearing with respect to the transfer. Restrictions and limitations placed on prisoners for security reasons such as a transfer to a more secure institution are permissible under s1 of the Charter.

R v Marshall - Unreported, April 25, 1984 (Ont HC)

- A failure to comply with s454(2) of the Criminal Code by failing to ensure the accused's attendance before the Justice of the Peace for an identity hearing and failing to provide for the accused's release within 6 days unless a s461 warrant was executed affects the accused's liberty and amounts to arbitrary detention contrary to ss7 and 9 of the Charter and will result in an appropriate and just remedy being granted under s24(1).

Logan v Director of William Head Institution and National Parole Board - Unreported, May 30,1986, No.86/1307, Victoria (BCSC)

- The imposition of mandatory supervision with terms and conditions followed by the revocation thereof does not result in arbitrary detention under this section. The granting of remission by statute is a benefit but does not result in a cancelling or expunging of the sentence imposed by the court.

Hay v National Parole Board et al - Unreported, June 24, 1991, No. T-2705-90 (FCTD)

- See annotation on p5130.9 under s7 of the Charter.

10. Arrest or detention - Everyone has the right on arrest or detention

to be informed promptly of the reasons therefore;

to retain and instruct counsel without delay and to be informed of that right; and

to have the validity of the detention determined by way of habeas corpus and to be released if the detention is not lawful.

Latham v Solicitor General of Canada et al - (1984) 12 CCC (3d) 9 (FCTD)

- Section 10(b) of the Charter does not apply to the circumstances but only covers situations involving initial arrest or detention. Otherwise, in the context of prisons there would be a continuing duty, day by day, for prison authorities to advise inmates of their right to counsel. However, the guarantee in s7 of the Charter requires that a parolee should have every reasonable opportunity to be represented by counsel at a revocation hearing. The consequences of revocation indicate that a fair procedure requires that such an inmate should have counsel if he so wishes and if he can find counsel willing to serve. Sufficient time should be assured to him to make all reasonable efforts to achieve this. There was no denial of counsel by the Board on the facts and the decision here could not be quashed on the ground of failure to notify him of his right or a denial of that right. However, the Board cannot remain indifferent as to whether a parolee has counselor not in such circumstances. It has a duty to provide a hearing which is fair and the presence of counsel in a matter of this gravity will be an important factor in assuring such fair process. If the Board proceeds in future with hearings such as these involving such grave consequences and is not able to demonstrate that it took some initiative to give the parolee every reasonable opportunity to retain counsel, the integrity of its processes will, in the court's view, be vulnerable to attack on the ground of denial of fairness.

Williams v Regional Transfer Board, Prairie Region (Can) - Unreported, September 24, 1990, No. T -1505-90 (FCTD) (Butterworths No. 34706)

- After a knife fight at Edmonton Institution, the warden ordered a general lock down. The applicant and others refused to obey the order and obstructed guards in the course of their duties. The warden felt the applicant demonstrated violent behaviour and posed a serious risk to the safety of the other prisoners and staff. He was notified of the involuntary transfer which was being ordered on an emergency basis. His request for counsel was denied at that time. The prisoner sought to quash the decision to transfer, alleging among other grounds, that his Charter s10(b) right to consult with counsel had been violated. The Court held that the Charter right to counsel only applies upon initial arrest or detention. There is no absolute right of prisoners who are detained on an emergency basis to access counsel.

Gochanour v Legal Aid Society of Alberta et al - Unreported, April 25, 1990 No. 8903-2070-C5, Edmonton (Alta OB) (Butterworths No. A-10696); (1990) 9 WCB (2d) 650

- The applicant requested the court to compel the Legal Aid Society of Alberta to appoint counsel to represent him in applications for judicial review of a disciplinary court conviction. Andrekson J dismissed the application in brief reasons stating that (p7):

No specific authority was produced to indicate that the Court has jurisdiction to overrule a decision of the Appeals Committee of the Legal Aid Society. The Legal Aid Society is incorporated under the Societies Act RSA 1980 cS-18. It is not a public body. Neither its function nor the rights of legal aid applicants are enshrined in legislation. This suggests that the Society is not subject to public scrutiny or the general jurisdiction of the Court. For these reasons I will not consider the applicant's claim that the Legal Aid Society's decision to deny him legal services was ultra vires and that on a fair and Proper consideration of his application he would fall within the criteria for coverage under the Legal Aid Rules. Nor will I consider as a remedy, an order compelling the Society to provide such assistance.

The court also refused to directly order the appointment of publicly funded counsel.

    …..there is not an absolute right to Counsel. The right only arises within the context of the right to a fair hearing. The Court found prison disciplinary hearings to be of a quasi-criminal nature and not classified solely as civil proceedings, as the person is subject to disciplinary confinement. The legal principles respecting an accused's right to counsel apply in this situation. The Court has an inherent power to appoint counsel in a proper case as part of its duty to ensure a fair trial. The court indicates the following criteria should be used to determine whether publicly funded counsel should be appointed:

(1)   Education level attained by applicant;

(2)   Complexity of the matters in issue;

(3)   Seriousness of the charges;

(4)   Is counsel required to properly marshall evidence or handle procedural difficulties;

(5)   Could a term of imprisonment or disciplinary confinement result;

(6)   Applicant's financial resources; and

(7)   Whether or not a legal aid certificate might be granted in the circumstances.

    However, it is up to the applicant td convince the Court that the matters are serious and complex enough to warrant counsel's assistance in ensuring a fair hearing.

    In this case, the issue is not complicated and the penalty is not severe enough to meet this test. The applicant has the capacity to understand the proceedings and has been able to communicate and adequately represent himself. Accordingly, there has not been a violation of s7 of the Charter in this instance.

Robinson v The Queen; Dolejs and The Queen - Unreported, October 27, 1989, Nos. 18701, 18882, 19266 (Alta CA)

- The applicants alleged an unconditional, Charter protected and fundamental rights of the supply of appeal books and the assistance of counsel in their appeals. The court undertook a careful historical review of the appellate process. Mr. Justice McClung writing for the court said that (p29-30):

The Canadian legal experience, influenced as it is by the appellate traditions of the United Kingdom, and within its own legislative consensus, does not supply an unqualified right of appeal from convictions for offences tried by indictment. Such a right takes no support from statute and will not be supplied by the Canadian Charter of Rights and Freedoms. I therefore, do not see how a sharply qualified, often merely permissive, right of appeal from conviction can be braided to an unqualified right to state-funded counsel to advance it.

    The Alberta Court of Appeal also held that there is no right to state funded appeal books. Although transcripts are the basis of appeals (pp39-40):

...unless there is entitlement to it by statute, or the payment of the fee for its preparation, that transcript has never been given to a convicted appellant upon his demand. If legal aid (including that available under section 684) is declined, the appellant remains responsible for the cost. To urge otherwise, as a principle of fundamental justice, is not historically supportable.

R v Storrey - (1990) 53 CCC (3d) 316 (SCC)

- The appellant was picked up by the police almost one week after the incidents he was ultimately charged with occurred. He was then kept in custody for 18 hours until he was formally charged and brought before a justice of the peace. The police officer said that the delay in laying the formal charge was caused by the length of time it took the victims to attend at the police station for a line-up to see if they could identify their assailant.

    A unanimous Supreme Court of Canada held that the elapsed time of 18 hours the accused remained in custody without being charged was not unreasonable in the circumstances, and that there was no violation of s9 of the Charter. The identification parade was the fairest means of identifying the assailant and it was necessary to make arrangements to have the victims transported from the United States back to Canada to attend the line-up.

    As the arrest took place at 7:25 pm it was unlikely that the victims could be found and brought to the line-up before the next morning. The police also ensured that the appellant was taken before the justice of the peace immediately following the line-up.

    See also Ibrahim v Disciplinary Tribunal of Montee St-Francois Institution et al - Unreported, November 4, 1985, No. T-1325-85 (FCTD) under s39 of Penitentiary Service Regulations at p952.1.

Olson v The Queen - Unreported, November 15, 1990, No. T-2603-89 (FCTD) (Butterworths No. 35008)

- The applicant challenged the institutional telephone policy which allowed inmates to make two "legal or business" calls per week, two resocialization calls per month and emergency calls. Calls could be made on a collect basis only. In addition, he challenged specific restrictions on himself which prohibited him from making "legal" phone calls for a month when he was found to have abused the privilege by pretending to call a lawyer when, in fact, he was not. The applicant had made extensive use of the telephone policy and was involved in 19 civil court actions.

    The court, following Re Latham and Solicitor General of Canada et al (1984) 9 DLR (4th) 393 (FCTD) (see annotation at p5135) held that s10(b) did not apply to the applicant's situation. The court further noted that the calls that the applicant wished to make did not relate to the situation such as internal disciplinary charges or possible further loss of residual liberty within the institution. Furthermore, there was no evidence before the court that the restrictions resulted in any prejudice to the applicant. There is no Charter right allowing penitentiary inmates to telephone their lawyers in an unrestricted fashion. The principles of fundamental justice in s7 of the Charter do not require unlimited access to the telephone by penitentiary inmates. While prisoners do not lose all of their civil rights upon incarceration, it is clear that many restrictions necessarily arise upon incarceration, including restrictions on a prisoner's freedom of expression, freedom of association and liberty.

R v Olson - Unreported, September 23, 1987 (Ont CA)

- Though the right to have the validity of one's detention determined by way of habeas corpus is guaranteed by s10(c) of the Charter, the procedures with respect to the writ, at common law, have not changed. The court below "ad dismissed the application, holding that the material filed in support of the application did not appear to show "reasonable and probable grounds", nor did there appear to be any basis for the various alleged Charter violations. The Court of Appeal, while accepting that s24(1) and s10(c) of the Charter does not give an applicant a right to appear personally, and while agreeing that the court below had jurisdiction to proceed as it did, nevertheless, the Court of Appeal felt that in view of the material filed, there I was a serious matter to consider and the court below should have directed that the applicant be brought before him to argue the case as though the writ had been issued or, alternatively, to issue the writ and afford the applicant the opportunity to appear and respond to the submissions of his gaoler on the hearing on return of the writ. In the Court of Appeal’s view, it was not good enough to leave the matter by denying the applicant an opportunity to be heard. The Court of Appeal then proceeded to hear the entire matter instead of directing that the writ issue and the parties appeared before a single judge to hear their submissions. After a complete review of the circumstances, the Court of Appeal dismissed the applicant's appeal on the merits. While the Court of Appeal held that the procedures in relation to the writ of habeas corpus had not changed, it accepted that the scope of habeas corpus has been extended to the extent that the writ will issue to review something less than a total deprivation of liberty following the decisions of the Supreme Court of Canada in Cardinal and Oswald v Director of Kent Institution [1985] 2 SCA 643; Morin v National Special Handling Unit Review Committee [1985] 2 SCA 662; and R v Miller [1985] 2 SCA 613.

Gamble v The Queen - [1988] 2 SCR 595 (SCC)

- The fact that a person has been convicted and sentenced in one province and is then detained in another province does not deprive the superior courts of the province in which the person is detained from exercising its traditional jurisdiction 10 issue a writ of habeas corpus ad subjiciendum to those in the province detaining a person in the province for the purpose of reviewing the legality of that detention or confinement. The courts of the province where the detention exists have jurisdiction over the subject matter, and the person and they may, under the broad provisions of s24(1) of the Charter, grant such relief as it is within their jurisdiction to grant and as they consider appropriate and just in the circumstances, Mills v The Queen [1986] 1 SCA 863.

    "The remedy of habeas corpus ad subjiciendum has traditionally run from the courts of the jurisdiction which the person seeking the review of the legality of his or her detention is confined: R v Riel (1885) 2 Man LA 302 (Man QB); Ex Parte Stather (1886) 25 NBA 374 (NBSC); R v Holmes [1932] 3 WWA 76 (Man KB); LaFlamme v Renaud (1945) 84 CCC 153 (Que SC)."

    "The commentators seem to agree that habeas corpus proceedings can be pursued in the courts of the province of the alleged illegal detention: See G. Letourneau, The Prerogative Writs in Canadian Criminal Law and Procedure (1976) at pp310-312; G.A. Cameron Harvey, The Law of Habeas Corpus in Canada (1974) at pp66 ff; A.J. Sharp, The Law of Habeas Corpus (1976) at p191, n5."

    "The traditional concerns regarding the ready availability of habeas corpus to prisoners in the jurisdiction in which they are confined are accentuated by the crucial role that superior courts play under s24(1) of the Charter as courts with "constant complete and concurrent jurisdiction for s24(1) applications": See R v Rahey [1987] 1 SCA 588, at pp603-604 as my colleague, Lamer, J pointed out in Mills at p899:

    'The superior courts of our country have always demonstrated the greatest of
    flexibility as regards procedure, acknowledging that it is there to guarantee rights
    and not to hinder them.

Superior courts would needlessly hinder the enforcement of rights if they refuse to hear habeas corpus applications from prisoners detained within their jurisdiction."

    "The superior courts do unquestionably have a discretion to decline to exercise their jurisdiction if the normal trial and appeal process is better suited to vindicate the interests at stake (Re Krakowski and The Queen (1983) 4 CCC (3d) 188 (Ont CA); Re Anson and The Queen (1983) 4 CCC (3d) 119 (BCCA)) but this discretion should, in my view, be exercised with due regard to the constitutionally mandated need to provide prompt and effective enforcement of Charter rights especially when, as is the case here, an ongoing and continuing violation of a Charter right is alleged and the superior court is being asked to exercise its traditional function to determine the legality of an ongoing deprivation of liberty. This court has previously recognized the importance of the local accessibility of this remedy of habeas corpus because of the traditional role of the court as a safeguard of the liberty of the subject: R v Miller [1985] 2 SCR 613, at pp624-25. Relief in the form of habeas corpus should not be withheld for reasons of mere convenience."

    "The respondent in his written submissions asserts not only that the courts of Ontario do not have jurisdiction to entertain the appellant's application but, in the alternative, that the appellant must seek relief in the Federal Court. This alternative claim is without merit in light of this court's recent decisions affirming and upholding the traditional jurisdiction of provincial superior courts in habeas corpus matters: see R v Miller, supra, at pp624-25; Cardinal v Director of Kent Institution [1985] 2 SCR 643; Morin v National Special Handling Unit Review Committee [1985] 2 SCR 662; Dumas v Leclerc Institution [1986] 2 SCR 459; Argentina v Mellino [1987] 1 SCR 536, at p557. Although the respondent is quite right in pointing out that the Charter does not create a "parallel system for the ad- ministration of Charter rights over and above the machinery already available for the administration of justice" and that the court's new responsibilities under s24(1) can "be fitted into the existing scheme of Canadian legal procedure" (Mills, at pp971 and 953), he does no credit to that existing system by attempting to place procedural roadblocks in the way of someone like the appellant who is seeking to vindicate one of the citizens' most fundamental rights in the traditional and appropriate forum."

    Habeas corpus is not allowed to be used to circumvent the ordinary appeal procedures established in the Criminal Code: See Re Trepanier (1885) 12 SCR 111; Re Sproule (1986) 12 SCR 140 at p204; Goldhar (No.2) v The Queen [1960] SCR 431 at p349; Morrison v The Queen [1966] SCR 356; Karchesky v The Queen [1967] SCR 547 at p551; Korponay v Kulik [1980] 2 SCR 265. Once the court has denied leave to appeal conviction the interests of finality of criminal convictions and the principle of res judicata apply, see R v Wigman [1987] 1 SCR 246 at pp257-58.

    The decision of the Supreme Court of Canada in Wilson v The Queen [1983] 2 SCR 594 (SCC) did not address challenges by way of the prerogative writs (see pp599 and 614).

    The Supreme Court of Canada's decision in Dumas v Leclerc Institute, supra, examines the availability of habeas corpus in the parole context and Lamer, J stated at p464:

    In the context of correctional law, there are three different deprivations of liberty:
    the initial deprivation of liberty, a substantial change in conditions amounting to
    a further deprivation of liberty, and a continuation of the deprivation of liberty.

And at p464:

The continuation of an initially valid deprivation of liberty can be challenged by way of habeas corpus only if it becomes unlawful.

"In general, applicants for Charter relief should, I believe, be allowed a reasonable measure of flexibility in framing their claims for relief in light of the interests in Charter rights on which they rely were designed to protect. In R v Lyons [1987] 2 SCR 309, I suggested (at p381) that in order to avoid a 'restrictive approach to Charter remedies' an individual should be able to challenge his or her status as a dangerous offender subject to an indeterminate sentence without necessarily having to attack the conviction or finding of guilt:

    'The appellant might well have felt that he would not succeed in a claim under
    s24(1) to set his conviction aside, that the court would not view this as the
    appropriate and just remedy in the circumstances, but that it might consider it
    appropriate and just to set aside the order for additional punishment. I would
    resist any suggestion that an accused alleging a violation of his Charter rights
    must claim all or nothing.'"

    Habeas corpus is therefore available as a remedy to determine the legality of continuing detention. A conviction and sentence under the wrong provision of the Criminal Code clearly constitutes jurisdictional error. The defect is apparent on the face of the warrant of committal and an appreciation of the error does not require a retrial on merits or an evaluation of the evidence presented at trial. Where a warrant of committal is defective on its face, habeas corpus can "lie to put an end to what is a manifestly unlawful detention": Ex Parte Risby (1975) 24 CCC (2d) 211 (BCSC) at p215.

    The trend by courts to not bind themselves to limited categories or definitions of jurisdictional review when liberty of the subject is at stake should be affirmed where habeas corpus is sought as a Charter remedy and distinctions which have become uncertain, technical, artificial and, most importantly, non-purposive should be rejected. See Re Arrigo and The Queen (1896) 29 CCC (3d) 77 (Ont HC) per Sutherland, J at p84.

    A purposive approach should be applied to the administration of Charter remedy as well as to the interpretation of Charter rights and, in particular, should be adopted when habeas corpus is the requested remedy since that remedy has traditionally been used and is admirably suited for the protection of the citizen's fundamental right to liberty and the right not to be deprived of it except in accordance with the principles of fundamental justice. The superior courts in Canada have, with the advent of the Charter and in accordance with the sentiments expressed in the habeas corpus trilogy of Miller, Cardinal and Morin displayed both creativity and flexibility in adapting the traditional remedy of habeas corpus to its new role. The following cases are instructive in demonstrating innovative uses of habeas corpus as a Charter remedy: Re Cadeddu and The Queen (1982) 4 CCC (3d) 97 (Ont HC); Swan v AGBC (1983) 35 CR (3d) 135 (BCSC); Lussa v Health Science Centre (1983) 9 CRR 350 (Man QB); MacAllister v Director of Centre de Reception (1984) 40 CR (3d) 121 (Que SC); Re Marshall and The Queen (1984) 13 CCC (3d) 73 (Ont HC); Re Jenkins (1984) 8 CRR 142 (PEISC in banco); Jollimore v AG Nova Scotia (1986) 24 CRR 28 (NSSC); Balian v Regional Transfer Board (1988) 62 CR (3d) 258 (Ont HC). Wilson, J ex- pressed her agreement with the general proposition reflected in these cases that Charter relief should not be denied or "displaced by overly rigid rules": see Swan at p148.

    In entertaining objections to the issuance of habeas corpus, a purposive approach to Charter remedies is helpful in assessing the merits of such objections and the courts should never lose sight of the underlying liberty interest of the subject which is at stake. Per LaForest, J in Lyons, supra, at p354:

In the context of s7, it seems to me that the nature and quality of the procedural protections to be accorded the individual cannot depend on sterile logic or formalistic classifications of the type of proceeding in issue. Rather, the focus must be on the functional nature of the proceeding and on its potential impact on the liberty of the individual.

    To deny Charter relief because a person received their criminal trial and sentencing under the wrong Criminal Code provision in a superior court of criminal jurisdiction and not in an inferior court is completely unacceptable in the liberty interests at stake. The legalities in a sentence given by a superior court should not escape review by way of habeas corpus. (See R.J. Sharpe at pp144-145 -if the time for appeal of an illegal sentence has gone by, the law should provide another remedy. See also Cartwright, CJC in Sanders v The Queen, supra, at p126.

    The fact that the issuance of habeas corpus will not secure the complete liberty of the applicant is no longer a bar to the issuance of the writ on both doctrinal and policy grounds. The 1985 habeas corpus trilogy of Miller, Cardinal and Morin and later in Dumas v Leclerc Institute expanded habeas corpus to cover three different deprivations of liberty in a prison setting. In Miller, the court recognized a need to adapt the important remedy of habeas corpus to the modern realities of confinement in a prison setting. Early release by means of parole is an important and even crucial aspect of confinement in a prison: see Sentencing Reform: A Canadian Approach (1987) c10.

    A deprivation of liberty or a continuation of a particular form of deprivation of liberty should be reviewed from a qualitative perspective. The effects of parole ineligibility provisions on continuing imprisonment compared with eligibility provisions that otherwise exist on a life sentence indicate a clear indifference in the quality of incarceration and are readily apparent.

    Habeas corpus, the "writ of liberty", is:

not now and never has been a static, narrow, formalistic remedy; its scope has grown to achieve its grand purpose the protection of individuals against erosion of their right to be free from wrongful restraints upon their liberty [Jones and Cummingham, 371 US 236 (1962), at p243].

    In the Jones case, habeas corpus was held to cover the condition of deprived liberty an applicant on parole was put under by the state. Lamer, J in Re BC Motor Vehicle Act [1985] 2 SCR 486 at p515 stated that the restrictions of liberty inherent in probation orders were protected under s7 of the Charter. It would be anomalous if the remedy of habeas corpus did not evolve so as to be available to redress illegal deprivations of constitutionally protected liberty interests.

    "In Preiser v Rodriguez 411 US 475 (1973), the United States Supreme Court held that habeas corpus was available and appropriate to review the deprivation of liberty inherent in the revocation of a prisoner's good time credit. Justice Stewart first summarized the development of the remedy of habeas corpus in American jurisprudence at p485 as follows:

    'The original view of a habeas corpus attack upon detention under a judicial
    order was a limited one. The relevant inquiry was confined to determining simply
    whether or not the committing court had been possessed of jurisdiction....But,
    over the years, the writ of habeas corpus evolved as a remedy available to effect
    discharge from any confinement contrary to the Constitution or fundamental law,
    even though imposed pursuant to conviction by a court of competent
    jurisdiction.'

    "Turning to the case at hand, Justice Stewart concluded that habeas corpus would lie (at pp487-88):

    'Even if the restoration of the respondents' credits would not have resulted in
    their immediate release, but only in shortening the length of their actual
    confinement in prison, habeas corpus would have been their appropriate
    remedy. ...their suits would still have been within the core of habeas corpus in
    attacking the very duration of their physical confinement itself."

    "A purposive and expansive approach to the remedy of habeas corpus leads me to conclude that the writ is appropriately used to review the legality of the significant deprivation of liberty inherent in the operation of the parole ineligibility provision in this case. The review can take place without either circumventing the appeal process or becoming de facto an appeal on the merits. The role of habeas corpus as a remedy under s24(1) of the Charter reinforces the policy of flexibly and generously adapting the writ in order that it continue to protect liberty interests now constitutionally protected under the Charter."

R v Stewart - Unreported, October 10, 1990, No. 8903-0693 (Alta CA) (Butterworths No. A-10797)

- The appellant sought an order in the nature of habeas corpus with certiorari in aid urging that his rights under s7 of the Charter were breached by his continued imprisonment following his conviction for first degree murder. The offence was committed before the proclamation of the Criminal Law Amendment Act (No.2) which was proclaimed between his first and second trials. Section 27 of that legislation contained transitional provisions relating to the charges faced by the appellant. A new indictment, which complied with these provisions, has preferred against the appellant and the appellant was convicted after the trial that followed. He was sentenced to life Imprisonment without eligibility for parole for 25 years.

    This was a potentially more severe punishment under the new law than he would have faced under the law as it stood at the time of the offence. Had he been convicted at his first trial he would have been liable to imprisonment for life with parole ineligibility for a period of between 10 and 20 years depending on the judge's order. After his second trial, he faced parole ineligibility for 25 years unless he succeeded, after serving 15 years, in an application for judicial review of the period of parole ineligibility under s745 of the Criminal Code.

    The issue was whether Stewart had been correctly tried and convicted according to the law as it stood at the time such that there would be nothing requiring relief or whether he had been improperly tried and convicted such that relief was permissible. The Alberta CA agreed with the trial judge and distinguished Gamble in which the SCC held that the wrong law was applied at the trial. In this case, Stewart was tried in compliance with the transitional provisions and was thus tried and convicted under the "proper law" but not under the law in force at the time the offence was committed. The Court concluded that Gamble cannot be taken to have laid down a principle that Charter relief must be granted in all pre-Charter cases where an accused is not tried under the law In force at the time the offence was committed. The 'principle certainly applies where "the proper law" was "the law in force at the time the offence was committed", However, it does not apply where an accused was tried in pre-Charter days In accordance with a law requiring his trial under a provision different than that in force when the offence was committed. If that were not so, the decision in Gamble would effectively overrule, without explicitly saying so, those cases in the Supreme Court of Canada forbidding a retrospective application of the Charter. Gamble does not hold that Charter relief is to be granted whenever the law applied was not that in force at the time the offence was committed, even though the law was properly applied and the offender was properly convicted and sentenced.

11. Proceedings in criminal penal matters - Any person charged with an offence has the right

to be informed without unreasonable delay of the specific offence;

to be tried within a reasonable time;

not to be compelled to be a witness in proceedings against that person in respect of the offence;

to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal;

not to be denied reasonable bail without just cause;

except in the case of an offence under military law tried before a military tribunal, to the benefit of trial by jury where the maximum punishment for the offence is imprisonment for five years or a more severe punishment;

not to be found guilty on account of any act or omission unless, at the time of the act or omission, it constituted an offence under Canadian or international law or was criminal according to the general principles of law recognized by the community of nations;

if finally acquitted of the offence, not to be tried for it again and, if finally found guilty and punished for the offence, not to be tried or punished for it again; and

if found guilty of the offence and if the punishment for the offence has been varied between the time of commission and the time of sentencing, to the benefit of the lesser punishment.

Re Russell et al and Radley, Chairman, Collins Bay Penitentiary Disciplinary Court - (1984), 11 CCC (3d) 298 (FCTD)

- Prisoners having been convicted of whatever offences for which they were sentenced to their respective terms of imprisonment have already and justifiably forfeited their rights to liberty guaranteed by s7 of the Charter. They are, however, not to be deprived of such liberty as is accorded to the general inmate population. In other words, they are not to be punished or to be confined in "a prison within a prison" except in accordance with the principles of fundamental justice, unless of course, such deprivation can be demonstrably justified in a free and democratic society under s1 of the Charter. "The proper, unbiased conduct of the prison disciplinary process evinces nothing inherently in conflict with the principles of fundamental justice". Despite their convict status, prisoners' rights to life and security of the person, allowing for the more hazardous conditions of prison life, are, and remain, as vivid as any other person's rights thereto. They retain their rights expressed in paragraphs (a), (b), (c), (g), (h) and (i) of s11 of the Charter. Paragraphs (e) and (f) are not engaged on being charged with a disciplinary offence. Certain reasonable limits on a prisoner's rights under s11(d) are prescribed by law and are demonstrably justified under s1 of the Charter. Thus, in disciplinary proceedings an inmate has no right to a public hearing because the opening of such proceedings to the general public would be seriously at variance with the requirements of ss29(1)(a), (b) and (3) of the Penitentiary Act and s38(1) of the Regulations and the Commissioner's Directives insofar as they aim to maintain the security of the institutions, and the custody, treatment and discipline of in- mates. "The security risks alone militate against admission of the general public, or journalists of whatever medium, to such hearings".

Peltari v The Director of the Lower Mainland Regional Correctional Centre et al - (1984),42 CR (3d) 103 (BCSC)

- The word "offence" in this section means "conduct prohibited by law on pain or punishment", and the test was to whether or not a person has been subjected to double jeopardy contrary to this section where he has been acquitted of being unlawfully at large under the Code and then convicted of being unlawfully at large under Correctional Centre Rules and Regulations is "are the offences identical in that they contain the same elements and constitute one and the same offence arising out of the same set of circumstances?" In these circumstances a disciplinary court conviction of the offence pursuant to Correctional Centre Rules and Regulations after acquittal in a criminal court for an offence under the Code was quashed on certiorari.

    See also Ibrahim v Disciplinary Tribunal of Montee St-Francois Institution et al - Unreported, November 4, 1985, No. T-1325-85 (FCTD) under s39 of Penitentiary Service Regulations at p952.1.

    Editorial Note - See also R v TR (No.2) (1984), 7 DLR (4th) 263 (Alta QB) involving the punishment of a juvenile and R v Wigglesworth (1984), 38 CR (3d) 388 (Sask CA) involving charges against an RCMP constable under the Royal Canadian Mounted Police Act and under the Code arising out of the same incident. The decision in R v Wigglesworth was affirmed by the Supreme Court of Canada and is now reported at (1988) 37 CCC (3d) 385 (SCC). See also Trim v Durham Regional Police Force (1988) 37 CCC (3d) 120 and Trumbley and Pugh v Metropolitan Police Force (1988) 37 CCC (3d) 118 (SCC).

R v Mingo et al - (1982), 2 CCC (3d) 23 (BCSC)

- Accused was convicted of seven disciplinary offences for occurrences during riot at prison where he was an inmate, for which he received punishment of solitary confinement and loss of earned remission. At his trial for public mischief and arson based on other occurrences during same riot, he pleaded autrefois convict and raised defences of res judicata, issue estoppel and abuse of process, and double jeopardy in violation of s11(h) of the Charter, claiming all offences should have been prosecuted criminally or by disciplinary proceedings rather than split between two proceedings. Held: Disciplinary court is not a "court of competent jurisdiction" to give rise to plea of autrefois convict; charges are not the same, as mischief charge includes an element of willfulness, and different charges were based on different acts, so defences did not apply. Disciplinary offences were not "offences" within the meaning of s11(h) of the Charter of Rights and Freedoms. Further, the accused's right to be tried within a reasonable time under s11(b) of the Charter of Rights had not been infringed and he was informed of the specific offence without unreasonable delay in accordance with s11(a).

    Editorial Note - Eventually the Accused was acquitted of all counts except one for "attempted mischief" and the sentencing judge followed the principle against double punishment and took into account the previous punishments imposed upon the Accused inside the prison in his sentencing.

    See Regina v Hogan; Regina v Tompkins [1960] 2 OB 513 (UKCCA).

R v Cardinal - [1985] 6 WWR 62 (Alta CA)

- A delay in executing warrants until such time as a person was released on parole where the delay was in the order of 14 months and there was no acquiescence by the accused and there was prejudice to the accused resulted in certain new charges pursuant to the warrants being quashed because, in the circumstances, the practice followed was unacceptable and violated this section.

Howard v Presiding Officer of the Inmate Disciplinary Court of Stony Mountain Institution - (1983) 8 CCC (3d) 557 (FCTD); rev'd (1985) 19 CCC (3d) 195,45 CR (3d) 242 (FCA); leave to appeal to SCC quashed (1988) 41 CCC (3d) 287n, 61 CR (3d) 387 (SCC)

- See detailed annotation under s39 of the Penitentiary Service Regulations to the effect that s7 of the Charter greatly enhances a prisoner's right to the protection of the principles of fundamental justice in disciplinary court proceedings and that where earned remission is at risk, there is virtually a presumption in favour of counsel.

    Editorial Note - Inmates to have a constitutional right to be represented by legal counsel in disciplinary hearings in which such representation is necessary to ensure that the proceedings are conducted fairly and that justice is done in a particular case. The Attorney General will argue, however, that the respondent did not need to be represented by legal counsel in this case and that therefore there was no error by the disciplinary court. (See Howard, supra.)

Morin v Saskatoon Correctional Centre et al - Unreported, September 20, 1990, No. 2180/1990 (Sask QB) (Butterworths No. 34701)

- The applicant prisoner was charged with disobeying internal rules of conduct of the respondent facility set up under the Corrections Act of Saskatchewan. Disciplinary Panels for such matters in Saskatchewan are set up under the Correctional Facilities Administration Regulations which are made in accordance with the provisions of the Corrections Act. The applicant had pled guilty to a charge of disobeying internal rules of conduct by being in a state of impairment due to the use of an intoxicant and the Disciplinary Panel ordered that 15 days of his remission be cancelled. Later, he was charged with disobeying internal rules of conduct by fighting. He sought to retain and instruct counsel and the matter was adjourned. However, when the matter came on for re-hearing, he did not attend and was, therefore, found guilty and ten days of his remission was cancelled. The applicant then sought to quash the disciplinary orders on the grounds that the panel was biased and not an impartial and independent tribunal in violation of s11 (d) of the Chartel; that he was denied natural justice, that the orders violated s7 of the Charter and that s15 of the Correctional Facilities Administration Regulations was unconstitutional and violated his s7 Charter rights. He claimed that the panel was not independent and impartial because it was composed of persons from within a correctional facility. He also asserted that cancellation of his remission was a "true penal consequence" and that, therefore, the Panel had to be independent like the court. The applications were dismissed. The court held, following Shubley (annotated at p5138.3) that s11 of the Charter did not apply to disciplinary proceedings as they were not criminal in nature and did not impose true penal consequences. The cancellation of remission was merely a loss of privileges and not equivalent to a sentence of imprisonment.

    Section 7 of the Charter did not require the Disciplinary Panel to be composed of persons external to the correctional facility or system. "Fundamental justice" does not require an independent tribunal but only requires the panel to be impartial and unbiased in carrying out its duties consistent with natural justice.

    On the issue of "bias", it is not what the applicant believes, but what a reasonable person believes that is determinative. There must be actual circumstances from which such a belief can reasonably be arrived at that the Panel was or would be unfair. There must be a probability, a mere possibility is not sufficient. On the facts before the court, there was no reasonable apprehension of bias that could arise and s15 of the Regulations was valid.

Belliveau v The Queen - (1984) 13 CCC (3d) 138 (FCTD)

- A prisoner who is on mandatory supervision and commits new offences for which new terms of imprisonment are imposed and then has his mandatory supervision revoked with the consequent loss of remission is not subjected to double jeopardy under s11 (h) of the Chatter.

    See also Belliveau v The Queen the Warden of Dorchester Penitentiary- Unreported, May 22, 1984, No. 91/84 (NBCA).

Belliveau v The Queen - Unreported, May 22, 1984 Nos. 289/33 and 91/84 (NBCA)

- On appeal it was held that the failure to comply with conditions of release on mandatory supervision, which also involved the commission of new offences, does not result in a violation of s11 (h) of the Charter simply because punishment has been imposed for the new offences and loss of remission is incurred as a result of the revocation of mandatory supervision.

Logan v Director of William Head Institution and National Parole Board - Unreported, May 30, 1986, No. 86/1307, Victoria (BCSC)

- Following Belliveau (supra) the revocation of mandatory supervision for a breach of a term or condition does not offend s11 (h) of the Charter.

Knockaert v Commissioner of Corrections et al - (1986) 25 CCC (3d) 373, 51 CR (3d) 183 (FCTD); aff'd (1986) 55 CR (3d) 171 (FCA); leave to appeal to SCC refused 55 CR (3d) xxxii (SCC)

- A failure to earn remission and loss of remission pursuant to a conviction in disciplinary court does not amount to double jeopardy in violation of s11(h) of the Charter. Disciplinary offences are criminal or penal matters, but a failure to earn remission does not constitute a punishment. Even if a failure to earn remission does constitute a punishment, Marceau, J was of the view that s11 did not apply to disciplinary matters. This decision affirmed the decision of the Trial Division of Reed, J (1986) 25 CCC (3d) 373.

Mcllvride v AG Canada, AGBC and Director of Kent Institution - Unreported, November 3, 1987, No, CC871785, Vancouver (BCSC)

- The applicant sought habeas corpus with certiorari in aid to release him from Special Handling Unit Phase I back to Special Handling Unit Phase IV (the general population of a maximum security institution on probation). The applicant had been designated a Special Handling Unit prisoner. He had progressed to Phase IV. He was allegedly involved in a fracas with another prisoner resulting in the other prisoner having to be hospitalized. The applicant was charged with attempted murder and aggravated assault. He was transferred back to a Special Handling Unit and into Phase I. He was subsequently found not guilty by a judge and jury of the charges of attempted murder. Because of this acquittal, he claimed that he should be returned to Phase IV and asserted that otherwise he was being punished for an offence of which he had been acquitted and was, therefore, being subjected to double jeopardy, contrary to s11 of the Charter: The prison authorities took the position that the applicant had violated his probation in Phase IV of the Special Handling Unit pro- gram by the assault in question which had been witnessed and broken up by several staff members and the criminal proceedings arising out of the altercation had no effect on their decision to return the applicant to Phase I.

    The court held that the Special Handling Unit process as set out in Commissioner's Directives were neither civil nor criminal proceedings but rather, were internal proceedings designed to foster the well being of the particular community and to prevent the staff in that community and the residents of that community from danger against the threat of harm from certain other persons, The applicant had not been returned to Phase I because of any breach of any duty which the Criminal Code imposed upon him or which he owed to society as a whole, but because of his breach of the conditions of his probation to the effect that he refrained from conducting himself in such a manner as to commit or to be likely to commit a violent or dangerous act, In the court's view, the acquittal of the applicant in criminal proceedings was of no relevance,

    In arriving at this decision, the court relied on the decision of the Saskatchewan Court of Appeal in R v Wigglesworth [1984] 3 WWR 289, 11 CCC (3d) 27, 38 CR (3d) 388 (since affirmed by the Supreme Court of Canada, November 19th, 1987 and now reported at (1988) 37 CCC (3d) 385), The court also relied on Landry v Legal Services Society (1986) 4 WWR 645 (BCCA) and the cases referred to therein and did not follow the decision in Morin v National SHU Review Committee (1985) 1 FC 3, 46 CR (3d) 238,20 CCC (3d) 123 (FCA).

Beaulieu v Rousseau - Unreported, December 14, 1987, Nos. T-2080-86 & T-2081-86 (FCTD)

- Punishment in disciplinary court followed by loss of earned remission, private family visits, or escorted temporary absence passes does not raise the sort of double jeopardy situation that fringes s 11 (h) of the Charter.

    See also R v Mingo (supra), Re Russell et al and Radley, Chairman, Collins Bay Penitentiary Disciplinary Court (supra) and Peltari v Director of Lower Mainland Regional Correctional Centre (supra).

R v Shubley - (1990) 52 CCC (3d) 481, 74 CR (3d) 1 (SCC)

- In a 3 to 2 decision the Supreme Court of Canada ruled that s11(h) of the Charter does not bar Criminal Code proceedings against an inmate who has already been convicted and punished in internal prison disciplinary proceedings.

    For s11(h) to have application, the earlier proceedings would either have to be by their very nature criminal proceedings, or involve the imposition of true penal consequences. Madame Justice McLachlin writing for the majority concluded that the prison disciplinary court proceeding was not by its very nature criminal because (p494):

The appellant was not being called to account to society for a crime violating the public interest in the preliminary proceedings. Rather, he 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.

    McLachlin J also held that the prison disciplinary proceedings did not involve true penal consequences. The proceedings involved neither fines nor imprisonment and the (p495):

...forfeiture of remission does not constitute the imposition of a sentence of imprisonment by the superintendent, but merely represents the loss of a privilege dependent on good behaviour...

    I conclude that the sanctions conferred on the superintendent for prison misconduct do not constitute "true penal consequences" within the Wigglesworth test. Confined as they are to the manner in which the inmate serves his time, and involving neither punitive fines nor a sentence of imprisonment, they appear to be entirely commensurate with the goal of fostering internal prison discipline and are not of a magnitude or consequence that would be expected for redressing wrongs done to society at large. (pp495-6)

    The court also held that s29 of Reg 649, RRC 1980, which provides for discontinuing internal disciplinary proceedings where criminal proceedings have been commenced, does preclude criminal prosecution where disciplinary proceedings have finished.

    Mr. Justice Cory, in dissent, said that the disciplinary proceedings did involve the imposition of true penal consequences. In his view solitary confinement is an additional violation of the residual liberties an inmate retains while in prison and (p486):

...because of the tremendous psychological impact of long periods of solitary confinement, it would be unacceptable in our society to condemn a person to close or solitary confinement for the entire period of a significant term of imprisonment... I would conclude, therefore, that solitary confinement must be treated as a distinct form of punishment and that its imposition within a prison constitutes a true penal consequence.

Cory J also said that the loss of earned remission, or the ability to earn remission, is a true penal consequence. From the inmate's point of view any shortening of his confinement through earned remission has the same effect as a reduction in his sentence. At p488 Cory J said that if disciplinary measures: "…are to include a loss of earned remission or the ability to earn it, then the disciplinary punishment has penal consequences as that term is defined in Wigglesworth."

R v Martell - Unreported, March 19, 1991, Docket No. 172321690A01 (Alta Prov Ct Crim Div)

- On September 23rd, 1990, the accused prisoner at Edmonton Maximum Security Institution was alleged to be "in a condition other than normal" and to have threatened a guard, possessed a syringe and possessed a small amount of hashish. The Royal Canadian Mounted Police became involved in an investigation of the matter on September 26th, 1990. On September 27th, 1990, the accused was charged with four charges, pursuant to s39 of the Penitentiary Service Regulations. On the same day, he pled guilty to all four charges, pursuant to the Regulations. He was sentenced to 30 days solitary confinement for being in a condition other than normal, 15 days consecutive for threatening a guard, 15 days concurrent for possession of a syringe and 15 days concurrent for possession of hashish for a total of 45 days solitary confinement. On October 4th, 1990, an Information was sworn, pursuant to the Narcotic Control Act charging him with possession of a narcotic, namely, the hashish found in his possession on September 23rd and forming the basis for the offence pursuant to the Penitentiary Service Regulations to which he pled guilty and received 15 days concurrent to the other sentences imposed for the other three charges. The Crown proceeded summarily. By December 18th, 1990 when the Narcotic Control Act charge came to trial, the accused had completed serving the solitary confinement sentence. He was found guilty in the Provincial Court of possession of a narcotic. He then sought a stay of proceedings before sentencing, asserting that he had been previously punished for the same offence and that to punish him a second time would violate s7 of the Charter.

    The evidence established that during the 45 days in solitary confinement, the accused was isolated for 23 hours a day without work programs, television or stereo and suffered adverse physical and psychological effects. However, it was noted that the sentence for the possession of hashish was 15 days concurrent to the other sentences of solitary confinement imposed for the other offences.

    The court dismissed the application finding that the rights of the accused protected under s7 of the Charter have not been violated by this "dual procedure". The court followed the decisions of the Supreme Court of Canada in Regina v Shubley (1990) SCR 3, 52 CCC (3d) 481 (SCC) and Regina v Wigglesworth (1987) 25 CR 541, 37 CCC (3d) 385 (SCC) dealing with s11 (h) of the Charter to be equally applicable to cases arising under s7 of the Charter. The court held these decisions to have more general application and in so doing, relied on the decision of the Supreme Court of Canada in Sellers v The Queen (1980) 52 CCC (2d) 345 at p347 (SCC) to the effect that statements made in judgments by the Supreme Court of Canada are to be considered as statements of the law and not as obiter. Furthermore, the court appeared to interpret the remarks of the court in Shubley and Wigglesworth to be concerned with "procedural fairness" and held that s7 was limited thereto and there was no evidence or submissions alleging that the proceedings were unfair in the circumstances of this case.

    Following Shubleyand Wigglesworth, the court held that prison disciplinary proceedings were not, by their nature, criminal proceedings and that, therefore, it was not involved with a situation involving the .same offence". Furthermore, because the 15 days solitary was concurrent to the other penalties, the sentence imposed was not "imposed for the purpose of redressing the wrong done to society at large" and, therefore, did not "involve true penal consequences".

    Editorial Note - It should be noted that the Shubley decision involved an offence pursuant to provincial prison regulations in Ontario where the maximum penalty was five days in solitary confinement. In Martell, the penalty was imposed pursuant to the federal Penitentiary Service Regulations where the amount of solitary confinement that can be imposed is much more substantial. In Shubley, neither the majority nor the dissenting minority made reference to the court's earlier decisions in Martineau v Matsqui Institution Inmate Disciplinary Board (No.2) (see annotation under s39 of the Penitentiary Service Regulations) which was the first decision of the Supreme Court of Canada to take cognizance of the "prison within the prison", nor the decisions of the court in Miller v The Queen, Morin v National SHU Review Committee, and Cardinal and Oswald v Director of Kent Institution (all annotated under Penitentiary Service Regulations, s40 and elsewhere), all of which recognize the availability of habeas corpus to remove somebody from the "prison within the prison" into the general population of the prison.

    Nevertheless, the decision in Shubley and Martell appears to coincide with the English common law principle that a man who has been convicted of an offence cannot subsequently be charged with the same offence in an aggravated form in relation to the same facts which principle is confined to courts of competent jurisdiction and does not preclude internal disciplinary proceedings in prison. However, the English principle recognizes that the penalty imposed in internal disciplinary proceedings should be taken into consideration by a judge in the passing of sentence for an outside charge. See Regina v Hogan; Regina v Tompkins [1960] 2 QB 513 (UKCCA). For an application of this latter principle, see R v Mingo (supra) annotated at p5138 and the Editorial Note following it.

Re Mitchell and The Queen - (1983),42 OR (2d) 481 (HC)

- This section conflicts with article 15 of the International Covenant on Civil and Political Rights and thus precludes a court from having resort to article 15 of the Covenant to help determine the meaning of s9 and s12 of the Charter: While the Covenant was acceded to by Canada on May 19, 1976 and came into force for Canada on August 19, 1976 obliging Canada to adopt measures to give effect to the rights recognized in the Covenant, no Canadian legislation has been passed which expressly implements the Covenant and such enabling legislation is required to make the Covenant part of the domestic law of Canada. However, the Covenant may be used to assist a court to interpret ambiguous provisions of a domestic statute even though the Covenant has not been formerly incorporated into the law of Canada provided that the domestic statute does not contain express provisions contrary to or inconsistent with the Covenant. Sections 9 and 12 of the Charter are not clear and unambiguous. However, article 15 of the Covenant gives an offender the right to the benefit of a lighter penalty when the penalty is changed subsequent to the commission of an offence. It appears to apply at any time after the commission of the offence including after sentence has been imposed. Section 11 (i) of the Charter is more limited in that it gives the offender the benefit of a lighter penalty only if the change comes into effect before sentencing and not at any time after conviction. This conflict precluded resort to the Covenant as an aid to the interpretation of ss9 and 12 of the Charter:

Re Evans and The Queen - (1987) 30 CCC (3d) 1 (Ont HC)

- This section has not gone as far as article 15 of the International Covenant on Civil and Political Rights which prohibits the imposition of a heavier penalty than the one applicable at the time of the offence. Section 11 is limited to the prohibition of a variation of a punishment between the time of commission of the offence and the time of sentencing. This section is not breached by ss 15. 1 through 15.6 of the Parole Act which authorized the Parole Board to change the rules in mid-sentence and gate persons otherwise entitled to their release on mandatory supervision, if the Board finds that the individual meets the legislative criteria and is considered a danger to the public.

Re Evans and The Queen - (1987) 30 CCC (3d) 313 (Ont CA)

- On appeal, the constitutionality of the new gating ss15.1 through 15.6 of the Parole Act was affirmed. The intent of Parliament to make this legislation retrospective or retroactive is clear. The legislation does discern itself with depriving an inmate of his right to "liberty" within the meaning of s7 of the Charter, but it does not authorize such a deprivation in breach of the "principles of fundamental justice". The sections simply give the Parole Board the power to change the degree of supervision required in circumstances within the legislative guidelines and criteria. They do not change the sentence, nor impose an additional penalty. They do no more than change the manner or condition under which certain inmates would serve the balance of their sentence. However, before such a change can be effected, a procedural and substantive safeguard established by the Act must be complied with. They are designed to ensure a fair procedure and protect against arbitrary determination of rights. The legislative scheme does not violate s7 of the Charter, nor does it authorize the imposition of arbitrary detention. Section 1 of the Charter can be resorted to without hesitation if necessary.

Vaillancourt v Canada (Solicitor General) - (1988) 43 CCC (3d) 238. 66 CR (3d) 66 (sub nom R v Vaillancourt) (Ont HC)

- On an application to reduce the number of years a person serving a life sentence must serve before he becomes eligible for parole under s745 of the Code, the court held that s11 does not apply to such reviews. The court took the view that s11 applies only to persons "charged with an offence." A s745 review is initiated long after a person has been sentenced, therefore, the protections of s11 are not applicable. Section 11(d) was also interpreted to apply only to proceedings where the guilt or innocence of a person charged with an offence is to be determined, and did not apply here as a s745 review does not determine blameworthiness or guilt.

    See also Editorial Note under s39 of the Penitentiary Service Regulations with respect to the decisions of independent chairpersons on the applicability of s11 and, in particular, paragraph (d), on the lack of independence or impartiality of independent chairpersons in prison disciplinary hearings and the lack of jurisdiction in such chairpersons to decide such a question as well as the decisions on the requirement of such hearings being "public" and the fact that exclusion of the public is a reasonable limit prescribed by law which is demonstrably justified in a free and democratic society under s1 of the Charter.

12. Treatment or punishment - Everyone has the right not to be subjected to any cruel and unusual treatment or punishment.

Re Mitchell and The Queen - (1983) 42 OR (3d) 481 (HC)

- The detention of habitual criminals is "punishment" even though its primary purpose is the protection of the public, but, even if it is not, then it certainly constitutes "treatment".

    "The standard to be applied in determining whether treatment or punishment is cruel and unusual is whether the treatment or punishment is so excessive as to outrage standards of decency and surpass all rational bounds of treatment or punishment. The test, thus, is one of disproportionality: is this treatment or punishment fit disproportionate to the Offence and the offender? Evidence that the treatment or punishment is unusually severe, and excessive in the sense of not serving a valid penal purpose more effectively than a less severe treatment or punishment, will suffice to satisfy the test of disproportionality. Evidence of arbitrary imposition also is relevant, but not a prerequisite to a finding of disproportionality where the other two factors are pre- sent.” Public opinion should not playa part in the determination.

    On an application by a habitual criminal for habeas corpus ad subjiciendum with certiorari in aid or in the alternative for a remedy under s24(1) of the Charter it was held, on the assumption that the applicant could not be shown to be a danger to society and be found to be a "dangerous offender", that the treatment of the applicant consisting of incarceration for approximately twelve years primarily as a result of property offences, was unduly severe in light of the maximum limits of punishment for serious Code offences. In addition it was held that the repeal of the habitual criminal legislation precluded that legislation from having any general deterrent effect in that insofar as individual deterrence is concerned that twelve years in custody had more than fulfilled that aim. The court felt that if twelve years of detention had not deterred the applicant then it was doubtful that he could be deterred by any further incarceration. Further it was held that the purposes of retribution had long since been fulfilled and that the question of reformation would be made more difficult by further incarceration. Consequently, it was held that the applicant's continued detention for an indefinite time was excessive. There was no evidence before the court that the applicant's continued detention had been tainted by arbitrariness.

    Having examined these factors the court concluded that the continued detention of the applicant, assuming lack of dangerousness to the public, satisfied the disproportionality test and that to continue to detain him for more than twelve years surpassed all rational bounds of treatment or punishment and was so excessive as to outrage standards of decency. Consequently, the applicant's right to protection against cruel and unusual treatment or punishment may have been infringed and in the absence of evidence that such infringement constituted a reasonable limit demonstrably justifiable in a free and democratic society under s1 of the Charter the applicant may be entitled to relief under s24(1).

Re Mitchell and The Queen - Unreported, October 21, 1983 (Ont HC)

- On resumption of this matter on the issue of the applicant having shown "lack of dangerousness to the public" in that he could not be shown to be a danger to society and be found to be a "dangerous offender", the Court held that, in the circumstances, and on the evidence, the applicant had demonstrated on the balance of probabilities that he was not dangerous according to the criteria contained in s668 of the Code. The Court found there was no indication whatsoever that the applicant had done anything violent during the past 23 years and that there was no danger of him doing violence to anyone in the future and that therefore his continued detention was disproportionate and thus in violation of s12 of the Charter. The Court found that the applicant was no more than a "social nuisance" and that his detention for more than 12 years surpassed all rational bounds of treatment or punishment and was so excessive as to outrage standards of decency. This was found to constitute a violation of his constitutional rights, not to be subjected to cruel and unusual treatment or punishment. The detention was therefore illegal and the appropriate remedy under s24(1) of the Charter was to grant habeas corpus and order his release.

    Editorial Note - It should be noted, as it was by the Court, that the decisions of the Parole Boards in the applicant's case were not in issue or under review, nor was the original decision opposing a sentence of preventative detention. It was the continued detention of the applicant that was under attack.

    The applicant was 61 years old and suffered from skin cancer. He had passed the bulk of his adult life in institutions as a result of numerous offences. Some were serious of- fences. He had spent most of the last 14 years in prison and 12 of those pursuant to the preventative detention sentence imposed in August, 1970. He spent a year out of jail in those 14 years. Since his last return to custody, he was a model prisoner and there was support from staff to that affect. In addition, a psychiatrist testified that he did not satisfy the criteria of s688 of the Code and his criminal record was explained.

    It should be noted that after the Court's initial ruling the applicant's parole was reviewed and he was denied parole.

Re Maltby et al and AG Saskatchewan et al - (1982), 2 CCC (3d) 153 (Sask QB)

- On an application by certain prisoners on remand in a Saskatchewan provincial detention centre for a declaration pursuant to s24 of the Charter that they were being subjected to cruel and unusual treatment or punishment due to certain facilities and practices in the institution the Court dismissed the application holding that limitations on access to recreational educational facilities were mandated by the legitimate interests of the institution in security and by the fact that remand prisoners are usually only in such a facility for a brief period of time. Provided particular conditions or restrictions are reasonably related to the legitimate government objective then those conditions or restrictions do not, without more, amount to unconstitutional punishment. If the condition or restriction is not reasonably related to a legitimate government objective then such condition or restriction might amount to a constitutional violation. The use of handcuffs and shackles when prisoners are taken from the institution did not violate s12. If there were no valid reasons for using such handcuffs and shackles then that might constitute a violation of s12 but there was no evidence to show that the practice used here was done without a reason. The evidence was to the contrary indicating they were only used as an extraordinary security measure and were used sparingly and with care, discretion and judgment. The Court said that the view of the prison administrators were to be given wide deference in the relation to the execution of policies and practices that they felt were needed to preserve the order and discipline and security of the institution. In the absence of substantial evidence to indicate an exaggeration by them the Court should defer to their expertise on such matters.

Re Soenen and Thomas et al - (1983) 8 CCC (3d) 224, 35 CR (3d) 206 [1984J 1 WWR 71 (sub nom Soenen v Director of Edmonton Remand Centre) (Alta QB)

- An application by a prisoner on remand applied for relief pursuant to s24 of the Charter claiming that his rights under s12 in relation to contact visits, access to open air exercise, searches and manner of being processed on return to the institution, were in violation of his rights and amounted to cruel and unusual treatment or punishment. Visual rectal searches were conducted in the detention areas when searching for missing items and approved pesticide was used in processing the prisoners on return from court or other facilities. While the application was dismissed in the circumstances the Court thoroughly analyzed the meaning of s12 and the approach or procedure to be adopted when an allegation is made of a violation of this section. The Court held that the proper approach on such a question involving pre-trial detainees was to determine first of all whether the act or conduct complained of amounted to "punishment". If it did then the Court could hold that it was unconstitutional as punishment may not constitutionally be inflicted upon remand prisoners. If it is not punishment the Court should go on to determine whether or not it is "treatment". The word "treatment" is a broad one and would ordinarily en- compass those matters which a pre-trial detainee might complain of. The Court should then go on to determine whether or not the treatment is "cruel and unusual". If the Court finds that it is either cruel or unusual or both so that the rights under s12 have been infringed or denied then the Court should go on to consider whether or not s1 of the Charter applies. The Court stated that it was incorrect to apply a balancing approach at the outset. The Court must first determine whether or not the rights guaranteed have been violated and only when the limiting aspects of s1 are invoked should the Court become involved in the balancing of individual interests against those of society. In other words, the "balancing" approach involving a consideration of some legitimate government objective is not involved in a consideration of s12 alone but only if s1 is raised. Consequently, the Court was of the view that the principle of disproportionality ought not to be applied in determining whether "treatment" is cruel and unusual. Practices which are relevant to whether treatment is cruel and unusual are: (1) whether or not it is in accord with public standards of decency and propriety; (2) whether it is unnecessary because of the existence of adequate alternatives; (3) and whether or not the treatment can be applied on a rational basis and in accordance with ascertained or ascertainable standards. On the facts and in the circumstances the applicant was not being treated cruelly or unusually.

Collin and Nadeau et al v Kaplan and Yeomans - (1982) 1 CCC (3d) 309,2 CRR 352 (FCTD)

- Prisoners sought injunction to prevent proposed double occupancy of cells, claiming it would be cruel and unusual treatment or punishment within s12 of the Charter. The application was dismissed, as only temporary double-celling was proposed and there was no proof that double-ceiling was cruel and unusual, although it was not a situation to be recommended.

    Editorial Note - This case also dealt with a number of other matters of importance:

(1)   The applicants in seeking Interlocutory Injunction attempted to rely on the United Nations Convention setting out the standard minimum rules for the treatment of prisoners which was ratified by Canada in 1955. They asserted that the Convention was approved in 1975 by a member of the Canadian delegation but were unable to cite any Canadian statute or Order in Council giving effect to the Convention or either of the two articles specifically relied upon. The statement by the Canadian delegate J.R. Boyce filed at the hearing indicated Canada's approval of the standard minimum rules of the United Nations in their entirety and its intention to "submit them to the Ministers and Deputy Minister for implementation". The court held that this allegation could not be the basis for any entitlement to an Order for Interlocutory Injunction.

(2)   In determining the meaning to be given to the words "cruel and unusual treatment" in the circumstances the court had regard to the U.S. authorities on double-bunking; Rhodes et al v Kelly Chapman et aI, US I 69 L Ed 2d 59, 101 SCT 1981, in which the lower courts had found cruel and unusual punishment but were reversed by the United States Supreme Court. The lower courts had based the order on five considerations, first, that the prisoners were serving long terms of imprisonment; second, that the prison housed 38 per cent more prisoners than its capacity; third, that contemporary standards dictated that a prison inmate should have at least 50 to 55 square feet of living quarters, as compared with the 63 square feet which double-celled inmates shared; fourth, a prisoner who is double-celled will spend most of his time in the cell with his cell-mate; and fifth, the prison had made double-ceiling a practice and it was not a temporary condition. The United States Supreme Court held that these five considerations were insufficient to support the constitutional conclusion of the lower courts and at most amounted to a theory that double-ceiling inflicted pain. The court indicated that the goals of the penal function in the criminal justice system are "to punish justly, deter future crime, and to return imprisoned persons to society with an improved chance of being useful, law abiding citizens".

(3)   It was also decided in the Collin case that the applicants did not have locus standi in the matter because the double-ceiling did not affect them directly and if it occurred was only going to apply to new inmates. However, the court did not preclude a subsequent application if double- ceiling was introduced and they were directly affected.

(4)   On matters of procedure the court indicated that an application for an injunction should not be brought against the Minister and referred to Forget et al and Kaplan et al, No. T-1796-81 (FCTD), and the Grand Council of the Crees (of Quebec) et al and The Queen et al, No. A-148-81 (FCTD).

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

- On an application to quash decisions transferring a model prisoner to administrative segregation and then a Special Handling Unit (SHU) on grounds, among others, that such detention violated s12 of the Charter, it was held that the initial imprisonment was not arbitrary but mandatory. Prisons are created by society for its protection and that penitentiaries' set up SHU's to protect guards against dangerous inmates and also to protect other prisoners and often the prisoners themselves. Life in penal institution is certainly a penalty which the inmate must suffer. This did not mean that it amounted to a violation of this section 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". On the facts, the applicant was not a victim of arbitrary and unjustified cruelty or of unusually harmful or outrageous treatment. The cell occupied and schedule of activities followed is essentially the same as other inmates except for the isolation of which he was being gradually relieved as he progressed on the road to rehabilitation.

R v Lyons - Unreported, January 30, 1984, No. 8713 (NS Co Ct)

- The dangerous offender provisions of the Code under Part XXI do not violate this section. While a sentence of preventative detention might not be "punishment" in the legal sense, it falls within the broad ambit of the word "treatment". The treatment applied however is not cruel and unusual.

Hay v National Parole Board et al - Unreported, July 12,1985, No. T -692-85 (FCTD)

- See annotation under s7 of the Charter and s13 of the Penitentiary Act regarding a violation of this section of the Charter in relation to a transfer back from minimum security.

    See also MacDonald v National Parole Board [1986] 3 FC 157 (FCTD) under Parole Act, s6.

Belliveau v The Queen - (1984) 13 CCC (3d) 138 (FCTD)

- The mandatory supervision provisions of the Parole Act involving loss of remission is not outrageous or excessive or beyond the rational bounds of morality. Furthermore, it is not excessive or disproportionate and is In accord with Canadian standards of decency and propriety and can be applied on a rational basis in accordance with ascertainable standards. See annotation under s15 of the Parole Act.

Litwack v National Parole Board - (1986) 26 CCC (3d) 65, 51 CR (3d) 53 (FCTD)

- Though expressing doubt as to whether s12 could be applied to the circumstances, the court nevertheless found that it could be argued that conditions which deprive a prisoner of the opportunity to earn a livelihood in work which he has been trained to perform may be "unusual treatment" because the purpose of parole is to enable a convict to re-integrate himself into society and if possible, obtain or create for himself useful employment. In the circumstances, a condition restricting employment on parole, though not unreasonably imposed, was unreasonbly continued upon reconsideration of whether to revoke or continue. The decision of the Board to revoke was patently unreasonable in the circumstances. The court did not consider whether or not the treatment was "cruel".

Logan v Director of William Head Institution and National Parole Board - Unreported, May 30,1986, No. 86/1307, Victoria (BCSC)

- The statutory imposition of mandatory supervision with terms or conditions and the subsequent revocation thereof for a breach of a term or condition did not result in a violation of this section.

Weatherall v AG Canada et al; Conway v The Queen; Spearman v Disciplinary Tribunal, Collins Bay Penitentiary et al - (1989) 59 CR (3d) 247 (FCTD)

- Strip searching of inmates is "treatment" within the meaning of s12 of the Charter. The use of strip searches of male inmates in the presence of female officers in circumstances other than emergencies, would, in the court's view, violate standards of decency and could not be supported on grounds of necessity or equal opportunities for women. Normally, such cross-gender searches would violate s12 of the Charter absent an emergency. Such searches would not violate s12 in the case of a true emergency where the security of the institution generally, or of particular officers or inmates, is seriously endangered or where the lack of sudden action would likely enable the concealment, importation or passing of contraband. Reg41(2)(c) of the Penitentiary Service Regulations is overly broad in the powers it confers on staff members with respect to strip searches and cannot be saved by the Commissioner's Directives which purport to limit such searches to "urgent circumstances". It was not for the court to define what would amount to such an emergency.

R v Olson - (1990) 47 CCC (3d) 491 (SCC); aff'g (1988) 38 CCC (3d) 534, 64 OR (2d) 321, 22 OAC 287

- Following the most recent discussion of the meaning and application of s12 of the Charter by the Supreme Court of Canada in Smith v The Queen -Unreported, June 25, 1987, the court held that the same tests applicable with respect to punishment are applicable with respect to treatment. The question, therefore, was whether or not the continued confinement of the applicant Olson in administrative or protective segregation at Kingston Penitentiary was treatment that was so excessive as to outrage standards of decency. In the court's view, the applicant's segregation from the general population in the prison was, in the circumstances, specified in the regulations necessary and acceptable. Furthermore, segregation to a prison within a prison is not, per se, cruel and unusual treatment. Having regard to all of the evidence presented, a case had not been made out that the applicant's continued confinement in such a manner had become so excessive so as to outrage standards of decency. The applicant received the continued attention of his Case Management Team, the Segregation Review Board, the Director and those in authority above the Director. He was continually observed and his health protected. There did not appear to be any adequate alternative. There was no prison in Canada where he could be confined without being segregated from the general population and it was not possible to transfer him to a prison in western Canada even though it might be beneficial to him.

McArthur v Regina Correctional Centre, Chief Executive Officer - (1990) 56 CCC (3d) 151 (Sask QB)

- The applicant sought habeas corpus with certiorari in aid to challenge his segregation from general population. The Crown conceded that the court had jurisdiction to grant such relief. However, the court held that a decision under the Saskatchewan provincial corrections legislation to segregate an inmate is an administrative one, and the principle of judicial deference should apply to such decisions by prison officials.

    Relying on R v Olson (1988) 38 CCC (3d) 534, 62 OR (2d) 321 (Ont CA); affirm- ed R v Olson (1990) 47 CCC (3d) 491 (SCC), the court said that the segregation of the applicant was not cruel and unusual treatment prohibited by s12 of the Charter. The applicant was in segregation because his behaviour was violent and unpredictable toward staff and inmates. Barclay J concluded that such segregation "does not outrage the standards of decency being the test prescribed by Brooke JA in the Olson case "

Larabie v The Queen - Unreported, March 22, 1988, No. 482/88 (Ont HC)

- The applicant was being held under a warrant of committal under the Extradition Act and sought habeas corpus or, alternatively, a remedy under s24(1) of the Charter arguing that to proceed with his extradition in the particular circumstances of his case would infringe or deny his rights guaranteed by s12 of the Charter not to be subjected to cruel and unusual treatment or punishment and would violate the principles of fundamental justice within the meaning of s7 of the Charter. The applicant was suffering from psychiatric and psychological problems and was under treatment for these disorders. Nevertheless, the evidence indicated that he understood the charges and the consequences of the proceedings and roles or functions of the officers of the court and was fully capable of assisting counsel in his own defence. Furthermore, the evidence indicated that he was not insane within the meaning of s16 of the Criminal Code. There was evidence, however, that in the opinion of his physician, if extradited, this would acutely exacerbate his psychiatric condition. There was some evidence that such an extradition would irretrievably damage the applicant's mental condition.

    The court reviewed the decision of the Supreme Court of Canada in Smith v The Queen (1987) 34 CCC (3d) 97 and, in particular, the judgment of Lamer, J and his reference to s12 of the Charter as being "concerned with the effect of the punishment may have on the person on whom it is imposed" and his approval of Laskin, CJC's criterion for determining whether punishment is cruel and unusual ("so excessive so as to outrage standards of decency") and the additional test for review under s12 as being one of gross disproportionality because it is aimed at punishments that are more than merely excessive. The court noted that we should be careful not to stigmatize every disproportionate or excessive sentence as being a constitutional violation and should leave to the usual sentencing appeal process the task of reviewing the fitness of a sentence. Section 12 will only be infringed where the sentence is so unfit having regard to the offence and the offender as to be grossly disproportionate.

    Applying the above test to the facts before it, the court first noted that ex- tradition must be viewed as "treatment" not as "punishment" and in itself is not a cruel and unusual form of treatment. Furthermore, the probability, indeed the very certainty, of a fugitive suffering adverse affects on his mental and physical well being would not be sufficient to outrage the standards of decency. Excessive or disproportionate ill effects on an accused's mental health triggered by the prospect of facing a criminal trial in Canada or being extradited for that purpose to a foreign jurisdiction would not, in the court's view, bring s12 into play. The court noted, however, that there may be a point where the consequences of extradition would be so extreme as to outrage the standards of decency.

    The court concluded that the proceedings were premature. The court concluded that absent evidence bearing on the accused's mental ability to face trial in the foreign country, the severe adverse affect that extradition may have on his mental health and which the Minister would have to consider, were not sufficient to constitute an infringement of the applicant's rights under s12 of the Charter. The court further concluded that even if the evidence could support a conclusion of Charter violation, the proceedings were still premature and the court would have adjourned the habeas corpus application pending the decision of the Minister. The application was dismissed.

Kindler v Minister of Justice of Canada - Unreported, December 20, 1988, No. A-81-87 (FCA)

- Kindler, a convicted murderer from the United States, sought relief by way of certiorari to prevent the Minister of Justice from surrendering him to the United States authorities without first seeking an assurance that the death penalty would not be used against him as provided for in Article 6 of the Extradition Treaty between Canada and the U.S. His application was dismissed and he appealed.

    Marceau J in dismissing the appeal, based his decision on two propositions. The first being that capital punishment is not inevitably cruel and unusual punishment within the meaning of s12 of the Charter. The second pro- position being that the Minister would only be required to seek and obtain assurances under s6 of the Treaty if the death penalty was per se a cruel and unusual punishment within the meaning of the Charter.

    His Lordship concluded that:

"...for the Court to intervene, it does not suffice that the situation facing the fugitive in his country would not be in full accordance with the prescriptions of the Charter as we have come to see them in this country. It would be necessary that the situation "sufficiently shocks the conscience" (Schmidt v The Queen, [1987] 1 SCR 500 at 522), and be "simply unacceptable" (USA v Allard, [1987] 1 SCR 564 at 572), regardless of the Canadian context." (p6)

And stated that:

"The punishment or treatment to which a fugitive is likely to be subjected, if returned to his country, may force the Minister to refuse to surrender him only if that punishment or treatment is one which is inherently and absolutely contrary to 512 of the Charter, torture being the easiest example. Otherwise, since the influence of the Canadian context is directly involved or an assessment of the circumstances of the foreign country is required, it should remain a question of executive discretion with which the courts ought not to intervene." (p6-7)

    In concurring reasons Pratte J said that it is common ground that the decision to surrender a fugitive must conform to the requirements of the Charter. But, he then held that s7 of the Charter does not prevent persons who face the death penalty from being extradited because a person can be deprived of the "right to life" so long as it is in accordance with the principles of fundamental justice. The deprivation of life is not in itself contrary to fundamental justice.

    Pratte J then said:

"...1 find it impossible to say that the death penalty is, in itself, a cruel and unusual punishment that is forbidden by s12 of the Charter when s7 of that same Charter expressly permits that a person be deprived of the right to life in accordance with the principles of fundamental justice."

    In dissenting reasons Hugessen J held that:

"...it is quite simply unthinkable that any Canadian court or government could countenance the extradition of any criminal, no matter how heinous his crime, to suffer torture at the hands of a foreign state.

A foreign punishment or treatment which falls within the proscription of s12 by being cruel and unusual creates a situation which, in the words of the quoted passage from Allard, is "simply unacceptable" to Canadians."

    Hugessen J then considered the cruel and unusual punishment issue. After citing with approval the dissent of Mcintyre JA (as he then was) in R v Miller and Cockriell 63 DLR (3d) 193 (BCCA), His Lordship said:

"Capital punishment is founded on no recognized sentencing principle and, since there is a valid, workable and acceptable alternative, is grossly disproportionate." (p12)

    Capital punishment being contrary to s12 of the Charter could not be justified under s1. Hugesson J concluded:

"...that capital punishment is cruel and unusual within the meaning of s12 of the Charter. For the Minister to surrender the appellant to suffer the death penalty at the hands of the American authorities would be simply unacceptable under our Constitution. That being so, the Minister has no discretion and no choice but to seek and obtain assurances under article 6 of the Treaty as a condition of surrendering the appellant." (p16)

R v Lyons - [1987] SCR 309, 37 CCC (3d) 1, 44 DLR (4th) 193.

- Upheld on appeal to the Supreme Court of Canada.

Carlston v New Brunswick (Solicitor General) - (1989) 7 WCB (2d) 350 (NBQB)

- The applicant sought relief pursuant to s24(1) of the Charter that an institutional policy restricting cigarette smoking constituted cruel and unusual punishment. Inmates who smoked were escorted outside several times a day to an area where there was no shelter. The court said that it would have little hesitation in finding that the policy constituted cruel and unusual treatment contrary to s12 of the Charter, if it was established that the inmate was a smoking addict and if the ban on smoking was a total one. The change of policy which allowed inmates a reasonable opportunity to smoke was such that no infringement was established.

R v Goltz - (1990), 52 C.C.C. (3d) 527

- The appellant was convicted of driving while prohibited under s88(1)(c) of the Motor Vehicle Act of BC. The section provides for a minimum 7 day jail sentence for any person who contravenes it. The court held the section violates s12 of the Charter and that it is not saved by s1.

    The court reasoned that the combined effect of there being an unlimited number of different circumstances under which the offence of driving while prohibited could be committed and the many different circumstances particular to the offender, leads to the conclusion that there will inevitably be cases where the mandatory sentence required by s88(1)(c) will be so grossly disproportionate to what otherwise would have been appropriate that it would offend s12.

    While agreeing that protecting the public against bad drivers is a sufficiently important objective to justify overriding a Charter right, s88 could not meet the proportionality test. The Crown did not demonstrate any obvious or probable need for a deterrent with such an indiscriminate reach. The removal of the mandatory minimum jail sentence would not prevent a court from imposing jail sentences where such a sentence would not result in a punishment which was cruel and unusual.

    The proper remedy is to strike down that portion of s88(1)(c) which provides for the minimum sentence, and to leave to the discretion of the sentencing judge the full range of sentences which can be used as needed and as deemed appropriate by the sentencing judge.

Steele v Warden of Mountain Institutionl - (1990) 54 CCC (3d) 334,76 CR (3d) 307 (BCCA)

- The BC Court of Appeal approved of the analysis adopted by the chambers judge Mr. Justice Paris. The court agreed that notwithstanding the validity of a sentence of preventive detention when it is imposed, it is open to the courts to consider a challenge to the continuing detention of an applicant on the grounds that it violates his rights under s12 of the Charter. The fact that the National Parole Board reviewed the applicant's case did not constitute a true alternative remedy to cause the courts to decline to exercise jurisdiction where it is alleged that a Charter right is being infringed.

    The court further agreed that the sentence imposed upon Steele was grossly disproportionate and accepted the chambers judge's conclusion that it was unlikely that Steele would be involved in offences which would warrant his continued indefinite incarceration. However, the Court of Appeal ruled that Steele should not have been released unconditionally. Persons subject to an indeterminate sentence who have served many years in prison should be subject to supervision by persons experienced in parole. Such supervision can only be provided through release by the National Parole Board and the court said that in view of the appellant's age and length of imprisonment, it would render his Charter right meaningless to make him go back to the Parole Board.

    The court was not satisfied that Steele's release should be unconditional and varied Paris J's order so that the Crown would be entitled to apply to court, ex parte if necessary, for an order that he be returned to custody should his conduct after release represent a danger of such serious harm to warrant his return to incarceration. The court also concluded that though it would be desirable for Steele to consult with a psychiatrist, the court could not make that a condition of release.

   There was no appeal from the companion case to Steele's, that of Belisle v Warden of Mountain Institution (1989) 72 CR (3d) 58 (BCSC), where the application for release was dismissed.

Steele v Warden of Mountain Institution - (1991) 60 CCC (3d) 1 (SCC)

- Steele had been detained in an institution for almost 37 years following his conviction at age 18 on a charge of attempted rape. Following his conviction he was declared a “criminal sexual psychopath" and was sentenced to five years in prison for the attempted rape and to an indeterminate period of detention thereafter. The Judge emphasized his desire that Steele receive proper treatment for his sexually deviant behaviour.

    Although there were no penitentiary facilities available to treat the respondent's condition, he initially responded well to his incarceration. Although various attempts at supervised parole were made, they ended because of some infraction, usually stemming from substance abuse or breach of discipline. Over the years, the respondent was the victim of a vicious circle in which he had little hope for release unless he could receive psychiatric treatment yet could not receive the psychiatric treatment he needed for release because it was not provided by the institution in which he was incarcerated. When, after some 20 years of imprisonment, the facilities for treatment did become available he was twice denied admission because his condition had deteriorated to the point where it was felt he would not benefit from the program. Even though the great majority of the psychiatric reports throughout the respondent's incarceration had recommended some form of release, those that did not described the respondent as "institutionalized". The Parole Board repeatedly denied parole finding that he was a risk to society.

    The respondent's sentence to an indeterminate term as a dangerous sexual offender did not in itself contravene s12 of the Charter and that sentence is valid. It is only by careful consideration and application of the criteria set forth in s16(1)(a) of the Parole Act that the indeterminate sentence can be made to fit the circumstances of the individual offender. Doing this will ensure that the dangerous offender sentencing provisions do not violate s12 of the Charter: It was clear on the face of the record that the Parole Board had misapplied or disregarded these criteria over a period of years with the result that the offender remained incarcerated far beyond the time he should have been properly paroled. In these circumstances, the Board's decision to keep the offender incarcerated violates s12 of the Charter:

    The Court dismissed the Crown's appeal from the judgment of the British Columbia Court of Appeal and confirmed that, as there was no way in which Mr. Steele's conduct could be regulated through the normal parole process, it was in the interests of public safety to maintain the conditions imposed by the Court of Appeal.

    Practice Note - The continuing detention of a dangerous offender sentenced pursuant to a constitutionally valid provision of the Criminal Code will only violate s12 of the Charter when the National Parole Board errs in the execution of its duties in tailoring that indeterminate sentence to the circumstances of the offender by applying the criteria set out in s16 of the Parole Act. An application challenging that decision should be made by means of judicial review of the National Parole Board decision to the Federal Court Trial Division rather than by means of an application for habeas corpus to the provincial superior court. [Steele's release on the basis of an application for habeas corpus was confirmed in "these highly unusual circumstances".]

    See Dumas v Director of LeClerc Institution of Laval et al (1987) 30 CCC (3d) 129 (SCC) which sets out the appropriate circumstances in which habeas corpus can or should be used (see annotations at pp410 and 420).

Protective Custody Inmates (Kent Institution) v Warden of Kent Institution - Unreported, March 5, 1991, No. T -3051-90 (FCTD) (Butterworths No. 35636)

- The plaintiffs sought an interlocutory injunction as a result of double-bunking in the Protective Custody sections of the institution, alleging that their treatment was contrary to ss12 and 15 of the Charter. In Piche v Canada (Solicitor General) (1989) 47 CCC (3d) 495 (FCA) aff'g 17 CCC (3d) 1 (FCTD) prisoners challenged double-bunking at Stoney Mountain Institution alleging it violated their s7 and s12 Charter rights. In that case, the court found that double-bunking was an administrative decision and did not constitute a denial of the principles of fundamental justice (S7), nor did it amount to cruel and unusual punishment (s12).

    Following Piche (supra), the court struck out the Statement of Claim as disclosing no reasonable cause of action and dismissed the application for an interlocutory injunction.

Hay v National Parole Board et al - Unreported, June 24, 1991, No. T-2705-90 (FCTD)

- See annotation on p5130.9 under s7 of the Charter.

13. Self-crimination - 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 a prosecution for perjury or for the giving of contradictory evidence.

R v Carlson - Unreported, September 14,1984, No. XO1151, New Westminster (BCSC)

- Statements made by an accused at a post-suspension hearing pursuant to s16 of the Parole Act cannot be led in evidence by the Crown on a charge of that person for manslaughter. Statements made at such hearings, even if the parolee was advised of his right to an assistant and made clear about his obligation not to say anything regarding the charge outstanding, nevertheless the leading of such evidence would be contrary to the plain meaning of s13 of the Chatter. Giving the Chatter a broad and liberal interpretation as it requires, the parole hearing is a "proceeding" and the statements made are made by a "witness" even though not under oath. The parolee was speaking out as a witness on his own behalf as well as an advocate. While the word "testify" usually signifies sworn evidence before a tribunal or officially constituted public body, nevertheless the absence of an oath in the circumstances was not determinative as the accused/parolee appeared before an officially constituted public body, namely, the Parole Board. The Board's procedures do not require testimony under oath but the parolee is called upon to assert his position and the consequences are of great significance. The accused, in making his submissions to the Parole Board was in effect testifying as a witness on his own behalf in a proceeding other than the charge for manslaughter and so had the right not to have any incriminating evidence so given used to incriminate him in these proceedings.

Haines v Disciplinary Tribunal -Kingston Prison for Women - Unreported, November 1, 1990, No. T -2853-90 (FCTD) (Butterworths No. 35010)

- The applicant prisoner was charged with two counts of assault and two counts of uttering threats pursuant to the Criminal Code to be dealt with in outside court. She was also charged with two internal charges of inciting and interfering which would be dealt with by the internal prison Disciplinary Tribunal. All charges arose out of the same fact scenario but the charges themselves were different. The applicant sought prohibition to delay the internal Disciplinary Tribunal hearing pending the disposition of the Criminal Code charges in outside court. The applicant feared that she would be prejudiced by being prevented from giving full answer and disclosure at the internal hearing because she feared that anything she might say at that hearing might be used directly or indirectly against her in the criminal proceedings. The Independent Chairperson had refused to delay the internal proceedings. The court held that while both sets of charges arose from the same set of facts and that, therefore, the evidence in the proceedings would probably be the same, but directed to the applicable charges, nevertheless, the charges were different and the proceedings before the criminal court and the proceedings before the Disciplinary Court were totally different "proceedings" and, therefore, s13 of the Charter applied. Consequently, any evidence that the applicant might give before the Disciplinary Court could not be used to incriminate her in the criminal proceedings, except in a prosecution for perjury or for the giving of contradictory evidence.

    In arriving at this conclusion, the court referred to the decision of Muldoon, J in Russell and Radley (see annotation at p936) to the effect that it is necessary to act swiftly and surely in prison discipline proceedings and concluded that it was not satisfied on the applicant's affidavit evidence that she would suffer prejudice and felt that a more serious prejudice might occur if the hearing did not proceed because of the delay that might be occasioned in relation to the completion of the criminal charges. The court conceded that there was a possibility that the applicant might be prejudiced but this was remote and that a concern that may possibly arise is not sufficient to say that it will arise or that the individual will suffer prejudice and, consequently, in its discretion, declined to issue prohibition.

14. Interpreter - A party or witness in any proceedings who does not understand or speak the language in which the proceedings are conducted or who is deaf has the right to the assistance of an interpreter.