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.