Approximately 100 years ago, when a person was convicted of a crime, he lost all of his civil and proprietory rights and his status became that of a person dead at law. This concept of "civil death" was abolished by legislative reforms in both England and Canada in 1870 and 1892 respectively.

    The concepts of "outlawry, attainder and corruption of blood", whereby the convicted criminal forfeited both his real and personal estate including any estate he had inherited and any rights of inheritance which his heir might have, were swept away in England by the Forfeiture Act of 1870and in Canada by our Criminal Code of 1892, except in the province of Quebec which retained the concept of civil death in its Civil Code until 1906 and then substituted the status of civil degradation applicable to persons sentenced to death or indefinite punishment. This status results in the exclusion of the convicted person from all public functions, employment or offices and deprives the individual of the right to vote and of the right to be elected, and generally all civil and political rights under the legislative control of the province.

    Before the Charter, the central question in prison law litigation involved a determination of whether or not a prisoner continued to enjoy all those rights, privileges and freedoms that he enjoyed as a citizen, save to the extent that they were expressly or by necessary implication taken away by the governing legislation, or whether conversely, the prisoner only continued to enjoy those rights, privileges and freedoms that were expressly preserved by the governing legislation. This question would involve, in each case, an examination of the particular provisions of the governing legislation with a view to determining the intention of Parliament. Consequently, certain principles of statutory construction or interpretation were, and continue to be. of particular importance. These principles or presumptions are primarily designed to protect individual liberty or property against interference by the state in the absence of a clear expression of contrary intent. Consequently, a court will presume, in the absence of a clear expression in the statute to the contrary, that Parliament did not intend to prejudicially affect the liberty or property of the subject. As Mr. Justice Dickson, (as he then was) speaking for the majority of the Supreme Court of Canada stated in Marcotte v Deputy Attorney General of Canada:

    It is unnecessary to emphasize the importance of clarity and certainty when freedom is at stake. No authority is needed for the proposition that if real ambiguities are found, or doubts of substance arise, in the construction and application of the statute affecting the liberty of a subject, then that statute should be applied in such a manner as to favour the person against whom it is sought to be enforced. If one is to be incarcerated one should at least know that some act of Parliament requires it in expressed terms and not at most by implication.

    There are two presumptions of statutory construction that are commonly invoked in this area of the law. The first is the presumption against interference with vested rights which was stated by Chief Justice Duff in Spooner Oils Ltd v Turner Valley Gas Conservation Board as follows:

    The appropriate rule of construction has been formulated and applied many times. A legislative enactment is not to be read as prejudicially affecting accrued rights, or 'an existing status', unless the language in which it is expressed requires such a construction. The rule is described by Coke as a 'law of Parliament', meaning, no doubt, that it is a rule based on the practice of Parliament; the underlying assumption being that, when Parliament intends prejudicially to affect such rights or such a status, it declares its intention expressly, unless, at all events, that intention is plainly manifested by unavoidable inference.

    The second most commonly invoked presumption in this area of the law is the presumption against the retrospective operation of a statute. The classic statement of this presumption and its rationale appears in the case of Phillips v Eyre where Willis, J said:

    Retroactive laws are, no doubt, prima facie of questionable policy, and contrary to the general principle that legislation by which the conduct of mankind is to be regulated ought, when introduced the first time, to deal with future acts, and ought not change the character of past transactions carried on upon the faith of the then existing law... Accordingly, the court will not ascribe retrospective force to new laws affecting rights, unless by express words or necessary implication it appears that such was the intention of the legislature.

    A further presumption or rule of statutory construction is the rule that penal statutes are to be construed strictly. As Lord Esher said in Tuck and Sons v Priester.

    We must be very careful in construing that section, because it imposes a penalty. If there is a reasonable interpretation which will avoid the penalty in any particular case we must adopt that construction. If there are two reasonable constructions we must give the more lenient one. That is the settled rule for the construction of penal sections.

    The application of these principles to incarceration would appear to require the courts to hold that upon imprisonment a person only loses those rights and freedoms which are expressly or by necessary implication affected by the legislation governing their imprisonment. Nevertheless, the courts, though willing to apply these principles when questions concerning parole came before them, they appear to have had some difficulty applying them to issues involving matters inside the prison itself. For example, the Ontario Court of Appeal, in its advisory opinion in R v Institutional Head of Beaver Creek Correctional Camp, Ex Parte McCaud, in a frequently quoted passage, stated as follows:

    It would be trite to say that an inmate of an institution continues to enjoy all the civil rights of the person save those that are taken away or interfered with by his having been lawfully sentenced to imprisonment. Rather we consider that it is desirable to attempt to enumerate what are the civil rights to which an inmate remains entitled, which may be affected by the act of the institutional head of the penitentiary in which he is an inmate.

    At the outset, it must be observed that the passing of a sentence upon a convicted criminal extinguishes, for the period of his lawful confinement, all his rights to liberty and to the personal possession of property within the institution in which he is confined, save to the extent, if any, that those rights are expressly preserved by the Penitentiary Act.

    In that case, the Ontario Court of Appeal was considering the question of whether or not certiorari was available as a remedy to review and set aside the decision of an institutional head or warden convicting a prisoner of a disciplinary offence against the then Penitentiary Service Regulations. Similarly, Mr. Justice Walsh of the Federal Court Trial Division, in considering the question of whether or not a prisoner had the right to marry, there being no provision in the Penitentiary Act or Regulations, or the federal or provincial Marriage Acts prohibiting same, stated as follows in Bruce and Meadley v Reynett et al:

    Incarceration must of necessity involve the loss of a substantial number of privileges and amenities but the question raised is whether all privileges and amenities are lost save those specifically permitted by virtue of the Penitentiary Act and regulations or whether conversely an inmate retains all privileges save for those specifically taken away from him by such Act and regulations

    It is self evident that a person confined to a prison or penitentiary must of necessity be deprived of many rights, such as the right to liberty and to enjoyment of property, and retains only those that may be permitted by the regulations.

    In these and other judgments, the courts appeared to be treating the concepts of liberty and freedom as being absolute instead of relative to the circumstances of each case. Treating those concepts as relative and applying basic principles of statutory construction would appear to require an examination of the CCRA (and formerly the Penitentiary Act and Regulations) and in the absence of any express provision taking away the particular right in question, to hold that the right continues to exist, but that the right is not as broad as that enjoyed by the citizen in society at large because it is expressly or by necessary implication affected by the powers of the institutional head with respect to the security of the institution. In other words, in the marriage example, though the right to marry continues to exist, it is nevertheless further limited upon incarceration by the Director's powers with respect to the security of the institution to the extent that the Director can decide when, where and under what circumstances the marriage might take place, but the Director cannot prohibit the marriage.

    In 1979, the Supreme Court of Canada finally pronounced upon this issue in Martineau v Matsqui Institution Disciplinary Board (No. 2), a case in which the court considered the jurisdiction of the Federal Court Trial Division under s18 of the Federal Court Act to grant relief in the nature of certiorari against a prison disciplinary board decision which, in earlier proceedings, had been characterized by the court as a purely administrative decision, not required by law to be made on a judicial or quasi-judicial basis.

    Mr. Justice Pigeon in his reasons, concurred in by five other members of the court, concluded that there was jurisdiction to grant certiorari in the circumstances and in so doing he cited with approval the recent important judgment of the United Kingdom Court of Appeal in R v Board of Visitors of Hull Prison, ex parte St Germain, and quoted from the head note to that decision as best summarizing the views expressed as follows:

    The courts were the ultimate custodians of the rights and liberties of the subject whatever his status and however attenuated those rights and liberties were as the result of some punitive or other process, unless Parliament by statute decreed otherwise. There was no Rule of Law that the courts were to abdicate jurisdiction merely because the proceedings under review were of an internal disciplinary character and, having regard to the fact that under the Prison Act of 1952 a prisoner remained invested with residuary rights regarding the nature and conduct of his incarceration despite the deprivation of his general liberty, the Divisional Court had been in error in refusing to accept jurisdiction.

    Mr. Justice Dickson, who wrote separate concurring reasons, concurred in by two members of the court, put the matter as follows:

    Moreover, the boards decision had the effect of depriving an individual of his liberty by committing him to a 'prison within a prison'. In these circumstances, elementary justice requires some procedural protection. The rule of law must run within penitentiary walls.

    In my opinion, certiorari avails as a remedy wherever a public body has power to decide any matter affecting the rights, interests, property, privileges, or liberties of any person.

    And again, after referring to the R v Board of Visitors of Hull Prison, ex parte St Germain case:

    The Court rejected the submission that prisoners have no legally enforceable rights. Megaw, LJ concluded that the observance of procedural fairness in prison is properly a subject for review. Shaw, LJ held that despite deprivation of his general liberty a prisoner remains invested with residuary rights, appertaining to the nature and conduct of his incarceration. Waller, LJ accepted the proposition of Lord Reid in Ridge v Baldwin et al [1964] AC 40, that deprivation of rights or privileges are equally important and applied that proposition to the context of prison discipline.

    A further related issue that was dealt with by the Supreme Court of Canada in Martineau (No. 2) involves the question of the status of Commissioner's Directives and other subordinate rules or instructions promulgated by the Commissioner of Corrections or individual Wardens under the former Penitentiary Act or Regulations. The CCRA now appears to limit this power to the Commissioner of Corrections to make rules (s.97) and to designate some of them as 'Directives' (s. 98) which then places them in the public domain. Consequently any 'rules' promulgated by subordinates to the Commissioner must derive their power to do so via the Commissioners power to delegate unders.2(2) or 10 of the Act or s.5 of thr regulations. Prior to Martineau (No. 2) the second report of the standing joint committee on regulations and other statutory instruments concluded that these "directives" were not only "statutory instruments" but were in fact "regulations". The Ontario Court of Appeal, however, in R v Institutional Head of Beaver Creek Correctional Camp, Ex Parte McCaudand the Supreme Court of Canada in Martineau and Butters v Matsqui Institutional Inmate Disciplinary Board (Martineau No. 1) took a different view. In the former case, the court stated as follows:

   It was submitted by counsel for the appellant that the Commissioner's Directives made pursuant to the power conferred on the Commissioner by s29(3), also had statutory force equivalent to the Regulations made pursuant to the Act and that accordingly they conferred statutory rights on the inmate. In our view, to give the Directives such force would be to invest them with the status not contemplated by the statute. It is significant that the power of making Regulations is denied to the Commissioner but is expressly reserved to the Governor in Council by s29(1). The Regulations so made constitute, with the statute, the legislative framework in which the scope of the Penitentiary Act is defined and determined; the Regulations complement and particularize the statue and together with it make up the legal requirements within and in compliance with which the Penitentiary Service is created and operates. The Commissioner to whom under the direction of the Minister is committed the control and management of the Service, as has been pointed out, is primarily an executive officer and as such the Directives he makes pursuant to s29(3) are part of the administrative process for which he is responsible. The Commissioner for his assistance has a large force, geographically widely dispersed, by means of which he discharges the duties of his office. He must, of necessity, carry to those under his direction, in some form more lasting than word of mouth, the manner in which each member of the staff is expected to conduct himself in the discharge of the duties which are relevant to the post he holds. His Directives, which are internal to the Penitentiary Service, may and probably do govern the employer-employee relationship between the staff member and his superiors as part of the administrative structure. They define for the staff member the manner in which, and limits within which, he and other members of this service are expected to perform their duties; departure from the Directives may constitute an infraction of the obligation owed by the staff member to his superior, but any doubt on the part of a staff member which, in the absence of the Directives, would not constitute an infringement of some civil right or rights conferred on the inmate by the statute and Regulations, does not by virtue of the Directives become such an infringement. In other words, there is no obligation owed by a staff member to the inmate to adhere to the Directives. The duty owed by the Staff member to the inmate must be found in the statute and Regulations.

    In Martineau (No. 1), Mr. Justice Pigeon, speaking for four members of the court on this issue concluded as follows:

    It is significant that there is no provision for penalty and, while they are authorized by statute, they are clearly of an administrative, not a legislative, nature. It is not in any legislative capacity that the Commissioner is authorized to issue Directives but in his administrative capacity. I have no doubt that he would have the power of doing it by virtue of his authority without express legislative enactment. It appears to me that s29(3) is to be considered in the same way as many other provisions of an administrative nature dealing with departments of the administration which merely spell out administrative authority that would exist even if not explicitly provided for by statute.

    In my opinion, it is important to distinguish between duties imposed on public employees by statutes or Regulations having the force of law and obligations prescribed by virtue of their condition of public employees. The members of a Disciplinary Board are not high public officers but ordinary civil servants. The Commissioner's Directives are no more than directions as to the manner of carrying out their duties in the administration of the institution where they are employed.

    Chief Justice Laskin, on the other hand, speaking for four members of the court, concluded as follows on this issue:

    The nub of the matter is, thus, as my brother Pigeon noted, whether the Directives prescribing what I may compendiously call natural justice for the appellant were made pursuant to "law" and were, therefore, to be observed by the penitentiary authorities.

    Can there be any doubt about this? The source or authority for the Directives was in s29(3) of the Penitentiary Act, RSC 1970, cP-6. Section 29 provides both for the making of Regulations by the Governor in Council and for the making of rules, to be known as Commissioner's Directives, by the Commissioner of Penitentiaries.

    It appeared to be the contention of the respondent that although Parliament has prescribed a rule making authority for the Commissioner (carrying, in accordance with the ordinary view of delegated powers, limitations thereon according to their scope) the fact that no penalty has been prescribed for breach of the rules (in contrast to the position respecting breach of Regulations made by the Governor in Council) denudes the rules of any legal authority; indeed, the suggestion is that the Commissioner could have prescribed the Directives suo motu if there had been no such provision as s29(3), and could have disregarded them with impunity, and that s29(3) added nothing to his administrative authority.

    There is no doubt that the Penitentiary Act, even in s29(3) gives authority to the Commissioner to make rules or issue directives which do not run to any enforceable claim by inmates for their observance. This, however, does not mean that all directives must necessarily be characterized as purely administrative or, as was said below, as rules of management as to which no duty of compliance can be enforced by inmates. What is asserted here is that the carefully-wrought rules of procedure governing the hearing and disposition of charges of flagrant or serious offences have no external force, that the appellants have no right to the benefit of the procedure because the penitentiary authorities have no duty to follow them, although they have been prescribed under statutory authority.

    This is much too nihilistic a view of law for me to accept. The fact that a Disciplinary Board is charged with a duty to inquire into the validity of charges of flagrant or serious offences brought against inmates, with the consequent risk to them of punishment if the charges are proven, does not stand alone; a formal procedure is prescribed for the benefit of inmates so charged, a procedure which is very typically a prescription of natural justice, and the duty to follow it arises from its very prescription:

    The absence of a penal sanction for the rules or directives can be no more compelling on whether law is involved (with a corresponding duty of obedience) than is the absence of a penal sanction in respect of rules of procedure governing the orders of other tribunals which are found by the courts to be quasi-judicial bodies whose decisions are reviewable under s28(1) of the Federal Court Act. The reviewing Court imposes a sanction by the very fact of review. Moreover, it is a fallacy to contend that rules of directives are less a matter of "law" than are Regulations whose breach is punishable. Rules of procedure of a tribunal are addressed to it and to those affected by the powers exercisable by the tribunal, and it would be odd, indeed, if a penal sanction was imposed upon tribunal members for failure to follow them. The sanction for obedience to them rests on the vulnerability of the tribunal's decisions if made in disregard of its operating rules.

    Mr. Justice Judson concurred separately and adopted the reasons of Chief Justice Jackett in the Federal Court of Appeal. That judgment did not deal specifically with the question of the legal status of the Directives although Chief Justice Jackett did conclude that prison disciplinary decisions were not required to be made on a judicial or quasi-judicial basis "...even though they are required by administrative rules to be made fairly and justly." Thus, it is arguable that the Supreme Court of Canada in that decision was equally divided on the status of the Commissioner's Directives.

    It should be noted that the effect of the Statutory Instruments Act on the legal status of these Directives was not argued before the Supreme Court of Canada in the Martineau (No.1) case, supra, but the effect of the provisions of the Interpretation Act,in particular the definition of "regulation" in that Act was argued but not dealt with by any members of the court in their reasons for judgment. The definition of "regulation" in the Interpretation Act is as follows:

    'Regulation' includes an order, regulation, order in council, order prescribing Regulations, rule, rule of court, form, tariff of costs or fees, letters patent, commission, warrant, proclamation, by-law, resolution or other instrument issued, made or established

    (a) in the execution of a power conferred by or under the authority of an Act, or

    (b) by or under the authority of the Governor in Council.

    For a consideration of the applicability of the Statutory Instruments Act, the reader is referred to an excellent article on this issue by Professor HN Janisch, of the Faculty of Law of Dalhousie University, entitled "What is 'Law'? -Directives of the Commissioner of Penitentiaries and Section 28 of the Federal Court Act -The Tip of the Iceberg of Administrative Quasi-Legislation."

    The applicability of the Statutory Instruments Act to Commissioner's Directives was argued in the Supreme Court of Canada in Martineau (No. 2). Once the question of the jurisdiction of the Federal Court of Appeal under s28 of the Federal Court Act was decided against him, Martineau continued proceedings under s18 of the Federal Court Act to the Federal Court Trial Division. The Trial Division concluded that it had jurisdiction but the Federal Court of Appeal subsequently reversed it and that decision was appealed to the Supreme Court of Canada. In the Supreme Court of Canada, the appellant, Martineau, relied upon the decision of the United Kingdom Court of Appeal in R v Board of Visitors of Hull Prison, ex parte St Germain. The respondents attempted to distinguish that decision by submitting that in England the rules to procedure of such Boards were "Statutory Instruments". Consequently, the appellants in reply were able to submit that the rules of procedure in Canada (specifically Commissioner's Directive 213 as it then was) also had the status of "Statutory Instruments" within the meaning of our Statutory Instruments Act. However, the court, although given an opportunity to reconsider this issue, decided not to do so.

    Mr. Justice Pigeon in his reasons simply states as follows:

    The reasons of the majority, except one Judge who agreed with the reasons of the Court of Appeal, show that, in their view, the 'Directives' governing the procedure for dealing with disciplinary offences were considered to be administrative directions rather than 'law', although the Regulations defining disciplinary offences and specifying the penalties that may be inflicted by the penitentiary authorities were in the nature of law.

    Mr. Justice Dickson in his concurring reasons, after referring to the court's earlier decision, states:

    The Court held that the impugned order was not within the scope of the opening words of s28 of the Federal Court Act and that the directive of the Commissioner of Penitentiaries was not 'law' within the meaning of the phrase 'by law' in s28.

And further on in his reasons he states:

    Martineau (No.1) was wholly unconcerned with the issue of 'fairness'. The central issue there was whether the decision of the Disciplinary Board was within the scope of s28 as being 'required by law to be made on a judicial or quasi-judicial basis'.

    Mr. Justice Pigeon, again speaking for a majority of the Court, considered the question whether the directive of the Commissioner was to be regarded as 'law' in the wording of s28 and concluded that, while Regulations under the Penitentiary Act were law, the same could not be said of the directives... It is not in any legislative capacity that the Commissioner is authorized to issue directives but in his administrative capacity.'

    In the case of an Inmate Disciplinary Board, the directive of the Commissioner lacks statutory force and, by implication then, Parliament did not intend the directive to have status as a procedural code defining rules of natural justice exhaustive for the board. Accordingly, the decision in question was not one required by law to be made on a judicial or quasi-judicial basis, and the applicant had not brought himself within the precise language of s28.

    Consequently, the Supreme Court of Canada decided that, notwithstanding the provisions of the Interpretation Act and the Statutory Instruments Act, the Commissioner's Directives are not "law", at least within the meaning of that term in s28 of the Federal Court Act.

    This did not end the matter, because, on occasion, the Penitentiary Service Regulations appeared to incorporate by reference the Commissioner's Directives. For example, on the question of medical services, the Penitentiary Service Regulations provided as follows:

s16.     Every inmate shall be provided, in accordance with directives, with the essential medical and dental care that he requires.

    It follows, that in referring to the Directives in this manner in the Regulations, the Directive becomes part of the Regulations and as such has the force of law.The CCRA provisions on "Health care" (s.85 - 89) are now in the Act and are more extensive and no longer incorporate 'directives' and refer to 'professionally accepted standards'.

    If the Directives do not have the status or force of "law", then the actions of corrections officials, when they rely on Directives as authority for their actions, will have to be carefully scrutinized to determine whether or not the actions in question and hence the Directive is within the powers conferred by the CCRA or its Regulations or is otherwise authorized by law. If it is not, then the Directive might be struck down as being in excess of jurisdiction or ultra vires.

   Following the decision of the Supreme Court of Canada in Martineau (No.2), the question of whether or not the duty of procedural fairness applied, had been complied with, or breached in the circumstances, became one of the central issues in most prison law litigation. Not only did this issue arise in the context of prison disciplinary matters, but also in relation to transfers, both to special handling units and other institutions, and in relation to the imposition of administrative segregation. In 1985, the Supreme Court of Canada had occasion, once again, to pronounce upon the applicability of the procedural fairness doctrine, this time in the context of administrative segregation. In Cardinal and Oswald v The Director of Kent Institution, the prisoners were allegedly involved in a hostage taking incident in a medium security institution and were transferred to a maximum security institution and placed in solitary confinement, pursuant to s40(1) of the Penitentiary Service Regulations,(now in s.31 - 37 of the Act) for the maintenance of good order and discipline in the institution. In accordance with that regulation, their confinement was reviewed once a month by the Segregation Review Board. After approximately three months, the Review Board recommended that they be returned to general prison population. The Director declined to follow that recommendation, taking the position that their release from segregation, before disposition of the pending criminal charges for forcible seizure and attempted escape, was not in the interests of the maintenance of good order and discipline in the institution. He did not inform the applicants of his reasons for refusing to follow the Board's recommendation, nor did he afford them an opportunity of a hearing. The prisoners obtained an order of habeas corpus with certiorari in aid to obtain their release from administrative confinement to the general prison popuiation, but on appeal, the British Columbia Court of Appeal reversed the trial court judgment. The prisoners appealed to the Supreme Court of Canada,which allowed the appeal and, in the course of giving judgment for the court, Le Dain, J made the following comments:

    There can be no doubt, as was held by McEachern CJSC and the Court of Appeal, that the director was under a duty of procedural fairness in exercising the authority conferred by s40 of the regulations with respect to administrative dissociation or segregation. This court has affirmed that there is, as a general common law principle, a duty of procedural fairness lying on every public authority making an administrative decision which is not of a legislative nature and which affects the rights, privileges or interests of an individual: Nicholson v Haldimand-Norfolk Police Commr Bd, [1979] 1 SCR 311, 78 CLLC 14, 181, 88 DLR (3d) 671, 23 NR 410 [Ont]; Martineau v Matsqui Inst Disciplinary Bd, [1980] 1 SCR 602, 13 CR (3d) 1, 15 CR (3d) 315, 50 CCC (2d) 353, 106 DLR (3d) 385, 30 NR 119; and AG Can v Inuit Tapirisat of Can, [1980] 2 SCR 735, 115 DLR (3d) 1, 33 NR 304. In Martineau, the court held that the duty of procedural fairness applied in principle to disciplinary proceedings within a penitentiary. Although administrative segregation is distinguished from punitive or disciplinary segregation under s40 of the Penitentiary Service Regulations, its effect on the inmate in either case is the same and is such as to give rise to a duty to act fairly.

    The question, of course, is what the duty of procedural fairness may reasonably require of an authority in the way of specific procedural rights in a particular legislative and administrative context and what should be considered to be a breach of fairness in particular circumstances.

    After referring to the caution with which this question must be approached in the context of prison administration, as stated by the Supreme Court in Martineau (No. 2), LeDain, J continued as follows:

    The issue then is: what did procedural fairness require of the director in exercising his authority, pursuant to s40 of the Penitentiary Service Regulations, to continue the administrative dissociation or segregation of the appellants, despite the recommendation of the board, if he was satisfied that it was necessary or desirable for the maintenance of good order and discipline in the institution. I agree with McEachern CJSC and Anderson JA that, because of the serious effect of the director's decision on the appellants, procedural fairness required that he inform them of the reasons for his intended decision and give them an opportunity, however informal, to make representations to him concerning these reasons and the general question whether it was necessary or desirable to continue their segregation for the maintenance of good order and discipline in the institution. With great respect, I do not think it is an answer to the requirement of notice and hearing by the director, as suggested by Macdonald JA, that the appellants knew as a result of their appearance before the Segregation Review Board why they had been placed in segregation. They were entitled to know why the director did not intend to act in accordance with the recommendation of the board and to have an opportunity before him to state their case for release into the general population of the institution. I do not think the director was required to make an independent inquiry into the alleged involvement of the appellants in the hostage-taking incident. He could rely on the information he had received concerning the incident from the warden of Matsqui Institution and the personnel at regional headquarters. At the same time, he had a duty to hear and consider what the appellants had to say concerning their alleged involvement in the incident, as well as anything else that could be relevant to the question whether their release from segregation might introduce an unsettling element into the general inmate population and thus have an adverse effect on the maintenance of good order and discipline in the institution.

    These were in my opinion the minimal or essential requirements of procedural fairness in the circumstances, and they are fully compatible with the concern that the process of prison administration, because of its special nature and exigencies, should not be unduly burdened or obstructed by the imposition of unreasonable or inappropriate procedural requirements. There is nothing to suggest that the requirement of notice and hearing by the director, where he does not intend to act in accordance with a recommendation by the Segregation Review Board for the release of an inmate from segregation, would impose an undue burden on prison administration or create a risk to security.

    There is the question, suggested by the reasons for judgment of Nemetz CJBC, whether the breach of the duty to act fairly in this case should be held not to have resulted in an excess or loss of jurisdiction and to have made the continuing segregation of the appellants unlawful because, having regard to the merits of the substantive issue, it did not result in a substantial injustice or, to use the words of Nemetz CJBC, was not of "sufficient substance". Both Nemetz CJBC and Macdonald JA considered the substantive issue of whether the appellants should be released from segregation and appeared to conclude that the director's reasons for refusing to follow the recommendation of the Segregation Review Board were reasonable and fair. It is a possible implication of their approach that they were of the view that, given the director's reasons for refusing to follow the recommendation of the board, a hearing by him of the appellants would not serve any useful purpose. Certainly a failure to afford a fair hearing, which is the very essence of the duty to act fairly, can never of itself be regarded as not of "sufficient substance" unless it be because of its perceived effect on the result or, in order words, the actual prejudice caused by it. If this be a correct view of the implications of the approach of the majority of the British Columbia Court of Appeal to the issue of procedural fairness in this case, I find it necessary to affirm that the denial of a right to a fair hearing must always render a decision invalid, whether or not it may appear to a reviewing court that the hearing would likely have resulted in a different decision. The right to a fair hearing must be regarded as an independent, unqualified right which finds its essential justification in the sense of procedural justice which any person affected by an administrative decision is entitled to have. It is not for a court to deny that right and sense of justice on the basis of speculation as to what the result might have been had there been a hearing.

    The court held that the Director's failure to afford the prisoners a fair hearing on the question of whether or not he should act in accordance with the recommendation of the Segregation Review Board that they be released from administrative segregation into the general population of the institution rendered the continued segregation of the prisoners unlawful and entitled them to habeas corpus to be released from administrative dissociation or segregation into the general population of the penitentiary.

    It is therefore settled that the duty of procedural fairness arises not only when a public authority makes an administrative decision affecting the rights, privileges or interests of an individual, but also that in certain circumstances, this obligation is a continuing one which might require timely reconsideration of an initial adverse decision affecting such rights, privileges or interests.