As expected, s7 of the Charter has been raised in numerous cases involving prison law and can be expected, along with s1, to be raised most frequently in the future. Again, most of the decisions to date were decided prior to the decisions of the Supreme Court of Canada in Singh (supra) and the Motor Vehicle Reference (supra) and should therefore be considered along with those subsequent decisions of the Supreme Court of Canada.

A noteworthy case in regard to s7 and the retrospective/prospective application of the Charter is Gamble v The Queen [1988] 2 SCR 595 (SCC).

    In a 3 to 2 decision the Supreme Court of Canada held that the ongoing detention of the appellant pursuant to the 25-year parole ineligibility condition in her sentence violated s7 of the Charter. The crime was committed in March 1976 and the appellant was convicted nine months later under former s214 (now s231) of the Criminal Code and sentenced under s669(a). Both sections were proclaimed in force on July 26, 1976.

    Writing for the majority, Wilson, J found that the law in force at the time the crime was committed should have been applied and that the appellant was convicted and sentenced under the wrong law. She added that a fundamental aspect of any legal system governed by "the rule of law" is that an accused must be tried and punished under the law in force at the time. the offence is committed.

    Madame Justice Wilson held that the appellant's s7 claim did not involve a retrospective application of the Charter. What was in issue in her view was the ongoing operation of the parole ineligibility provision in her sentence. Had the law at the time of the offence been applied the appellant might have been eligible for parole after 10 years instead of the 25-year parole ineligibility provision which came into effect after the crime had been committed and which the appellant was sentenced under.

    In defining the issue Madame Justice Wilson stated (p25):

...the relevant Act to which the Charter is applied would not be the conviction or sentencing but the continuing execution of that part of the sentence which mandates a 25-year period of parole ineligibility.

    The dissent, written by Chief Justice Dickson, held the appellant's claim requires a retrospective application of the Charter. The Chief Justice said that the appellant's argument, that she was wrongfully being denied parole eligibility for 25 years and that this amounted to an ongoing violation of s7, was dependent upon the argument that the original conviction and sentence would not have survived Charter scrutiny if they had been pronounced when the Charter was in force.

    The Chief Justice took the view that even if the appellant's conviction and sentence were initially invalid or improper, they were statutorily endorsed by the transitional provision provided by s27(2) of the Criminal Law Amendment Act (No. 2) 1976.

    That section states that where proceedings for treason, piracy or murder were commenced before the Act came into force and a new trial has been ordered, the offence shall be tried and determined, and the punishment in respect of the offence shall be imposed, as if the offence had been committed after the coming into force of the Act.

    The Chief Justice went on to say that he could not: "accept that an ongoing violation of s7 can be found in this particular case without applying s7 to either s27(2) or to the sentence which it validated". Both of which would require a retrospective interpretation of the Charter.

    Madame Justice Wilson did not comment at length on s27(2) of the Criminal Law Amendment Act (No .2) 1976. It has to be read into her decision that s27(2) cannot save a conviction and sentence from Charter scrutiny where: 1) "the overwhelmingly significant fact is that the applicant was not properly convicted and sentenced"; and 2) the effect of the improper conviction and sentence creates an ongoing violation of the applicant's liberty interest under s7 of the Charter.

    "Conditional Release" - Most of the litigation involving s7 of the Charter in a prison law context has arisen in relation to applications I for conditional release in one form or another and suspensions and revocations of conditional release. The threshold issue involves a determination of whether or not a sufficient "liberty" interest or "security of the person" interest is involved so as to attract s7 and thereafter, the remaining issue is whether or not the person has been dealt with in accordance with the "principles of fundamental justice". In R v Caddedu and Nunnery, it was held that s7 of the Charter requires a hearing to be held in circumstances where revocation of I parole is involved. That this principle applies to provincial parolees as well as federal parolees, is clear from the decision in Cadeddu as well as the decisions in Re Martens and R, In Re Lowe, and In Re Conroy to name a few examples. In Cadieux (supra) s7 was he1d to apply to a decision to revoke an unescorted temporary absence program. Reed, J held that the interests of a prisoner affected by such a decision was similar to the interests of a prisoner facing possible revocation of day parole or full parole. Though the "liberty" interest was more limited in nature it was held to be similar in character. The distinction between "rights" and "privileges" was rejected as a ground for distinguishing between allowing and not allowing judicial review. In Reed, J's view, the word "right" in s7 was to be interpreted in a generic sense as encompassing all concepts and not in a narrow sense. Consequently, the fact that one was dealing with the granting of a privilege did not lessen the applicability of the common law duty of fairness or s7 of the Charter principles of fundamental justice. The court did not go so far as to require a hearing in such circumstances, but held that a failure to disclose to the prisoner the case against him violated s7 and required a reconsideration and redetermination on proper principles. On the other hand, in O'Brien v The National Parole Board, it was held that an application for unescorted temporary absences did not bring into play s7 because such an application did not raise questions of the deprivation .of any constitutionally enshrined right of liberty such as might occur in revocation circumstances. Here, the court relied upon the "right/privilege" distinction, holding that a distinction must be drawn between a denial affecting the expection 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. However, if the Board had embarked upon a hearing, even though one was not legally required, it was then compelled to conduct the hearing in accordance with the principles of fundamental justice and the common law duty to act fairly. In Staples v The National Parole Board, it was held that s7 applied to an application for day parole. Whether or not a hearing was required was not decided. The court held that a decision to grant or refuse day parole was a decision pertaining to "liberty" and was not distinguishable from a decision to revoke parole. The court declined to decide whether or not s11 of the Parole Act, which purports to exclude the right to a hearing in relation to day parole, was in conflict with s7 of the Charter. It was sufficient, in the circumstances, to hold that the applicant had not been made aware of the substance of the materials adverse to his case that the Board would be considering, in order to enable him to respond with evidence or argument. The distinctions between the applicability of s7 to "applications" for a degree of liberty and to "revocations" of an existing degree of liberty and the degrees of liberty themselves promise further litigous consideration.

    In those cases where a hearing is required, it has been held in Martens,,Lowe and Hewitt(supra) that it is a violation of s7 to preclude the prisoner from being present for the entire hearing so as to obtain full disclosure of all relevant considerations. Furthermore, in Re Mason and The Queen, it was held that a prisoner is entitled to an in-person hearing before at least a majority of the full panel necessary in a particular case and if the majority of two members is unable to agree and a third vote is required, a new hearing would have to be held before three members. The Board could not have the third vote cast in the absence of the prisoner affected and his assistant and in the absence of submissions. To hold otherwise would have allowed the third Board member to render a decision based on written materials without a personal plea and this would be fundamentally unjust and unfair and violate s7. A decision on the question of parole by deportation, pursuant to s11.1 of the Parole Regulations was set aside on consent in Schertow v National Parole Board where all of the Board members determining or deciding the question were not present at the hearing.

    In In Re Conroy (supra) it was held that s7 did not apply to a situa- tion where a person was already on parole and the Board decided to impose an additional special condition. The addition of such a con- dition without notice to the party did not involve the deprivation of "liberty" and would not require a hearing, nor would it attract s7 principles. However, in Litwack v National Parole Board, it was held that a decision by the Board to impose terms or conditions on a parole on 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 it was held that the imposition of the condition in the circumstances I was not unreasonable, nevertheless, a subsequent decision on an application to have it removed violated s7 principles because of undue delay and because the decision not to remove the condition was patently unreasonable in substance and inconsistent with the purposes of imprisonment on parole.

    The decision in Litwack (supra) is an example of a decision rendered subsequent to the decision of the Supreme Court of Canada in Reference Re Section 94(2) of the Motor Vehicle Act (BC) (supra) which held that s7 was not merely procedural but also substantive. In Latham v Solicitor General of Canada et al (supra), a decision prior to the Motor Vehicle Reference (supra), it was held that s7 was merely procedural and not substantive and that s20 of the Parole Act was not in itself contrary to s7. However, non disclosure of the case against the prisoner, in the circumstances, still resulted in a violation of s7 and s17 of the Parole Regulations was held not to be a reasonable limit within s1 of the Charter on such s7 rights. Furthermore, the prisoner had not been entitled to be present throughout his hearing when the confidential information was discussed.

    "Disclosure" -The question of the disclosure of the case against a person on an application for conditional release or in circumstances of possible revocation has arisen in various cases, both before the .Charter under the duty of procedural fairness arising at common law, and since the Charter under s7 principles of fundamental justice. Frequently, considerations of s1 of the Charter come into play where statutory or other rules have been erected in an effort to prevent disclosure. In Cadieux (supra), it was held that the rules of fairness do not always require disclosure of all information that a decision making body has before it. Nevertheless, the court was of the view that it would be rare that a prisoner could not be told at least the gist of the case against him. However, the court could envisage some situations where it might be necessary to refuse to disclose even the gist of the case against a prisoner when the content of information related to conduct occurring within the institution might automatically lead to disclosure of the identity of an informer. Safety and order within the prison may require the non-disclosure of the identity of informers or if disclosure would automatically lead to the revealing of information collection methods and undermine the functioning of the Board. It was held that the public interests in preventing the repetition of offences when a prisoner is at large, in maintaining security and order in a penal institution and preserving the 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 upon which these exceptions would apply would be rare and would have to involve an element of necessity. Mere convenience for the functioning of the Board would not be enough, nor that the information was provided in confidence. These latter grounds were considered too weak to justify 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. The court concluded that a prisoner is entitled to know the substance of the case against him to enable him to make a reply, but this did not mean that he was entitled to the identity of the source of the information, or production of the actual documents themselves, nor all the details of the case against him. Furthermore, there must be a nexus between the content of the information that the Board doesn't wish to disclose and the protection of the public interests said to be served by the non-disclosure. The provisions of the Parole Board's policy and procedures manual, which allowed for non-disclosure, did not apply because those rules were not "prescribed by law" to bring into play s1 of the Charter. Though s17 of the Parole Regulations and the provisions of the Privacy Act and Canadian Human Rights Act might have been legally effective to limit the common law duty of fairness, they could not be used to limit a s7 Charter right as their provisions were too broadly framed to be a reasonable limit under s1 of the Charter. In Staples (supra), an application to quash a decision denying day parole was granted because the Board failed to advise the applicant prisoner of the substance of the materials adverse to his case that the Board would be considering, in order to enable him to respond to it with evidence or argument. In H v The Queen and the National Parole Board, it was held that the provisions of the Privacy Act and in particular, ss19 through 28, did not control the question of disclosure in the case against a person and a fair opportunity to respond within the rules of natural justice of fairness. The Privacy Act allows individuals to obtain access to information about themselves in government files and the exemptions in the Act relate to requests for information made pursuant to the Act and do not operate as a limit on access to information to which an individual might be entitled as a result of other legal rules or principles such as the right to know the case against one, under the rules of natural justice. Similarly, a person does not have to exhaust remedies under the Privacy Act before applying to the court. The rules allowing for disclosure under the Privacy Act are different from and designed to serve different purposes from those flowing from the rules of natural justice. In that case, the Board had indicated it had some suspicions against the applicant but did not give him sufficient disclosure of the circumstances surrounding the suspicion. The court held that details of the suspicion should have at least included the dates of the alleged offences, the place and presumably some indication of the time and identity of victim. It was held that s17 of the Parole Regulations did not apply to an application for day parole. The court granted a writ of prohibition precluding the Board from relying on that information in coming to its decision. In Martens (supra), it became apparent on an internal review, that additional factors had been taken into account by the Board than had been expressed in the reasons given to the parolee and consequently, a new hearing was ordered. In Latham (supra) as previously indicated, s17 of the Parole Regulations was held not to be effective to limit the rights a parolee has under s7 of the Charter and that fairness required at least an outline be given to the person affected of the allegations being considered in deciding whether or not to deny that person his liberty. The court held that a law which purports to deny at least such minimal disclosure could not amount to a reasonable limit within the meaning of s1 of the Charter. Also, in Wilson v The National Parole Board (supra), where the Board had .relied on confidential security information and withheld it from the prisoner, the court ordered the Board to make available to the prisoner the information contained in his security file, but indicated that the Board was not required to furnish him with such information referred to in s54(d)(ii) of the Canadian Human Rights Act pertaining to information obtained on a promise of confidentiality, express or implied, if that information would automatically lead to the disclosure of the identity of an informer. In addition, the Board was not required to furnish such information which was covered by the provisions of s54(c)(ii), (d)(ii) and (e) of the Canadian Human Rights Act, which includes information obtained on a promise of confidentiality and information that might reveal personal information concerning other individuals. Consequently, the court ordered disclosure, and though it held that s17 of the Parole Regulations and s54 of the Canadian Human Rights Act were limited in their application to the overriding provisions of s1 and s7 of the Charter, there were nevertheless certain provisions of s54 of the Canadian Human Rights Act which did not breach those sections of the Charter and met the standards of fairness required. The court did say that the withholding of information simply obtained on a promise of confidentiality express or implied, with no other reason in support might well breach s7 principles. In each case, it would depend upon whether or not such disclosure would automatically lead to the identity of an informer, in which case, in the court's view, such information would have to be kept secret. This entire area of disclosure and non-disclosure of information on such hearings and other hearings in a prison law context remains prolematic and a considerable amount of future litigation is likely. At common law the law in Canada is summarized in Lazarov v Secretary of State.

    "Disciplinary Courts" - Section 7 of the Charter has also been raised in relation to matters inside the prison, such as the internal disciplinary courts and in relation to transfers. In Howard v Presiding Officer of the Inmate Disciplinary Court of Stony Mountain Institution, the Federal Court of Appeal held that the effect of s7 of the Charter was to greatly enhance 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. Because earned remission was in jeopardy and because the prisoner might be sentenced to solitary confinement as punishments for disciplinary offences, it was held that the prisoner's "liberty" and the "security of his person" were at stake and consequently, s7 came into play. Whether or not the "principles of fundamental justice" required, among other things, the right to assistance of counsel, arises out of the requirement that the person be afforded an opportunity to fairly and adequately present his case. There is a right to counsel where the circumstances are such that the opportunity to present the case adequately calls for the representation by counsel. In such circumstances, there is no discretion in the independent chairperson, although there may be a residual discretion in such a chairperson to allow counsel in other circumstances. In Toner v The Director of Mountain Institution et al, it was held that s7 had.not been breached in circumstances where there was no clear request for counsel made in the disciplinary court proceedings. In Mitchell v Crozier et al, a conviction for a "serious or flagrant offence" was quashed because the prisoner requested counsel and his request was denied contrary to the principle underlying the Howard decision (supra), but the application was dismissed in relation to two other convictions where the prisoner assumed that they were "minor" without reading the notice of offence and did not request counsel in relation to those charges. The court held that the failure to request counsel in relation to those charges was due to the prisoner's own misconception of the nature of the charges and therefore, his own conduct.

     Though it appears from the decision in Howard (supra) that in most circumstances involving "serious" offences, there will be a right to counsel, the question of who will pay to provide counsel where the prisoner cannot afford to pay raises additional problems. In Landry v Kent Institution Disciplinary Board, a prisoner who was charged with a serious offence requested counsel and the chairperson acceded to the request for an adjournment to obtain counsel, having in mind the decision of the Federal Court of Appeal in Howard. Landry then applied for legal aid and was told that though he was financially eligible, the matter was not covered by the British Columbia legal aid plan. Landry then applied to compel the Legal Services Society of British Columbia to provide counsel, arguing that he was a defendant in criminal proceedings that could lead to his imprisonment or alternatively, that the proceedings were civil and might result in him being imprisoned or confined or, in the further alternative, that he was faced with a legal problem that threatened his livelihood. If he came within .those terms, there was a mandatory obligation on the Legal Services Society of British Columbia to provide counsel. The disciplinary court proceedings were adjourned, pending a decision of the British Columbia Supreme Court on that issue, but before judgment was rendered, the chairperson decided to proceed with the charge and found him guilty and sentenced him to a forfeiture of 90 days earned remission. Shortly thereafter, the British Columbia Supreme Court ruled that proceedings were disciplinary and not criminal or civil and that he was therefore not entitled to legal aid. Landry applied to quash the decision of the chairperson in order to enable him to appeal the decision of the British Columbia Supreme Court to the Court of Appeal. The Federal Court Trial Division held that the chairperson's decision to refuse a further adjournment, in the circumstances, bearing in mind the ethnic and educational background of the applicant, was tainted with unfairness and that the chairperson failed to take into account relevant matters and did not indicate that a fair trial could proceed without counsel. The decision was therefore quashed without hesitation. Subsequently, the British Columbia Court of Appeal dismissed Landry's appeal on the issue of the obligation of the Legal Services Society to provide counsel and agreed with the court below that the proceedings were disciplinary and not civil or criminal.

    To date, the provision of legal aid has been the responsibility of the provinces, presumably under their constitutional power over the administration of justice. Consequently, whether or not a particular provincial government will be required to provide legal aid for disciplinary court matters will depend upon an interpretation of provincial legislation to determine whether or not it is mandatory or discretionary to provide legal aid in the circumstances. In British Columbia, the Court of Appeal has held that under British Columbia legislation, the provisions of legal aid for such matters is not mandatory. In Ontario, legal aid is provided for such matters and has been provided in post suspension parole revocation hearings for some time. In Manitoba, a duty counsel system prevails for disciplinary court matters. The question of whether or not these varying practices in various provinces bring into play an issue under s15 of the Charter may well arise in future. The alternative is for the federal government to provide funds for counsel in such circumstances. If neither government sees fit to provide funding, the result may be that certain disciplinary court matters will not proceed because the court has ruled that counsel is necessary in order to comply with s7 of the Charter and no one is able or willing to pay for counsel.

    "Transfers" - Section 7 of the Charter has also been frequently raised in relation to the question of transfers from lesser security to higher security and to segregation units or special handling units. In Dubois v Sauve et al, the transfer of a prisoner to higher security and to administrative segregation and then a special handling unit, because of a new policy that persons receiving life sentences without eligibility for parole for 25 years be placed in special handling units, was held not to infringe s7 of the Charter. An allegation that the conditions in the special handling unit involved sensory deprivation and danger to health and offended the "security of the person" of the prisoner, as well as the principles of fundamental justice was rejected. On the other hand, in Hay v The National Parole Board et al, a prisoner who had earned a transfer to a minimum security was suddenly, due to a change in policy effecting a class of prisoners, transferred back to maximum security. In these circumstances, the court quashed the decision, holding that the transfer back to the penitentiary as a result of the policy was due to no fault or misconduct on the part of the prisoner and 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.

    In Bovair v Regional Transfer Board, Pacific Region, and Correctional Service of Canada, a prisoner was transferred from medium security to higher security for administrative reasons and not for punishment for a disciplinary offence and was not placed in administrative dissociation or segregation. He had, however, been charged with a disciplinary offence and held in segregation for several months until the charge was dismissed because a security guard witness did not appear, however he was held in segregation until his" actual transfer. The prison authorities relied on the allegations form- ing the basis for the disciplinary offence, as well as other older matters as the basis for the transfer. The court held that when a prisoner is sent to segregation for administrative or disciplinary reasons, the general duty of fairness and the Charter require that he be apprised of the reasons for the decision and must be afforded a reasonable oppor- tunity of replying, but the court was not convinced that the same prin- ciples applied to transfers from medium to maximum security. The court felt that the authorities had acted fairly in the transfer itself and were entitled to rely on the allegations forming the basis for the disciplinary offence, because the offence had not been dismissed on the merits. On the other hand, in Jamieson v Leblanc et al, it was .held that the jurisprudence was clear that there was a requirement of fairness when decisions are taken to transfer prisoners within the prison system. In support of this proposition, the court referred to Butler v R et al; Re Chester; Pilon et al v Yoemans; Hay v The National Parole Board; and McInroy v R et al. The court went on to hold that though this did not require a formal hearing prior to transfer, that nevertheless s7 of the Charter now applied and the principles of fundamental justice required compliance with the common law duty of fairness. In this case, the court found that the procedure followed by the authorities did not meet its own internal standards or the legal requirements of fairness flowing from the Charter. The notices of transfer contained insufficient particularity and did not fully state the grounds for transfer. There was no indication that the prisoner's replies had been taken into account. In Mitchell v Crozier et al (supra), the court quashed a transfer because the transfer board had relied on matters not disclosed or made available to the prisoner which he was therefore not able to respond to and the notice served on the prisoner in relation to the transfer, in accordance with the Commissioner's Directives, failed to make reference to the other matters taken into account by the transfer board. In the court's view, it would not have been a burdensome inconvenience or possible detriment to the prison authorities to provide the prisoner with those details by attaching documents to the notice or supplying the gist of the informa- tion on the notice itself. The court ordered the prisoner's minimum security rating be reinstated and that he be returned to minimum security. In R v Chester (supra), the court quashed a transfer, . holding that s7 dealt only with procedural and not substantive matters, but that in the circumstances, the duty of fairness required by common law, s7 of the Charter and the Commissioner's Directives themselves, were not observed. The notice was insufficient as to reasons for the proposed transfer and the decision itself was not made by the person authorized to make it. The decision to transfer could not be ratified after the event by the Deputy Commissioner. The reasons for the transfer in the notice in question were at least equivocal and more particulars were required to enable the prisoner to adequately respond. Furthermore, the notice was found to be misleading and inadequate, bearing in mind that the prisoner was being transferred to a special handling unit. In the court's view, the notice should have included at least a comprehensive listing of the .available material to be considered and a summary of the contents of such material. The court recommended that copies of documentation be provided to the inmate with the notice of transfer, but didn't go so far as to hold that such copies must be provided to comply with the duty of fairness because in certain circumstances, some of the documentation might be entitled to confidentiality. The court express- ed the hope that the prison authorities could delete confidential material or references so that the prisoner would have a fair opportunity to respond.

    In Collin v Lussier, the court found that a transfer from medium security to maximum was a disguised punishment because of the prisoner's activities as a prison legal affairs worker, which had led to some embarrassment on the part of the prison administration. Furthermore, the prisoner suffered from a heart condition and claimed that the transfer threatened his health due to increased stress and other matters at the new institution. The court held that the transfer was without adequate reasons and was in breach of the duty to act fairly. In addition, the court found that the prisoner's right to the "security of his person" as guaranteed by s7 of the Charter, had been violated by threats to his health. Fundamental justice had not been accorded the inmate because he had not been informed of the grievance against him or given a chance to defend himself and had not received an impartial decision. He was ordered retransferred back to the original institution and was awarded damages under s24 of the Charter. However, on appeal, the award of damages was set aside because there was no evidence that the prisoner's security of the person had in fact been infringed and because damages are not available on an application, but only in an action.

     In Fitzgerald v Trono the prisoner was transferred without his consent because an informant had stated that he had made elaborate plans to escape and leave the country. The prisoner had previously made one escape attempt but since then had furthered his education, married and otherwise been a model prisoner. The court held that the Warden (who had not revealed the name of the informant or details of the information provided by him) must file additional material showing why disclosure was not possible. In the absence of a good reason for nondisclosure, the court held that there had been inadequate disclosure to the prisoner. The disclosure must be such that the prisoner could "playa reasonably informed part in the whole process"; his participation must be "meaningful".

     In Faulkner v Solicitor General of Canada the court held that if the Correctional Service involuntarily transfers an inmate without following the correct procedures (in this case inadequate notice to the inmate) it has the power to rescind the decision and correct the defect. Provided that power is exercised .fairly, no grounds exist which warrant judicial intervention. The transfer of an inmate from one institution to another is an administrative matter and will only be interfered with by the courts on the rare occasion when it is manifestly clear that the inmate has not been dealt with fairly.

    "Other Internal Matters" - A violation of s7 of the Charter was also alleged in relation to strip searches after contact visits in a provincial remand detention centre in Re Maltby (supra).The court found that such searches, to prevent and control the influx of drugs and weapons and other contraband that may pose a threat to institutional security, was a minimum reasonable requirement and did not involve a violation of s7.

    Piche el al v Canada (Solicitor General) - In Piche el al v Canada (Solicitor General), the Federal Court of Appeal held that the introduction of double-bunking at Stony Mountain Institution was not contrary to s7 of the Charlet; not did it breach the inmates' right to fairness.

    For the court MacGuigan JA agreed with the trial judge's finding (see Piche et al v Solicitor General of Canada (1985) 17 CCC (3d) 1 (FCTD)) that the double-bunking decision was a policy decision not subject to judicial review. It found that the CSC was confronted with a serious over-crowding problem and that the double-bunking decision was: "...essentially one as to the best adaptation of governmental resources to a need of startling proportions."

    The court also referred to the trial judge's finding of facts:

"He found that "there is no empiric evidence that double-bunking increases, tension level" (A.B., Vol 10 at 1454), and that "the physical and mental condition of the plaintiffs does not support [the] conclusion" (A.B., Vol 10 at 1437) that from a psychiatric point of view double-bunking is a damaging, detrimental and dangerous form of incarceration. In other words, the Trial Judge found double-bunking neither physically nor psychologically harmful. It was an upsetting of the status quo, but not an interference with existing right." (p7)

    The appellants also relied on the legitimate-expectation-of-notice doctrine developed by the House of Lords in O'Reilly v Mackman [1982] 3 All ER 1124, [1983] 2 AC 237 and Council of Civil Service Unions v Minister for the Civil Service [1984] 3 All ER 935, Where Lord Fraser of Tullybelton expressed the doctrine as follows (at pp943-4):

"[E]ven where a person claiming some benefit or privilege has no legal right to it, as a matter of private law, he may have a legitimate expectation of receiving the benefit or privilege, and if so, the courts will protect his expectation by judicial review as a matter of public law... The test... is whether the practice of prior consultation of the staff on significant changes in their conditions of service was so well established by 1983 that it would be unfair or inconsistent with good administration for the government to depart from the practice in this case."

    The court held that this doctrine had no application as there was nothing in the record to support a practice of prior consultation with prisoners on matters of policy.

    MacGuigan JA 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."

    This was a fact of which the court 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)