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COMMITTAL, RECEPTION AND
TRANSFER OF INMATES

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15. (1) Warrant of committal - Where a person is sentenced or committed to imprisonment for life, for an indeterminate period or for any term that is required to be served in a penitentiary, it is sufficient compliance with the law, notwithstanding anything in the Criminal Code, if the warrant of committal states that the person was sentenced or committed to imprisonment in penitentiary for life, for an indeterminate period or for the term in question, as the case may be, without stating the name of any penitentiary to which the person is sentenced or committed.
(2) Rules - The Commissioner may make rules naming the penitentiaries in which, in the first instance, persons sentenced or committed in any part of Canada to penitentiary shall be received.
(3) Transfer - Where a person has been sentenced or committed to penitentiary, the Commissioner or any member directed by the Commissioner may, by warrant under the hand of the Commissioner or that member, direct that the person shall be committed or transferred to any penitentiary in Canada, whether or not that person has been received in the relevant penitentiary named in rules made under subsection (2).
(4) Repealed
(5) Custody in transit - A person shall be deemed to be in lawful custody anywhere in Canada if,
(a)	having been sentenced or committed to penitentiary, that person is in the custody of a person acting under the authority of the court that sentenced or committed him; or
(b)	having been directed to be transferred to another penitentiary, that person is in the custody of a person acting under the authority of the member who directed the transfer.
[RSC 1970 cP-6 s13; RSC 1985 c35 (2nd Supp) s18, 20]
Judicial Consideration -
Attorney General of Canada v Daniels - Unreported, June 6,1991, No.5038 (Sask CA)
	- See annotation under s15 at p834.2.
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)
Re Bell and Director of Springhill Minimum Security Institution et al - (1977),34 CCC (2d) 303 (NSCA)
	- In this section the term "penitentiary" carries the meaning given by s2(1) of this Act, namely an institution operated by the Canadian Penitentiary Service. Consequently, s13(3) only authorizes transfers of prisoners from one federal institution to another federal institution and cannot be used to transfer a prisoner serving his sentence in the penitentiary operated by the Province of Newfoundland under s13(5), to a federal institution. A warrant authorizing such a transfer is a nullity and habeas corpus will issue resulting in the prisoners return to Newfoundland in accordance with the terms of his original warrant.
Bruce v Reynett et al- (1979) 4 WWR 408 (FCTD)
	- While the question of transfer is clearly an administrative decision, it also should be carried out fairly taking all factors into consideration. However, the court should not substitute its views for those of the Commissioner of Corrections or his duty authorized representatives. No injunction should be issued to stop a transfer which may never take place and it cannot be said that a decision has not been made fairly when no final decision has in fact yet been made, but there is merely an indication of what may possibly take place at some indeterminate future.
The Area Selection Board of the Atlantic Region of the Canadian Penitentiary Service, the Commissioner of Penitentiaries and the Assistant Director (Security) of Springhill Institution v Marcotte, Turner and Whaler - [1977] 1 FC 297 (FCA)
	- In the absence of allegations of fact in a statement of claim that would sup- port an attack on the decision to transfer on the ground that they were so unfair or unjust as to be an abuse of the administrative powers conferred by this Act, a statement of claim seeking declaratory relief alleging unjustness or unfairness based only on lack of pre-decision procedural steps will be struck out as disclosing no cause of action. To grant the relief sought here would be inconsistent with the position taken by the Court in Martineau v Matsqui Institution Inmate Disciplinary Board, [1976] 2 FC 198 remains unreversed.
Editorial Note - The decision in Martineau (No. 2), [1976] 2 FC 198 was upheld on appeal to the Supreme Court of Canada, [1978] 1 SCR 118,74 DLR (3d) 1,33 CCC (2d) 366, on the question of the jurisdiction of the Federal Court of Appeal to review a prison disciplinary board decision under s28 of the Federal Court Act, the Court holding that such decisions are purely administrative and not required "by law" to be made on a judicial or quasi-judicial basis within the meaning of s28. However, the applicant Martineau subsequently continued proceedings to the Federal Court Trial Division under s18 of the Federal Court Act seeking a writ of certiorari or relief in the nature thereof to quash the decision. The Federal Court Trial Division ([1978] 1 FC 312, 37 CCC (2d) 58 (TD)) concluded it had jurisdiction to grant certiorari, but on appeal, the Federal Court of Appeal ([1978] 2 FC 637,40 CCC (2d) 325, 22 NR 250) ruled that the ambit of certiorari had not been extended in Canada (as in England) to enable such a writ to reach purely administrative decisions. That decision was appealed to the Supreme Court of Canada and was heard May 3, 1979, and judgment was rendered December 13, 1979, reversing the Court of Appeal and restoring the decision of the Trial Division. Certiorari will now go to purely administrative decisions where there is a failure to comply with the duty to act fairly. The most recent decision of the Supreme Court of Canada in Martineau (No. 2) is now reported at [1980] 1 SCR 602,50 CCC (2d) 353, 30 NR 119, 106 DLR (3d) 385 (SCC).
Magrath v The Queen - (1977), 38 CCC (2d) 67 (FCTD)
	- There is nothing in the legislation or the regulations which prescribe or suggest procedural fairness rules in relation to transfers. Inmates are not entitled as of right to appear in person, or be heard on proposals to or questions of transfer, nor are they entitled as a matter of course to reasons why a transfer is carried out or refused. Some circumstances may, however, point to a right to question, on grounds of lack of fairness, a decision to transfer. Assuming on infringement of rights here, no useful or practical purpose would be served in granting declaratory relief that the transfer was unlawful because the plaintiff had already been transferred back to a lesser security institution.
Bruce et al v Commissioner of Corrections - (1979) 10 CR (3d) 166 (FCTD)
	- It is common ground that the decision to transfer is an administrative one, not judicial or quasi-judicial, and that there is, generally speaking, a duty to act fairly in arriving at that administrative decision. However, there is no general principle that an inmate who is to be transferred must be told of the "case of transfer" and given an opportunity to reply. There is no unfairness, in law, in transferring someone to a different province when he has appeals and charges pending in this province, and when it will result in the person not having quick and ready access to oral advice and assistance from counsel, might render an appeal moot or academic and will have consequences to others (non-prisoners) who may have to move to follow him.
R v Smart - Unreported, April 24, 1980, CA800051 (BCCA)
	- An application for habeas corpus ad subjiciendum was brought to challenge a transfer warrant transferring the applicant from the British Columbia Penitentiary to Kent Institution. The warrant contained the number 0272 and the name Reginald Ray Smart. The applicant's number was 272 and his name Reginald Roy Smart.
	Held: the application was dismissed. The 0 in the number was mere surplusage and unnecessary. The evidence indicated the second Christian name was a typographical error or slip. It also appeared that the applicant was transferred prior to the date of the warrant. The court stated that it very much regretted that in important matters of the custody of a man who was held under preventive detention that greater care was not taken to ensure that errors of this kind not be allowed to creep in. It hoped that the matters would be handled with greater care in the future.
Sauvageau v The Queen et al - Unreported, July 8,1980, No. T-2987-80 (FCTD)
	- There is no right to a hearing prior to being transferred from one institution to another, even where the transfer is due to ex parte allegations of wrongdoing gainst an inmate.
	See also Page v Yeomans -Unreported, February 25, 1981 No. T-5956-80 (FCTD) and Cline v Reynett et al -Unreported, March 4, 1981 No. T-894-81 (FCTD).
Page v Yoemans - Unreported, February 25,1981, No. T-5956-80 (FCTD)
	- While the Commission of Corrections, in transferring a prisoner must act fairly and must not act arbitrarily or in bad faith, nevertheless his duty must be considered in the context of the act on which the powers are based and the purposes contemplated, either expressly or by implication by the legislator. When the commissioner must act promptly and effectively to deal with security problems in his institutions, the legislation does not clearly require the Commissioner to tell the inmate of his transfer in advance or give him reasons for it or even less allow him a hearing or provide him with a written decision supported by reasons. The concept of "acting fairly" must be viewed against the background of the circumstances of the case in keeping with the overall structure of the act and the powers granted.
Cline v Reynett et al- Unreported, March 18, 1981, No. T-894-81 (FCTD)
	- An application for certiorari to quash the decision to transfer the applicant from Collins Bay Institution to Millhaven Institution was dismissed, the court holding that "there is no 'right' for a prisoner to be in one prison rather than another and the decision to transfer from a medium to a maximum security prison or vice versa is basically and essentially an administrative decision which must not be interfered with by the courts failing clear and unequivocal evidence that the decision was taken arbitrarily and in bad faith or in a capricious manner and in addition that the decision is quite unfair and works a serious injustice on the prisoner." The court went on to state that there was no obligation to hold a hearing when deciding to transfer a prisoner from one prison to another, nor is there any legal duty to inform the person of the reason for the transfer before the transfer is actually effected and that nothing in s13 of the Penitentiary Act creates a right to be informed or a duty to inform. The court further added that except in clear and unequivocal cases of serious injustice coupled with mala fides or unfairness, judges, as a general rule, should avoid the temptation of using their ex officio wisdom in the solemn, dignified and calm atmosphere of the courtroom and substituting their own judgment for that of experienced prison administrators. The latter are truly in the firing line and are charged by society with the extraordinarily difficult and unenviable task of maintaining order and discipline among hundreds of convicted criminals who, as a class, are not generally reputed to be the most disciplined or emotionally stable members of society and who, by the mere fact of incarceration, are being forcibly deprived of many of their most fundamental freedoms. Similarly courts should avoid laying down any detailed rules of conduct for those administrators since courts have very little practical knowledge of the problems involved in maintaining prison security generally or of the specific tensions, pressures and dangers existing in any particular prison or in any given situation. Such detained rules of conduct, if any, should be left to the legislators or better still, to those possessing the required expertise who might be charged by the legislators with the issuing of regulations pertaining to these matters.
Duguay v Lupien and Fauteux - Unreported, June 5, 1981, No. T-986-81 (FCTD)
	- An application for certiorari to quash a transfer was dismissed where there was no evidence to support arbitrariness or bad faith. The Court expressly found that the decision was taken in good faith and on the basis of a definite suspicion and was primarily for security reasons and found that in these circumstances it was a decision which was not subject to any procedural formality and consequently the Court had no reason or power to intervene. It was further held that the representative of the Commissioner of Corrections who made the decision was authorized to do so based on sub ss 13(3) and (4) of the Penitentiary Act.
Plante v Lupien and Fauteux - Unreported, June 5,1981, No. T-987-81 (FCTD)
	- This application for certiorari to quash a transfer decision was also dismissed for the reasons set out in Duguay (supra) although the facts were not quite the same as the dates of transfer and reasons given were different, although in other respects the conclusions were identical.
Re Rowling and R (No. 2) - (1981),57 CCC (2d) 169 (Ont HC)
	- An application for habeas corpus with certiorari in aid to set aside the transfer from one provincial institution to another was dismissed due to lack of any serious injustice on the facts. While there was a substantial change in conditions between the institution where the prisoner had been held compared to the new location, he was suspected of being involved in a hostage plan and this gave the institutional authorities reasonable grounds for the transfer. The court held this did not involve disciplinary action and there being no serious injustice declined to exercise his discretion in favour of setting aside the transfer.
In Re Shaun Oro Carlos also known as Shaun McCord also known as Robert James Shannon - Verdict of Coroner's Jury, June 23rd, 1982, New Westminster, BC
	- A prisoner, who had a common-law wife regularly visiting him at an institution in British Columbia, and who had been approved for family conjugal visits, was suddenly informed on a Monday that he was going to be transferred to Dorchester Penitentiary in New Brunswick the following morning- An urgent application for an interlocutory injunction was made to the Federal Court Trial Division on the Monday evening before Marceau J (no recorded reasons, October 19th, 1981) but was dismissed. The following morning several hours before the plane was scheduled to leave, the prisoner was found dead in his cell. The Coroner's Jury found the death to be suicide and caused by asphyxiation due to aspiration of vomit. The facts disclosed that a sedative was ingested by the prisoner in combination with an irritant, probably sodium hydroxide, in an unknown form. The prisoner subsequently blocked his esophagus with a foreign object. Upon vomiting, this object prevented the escape of the vomit and caused it to spillover into the lungs. The inability of the body's normal reflexes to prevent the spillage was the result of the ingested sedative, chloral hydrate. The prisoner was then unable to breathe and asphyxiated. The jurors made the following recommendations:
	(a)   A better analysis of evidence be done immediately following death of an inmate, especially in regard to foreign substances in and around the body. This could prevent problems in making decisions in court regarding the circumstances surrounding the death;
	(b)  Of major importance; more thought be given to decisions made regarding transfers of inmates from prison to prison to prevent drastic destabilizing situations for inmate and family. Specific points to this would be: -consultation with inmate considered for transfer, giving an explanation for same and ascertain the feelings of the prisoner. -this be done well in advance in order that an unwanted transfer be prevented by correcting the situation; -the immediate staff in direct contact with Inmate on a daily basis, be given input into the decisions affecting their transfer.
	(c)   In addition: -a family visit should be automatic when transfers are being considered in order that important decisions and preparations can be made; -regional transfer procedure should be made a public document in order that same is monitored to assure there is no abuse.
	These recommendations should be considered seriously by Correctional Services of Canada and also the Pacific Regional Correction Service.
Perron v National Parole Board - Unreported, December 22,1982, No. T -9036-82 (FCTD)
	- The Board, in considering inmate's application for day parole, was entitled to rely on Commissioner's conclusion that inmate represented a security risk, which conclusion had been manifested in inmate's transfer to a maximum security institution. This was so even where transfer was based on charges of which inmate was later acquitted.
Collin v Lussier - Unreported, December 12, 1984, No. A-294-84 (FCA)
	- On appeal, the award of damages was set aside, it being held that there was no evidence to support that the prisoner's security of the person was infringed under s7 of the Charter and further, that damages are not available on an application except in accordance with the traditional rules of procedure in relation to actions for damages.
Lussier v Collin - Unreported, December 12, 1984, No. A-294-84 (FCA)
	- On appeal, the award of damages was set aside, it being held that there was no evidence to support that the prisoner's security of the person was infringed under s7 of the Charter and further, that damages are not available on an application except in accordance with the traditional rules of procedure in relation to actions for damages.
R v Chester - (1984), 5 Admin LA 111, 40 CA (3d) 146 (sub nom Re Chesten (Ont HC)
	- Section 13(3) authorizes the transfer of an inmate from one institution to another and this power coupled with the general power of the Commissioner and his Deputies to pass rules, orders and Directives binding on their subordinates gives the Commissioner or his Deputy ample authority to direct the Warden of a receiving institution to place an inmate in a section of the institution which is more secure than others. The establishment of Special Handling Units by Commissioner's Directive 274 (now 800) within the jurisdiction of the Commissioner does not conflict with the powers of an institutional head in relation to dissociation and s13 of the Regulations authorizes the establishment of such Special Handling Units.
	Section 7 of the Charter deals with procedural and not substantive matters. The protection given to a person confined in a Special Handling Unit or dissociation 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. While prison authorities may have a duty to act fairly in respect of administrative decisions concerning transfer, treatment or classification within an institution the courts will not, in viewing the exercise of such authority, lightly substitute their views for those of the Commissioner or his delegate. There are no provisions in the Act or Regulations which prescribed rules for procedural fairness in the transfer of inmates and inmates are not en- titled as of right to be present while a decision is being made to transfer nor are they entitled as a matter of course to make representations in writing or otherwise in opposition to a recommendation for transfer. Commissioner's Directive 274 (now 800) establishing Special Handling Units does not violate any of such rights and it is for the Commissioner, absent Parliamentary direction to determine whether in the performance of his responsibilities additional procedural protection is desirable or necessary. It is not for the court to prescribe procedures that must be followed. Special Handling Units are not related to punishment but rather to preservation of good order and discipline within the institution and the limits to which administrative segregation or dissociation may go are properly left by Parliament to the Commissioner and his subordinates charged with the duty to maintain good order in the institution.
	However, in the particular circumstances of the case the duty of fairness required by the Commissioner's Directive and the Charter was not observed by the prison authorities in making the decision to transfer Chester to the Special Handling Unit because the notice, to which he was entitled under the established process, was insufficient as to reasons for the proposed transfer and because the decision itself was not made by the person authorized to make it. The Deputy Commissioner could not ratify the decision after the event. The court held that there was no difference between the common law obligation of fairness and the Charter's right to fundamental and natural justice. The reasons given Chester for the proposed transfer in the notice were at least equivocal. If the right of an inmate to respond in writing is to be given any weight in the sense that the response would be fairly considered in the decision made then more particulars were required in the contents of the notice than was given in this case. Here the notice was found to be misleading and inadequate bearing in mind the severity of life in the Special Handling Unit as compared with life in the general population of a prison and it failed the test of fairness. Accepting that a prisoner has no right to appear in person, the notice, in order that it be a fair notice of the matters to be reviewed, should have included at least, a comprehensive listing of the available material to be considered and a summary of the contents of such material. If this is not done the party subject to the transfer will not know that to which he or she is to respond. The court recommended that copies of such material be provided to the inmate with the notice but did not go so far as to say that they must be provided to comply with the fairness principle since many must of necessity contain references to sources which may be entitled to confidentiality. The court expressed the hope, however, that prison authorities would find a way to delete from the material to be considered any confidential portion or reference therein unnecessary for the inmate's fair response so that copies of such material with all proper deletions could be given to the inmate. In the circumstances, an Order was issued directing the Warden of Millhaven to release Chester from the Special Handling Unit to the general population of that institution pending a reconsideration of his transfer in accordance with the proper procedures established.
Lasalle v The Disciplinary Tribunal of Leclerc et al- (1983), 37 CA (3d) 145, 5 Admin LA 23 (FCTD)
	- As a result of certain disciplinary convictions the petitioner was transferred from a medium security institution to a maximum-security institution. He was not advised of the reasons for transfer until after the decision had already been made. At the conclusion of one of the disciplinary hearings he was ordered put in administrative detention while awaiting his transfer to a maximum security institution but he was never given any document with respect to the decision nor an explanation of the reason for it nor any occasion to oppose it. A week after his transfer had taken place he wrote re- questing a hearing and in reply he was told that the request could not be complied with because the letter had been received after the transfer decision had been made. No reconsideration of the transfer decision was given nor was the petitioner given any chance to make representations prior to the decision being made. This was held to be unfair and not in accordance with the provisions of the Commissioner's Directive dealing with involuntary transfers. Some time later his lawyer wrote requesting reasons and was told that the transfer took place as a result of a major incident placing the security of the institution in danger. The petitioner had originally been charged with offences of being drunk and disorderly. Some of those convictions were subsequently quashed on certiorari. In these circumstances the court quashed the decision to transfer as having been made without regard to the duty to act fairly and not in accordance with the Penitentiary Service Regulations and the Commissioner's Directives made pursuant thereto and ordered that he be retransferred to the medium security institution that he came from if he still so desired. The court said that in the circumstances not only was no reason given in writing prior to the transfer nor any opportunity to make representations op- posing it before the decision was made or to have it reconsidered afterwards, but the decision appeared to be based at least in part on two of the charges which were subsequently quashed on certiorari arising out of a single incident of drunk and disorderly conduct which could hardly make the applicant a danger to the security of the institution. The court felt it was unnecessary to have regard to the Charter in deciding the issues in the case and specifically held that s24(1) of the Charter was not in itself authority for awarding damages which would only be sought in a court of competent jurisdiction from the parties subject to the jurisdiction of such court and in appropriate proceedings brought in that court.
Butler v R- (1983),5 CCC (3d) 356 (FCTD)
	- The plaintiff sought an interlocutory injunction to restrain his transfer from British Columbia to Edmonton, Alberta pending the determination of his action in British Columbia. The applicant had been informed by the Warden that he was proposing to recommend such a transfer. He was subsequently advised that that recommendation had been confirmed and that he was to be transferred the following day and he obtained an interim ex parte injunction restraining the transfer until the matter could be heard on notice to the other side. Counsel for the plaintiff had sent a letter to the Warden which had not been responded to and took the position that that meant that the plain- tiff had not been fully advised of the reasons for the proposed transfer nor had he been allowed an opportunity of making representations to rebut the allegations against him. There was evidence before the court that the presence of the plaintiff and his brother together in the same institution could be prejudicial to discipline. The court held that on the facts the Warden had not acted unfairly and that the plaintiff could not claim to be unaware of the reasons for transfer. There was no indication in the evidence that the plaintiff had not been dealt with fairly or that his conduct may not have been a disruptive influence at Kent Institution. If the plaintiff had been deprived of associating freely with other members of the Native Brotherhood or assembling with them it was because of his own disruptive conduct. There would be no irreparable jury to the plaintiff if he was transferred since he could never go free in Canada in any event as upon his release he was to be extradited to the United States. The balance of convenience was in favour of the defendant.
Lackey v Yoemans, Stonoski et al- Unreported, January 25, 1982 (FCTD -Addy, J)
	- An application for an ex parte interim or interlocutory injunction restraining a pro- posed transfer pending a ruling by the court on the merits of the plaintiff's action, was dismissed there being no evidence whatsoever that the applicant would in any way be deprived of medical or psychiatric care at the institution that he was going to be sent to or that the care available at that institution would in any way be inferior to that provided at the institution where he was presently being held. There was no evidence that the Warden was not fully informed of all matters pertaining to the applicant's case, no evidence that he was biased or that he had or was acting unfairly or was in any way prejudiced in his decision to transfer the applicant. The court will not substitute its judgment for that of the person charged by statute to make the decision as to whether or not the applicant should be transferred unless there is convincing evidence that the decision is being taken unfairly or without proper investigation of the matter.
Dubois v Sauve et al - Unreported, January 20,1984, No. T-1418-83 (FCTD)
	- This section does not in any way affect the powers of transfer conferred on the Commissioner and the director of a penitentiary by the Penitentiary Act.
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 re-transfer 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.
Morin v The National SHU Review Committee et al - (1985) 20 CCC (3d) 123 (FCA)
	- This section was considered by the Court of Appeal in the context of a transfer to a Special Handling Unit by a Special Handling Unit Committee designated by the Commissioner. The Court, while not called upon to decide the point, nevertheless expressed the view that the Commissioner's unlimited power to delegate with respect to transfers must be understood to be limited by s40(1) of the Regulations by which the Governor-in-Council bestows the power of administrative dissociation upon institutional heads which include the institutional head or his lawful deputy. The Court expressed the view that while there could be delegation down, there could not be delegation back up. The Court also pointed to the requirement of s14 of the Regulations requiring a personal decision and consideration by the institutional director or his lawful deputy before a transfer takes place. The Court held that the only legal authority with respect to transfers to SHU's appear to be found in s4O(1) of the Regulations. The Commissioner's Directives were not valid insofar as they conflicted with the Regulations made by the Governor-in-Council. See annotations under s29 of the Penitentiary Act and ss13, 14 and 40 of the Regulations.
Hay v National Parole Board et al - Unreported, July 12, 1985, No. T -692-85 (FCTD)
	- A prisoner was convicted of several serious crimes and upon his incarceration, conducted himself exceptionally well and was considered a model inmate to the point where he was transferred to a minimum-security institution. Suddenly, and in summary fashion, he and a group of other prisoners who fitted in to a particular class, were transferred back to a maximum security penitentiary due to a change in policy and not due to any misconduct or fault on the part of the applicant or other members of the class. The Court quashed the transfer holding that it was arbitrary and unfair and that such an involuntary transfer without any fault or misconduct on the part of the prisoner was the quintessence of un- fairness and arbitrariness. The policy, in the presence of fault, could not prevail over the prisoner's individually guaranteed legal rights. The prisoner, having clearly earned the privilege of being placed in the farm annex, despite his earlier serious crimes, was not to be moved about like "cordwood" simply because he was in a class or prisoners contemplated by the change of policy. He had been deprived of his right to the qualified liberty and security of the person, which he possessed in derogation of the principles of natural justice and was arbitrarily subjected to intensified imprisonment because he committed no misconduct to warrant such unusual treatment or punishment. The detriment imposed upon the prisoner by administrative policy could not, in the circumstances, deprive him of the rights conferred on him as an individual by the Constitution. The decisions and warrants were quashed as offending fairness and ss7, 9 and 12 of the Charter.
See also MacDonald v National Parole Board [1986] 3 FC 157 (FCTD) under Parole Act, s13.
Mitchell v Crozier et al - (1986) 1 FTR 138 (FCTD)
	- A prisoner in a minimum-security facility was charged with three breaches of the Penitentiary Service Regulations. The charges were designated as "serious or flagrant". He was transferred on an emergency basis to a maximum-security institution. At the disciplinary court hearing on the charges, he did not ask for counsel on the first two charges because he thought, incorrectly, that they were "minor" charges, but he did ask for counsel on the third charge. That request for counsel was denied. He was convicted of the charges and sentenced to five days loss of remission on each of the first two charges and 20 days punitive dissociation on the third conviction. He also forfeited 15 days of earned remission. It was agreed between counsel that all three sentences imposed in relation to the three convictions be quashed and that the conviction on the third charge be set aside because of the principle underlying the decision of the Federal Court of Appeal in Howard v Presiding Officer of the Inmate Disciplinary Court of Stony Mountain Institution (see annotation under s39 of the Penitentiary Service Regulations). On the prisoner's arrival at the maximum security institution, he was served with a notice of transfer in the usual form. Shortly after his arrival at the maximum institution, the prisoner was transferred to a medium security institution. The regional transfer board, in ordering the transfers, relied on material that was not disclosed or made available to the prisoner. Consequently, the prisoner was not able to respond to that material and claimed a breach of the procedural duty of fairness under s7 of the Charter. The court quashed the transfer decision and ordered the prisoner's minimum security rating to be reinstated and that he be returned to the minimum security institution. The court held that the notice of transfer served on the prisoner in accordance with the Commissioner's Directives in relation to transfers, was insufficient as it failed to make reference to other matters taken into account by the regional transfer board. It would not have been a burdensome inconvenience or possible detriment to the prison authorities to have supplied him with the acting superintendent's report containing details relied upon in relation to the transfer, along with the notice of transfer, or by simply noting the gist of that information on the notice of transfer. If that had been done, the procedure would have sufficed to comply with the standard of fairness prescribed by the Commissioner's own self-imposed procedural obligations. Further, the procedural obligations were breached in that the prisoner was not promptly notified of the final decision to reclassify him by the regional transfer board. It was not necessary to provide the prisoner with copies of the progress summary and all other adverse case documentation in his file as this would place an impossible and time-consuming burden on prison authorities that could not be justified by any reasonable standard of fundamental justice or procedural fair play, apart from the question of prejudicial threat to the safety of security personnel or prison informants by the disclosure of confidential information. The notice had, however, only referred to the three charges and not the other matters that were considered relevant and consequently, the authorities had failed to provide the prisoner with the gist of that other information and the transfer was quashed.
Bovair v Regional Transfer Board, Pacific Region, and Correctional Service of Canada- Unreported, March 3,1986, No. T-119-86 (FCTD)
	- A prisoner was transfer- red from medium security to a higher security prison. It was found that the transfer was solely for administrative reasons and not as punishment for a disciplinary offence, nor involving administrative dissociation. Prior to the transfer, however, the prisoner had been charged with a disciplinary offence in connection with an assault upon a fellow prisoner. He was segregated pending that charge. After a month in segregation, he appeared before the disciplinary court and the matter was adjourned because a preventative security officer was not available. He was segregated for a further month and on his re-appearance before the disciplinary court, the charge was dismissed, for lack of evidence, without any hearing on the merits because, due to an administrative error, the security officer was still not present. The prisoner was held in segregation for a further two-week period before being transferred to maximum security. On being transferred, he was notified in writing that the transfer was based on confidential security information indicating that he had pressured other prisoners and that he was considered an aggressor. The appropriate Commissioner's Directives pertaining to transfers were not put in evidence by attachment to the affidavits in the application. An objection by counsel representing the prison authorities of any reliance being placed on the Directives because they had not been proven, was sustained in the circumstances. When the prisoner was served with the notice of transfer, he was given an opportunity for reply to the contents of that notice. The prisoner claimed that because he had been found not guilty of the charge of assault, the reasons given for the transfer could not be sustained, based on the decision of the Federal Court of Appeal in Morin (supra). The court held that when a prisoner is sent to segregation for administrative or disciplinary reasons, the general duty of fairness and the Charter of Rights and Freedoms requires that the prisoner be apprised of the reasons for the decision to so confine him and must afford him a reasonable opportunity of replying. The court was not convinced that the same principle applied to transfers from medium to maximum security. The court further held that the decision in Morin (supra) was clearly distinguishable from the facts of the case at bar. There had been no previous determination of fact on which res judicata would apply because the charge of assault had never been dismissed on the merits, nor on any evidence. Furthermore, there was no question of segregation of the applicant in the circumstances.
	The prisoner had sought more detailed reasons and such reasons were refused on grounds of security. The court felt that this was quite understandable as to provide such reasons might divulge the identity of informers. The court also pointed out that the transfer was based on broader facts and not specifically that the prisoner had assaulted another prisoner. Subsequently, the authorities reconsidered the request for further reasons and provided the prisoner in writing with particulars of six separate incidents relating to threats or assaults in which the prisoner was allegedly directly involved. The court found that the authorities acted in good faith in refusing the reasons initially. The authorities had indicated they were prepared to reconsider the matter in light of any further representations to the new information. The court held that if the authorities remain convinced that most of the incidents did occur and that the prisoner was primarily involved, that the authorities would be more than justified maintaining him in a high security institution.
Bovair v Regional Transfer Board- Unreported, October 24, 1988, No. A-152-86 (FCA)
	- The judgment of Addy, J was reversed by the Court of Appeal by consent of the respondents and hence the decision to transfer Bovair from medium to a maximum-security institution was quashed.
Editorial Note - It should be noted that in the FCTD decision, the court was not prepared to look at Commissioner's Directives because they had not been proved in evidence. Furthermore, the court does not appear to have considered other transfer cases involving transfers from lesser to higher security without the imposition of segregation and when such transfers were taken for other than disciplinary or punitive reasons. Furthermore, thought it would appear from the judgment that the Morin decision was distinguishable because there were additional factors taken into account by the authorities in ordering the transfer. The transfer was not confined to the facts pertaining to the charge of assault that was dismissed, nevertheless, the court's conclusion that there had been no previous determination of fact on which res judicata could apply because the charge of assault had never been dismissed on the merits, nor on any evidence, is open to question. The charge was not stayed or withdrawn, but was in fact dismissed. The comments of the Supreme Court of Canada in Grdic v The Queen (1985) 19 CCC (3d) 289 per Lamer, J at p293 are worth noting to the effect that as a matter of fundamental policy in the administration of the criminal law, it must be accepted by the Crown in a subsequent criminal proceeding that an acquittal is the equivalent to a finding of innocence. Furthermore, the comments of the Supreme Court of Canada in R v Oakes as to the meaning of the "presumption of innocence" might also have a bearing on this issue. See commentary on R v Oakes in the Introduction, supra, at p 40.
The decision below of Strayer, J in Jamieson just a few weeks after Addy, J's decision on Bovair is worth noting by way of contrast and analytical approach.
Jamieson v LeBlanc et al - (1986) 51 CA (3d) 155 (FCTD)
	- The prisoner brought an application for certiorari to quash his transfer from minimum back to medium security and sought mandamus compelling his re-transfer to a facility of similar security rating. While in the minimum security institution he had become aware for some weeks that there was a suspicion that he was involved in drug use. He denied it at every opportunity. At a meeting with the Warden and a classification officer, he was told that he was suspected of using drugs, but no basis for the suspicion was given to him or any mention made of a possible transfer. He offered to give a blood sample to prove that he was not using drugs. Shortly thereafter he was suddenly, and without warning, removed to a medium security institution. He was advised in writing that the ad- ministration had good reason to believe he was involved in illegal drug activities in the institution. No grounds for belief were stated. He was told he had 48 hours to reply to the notice. He replied the next day, denying the involvement with drugs and objecting to his transfer. He also wrote to the Warden and the classification officer asking for reasons and again denying any involvement and objecting to the transfer. Shortly thereafter he received a reply from the classification officer indicating that his behaviour was considered a serious detriment to the good order of the institution and that the classification officer had no authority to release other information and security information reports. The problem areas were identified generally to involve, in addition to concerns and suspicion of drug use, a concern about his conduct and performance as being belligerent and verbally abusive to staff. No reference was made to a consideration of the prisoners' replies. The prisoner received a further memorandum shortly thereafter indicating that the decision to transfer him to higher security had not been finalized and that his letters would be taken into consideration along with the confidential information. The prisoner never received any written oral communication as to a final decision. The court granted certiorari and quashed the decision, transferring the prisoner, but held it did not have the authority to issue mandamus requiring his retransfer because there was no duty on prison authorities to place him in any specific institution or kind of institution. It was recognized that the prison authorities could hold the prisoner at the medium security institution pending a fair decision and had the authority to place a prisoner in a more secure institution temporarily while a decision is being taken as to transfer.
	The court held that the jurisprudence is clear that there is a requirement of fairness when decisions are taken to transfer prisoners within the prison system. In support of the proposition, the court relied upon Butler v The Queen et al (1983) 5 CCC (3d) 356 (FCTD); Re Chester (1984) 40 CA (3d) 146 (Ont HC); Pilon et al v Yeomans [1984] 2 FC 932 (TD); Hay v National Parole Board (1985) 13 Admin LA 17 (FCTD); and McInroy v The Queen et al (1985) 13 Admin LA 8 (FCTD). The court further held that this did not require a formal hearing prior to transfer, and though s7 of the Charter now applied, the "principles of fundamental justice" did not require more than the common law duty of fairness. In this regard, the court relied upon Chester and Hay, supra.
	The procedure followed was found not to measure up to the requirements of a memorandum from the Commissioner of Corrections, including the specific procedure in that memorandum for transfers involving threats to the good order of institutions and emergency transfer. The authorities did not comply with the legal requirements of fairness flowing from the Charter, nor the Commissioner's memorandum which outlined the procedures consistent with procedural fairness. There was no evidence before the court that the prisoner was adequately informed as to the reasons for his transfer to enable him to respond to them. Written communications did not amount to notice. No specifics were provided as to his illegal drug activity. The subsequent memorandum indicates that the first notice did not fully state the grounds for transfer. It did not provide specifics. There was no evidence that the prisoners' replies had ever been taken into account by the decision maker. There was no evidence as to why this could not be done. The prisoner should have been given a specific reason for the intended transfer, it should have been made clear that his response had been considered by the relevant decision maker before a final decision was taken and he should have been advised as to what the decision was. Though the court agreed that formal and meticulous procedures are not expected nevertheless there must be some evidence as to the basic requirements of fairness having been observed. The evidence before the court was perfunctory and did not directly and clearly demonstrate an emergency. The authorities did not invoke security reasons for failure to give the prisoner better notice. The court will not defer to the wisdom of prison administrators without their either demonstrating a basic compliance with the requirements of fairness or explaining why such compliance was not possible.
Editorial Note - The Jamieson case should be read in conjunction with the recent decisions of the Supreme Court of Canada on the meaning of the "principles of fundamental justice", including, in particular, the decisions of that court in Singh v Minister of Employment and Immigration (1985) 58 NR 1 and Reference Re section 94(2) of the Motor Vehicle Act (BC) (1986) 23 CCC (3d) 289.
McInroy v The Queen et al - (1985) 13 Admin LR 8 (FCTD)
	- An application to quash a decision to transfer the prisoner to a special handling unit on grounds that the administration had failed to act fairly in not granting the prisoner a hearing, including the right to present evidence, examine witnesses and be represented by counsel, was dismissed. The administration complied with all proceedings in the Act, Regulations and Directives and there was no requirement in either the Act or Regulations or the Directives that the inmate be granted an oral hearing. The applicant was treated fairly.
Smoke v Commissioner of Corrections et al - Unreported, June 25,1985, No. T-2902-84 (FCTD)
	- An application to quash a decision moving the prisoner from a medium security institution to a maximum-security institution was dismissed. Initially, the applicant was at a medium security institution and he was then re-assessed to a maximum-security institution. He was then returned to a medium security institution and released on mandatory supervision. He was then re-arrested on new charges and returned to the medium security institution. He was then transferred to maximum security. Consequently, there was some question as to whether this amounted to a transfer or simply a penitentiary placement. The court found that even if the rules of fairness applied, that in all the circumstances, there was no breach of the duty of fairness. The applicant was generally aware of the reasons for his re-classification and had an opportunity to respond thereto.
Demaria v Regional Classification Board et al - (1987) 30 CCC (3d) 55, 53 CR (3d) 88,69 NR 135 (FCA)
	- Appeal from a decision of the Trial Division dismissing an application for certiorari to quash transfer from medium to maximum security was allowed and the transfer quashed. The issue raised was as to the content of the duty to act fairly in the circumstances. In arriving at its decision, Hugessen, J, before the court, stated as follows:
		There is, in my view, simply no doubt that the appellant was not treated with the fairness to which he was entitled. The purpose of requiring that notice be given to a person against whose interests it is proposed to act is to allow him to respond to it intelligently. If the matter is contested, such response will normally consist of either or both of a denial of what is alleged and an allegation of other facts to complete the picture. Where, as here, it is not intended to hold a hearing or otherwise give the person concerned a right to confront the evidence against him directly, it is particularly important that the notice contain as much detail as possible, else the right to answer becomes wholly illusory. Indeed, the present case is an excellent example of the right to answer being frustrated and denied by the inadequacy of the notice. The appellant is told that there are reasonable grounds for believing him to have brought in cyanide. He is given no hint of what those grounds are. The allegations against him are devoid of every significant detail. When? Where? How? Whence came the poison? How was it obtained? For what purpose? How much? The allegation is said to be based on information obtained by the Millhaven staff and the Ontario Provincial Police. What information comes from which source? Is there an informer involved? If so, how much of the substance of his statement can be revealed while protecting his identity? Have the police pursued their inquiries? Have they made any arrests? The list of questions is almost endless.
		In the absence of anything more than the bald allegation that there were grounds to believe that he had brought in cyanide, the appellant was reduced to a simple denial, by itself almost always less convincing than a positive affirmation, and futile speculation as to what the case against him really was.
		There is, of course, no doubt that the authorities were entitled to protect confidential sources of information. A penitentiary is not a choir school and, if informers were involved (the record here does not reveal whether they were or not), it is important that they not be put at risk. But even if that were the case it should always be possible to give the substance of the information while protecting the identity of the informant. The burden is always on the authorities to demonstrate that they have withheld only such information as is strictly necessary for that purpose. A blanket claim, such as is made here, that "all preventive security information" is "confidential and (cannot) be released", quite apart from its inherent improbability, is simply too broad to be accepted by a court charged with the duty of protecting the subject's right to fair treatment. In the final analysis, the test must be not whether there exist good grounds for withholding information but rather whether enough information has been revealed to allow the person concerned to answer the case against him. But whichever way it be stated, the test is not met in the present case.
McCauley v Superintendent, Ferndale Institution and Nelson - Unreported, August 12, 1987, No. T-1690-87 (FCTD)
	- The applicant sought certiorari to quash a transfer from Ferndale Minimum Security Institution to Matsqui High Medium Security Institution.
	The applicant had been at Ferndale and successfully completed 12 unescorted temporary absences. On the 13th occasion, he was unable to return on time and he voluntarily arranged for the Vancouver Police to pick him up. He then remained in the custody of the Vancouver Police for several days and was then returned to Matsqui Institution, a higher-level security institution than Ferndale. He was there placed in administrative segregation. He remained there for a month. He made several requests to be returned to Ferndale. He was never given a satisfactory reason as to why he was taken to Matsqui and why he remained there and in the result, he had no opportunity to meet the reasons for this "transfer".
	The application was granted and the transfer quashed. While there was some argument that the actions by the administration were not really a transfer, nevertheless, they had treated it as a transfer in their documentation and it was the practice of the administration to move persons to higher security when they were unlawfully at large and as such, this could be considered an involuntary transfer.
	The court held that on the facts, the applicant had not been given adequate notice to what was being alleged against him nor a fair opportunity to answer. Consequently, certiorari was granted. However, the court declined to grant mandamus and pointed out that if the applicant was improperly being held at Matsqui Institution, proceedings in the nature of habeas corpus in the provincial superior court might be taken.
Mcllvride v AG Canada, AGBC and Director of Kent Institution - Unreported, November 3,1987, No. CC871785, Vancouver (BCSC)
	- The applicant sought habeas corpus with certiorari in aid to release him from Special Handling Unit Phase I back to Special Handling Unit Phase IV (the general population of a maximum-security institution on probation).
	The applicant had been designated a Special Handling Unit prisoner. He had progressed to Phase IV. He was allegedly involved in a fracas with another prisoner resulting in the other prisoner having to be hospitalized. The applicant was charged with attempted murder and aggravated assault. He was transferred back to a Special Handling Unit and into Phase I. He was subsequently found not guilty by a judge and jury of the charges of attempted murder. Because of this acquittal, he claimed that he should be returned to Phase IV and asserted that otherwise he was being punished for an offence of which he had been acquitted and was, therefore, being subjected to double jeopardy, contrary to s11 of the Charter. The prison authorities took the position that the applicant had violated his probation in Phase IV of the Special Handling Unit program by the assault in question which had been witnessed and broken up by several staff members and that criminal proceedings arising out of the altercation had no effect on their decision to return the applicant to Phase I.
	The court held that the Special Handling Unit process as set out in Commissioner's Directives were neither civil nor criminal proceedings but rather, were internal proceedings designed to foster the well being of the particular community and to prevent the staff in that community and the residents of that community from danger against the threat of harm from certain other persons. The applicant had not been returned to Phase I because of any breach of any duty which the Criminal Code imposed upon him or which he owed to society as a whole, but because of his breach of the conditions of his probation to the effect that he refrained from conducting himself in such a manner as to commit or to be likely to commit a violent or dangerous act. In the court's view, the acquittal of the applicant in criminal proceedings was of no relevance.
	In arriving at this decision, the court relied on the decision of the Saskatchewan Court of Appeal in R v Wigglesworth [1984] 3 WWR 289,11 CCC (3d) 27, 38 CR (3d) 388 (since affirmed by the Supreme Court of Canada, November 19th, 1987 and now reported at (1988) 37 CCC (3d) 385). The court also relied on Landry v Legal Services Society (1986) 4 WWR 645 (BCCA) and the cases refer- red to therein and did not follow the decision in Morin v National SHU Review Committee (1985) 1 FC 3,46 CR (3d) 238, 20 CCC (3d) 123 (FCA).
R v Faulkner - (1986) 40 Man R (2d) 123 (CA)
	- A prisoner convicted of robbery appealed his conviction and moved to stay the execution of a transfer warrant from medium security to maximum security pending the hearing of his appeal. The trial court allowed the application and ordered a stay of execution of the warrant pending the filing of a motion for similar relief in the Court of Appeal. The prisoner claimed that his right to instruct counsel respecting the appeal would be denied by the operation of the transfer. The motion in the Court of Appeal was styled in the same manner as the appeal from conviction, The court, declined to decide the jurisdictional questions in relation to its power to stay the execution of the transfer and held that the application was premature. The court further held that even if one assumed the facts as stated by the prisoner the transfer did not raise Charter rights and no case had been made out for the infringement or denial of such rights. The court pointed to s16(2) of the Penitentiary Act as the prisoner's appropriate remedy prior to the hearing of the appeal.
Spearman v Gobeil et al - (1986) 4 FTR 308 (FCTD)
	- A prisoner who was transferred from a medium security institution to a maximum security institution was allowed to respond or complain with respect to the transfer after it had been accomplished. He sought certiorari to quash the transfer decision and mandamus requiring his return to a medium security institution. The court held that in the circumstances, the prison authorities had complied with the duty to act fairly because the immediate transfer was necessary for the security and order of the institution as the prisoner was allegedly inciting other inmates to actively protest the decision to install double bunks in certain cells. The prisoner had been given notice of the reasons for the proposed transfer before the transfer took place. He was not, however, allowed, in the circumstances, to respond to the reasons until after the transfer was effected. He was given the gist of the information against him and given an opportunity to reply in writing and those replies were considered.
Jacobson v Regional Transfer Board (Pacific) and Commissioner of Penitentiaries - Unreported, April 14, 1987, No. T-2307-86 (FCTD)
	- An application to quash a transfer by way of certiorari and for mandamus was dismissed in the exercise of the court's discretion because of the long delay in the filing of the application and it being brought on for hearing some three to three and a half years after the transfer decision was made. Furthermore, during the interim, the applicant had resorted to alternative remedies and had received reasons for the transfer and a hearing before an outside review board. Furthermore, the granting of an order at that time would have been futile as the applicant was better situated at the time of the application than he was at the time of the transfer decision.
	In obiter, the court observed that the initial transfer decision was not taken in accordance with common rules of fairness or the principles of fundamental justice guaranteed by s7 of the Charter. In the court's view, fundamental justice requires that, except in an emergency situation, an inmate should be given notice prior to his transfer of the intended transfer and the reasons for it, with an opportunity to reply to such reasons and with consideration being given to that reply by the decision maker prior to the transfer. The prisoner is not entitled to a hearing prior to the transfer, nor to a trial with sworn testimony in respect of the transfer. The transfer decision is a routine administrative decision not requiring a judicial type hearing. In the circumstances, any deficiency in procedures was made up subsequently through opportunities to submit written grievances and through the hearing before the outside review board.
	To obtain mandamus, it is necessary to demonstrate that there is a duty owed by a particular official or body to the applicant to do a specific act whose performance has been refused or neglected. Here, the application for mandamus did not specify any particular act which the court would require to be performed.
Hnatiuk v Canada - (1987) 12 FTR 44 (FCTD)
	- A prisoner applied for certiorari to quash a decision transferring him from Matsqui Institution to Millhaven Institution and sought mandamus to compel the authorities to transfer him back to Matsqui.
	The authorities at Matsqui were investigating a serious escape plan and, based on confidential information, believed that the applicant was involved in the plan and might have used a zip gun in the escape. His cell was searched and a map was found and a drilled-out bolt compatible with use as a zip gun. He was put in administrative segregation and given a notice setting out the authorities' suspicions and what was found in the search of his cell. He was later interviewed and denied knowledge of the escape plan or the zip gun and said the bolt predated his arrival at Matsqui Institution and to that specific cell. In a subsequent interview, he admitted he had received the bolt from another prisoner who was also suspected in the escape plan. The authorities notified him that they proposed to transfer him from Matsqui Institution to Kent Maximum Security Institution. He was then notified that it was being recommended that he be transferred to a Special Handling Unit at Millhaven. The prisoner responded to the notices. Subsequently, the Regional Special Handling Unit Review Committee recommended that he go to Kent Institution and not to a Special Handling Unit. Subsequently, he was served with a further notice recommending his transfer to Millhaven Special Handling Unit by the Regional Transfer Board. Again, the prisoner replied to that notice. That transfer recommendation was subsequently upheld and confirmed by Regional Headquarters. In each instance, the prisoner had been served with a notice and given an opportunity to respond to it.
	The court dismissed the application, finding that it was unable to conclude that the institutional authorities had failed to fulfill their duty to act fairly, in the circumstances. The notice referred expressly to the discovery of incriminating evidence, namely, the zip gun and the map and the applicant was given two opportunities to respond to the allegations and did so. Those submissions were taken into account in rendering the final decision. The failure of the authorities to fully complete an "involuntary transfer checklist" as prescribed by "instructions" did not amount to a breach by the institutional officers of the duty to act fairly. While that constituted a breach of the prison "rules", it did not constitute a breach of the duty to act fairly.
Seymour v McGregor, Regional Director of Operations, Pacific Region, Correctional Service of Canada - Unreported, December 21,1987, No. T-2577-87 (FCTD)
	- The applicant sought certiorari to quash a decision transferring him from medium security to maximum security. The applicant had been placed in administrative segregation pending completion of an internal security inquiry based on allegations that he had assaulted another inmate. He was then recommended for transfer on completion of the investigation with the authorities taking the position that they had reasonable and probably grounds to believe that he was responsible for a particular assault. The applicant responded to that recommendation for transfer asking to be advised of what the reasonable and probable grounds were in order that he could respond adequately to the allegations. On reviewing his response, the authorities upheld their recommendation for transfer, taking the position that he had been given sufficient information, particularly in light of a discussion between him and preventative security personnel. That recommendation was accepted by the Regional Headquarters. The applicant did respond again asking for the basis for the belief that he was involved in the assault.
	Apparently, when preventative security became aware of the alleged assault, they interviewed the applicant and made certain observations of him. When the matter came before the court, the authorities took the position that the applicant had been provided with sufficient basis for the transfer at the time of the so called interview with preventative security. The interview was not repeated in the recommendation for transfer documents. It was agreed between counsel at the hearing of the application that the official recommendation for transfer documents did not provide adequate written information as to the reason for the proposed involuntary transfer. The authorities relied on the oral information said to have been provided to the applicant by preventative security.
	The court found that the interview was more of an interrogation than an interview and noted that it took place before any recommendation for transfer arose. The court found that the applicant had made a specific request for some detail in writing and the authorities deliberately did not amplify their stated written reasons and this was not sufficient compliance, in the circumstances, with the duty to act fairly. The court applied the test in Demaria v Regional Classification Board et al (1987) 1 FC 74 and held that the test had not been met, in the circumstances. The decision approving the involuntary transfer was quashed.
Gallant and Gill v Canada (Correctional Service of Canada) - Unreported, March 17, 1988, Nos. T-186-88 and T-187-88 (FCTD)
	- Following Mr Justice Dube's decision in Gallant v Canada (1988) 62 CR (3d) 267 (FCTD) the respondent applied to stay an order that the applicants be returned to Kent from the SHU, pending the outcome of the appeal. In staying the order the court took the view that if the respondents were returned to Kent there was a real and substantial risk of violence towards the informers. This was so whether the allegations against Gallant and Gill were true or not. It was also held that the balance of convenience dictated that the prisoners remain in the SHU as they had no right to be in a particular high security institution.
Gallant v Canada (Deputy Commissioner CSC) - (1989) 68 CR (3d) 173, 36 Admin LR 261 (FCA); revg (1988) 62 CR (3d) 267 (FCTD; leave to appeal to SCC refused (1989) 71 CR (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:
		"Parliament 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 re- main 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 sift 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, the appeal should be dismissed for lack of satisfying affidavits.
Demaria v Regional Transfer Board and Warden of Joyceville Institution (No. 2) - (1988) 62 CR (3d) 248 (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 requests 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 confirming 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 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 a "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 indication 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,
Dean v McGregor; O'Hern v McGregor - Unreported, August 4, 1988, (FCTD)
	- The applicants sought to quash decisions which recommended that they be transferred to the High Maximum Security Facility in Saskatchewan. Dean sought to quash his transfer on two grounds. Firstly, he had never been told why he was being denied a position at RPC. And secondly, that the respondent's decision was arbitrary or unreasonable in that proper consideration was not given to a reasonable alternative to the transfer to the Super Maximum facility.
	O'Hern challenged his transfer on the second ground alone.
	Collier, J dismissed the first ground summarily stating that he did "not see any duty on the Respondent to spell out in detail why the Applicant was considered unsuitable for the treatment program, or what he must do to make himself suitable."
	On the second ground the court referred to Demaria v Regional Transfer Board -Unreported, January 29, 1988, T-2410 (FCTD) and Re Morin (1985) 20 CCC (3d) 123 (FCA). Collier, J concluded that the Respondent did consider the alternatives put forward by counsel for Dean and O'Hern and came to the decision that a transfer to the Saskatchewan Institution should be made.
	The court concluded that because the respondent considered the whole matter before making the transfer decision that the decision was not unreasonable or arbitrary, and that there was no reversible error.
Camphaug v The Queen - Unreported, March 2, 1988 (No. T-162-88, (FCTD)
	- Camphaug sought to quash his transfer from Kent Institution to the Saskatchewan Penitentiary. The institution alleged that as a result of a sexual relationship with a female staff member Camphaug may have gained access to security information as well as keys and blueprints.
	Camphaug acknowledged the relationship but argued that the allegations against him were vague and general, and based on conjecture.
	Dube, J ruled that there was sufficient evidence before the institutional authorities to conclude that the inmate represented an extreme escape risk. The court found that the defendants acted within their jurisdiction, that there was no evidence that they acted arbitrarily or unreasonably, and it was not for the court to interfere with such an administrative matter.
Balian v Regional Transfer Board and Warden of Joyceville Institution - (1988) 62 CR (3d) 258 (Ont HC)
	- Balian challenged his transfer from Joyceville to Millhaven by way of habeas corpus in the provincial superior courts. Relying on the Supreme Court of Canada trilogy of Miller v The Queen (1985) 23 CCC (3d) 97; Cardinal and Oswald v Director of Kent Institution (1985) 23 CCC (3d) 119; and Morin v National Special Handling Unit Review Committee (1985) 23 CCC 133; Smith, J concluded that a provincial superior court has jurisdiction to issue certiorari in aid of habeas corpus to review the detention of inmates. Though Smith, J did note that as a matter of practicality the Federal Court is the more appropriate forum in the vast majority of cases.
	In quashing the transfer the court held that (p10):
		It is simply, in my view, a logical extension of Miller to place within the reach of habeas corpus a release from one institution to another within the same system as long as the deprivation of an inmate's residual liberty is significant.
	The court was satisfied that the applicant was denied procedural fairness by being denied access to sufficient information to enable him to effectively defend himself. Smith, J held that the deprivation was not trivial and that as a result of the transfer to Millhaven "the applicant suffered a significant reduction in his residual liberties" (p12).
Dunbar v Warden of Millhaven Institution - Unreported, May 4, 1989, No. 209/89 (Ont HC)
	- Dunbar applied for a Writ of Habeas Corpus pursuant to ss24, 7 and 9 of the Charter following his emergency involuntary transfer from Collins Bay to Millhaven.
	The Institution sought the transfer because of information that Dunbar was planning to escape and had smuggled weapons into the institution to assist him in his escape.
	In dismissing the application the court noted the difficulty involved in balancing the rights and freedoms of the individual, against the responsibilities of maintaining a secure prison environment. Without setting out any criteria or 'J, factors which should be taken into account in the balancing process, Chadwick, J concluded that (p12-13):
		Under the circumstances, I do not feel that the officials could reveal any more information without jeopardizing the safety of the informers.
Poirier v Canada (Disciplinary Board Federal Training Centre) - (1989) 8 WCB (2d) 14 (FCTD)
	- Poirier sought to quash his administrative segregation and a transfer order to a more secure institution. Mr. Justice Pinard held that the court did not have jurisdiction to issue habeas corpus to compel the reintegration of the inmate into general population. However, the transfer order was subject to judicial review.
	The applicant was told that he would be transferred to a medium security institution when in fact he was transferred to a maximum-security institution. The Commissioner's Directives required that the inmate be told of the involuntary transfer and though the failure to implement the Directive was not fatal, there had been a duty to act fairly. The inmate had been misled and was not given an opportunity to respond to his transfer to a maximum-security institution. The duty to act fairly required that prior to deciding on a transfer the inmate had to be informed of the reasons for the transfer to the maximum security institution and be given an opportunity to respond in writing.
Camphaug v The Queen - Unreported, April 10, 1990, No. T-775-90 (FCTD) (Butterworths No. 34150)
	- A prisoner applied for certiorari to quash a decision transferring him from a maximum-security institution in British Columbia to a high maximum-security institution in Saskatchewan. He claimed that he was denied fairness because he was not given sufficient information as to the reasons for transfer and was, therefore, unable to adequately reply before the decision was taken. He also asserted that the Deputy Commissioner did not consider all relevant circumstances.
	The prisoner did receive a notice of transfer to which a one-page statement containing six reasons for the recommendation was set out. It appeared but was unclear that the applicant also received copies of related transfer documents. He submitted a five page written response to the Warden's recommendation. An internal board confirmed the Warden's recommendation. The Deputy Commissioner then considered all matters and concluded that the transfer should take place and the prisoner was so notified.
	The court dismissed the application, finding that it was satisfied that the prisoner had available all of the information made available to the Deputy Commissioner and that it was sufficient that he had 48 hours to submit his written comments. The Deputy Commissioner did not have to retry all the allegations against the prisoner on the basis of detailed evidence. It was sufficient that he form a reasonable opinion that the prisoner should be moved after the prisoner had an adequate opportunity to comment on that issue. Fairness in the making of a decision to transfer a prisoner to higher security does not require that the prisoner be given all of the particulars of all alleged wrongdoing. It is sufficient if a prisoner can make representations to demonstrate that the recommendation that he be moved is an unreasonable one. The duty to comply with procedural fairness in such circumstances arises under common law requirements of fairness and s7 of the Canadian Charter of Rights and Freedoms.
In Re Fitzgerald v Warden of Kent Institution et al - Unreported, September 6, 1990, No. CC901241, Vancouver Registry (BCSC) (Butterworths No. 35785)
	- The prisoner sought habeas corpus with certiorari in aid seeking his release from Kent Maximum Security Institution and a transfer to a medium security institution. He had started his sentence at Kent Institution in maximum security, had spent some time in a lower security institution and several years in Matsqui Medium Security Institution. He had returned to maximum security at Kent Institution at his own request. Approximately six months later, he applied for a transfer back to Matsqui and received the support of his Case Management Team who recommended the transfer. However, before the recommendation could be acted upon, another prisoner was killed in the gymnasium at Kent. No charges had been laid and the murder investigation was ongoing. The applicant was a suspect.
	The Case Management Team had a further meeting and recommended denial of the transfer to Matsqui because the police investigation was continuing. That decision was upheld by the Assistant Deputy Commissioner Operations for the Pacific Region.
	The applicant waited a year and then re-applied for transfer to Matsqui. A new Case Management Team recognized that he had fulfilled all requirements for transfer but again recommended against it as he continued to be the subject of an active and ongoing police murder investigation. That decision was once again upheld by the Assistant Deputy Commissioner Operations.
	The applicant, in his petition, maintained that there had been a failure to act fairly in denying the transfer, based on the ongoing police investigation without allowing him an opportunity to respond to the allegations surfacing from the investigation and by not considering the petitioner's responses to the allegations. The petitioner maintained that habeas corpus was available because he was continuing to suffer a loss of privileges as a result of being incarcerated in maximum security as opposed to medium security. In addition, the materials indicated that the petitioner had been denied day parole and full parole by the National Parole Board because he continued to be in a maximum security institution.
	The court held that the form of constraint inherent in a maximum security institution and the consequences in terms of lack of parole as a result of being in such an institution appeared to meet the requirements underlying the availability of habeas corpus as expressed by the Supreme Court of Canada in R v Miller [1985] 2 SCR 613. The court noted that the real issue in the case involved a breach of the rules of natural justice in failing to inform the petitioner of the allegations made against him in connection with the murder and failing to give him an opportunity to meet those allegations. Commissioner's Directive 540, dated August 1st, 1990, required compliance with the principles of natural justice. The prisoner did not have to grieve the adverse decision before coming to court. To give the police a statement in the course of their investigation cannot be equated to an opportunity to respond to allegations made against one. There was no suggestion that disclosure of the substance and detail of the allegations against the individual to allow him to know the case against him and then give him a fair opportunity to respond before the decision with respect to transfer was made would jeopardize the lives or safety of others or impede the investigation being conducted by the police.
	The court held that the appropriate and just remedy, in the circumstances, was to quash the decision denying the transfer on grounds that there had been a breach of the principles of natural justice and to adjourn the application with respect to the transfer to afford prison officials an opportunity to comply with the requirements of natural justice.
Editorial Note - Before the matter came back to court, the petitioner was charged, along with others, with the murder. He was ultimately acquitted by a jury.
With respect to the court's jurisdiction in habeas corpus in the circumstances, the subsequent decision in Jaenicke annotated below is probably correct. While it is true that Fitzgerald had spent time in lesser security and had then gone back to maximum security and was seeking a transfer back to lesser security, whereas Jaenicke was simply applying to go to lesser security, nevertheless, it is likely, following the test set out by the Supreme Court of Canada in Dumas v Director of Leclerc Institution (1986) 30 CCC (3d) 129 (SCC) that an application for habeas corpus is appropriate where the prisoner has achieved greater liberty and then has that liberty restricted such as occurs in an involuntary transfer from lesser security to higher security or in the suspension of parole and that habeas corpus is not available when the prisoner is experiencing a certain deprivation of liberty and is seeking to achieve greater liberty by way of applying for parole or transfer to lesser security. In these latter instances, an application to the Federal Court Trial Division for certiorari to quash an unfavourable decision would be the appropriate remedy instead of habeas corpus. Either remedy is appropriate in a solitary confinement situation where the prisoner is seeking their release on grounds that the continued segregation or dissociation is unlawful or otherwise without jurisdiction.
Ritcey v Warden of Kent Institution et al - Unreported, January 23, 1991, No. CC901522, Vancouver Registry (BCSC)
	- A prisoner at Kent Maximum Security Institution sought habeas corpus with certiorari in aid claiming unlawful detention in Kent Institution and asserting that he should be sent to Mountain Medium Security Institution. He had been at Mountain but had been moved to Kent. After several years at Kent, he applied to be returned to Mountain and the Kent Case Management Team supported the transfer. The Mountain Institution officials decided it would be inadvisable because a prisoner at Mountain claimed he had been sexually attacked by the prisoner when they had been serving the sentence together at Mountain Institution. The authorities investigated the evidence surrounding the transfer application and declined approval. Prison authorities felt that the prisoner had demonstrated an inability to cohabit appropriately in an open dormitory setting where he had often resorted to physical intimidation and verbal aggression in pursuit of homosexual predatory tendencies. However, they agreed that a more structured environment could be offered other than Mountain Institution in order to allow him an opportunity to adjust to reduced security in a more gradual and programmed manner. They offered him a transfer to Mission Medium Institution in lieu of Mountain but he declined the offer.
	The court dismissed the application and held:
	(1)   That there was nothing in the material to indicate that the prisoner failed to receive copies of all relevant documents or that the investigation was somehow unfair.
	(2)   Prison officials have the right to transfer prisoners from one prison to another within their jurisdiction. The prisoner was receiving the same rights as any other prisoner in the general population of Kent Institution and was not seeking relief from solitary confinement into the general population. The authorities had jurisdiction to turn down the applicant's request. Therefore, habeas corpus and certiorari did not lie.
	(3)   The prisoner failed to exercise all rights of appeal under the grievance procedure and, therefore, the court had discretion not to grant the application, even if jurisdiction lies.
	(4)   Prisoners have no statutory or customary right to pick and choose in which institution they would like to reside. That is a decision for prison authorities.
Editorial Note - The court had serious misgivings as to its jurisdiction, in the circumstances, to consider habeas corpus. Nevertheless, it attempted to decide the merits and in so doing, determined a lack of jurisdiction in addition to the application lacking merit.
Fitzgerald v Correctional Service of Canada and the Warden of Kent Institution - Unreported, September 6, 1990, No. CC901241, Vancouver (BCSC)
	- The prisoner, an inmate of Kent Institution, a maximum-security penitentiary, sought an order in the nature of habeas corpus with certiorari in aid, directed to the warden of his institution, ordering that he be released from unlawful confinement at a maximum-security institution to a medium-security institution.
	The prisoner applied to be transferred back to Matsqui. His case management team recommended he be transferred. However, before the transfer, a prisoner at Kent was murdered. The RCMP investigation continued to the hearing date of this case, and while no charges had been laid, the prisoner was considered a suspect. The case management team then recommended that there be a denial of transfer on the basis that the RCMP had not completed its investigation. Later, the Assistant Deputy Commissioner, Operations, Pacific Region, and the Assistant Deputy Commissioner, Operations wrote to the Warden at Kent, indicating that the prisoner could not be considered a candidate for transfer to a lesser security institution while subject to murder investigation. The prisoner again applied for transfer and this time his case management team (differently constituted), while recognizing that he had fulfilled all the requirements for transfer, recommended against it because of the Preventative Security Officer's concerns that he remain in maximum-security while the murder investigation was ongoing.
	The prisoner sought relief on the ground that the transfer was being opposed for the sole reason of an ongoing police investigation without allowing the prisoner an opportunity to respond to the allegations surfacing from the police investigation and by not considering the prisoner's responses to the allegations acted in a manner contrary to the common law duty to act fairly, and the principles of fundamental justice.
	The prisoner relied upon Balian v Regional Transfer Board et al (supra) (1988) 62 CR (3d) 258, (ant HC); Demaria v Regional Classification Board et al (supra) (1986) 30 CCC (3d) 55 (FAC); and Gallant v Deputy Commissioner, Pacific Region, Correctional Service Canada (supra) (1988) 62 CR (3d) 267 (FCTD) in support of his argument that habeas corpus is available in the circumstances because he continues to suffer a loss of privileges as the result of being incarcerated in a maximum-security prison as opposed to a medium-security prison, and there is a duty on the part of the official refusing his request for transfer to provide him with sufficient information to enable him to respond intelligently to the allegations made against him and which form the basis of the decision refusing his request for transfer.
	The prisoner's application to the National Parole Board for day or full parole were denied primarily because of his incarceration in a maximum-security institution. This fact, and the form of constraint inherent in the maximum-security institution, appear to meet the requirements underlying the availability of habeas corpus expressed by Mr. Justice Le Dain, speaking for the Supreme Court of Canada, in R v Miller [1985] 2 SCR 613 at 641:
		"I do not say that habeas corpus should lie to challenge any and all conditions of confinement in a penitentiary or prison, including the loss of any privileges enjoyed by the general inmate population. But it should lie in my opinion to challenge the validity of a distinct form of confinement or detention or detention in which the actual physical constraint or deprivation of liberty, as distinct from the mere loss of certain privileges, is more restrictive or severe than the normal one in an institution."
	The real issue in this case is whether there was a breach of the rules of natural justice in failing to inform the prisoner of the allegations being made against him in connection with the murder and in failing to give him an opportunity to meet those allegations.
	In the case of an involuntary transfer, Commissioner's Directive No.540, dated August 1, 1990, requires that the inmate shall be provided with as much substance and detail as possible to allow the inmate to know the case against him and to provide him with the opportunity to respond. That provision incorporates in a quasi-statutory form the principles of natural justice. The prisoner's right should be no less in these circumstances.
	Counsel for the respondent pointed out that the Respondent has had the opportunity to respond to the allegations against him, as the RCMP wished to interview him and he refused. This is not an opportunity to respond to the allegations against him. It is an invitation to give the police a statement. The prisoner ought to have been provided with as much of the substance and detail of the allegations against him as possible to allow him to know the case against him, and then given an opportunity to respond before a decision on his transfer was made. There is no suggestion that such disclosure would jeopardize the lives or safety of others or impede the police investigations.
	The respondent's failure to provide the prisoner with as much substance and detail of the allegations against him as possible to allow him to know the case against him, and to allow him an opportunity to respond, is in error. The decision was quashed on the ground that there had been a breach of the principles of fundamental justice, and the application for an order that the prisoner be transferred to Matsqui was adjourned in order to afford the officials the opportunity to comply with the requirements of natural justice.
R v Daniels - Unreported, July 15, 1990, No. 111 of 1989 (Sask QB)
	- The accused Daniels was a native woman from the Canadian prairies. She was convicted of second degree murder. The penalty for second degree murder is a minimum of life imprisonment by virtue of s235 of the Criminal Code of Canada. Further, by virtue of s731 of the Criminal Code she would be required to serve her sentence of life imprisonment in a penitentiary. Because there are no federal penitentiaries for women in Saskatchewan, she would, in the normal course of events, be transferred by the Commissioner of Corrections pursuant to his powers under s15 of the Penitentiary Act to the Kingston Prison for Women in Ontario. At the time of sentencing, she sought a remedy pursuant to s24(1) of the Charter for an Order, pursuant to s52(1) of the Charter declaring s731 of the Criminal Code and s 15 of the Penitentiary Act and any other sections or regulations or directions under that Act which may cause her, or other women of native ancestry from the prairie provinces, to be incarcerated in the Kingston Prison for women, to be of no force or effect to the extent that they are inconsistent with the rights of women under ss7, 12, 15(1) and 28 of the Charter. The court sentenced her to life imprisonment with a parole ineligibility period of ten years and granted the Order requested in order to protect her from anticipated breaches of her Charter rights and endorsed on her Warrant of Committal that she was not to serve any part of her sentence in the Prison for Women at Kingston, Ontario.
	The Crown (representing both the federal and provincial governments) conceded that women have been discriminated against in the federal penal system contrary to s15 of the Charter: In the past, because there have been so few women prisoners compared to men prisoners, various federal governments have not considered women prisoners to be worth the financial cost of equal treatment. A 1982 report of the Human Rights Commission listed nine areas in which women were treated unequally from men, to the detriment of women. The federal Correctional Service of Canada Task Force on Women Prisoners implicitly recognizes the past discrimination and unequal treatment of women prisoners. The "mission statement" of the Correctional Service of Canada recognizes that every effort must be made to respect the spirit of the Charter of Rights and Freedoms. While this sounds very well, the Constitution Act dictates that the Correctional Service of Canada must not only respect the spirit of the Charter, but also the text of the supreme law of Canada regarding rights and freedoms. The evidence before the court with respect to the conditions at the Prison for Women in Kingston and, in particular, the effects of such containment on women of native ancestry, satisfied the court of the discrimination against women of native ancestry and the Applicant, in particular, would be discriminated against if they must serve any time in the Prison for Women. The Crown did not attempt to justify the violations under s1 of the Charter: Section 15(2) was not applicable. Female prisoners are not similarly situated to male prisoners. Federal penitentiaries for men have superior programs and are located across the country. Section 28 of the Charter which guarantees the rights and freedoms equally to male and female persons was also violated. Due to the conditions at the Prison for Women, the high suicide rate within, the lack of programs, and the removal of prisoners from family and community, relocation to Kingston not only violates the s7 guarantee of security of the person, it also constitutes cruel and unusual punishment in violation of s12 of the Charter: While the applicant committed a serious offence for which she must be punished by imprisonment for life, the high risk by death by suicide in a far away "medieval, castle-like prison" is unacceptable in a free and democratic society.
	While common sense dictated that after all of the years of ignoring the problem because of political and financial expediency that it would take the present Correctional Service time to plan an organized program and build appropriate physical facilities, nevertheless, the court was not prepared to delay the effect of its order before implementation.
Attorney General of Canada v Daniels - Unreported, June 6, 1991 No. 5038 (Sask CA)
	- On appeal, the court was of the view that, since at the time the order was sought, no committal of the prisoner had been made under s15 of the Penitentiary Act or the regulations, the application was premature and that in itself would be sufficient ground to set the order aside. Furthermore, the trial judge erred in finding that the impugned statutory provisions and regulations were the cause of the matter complained of. The trial judge's assumption that the Commissioner of Corrections had no choice but to send the applicant to Kingston because there were no other penitentiaries for women was in error. In fact the Commissioner can designate any prison a penitentiary. Second even if the Commissioner had no choice under s15 of the Penitentiary Act but to commit the respondent to Kingston, the lack of choice was not imposed on him by s731 of the Criminal Code and or s15 of the Penitentiary Act but by his failure to provide other facilities. Therefore, if there were a Charter violation it resulted from an anticipated act or an actual default by the Commissioner of Corrections and not from either s731 of the Criminal Code and s 15 of the Penitentiary Act.
	The Court of Appeal was of the view that the trial judge's function ended with the imposition of a sentence in a penitentiary under the Criminal Code and the sentencing judge had no right to designate which penitentiary in which the sentence was to be served. That is a matter confided to the Commissioner of Corrections under the Penitentiary Act involving the administration as opposed to the imposition of the sentence. In order to prohibit the Commissioner or to compel him by mandamus to do something involves a remedy directed to a federal tribunal that is within the exclusive jurisdiction of the Federal Court of Canada under s 18 of the Federal Court Act.
Editorial Note - This decision is being appealed to the Supreme Court of Canada. If the Court of Appeal's view is correct, then that would mean that a trial judge is powerless to prevent an anticipated breach of a person's Charter rights generally and, in particular under s12 (cruel and unusual treatment or punishment) and s 15 (non-discrimination and equality rights) at the time of sentencing. The sentencing judge will have to simply allow the Charter violations to occur and the party affected will be required to bring an application in a different court to try and restrain or prohibit or compel compliance with the Charter. This would only apply with respect to prisoners coming under the jurisdiction of the federal government receiving sentences in excess of two years less a day. Presumably, in all other cases, the trial judge could make the orders requested.
Williams v Regional Transfer Board, Prairie Region (Can) - Unreported, September 24, 1990, No. T-1505-90 (FCTD) (Butterworths No. 34706)
	- The applicant and others challenged an emergency transfer by the warden to a High Maximum Security Unit and then a transfer back to the first institution but into administrative segregation. After a knife fight at Edmonton Institution, the warden ordered a general lock down. The applicant and others refused to obey the order and obstructed guards in the course of their duties. The warden felt the applicant demonstrated violent behaviour and posed a serious risk to the safety of other prisoners and staff. He was given notification of the involuntary transfer which was being ordered on an emergency basis. His request for counsel was denied at that time. Two days later, the applicant was given a supplementary notice with reasons for the transfer. He was allowed to make written submissions, which he did. One and a half months later, the Regional Transfer Board approved the transfer to the High Maximum Security Unit after considering submissions from the applicant and the institution. Four months later, the applicant was transferred back to Edmonton Institution and kept in Administrative segregation pending a preliminary inquiry on criminal charges. The Court dismissed the applicant's action alleging breaches of Charter s7 and s1 0 by the warden. The Court held that the warden acted reasonably in that he felt the applicant posed a serious risk to the good order of the institution. He was transferred on an emergency basis to a higher security institution and as such, did not have an immediate right to counselor to a hearing. However, the applicant was provided sufficiently detailed notice of the reasons for the transfer and was allowed a response to the allegation as soon as the emergency situation had passed. Accordingly, there was no breach of the duty to act fairly or of the duty to provide procedural fairness under s7. This applicant was not hindered in the presentation of his case to the transfer board and accordingly his application was dismissed.
Ericson v Deputy Director of Correctional Service of Canada (Pacific) and Director of Kent Institution - Unreported, November 14, 1991, No. CC911298, Vancouver Registry (BCSC) (Butterworths No. 36192)
	- The applicant sought habeas corpus with certiorari in aid to quash a decision transferring him from minimum security to maximum security. The applicant enjoyed various privileges at minimum security and lost those privileges and was subjected to a greater degree of security at the maximum-security institution.
	He was told that he had been named by several inmates at the minimum-security institution as the person responsible for the traffic of narcotics in that institution and that, therefore, he and others were being transferred. He denied the allegation without knowing the details, but his denial was rejected and the transfer confirmed. There was evidence of an increasing drug problem in the institution marked by incidents of overdose by two prisoners and the accidental death of a third. A number of inmates anonymously named the petitioner as the organizer of the trafficking in the institution and the authorities reacted to it as an emergency, transferring the petitioner out, pending further inquiry.
	Three further investigations took place by the authorities at the institution, by authorities from another institution and by the RCMP. At the conclusion of those investigations, the petitioner's transfer was confirmed. The petitioner had no idea of the identity of those who named him or the nature of their evidence against him. The authorities maintained that to provide him with further details of the allegations against him would reveal the sources of the confidential communications and expose other inmates to the risk of retaliation. The petitioner had no record of conviction in any drug-related matter, nor any prior disciplinary proceedings in the prison system for such matters.
	The court quashed the transfer decision and ordered the petitioner returned to the same or some other appropriate minimum-security institution. The court felt that the petitioner could have been given greater detail of the case against him so that he could have a fair opportunity to respond without jeopardizing the safety of the others in the prison. The court said:
		With all due deference to the respondents, I cannot think that the petitioner could not have been given greater detail here. If other inmates have informed against him, it is reasonable to suppose they did not implicate themselves in any wrongdoing. So, probably, their evidence was hearsay. If they informed about the petitioner's reputation within the institution they could have nothing to say that would identity them. If the reputation they spoke of identified the petitioner with any specific activity he should have been given that detail so that he would know from what it was he must defend himself. I think it unlikely that a drug trafficking operation within a prison is so devoid of system that specific allegations cannot be put to a suspect. I incline to the view expressed by Smith, J in Balian v Regional Transfer Board et al [1988] 62 CR (3d) 258 at 266, 'that experience has shown that a great deal can be disclosed while protecting the identity of fellow inmates who inform'. I am not convinced that in this case the convergence of evidence from eight inmates, otherwise said to be unrelated to each other, and the coinciding findings of the three separate investigations points so inexorably to the petitioner's guilt that he must have been guilty. All eight inmates may have listened to the same source. All three investigators may have interviewed the same informants. There is no way of telling. What is clear is that the petitioner was not permitted to playa reasonably informed part in the whole process. That was procedurally unfair to him.
Jaenicke v Warden of Kent Institution et al - Unreported, June 21, 1991, No. CC91 0542, Vancouver Registry (BCSC)
	- A prisoner at Kent Maximum Security Institution sought habeas corpus with certiorari in aid directing prison officials to transfer him to a medium security institution. No issue was raised as to the lawfulness of the Warrant of Committal or the validity of the prisoner being held in maximum security until the time of his request for transfer to medium security was denied. The prisoner had applied for a transfer, citing various reasons and the staff at Kent had supported his request. However, the Regional Manager of Security did not, stating that intelligence indicated the prisoner was probably involved in assaults on other inmates. All internal appeals were taken but were unsuccessful. He had not been charged with any offences for assault on other prisoners. Objection was taken to the jurisdiction of the court, in the circumstances, to grant habeas corpus. It was submitted that an application to the Federal Court Trial Division for certiorari to quash the decision denying the transfer was appropriate and not an application for habeas corpus to the provincial superior court. On behalf of the prisoner, it was asserted that this was a "continuing deprivation of liberty" by virtue of the refusal to transfer him to a less secure facility.
	The court dismissed the application after reviewing various authorities as to jurisdiction, including, in particular, the decision of the Supreme Court of Canada in Dumas v Director of Leclerc Institution (1986), 30 CCC (3d) 129 (SCC) which defines the circumstances under which there is a "deprivation of liberty" within a correctional law context to enable habeas corpus to lie. The court also referred to Warden of Mountain Institution v Steele (1990), 80 CR (3d) 357 (SCC) in which the Supreme Court of Canada commented in obiter that habeas corpus was not an appropriate vehicle to challenge a continuing detention, pursuant to an indeterminate term of imprisonment alleging a violation of s12 of the Charter.
	The court held that the decision of the institution officials not to grant the transfer and, therefore, additional privileges could not, as a rule be equated to causing the prisoner to suffer a "loss" of any degree of freedom. The court said the decision was "akin to a decision of the Parole Board",
Bruce, Rivett, Cooke and Leet v Correctional Service of Canada (AG Canada) - (1991) 7 CR (4th) 93 (NBQB)
	- A group of prisoners at Dorchester Medium Security Penitentiary were put in segregation. They were then each given a written notice that they had been recommended for involuntary transfer to maximum security. The notices said that "consistent, reliable" information indicated they had been involved in drug trafficking, smuggling cash and manipulation and intimidation. Progress Summaries were attached to the notices and these summaries purported to include the "gist" of the security information alleged to have been obtained from 11 "highly reliable" but anonymous informers. The report also included an allegation that a contract had been put on the life of another prisoner and that one of the prisoners was a prime suspect. There was no evidence of any improper behaviour on the part of any of the prisoners or their visitors and none of them had been convicted of any disciplinary offences. Following all internal procedures, the prisoners were transferred to the Atlantic Institution at Renous, a maximum-security institution. They sought habeas corpus to challenge the confinement at the Atlantic Institution on the grounds that the transfer was illegal.
	The court granted the application and ordered their return to Dorchester.
	The evidence supported that the transfer of the prisoners to maximum security from medium security reduced their day-to-day freedom and affected their hopes for parole and passes. Section 14 of the Penitentiary Service Regulations provided that a file of an inmate should be carefully reviewed before any decision was made concerning transfer. There was no evidence to support that this had been done by any of the decision makers here prior to the transfer. In fact, the decision appeared to have been based solely upon the report of hearsay allegations from anonymous informers. The Progress Summaries were prepared for purposes of recommending the transfer and not to review the file. Because s14 was not complied with, the transfers were illegal. In ordering the prisoners' return to Dorchester, the court further ordered that any future decisions concerning these individuals and any transfer should be made by persons who were not involved in the original decisions and further, that the prisoner should not be put in isolation unless a lawful order is made by an appropriate officer.
Malette v Commissioner of Corrections - Unreported. September 18, 1991, No. T-844-91 (FCTD)
	- A prisoner sought certiorari to quash a decision of the Commissioner denying her application for transfer to minimum security and also sought mandamus compelling a transfer to minimum security.
	The applicant is a female prisoner serving a life sentence for first-degree murder with a parole ineligibility date of 25 years. She started her sentence in 1980 and since 1988 has been classified as minimum security. She is serving her sentence at the Kingston Prison for Women which purportedly is a multi-level federal penal institution with maximum, medium and minimum security levels for female prisoners. The minimum-security facility is a separate building across the road from the prison. As of April 1991, there were 108 prisoners at the Kingston Prison for Women and 20 of them were classified as minimum security (including the applicant) and 11 of them were housed at the facility across the street. The selection criteria for transfer to the minimum facility was set down in policy as follows:
	(i)   normally be within one year of mandatory supervision or parole eligibility, with good opportunity for conditional release;
	(ii)   amenable to programming; and
	(iii)   not present an undue risk to the community.
	The Warden stated that inmates serving fife sentences are considered for transfer to the minimum facility about two years prior to eligibility and that because of the limited number of beds, allowing the transfer of those more than two years away from parole eligibility would tie up beds, reducing the availability of space for inmates serving shorter sentences. The applicant was some ten years away from parole eligibility and the Warden was concerned that if her eligibility for judicial review at 15 years was used as a guideline and she was then not successful in her application for judicial review, that then she would occupy a bed at the minimum facility for many years, preventing short-term inmates from being transferred. The applicant was advised of the Warden's decision not to grant the transfer, in the circumstances, and said that her case would be reconsidered the following year. The applicant did not appeal. An application was submitted the following year but has not been decided upon as yet.
	The court denied the application. The court held that it could not find that there had been an excess of jurisdiction in denying the applicant's transfer to another facility within the same minimum security level or that her rights under the Charter or common law had been violated. She had been subjected to the same criteria as other inmates which were reasonable, in the circumstances. The court expressed the view that justice would not be served by ordering that the applicant be moved ahead of others to a facility with limited space. The court felt that the obvious solution was for the government to provide, with all due diligence, adequate facilities for women prisoners in Canada. The court expressed the view that the underlying problem was clearly the shortage of beds at the minimum facility and that until better, larger and more modern facilities were provided for women inmates, the Warden had to cope with the present situation and establish criteria so as to determine who could be transferred there. The Commissioner's Directive provisions with respect to transfer did not apply because the prisoner was already classified as minimum and was seeking transfer to another facility within the same institution at the same level of security and not to another level.
16. (1) Newfoundland - Notwithstanding anything in this Act, every person who is sentenced by any court in Newfoundland to imprisonment for life, or for a term of years not less than two, shall be sentenced to imprisonment in the penitentiary operated by the Province of Newfoundland at the city of St. John's for the confinement of prisoners, and shall be subject to the statutes, rules, regulations and other laws pertaining to the management and control of that penitentiary.
(2) Transfer from Newfoundland - Subsection 15(3) applies in respect of persons imprisoned under subsection (1), except that such a person shall not be transferred from the penitentiary mentioned in subsection (1) without the approval of an officer designated by the Lieutenant Governor of Newfoundland.
(3) Agreement - The Minister may, with the approval of the Governor in Council, enter into an agreement with the Province of Newfoundland providing for the payment to the Province of the cost of maintaining the persons who are or have been sentenced or committed to penitentiary. [RSC 1970 cP-6 s13; 1976-77 c53 s38; RSC 1985 c35 (2nd Supp) s21]
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