Custody of Inmates

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

Morin v The National SHU Review Committee et al - (1985) 20 CCC (3d) 123 (FCA)

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

Comeau v The Assistant Deputy Commission of the Correctional Service (Ontario Region) and the Commissioner of the Correctional Service - Unreported, March 12, 1991, No. T -3348- 90 (FCTD)

Editorial Note - In the evidence in Comeau, reference is made to six criteria that have to be met which the court found did not fall outside Penitentiary Reg. 13, nor were they unduly restrictive. The six criteria referred to were:

13. The inmate shall, in accordance with directives, be confined in the institution that seems most appropriate having regard to
(a)	the degree and kind of custodial control considered necessary or desirable for the protection of society and
(b)	the program of correctional training considered most appropriate for the inmate.

*Judicial Consideration* -

See transfer cases annotated under s15 of the Penitentiary Act, supra.

R v Chester - (1984), 5 Admin LR 111, 40 CA (3d) 146 (sub nom Re Chester) (Ont HC)
	- This section authorizes the establishment of Special Handling Units by reason of the requirement that an inmate be confined to an institution with facilities capable of providing protection to the public and rehabilitation to the inmate. The definition of an institution under the Regulations (which is the same as the definition of a penitentiary under the Act) includes "a facility of any description...that is operated by the Service for the custody, treatment or training of persons sentenced or committed to a penitentiary..." Special Handling Units are facilities of that kind and are therefore an "institution" under this Section. The word "society" in this Section is not restricted to members of the public living in the community but also includes the guards and other prisoners in the penitentiary. Neither the Penitentiary Act nor the Regulations bestows exclusive jurisdiction on the institutional head in relation to dissociation. The Commissioner has overall responsibility for the control and management of the service and all matters connected therewith under s4 of the Act and this includes the power to dissociate. The powers of an institutional head under s38(4) of the Regulations in relation to inmate discipline does not deprive the Commissioner or his Deputy from overall responsibility to control and man- age the service and all matters connected therewith. Consequently, the Commissioner's Directive establishing Special Handling Units (former DC 274, now 800) does not conflict with the Act or Regulations.

Morin v The National SHU Review Committee et al - (1985) 20 CCC (3d) 123 (FCA)
	- While the issue referred to above in Chester was not argued and while Morin's initial placement in a Special Handling Unit was conceded, nevertheless the court expressed the view that s40(1) of the Penitentiary Service Regulations was the only legal authority with respect to transfers to SHU that the section puts the responsibility for such transfers and decisions squarely on the institutional director or his lawful deputy. The court held that the Commissioner's Directives could not confer any legal authority in relation to inmates where they conflict with the Regulations. The court further noted that the Regulations are made by the Governor-in-Council under s29 of the Penitentiary Act and that the Commissioner's unlimited power to delegate with respect to transfers was limited by s40(1) of the Regulations by which the Governor-in-Council had bestowed the power of administrative dissociation upon institutional heads and not those higher in authority. The court went on to state that while there could be delegation down, there could not be further delegation back up. The court also pointed to the requirements of s14 of the Regulations (infra).

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 referred to therein and did not follow the decision in Morin v National SHU Review Committee (1985) 1 FC 3, 46 CR (3d) 238,20 CCC (3d) 123 (FCA).

Comeau v The Assistant Deputy Commission of the Correctional Service (Ontario Region) and the Commissioner of the Correctional Service - Unreported, March 12, 1991, No. T -3348- 90 (FCTD)
	- The prisoner unsuccessfully sought an order quashing a decision refusing his request that he be transferred to a minimum-security institution. His counsel argued that the policy of initially not incarcerating individuals serving a 25-year sentence in a minimum-security prison is arbitrary and offends Reg. 13. The judge took judicial notice of the fact that persons serving such sentences have been convicted of violent crime and held that this is justification for the initial incarceration of such persons in other than minimum security institutions The judge also noted that it was clear from a new transfer policy that the Correctional Service was aware that maximum or medium security incarceration is not always necessary. In order to reduce risk to the public, candidates for the program had to be carefully chosen. The prisoner's psychological assessment was not unqualifiedly positive nor did he have a history of dealing with minimum-security standards. On the evidence, there is no indication that the decision refusing the transfer request was made in accordance with extraneous, irrelevant or unduly restrictive criteria or that it was incorrect.

Editorial Note - In the evidence in Comeau, reference is made to six criteria that have to be met which the court found did not fall outside Penitentiary Reg. 13, nor were they unduly restrictive. The six criteria referred to were:
	(a) all candidates must have the full and unreserved support of their Case Management Team and the Institutional Senior Management Team;
	(b) the offender must have had a positive psychological assessment and a history of psychological stability through his incarceration;
	(c) the offender must have distinguished himself in an extremely positive manner, well beyond the minimum behavioural standards expected of inmates;
	(d) the offender must have the full support of the receiving institution;
	(e) the offender must have capitalized fully on the programming available to him in his present institution;
	(f) the offender must have a substantive history of demonstrated ability to deal with minimum security-like standards, ego fence clearance, N.P.B. Escorted Temporary Absence (E.T.A.) program.
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