Dissocitation

Kosobook et al v Solicitor General of Canada et al - [1976] 1 FC 540, 69 OLR (3d) 682, 30 CCC (2d) 49 (TD)

McCann et al v The Queen - [1976] 1 FC 570, 68 DLR (3d) 661, 29 CCC (2d) 337 (TD)

White and Birch v The Director of Stony Mountain et al - Unreported, May 10, 1976, FCTD

Bruce et al v Reynett et al - [1979] 4 WWR 408 (FCTD)

Cardinal and Oswald v Director of Kent Institution - [1982] 3 WWR 593 (BCCA); affd (1986) 23 CCC (3d) 118, 49 CR (3d) 35, [1986] 1 WWR 577 (SCC)

Editorial Note - The dissenting judgment of Anderson J contained an excellent discussion of the ambit of habeas corpus generally and the entitlement of the court to look at affidavits on the question of jurisdiction. For a further excellent discussion on the remedy of habeas corpus see also the dissenting Judgment of Lambert J in Marcus Johnson v Attorney General of British Columbia -Unreported, May 13th, 1982, No. CA811134 (BCCA).

Cardinal and Oswald v Director of Kent Institution - (1986) 23 CCC (3d) 118 (SCC)

Re Morin and Yeomans - (1983), 1 C.C.C. (3d) 438 (Que. C.A.)

Morin v National Special Handling Unit Review Committee et al - (1986) 23 CCC (3d) 132 (SCC)

Editorial Note - On January 2:2nd, 1985, the Supreme Court of Canada granted leave to appeal in the case of Dumas v The Director Du Centre De Detention et al, a case on appeal from the judgment of the Quebec Court of Appeal pronounced November 19th, 1984. In that case, the National Parole Board revoked the applicant's parole and he was returned to custody. He applied for habeas corpus to the Quebec Superior Court and that application was dismissed BIS was the appeal to the Quebec Court of Appeal. The Quebec Court of Appeal held that habeas corpus was not the appropriate procedure in that the Provincial Superior Court had no jurisdiction in connection with the internal administration of the penitentiary system as that jurisdiction resided exclusively with the Federal Court of Canada. The issues are essentially identical to those raised in Morin v Yoemans et al in respect of which the Supreme Court of Canada pronounced judgment on December 19th, 1985.

Miller v The Director of Millhaven - Unreported, March 5th, 1982 (Ont HC)

Editorial Note - Cardinal and Oswald, Morin and Miller, supra, were granted leave to appeal to the Supreme Court of Canada in November of 1982 and all those cases were heard together on October 11th and 12th, 1984 at which time Judgment was reserved. On December 19th, 1985, the Supreme Court of Canada pronounced judgment in all three cases and in so doing upheld the decision of the Ontario Court of Appeal in Miller, reversed the decision of the British Columbia Court of Appeal in Cardinal and Oswald insofar as the merits of that case were concerned and reversed the decision of the Quebec Court of Appeal in Morin. See detailed annotations supra and infra.

Miller v The Queen - (1986) 23 CCC (3d) 97 (SCC)

Hamilton-Horne and Van Snick v Gillingham and AGBC - Unreported, June 9, 1983, No. 831413, Victoria (BCSC)

Dubois v. Sauve et al - Unreported, January 20, 1984, No. T-1418-83 (F.C.T.D.)

R. v. Chester - (1984), 5 Admin. L.R. 111,40 C.R. (3d) 146 (sub nom. Re Chester) (Ont. H.C.)

Morin v. The National S.H.U. Review Committee et al - Unreported, May 15, 1985, No. A-190-82, (F.C.A.)

Bear v The Queen et al - Unreported, January 29, 1986, No. 43/86 (Sask QB)

R v Olson - (1990) 47 CCC (3d) 491 (SCC); aff'g (1988) 38 CCC (3d) 534, 64 OR (2d) 321, 22 I OAC 287 (Ont CA)

40. (1) Where the institutional head is satisfied that
(a)	for the maintenance of good order and discipline in the institution, or
(b)	in the best interest of an inmate
it is necessary or desirable that the inmate should be kept from associating with other inmates, he may order the inmate to be dissociated accordingly, but the case of every inmate so dissociated shall be considered, not less than once each month, by the Classification Board for the purpose of recommending to the institutional head whether or not the inmate should return to association with other inmates.
(2) An inmate who has been dissociated is not considered under punishment unless he has been sentenced as such as he shall not be deprived of any of his privileges and amenities by reason thereof, except those privileges and amenities that
(a)	can only be enjoyed in association with other inmates, or
(b)	cannot reasonably be granted having regard to the limitations of the dissociation area and the necessity for the effective operation thereof.

*Judicial Consideration* -

Kosobook et al v Solicitor General of Canada et al - [1976] 1 FC 540, 69 OLR (3d) 682, 30 CCC (2d) 49 (TD)
	- A motion to strike out a statement of claim seeking declaratory and other prerogative relief on grounds of failing to disclose a reasonable cause of action and absence of jurisdiction in the court, was, granted. It was held that an institutional head acting under this regulation does so in a purely administrative capacity and therefore cannot In any way contravene the Canadian Bill of Rights, and further that the Board acting under this regulation also exercises purely administrative duties and consequently has no duty to inform the prisoners at any time of any factual allegations and evidence presented or to be presented, nor any duty to afford an opportunity to the prisoners to be present at any hearings or to present any evidence in reply to any allegations or evidence. There is no duty on such a Board to observe any practice encompassed in the audi alteram partem rule.

McCann et al v The Queen - [1976] 1 FC 570, 68 DLR (3d) 661, 29 CCC (2d) 337 (TD)
	- While plaintiffs succeeded in obtaining a declaration that, under the conditions and circumstances prevailing in solitary confinement at the BC Penitentiary in New Westminster, BC, they had been subjected to cruel and unusual treatment or punishment contrary to s2(b) of the Canadian Bill of Rights, their further claim that this regulation authorizing the imposition of this kind of solitary confinement was inoperative as conflicting with the Bill of Rights and that they were entitled to "due process" (s1(a)) and a fair hearing (s2(e)) were dismissed as well as their application for an order to compel the defendants to act in accordance with the court's declarations. It was held that this regulation is a valid federal enactment under s91(28) of the BNA Act (1867) for a valid federal objective -the maintenance of good order and discipline within the prison. Further, that the decision to dissociate may be necessary to quell riots and other disturbances and when considered in this context and in the context of the functions of an institutional head, it is a purely administrative decision and not a judicial one and consequently section 1(a) and 2(e) of the Bill of Rights do not apply to impose procedural requirements on the decision.

White and Birch v The Director of Stony Mountain et al - Unreported, May 10, 1976, FCTD
	- Following the decision in McCann (supra) it was held that the court had no power to interfere with the discretion of penitentiary authorities when the order in question, imposing solitary confinement under this regulation, was a purely administrative one. The application was for an injunction under Federal Court Rule 469(2) and (3) suspending the imposition of dissociation pending trial on the merits.

Bruce et al v Reynett et al - [1979] 4 WWR 408 (FCTD)
	- In upholding the authority of an institutional head to refuse an inmate permission to marry, the court relied, in part, on the fact that the prisoner was in dissociation under this regulation and that consequently the privilege and amenity of marriage was one that he could be deprived of, although not under punishment, because of the provisions of regulation 2.30(2)(b).

Cardinal and Oswald v Director of Kent Institution - [1982] 3 WWR 593 (BCCA); affd (1986) 23 CCC (3d) 118, 49 CR (3d) 35, [1986] 1 WWR 577 (SCC)
	- Two prisoners were charged with a hostage-taking incident at Matsqui Institution and consequently they were immediately transferred to Kent Maximum Security Institution and placed in dissociation under Section 40(1)(a). They were reviewed monthly by the Segregation Review Board (Classification Board) and some three months later that Board recommended to the Director that they be released to General Population. The Director declined to accept this recommendation. In making that decision the Director did not meet with the prisoners and discuss the case against them or give them an opportunity to respond. The prisoners had appeared before the Review Board hearings. The prisoners applied for habeas corpus with certiorari in aid seeking their release from the dissociation (solitary confinement) area to the general population of the prison. The Chief Justice of the British Columbia Supreme Court ordered that they be released into population because the Director had failed to comply with the procedural duty to act fairly. (Unreported, December 30th, 1980, No. CC801304 and CC801305). The Director appealed. The British Columbia Court of Appeal reversed the Trial Judge on the merits. Per Macdonald J there was no failure to act fairly in the circumstances; per Nemetz CJ if there was any procedural unfairness, it was not of sufficient substance to cause the Director to lose jurisdiction; per Anderson J (in dissent) there was procedural unfairness in the circumstances. The court was unanimous on the points of law involved as set out in the dissenting Judgment of Anderson J as follows: -that the Supreme Court of British Columbia has jurisdiction to order certiorari in aid of habeas corpus against a federal board or tribunal notwithstanding Section 18 of the Federal Court Act; -the Supreme Court of British Columbia has jurisdiction to order habeas corpus against a federal board by determining the issue of jurisdiction on the basis of affidavits filed; -habeas corpus is available to obtain the release of a person from detention in solitary confinement to detention in the general prison population within a prison; -the director of the prison is under a general duty of fairness.

Editorial Note - The dissenting judgment of Anderson J contained an excellent discussion of the ambit of habeas corpus generally and the entitlement of the court to look at affidavits on the question of jurisdiction. For a further excellent discussion on the remedy of habeas corpus see also the dissenting Judgment of Lambert J in Marcus Johnson v Attorney General of British Columbia -Unreported, May 13th, 1982, No. CA811134 (BCCA).

Cardinal and Oswald v Director of Kent Institution - (1986) 23 CCC (3d) 118 (SCC)
	- For the reasons given in Miller v The Queen, supra, at 97, the court agreed with the conclusions of the British Columbia Court of Appeal as expressed in the dissenting reasons of Anderson, JA with whom Nemetz, CJBC and Macdonald, JA concurred, to the effect that (a) the provincial superior courts have jurisdiction to issue certiorari in aid of habeas corpus; (b) that the provincial superior courts could, on an application for habeas corpus alone, consider affidavit evidence to determine whether there had been an absence of excess of jurisdiction, and (c) that habeas corpus will lie to determine the validity of the confinement of an inmate in administrative segregation, and if such confinement is found to be unlawful, to order the release of the inmate into the general population of the institution.
	On the merits, involving the question of whether or not the duty of procedural fairness had been breached in the circumstances, the court disagreed with the majority of the British Columbia Court of Appeal and agreed with the dissenting judgment of Anderson, JA and the trial judgment of McEachern, CJBC. The court held that the director was under a duty of procedural fairness in exercising his authority under s40 and that while initial placement of the prisoners in administrative segregation was not carried out unfairly, in view of its urgent or emergency nature, however, the continued segregation of the prisoners, despite the recommendation of the review board, was in breach of the duty of procedural fairness. "… because of the serious effect of the director's decision on the appellants, procedural fairness required that he inform them of the reasons for his intended decision to give them an opportunity, however informal, to make representations to him concerning these reasons and the general question whether it was necessary or desirable to continue their segregation for the maintenance of good order and discipline in the institution." LeDain, J held that these were the "minimal or essential requirements of procedural fairness in the circumstances" and that they were "fully compatible with the concern that the process of prison administration, because of its special nature and exigencies, should not be unduly burdened or obstructed by the imposition of unreasonable or inappropriate procedural requirements," In LeDain, J's view, a failure to afford a fair hearing, "which is the very essence of the duty to act fairly, can never of itself be regarded as not of sufficient substance unless it be because of its perceived effect on the result or, in other words, the actual prejudice caused by it." LeDain J, affirmed that "...the denial of a right to a fair hearing must always render a decision invalid, whether or not it may appear to a review in court that the hearing would likely have resulted in a different decision. The right to a fair hearing must be regarded as an independent unqualified right which finds its essential justification in the sense of procedural justice which any person affected by an administrative decision is entitled to have. It is not for a court to deny that right on the basis of speculation as to what the result might have been had there been a hearing"

Re Morin and Yeomans - (1983), 1 C.C.C. (3d) 438 (Que. C.A.)
	- A prisoner at Leclerc Institution was charged with the murder of another prisoner. He was transferred into a special handling unit. He was subsequently acquitted of the murder charge. The prison authorities decided to continue his dissociation for security reasons. The prisoner sought to be returned to Leclerc, but the authorities refused. The Commissioner of Corrections informed the prisoner that he had been identified as a particularly dangerous prisoner because of his participation in an incident that caused the death of another prisoner. The Special Handling Unit Committee (Classification Board) relied on certain police reports in coming to its decision which indicated that the victim had made a dying declaration identifying this prisoner and there had been another witness. The prisoner applied for habeas corpus without certiorari in aid. The Trial Judge held that habeas corpus was not available to challenge the conditions of confinement. The prisoner also applied to the Federal Court Trial Division for certiorari under s.18 and the application was dismissed. The prisoner appealed the decision dismissing the application for habeas corpus to the Quebec Court of Appeal. The Quebec Court of Appeal held that every attack on the administrative process in relation to internal matters in penitentiaries is within the exclusive jurisdiction of the Federal Court of Canada. Because the prisoner had appealed the dismissal of the certiorari application to the Federal Court of Appeal there was a danger of there being contradictory judgments between that Court and the Quebec Court of Appeal. It distinguished the Cardinal and Oswald decision of the British Columbia Court of Appeal by pointing to the fact that that case also involved an application for certiorari in aid of habeas corpus and also held that the British Columbia Court of Appeal appeared to have misconstrued or put aside the decision of the Supreme Court of Canada in Mitchell v. The Queen, supra, under s. 16 Parole Act which it held had already decided this point.

Morin v National Special Handling Unit Review Committee et al - (1986) 23 CCC (3d) 132 (SCC)
	- For the reasons given in Miller v The Queen, a provincial superior court has jurisdiction to issue a writ of habeas corpus to determine the validity of confinement of a federal inmate in a special handling unit, withstanding that the same issue may be determined by way of certiorari in the Federal Court under s18.

Editorial Note - On January 2:2nd, 1985, the Supreme Court of Canada granted leave to appeal in the case of Dumas v The Director Du Centre De Detention et al, a case on appeal from the judgment of the Quebec Court of Appeal pronounced November 19th, 1984. In that case, the National Parole Board revoked the applicant's parole and he was returned to custody. He applied for habeas corpus to the Quebec Superior Court and that application was dismissed BIS was the appeal to the Quebec Court of Appeal. The Quebec Court of Appeal held that habeas corpus was not the appropriate procedure in that the Provincial Superior Court had no jurisdiction in connection with the internal administration of the penitentiary system as that jurisdiction resided exclusively with the Federal Court of Canada. The issues are essentially identical to those raised in Morin v Yoemans et al in respect of which the Supreme Court of Canada pronounced judgment on December 19th, 1985.

Miller v The Director of Millhaven - Unreported, March 5th, 1982 (Ont HC)
	- A prisoner was transferred from Matsqui Medium Institution in British Columbia to Millhaven Maximum Security Institution in Ontario. It was alleged that he had participated in a riot at Matsqui Institution. The local police investigated that matter and concluded that this prisoner could not be identified as a participant and no charges were laid. Nevertheless, the prison authorities relying on their own reports maintained that he had been involved and as a result thereof, he was placed in the special handling unit at Millhaven. He applied for habeas corpus with certiorari in aid. The Court held that certiorari in aid was not available because of the decision of the Supreme Court of Canada in Mitchell v The Queen, supra, and consequently, he could not go behind the Warrants of Committal which were valid on their face and were not attacked. The Court went on to say that the internal procedures within a penitentiary are matters of administration the review of which may be within the jurisdiction of the Federal Court of Canada and any application should be brought to that Court.
	The Ontario Court of Appeal reversed the decision of the High Court and followed the decisions of the British Columbia Court of Appeal in Cardinal and Oswald. The Crown has appealed the judgment to the Supreme Court of Canada: Re Miller and The Queen (1983), 70 CCC (3d) 129 (CA).

Editorial Note - Cardinal and Oswald, Morin and Miller, supra, were granted leave to appeal to the Supreme Court of Canada in November of 1982 and all those cases were heard together on October 11th and 12th, 1984 at which time Judgment was reserved. On December 19th, 1985, the Supreme Court of Canada pronounced judgment in all three cases and in so doing upheld the decision of the Ontario Court of Appeal in Miller, reversed the decision of the British Columbia Court of Appeal in Cardinal and Oswald insofar as the merits of that case were concerned and reversed the decision of the Quebec Court of Appeal in Morin. See detailed annotations supra and infra.

Miller v The Queen - (1986) 23 CCC (3d) 97 (SCC)
	- A provincial superior court has jurisdiction to issue certiorari in aid of habeas corpus against a federal board, commission or other tribunal, notwithstanding the exclusive jurisdiction of the Federal Court Trial Division in relation to certiorari as provided under s18 of the Federal Court Act. On an application for habeas corpus alone (without certiorari in aid), the court may consider affidavit evidence to determine whether the detention in question is unlawful due to an absence or excess of jurisdiction. Furthermore, the remedy of habeas corpus is available to determine the legibility of confinement in a special handling unit and if such confinement is found to be unlawful, the remedy is available to secure the release of the in- mate into the general population of the prison.
	LeDain, J, who gave judgment for the court, held that, in relation to the issue of the availability of certiorari in aid to habeas corpus, the court's previous decision in Mitchell v The Queen (1975) 24 CCC (2d) 241 was no longer good law on this issue and expressly adopted the dissenting judgment of Laskin, CJC in Mitchell on this point. He further pointed out that because of the importance of habeas corpus as a safeguard of the liberty of the subject, the jurisdiction of courts to grant the remedy could only be affected by express words. In arriving at this conclusion, he points to the fact that habeas corpus is included as a guaranteed right in s2(c)(iii) of the Canadian Bill of Rights and is constitutionally guaranteed in s10(c) of the Canadian Charter of Rights and Freedoms.
	On the question of the admissibility of affidavit evidence going to jurisdictional defects, LeDain, J points out that the basis of the courts jurisprudence in this regard consists of two principles: "the principle that extrinsic evidence must not be permitted to convert an application for habeas corpus into an appeal on the merits, and the principle that the record of a superior court is conclusive as to the facts on which the courts jurisdiction depends and cannot be contradicted by extrinsic evidence." He points out that the proceedings and decisions of an inferior tribunal are not of the character entitled to be treated as conclusive of the facts of jurisdiction. LeDain, J concluded that affidavit or other extrinsic evidence to determine whether there has been an absence or excess of jurisdiction may be introduced on applications for habeas corpus without certiorari in aid, subject to the limitation arising from "the conclusive character of the records of courts of superior or general common law jurisdiction."
	On the question of the availability of the remedy to secure the release of a prisoner from the "prison within the prison" to the general population, LeDain, J concludes that such an application meets the first of the traditional requirements of habeas corpus that it must be directed against a deprivation of liberty and secondly, that the use of the remedy in such circumstances is consistent with other applications of the remedy to circumstances where it was used to release a person from a particular form of detention, although the person would still lawfully remain under some other restraint of liberty. LeDain, J affirms that "a prisoner is not without some rights or residual liberty (see also Solosky v The Queen (1979) 50 CCC (2d) 495 at p510) ...and that there may be significant degrees of deprivation of liberty within a penal institution." He continues "in effect, a prisoner has the right not to be deprived unlawfully of the relative or residual liberty permitted to the general inmate population of an institution. Any significant deprivation of that liberty, such as that effected by confinement in a special handling unit, meets the first of the traditional requirements for habeas corpus, that it must be directed against a deprivation of liberty." LeDain, J found that confinement in a special handling unit, or in administration segregation as in Cardinal and Oswald was a form of detention that was distinct and separate from that imposed on the general inmate population and involved a significant reduction in the residual liberty of the inmate. He cautions, however, that he is not saying that habeas corpus should lie to challenge any and all conditions of confinement in a penitentiary or prison, including the loss of any privilege enjoyed by the general inmate population, but he is saying that it should lie to challenge the validity of a distinct form of confinement or detention in which the actual physical restraint or deprivation of liberty, as distinct from the mere loss of certain privileges, is more restrictive or severe than normal in an institution.

Hamilton-Horne and Van Snick v Gillingham and AGBC - Unreported, June 9, 1983, No. 831413, Victoria (BCSC)
	- A prisoner on remand in a B.C. Provincial facility was confined to a cell that in some circumstances was used as a segregation cell sought to set aside the decision of the Director placing him in that cell and have him placed in protective custody. He claimed that by being placed in a "segregation cell" he was being dealt with as a person subject to disciplinary proceedings and that this was contrary to the provisions of the B.C. Corrections Act and Regulations. The Director of the institution claimed that he was not placed there for discipline but pursuant to his general authority to maintain order and security in the Correctional Centre. He further deposed that the petitioner was a high security risk that he believed may have attempted to possess dynamite in order to secure his release from the correctional facility as he had received information from an informant to that effect. The Court held that while habeas corpus with certiorari in aid was an available remedy in the circumstances nevertheless it declined to grant the remedy and stated that because the cell that the petitioner found himself in has been and may be considered in certain circumstances to be a "segregation cell" pursuant to the Rules, that did not in these circumstances convert it into one. The Court felt that in the circumstances a management determination had been made by the Director for the proper functioning and safety of the petitioner and the prison population and may not and should not be considered punishment as defined or contemplated by the Rules and Regulations applicable to the centre. The court found that the cell was not a segregation cell within the meaning of the Act and that the court should not interfere with the discretion exercised by the Director in the particular circumstances. In the circumstances the Director apprehended a danger to the prison population and the institution and further the possibility or even probability that the petitioner would be attacked and harmed by the general prison population if put in that area or even if he was placed in the usual protective custody area.

Dubois v. Sauve et al - Unreported, January 20, 1984, No. T-1418-83 (F.C.T.D.)
	- A decision to transfer a model prisoner as a result of a policy pertaining to first degree murder offenders with life imprisonment sentences without eligibility for parole for 25 years and connected to organized crime to segregation units and Special Handling Units, was held to be justified in accordance with Commissioner's Directives and did not violate the duty to act fairly, under ss.7 or 9 or 12 of the Charter.

R. v. Chester - (1984), 5 Admin. L.R. 111,40 C.R. (3d) 146 (sub nom. Re Chester) (Ont. H.C.)
	- There is no conflict between the discretion of an institutional head (Warden) under this Section and the process for transfer as provided in Com- missioner's Directive 274 (now 800) which provides for the establishment of Special Handling Unit facilities which in turn are authorized to be established by s.13 of the Regulations. The Commissioner has jurisdiction to pass such Directives and is given overall responsibility for the control and management of the Service under s.4 of the Act. The powers given to an institutional head under s.38(4) of the Regulations or under this section do not deprive the Commissioner of his overall responsibilities and, particularly, his power to establish Special Handling Units and issue a Directive in relation thereto. In addition, s.13(3) of the Act relating to transfers from one institution to another, coupled with the Commissioner's general power, gives the Commissioner 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. Phases Il and III of the Special Handling Unit program set out in the Directive are not "administrative segregation" as referred to in s.40 of the Regulations. Commissioner's Directive 274 (now 800) is a valid exercise of the statutory power given to the Commissioner to issue Directives which are not law but are binding upon all within the Penitentiary Service and its provisions do not conflict with the provisions of the Act or Regulations so as to render any part thereof invalid including the establishment of Special Handling Units and the procedures for transfers. An inmate confined to a Special Handling Unit cannot be heard to say that Parliament has not authorized the establishment of such security arrangements.
	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 entitled 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 correspond with the fairness principle sinc6 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.

Morin v. The National S.H.U. Review Committee et al - Unreported, May 15, 1985, No. A-190-82, (F.C.A.)
	- The applicant was charged along with another with the first degree murder of a fellow prisoner. His file was examined by the National Special Handling Unit Review Committee and a decision taken to transfer him to S.H.U. The prisoner then went to trial on the murder charge before a judge and jury and was acquitted. He then grieved the decision to keep him in S.H.U. He then sought habeas corpus for his release but the Quebec Supreme Court ruled that it had no jurisdiction. (That jurisdictional question has now been argued before the Supreme Court of Canada along with the decision of the Ontario Court of Appeal in Re Miller and The Queen and the British Columbia Court of Appeal in Re Cardinal and Oswald and judgment was reserved since October 12th, 1984). Morin then sought certiorari to quash the decision of the S.H.U. Committee. The Trial Division dismissed his application. The Court of Appeal reversed. The Court of Appeal held that, assuming jurisdiction in the S.H.U. Review Committee to make such a decision as opposed to the institutional head under s.40 of the Regulations, the Committee had clearly misdirected itself as to the law when they refused to give full effect to the applicant's criminal acquittal. There were no other facts before the Committee which had not been available in the criminal process or other matters independent of the murder allegation which could justify the applicant's detention. The subsequent penitentiary proceedings to the murder trial were identical in matter to the criminal trial and led to what were in character, purpose and effect, criminal sanctions. The Court reviewed the principles of double jeopardy, res judicata, and collateral or issue estoppel under both English, U.S. and Canadian authorities and held that the two tests to be applied were firstly, identity of matter and secondly, criminal sanctions. The facts of this case arose prior to the Charter. The identity of matter test was more than adequately satisfied in that the decision of the Committee was bas- ed on the same facts as were before the jury. The Committee purported to rely on a pre-trial declaration of another witness who had recanted that statement at the trial before the jury and on a before death declaration of the victim which had also been before the jury. With respect to the criminal sanctions test, the Court found that while such proceedings fell between the traditional criminal and civil spheres, the language used was of the criminal law as was the purpose of the legislation and the consequences of the decision, namely, intensification of imprisonment in a prison within a prison, was highly analogous to a criminal sanction. The Court stated that to be a "criminal" sanction for purposes of res judicata the offence did not have to be criminal within the sense of s.91(27) of the Constitution Act, 1867. The court felt that the proper conclusion was that the proper analogy was to criminal rather than to civil law as the proceedings were similar to s.688 proceedings under the Criminal Code dealing with dangerous offenders in a preventative sense.
	In obiter dicta, the Court doubted the correctness of the decision of the Ontario High Court in Chester and expressed the view that only an institutional head or his lawful deputy could make a decision to transfer to a Special Handling Unit under s.40 of the Regulations. See annotations under s.29 of the Penitentiary Act and ss. 13, 14 and 40 of the Penitentiary Service Regulations.

Bear v The Queen et al - Unreported, January 29, 1986, No. 43/86 (Sask QB)
	- The institutional head or warden segregated or dissociated a prisoner on the basis that he should be kept from "associating" or being in contact with a certain guard. The prisoner sought habeas corpus with certiorari in aid to effect his release to the general inmate population. The court held that the warden's actions were beyond his jurisdiction as conferred by regulation 40.1(a) and were not authorized by that regulation or by law. This section only gives the institutional head or warden authority to dissociate an inmate where it is "necessary or desirable that the inmate should be kept from associating with other inmates". These words operate as a restriction on the warden's jurisdiction.

R v Olson - (1990) 47 CCC (3d) 491 (SCC); aff'g (1988) 38 CCC (3d) 534, 64 OR (2d) 321, 22 I OAC 287 (Ont CA)
	- The authority to make a decision to segregate and dissociate a prisoner from the general population in a prison resides exclusively in the "institutional head". The Solicitor General has neither authority nor power to make such an order. Section 4 of the Penitentiary Act does no more than recognize overall ministerial responsibility. It does not authorize the Solicitor General to order the segregation of a particular prisoner from the general population in a penitentiary. It does not confer authority or power on the Solicitor General to interfere with the rights or liberty of a particular prisoner. In the circumstances, the court concluded that the decision had been made by the institutional head on proper grounds and the prisoner was lawfully detained in segregation.
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