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Disciplinary Offences

39. Every inmate is guilty of a disciplinary offence who [SOR/85-640]
disobeys or fails to obey a lawful order of a member, [SOR/88-547]
assaults or threatens to assault another person,
 (b.1)
 engages in fighting [SOR/90-575]
 (c)
 refuses to work or fails to work to the best of his ability,
 (d)
 leaves his work without permission of a member, [SOR/88-547]
 (e)
 willfully or negligently damages any property of Her Majesty or the property of another person, [SOR/85-640]
 (f)
 willfully wastes food,
behaves toward any other person, by his actions, language or writing, in an indecent, disrespectful, threatening or defamatory manner, [SOR/85-640]
 (h)
 willfully disobeys or fails to obey any regulation or rule governing the conduct of inmates,
 (i)
 has contraband in his possession,
consumes, absorbs, swallows, smokes, inhales, injects or otherwise uses an intoxicant. [SOR/85-412]
 (j)
 deals in contraband with any other person,
 (j.1)
 engages in gambling, [SOR/90-575]
does any act that is calculated to prejudice the discipline or good order of the institution,
 (l)
 does any act with intent to escape or to assist another inmate to escape,
 (l.1)
 is in an area prohibited to inmates, [SOR/85-640]
 (m)
 gives or offers a bribe or reward to any person for any purpose,
 (n)
 contravenes any rule, regulation or directive made under the Act, or
 (o)
 attempts to do anything mentioned in paragraphs (a) to (n).
 
- Editorial Note Re Sections 38, 39 -
(Formerly ss.2.28, 2.29 of SOR/62-90)
 
    See generally Martineau and Butters v. Matsqui Institution Inmate Disciplinary Board (No.1), [1978J 1 S.C.R. 118, 14 N.R. 285, 74 D.L.R. (3d) 1,33 C.C.C. (2d) 366 affirming [1976J 2 F.C. 198 (C.A.); and Martineau v. Matsqui Institution Disciplinary Board (No.2), [1978J 2 F.C. 637, 40 C.C.C. (2d) 325, 22 N.R. 250 (F.C.A.), reversing Re Martineau, [1978J 1 F.C. 312, 37 C.C.C. (2d) 58 (F.C.T.D.). On December 13, 1979 the Supreme Court of Canada reversed the Court of Appeal and restored the decision of the Trial Division. The decision of the Supreme Court of Canada is now reported at (1979), 30 N.R. 119, 106 D.L.R. (3d) 385, 50 C.C.C. (2d) 353.
    See also Magrath v. The Queen (1977), 38 C.C.C. (2d) 67 (F.C.T.D.), in which a prisoner successfully obtained a declaration from the trial division that disciplinary proceedings taken against him were null and void due to a failure on the part of the authorities to act fairly and an order expunging or erasing the conviction from his record.
    See also R. v. Institutional Head of Beaver Creek Correctional Camp; Ex Parte MacCaud, [1969J 1 C.C.C. 371, [1969J 1 O.R. 373 (C.A.) and Re McLeod and Maksymowich (also referred to as Re McLeod's Certiorari Application) (1973),12 C.C.C. (2d) 353, 5 W.W.R. (2d) 129 (N.W.T.S.C.)
    See also Re Pollard and Young (1980),26 Nfld. & P.E.I.R. 410, 72 A.P.R. 410 (Nfld. S.C.) to contrast the attitude of the courts towards disciplinary proceedings pertaining to prison guards.

    See annotation under s.29 of the Penitentiary Act and s.39 of the Regulations as well as the annotations under ss.1 and 11 of the Charter.

 
Re Davidson v. The Queen - (1982), 67 C.C.C. (2d) 214 (F.C.T.D.)
  - The applicant had been sentenced to three consecutive thirty-day periods of punitive dissociation and sought certiorari to quash the sentences arguing that the Penitentiary Act and Regulations did not confer authority to impose consecutive sentences. The application was dismissed.
 
Vigue v. The Director, Mission Medium Security Institution et al - Unreported, January 31, 1983 Vancouver No. CC830050 (B.C.S.C.)
  - The applicant was charged with five disciplinary offences under s.39 of the Penitentiary Service Regulations. Four of the offences occurred within a period of less than one hour but it was agreed that they should be treated for all purposes as separate offences and that the principle of Kienapple v. The Queen (1974), 44 D.L.R. (3d) 351 (S.C. C.) was not in issue. The applicant was convicted of four offences and sentenced to four consecutive periods of dissociation totalling ninety-five days, running from the date of hearing. He sought habeas corpus ad subjiciendum for his release from solitary confinement into the general population. It was argued that the disciplinary court did not have the authority to impose consecutive sentences because the Penitentiary Act and Regulations are silent on the question. The court reviewed the situation at common law in relation to the imposition of consecutive sentences as stated in R. v. Wilkes (1770), 19 State Tr. 1075 and the legislative history of the consecutive sentence provisions under the Code considered by the Supreme Court of Canada in Paul v. The Queen (1982), 67 C.C.C. (2d) 97 (S.C.C.), as well as the decision in Re Davidson v. The Queen (1982), 67 C.C.C. (2d) 214, which was directly on point and concluded that the overall approach is one of making possible the imposition of consecutive sentences when the ends of justice so require. The court held that it would be anomalous if a person convicted of a number of separate offences could not be treated differently from another individual who committed only one of those offences.
 
  - A prisoner convicted of a disciplinary offence is entitled to make submissions as to sentence and punishment and a failure to afford such a right violates the duty to act fairly. Further, a recommendation by the chairperson that a further thirty days punitive dissociation be imposed in addition to thirty days already imposed was beyond the jurisdictional powers given to the chairperson in the legislation.
 
Davidson v. The Disciplinary Board of the Prison for Women and King - (1981), 61 C.C.C. (2d) 520 (F .C. T .D.)
  - A prisoner was charged with a disciplinary offence and sought to have counsel represent her at the disciplinary hearing. Counsel wrote to the Warden of the prison and to the Independent Chairperson requesting permission to appear and submitting that there were subtle and complex questions of law involved in the charge, and that it was only fair and crucial to the applicant that she be permitted counsel to advance legal arguments on her behalf. The Warden replied that it was not the policy of the Correction Service of Canada to allow outside legal representation to appear. The Independent Chairperson replied to the same effect and stated further that there was nothing in the Regulations allowing her to supersede the institutional policy. The hearing proceeded without counsel and the applicant was convicted. An application was then brought to the Trial Division for certiorari to quash the decision on grounds that the Chairperson failed to act fairly by denying legal representation in the circumstances. Under an annex to Commissioner's Directive 213, which sets out the procedure in disciplinary matters, paragraph 12(a) provided that "occasions have arisen where an accused has made formal or informal demands that he be represented by counsel. Such demands shall be met with the response that he is not entitled to counsel, and that the hearing will proceed without the accused person being represented." After an exhaustive and detailed review of all the authorities dealing with prison disciplinary matters, the Court held that in the absence of statutory provisions to the contrary, the right to be represented by legal counsel remains one of discretion. The circumstances in which legal representation for an inmate charged with a disciplinary offence may be essential to ensure a fair hearing. is for the presiding officer of the disciplinary tribunal to decide. In this instance the disciplinary court did not exercise that discretion because she considered herself bound by the Correctional Service of Canada policy as indicated in paragraph 12(a) of the annex to Commissioner's Directive 213. Nothing in the Penitentiary Act nor Regulations precluded the exercise of the discretion by the disciplinary board chairperson. Consequently, paragraph 12(a) of the annex to Commissioner's Directive 213 was found to offend against the fundamental principle of natural justice in that it purported to not only fetter the discretion of the disciplinary court, but to dictate to that court how its discretion should be exercised. The Directive was, therefore, found to be reprehensible and invalid. The failure on the part of the disciplinary court to exercise the discretion vested in it in the circumstances of this case, amounted to a denial of natural justice and the conviction was quashed.
 

    See also Minott v. The Presiding Officer of the Inmate Disciplinary Court of Stony Mountain Penitentiary -Unreported, April 27th, 1981, Court No. T-1787-81, (F.C.T.D.), to the same effect although in that case prohibition was granted to prevent the hearing from continuing in the absence of counsel and ordered that the request for counsel to be present be reconsidered and determined by the presiding officer.

 
    Editorial Note - In the course of giving reasons in the Davidson case, Cattanach J., seems to suggest that it would normally only be appropriate to require counsel in the interest of fairness before disciplinary boards when there are questions of law involved and for his part, he found it difficult to envision circumstances where, upon a trial for breach of military or prison discipline, the presence of counsel would be essential to ensure compliance with the duty of fairness. In his view, breaches of discipline in by far the greatest number of cases are simply questions of fact. It is submitted, with respect, that this completely overlooks the utility of having counsel trained in the art of advocacy and in the skills of examination and cross-examination that would be most important in determining such matters as credibility and determining the facts. It also appears to overlook that old adage to the effect that "anyone who acts for himself has a fool for a client". It is submitted that while it is no doubt important to have counsel where questions of law are involved, that it is equally important to have counsel in any emotional situation where examination and cross-examination of witnesses is part of the procedure to avoid the problem of the parties emotionally involved in the dispute before the court from becoming involved in argumentative forms of questioning and to ensure that the parties affected are given independent objective advice on their position. There have been several subsequent decisions of independent chairpersons including Wiebe v The Disciplinary Board of Stony Mountain and Lorenc -Unreported, October 15th, 1981 and Dennis v The Disciplinary Board of the Prison for Women and King -Unreported, August 7th, 1981 and, in both these cases, counsel was not permitted at the hearing. It appears from the reasons given that as a result of the Davidson decision a practice has been established whereby independent chairpersons will invite the prisoner's counsel to make a written and/or oral submission to the disciplinary court as to why counsel should be permitted in the circumstances and thereafter a decision is made. Consequently, many of the arguments referred to above have been canvassed before some independent chairpersons and nevertheless they have not been accepted and the reasoning of Cattanach J in the Davidson case, supra, has been consistently followed.
 
McLeod v Disciplinary Board of Joyceville Institution et al - Unreported. December 14, 1982, No. T-8961-82 (FCTD)
  - Where applicant pleaded nolo contendere, a plea unknown to our law, at discipline hearing, chairman acted unfairly in entering a guilty plea on applicant's behalf. Fairness required that applicant be considered not to have entered a plea, which would then require a not guilty plea be entered.
 
Davis v AGBC et al - Unreported, January 27, 1983, No. CC821380 (BCSC)
  - In disciplinary proceedings pursuant to s32(4) of the Correctional Centre Rules and Regulations (BC), the Regulations require that an investigating officer be appointed or that, if no one is appointed, the officer making the allegation of a disciplinary offence shall be deemed to be the investigating officer. The officer did not testify in the proceedings and the court held that this was a failure to comply with the Regulations and the conviction was quashed on certiorari. If the Regulation was interpreted otherwise the inmate could effectively be precluded from in any way questioning or testing the allegation otherwise than by a denial or explanation. A prisoner cannot be found guilty without having the opportunity to test or question the allegation against him.
 
Tonner v The Director of Mountain Institution et al - Unreported, April 18, 1984, Vancouver, No. CC840645 (BCSC)
  - The applicant was convicted before the institutional disciplinary court and sentenced to thirty days dissociation which resulted in his transfer from a medium security institu1ion to a maximum security institu1ion to serve the period of dissociation. He sought habeas corpus with certiorari in aid to quash the disciplinary decision and have him returned to the medium security institution alleging a failure on the part of the independent chairperson to consider whether counsel be allowed to represent him at the disciplinary court and alleging denial of the right to make full answer and defence by not allowing cross-examination on a report that was filed at the hearing, all of which it was claimed was contrary to s7 of the Charter as a denial of the principles of fundamental justice. The court held that on the facts there was no request for counsel but only a request to allow a law professor to sit in as an observer and that consequently there was no occasion for the chairperson to exercise his discretion. Similarly, the court held that on the facts when the written report was filed there was no request to cross-examine. If the petitioner had taken issue with the content of the filed report and requested an opportunity to cross-examine the author, then the chairperson would have failed in his duty to the petitioner as it would have been unfair to accept the report as evidence prejudicial to him.
 
R v Mingo et al - (1982) 2 CCC (3d) 23 (BCSC)
  - Accused was convicted of seven disciplinary offences for occurrences during riot at prison where he was an inmate, for which he received punishment of solitary confinement and loss of earned remission. At his trial for public mischief and arson based on other occurrences during same riot, he pleaded autrefois convict and raised defences of res judicata, issue estoppel and abuse of process, and double jeopardy in violation of s11 (h) of the Charter, claiming all offences should have been prosecuted criminally or by disciplinary proceedings rather than split between two proceedings. Held: Disciplinary court is not a "court of competent jurisdiction" to give rise to plea of autrefois convict; charges are not the same, as mischief charge includes an element of wilfulness, and different charges were based on different acts, so defences did not apply. Disciplinary offences were not "offences" within the meaning of s11(h) of the Charter of Rights and Freedoms. Further, the accused's right to be tried within a reasonable time under s11 (h) of the Charter of Rights had not been infringed and he was informed of the specific offence without unreasonable delay in accordance with s11 (a).
 
    Editorial Note - Eventually the Accused was acquitted of all counts except one for "attempted mischief" and the sentencing judge followed the principle against double punishment and took into account the previous punishments imposed upon the Accused inside the prison in his sentencing.
 
    See Regina v Hogan; Regina v Tompkins [1960] 2 QB 513 (UKCCA)
 
Re Russell et al and Radley, Chairman, Collins Bay Penitentiary Disciplinary Court - (1984) 11 CCC (3d) 289, 5 Admin LA 39 (FCTD)
  - The applicants sought prohibition against a disciplinary court on grounds of a violation of s11 (b) of the Charter (unreasonable delay) and s11 (d) of the Charter (the right to be presumed innocent until proven guilty according to law and a fair and public hearing by an independent and impartial tribunal) as well as a violation of s7 of the Charter alleging insufficient information having been provided to enable them to respond. As to the applicability of the Charter the court considered s1 and held that while most of the limits imposed on the rights and freedoms of prisoners and prescribed by penal law are demonstrably justified for protection and deterrence in our society, neither our constitutional traditions nor our Charter is so insensitively punitive as to strip prison inmates of all rights and freedoms and each case would have to be looked at on its particular circumstances with the onus under s1 to be borne by the party who seeks to limit the pertinent rights and freedoms by reducing their operation or effect in the circumstances. The court then reviewed in detail the provisions of the Penitentiary Service Regulations and Commissioner's Directives involving disciplinary offences and compared them to provisions under the Code and concluded that s11 applied to the circumstances and found a violation of s11 (b) finding in the special circumstances that the applicants were not tried within a reasonable time and that the chairperson by adjourning the hearings, without fixing a new date, to await the determination of a challenge to the independence of such tribunals had unintentionally made it impossible to comply with s11 (b). The court held that in the case of inmate disciplinary offences the right to be tried within a reasonable time means to be tried much more swiftly than is reasonable or often even possible in the case of a person who is charged with a criminal or penal offence under federal provincial laws of general application because of the need for swift discipline within the walls. The court disagreed with the test set out in Mingo (supra) and Howard (supra) that the test for the applicability of s11 depended upon the nature of the tribunal which adjudicates the allegation of misconduct. The court said there is no such qualification expressed in s11 or anywhere else in the Charter and that s 11 clearly contemplated that an allegation of an offence may well be tried by a body or person other than a court. The court held that the word "offence" in s11 means conduct (truly culpable misconduct) defined and prohibited by law, which, if found beyond a reasonable doubt to have been committed in fact, is punishable by fine, imprisonment or other penalty imposed according to law upon the culpable miscreant, the offender. Following that standard a disciplinary offence defined in the Penitentiary Service Regulations is surely an offence within the meaning of s11 of the Charter. The court went on to hold that s11 can apply unexceptionably in paras (a), (b) and (c) to inmates charged with disciplinary offences whereas paragraphs (e) and (f) are not applicable. Items (g), (h), and (i) are not problematic. Insofar as para (d) is concerned the court found that the words "to be presumed innocent until proven guilty according to law" was surely applicable but that the words "in a fair and public hearing" presented no problem in regard to the requirement of fairness but that the hearing did not need to be public because it is properly held in a prison setting from which the comings and goings of the public are excluded. The court found no violation of s11 (d). It was not alleged that the chairman was partial nor was any evidence adduced of personal bias. In the court's view the disciplinary "court" as an administrative tribunal performing an administrative function was not required by any standard to evince the plenitude of independence possessed by true courts and that the provisions in the Regulations and Directives for the appointment of independent chairpersons augmented the reality and appearance of independence of the trier of allegations of disciplinary offences.
 
Peltari v. The Director of the Lower Mainland Regional Correctional Centre et al - (1984), 42 C.R. (3d) 103 (B.C.S.C.)
  - The petitioner was acquitted of a charge of being unlawfully at large in Provincial Court. He was then charged under the B.C. Correction Centre Rules and Regulations with the same offence and taken before a disciplinary court and found guilty and sentenced to a loss of thirty days remission. He applied for certiorari to quash the disciplinary court decision as violating s.11(h) of the Charter. The court held that certiorari was available when it was alleged that there was a lack of, or loss of, or error of jurisdiction and that a failure to observe the requirement of judicial fairness when there is a duty to ensure judicial fairness is a jurisdictional error reviewable on certiorari. The court reviewed the decision in Mingo (supra) and Russell and Semmens (supra) and other decisions on the meaning of "offence" in s.11(h) meant "conduct prohibited by law on pain of punishment". The court then went on to find that the offences were identical in that they contained the same elements and constituted one and the same offence arising out of the same set of circumstances and consequently found that the conviction under the Correctional Centre Rules and Regulations was contrary to s.11(h) of the Charter and not within the jurisdiction of the disciplinary panel and quashed the conviction and sentence.
 
Re Peltari and Director of Lower Mainland Regional Correctional Centre et al - (1985), 18 C.C.C. (3d) 571 (B.C.C.A.)
  - An appeal by the Crown from the decision of Gibbs, J. was quashed as moot or academic, the substratum of the litigation having disappeared.
 
    Editorial Note - On the meaning of the word "offence" the court also considered the case of Regina v. T.R. (No.2) (1984), 7 D.L.R. (4th) 263 (Alta. O.B.). To determine whether or not the offences were the same, the court relied on Regina v. Krug (1984), 7 C.C.C. (3d) 324 (Ont. D.C.) an appeal from which was dismissed by the Ontario Court of Appeal and leave to appeal to the Supreme Court of Canada was granted on June 6, 1983. See also Regina v. Wigglesworth (1984), 38 C.R. (3d) 388 (Sask. C.A.) involving a charge against an R.C.M.P. constable for being unnecessarily violent towards a prisoner contrary to s.25 of the Royal Canadian Mounted Police Act and common assault under the Code, where the court held that s.11(h) did not apply.
 
  - An application for certiorari to quash a conviction under s.39(k) (doing an act that is calculated to prejudice the discipline or good order of the institution) was granted and the conviction quashed it being found that there was no evidence of any such act carried out by the applicant and not a scintilla of evidence that the applicant did anything calculated to prejudice the discipline or good order of the penitentiary. The court held while it was not a Court of Appeal on a motion for certiorari and was not permitted to weigh the evidence as a Court of Appeal would so as to assess whether or not there was sufficient evidence to convict the applicant nevertheless certiorari would lie when there was no evidence at all to support the particular charge or conviction. The court noted that the Commissioner's Directive imposed criminal law standards and even though it did not have the force of law was indicative of the views of the authorities of the penitentiary as to the high standard or degree of procedural protection to be extended to prisoners. The evidence adduced at the hearing would never have obtained a conviction in a criminal court. The court went on to state that it is clear that certiorari will lie to quash a decision of an inferior tribunal if that decision is made in the absence of any evidence to support it and also that it was clear that the evidence must have some probative force which would tend to show the existence or the nonexistence of the facts in issue.
 
  - On an application for certiorari to quash disciplinary court convictions it was held that even if the Bill of Rights and the Charter could be brought into play there was no breach by the chairperson warranting judicial interference of any principles of fundamental justice, nor any breach of the common law duty to act fairly in the circumstances. The chief complaint advanced by the applicants was that the chairperson imported, in certain cases, some evidence given in one applicant's hearing into another applicant's hearing. The court found that this was without foundation there being ample evidence on which the convictions could be made and that it was clear that each inmate had been made aware of any facts imported from proceeding hearings and had an opportunity to meet those facts. However, with respect to sentence the chairperson did not invite nor did he give the applicants an opportunity to make submissions as to sentence. This constituted a breach of the duty to act fairly in respect of sentence as the applicants should have been given an opportunity to make submissions as to punishment. A right to make submissions before sentence can be found in the scheme of the legislation and the right to make submissions before the imposition of punishment or penalties is a basic procedural entitlement in our system of law and legal procedures. Consequently, the sentences were quashed and the matter remitted back to the chairperson for further hearing as to sentence. It was further found that the recommendation by the chairperson that a further thirty days punitive dissociation (solitary confinement) be imposed was beyond the jurisdictional powers given in the legislation and that portion of the sentences was, by consent, quashed.
 
Phillips v. Disciplinary Board of Millhaven Institution et al - Unreported, January 20, 1984, No. T-2645-83 (F.C.T.D.)
  - An application for certiorari to quash a conviction under s.39(1) (doing an act with intent to escape) was granted and the conviction quashed and the matter remitted for rehearing by the disciplinary board in circumstances where at the disciplinary hearing the applicant raised in his defence that he would not have been outside in the area in question where the offence allegedly occurred because of a severe infection in his foot and the chairperson then undertook to make enquiries about the availability of medical records and after several adjournments then registered a conviction without obtaining the report. In addition, the transcript of proceedings was not before the court on certiorari and the court was informed it contained extensive blank spaces on that portion of the proceedings where the chairman registered his conviction. The court held that there was no information available to it to determine whether or not the applicant was offered the opportunity to produce his own witnesses on the subject of his foot infection or its effects upon the Crown's evidence and because the chairman undertook to make enquiries into the medical records, it was felt that there must be some evidence before the court that the undertaking was either fulfilled by the chairman or that the opportunity was given to the applicant to produce his own evidence on the point and in the absence of that evidence the court could not be satisfied that the duty to act fairly towards the applicant was fulfilled and hence the conviction was quashed.
 
Braithwaite v. Disciplinary Board of Kingston Penitentiary et al - Unreported, January 19,1984, No. T-3006-83 (F.C.T.D.)
  - An application for certiorari to quash a conviction for a disciplinary offence was granted by consent in circumstances where the chairman breached the duty of fairness by failing to advise the applicant that he had a right to call witnesses on his own behalf and did not afford the applicant an opportunity to call witnesses.
 
Lasalle v. The Disciplinary Tribunal of Leclerc Institute et al - (1983), 37 C.R. (3d) 145, 5 Admin. L.R. 23 (F.C.T.D.)
  - The applicant sought certiorari to wash certain disciplinary convictions and mandamus to remove any record of such from his file. He had apparently been found in an intoxicated state in his cell and while being taken to solitary confinement by a number of guards stumbled and fell against one of them and was thereafter choked and eventually passed out. He was taken before the disciplinary tribunal the next day and it was not until he got there that he knew what he was accused of. On that day he pled guilty to two charges, one of being found in an abnormal state and the other of assaulting an officer. He was sentenced to five days in solitary confinement. While serving his time in solitary confinement he was given yet another charge alleging that he conducted himself in a menacing manner. A few days later that charge was adjourned by the disciplinary court chairman. The guard in question told the applicant at that time he was going to make more severe complaints. He subsequently received a further charge rising from the same initial incident of failing to obey an order. A few days later he appeared before the disciplinary court and sought an adjournment to speak to counsel and was told that counsel had no right to be there. In addition, he was only invited to enter the room after the witnesses and the judge had discussed the case. After he entered the disciplinary court hearing his arguments were dismissed and after the hearing he was told to leave the room while the witnesses and other penitentiary representatives remained in the room with the disciplinary court chairman. On his return he was found guilty and condemned to a further three days in solitary confinement. He later made a further appearance before the disciplinary court and was convicted of the last charge of refusing to obey an order. At the court hearing on the application for certiorari and mandamus an affidavit was filed by the Association Director which was based primarily on hearsay and no affidavits were filed by the particular guards in question. There was some evidence before the court that the applicant had waived the notice requirement in relation to the initial changes to avoid any further delay. The court held that there was no justification for quashing the initial charges. With respect to the charges of threats of violence to the prison officer and disobeying an order, there was no valid or reasonable explanation as to why they were not laid at the same time as the initial charges if in fact there was any justification for laying an excesive number of charges arising out of the same incident. More importantly, his request for counsel was summarily refused without any consideration of the argument raised. The presiding chairperson should at least have considered the advisability of permitting the petitioner to be represented by a lawyer or he should have at least adjourned the hearing to permit written legal submissions to be made by his lawyer. Further the facts indicating that the witnesses remained in the disciplinary courtroom in the absence of the petitioner was unfair and prejudicial to him. The court followed Couperthwaite (see annotation under s.20 of the Parole Regulations) and said that this principle was even more applicable to prison disciplinary hearings where the guards laying the charges should not have any access to the presiding judge in the absence of the accused inmate. Consequently, those latter disciplinary convictions were quashed.
 
    Editorial Note - For the factors and principles that apply on an application to appoint counsel before a criminal court see Re White and The Queen (1977) 32 CCC(2d) 478 (Alta SC) annotated under s611 of the Criminal Code infra.
 
Howard v Presiding Officer of the Inmate Disciplinary Court of Stony Mountain Institution - (1983) 8 CCC (3d) 557 (FCTD); rev'd (1985) 19 CCC (3d) 195,45 CR (3d) 242 (FCA); leave to appeal to SCC quashed (1988) 41 CCC (3d) 287n, 61 CR (3d) 387 (SCC)
  - Howard was a prisoner at Stony Mountain in Manitoba and in December, 1982 and January, 1983, he was involved in some incidents which led to him being charged with seven disciplinary offences under s39 of the Penitentiary Service Regulations. The offences included disobeying or failing " to obey a lawful order of a penitentiary officer on two occasions; assaulting or threatening to assault another person; being indecent, disrespectful or threatening in his actions, language or writing towards another person; having contraband in his possession on two occasions; and doing an act calculated to prejudice the discipline or good order of the institution. He appeared before the Stony Mountain Disciplinary Court which was presided over by an independent chairperson, appointed pursuant to the Regulations. The charges had been designated as serious or flagrant offences. The independent chairperson was a barrister and solicitor. He pled guilty to one charge of disobeying or failing to obey a lawful order of a penitentiary officer and to the charge of assaulting or threatening to assault another person. He pled not guilty to the remaining charges. If convicted of the charges, he stood to lose some of his earned remission or he might be sentenced to dissociation -"a prison within the prison". He obtained legal aid counsel and applied to have counsel represent him at the hearing of the charges. The matters were adjourned to allow submissions to be made by counsel for the applicant as to why counsel should be required at the hearing of the charges and to hear submissions from the Department of Justice to the contrary. The independent chairperson denied his request for counsel after those submissions. Howard applied to the Federal Court Trial Division for prohibition restraining the Disciplinary Court from continuing to concluding the hearing of the charges in the absence of legal counsel. That order was refused by the Trial Division. A Notice of Appeal to the Federal Court of Appeal was filed. However, because he was due to be released from prison on mandatory supervision within a few days, and in the absence of any statutory authorization to try him for the offences committed in prison after his release, the independent chairperson proceeded immediately with the hearing of the charges and he was convicted of four out of the five remaining charges for a total of six convictions, including the two guilty pleas and one acquittal. He was sentenced to forfeiture of 70 days of his earned remission. While the matter was technically academic or moot in the circumstances, the Court of Appeal nevertheless exercised its discretion to hear the matter because of the importance of the issue raised. The appeal was allowed and the decision of the Trial Division reversed and it was declared by the Court of Appeal that the applicant was entitled to counsel for the defence of the charges against him. Per Thurlow, CJ (concurred in by Pratte, J):
 
  (1)   A prisoner's liberty and the security of his person are at stake in disciplinary proceedings because earned remission is in jeopardy and because he might be sentenced to solitary confinement (dissociation) by way of punishment. Therefore, the right to liberty under s7 of the Charter is at risk.
 
  (2)   The "principles of fundamental justice" required by s7 of the Charter requires a "a procedure that is fundamentally just. What that may require will no doubt vary with the particular situation and the nature of the particular case. An unbiased tribunal, knowledge by the person whose life, liberty or security is in jeopardy of the case to be answered, a fair opportunity to answer and a decision reached on the basis of the material in support of the case and the answer made to it are features of such procedure... Any right a person may have to the assistance of counsel arises from the requirement to afford the person an opportunity to adequately present his case."
 
  (3)   Section 7 of the Charter has not created an absolute right to counsel in all such proceedings. The advantages of having the assistance of counsel to present one's case fully and adequately are not in doubt. Whether or not a person has a right to representation by counsel depends on the circumstances of the case, it's nature, it's gravity, it's complexity, the capacity of the inmate himself to understand the case and present his defence. Whether a person is entitled to counselor not in the circumstances is not a matter of the discretion of the chairperson, but a matter of right where the circumstances are such that the opportunity to present the case adequately calls for representation by counsel. The chairperson will have to make a decision on the circumstances, but the courts will adjudicate the right and decide in what circumstances the right exists. The chairperson is not the master of his own procedure, but rather his powers are limited under the Penitentiary Act and Regulations. A chairperson is not in a position to know all the facts from which a right to counsel may arise when he commences a disciplinary court proceeding.
 
  (4)   The circumstances, under the English and United States systems in which a right to counsel could not be denied are, in Canada, guaranteed by s7 of the Charter. The law in England and the United States as to the extent of the right of a prison inmate to counsel in disciplinary proceedings is not finally settled. In England, the disciplinary court has a discretion which on the authorities appears to amount in substance to a right to have counsel when the facts indicate the need for it and to a discretion to allow it in other cases as well. The U.S. cases are distinguishable in that good time or earned remission can be restored under the U.S. legislation whereas in Canada, once forfeited it cannot be restored and therefore amounts to a final and irrevocable deprivation of the right to liberty.
 
  (5)   In some circumstances, s7 of the Charter has the affect of affording an in- mate in a disciplinary proceeding a right to counsel that is not subject to denial by the presiding officer on discretionary grounds. When earned remission is in jeopardy, this alone suggests a need of counsel. Notoriously vague and difficult charges might constitute another need as well as when there is a lack of particulars of the offences. "In a social system which recognizes the right of anyone to counsel in any of the ordinary courts of law for the defence of any charge, no matter how trivial the possible consequences may be, it seems (to the Court) to be incongruous to deny such a right to a person, who, though not suffering from any physical or mental incapacity to defend himself, is faced with charges that may result in a loss of his liberty, qualified and fragile though it may have been, for some 267 days."
 
      Per MacGuigan, J (concurring):
 
  (1)   While the Penitentiary Act and Regulations and Commissioner's Directives establish the disciplinary court, these tribunals, while evolving, cannot as yet be viewed as "court" in the traditional sense. The whole procedure still lacks the full adversarial character and is incomplete in its legality. However, the Charter introduces a new perspective and where it does not create new rights, it may nevertheless enhance existing ones.
 
  (2)   There is a sliding standard of adequacy which can be defined only in reference to the particular degree of liberty at stake and the particular procedural safeguard in question. This involves a balancing of competing interests. The penitentiary setting is of capital importance in sorting out the competing interests as the nature of penitentiaries is such that order is both more necessary and more fragile than in military and police context and its restoration when disturbed becomes a matter of frightening immediacy. However, not every feature of disciplinary practice is objectively necessary for immediate disciplinary purposes. Mere convenience of authorities is no justification. What may be necessary but delayable cannot be given priority. All that is not immediately necessary must certainly yield to the fullest exigencies of liberty. Punitive dissociation is a consequence of a disciplinary court that has much less immediate necessity and revocation of earned remission seems not to be immediately necessary at all. The possibility of the revocation of earned remission as punishment is a circumstance in which penitentiary inmates are entitled not to be deprived of their right to liberty except in accordance with the principles of fundamental justice.
 
  (3)   Section 7 of the Charter enhances the previous requirement of an adequate opportunity to answering a charge but whether it necessitates representation by counsel depends on the circumstances of each case. S7 requires an inmate be allowed counsel when to deny his request would infringe his right to fundamental justice. Once the right exists on the facts, it is not discretionary in the chairperson of the disciplinary court. Consequently, the Charter enhances the fundamental principle of justice relating to an adequate opportunity to answer.
 
  (4)   Vague and catch-all charges indicate a need for counsel to clarify the facts and even where guilty pleas are entered, counsel may be necessary to plead exonerating factors. A chairperson is not in a position at the outset of proceedings to make judgments as to the capacity or otherwise of a prisoner to represent himself.
 
  (5)   Except in factual situations of unique simplicity, the Court could not imagine cases where a possible penalty of loss of earned remission would not bring into play the necessity for counsel. The Court held that the probability that counsel would be required for an adequate hearing on charges with such consequences, a departure from which a presiding officer would have to justify.
 
    Editorial Note - Inmates do have a constitutional right to be represented by legal counsel in disciplinary hearings in which such representation is necessary to ensure that the proceedings are conducted fairly and that justice is done in a particular case. The Attorney General will argue, however, that the respondent did not need to be represented by legal counsel in this case and that therefore there was no error by the disciplinary court. (See Howard, supra.)
 
Mitchell v Crozier et al - (1986) 1 FTR 138 (FCTD)
  - Where a prisoner charged with disciplinary offences did not read the notice setting out the charges and assumed that they were "minor" when in fact they were "serious" and then did not request counsel to assist in defending those charges, the court held that there was no denial of any constitutionally guaranteed right and s7 of the Charter was not violated in the circumstances. Conviction on a third charge that was designated as "serious" was quashed because the prisoner did request counsel and this request was denied and that decision was contrary to the broad principle underlying the decision of the Federal Court of Appeal in Howard (supra) that a prisoner is entitled to be represented by counsel in proceedings before a disciplinary court because of the possibility of forfeiture of earned remission.
 
Kelly v Disciplinary Board of Joyceville Institution - (1987) 25 Admin LR 303 (FCTD)
  - There is no right to counsel at a disciplinary court hearing where: the offence is designated intermediate; the inmate has appeared in disciplinary court on some 50 previous occasions and had 9 days to prepare; the inmate was serving life and had no remission to lose; and the charge was a precise one that was a question of fact not law.
 
Savard v Morrison, the Disciplinary Court at Edmonton Institution - Unreported, March 24,1986, No. T-387-86 (FCTD)
  - An application for a writ of prohibition to prevent the disciplinary court from proceeding with a charge against a prisoner under Penitentiary Service Regulation 39(h) unless he was permitted to be represented by counsel, was dismissed. The rule or regulation that the applicant allegedly disobeyed or failed to obey was that he was not present for a stand-to count on a day when a riot took place in the institution. His defence was firstly, necessity and secondly, that there was in fact no such count held at the time in question. The charge was designated as "serious" as opposed to "minor" or "intermediary". There was no allegation of damage to prison property and the prisoner was serving a life sentence and consequently, the provisions of regulation 38(9)(d) and (f) did not apply as the prisoner had no earned or statutory remission to lose. Other prisoners charged with the same offence arising on the same day had received punishments of 14 days punitive dissociation suspended for 19 days. The court considered the factors referred to in Howard (supra) and found, in all of the circumstances, that the denial of representation by counsel would not constitute a denial of fundamental justice contrary to s7 of the Charter or that fairness indicated that the representation by counsel was desirable.
 
In Re Desroches - (1984) 6 CCC (3d) 407 (Ont DC)
  - A prisoner on remand in an Ontario Detention Centre was charged with a violation of the prison regulations by willfully damaging property. He was interviewed in accordance with the procedure and told that two officers had informed the officer designated to do the interview, that the cell was in good condition prior to the prisoner entering it and after he left it the cell radio was found damaged. The prisoner denied committing the damage and claimed that he was given no opportunity to question or confront these officers. In addition, the prisoner was denied certain privileges he was entitled to even though in segregation. He applied for judicial review of the decision and the court found that the prison officials had failed to comply with their own regulation as no opportunity was given to the applicant to question the person or persons who made the allegations against him. It was not sufficient to ask him if he had any witnesses that could support his denial that he had caused the damage that forms the subject matter of the charge. The statement that only the applicant had the opportunity to cause the damage depended for its validity on the accuracy or correctness of the officers assertions that the cell was in good order before he entered it and that no others had access to it when he left it. The purpose of the right to question the person or persons who made the allegation is to test the accuracy or correctness of those assertions and the applicant was deprived of that right. While the authorities may have come to the right result this did not excuse unacceptable procedure and the failure to act fairly in the circumstances amounted to a severe injustice. A subsequent review of the case by other prison officials did not cure the defect in the initial interview as the applicant was not permitted to question persons who made the allegation at that review and his counsel was expressly denied the request to cross-examine those witnesses. The applicant's right to liberty and the security of his person under s.7 of the Charter were involved but it was not necessary to decide the case by reference to the Charter. A failure to comply with the regulation amounted to a failure to act fairly.
 
Landry v. Legal Services Society - Unreported, July 3, 1985, No. CC850923, Vancouver (B.C.S.C.)
  - A prisoner incarcerated in British Columbia was charged with a disciplinary offence and could not afford counsel and applied to the Legal Services Society to have counsel appointed for the disciplinary court proceedings. The prisoner qualified financially but under the provisions of the Legal Services Society Act of British Columbia, that Society was only mandatorily required to provide service if the applicant was (a) "a defendant in criminal proceedings that could lead to his imprisonment"; (b) might "be imprisoned or confined through civil proceedings"; or (c) "had a legal problem that threatened his livelihood". The application was dismissed, the Court fin- ding that the proceedings were neither criminal, nor civil in nature and that the "problem" facing the applicant did not threaten his livelihood. The Court agreed that the proceedings could be construed by virtue of forfeiture of remission or dissociation in a "prison within a prison" to be proceedings that could lead to his imprisonment. However, the Court further concluded that the proceedings were not criminal in nature following R. v. Mingo, supra. Further, following R. v. Wigglesworth (1984) 11 C.C.C. (2d) 27 (Sask. C.A.), the court held that civil proceedings must involve a breach of one person's duty to another, involving injury and constituting "a private cause of action for damages for which the actor must answer to the person he injured". Consequently, the proceedings were not civil in nature as not involving rights as between individuals. The Court found the proceedings to be disciplinary measures. Finally, the Court concluded that the fact that the period of incarceration might be extended by virtue of the discipline proceedings did not threaten the livelihood of the applicant, it being found by the Court "that he would be able to earn his livelihood unimpaired, even if the period of incarceration can be extended by the disciplinary court.
 
    Editorial Note - The decision in Landry was appealed to the British Columbia Court of Appeal and heard on April 22nd, 1986 and judgment was rendered on May 12, 1986, dismissing the appeal, See detailed annotation infra,
 
Landry v Kent Institution Disciplinary Board - Unreported, July 17, 1985, No. T-1524-85 (FCTD)
  - Landry (supra) was originally charged and a date set for hearing. On that date an adjournment was granted to him to obtain counsel to represent him. The chairperson acceded to the request, having in mind the decision of the Federal Court of Appeal in Howard. Landry applied for legal aid counsel and was turned down and was then granted another adjournment by the independent chairperson. Landry then appealed the decision of the Legal Services Society denying legal aid to the British Columbia Supreme Court. That court reserved judgment. Landry obtained a further adjournment from the independent chairperson, but on that new date, when the decision of the Supreme Court was still pending, the independent chairperson proceeded with the charge against Landry, refused his request for a further adjournment until the issue was decided by the Supreme Court, found him guilty and sentenced him to the forfeiture of 90 days earned remission. Landry then applied for certiorari to quash that decision. In the interim, the Supreme Court had decided to dismiss his application to overturn the decision of the Legal Services Society. In order to appeal that decision, Landry had to quash the decision of the independent chairperson or the matter would otherwise be academic or moot. The court held that the decision to refuse a further adjournment in the circumstances, bearing in mind the ethnic and educational background of Landry was tainted with unfairness in the judicial review legal sense. The independent chairperson considered the good order of the institution required speedy resolution of the charge but did not provide any details. Nor did the independent chairperson indicate that a fair trial on the charge could occur without counsel. The independent chairperson failed to address or consider that issue of a fair trial and the decision was quashed without hesitation.
 
Landry v The Legal Services Society - (1986) 28 CCC (3d) 138 (BCCA)
  - This was an appeal from the decision of the British Columbia Supreme Court in Landry v The Legal Services Society (supra). The British Columbia Court of Appeal dismissed the appeal, holding that the disciplinary proceedings were neither "criminal proceedings" nor "civil proceedings" nor did they threaten Landry's livelihood.
      On the question of whether or not they were "criminal proceedings", the court stated that "it must always be a question of the construction of the particular statute whether an act is prohibited in the sense that it is rendered criminal, or whether the statute merely affixes certain consequences more or less unpleasant to the doing of the act. The nature and character of the proceedings is not determined by the result, but rather by the law upon which the proceedings are based, or out of which they arise -Re Storgoff [1945] SCR 526 at 543, 594.. 598." In the court's view there was nothing in the Legal Services Society Act which indicated that it was contemplated that that Act applied to disciplinary proceedings. The court noted the contrast between disciplinary offences under s29 of the Penitentiary Act and the different types of offences under s29(2) which provided for penalties on summary conviction, as does s41 of the Penitentiary Act. The court further noted that it was open to the Attorney General to prosecute the charge in a court having criminal jurisdiction and that this was recognized by Commissioner's Directive 600.7.03.1. but that that course was not pursued. Though the Penitentiary Act and Regulations recognized that criminal sanctions might be required in some areas and that disciplinary actions may be requisite in controlling other problems, the consequences of either course did not result in the proceedings being characterized as "criminal". Simply because the disciplinary board was amenable to certiorari, did not convert it into a court exercising criminal jurisdiction. A change under the Regulations is not invoked at the instance of the Attorney General as is the case in criminal proceedings. Furthermore. the offences under the Regulations are not invoked for the protection of the public or for the general good of society, but for an institutional purpose. In addition, the procedural trappings pertaining to disciplinary offences are contained in Commissioner's Directives which are administrative rules and not rules of law. Consequently, the application of a procedure analogous to criminal procedure did not result in the proceedings being characterized as "criminal". The court further stated that the judgment of Mr Justice Toy in R v Mingo et al (1982) 2 CCC (3d) 23 (BCSC) to the effect that disciplinary courts are "private or domestic courts" was to be viewed in relation to his consideration of R v Hull Prison Board of Visitors, Ex Parte St Germain et al [1979] 1 All ER 701 (UKCA) and in that context and in that sense, there was no conflict with what was said by the Supreme Court of Canada in Martineau (No.2) (1979) 13 CR (2d) 1 (SCC). The court further adopted the conclusions of Meredith, J below and the comments of the Saskatchewan Court of Appeal in R v Wigglesworth (1984) 11 CCC (3d) 27 (Sask CA). Furthermore, the court held that the decision of the Federal Court of Appeal in Re Morin and the National SHU Review Committee et al (1985) 20 CCC (3d) 123 (FCA) and the British Columbia Supreme Court in Re Peltari and Director of the Lower Mainland Regional Correctional Centre et al (1985) 15 CCC (3d) 223 (BCSC) and the decision of the Federal Court Trial Division in Re Russell et al and Radley (1984) 11 CCC (3d) 289 (FCTD) held that the disciplinary proceedings were not criminal proceedings, although analogous thereto and penal in nature. These cases indicated a conflict as to whether or not s11 of the Charter applied, but that was not the issue in this case. The court pointed out that the distinction is to be drawn between a criminal proceeding and a proceeding, though not criminal, which is penal in nature. An act may be prohibited by law and pain of punishment. It mayor may not be criminal. The character of the act, and of the proceeding, is to be determined upon a proper construction of the legislation giving rise to the charge. Though disciplinary proceedings are penal in nature, they are not criminal proceedings.
      On the question of whether or not the proceedings were "civil proceedings" the court agreed with the reasoning of Meredith, J below, relying upon the distinction made by Cameron, JA in R v Wigglesworth (supra). Further, the court held that notwithstanding other decisions of the British Columbia Supreme Court and the Court of Appeal to the effect that disciplinary proceedings before the Law Society are civil in nature, nevertheless, no cases were cited to hold that proceedings under the Penitentiary Service Regulations are civil in nature and therefore, the court was not pursuaded that these proceedings were "civil proceedings". In the court's view, they were internal proceedings designed to foster order and do not bear any of the usual characteristics of civil matters. The court further held that proceedings involving loss of liberty in a prison, or by confinement in a mental institution, may be civil in nature in cases where judicial review in the ordinary courts is appropriate but held that this was not such a case.
      On the question or whether or not the appellant suffered from a legal problem that threatened his livelihood, the court held that the prisoner's nominal earnings could not be described as a "livelihood" and consequently, the proceedings did not fall within the description of matters under s3(2) of the Legal Services Society Act.
 
    Editorial Note - The last point was abandoned in argument by counsel for the appellant, but the court nevertheless addressed the issue in its reasons for judgment. A further point under that aspect of the matter was argued to the effect that the loss of remission suffered by the appellant if convicted would result in an extension of his release date, thereby affecting his livelihood upon release, to the extent that he would be imprisoned for a longer period of time than the law otherwise required. That aspect of the argument was not addressed by the court in its reasons although the argument was made.
 
Gochanour v Legal Aid Society of Alberta et al - Unreported, April 25, 1990, No. 8903- 2070-C5, Edmonton (Alta QB); (1990) 9 WCB (2d) 650 (Alta QB)
  - there is not an absolute right to counsel. The right only arises within the context of the right to a fair hearing. The Court found prison disciplinary hearings to be of a quasi-criminal nature and not classified solely as civil proceedings, as the person is subject to disciplinary confinement. The legal principles respecting an accused's right to counsel apply in this situation. The Court has an inherent power to appoint counsel in a proper case as part of Its duty to ensure a fair trial. The court indicates the following criteria should be used to determine whether publicly funded counsel should be appointed:
 
  (1)   Education level attained by applicant;
  (2)   Complexity of the matters In issue;
  (3)   Seriousness of the charges;
  (4)   Is counsel required to properly marshall evidence or handle procedural difficulties;
  (5)   Could a term of Imprisonment or disciplinary confinement result;
  (6)   Applicant's financial resources; and
  (7)   Whether or not a legal aid certificate might be granted In the circumstances.
 
      However, it Is up to the applicant to convince the Court that the matters are serious and complex enough to warrant counsel's assistance In ensuring a fair hearing.
      In this case, the issue is not complicated and the penalty is not severe enough to meet this test. The applicant has the capacity to understand the proceedings and has been able to communicate and adequately represent himself. Accordingly, there has not been a violation of s7 of the Charter In this Instance.
 
Gonzales-Davi v Legal Services Society - (1989) 42 BCLR (2d) 232, 66 DLR (4th) 362 (BCSC)
  - The petitioner, who was claiming to be a Convention Refugee, sought a declaration that the Legal Services Society was required to provide him with legal representation at an Immigration inquiry Into his status to remain In Canada. At the inquiry the petitioner bore the onus at the hearing of establishing his right to remain in Canada, and would be subject to deportation If he failed to do so.
      The court considered s3 of the Legal Services Society Act which provides that legal services will be available to qualifying individuals who "may be Imprisoned or confined through civil proceedings." In finding In favour of the petitioner the court held that an inquiry under the Immigration Act is a civil proceeding within the meaning of s3, and also that (p5):
 
    ...deportation is "Imprisonment or confinement" within the meaning of the section. It involves loss of freedom of movement, and of choice, and is characterized by a directed and forced removal from Canada with a ban on return.
 
      The court was of the view that Landry v Legal Services Society (1986) 28 CCC (3d) 138 (BCCA) did not create a closed definition of a "civil proceeding". An order was granted to direct the Society to provide legal representation.
 
Gonzales-Davi v Legal Services Society of BC - Unreported, April 11, 1991, No. CA11841 (BCCA)
  - The Court of Appeal upheld the trial court's decision directing the Legal Services Society to pay for legal counsel to assist a refugee claimant Involved In an Immigration Act Inquiry. The Society Is only obliged to appoint legal counsel for persons who, among other criteria, face Imprisonment or confinement through criminal or civil proceedings. The court held that a person in the refugee Inquiry system fits under the criteria for the appointment of counsel by the Society. The Immigrant is a "person who can be Imprisoned or confined" In the course of proceedings as they are subject to arrest and detention pending the immigration inquiry. Further, the court classified the Inquiry proceedings as "civil" In nature and therefore fall under the type of hearings covered under the Society's mandatory statutory obligations.
 
    Editorial Note - This decision refers to the previous decision of the BCCA in Landry (above) which denied similar funding to prisoners facing discipline proceedings. After briefly discussing the Landry case, Mr. Justice Hutcheon of the BCCA indicates that "[I]eaving aside the discipline cases in the goals, I would give to the section (the LSS obligations to appoint counsel) a sufficiently broad meaning to "criminal proceedings" and "civil proceedings" so that no one threatened with confinement or imprisonment and otherwise qualified is left without legal assistance." These comments may leave the door open to have the court reconsider the issue of public funding for prison and parole related matters in future cases.
 
      In Landry, the court held that prison disciplinary proceedings were neither "criminal" nor "civil" but "disciplinary", notwithstanding that most other disciplinary proceedings had been classified by the courts as "civil" in nature. Gonzales-Davi says non-citizens in immigration matters must be covered because they can be "arrested and detained, imprisoned or confined", Surely, this is also true for the following:
 
  (1)   parolees facing suspension and return to prison;
  (2)   prospective mandatory supervisees who are referred for detention hearings to be kept in until warrant expiry when otherwise entitled to their release;
  (3)   those subjected to solitary confinement (administrative segregation);
  (4)   those subjected to super solitary confinement (High Maximum Security Units); and
  (5)   those subjected to solitary as punishment through the disciplinary court process.
 
Allan v Commissioner of Corrections (Can) - Unreported, September 25, 1990, No. T- 842-89 (FCTD) (Butterworths No. 34692)
  - The prisoner applied to the Federal Court for an order of mandamus compelling the institution to provide him with special orthopaedic footwear for sports. While the court rejected the application based on the facts of the case (the prisoner could not establish a failure in the part of the institution to carry out its duty), the judge found that the whole matter may not have required the court's involvement if the prisoner had been given access to legal counsel in advance. The court said:
 
    "It may be appropriate in such a case to arrange, with the consent of the inmate representing himself, for legal aid or other counsel to provide advice at least in relation to any pre-hearing processes and to provide means of effectively communicating on behalf of the parties, through counsel, once a motion or action has been initiated."
 
Ibrahim v Disciplinary Tribunal of Montee St-Francois Institution et al - Unreported, November 4, 1985, No. T.1325.85 (FCTD)
  - A prisoner was charged with possession of contraband, namely, some pills in his cell. In the result, his day parole was terminated and he was transferred from minimum security to medium security. The prisoner had requested a blood test, a urine test and fingerprint analysis at the time the pills were found and the chairman of the disciplinary tribunal made no comment when these refusals to supply him with these matters were brought to his attention. There was no obligation in law to grant such requests and the refusal to do so did not constitute a violation of any right or breach of any duty. This did not amount to a violation of s11(d) of the Charter. Nor was there a violation of s10(b) of the Charter because even if the applicant was not informed of his right to counsel, he suffered no prejudice as a result thereof. Furthermore, on the facts, any lack of clarity in the nature of the offence with which he was charged was subsequently cleared by discussion with the chairperson and the applicant was not misled as to the nature of the offence and consequently, there was no violation of s11(8) of the Charter. Furthermore, the language rights of the applicant were not infringed or denied because he was able to speak both French and English. In addition, s11(d) of the Charter was not infringed by the chairperson saying that one who has contraband in his possession "has the obligation to explain any good reason or any valid reason why he should not be found guilty on such a charge". The chairman was simply indicating that in such circumstances there was an obligation to explain in such a way that the chairman might "have a doubt". The disciplinary court acted fairly, in good faith, without bias and in a judicial manner and gave the applicant a fair opportunity to state his case.
 
Re Dion and The Queen - (1987) 30 CCC (3d) 108 (Que SC)
  - While regs39(i.1) and 41.1 are within the power of the Governor in Council to make regulations for the discipline and good government of the Penitentiary Service they are of no force and effect by reason of a violation of s7 of the Charter. The "liberty" protected by s7 of the Charter encompasses the right of a citizen to consume, if only on occasion, intoxicants and the right not to be subject to an obligation to provide a urine sample to whomever wants to detect the presence of the intoxicant in his body. A measure seeking to prevent a person from using alcohol for his own pleasure and imposing an obligation to submit to a urine test in order to detect the presence of alcohol limits his fundamental right to liberty as guaranteed by s7. These provisions also affect a person's "security of the person" within the meaning of s7. Furthermore, the infringements of the right to liberty and security of the person were not in accordance with the principles of fundamental justice. While excessive consumption of drugs and alcohol for his own pleasure and imposing an obligation to submit to a urine test in order to detect the presence of alcohol limits his fundamental right to liberty as guaranteed by s7. These provisions also affect a person's "security of the person" within the meaning of s7. Furthermore, the infringements of the right to liberty and security of the person were not in accordance with the principles of fundamental justice. While excessive consumption of drugs and alcohol can have disastrous consequences on the life and security of prisoners and penitentiary authorities and while it is open to the legislator to attempt to stop the consumption of intoxicants and to make demands for urine samples, such measures must be taken in accordance with the principles of fundamental justice. Section 39(i.1) does not do so in that it is imposed on all prisoners in whatever circumstances and regardless of the nature of the intoxicant they consume or may consume other than authorized medication. It is arbitrary and it is impossible for the person to know the limits within which he may exercise his right to liberty and to security of his person in that it does not establish parameters which allow the prisoner to foresee at what moment he runs a risk proportional to his fault. The total prohibition of intoxicants without specifying the reason is arbitrary. To be valid, the regulations must set out the limits as to time, place, quantity and make a correlation between these factors and the evil that it wants to check.
 
Lariviere v Disciplinary Board of Millhaven Institution - Unreported, November 14, 1986, No. T-78-86 (FCTD)
  - The applicant was convicted for possession of contraband. He applied for certiorari to quash the decision. No expert evidence had been called before the disciplinary court to indicate that the two gallons of apricot juice found in his cell were in fact brew and in addition, the tape recording of the disciplinary hearing was blank. The court held that it was not necessary to call expert evidence before a disciplinary tribunal to show that the contraband was in fact home brew. In addition, the court found that the mere failure of a machine to record proceedings cannot give rise to a breach of a duty of fairness.
 
Clark v Fox, Chairperson, Disciplinary Court of Matsqui Institution - Unreported, June 24, 1988, (FCTD)
  - The applicant sought certiorari to quash a disciplinary court conviction for assault. The evidence before the disciplinary court indicated that no institutional officer had observed any fight or scuffle, that one prisoner had been injured and was treated for his injuries, and that the applicant, when interviewed by an officer and asked if he had been in a fight or altercation had stated, according to the officer, that he had been in a fight and that he was protecting himself. The officer had also observed injuries to the applicant. The applicant denied making any such statement that he had not been in a fight. The court quashed the conviction and held that the ordinary lay meaning of "assault" is an attack of some kind intentionally by one person on another. Merely protecting oneself or defending oneself by retaliatory measures does not amount to an assault. The court referred to dictionary definitions of assault as helpful and found that it was an error of law to equate participation in a fight as the committing of an assault. The court declined to decide whether or not the Criminal Code provisions pertaining to the definition of assault and with respect to self defence should be imported into disciplinary proceedings.
 
Vittis v Loeppky, Chairperson, Disciplinary Court of Mountain Institution - Unreported, March 1, 1988, No. T-257-88 (FCTD)
  - The applicant sought certiorari to quash a disciplinary court conviction for assault on the grounds that the Chairperson acted in excess of his jurisdiction by denying the applicant the opportunity to cross-examine an officer whose evidence was considered at the hearing. The applicant asserted that this was in violation of the principles of natural justice and/or s7 and s11(d) of the Charter.
      On the facts, the court found that the applicant was not aware of his right to cross-examine witnesses at the disciplinary court hearing and did not ask to do so. He had been offered opportunities to remand the charge to consult counsel but had indicated a preference to proceed on his own. The request form put forward by the applicant requesting the attendance of a particular officer did not go through the proper procedures and the court accepted the evidence of the Chairperson and other officers that they were unaware of this request until the court proceedings were taken. It was further indicated that the Chairperson had not relied upon the evidence of that officer in coming to its decision to convict.
      The court further stated that if it had concluded on the material before it that the applicant had asked to cross-examine the officer and had been refused and that the decision of the Chairperson had been based, at least partly, on that officer's report, then the court would have had no hesitation in granting the application.
 
R v Shubley - (1990) 52 CCC (3d) 481, 74 CR (3d) 1 (SCC)
  - In a 3 to 2 decision the Supreme Court of Canada ruled that s11(h) of the Charter does not bar Criminal Code proceedings against an inmate who has already been convicted and punished in internal prison disciplinary proceedings.
      For s11(h) to have application, the earlier proceedings would either have to be by their very nature criminal proceedings, or involve the imposition of true penal consequences. Madame Justice McLachlin writing for the majority concluded that the prison disciplinary court proceeding was not by its very nature criminal because (p494):
 
    The appellant was not being called to account to society for a crime violating the public Interest In the preliminary proceedings. Rather, he was being called to account to the prison officials for breach of his obligation as an inmate of the prison to conduct himself in accordance with prison rules.
 
      McLachlin J also held that the prison disciplinary proceedings did not involve true penal consequences. The proceedings involved neither fines nor imprisonment and the (p495):
 
    ...forfeiture of remission does not constitute the imposition of a sentence of imprisonment by the superintendent, but merely represents the loss of a privilege dependent on good behaviour...
        I conclude that the sanctions conferred on the superintendent for prison misconduct do not constitute "true penal consequences" within the Wigglesworth test. Confined as they are to the manner in which the inmate serves his time, and involving neither punitive fines nor a sentence of imprisonment, they appear to be entirely commensurate with the goal of fostering internal prison discipline and are not of a magnitude or consequence that would be expected for redressing wrongs done to society at large. (pp495-6)
 
 

     The court also held that s29 of Reg 649, RRC 1980, which provides for discontinuing internal disciplinary proceedings where criminal proceedings have been commenced, does preclude criminal prosecution where disciplinary proceedings have finished.

      Mr. Justice Cory, in dissent, said that the disciplinary proceedings did involve the imposition of true penal consequences. In his view solitary confinement is an additional violation of the residual liberties an inmate retains while in prison and (p486):
 
    ...because of the tremendous psychological impact of long periods of solitary confinement, it would be unacceptable in our society to condemn a person to close or solitary confinement for the entire period of a significant term of imprisonment... I would conclude, therefore, that solitary confinement must be treated as a distinct form of punishment and that its imposition within a prison constitutes a true penal consequence.
 
      Cory J also said that the loss of earned remission, or the ability to earn remission, is a true penal consequence. From the inmate's point of view any shortening of his confinement through earned remission has the same effect as a reduction in his sentence. At p488 Cory J said that if disciplinary measures: "...are to include a loss of earned remission or the ability to earn it, then the disciplinary punishment has penal consequences as that term is defined in WigglesWorth."
 
R v Martell - Unreported, March 19, 1991, No. 172321690A01 (Alta Prov Ct Crim Div)
  - On September 23rd, 1990, the accused prisoner at Edmonton Maximum Security Institution was alleged to be "in a condition other than normal" and to have threatened a guard, possessed a syringe and possessed a small amount of hashish. The Royal Canadian Mounted Police became involved in an investigation of the matter on September 26th, 1990. On September 27th, 1990, the accused was charged with four charges, pursuant to s39 of the Penitentiary Service Regulations. On the same day, he pled guilty to all four charges, pursuant to the Regulations. He was sentenced to 30 days solitary confinement for being in a condition other than normal, 15 days consecutive for threatening a guard, 15 days concurrent for possession of a syringe and 15 days concurrent for possession of hashish for a total of 45 days solitary confinement. On October 4th, 1990, an Information was sworn, pursuant to the Narcotic Control Act charging him with possession of a narcotic, namely, the hashish found in his possession on September 23rd and forming the basis for the offence pursuant to Penitentiary Service Regulations to which he pled guilty and received 15 days concurrent to the other sentences imposed for the other three charges. The Crown proceeded summarily. By December 18th, 1990 when the Narcotic Control Act charge came to trial, the accused had completed serving the solitary confinement sentence. He was found guilty in the Provincial Court of possession of a narcotic. He then sought a stay of proceedings before sentencing, asserting that he had been previously punished for the same offence and that to punish him a second time would violate s7 of the Charter.
      The evidence established that during the 45 days in solitary confinement, the accused was isolated for 23 hours a day without work programs, television or stereo and suffered adverse physical and psychological effects. However, it was noted that the sentence for the possession of hashish was 15 days concurrent to the other sentences of solitary confinement imposed for the other offences.
      The court dismissed the application finding that the rights of the accused protected under s7 of the Charter have not been violated by this "dual procedure". The court followed the decisions of the Supreme Court of Canada in Regina v Shubley (1990) SCR 3,52 CCC (3d) 481 (SCC) and Regina v Wigglesworth (1987) 25 CR 541,37 CCC (3d) 385 (SCC) dealing with s11 (h) of the Charter to be equally applicable to cases arising under s7 of the Charter. The court held these decisions to have more general application and in so doing, relied on the decision of the Supreme Court of Canada in Sellers v The Queen (1980) 52 CCC (2d) 345 at p347 (SCC) to the effect that statements made in judgments by the Supreme Court of Canada are to be considered as statements of the law and not as obiter. Furthermore, the court appeared to interpret the remarks of the court in Shubley and Wigglesworth to be concerned with "procedural fairness" and held that s7 was limited thereto and there was no evidence or submissions alleging that the proceedings were unfair in the circumstances of this case.
      Following Shubley and Wigglesworth, the court held that prison disciplinary proceedings were not, by their nature, criminal proceedings and that, therefore, it was not involved with a situation involving the "same offence". Furthermore, because the 15 days solitary was concurrent to the other penalties, the sentence imposed was not "imposed for the purpose of redressing the wrong done to society at large" and, therefore, did not "involve true penal consequences".
 
    Editorial Note - It should be noted that the Shubley decision involved an offence pursuant to provincial prison regulations in Ontario where the maximum penalty was five days in solitary confinement. In Martell, the penalty was imposed pursuant to the federal Penitentiary Service Regulations where the amount of solitary confinement that can be imposed is much more substantial. In Shubley, neither the majority nor the dissenting minority made reference to the court's earlier decisions in Martineau v Matsqui Institution Inmate Disciplinary Board (No. 2) (see annotation under s39 of the Penitentiary Service Regulations) which was the first decision of the Supreme Court of Canada to take cognizance of the "prison within the prison", nor the decisions of the court in Miller v The Queen, Morin v National SHU Review Committee, and Cardinal and Oswald v Director of Kent Institution (all annotated under Penitentiary Service Regulations, s40 and elsewhere), all of which recognize the availability of habeas corpus to remove somebody from the "prison within the prison" into the general population of the prison.
    Nevertheless, the decision in Shubley and Martell appears to coincide with the English common law principle that a man who has been convicted of an offence cannot subsequently be charged with the same offence in an aggravated form in relation to the same facts which principle is confined to courts of competent jurisdiction and does not preclude internal disciplinary proceedings in prison. However, the English principle recognizes that the penalty imposed in internal disciplinary proceedings should be taken into consideration by a judge in the passing of sentence for an outside charge. See Regina v Hogan; Regina v Tompkins [1960] 2 OB 513 (UKCCA). For an application of this latter principle, see R v Mingo (supra) annotated at p5138 and the Editorial Note following it.
 
Walker v Disciplinary Board of Kingston Penitentiary - (1986) 52 CR (3d) 106
  - A prisoner was convicted pursuant to s39(g) of being indecent, disrespectful or threatening in his actions, language or writing toward any other person. The offence was treated as flagrant or serious pursuant to s38(4) of the Regulations. He was sentenced to five days punitive dissociation and 14 day loss of privileges suspended for 90 days. The facts of the offence were quite simple. He sought certiorari to quash the decision because he was denied an opportunity to have counsel at the disciplinary hearing. He had been given an opportunity to seek legal advice and a written submission had been filed on his behalf as to why he should be entitled to counsel in the circumstances. His request to have counsel present was refused. The prisoner was serving a life sentence and. Therefore remission was not at risk. The court held that s7 of the Charter was applicable to a trial for disciplinary offences and that because of the potential penalty of dissociation that a "liberty" interest was involved. The court further confirmed that the common law duty of fairness applied. The court analyzed the facts of this case according to the criteria set out in Howard (supra) and concluded that, in the circumstances, an opportunity to present his case adequately did not require representation by counsel. The court further concluded that there had been no denial of fairness as guaranteed by s7 of the Charter.
 
  - The applicant was charged before the institutional disciplinary court with a violation of s39(i) of the Penitentiary Service Regulations, namely, possession of contraband. The alleged contraband was a ballpoint pen tube with marijuana residue. The offence was designated as 'intermediary', Upon conviction he would be subject to a fine and/or solitary confinement for up to 30 days.
      When he appeared before the disciplinary court he requested counsel which request was denied. The disciplinary court chairperson, indicating that it was his understanding that the rules and regulations of the institution did not permit counsel on intermediary offences.
      During the course of the hearing, the officer testified to finding a pen in the prisoner's cell and smelling it. He said it smelled of smoke and he was not sure of what marijuana would smell like. Apparently, the pen had been tested and the residue tested positive for marijuana. The memorandum as to the analysis was not placed before the prisoner during the course of the proceedings although the chairperson had it in his possession and referred to it. The prisoner was convicted of the charge and sentenced to 15 days punitive dissociation (solitary confinement) plus loss of privileges suspended for 60 days and a fine of $20. Furthermore, the prisoner failed to earn remission that he would have earned had he not been found guilty. The conviction was quashed on certiorari:
      Following Howard (supra) and Savard (supra) the court was satisfied in all of the circumstances relating to tile type of offence and possible punishments of dissociation and failure to earn remission" that the offence was one that the failure to allow the prisoner the right to counsel was a denial of principles of fundamental justice under s7 of the Charter:
      There was no rule or regulation that would prevent an inmate having legal counsel when charged with an intermediary offence. If such a prohibition did in fact exist, the court was not convinced it would be a valid prohibition in the context of the Charter:
      Furthermore, the court held that to comply with the principles of natural justice, an inmate must be given the opportunity to defend himself against any charge and in order to do so, must be made aware of the evidence that is used to attempt to obtain a decision against him. The memorandum showing the results of the testing was not shown to the inmate and it could not be assumed that he knew the results by implication. This amounted to a denial of fundamental justice. The prisoner was denied a fair hearing as well as denied the right to defend himself on the evidence that was used to obtain the conviction.
 
Bemier v Guinet; Chairperson of ,Disciplinary Court of Kent Institution - Unreported, November 18, 1986, No. T-268-86 (FCTD)
  - A prisoner in general population at Kent Institution alleged that he was being threatened by other inmates and requested that he be placed in protective custody. He was so placed and when he appeared before the Segregation Review Board, he was asked to provide the names of the prisoners who were threatening him. He refused to do so for fear of the consequences. He was later told that in order to remain in protective custody, he would be required to supply those names. He refused again. As he was being put into general population, he stated he would kill the next officer he saw. He did so in order to be charged with a disciplinary offence in the expectation that he would then be placed in segregation and avoid the danger of being placed in the population. He was charged with an offence pursuant to s39(g) which provides "behaves toward any other person, by his actions, language or writing, in an indecent, disrespectful, threatening or defamatory manner". At the commencement of his disciplinary hearing, he applied to have the charge stayed by the independent chairperson. His application was refused. He then testified that he at no time possessed the intention of carrying out his threat as the threat was uttered for the secondary purpose of remaining in protective custody. The chairperson convicted him of the offence, holding that mens rea was not a necessary element of the charge against him. The court held that the independent chairperson did not have the discretion to stay a charge under s38 or s38.1 of the Penitentiary Service Regulations. That power is clearly within the ambit of jurisdiction of the head of the institution. An independent chairperson only has the specific statutory jurisdiction given to him by regulation 38 and 38.1. The staying of a charge is a matter of substance and not procedure.
      With respect to the issue of "mens rea” the court held that the mens rea attached to the offence of threatening another party by one's language is the intent to speak the words while the actus reus of the offence is the actual speaking of the words. The question of whether the person who actually says the threatening words has the intention of carrying out the threat is irrelevant That intention does not constitute an element of the offence of threatening another person by one's language. It is immaterial whether those who heard the threat or those being threatened appreciated that the words were uttered for a secondary motive. All that is required is that the person accused of the offence actually behaved by his language in a threatening manner. Consequently, the prisoner does not need to possess the intention of actually carrying out the threat to be guilty of the offence. However, the court noted that having regard to s39 of the Penitentiary Service Regulations as a whole, s39(b) deals with the offence of an inmate threatening to assault another person. A charge under that subsection appears to create an offence where an inmate threatens to assault a person, even though the threatened person did not hear the inmate threaten him, nor was he in the presence of the inmate when the threat was made. Section 39(0), on the other hand, appears to contemplate an offence when an inmate behaves towards another person in a threatening manner. The phrase 'behaves towards another person' appears to contemplate that the person who is the subject of the threat is in the presence of the inmate who is issuing the threat In order for an inmate to behave toward any other person by his language in a threatening manner, the other person must be the direct recipient of and be witness to such behaviour. If s39(o) affords an alternative interpretation so as to include as an offence any threat uttered by an inmate at any time, it would be redundant with the offence set out in para39(b) and would render the word 'behaves' void of any meaning. Such an interpretation would be contrary to general principles of statutory interpretation that the construction that gives effect to the whole of the provision under consideration should be adopted in preference to one that renders part thereof meaningless. See Hill v William Hill (Park Lane Ltd) [1949] AC 530 at pp546-547. Consequently, it appeared that the prisoner, in the circumstances, may have been charged with the wrong offence. The officers who were present when the inmate made the threat were not the subject of the threat. Consequently, he did not behave towards them in a threatening manner. What he did do was threaten to assault another person which may be an offence under s39(b). The matter was referred back to counsel for written submission.
 
Buyens v Rippon - Unreported, February 11, 1992, No. T-2986-91 (FCTD) (Butterworths No. 36963)
  - Applicant applied by way of judicial review for certiorari quash his conviction of having committed a disciplinary offence contrary to para 39 (g) of the Penitentiary Service Regulations. The applicant was charged with stating that one of the guard "set him up on drugs and money charges". The court granted the application. The applicant '" was not in the presence of the guard when the comments were made. The words "behaves toward another person" in para 39(g) contemplates that the party who is the subject of the threat must be in the presence of the inmate uttering the threat.
 
Bemier v Guinet; Chairperson of Disciplinary Court of Kent Institution - Unreported, November 18, 1986, No. T-268-86 (FCTD)
  - An independent chairperson appointed under s38.1 and carrying out his duties under 538 does not have the power to stay a charge. That power is solely with the jurisdiction of the institutional head. The powers of the independent chairperson are limited to those express powers provided by the section.
 
Cordeau v Director of Matsqui Institution and Bowman, Chaitperson of Disciplinary Court - Unreported, December 5, 1986, No. T-2613-86 (FCTD)
  - On application for mandamus to compel the chairperson to allow representation by counsel in a disciplinary court proceeding, the court was not satisfied on the evidence before it that it should intervene in the exercise of the disciplinary board's discretion at that stage. The application was dismissed without prejudice to a further application being made on more substantial grounds.
 
  - A prisoner was charged with offences under s39(1) and s39(b). Evidence was given as to her impaired state and conduct and that she had been requested to take a urinalysis, the results of which were negative. However, it was established that the urinalysis tested only for certain drugs. The chairperson found that this was common knowledge within the prison population. The prisoner was convicted. After conviction, submissions Were received from counsel as to sentence. The prisoner and her counsel were then asked to leave the room to allow the chairperson to consult with the security representatives and other institutional representatives on the question of sentence. Thereafter, the prisoner and her counsel returned to the hearing room and the factors considered by the chairperson were indicated and the sentence imposed. She brought certiorari quash the convictions and sentences. The court dismissed the application to quash the conviction, holding that a court, on an s18 review, is not empowered to re-weight the evidence and substitute its own view of the facts for that of the tribunal. In this case, the chairperson was entitled to formulate an opinion concerning the facts before her and that opinion must prevail if it is capable of being supported as a reasonable conclusion based on the evidence. The court's duty on an s18 review is to ensure that on the whole of the evidence, the finding of fact made by the decision maker was one that a reasonable person acting judicially could make. The court was satisfied that there was a sufficient body of evidence before the tribunal upon which to base the decision.
      With respect to the sentences, the court was satisfied that there was nothing inappropriate in having the applicant and her counsel absent from the hearing room while discussions took place between the chairperson and the correctional officers concerning appropriate punishment to be imposed. Information contained in a prisoner's file is of a confidential nature, the disclosure of which would endanger the security of the institution as well as the source of the information. Correctional officers who make negative comments or disclose adverse information concerning the inmate could endanger them- selves or others were such comments to be made in the presence of inmates who have a history of violence. However, the duty of fairness required that once the applicant prisoner and her counsel returned to the hearing room and were advised of the factors upon which the chairperson was relying in making her decision, required that the prisoner and her counsel be afforded the opportunity to make a reply or to rebut any of the information which influenced or persuaded the chairperson. This did not mean that they had to be informed of every detail in the discussions and nor did confidential sources of information have to be disclosed. But where certain information is relied on to conclude that solitary confinement is an appropriate punishment, the prisoner was entitled to be informed of all of the facts considered to be relevant and to refute the information upon which the chairperson relied.
 
Chalk v Bouwman, Chairman 0f Disciplinary Court at Matsqui Institution - Unreported, April 15, 1987, No. T-494-87 (FCTD)
  - The prisoner was charged pursuant to 539 (k) of doing an act that is calculated to prejudice the discipline or good order of the institution. The "act" in question involved an allegation that the prisoner had been in a fight with another prisoner. During the course of the disciplinary hearing, the chairperson made reference to a report from a security officer. The prisoner was convicted and sought certiorari quash the decision on grounds that the chairperson acted without jurisdiction because he either convicted without any evidence before him to support the charge or that he considered, as evidence, the written report without calling the author to testify or be available for cross-examination. The application was granted. The court was unable to say that there was a total absence of evidence to support the charge. It is only if there is a total lack of evidence that certiorari should be granted in respect of an erroneous finding of fact. A conviction entered without any evidence before the tribunal amounts to an error of law rather than a want or jurisdiction. An error of law is equally a basis for the grant of certiorari. On the facts, there was at least some circumstantial evidence here to support the charge. Furthermore, the offence charged was, as a matter of law, sufficient to cover a charge of fighting.
      However, the reference to the report from the security officer was improper. First, it led to an appearance of unfairness. Second, the report should have been excluded entirely from the material before the chairperson unless the author of the report testified or was at least made available for cross-examination. The practice or apparent practice of a tribunal relying on private written reports by officers of the institution to contradict the evidence of an in. mate or his witnesses undermines the principle of fairness that is supposed to be observed by an independent tribunal hearing disciplinary cases. If such reports are to be used for the purposes of establishing admissions by an in. mate or otherwise to establish facts connected with the events, then, at the very least, the reports should be provided in advance to the inmate and the officer made available for cross-examination. Alternatively, the content of the report should be put in evidence by the officer again subject to cross. examination.
 
Gosselin v Bouwman, Chairperson of Disciplinary Court at Matsqui Institution - Unreported, April 15, 1987, No. T-496-87 (FCTD)
  - The prisoner was charged with an offence under s39(Ic) of the Penitentiary Service Regulations, namely, doing an act that is calculated to prejudice the discipline or good order of the institution. The evidence established that the prisoner entered a cell in which there two cups of "brew" apparently some form of contraband malt liquor. There was no evidence to suggest that he or anyone else in the cell was drinking the brew while he was there. The evidence varied as to the amount of time he had been in the cell prior to the arrival of the guards but the longest estimate was five minutes. The prisoner testified that he was not aware of the brew because he was unable to smell. There was evidence from others as to a strong odour in and around the cell. Furthermore, during the course of the hearing, the chairperson referred to a written report from an officer concerning his attempt to interrogate the prisoner concerning his actions. The author of the report was not present and available for cross-examination. The report apparently simply indicated that the accused prisoner had "nothing to say". The prisoner was convicted and sought certiorari to quash the decision. The conviction was quashed, it being held that there was no evidence to support the particular charge. The evidence in support of the charge could not demonstrate that the applicant prisoner was doing something deliberately for the very purpose of prejudicing the good order and discipline of the institution. It did not even demonstrate that what he did was in wreckless disregard for the good order and discipline of the institution. He was simply present where, arguably, others were committing some offence. The vagueness of a charge under this section warrants greater care in ensuring that the person accused is able to make his defence. This vagueness requires that the evidence demonstrate the necessary intent or perhaps a wreckless disregard with respect to prejudicing the discipline or good order of the institution. No such evidence was present. The written report could not legally have constituted any evidence in support of the charge. A prisoner is entitled to refuse to answer and this refusal cannot constitute evidence against him. The conviction here was an error of law and reviewable on certiorari.
 
Tsang v Chairperson of Kent Institution Disciplinary Court - Unreported, September 8, 1988 (FCTD)
  - The applicant Tsang had been scheduled to appear before the disciplinary court on a charge of assault and threatened assault on January 26, 1988. Due to inmate disturbances and a lockdown the hearing was rescheduled. The applicant submitted that the failure to hear the charge on the scheduled date resulted in the disciplinary court losing jurisdiction over the hearing of the charge.
      Reed, J dismissed the prisoner's application for prohibition stating (p6):
 
    "The loss of jurisdiction which occurred in the Krannenburg case, to which the applicant refers, and in the earlier case of Doyle v The Queen [1977] 1 SCR 597, resulted from failures by the respective courts to comply with the statutory rules of procedure by which they were governed. The decisions in those cases cannot be automatically applied to penitentiary disciplinary courts which are governed by different rules of procedure. No argument has been made in this case that the Disciplinary Court failed to comply with its own rules of procedure or otherwise exceeded its statutory mandate. In the absence of any evidence that the Disciplinary Court failed to comply with its own rules of procedure or failed to comply with a statutory procedural requirement, it is difficult to see how a legal argument can be made that in not proceeding with the charge on January 26, 1988, the Disciplinary Court lost jurisdiction."
 
      With respect to s11 of the Charter Reed, J held that: "There is no provision in section 11 which makes it a Charter infringement for a Court to fail to proceed on the date for which a hearing is scheduled and subsequently to re-schedule that hearing."
      The court added that the procedural defect of which the applicant complained, if indeed there was one, was not a denial of the principles of fundamental justice guaranteed by s7 of the Charter.
 
Armstrong v The Queen and Disciplinary Court Chairman of Warkworth Institution - Unreported, May 1, 1989, No. T-562-89 (FCTD)
  - Armstrong appealed his disciplinary court conviction on the ground that the Independent Chairperson (ICP) proceeded where there was a reasonable apprehension of bias.
      He argued that the ICP was biased against Armstrong because he had a serious bias against Armstrong's counsel, who was instrumental in having the ICP brought before the Ontario Judicial Council on an unrelated matter. Counsel for the respondents did not dispute the likelihood that Armstrong's counsel and the ICP were not on good terms.
      In dismissing the argument Teitelbaum, J held that though the ICP failed to control his feelings and acted improperly in laughing at Armstrong and whistling during the hearing:
 
    Nevertheless, it was not until after Armstrong was found guilty that Mr. Hill's name was mentioned and I am satisfied there cannot be said to be bias on the part of the Independent Chairperson in convicting Armstrong of the charge of contraband.
 
Haines v Disciplinary Tribunal- Kingston Prison for Women - Unreported, November 1, 1990, No. T-2853-90 (FCTD) (Butterworths No. 35010)
  - The applicant prisoner was charged with two counts of assault and two counts of uttering threats pursuant to the Criminal Code to be dealt with in outside court. She was also charged with two internal charges of inciting and interfering which would be dealt with by the internal prison Disciplinary Tribunal. All charges arose out of the same fact scenario but the charges themselves were different. The applicant sought prohibition to delay the internal Disciplinary Tribunal hearing pen- ding the disposition of the Criminal Code charges in outside court. The applicant feared that she would be prejudiced by being prevented from giving full answer and disclosure at the internal hearing because she feared that anything she might say at that hearing might be used directly or indirectly against her in the criminal proceedings. The Independent Chairperson had refused to delay the internal proceedings. This court held that while both sets of charges arose from the same set of facts and that, therefore, the evidence in the proceedings would probably be the same, but directed to the applicable charges, nevertheless, the charges were different and the proceedings before the criminal court and the proceedings before the Disciplinary Court were totally different .proceedings' and, therefore, s13 of the Charter, applied. Consequently, any evidence that the applicant might give before the Disciplinary Court could not be used to incriminate her in the criminal proceedings, except in a prosecution for perjury or for the giving of contradictory evidence.
      In arriving at this conclusion, the court referred to the decision of Muldoon, J in Russell and Radley (see annotation at p936) to the effect that it is necessary to act swiftly and surely in prison discipline proceedings and concluded that it was not satisfied on the applicant's affidavit evidence that she would suffer prejudice and felt that a more serious prejudice might occur if the hearing did not proceed because of the delay that might be occasioned in relation to the completion of the criminal charges. The, court conceded that there was a possibility that the applicant might be prejudiced but this was remote and that a concern that may possibly arise is not sufficient to say that it will arise or that the individual will suffer prejudice and, consequently, in its discretion, declined to issue prohibition.
 
Latham v The Queen - Unreported, April 29, 1993, No. T-261-90 (FCTD) (Butterworths No. 38453)
  - In reviewing whether or not an inmate commits an offence under s39(a) of the Penitentiary Service Regulations, the Chairperson must first consider whether all reasonable steps were taken to ensure the safe custody of the inmate, pursuant to s37 of the Regulations. The nature and effect of that order as well as the evidence regarding the inmate's safety or lack thereof, must be taken into consideration before determining that a 539 (a) violation has been committed.
 
    Editorial Note - Several independent chairman of federal disciplinary boards have given written reasons for judgment or decision when requests for counsel have been applied for or other preliminary points raised. Four such decisions that have come to the attention of the Editor are as follows:
 
1. In Re Abbott - Reasons for Decision of T. Troughton, Chairperson, Disciplinary Board, Kingston Penitentiary" unreported and undated.
  - The applicant submitted that the chairperson was not independent and impartial and also applied for counsel at the hearing. With respect to the challenge to the independence and impartiality of the tribunal, the chairperson rules that the disciplinary board was not a court of law and that the hallmark of independence required of the judiciary are somewhat different than those required in administering discipline within the federal penitentiary system and that therefore judicial authorities on independence were distinguish- able. He held that theirs had to be made out that in fact there were circumstances existing respecting his exercise of authority as an independent chairperson which could support the conclusion that the interests of the Correctional Service of Canada in disciplinary matters had in fact influenced his discretion so that the requirements of procedural fairness could not be fulfilled. No such matters had been raised before him. He went on to state however that the requirement of procedural fairness must be scrupulously observed and that he took it as his duty as an independent chairperson that if he was to conclude that in some respect his ability to proceed fairly had been detrimentally affected, he must decline to act in such a case. However, he found that he had not been improperly influenced in the case before him.
      With respect to the application for counsel he found that the arguments in support were not sufficient and that movement into dissociation was not a loss of liberty but an ordinary restraint in place in federal penitentiaries for the purpose of maintaining good order in the institution under authority of law. The proceedings before him would not add additional time not permitted by law to a sentence already being served. If there was going to be a loss of liberty he concluded that that might well accord the applicant the right to legal counsel but that was not the issue before him. Each case would have to be looked at in the circumstances to determine whether or not counsel was required, to comply with the duty to act fairly. In the circumstances the applicant appeared to be able to conduct his defence adequately but the chairperson did not rule out that he might, at some point in time during the hearing, feel that counsel might be required. He further concluded that the particular hearing would deal primarily with questions of fact and that there was nothing unusual about the pending charges to require counsel to ensure a fair hearing.
 
2. Bolan v Disciplinary Board at Joyceville Institution and Roy B. Conacher; Independent Chairperson - (1983), 2 Admin LA 107 (Can Penitentiary Services Institutional Disciplinary Bd)
  - The applicant requested legal counsel and submitted that the independent chairperson was not an independent or impartial tribunal in violation of s11 (d) of the Charter. He further submitted that to proceed would violate his rights under the Charter. The chairperson ruled that notwithstanding the proclamation of the Chal1er since the ruling in Davidson, supra, the right to be represented by legal counsel remained one of discretion to be exercised by the chairperson in the circumstances of each case in the absence of any statutory provision to the contrary. With respect of s 11 of the Chal1er he found no violation and specifically found that exclusion of the public was a reasonable limit prescribed by law which was demonstrably justified in a free and democratic society under s1 of the Charter. He further found that s10 of the Charter did not apply because the inmate had not been arrested nor detained either in the institution nor in dissociation on the charges before him. With respect to s10 he referred to the decision of another independent chairperson in the case of Cowell v Disciplinary Board of Kingston Penitentiary and Thomas W. Troughton. On the facts before him he found the prisoner to be articulate, intelligent and that he understood the nature of the charge and that there was nothing unusual about the charge which required counsel to ensure a fair and impartial hearing and he therefore denied the request.
      With respect to the independence and impartiality question he disagreed with the interpretation and application of s11 as stated by Mr. Justice Toy in R v Mingo, supra and held that that interpretation involved cutting down the provisions of the Chal1er by a narrow and technical construction which was not warranted by the clear and unambiguous language used by the authors of the Charter. He held that by not specifically exempting inmate disciplinary offences from the provisions of s11 one must conclude that those offences were included in the term .offence" set forth in that Section. He went on to hold that the test for independence or impartiality set out in the cases dealing with courts was equally applicable to administrative tribunals as well as judicial or quasi-judicial bodies and referred expressly to the decision of the Supreme Court of Canada in Committee for Justice and Libel1y et al v National Energy Board et a/(1978), 1 SCA 369 at 394:
 
    "The apprehension of bias must be a reasonable one, held by reasonable and right minded persons applying themselves to the question and obtaining thereon the required information. In the words of the Court of Appeal, that test is "what would an informed person, viewing the matter realistically and practically and having thought the matter through -conclude".
 
  Applying that test to the circumstances in reviewing the history of prison discipline and the amendments to the Regulations since July 1st, 1978 he concluded that an independent chairperson was not in practical terms independent when viewed in the context of the controls which may be placed upon him statutorily or otherwise and that therefore he was unable to comply with one of the principles of natural justice and had no jurisdiction to hear the charge. In arriving at that conclusion he noted that prior to July 1st, 1978 disciplinary offences were heard by the warden of the institution or an officer designated by him. At that time the Penitentiary Act was amended by s24.1 (2) to enable the Governor in Councilor the Minister to appoint a person to preside over the disciplinary court. In 1979 the Penitentiary Service Regulations were amended by adding s38.1 providing that the Minister may appoint a person to preside over the disciplinary court and prescribed very broad duties. He noted that the person named by the Minister was not subordinate under the Act in any way to the Commissioner of Corrections who has, pursuant to the Penitentiary Act, the control and management of the Correctional Service of Canada. Independent chairpersons were not therefore employees of the Department. He noted that independent chairpersons hold their appointment at pleasure and can be removed at any time with or without cause and with or without an inquiry. That there was no fixed term of appointment nor a fixed age for retirement. That the Solicitor General of Canada was not bound by statute to report to Parliament on the appointment or dismissal or removal of such independent chairpersons and that there was no intervening authority such as the Judicial Council to provide an inquiry upon the appointment or removal of such person. No oath of office was required. Remuneration was fixed by regulation pursuant to the Penitentiary Act and by the Solicitor General from time to time in accordance with the regulations and no pension was provided for. He noted that there were no other benefits provided for such as life insurance, dental insurance or disability insurance. He noted that chairpersons are appointed by and responsible to the Solicitor General arid generally appointed to a geographical region while cases assigned to him were determined by the Correctional Service of Canada, Regional Deputy Commissioner and Warden of the institution. He noted further that 538 of the Penitentiary Service Regulations empowers the Warden to exercise jurisdiction over all disciplinary offences and that Commissioner's Directives authorizing the Warden to determine what is a flagrant and serious offence which would then be tried before a chairperson did not have the force of law to the extent that inmates could not enforce compliance. Consequently, the opportunity to exercise his duties and his remuneration may be directly affected depending upon the exercise of the authority of the institutional head or Regional Deputy Commissioner pursuant to s38 of the Regulations. He therefore concluded that an independent chairperson did not enjoy the same statutory or historical protection from outside influence as do federal and provincial Judges.
 
3. Cousineau v Disciplinary Board at Joyceville Institution and Conacher - Unreported, September 22, 1983
  - The applicant in this case once again raised the right to counsel before such a board and challenged the independence and impartiality of the board relying on s11 of the Charter. On the question of the right to counsel the applicant relied on s7 of the Charter and Chairman Conacher simply referred to his decision in Bolan, supra, and held that s7 had no application to the case before him. He agreed that liberty might be reduced by an adverse decision but held that the applicant had lost his liberty upon conviction for criminal offences and was being detained for other purposes. He said if s7 applied it still did not imply a right to counsel and held following Davidson, supra, that the matter remained one of discretion. On the facts before him he found the applicant fully capable of presenting full answer and defence without counsel and that there was nothing unusual about the charges requiring counsel to ensure a fair and impartial hearing.
      On the question of the independence and impartiality of the chairperson he referred to his decision in Bolan, supra, and held that he had not changed his opinion that there was a reasonable apprehension of bias but went on to say that since that decision he had had an opportunity to consider the decision of a fellow chairperson, Douglas Hardtman, in the case of Melanson and the Disciplinary Board at Mil/haven Institution, Unreported, August 5, 1983, and having reviewed the terms of his appointment and the position of an independent chairperson as an administrative position he came to the conclusion that he had no express or implied authority to decide the issue of the in- dependence of an independent chairperson within the context of s11(d) or otherwise. This issue ought to be finally decided in another forum. He referred to his letter of appointment which required the chairperson to mandatorily proceed to hear disciplinary offences and while not bound by the decision in Melanson he agreed with its conclusion that held he had no authority to address the issue.
 
4. Torbiak v Burgess, Warkworth Institution Disciplinary Board - Unreported, November 22, 1983
  - On an application to have counsel present at a disciplinary hearing it was the opinion of the chairperson that counsel was unnecessary in the circumstances of the case. He reviewed the proposed offence and found that the issues were factual in nature rather than legal and that legal representation was not required. Each case must be examined on its own merits. He reviewed the Cousineau and Bolan decision with respect to the applicability of the Charter as well as the Davidson case, supra, and held that s7 of the Charter did not apply because the prisoner had already lost his "liberty" within the meaning of s7 when convicted of the offence resulting in his incarceration. Even if s7 did apply he held that this did not automatically entitle the applicant as of right to counsel but still allowed the chairperson a discretion. Similarly, he concluded that s11(d) of the Charter did not automatically entitle the applicant to counsel. He held that it would not be unfair in the circumstances if the applicant did not have counsel and after reviewing Mingo, supra, held that s11 did not include an implied right to counsel.
 
Re Hanson and the Disciplinary Board of the Prison for Women - Unreported, August 15, 1986
  - The prisoner Hanson was charged with disobeying or failing to obey a lawful order of a penitentiary officer. She had refused a direct order to provide a urine sample contrary to the Penitentiary Service Regulations. Hanson had been amongst a group of four prisoners, three of whom had been sent to the hospital to be examined by a nurse whereas Hanson was not considered "bad enough" to be checked and examined. Similarly, the others had been questioned as to the taking of drugs whereas Hanson had not. On the evidence, Hanson did not display signs of being under the influence but was simply a member of the group ordered to provide a sample. Submissions of counsel for both sides were received. The validity of s41.1(1) of the Penitentiary Service Regulations authorizing a demand for a urine sample was held to be valid and that, therefore, inmates could be requested to provide a sample of their urine and that such a request would amount to a lawful order of a penitentiary officer. However, in the circumstances, there was a complete absence of any reasonable and probable grounds to demand a sample from Hanson. While the regulation does not provide any specific direction as to the requirement of reasonable and probable grounds, the regulation must be enforced in accordance with the principles of fundamental justice. Here the request was made in an arbitrary fashion without reasonable and probable grounds. The absence of any guidelines in the regulations require the application of the basic principles of fundamental justice to ensure that the regulation is not enforced in an arbitrary manner. Consequently, the charge against Hanson was dismissed.
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