Sentences of Less Than Two Years

Editorial Note - In the court below (Unreported, January 22, 1981, No. 1124-QB - Estey, J.) it had been held that the mere transfer of the applicant from one institution to the other without any disciplinary action was not of the nature of a decision or order which should bring about a judicial review of the actions of the officers concerned as the applicant was in no way aggrieved by the transfer and it was made to aid in the administration of the institution. The court felt that the "duty of fairness" did not arise in the absence of some type of additional punishment.

18. (1) Arrangements with provinces - The Minister, with the general or special approval of the Governor in Council, may on behalf of the Government of Canada enter into an agreement with the government of any province for the confinement in penitentiaries or any other institutions under the direction or supervision of the Service of persons sentenced or committed to imprisonment for less than two years for offences under this Act or any other Act of Parliament or any regulations made thereunder, but any such agreement shall include provisions whereby those persons shall be confined at the expense of the provincial government concerned.
(2) Effect of confinement in penitentiary - A person who is confined in a penitentiary or other institution pursuant to an agreement made under subsection (1) shall, during the term of that person's sentence or period of committal, be deemed to be lawfully confined and is subject to all the statutes, regulations, rules and orders applicable in the penitentiary or in the institution. [RSC 1970 cP-6 s15; 1976-77 c53 s39]

*Judicial Consideration* -

Re Morin and Director of Corrections for Saskatchewan et al - (1983), 70 CCC (2d) 229 (Sask CA)
	- On appeal from the dismissal of an application for certiorari to quash a transfer from a provincial facility to a penitentiary it was held that the transfer of an inmate from a provincial reformatory to a federal penitentiary was sufficiently akin to discipline to require fairness on the part of the custodial staff pursuant to the principles set out in Re Nicholson and Martineau. The existence of an appeal set out in the guidelines in the agreement between the province and the federal government was not the kind of appeal which would deprive the applicant of a right to seek certiorari. The failure to notify the applicant of the transfer deprived him of the right to appeal and present his grounds in the manner provided for in the appeal procedure. This failure amounted to unfairness towards the applicant. However, it did not follow that this was a case in which the court would exercise its discretion to interfere. In the circumstances there existed in the correctional centre a condition of such potential danger that it was necessary for the officers in charge to act immediately to defuse it. They were justified in taking the view that their purpose would be defeated if the applicant was given the notice of his transfer to the penitentiary provided for in the guidelines. It was a situation in which the requirements of prison discipline and effective administration outweighed the requirements to act towards the applicant with the fairness to which the applicant would otherwise have been entitled and in the exercise of judicial discretion the relief was refused.

Editorial Note - In the court below (Unreported, January 22, 1981, No. 1124-QB - Estey, J.) it had been held that the mere transfer of the applicant from one institution to the other without any disciplinary action was not of the nature of a decision or order which should bring about a judicial review of the actions of the officers concerned as the applicant was in no way aggrieved by the transfer and it was made to aid in the administration of the institution. The court felt that the "duty of fairness" did not arise in the absence of some type of additional punishment.

Norton v Saskatchewan (Director of Corrections) et al - (1986) 47 Sask R 265 (QB)
	- A prisoner who was sentenced to a Saskatchewan correctional facility and who was later moved from general population to a higher level of security within the Saskatchewan correctional system and then later transferred to a federal penitentiary in Alberta pursuant to an agreement between the government of Saskatchewan and the government of Canada under s15 of the Penitentiary Act, sought to quash the decision transferring him to a federal penitentiary, claiming a right to a hearing and representation by counsel respecting the transfer. The corrections division of the Saskatchewan Department of Justice had promulgated a "directive" which required notice of an intended transfer to be given to the prisoner only after the decision had been made but before the transfer itself took place, subject to certain emergency exceptions. The directive did not require a "hearing" as distinct from an interview, nor did it provide for representation by counsel. The court dismissed the application confirming that transfer decisions are administrative in nature, which, in the absence of a specific directive, do not impose a duty to involve the prisoner in the decision making process or to give notice of an impending transfer, nor involving any right to a hearing prior to the transfer. There was nothing in the Saskatchewan directive, in the circumstances, that tended to violate the rights of prisoners to be treated fairly in the process of arriving at an administrative decision to transfer. The inmate was given an opportunity to try and have the transfer decision changed. In the circumstances, the transfer was not a disciplinary action. The transfer did not violate s7 of the Charter.

In Re Anaskan and the Queen - (1977) 34 CCC (2d) 361 (Ont CA)
	- This section operates as a specific exception to the broad words of s659(3) of the Criminal Code requiring a person sentenced to less than two years to be sentenced to a place in a province other than a penitentiary. Consequently, a person serving such a sentence in a Provincial Institution can be transferred to a federal penitentiary under the authority of this section providing an agreement between the respective governments exists. Further, neither the Minister nor his Deputy are required by this section to personally consider each such individual transfer and by necessary implication proper departmental officers are allow- ed to determine and administer such transfers. Further, the mere presence of a person in the courts geographical jurisdiction does not allow the court to extend its prerogative writ powers to quash an order or determination of an individual or tribunal of another province, made in another province and by virtue of an office established under a statute of that province in obiter, a prisoner has no "right" to be in a particular institution and where he serves his sentence is a matter of policy or administrative concern. There is no quasi-judicial quality in such a determination which would call into play the audi alteram partem rule or require a hearing of any kind. Consequently, an administrative decision affecting no basic rights that would give rise to a duty to act in accordance with the principles of natural justice, is not reviewable on certiorari.
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