In 1977, the sub-committee on the Penitentiary System in Canada of the Standing Committee on Justice and Legal Affairs1,a committee composed of representatives from all political parties in Canada, made its extensive and unanimous report to Parliament. In Chapter VII of their report entitled “Justice Within the Walls”, commencing at paragraph 411, the Committee concluded as follows:
There is a great deal of irony in the fact that imprisonment — the ultimate product of our system of criminal justice — itself epitomizes injustice. We have in mind the general absence within penitentiaries of a system of justice that protects the victim as well as punishes the transgressor; a system of justice that provides a rational basis for ordering a community — including a prison community — according to decent standards and rules known in advance; a system of justice that is manifested by fair and impartial procedures that are strictly observed; a system of justice that proceeds from rules that cannot be avoided at will; a system of justice to which all are subject without fear. In other words, we mean justice according to Canadian law. In penitentiaries, some of the constituents of justice simply do not exist. Others are only a matter of degree — a situation which is hardly consistent with any understandable or coherent concept of justice.2
The Rule of Law establishes rights and interests under law and protects them against the illicit or illegal use of any power, private or official, by providing recourse to the courts through the legal process. The administrative process, however, may or may not protect these things, or may itself interfere with them, depending on the discretion of those who are given statutory administrative power. In penitentiaries almost all elements of the life and experience of inmates are governed by administrative authority rather than law. We have concluded that such a situation is neither necessary for, nor has it resulted in, the protection of society through sound correctional practice. It is essential that the Rule of Law prevail in Canadian Penitentiaries3
Through serious criminal activity a wrongdoer loses his claim and his right to remain within and associate with the law-abiding community. Under no circumstances, however, can he be allowed to lose his claim or his right to justice. An individual may withdraw himself from the wider social order through grave misconduct, but not from the order of reason that constitutes justice. Both the responsibilities and the protection of the individual that inhere in the concept of justice must prevail in every place and in every situation under the flag of Canada.4
We suggest that it would be both reasonable and appropriate to proceed in such a way as to allow a much greater scope for judicial control over official activity and the conditions of correction in a reformed penitentiary system than is now feasible. Assuming that the system is definitive in its commitment, clear in its intentions and effective in its prescriptions, then the nature of the task remaining to be done by the courts in ensuring that the Rule of Law prevails within penitentiaries should not be disproportionate to what they do outside prison walls on an ongoing basis. Abuse of power and denial of justice are always possible under any system, no matter how well conceived or organized it may be. These things are felt no less keenly in prison than elsewhere, and their consequences in a penitentiary setting are often far more severe.5
Justice for inmates is a personal right and also an essential condition of their socialization and personal reformation. It implies both respect for the person and property of others and fairness in treatment. The arbitrariness traditionally associated with prison life must be replaced by clear rules, fair disciplinary procedures and the providing of reasons for all decisions affecting inmates.6
The Rule of Law was imported into our Canadian Constitutional System by the preamble to the British North America Act7(now known as the Constitution Act, 1867) where it states that Canada is to have a constitution “similar in principle to that of the United Kingdom”. On April 17th, 1982, the Constitution Act, 1982 (Canadian Charter of Rights and Freedoms)8 was proclaimed in force and by its preamble provides that “Canada is founded upon principles that recognize the supremacy of God and the Rule of Law. Professor A.V. Dicey in his classic treatise Introduction to the Study of the Law of the Constitution9 sets out the following elements constituting his definition of the “Rule of Law”:
- (1)The supremacy of regular law as opposed to the influence of arbitrary power, excluding the existence of arbitrariness, prerogative, or even wide discretionary authority on the part of the government;
- (2)Equality before the law, excluding the idea of any exemption of officials or others from the duty of obedience to the law which governs other citizens;
- (3)The law of the Constitution is not the source but the consequence of the rights of individuals as defined and enforced by the courts.
These elements of the “Rule of Law” have received judicial approval by our highest court, the Supreme Court of Canada, on at least one occasion,10 and, have been restated in terms of a modern context by Professor H.W. Jones, writing in the Columbia Law Review as follows:
- (1)In a decent society it is unthinkable that government, or any officer of government, possesses arbitrary power over the person or interests of the individual;
- (2)All members of society, private persons and government officials alike, must be equally responsible before the law; and
- (3)Effective judicial remedies are more important than abstract constitutional declarations in securing the rights of the individual against encroachment by the state.11
Prior to the coming into force of the Canadian Charter of Rights and Freedoms12 on April 17, 1982 and its equality section (s15) on April 17, 1985, the Canadian Constitution was primarily an unwritten one. The Canadian legal system was based on the British common law tradition and the citizen, for the protection of his basic civil liberties, relied primarily on this unwritten part of the Constitution, “the consequence of the rights of individuals as defined and enforced by the courts”13 or the “effective judicial remedies” that secure “the rights of the individual as against encroachment by the State”.14 The use of government power, given by law, affecting the rights, privileges or interests of the individual citizen, and the abuse of such power, contrary to law, thereby depriving the individual citizen of his civil liberties as determined by an independent judiciary, define for the citizen the extent of his civil liberties. Though this tradition continues, to some extent, the Charter has essentially codified or committed to writing a good deal of the previously unwritten part of the Constitution, in addition to setting out some completely new constitutional provisions, and now compels a completely fresh analysis of the rights of individuals and the use and abuse of power in Canadian society within the framework provided by the Charter itself.
Section 52 of the Charter provides that “the Constitution of Canada is the supreme law of Canada, and any law that is inconsistent with the provisions of the Constitution is, to the extent of the inconsistency, of no force or effect.”15 Unlike the Canadian Bill of Rights,16 the Charter applies not only to the Parliament and government of Canada and all matters within its authority, but also to the legislatures and governments of each province in respect of all matters within their authority.17Parliament or a legislature of a province, may, by virtue of s33, expressly declare that an act of Parliament, or of the legislature, as the case may be, shall operate notwithstanding s2 or ss7 through 15 of the Charter.18 Such declarations are valid for five years, subject to re-enactment for renewable five-year terms. The Charter further provides that its guarantees of certain rights and freedoms shall not be construed as denying the existence of any other rights or freedoms that exist in Canada;19 that notwithstanding anything in the Charter, the rights and freedoms referred to in it are guaranteed equally to male and female persons;20 and that nothing in the Charter extends the legislative powers of any body or authority.21 By s24(1), anyone whose rights or freedoms, as guaranteed by the Charter have been infringed or denied, may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances.22 By virtue of subsection (2), where a court concludes that evidence has been obtained in a manner that infringed or denied any of the rights and/or freedoms guaranteed by the Charter, the court shall exclude the evidence if it is established that, having regard to all the circumstances, the admission of the evidence in the proceedings would bring the administration of justice into disrepute.23 Thus, not only will a law that is inconsistent with the Charter be struck down by the courts, but also a remedy is provided in the courts when the application of a law or the exercise of a power given by law, results in a violation of the rights and freedoms guaranteed.
Though most, if not all, of the provisions of the Charter will have an influence or affect on prison law generally, two of the most important and fundamental provisions are the following:
- s.1. The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.24
- s.7. Everyone has the right to life, liberty and the security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.25
Sections 8 through 14 of the Charter26 address specific deprivations of the “right” to life, liberty and the security of the person in breach of the principles of fundamental justice and consequently, a violation of any of those sections is also a violation of section 7.27 Section 8 provides a right to be secure against unreasonable search and seizure.28 Section 9 provides a right not to be arbitrarily detained or imprisoned.29 Section 10 provides certain rights on arrest or detention to be informed promptly of the reasons, to retain and instruct counsel without delay and to be informed of that right and to have the validity of the detention determined by way of habeas corpus.30 Section 11 sets out numerous specific rights pertaining to persons charged with an offence.31 Section 12 provides a right not to be subjected to any cruel and unusual treatment or punishment.32Section 13 provides protection against self-incrimination in subsequent proceedings33 and s14 provides essentially a right to an interpreter.34 It has been held that these sections are illustrative of the meaning of “principles of fundamental justice” in criminal or penal law.35
Yet another important section of the Charter is s15 which was only proclaimed in force on April 17,1985. That section reads as follows:
- s.15. (1) Every individual is equal before and under the law and has the right to equal protection and equal benefit of the law without discrimination and. in particular, without discrimination based on race, national or ethnic origin, col. our, religion, sex, age or mental or physical disability.
- (2) Subsection (1) does not preclude any law, program or activity that has as its object the amelioration of conditions of disadvantaged individuals or groups, including those that are disadvantaged because of race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.36
Because any consideration of crime and punishment quite understandably evokes subjective emotional responses, it is of fundamental importance that these basic principles of our constitutional system be constantly borne in mind throughout any study of the law pertaining to prisons and prisoners.
The study and practice of the law relating to prisons involves an examination of the consequences of the imposition of the punishment of imprisonment upon conviction for an offence, not necessarily “criminal”, in the constitutional sense, by a court of law. The sentence imposed by the court must be a lawful one and it must be administered according to law. If it is unlawful and carried out otherwise than in accordance with the law, the law itself will provide a remedy to curtail any unlawfulness and ensure compliance with the rule of law.
As with nearly all areas of law, determining the lawfulness or otherwise of a prison sentence or its administration involves the study of freedom and liberty and the extent of its deprivation or reduction or preservation by Parliament and the legislatures by their enactment of statute law and its subsequent interpretation by the courts in the circumstances of each case. Although perhaps trite in law, it is important to remember in practice, that the concepts of freedom and liberty are not absolute but limited by law and therefore relative to the circumstances. Just as the general freedom and liberty of the citizen in society at large is not absolute, but limited by law, the prisoner, upon being sentenced to prison, has his or her general liberty or freedom reduced to a further extent and the degree or extent of this reduction must be determined by an examination of the legislation governing his or her incarceration. Though general liberty is reduced upon imprisonment, there remains a certain residual freedom or liberty within the general population of the prison which in turn might, in certain circumstances, be further reduced by the Warden by the imposition of solitary confinement for the good order of the institution37 or upon conviction for a disciplinary offence.38 Similarly, in certain circumstances, the Parole Board is permitted to increase that general freedom or liberty to a certain extent by granting conditional release in the form of day parole or full parole39 and to then reduce that conditional freedom or liberty by the process of suspension and revocation of parole.40 Various other forms of conditional release also exist, some of which are vested in the Parole Board and others are given by statute or delegated to the Warden or other individuals or tribunals within the prison administration.41 A cursory glance through the provisions of the Corrections and Conditional Release Act41a and its Regulations41b (Formerly the Penitentiary Act42 and its Regulations43) will disclose a multitude of different powers affecting the rights, privileges and interests of prisoners, many of which can be said to be affecting a “liberty” interest or affecting “freedom”. Many prisoners, on being sentenced, are initially placed in maximum-security prisons. Through the classification process and through various other factors, such as participation in any programs, good behaviour and so on, the prisoner might be transferred to medium security and then to minimum security. Conversely, a prisoner might be returned to maximum or even sent to a special handling unit (a special prison within the prison) or simply to a segregation unit within the prison that he is presently confined (a prison within the prison).44 In sum, though imprisonment per se clearly affects physical freedom and liberty, the administration of the sentence involves a continuum or sliding scale of relative, residual freedom and liberty that is affected throughout by the statutory powers vested in the prison and parole administration.
It follows that though the civil liberties of prisoners are generally somewhat less than that of the ordinary citizen, as a matter of law, prisoners continue to enjoy certain civil liberties, having had some extinguished, some reduced and some new ones given to them as a result of their particular status. An examination of the use and abuse of power by correctional authorities affecting these liberties, serves to define the extent to which the state or government can affect the liberties of the citizen, who, as a lawbreaker, is considered the person at the bottom of the legal hierarchy. In other words, the study of the law relating to prisoners and the practice of the enforcement of the rights, privileges and interests of prisoners, benefits the ordinary citizen in society by defining the extreme limits of his civil liberties. Having said that, however, it should also be remembered that many of the principles of law applicable to ordinary citizens are equally applicable to prisoners. These principles of law do not become inapplicable to an individual simply because he has acquired the status of a prisoner. Prison law involves not only a determination of the “rights” of prisoners or simply their privileges, interests or legitimate expectations, but more importantly, it involves ensuring that individuals or public bodies exercising legal powers given by statute which will necessarily affect an individual’s rights, privileges or interests are compelled to exercise those powers in accordance with their jurisdiction. As Dickson, J (as he then was) said in his judgment in Martineau v Matsqui Institution Disciplinary Board (No. 2):45
When concerned with individual cases and aggrieved persons, there is the tendency to forget that one is dealing with public law remedies, which, when granted by the courts, not only set a right, individual injustice, but also ensure that public bodies exercising powers affecting citizens heed the jurisdiction granted them. Certiorari stems from the assumption by the courts of supervisory powers over certain tribunals in order to assure the proper functioning of the machinery of government. To give a narrow or technical interpretation to “rights” in an individual sense is to misconceive the broader purpose of judicial review of administrative action. One should, I suggest, begin with the premise that any public body exercising power over subjects may be amenable to judicial supervision, the individual interest involved being but one factor to be considered in resolving the broad policy question of the nature of review appropriate for the particular administrative body.
It is now clear in prison law that a prisoner continues to enjoy all those rights, privileges and freedoms that he enjoyed as a citizen, save to the extent that they are expressly or by necessary implication taken away by the governing legislation.46Nevertheless, extremely broad powers have been given by Parliament to the Solicitor General and the Commissioner of Corrections, and by the Cabinet (Governor in Council) to the various regional directors and institutional heads and their deputies, to affect whatever rights, privileges or freedoms a prisoner continues to enjoy. The delegation of power, particularly such broad power, carries with it the potential for abuse. When considering the abuse of power, the words of George D. Finlayson, QC, Treasurer of the Law Society of Upper Canada, in the introduction to the March, 1979 special lecture series of the Continuing Legal Education Program of the Law Society of Upper Canada, are apt:
Abuse of power is not just a title, it is a fact of life in Canada today. The extent to which that abuse has been held to tolerable levels by our judicial system is directly attributable to the ability of that judicial system to maintain its independence from the state and to assert the Rule of Law over the agencies of government. The judicial system, however, is just a part of our administration of justice, all be it its most high profile. The fact is that the true responsibility for the effectiveness of judicial control lies with the legal profession which fosters and nurtures the judiciary. There cannot be an independent judiciary without an independent bar, and yet the independence of the one is taken for granted, while the role of the other is ignored or misunderstood.
Abuse of power is inevitable in a system of government such as ours where the intervention of the state into the lives of citizenry can only be described as massive. It occurs at all levels, federal, provincial and municipal. The fact that it attempts in good faith to represent the aspirations of its electorate only compounds the problem. The good faith of the democratic system is not in issue, its execution is.47
It is therefore apparent that while the study of prison law involves many areas of the law, including constitutional law, criminal law, tort law and the law pertaining to civil liberties, it involves in great measure the study and practice of administrative law in the context of imprisonment from the imposition of the sentence until its expiry including periods on parole.
The major legislation affecting prisoners, apart from the Canadian Charter of Rights and Freedoms,48 consists of the Prison and Reformatories Act,49 the Corrections and Conditional Release Act49a and its Regulations49b (formerly the Penitentiary Act50 and Regulations,51 and the Parole Act52 and Regulations53),as well as various other federal statutes54 that might have a bearing on the issue under consideration, as well as certain specific provincial legislation that may be applicable to a federal prison located in a particular province.55 Similarly, within the provincial sphere, each province has its own legislation governing provincial prisoners and certain other provincial legislation might frequently have a bearing on the issue arising, and, on occasion, certain federal legislation may be applicable because of the nature of the particular issue. In addition, various forms of subordinate legislation authorized by an enabling statute, exist and require particular consideration. In the area of federal prisons, this subordinate legislation commences with the Regulations promulgated by the federal Cabinet of the executive branch of the government and continues to include rules that are known as “Commissioner’s Directives” promulgated by the Commissioner of Corrections, a senior public servant who, under the direction of the Minister, the Solicitor General, has the control and management of the service and all matters connected therewith and who derives his power to pass these rules specifically from s.97 of the Corrections and Conditional Release Act (formerly s29(3) of the Penitentiary Act56). More will be said about the status of these directives later.
In addition to Commissioner’s Directives, there are certain other forms of subordinate legislation to be considered. The Penitentiary Service Regulations used to authorize Directors of divisions to issue instructions to be known as “divisional staff instructions”57 concerning the matters that are their responsibility. These divisional instructions, as they were commonly referred to, were promulgated by the Regional Directors of the Correctional Service of Canada and were applicable only to their regions. Similarly, the institutional head or warden was authorized by the Regulations to issue “standing orders”58 which included all orders that were peculiar to his institution as well as “routine orders”59 to provide information and give direction to all officers under his jurisdiction. In the absence of the institutional head the officer who was temporarily in charge of the institution was also authorized to issue these “routine orders”.60 However, the Corrections and Conditional Release Act no longer contains specific sections authorising Regional director’s and Wardens to issue this type of legislation. While s96 of the Act authorises the Cabinet to make regulations, s97 authorises the Commissioner, subject to the act or regulations, to make rules for (a) for the management of the Service; and (b) for the matters described in s4 of the Act, namely the principles guiding the Corrections Service, and (c) generally for carrying out the purposes and provisions of the Act and Regulations. By s98 the Commissioner may designate as “Commissioner’s Directives” any or all the rules made under s97 and such directives are required to be accessible to offenders, staff members and the public. However, the term ‘institutional standing orders’ is still used in the legislation (see for example s6 of the regulations) and it follows that such subordinate legislation still exist. Further,every staff member is authorized to give a prisoner a “justifiable order” and it is an offence against the Regulations for a prisoner to disobey such a “justifiable order”.61
Before the Charter
Approximately 100 years ago, when a person was convicted of a crime, he lost all of his civil and proprietory rights and his status became that of a person dead at law. This concept of “civil death” was abolished by legislative reforms in both England and Canada in 1870 and 1892 respectively.
The concepts of “outlawry, attainder and corruption of blood”, whereby the convicted criminal forfeited both his real and personal estate including any estate he had inherited and any rights of inheritance which his heir might have, were swept away in England by the Forfeiture Act of 187062 and in Canada by our Criminal Code of 1892,63 except in the province of Quebec which retained the concept of civil death in its Civil Code until 1906 and then substituted the status of civil degradation applicable to persons sentenced to death or indefinite punishment.64 This status results in the exclusion of the convicted person from all public functions, employment or offices and deprives the individual of the right to vote and of the right to be elected, and generally all civil and political rights under the legislative control of the province.
Before the Charter, the central question in prison law litigation involved a determination of whether or not a prisoner continued to enjoy all those rights, privileges and freedoms that he enjoyed as a citizen, save to the extent that they were expressly or by necessary implication taken away by the governing legislation, or whether conversely, the prisoner only continued to enjoy those rights, privileges and freedoms that were expressly preserved by the governing legislation. This question would involve, in each case, an examination of the particular provisions of the governing legislation with a view to determining the intention of Parliament. Consequently, certain principles of statutory construction or interpretation were, and continue to be. of particular importance. These principles or presumptions are primarily designed to protect individual liberty or property against interference by the state in the absence of a clear expression of contrary intent.65 Consequently, a court will presume, in the absence of a clear expression in the statute to the contrary, that Parliament did not intend to prejudicially affect the liberty or property of the subject. As Mr. Justice Dickson, (as he then was) speaking for the majority of the Supreme Court of Canada stated in Marcotte v Deputy Attorney General of Canada:66
It is unnecessary to emphasize the importance of clarity and certainty when freedom is at stake. No authority is needed for the proposition that if real ambiguities are found, or doubts of substance arise, in the construction and application of the statute affecting the liberty of a subject, then that statute should be applied in such a manner as to favour the person against whom it is sought to be enforced. If one is to be incarcerated one should at least know that some act of Parliament requires it in expressed terms and not at most by implication.
There are two presumptions of statutory construction that are commonly invoked in this area of the law. The first is the presumption against interference with vested rights which was stated by Chief Justice Duff in Spooner Oils Ltd v Turner Valley Gas Conservation Board67 as follows:
The appropriate rule of construction has been formulated and applied many times. A legislative enactment is not to be read as prejudicially affecting accrued rights, or ‘an existing status’,68 unless the language in which it is expressed requires such a construction. The rule is described by Coke as a ‘law of Parliament’,69 meaning, no doubt, that it is a rule based on the practice of Parliament; the underlying assumption being that, when Parliament intends prejudicially to affect such rights or such a status, it declares its intention expressly, unless, at all events, that intention is plainly manifested by unavoidable inference.
The second most commonly invoked presumption in this area of the law is the presumption against the retrospective operation of a statute. The classic statement of this presumption and its rationale appears in the case of Phillips v Eyre70 where Willis, J said:
Retroactive laws are, no doubt, prima facie of questionable policy, and contrary to the general principle that legislation by which the conduct of mankind is to be regulated ought, when introduced the first time, to deal with future acts, and ought not change the character of past transactions carried on upon the faith of the then existing law… Accordingly, the court will not ascribe retrospective force to new laws affecting rights, unless by express words or necessary implication it appears that such was the intention of the legislature.
A further presumption or rule of statutory construction is the rule that penal statutes are to be construed strictly. As Lord Esher said in Tuck and Sons v Priester.71
We must be very careful in construing that section, because it imposes a penalty. If there is a reasonable interpretation which will avoid the penalty in any particular case we must adopt that construction. If there are two reasonable constructions we must give the more lenient one. That is the settled rule for the construction of penal sections.
The application of these principles to incarceration would appear to require the courts to hold that upon imprisonment a person only loses those rights and freedoms which are expressly or by necessary implication affected by the legislation governing their imprisonment. Nevertheless, the courts, though willing to apply these principles when questions concerning parole came before them, they appear to have had some difficulty applying them to issues involving matters inside the prison itself. For example, the Ontario Court of Appeal, in its advisory opinion in R v Institutional Head of Beaver Creek Correctional Camp, Ex Parte McCaud,72 in a frequently quoted passage, stated as follows:
It would be trite to say that an inmate of an institution continues to enjoy all the civil rights of the person save those that are taken away or interfered with by his having been lawfully sentenced to imprisonment. Rather we consider that it is desirable to attempt to enumerate what are the civil rights to which an inmate remains entitled, which may be affected by the act of the institutional head of the penitentiary in which he is an inmate.
At the outset, it must be observed that the passing of a sentence upon a convicted criminal extinguishes, for the period of his lawful confinement, all his rights to liberty and to the personal possession of property within the institution in which he is confined, save to the extent, if any, that those rights are expressly preserved by the Penitentiary Act.
In that case, the Ontario Court of Appeal was considering the question of whether or not certiorari was available as a remedy to review and set aside the decision of an institutional head or warden convicting a prisoner of a disciplinary offence against the then Penitentiary Service Regulations. Similarly, Mr. Justice Walsh of the Federal Court Trial Division, in considering the question of whether or not a prisoner had the right to marry, there being no provision in the Penitentiary Act or Regulations, or the federal or provincial Marriage Acts73 prohibiting same, stated as follows in Bruce and Meadley v Reynett et al:74
Incarceration must of necessity involve the loss of a substantial number of privileges and amenities but the question raised is whether all privileges and amenities are lost save those specifically permitted by virtue of the Penitentiary Act and regulations or whether conversely an inmate retains all privileges save for those specifically taken away from him by such Act and regulations…
It is self evident that a person confined to a prison or penitentiary must of necessity be deprived of many rights, such as the right to liberty and to enjoyment of property, and retains only those that may be permitted by the regulations.75
In these and other judgments, the courts appeared to be treating the concepts of liberty and freedom as being absolute instead of relative to the circumstances of each case. Treating those concepts as relative and applying basic principles of statutory construction would appear to require an examination of the CCRA (and formerly the Penitentiary Act and Regulations) and in the absence of any express provision taking away the particular right in question, to hold that the right continues to exist, but that the right is not as broad as that enjoyed by the citizen in society at large because it is expressly or by necessary implication affected by the powers of the institutional head with respect to the security of the institution. In other words, in the marriage example, though the right to marry continues to exist, it is nevertheless further limited upon incarceration by the Director’s powers with respect to the security of the institution to the extent that the Director can decide when, where and under what circumstances the marriage might take place, but the Director cannot prohibit the marriage.
In 1979, the Supreme Court of Canada finally pronounced upon this issue in Martineau v Matsqui Institution Disciplinary Board (No. 2),76 a case in which the court considered the jurisdiction of the Federal Court Trial Division under s18 of the Federal Court Act77 to grant relief in the nature of certiorari against a prison disciplinary board decision which, in earlier proceedings,78 had been characterized by the court as a purely administrative decision, not required by law to be made on a judicial or quasi-judicial basis.
Mr. Justice Pigeon in his reasons, concurred in by five other members of the court, concluded that there was jurisdiction to grant certiorari in the circumstances and in so doing he cited with approval the recent important judgment of the United Kingdom Court of Appeal in R v Board of Visitors of Hull Prison, ex parte St Germain,79 and quoted from the head note to that decision as best summarizing the views expressed as follows:
The courts were the ultimate custodians of the rights and liberties of the subject whatever his status and however attenuated those rights and liberties were as the result of some punitive or other process, unless Parliament by statute decreed otherwise. There was no Rule of Law that the courts were to abdicate jurisdiction merely because the proceedings under review were of an internal disciplinary character and, having regard to the fact that under the Prison Act of 1952 a prisoner remained invested with residuary rights regarding the nature and conduct of his incarceration despite the deprivation of his general liberty, the Divisional Court had been in error in refusing to accept jurisdiction.
Mr. Justice Dickson, who wrote separate concurring reasons, concurred in by two members of the court, put the matter as follows:
Moreover, the boards decision had the effect of depriving an individual of his liberty by committing him to a ‘prison within a prison’. In these circumstances, elementary justice requires some procedural protection. The rule of law must run within penitentiary walls.
In my opinion, certiorari avails as a remedy wherever a public body has power to decide any matter affecting the rights, interests, property, privileges, or liberties of any person.80
And again, after referring to the R v Board of Visitors of Hull Prison, ex parte St Germain81 case:
The Court rejected the submission that prisoners have no legally enforceable rights. Megaw, LJ concluded that the observance of procedural fairness in prison is properly a subject for review. Shaw, LJ held that despite deprivation of his general liberty a prisoner remains invested with residuary rights, appertaining to the nature and conduct of his incarceration. Waller, LJ accepted the proposition of Lord Reid in Ridge v Baldwin et al  AC 40, that deprivation of rights or privileges are equally important and applied that proposition to the context of prison discipline.82
The Status of Commissioner’s “Directives”
A further related issue that was dealt with by the Supreme Court of Canada in Martineau (No. 2)83 involves the question of the status of Commissioner’s Directives and other subordinate rules or instructions promulgated by the Commissioner of Corrections or individual Wardens under the former Penitentiary Act or Regulations . The CCRA now appears to limit this power to the Commissioner of Corrections to make rules (s.97) and to designate some of them as ‘Directives’ (s. 98) which then places them in the public domain. Consequently any ‘rules’ promulgated by subordinates to the Commissioner must derive their power to do so via the Commissioners power to delegate unders.2(2) or 10 of the Act or s.5 of thr regulations. Prior to Martineau (No. 2)84 the second report of the standing joint committee on regulations and other statutory instruments concluded that these “directives” were not only “statutory instruments” but were in fact “regulations”.85 The Ontario Court of Appeal, however, in R v Institutional Head of Beaver Creek Correctional Camp, Ex Parte McCaud86 and the Supreme Court of Canada in Martineau and Butters v Matsqui Institutional Inmate Disciplinary Board (Martineau No. 1)87 took a different view. In the former case, the court stated as follows:
It was submitted by counsel for the appellant that the Commissioner’s Directives made pursuant to the power conferred on the Commissioner by s29(3), also had statutory force equivalent to the Regulations made pursuant to the Act and that accordingly they conferred statutory rights on the inmate. In our view, to give the Directives such force would be to invest them with the status not contemplated by the statute. It is significant that the power of making Regulations is denied to the Commissioner but is expressly reserved to the Governor in Council by s29(1). The Regulations so made constitute, with the statute, the legislative framework in which the scope of the Penitentiary Act is defined and determined; the Regulations complement and particularize the statue and together with it make up the legal requirements within and in compliance with which the Penitentiary Service is created and operates. The Commissioner to whom under the direction of the Minister is committed the control and management of the Service, as has been pointed out, is primarily an executive officer and as such the Directives he makes pursuant to s29(3) are part of the administrative process for which he is responsible. The Commissioner for his assistance has a large force, geographically widely dispersed, by means of which he discharges the duties of his office. He must, of necessity, carry to those under his direction, in some form more lasting than word of mouth, the manner in which each member of the staff is expected to conduct himself in the discharge of the duties which are relevant to the post he holds. His Directives, which are internal to the Penitentiary Service, may and probably do govern the employer-employee relationship between the staff member and his superiors as part of the administrative structure. They define for the staff member the manner in which, and limits within which, he and other members of this service are expected to perform their duties; departure from the Directives may constitute an infraction of the obligation owed by the staff member to his superior, but any doubt on the part of a staff member which, in the absence of the Directives, would not constitute an infringement of some civil right or rights conferred on the inmate by the statute and Regulations, does not by virtue of the Directives become such an infringement. In other words, there is no obligation owed by a staff member to the inmate to adhere to the Directives. The duty owed by the Staff member to the inmate must be found in the statute and Regulations.
In Martineau (No. 1),88 Mr. Justice Pigeon, speaking for four members of the court on this issue concluded as follows:
It is significant that there is no provision for penalty and, while they are authorized by statute, they are clearly of an administrative, not a legislative, nature. It is not in any legislative capacity that the Commissioner is authorized to issue Directives but in his administrative capacity. I have no doubt that he would have the power of doing it by virtue of his authority without express legislative enactment. It appears to me that s29(3) is to be considered in the same way as many other provisions of an administrative nature dealing with departments of the administration which merely spell out administrative authority that would exist even if not explicitly provided for by statute.
In my opinion, it is important to distinguish between duties imposed on public employees by statutes or Regulations having the force of law and obligations prescribed by virtue of their condition of public employees. The members of a Disciplinary Board are not high public officers but ordinary civil servants. The Commissioner’s Directives are no more than directions as to the manner of carrying out their duties in the administration of the institution where they are employed.
Chief Justice Laskin, on the other hand, speaking for four members of the court, concluded as follows on this issue:
The nub of the matter is, thus, as my brother Pigeon noted, whether the Directives prescribing what I may compendiously call natural justice for the appellant were made pursuant to “law” and were, therefore, to be observed by the penitentiary authorities.
Can there be any doubt about this? The source or authority for the Directives was in s29(3) of the Penitentiary Act, RSC 1970, cP-6. Section 29 provides both for the making of Regulations by the Governor in Council and for the making of rules, to be known as Commissioner’s Directives, by the Commissioner of Penitentiaries.89
It appeared to be the contention of the respondent that although Parliament has prescribed a rule making authority for the Commissioner (carrying, in accordance with the ordinary view of delegated powers, limitations thereon according to their scope) the fact that no penalty has been prescribed for breach of the rules (in contrast to the position respecting breach of Regulations made by the Governor in Council) denudes the rules of any legal authority; indeed, the suggestion is that the Commissioner could have prescribed the Directives suo motu if there had been no such provision as s29(3), and could have disregarded them with impunity, and that s29(3) added nothing to his administrative authority.
There is no doubt that the Penitentiary Act, even in s29(3) gives authority to the Commissioner to make rules or issue directives which do not run to any enforceable claim by inmates for their observance. This, however, does not mean that all directives must necessarily be characterized as purely administrative or, as was said below, as rules of management as to which no duty of compliance can be enforced by inmates. What is asserted here is that the carefully-wrought rules of procedure governing the hearing and disposition of charges of flagrant or serious offences have no external force, that the appellants have no right to the benefit of the procedure because the penitentiary authorities have no duty to follow them, although they have been prescribed under statutory authority.
This is much too nihilistic a view of law for me to accept. The fact that a Disciplinary Board is charged with a duty to inquire into the validity of charges of flagrant or serious offences brought against inmates, with the consequent risk to them of punishment if the charges are proven, does not stand alone; a formal procedure is prescribed for the benefit of inmates so charged, a procedure which is very typically a prescription of natural justice, and the duty to follow it arises from its very prescription.90
The absence of a penal sanction for the rules or directives can be no more compelling on whether law is involved (with a corresponding duty of obedience) than is the absence of a penal sanction in respect of rules of procedure governing the orders of other tribunals which are found by the courts to be quasi-judicial bodies whose decisions are reviewable under s28(1) of the Federal Court Act. The reviewing Court imposes a sanction by the very fact of review. Moreover, it is a fallacy to contend that rules of directives are less a matter of “law” than are Regulations whose breach is punishable. Rules of procedure of a tribunal are addressed to it and to those affected by the powers exercisable by the tribunal, and it would be odd, indeed, if a penal sanction was imposed upon tribunal members for failure to follow them. The sanction for obedience to them rests on the vulnerability of the tribunal’s decisions if made in disregard of its operating rules.91
Mr. Justice Judson concurred separately and adopted the reasons of Chief Justice Jackett in the Federal Court of Appeal.92That judgment did not deal specifically with the question of the legal status of the Directives although Chief Justice Jackett did conclude that prison disciplinary decisions were not required to be made on a judicial or quasi-judicial basis “…even though they are required by administrative rules to be made fairly and justly.”93 Thus, it is arguable that the Supreme Court of Canada in that decision was equally divided on the status of the Commissioner’s Directives.
It should be noted that the effect of the Statutory Instruments Act94 on the legal status of these Directives was not argued before the Supreme Court of Canada in the Martineau (No.1) case, supra, but the effect of the provisions of the Interpretation Act,95 in particular the definition of “regulation” in that Act was argued but not dealt with by any members of the court in their reasons for judgment. The definition of “regulation” in the Interpretation Act is as follows:
- ‘Regulation’ includes an order, regulation, order in council, order prescribing Regulations, rule, rule of court, form, tariff of costs or fees, letters patent, commission, warrant, proclamation, by-law, resolution or other instrument issued, made or established
For a consideration of the applicability of the Statutory Instruments Act, the reader is referred to an excellent article on this issue by Professor HN Janisch, of the Faculty of Law of Dalhousie University, entitled “What is ‘Law’? — Directives of the Commissioner of Penitentiaries and Section 28 of the Federal Court Act — The Tip of the Iceberg of Administrative Quasi-Legislation.”97
The applicability of the Statutory Instruments Act to Commissioner’s Directives was argued in the Supreme Court of Canada in Martineau (No. 2).98 Once the question of the jurisdiction of the Federal Court of Appeal under s28 of the Federal Court Actwas decided against him, Martineau continued proceedings under s18 of the Federal Court Act to the Federal Court Trial Division.99 The Trial Division concluded that it had jurisdiction but the Federal Court of Appeal100 subsequently reversed it and that decision was appealed to the Supreme Court of Canada. In the Supreme Court of Canada, the appellant, Martineau, relied upon the decision of the United Kingdom Court of Appeal in R v Board of Visitors of Hull Prison, ex parte St Germain.101 The respondents attempted to distinguish that decision by submitting that in England the rules to procedure of such Boards were “Statutory Instruments”. Consequently, the appellants in reply were able to submit that the rules of procedure in Canada (specifically Commissioner’s Directive 213 as it then was) also had the status of “Statutory Instruments” within the meaning of our Statutory Instruments Act. However, the court, although given an opportunity to reconsider this issue, decided not to do so.
Mr. Justice Pigeon in his reasons simply states as follows:
The reasons of the majority, except one Judge who agreed with the reasons of the Court of Appeal, show that, in their view, the ‘Directives’ governing the procedure for dealing with disciplinary offences were considered to be administrative directions rather than ‘law’, although the Regulations defining disciplinary offences and specifying the penalties that may be inflicted by the penitentiary authorities were in the nature of law.102
Mr. Justice Dickson in his concurring reasons, after referring to the court’s earlier decision, states:
The Court held that the impugned order was not within the scope of the opening words of s28 of the Federal Court Act and that the directive of the Commissioner of Penitentiaries was not ‘law’ within the meaning of the phrase ‘by law’ in s28.103
And further on in his reasons he states:
Martineau (No.1) was wholly unconcerned with the issue of ‘fairness’. The central issue there was whether the decision of the Disciplinary Board was within the scope of s28 as being ‘required by law to be made on a judicial or quasi-judicial basis’.
Mr. Justice Pigeon, again speaking for a majority of the Court, considered the question whether the directive of the Commissioner was to be regarded as ‘law’ in the wording of s28 and concluded that, while Regulations under the Penitentiary Act were law, the same could not be said of the directives… It is not in any legislative capacity that the Commissioner is authorized to issue directives but in his administrative capacity.’
In the case of an Inmate Disciplinary Board, the directive of the Commissioner lacks statutory force and, by implication then, Parliament did not intend the directive to have status as a procedural code defining rules of natural justice exhaustive for the board. Accordingly, the decision in question was not one required by law to be made on a judicial or quasi-judicial basis, and the applicant had not brought himself within the precise language of s28.104
Consequently, the Supreme Court of Canada decided that, notwithstanding the provisions of the Interpretation Act and the Statutory Instruments Act, the Commissioner’s Directives are not “law”, at least within the meaning of that term in s28 of the Federal Court Act.
This did not end the matter, because, on occasion, the Penitentiary Service Regulations appeared to incorporate by reference the Commissioner’s Directives. For example, on the question of medical services, the Penitentiary Service Regulations105 provided as follows:
s16. Every inmate shall be provided, in accordance with directives, with the essential medical and dental care that he requires.
It follows, that in referring to the Directives in this manner in the Regulations, the Directive becomes part of the Regulationsand as such has the force of law.106 The CCRA provisions on “Health care” (s.85 – 89) are now in the Act and are more extensive and no longer incorporate ‘directives’ and refer to ‘professionally accepted standards’.
If the Directives do not have the status or force of “law”, then the actions of corrections officials, when they rely on Directives as authority for their actions, will have to be carefully scrutinized to determine whether or not the actions in question and hence the Directive is within the powers conferred by the CCRA or its Regulations or is otherwise authorized by law. If it is not, then the Directive might be struck down as being in excess of jurisdiction or ultra vires.107
The Duty to Act Fairly
Following the decision of the Supreme Court of Canada in Martineau (No.2), the question of whether or not the duty of procedural fairness applied, had been complied with, or breached in the circumstances, became one of the central issues in most prison law litigation. Not only did this issue arise in the context of prison disciplinary matters, but also in relation to transfers, both to special handling units and other institutions, and in relation to the imposition of administrative segregation. In 1985, the Supreme Court of Canada had occasion, once again, to pronounce upon the applicability of the procedural fairness doctrine, this time in the context of administrative segregation. In Cardinal and Oswald v The Director of Kent Institution,108 the prisoners were allegedly involved in a hostage taking incident in a medium security institution and were transferred to a maximum security institution and placed in solitary confinement, pursuant to s40(1) of the Penitentiary Service Regulations,(now in s.31 – 37 of the Act) for the maintenance of good order and discipline in the institution. In accordance with that regulation, their confinement was reviewed once a month by the Segregation Review Board. After approximately three months, the Review Board recommended that they be returned to general prison population. The Director declined to follow that recommendation, taking the position that their release from segregation, before disposition of the pending criminal charges for forcible seizure and attempted escape, was not in the interests of the maintenance of good order and discipline in the institution. He did not inform the applicants of his reasons for refusing to follow the Board’s recommendation, nor did he afford them an opportunity of a hearing. The prisoners obtained an order of habeas corpus with certiorari in aid to obtain their release from administrative confinement to the general prison popuiation,109 but on appeal,110 the British Columbia Court of Appeal reversed the trial court judgment. The prisoners appealed to the Supreme Court of Canada,which allowed the appeal and, in the course of giving judgment for the court, Le Dain, J made the following comments:
There can be no doubt, as was held by McEachern CJSC and the Court of Appeal, that the director was under a duty of procedural fairness in exercising the authority conferred by s40 of the regulations with respect to administrative dissociation or segregation. This court has affirmed that there is, as a general common law principle, a duty of procedural fairness lying on every public authority making an administrative decision which is not of a legislative nature and which affects the rights, privileges or interests of an individual: Nicholson v Haldimand-Norfolk Police Commr Bd,  1 SCR 311, 78 CLLC 14, 181, 88 DLR (3d) 671, 23 NR 410 [Ont]; Martineau v Matsqui Inst Disciplinary Bd,  1 SCR 602, 13 CR (3d) 1, 15 CR (3d) 315, 50 CCC (2d) 353, 106 DLR (3d) 385, 30 NR 119; and AG Can v Inuit Tapirisat of Can,  2 SCR 735, 115 DLR (3d) 1, 33 NR 304. In Martineau, the court held that the duty of procedural fairness applied in principle to disciplinary proceedings within a penitentiary. Although administrative segregation is distinguished from punitive or disciplinary segregation under s40 of the Penitentiary Service Regulations, its effect on the inmate in either case is the same and is such as to give rise to a duty to act fairly.
The question, of course, is what the duty of procedural fairness may reasonably require of an authority in the way of specific procedural rights in a particular legislative and administrative context and what should be considered to be a breach of fairness in particular circumstances.111
After referring to the caution with which this question must be approached in the context of prison administration, as stated by the Supreme Court in Martineau (No. 2),112 LeDain, J continued as follows:
The issue then is: what did procedural fairness require of the director in exercising his authority, pursuant to s40 of the Penitentiary Service Regulations, to continue the administrative dissociation or segregation of the appellants, despite the recommendation of the board, if he was satisfied that it was necessary or desirable for the maintenance of good order and discipline in the institution. I agree with McEachern CJSC and Anderson JA that, because of the serious effect of the director’s decision on the appellants, procedural fairness required that he inform them of the reasons for his intended decision and give them an opportunity, however informal, to make representations to him concerning these reasons and the general question whether it was necessary or desirable to continue their segregation for the maintenance of good order and discipline in the institution. With great respect, I do not think it is an answer to the requirement of notice and hearing by the director, as suggested by Macdonald JA, that the appellants knew as a result of their appearance before the Segregation Review Board why they had been placed in segregation. They were entitled to know why the director did not intend to act in accordance with the recommendation of the board and to have an opportunity before him to state their case for release into the general population of the institution. I do not think the director was required to make an independent inquiry into the alleged involvement of the appellants in the hostage-taking incident. He could rely on the information he had received concerning the incident from the warden of Matsqui Institution and the personnel at regional headquarters. At the same time, he had a duty to hear and consider what the appellants had to say concerning their alleged involvement in the incident, as well as anything else that could be relevant to the question whether their release from segregation might introduce an unsettling element into the general inmate population and thus have an adverse effect on the maintenance of good order and discipline in the institution.
These were in my opinion the minimal or essential requirements of procedural fairness in the circumstances, and they are fully compatible with the concern that the process of prison administration, because of its special nature and exigencies, should not be unduly burdened or obstructed by the imposition of unreasonable or inappropriate procedural requirements. There is nothing to suggest that the requirement of notice and hearing by the director, where he does not intend to act in accordance with a recommendation by the Segregation Review Board for the release of an inmate from segregation, would impose an undue burden on prison administration or create a risk to security.
There is the question, suggested by the reasons for judgment of Nemetz CJBC, whether the breach of the duty to act fairly in this case should be held not to have resulted in an excess or loss of jurisdiction and to have made the continuing segregation of the appellants unlawful because, having regard to the merits of the substantive issue, it did not result in a substantial injustice or, to use the words of Nemetz CJBC, was not of “sufficient substance”. Both Nemetz CJBC and Macdonald JA considered the substantive issue of whether the appellants should be released from segregation and appeared to conclude that the director’s reasons for refusing to follow the recommendation of the Segregation Review Board were reasonable and fair. It is a possible implication of their approach that they were of the view that, given the director’s reasons for refusing to follow the recommendation of the board, a hearing by him of the appellants would not serve any useful purpose. Certainly a failure to afford a fair hearing, which is the very essence of the duty to act fairly, can never of itself be regarded as not of “sufficient substance” unless it be because of its perceived effect on the result or, in order words, the actual prejudice caused by it. If this be a correct view of the implications of the approach of the majority of the British Columbia Court of Appeal to the issue of procedural fairness in this case, I find it necessary to affirm that the denial of a right to a fair hearing must always render a decision invalid, whether or not it may appear to a reviewing court that the hearing would likely have resulted in a different decision. The right to a fair hearing must be regarded as an independent, unqualified right which finds its essential justification in the sense of procedural justice which any person affected by an administrative decision is entitled to have. It is not for a court to deny that right and sense of justice on the basis of speculation as to what the result might have been had there been a hearing.113
The court held that the Director’s failure to afford the prisoners a fair hearing on the question of whether or not he should act in accordance with the recommendation of the Segregation Review Board that they be released from administrative segregation into the general population of the institution rendered the continued segregation of the prisoners unlawful and entitled them to habeas corpus to be released from administrative dissociation or segregation into the general population of the penitentiary.
It is therefore settled that the duty of procedural fairness arises not only when a public authority makes an administrative decision affecting the rights, privileges or interests of an individual, but also that in certain circumstances, this obligation is a continuing one which might require timely reconsideration of an initial adverse decision affecting such rights, privileges or interests.
The coming into force of the Canadian Charter of Rights and Freedoms114 on April 17th, 1982 and its equality section (s15) on April 17th, 1985, as previously stated, compels a completely fresh analysis of the rights of individuals and the use and abuse of power in Canadian society within the framework provided by the Charter itself. The Supreme Court of Canada has pronounced upon the meaning and application of s15, and a number of cases have now been decided by the court in relation to other sections of the Charter and its interpretation generally and specifically. The court has also pronounced on the effect of the Charter in a prison law context, and its decisions so far in other areas of the law are indicative of its profound influence on Canadian law generally. A brief review of some of the court’s decisions to date is essential for its interpretation and application in a prison law context in the future.
In its first decision on the Charter, Mr. Justice Estey, speaking for a full court in Law Society of Upper Canada v Skapinker115 made the following general statement as to the nature of the Charter and the nature of the task now facing the court:
We are here engaged in a new task, the interpretation and application of the Canadian Charter of Rights and Freedoms as adopted first as an appendage to the Resolution of Parliament on December 8, 1981, and then as an appendix to the Canada Act, 1982, 1982 (UK), c11. This is not a statute or even a statute of the extraordinary nature of the Canadian Bill of Rights, RSC 1970, App III, c44. It is a part of the Constitution of a nation adopted by constitutional process which, in the case of Canada in 1982, took the form of a statute of the Parliament of the United Kingdom. The adoptive mechanisms may vary from nation to nation. They lose their relevancy or shrink to mere historical curiosity value on the ultimate adoption of the instrument as the Constitution. The British North America Act, 1867 was such a law, albeit but a statute of the Parliament of the United Kingdom and albeit incomplete in the absence of an intra-national amending mechanism. In the interpretation and application of this document the Judicial Committee of the Privy Council of the United Kingdom, which until 1949 was the highest level of the judicial branch engaged in resolving constitutional issues, said: “The British North America Act planted in Canada a living tree capable of growth and expansion within its natural limits”: Edwards et al v AG Can et al  AC 124 at p136, per Viscount Sankey LC, who reiterated this judicial attitude towards a “constituent or organic statute such as the [BNA] Act” in British Coal Corp et al v The King (1935),64 CCC 145 at p154,  3 DLR 401 at p410,  AC 500 at p518. This Court recognized the distinction between simple “statutory interpretation” and “a constitutional role” when the court was called upon to determine the effect of the Canadian Bill of Rights; Curr v The Queen(1972), 7 CCC (2d) 181 at p191, 26 DLR (3d) 603 at p613,  SCR 889 at p899 per Laskin J, as he then was. The Canadian Bill of Rights is, of course, in form, the same as any other statute of Parliament. It was designed and adopted to perform a more fundamental role than ordinary statutes in this country. It is, however, not a part of the Constitution of the country. It stands, perhaps, somewhere between a statute and a constitutional instrument. Nevertheless, it attracted the principles of interpretation developed by the courts in the constitutional process of interpreting and applying the Constitution itself.
There are some simple but important considerations which guide a court in construing the Charter, and which are more sharply focused and discernible than in the case of the federal Bill of Rights. The Charter comes from neither level of the legislative branches of government but from the Constitution itself. It is part of the fabric of Canadian law. Indeed, it “is the supreme law of Canada”: s52, Constitution Act, 1982. It cannot be readily amended. The fine and constant adjustment process of these constitutional provisions is left by a tradition of a necessity to the judicial branch. Flexibility must be balanced with certainty. The future must, to the extent foreseeably possible, be accommodated in the present. The Charter is designed and adopted to guide and serve the Canadian community for a long time. Narrow and technical interpretation, if not modulated by a sense of the unknowns of the future, can stunt the growth of the law and hence the community it serves. All this has long been with us in the process of developing the institutions of government under the BNA Act, 1867 (now the Constitution Act, 1867). With the Constitution Act, 1982 comes a new dimension, a new yardstick of reconciliation between the individual and the community and their respective rights, a dimension which, like the balance of the Constitution, remains to be interpreted and applied by the court.116
Mr. Justice Dickson (as he then was), also speaking on behalf of the unanimous court, made the following comments in Hunter v Southam Inc:117
The task of expounding a constitution is crucially different from that of construing a statute. A statute defines present rights and obligations. It is easily enacted and as easily repealed. A constitution, by contrast, is drafted with an eye to the future. Its function is to provide a continuing framework for the legitimate exercise of governmental power and. when joined by a Bill or a Charter or Rights, for the unremitting protection of individual rights and liberties. Once enacted, its provisions cannot easily be repealed or amended. It must, therefore, be capable of growth and development over time to meet new social, political and historical realities often unimagined by its framers. The judiciary is the guardian of the Constitution and must, in interpreting its provisions, bear these considerations in mind. Professor Paul Freund expressed this idea aptly when he admonished the American courts “not to read the provisions of the Constitution like a last will and testament lest it become one.
The need for a broad perspective in approaching constitutional documents is a familiar theme in Canadian constitutional jurisprudence. It is contained in Viscount Sankey’s classic formulation in Res 24 of BNA Act; Edwards v A-G Can  1 DLR 98 at pp106-7,  AC 124 at pp136-7,  3 WWR 479, cited and applied in countless Canadian cases:
The BNA Act planted in Canada a living tree capable of growth and expansion within its natural limits. The object of the Act was to grant a Constitution to Canada.
Their Lordships do not conceive it to be the duty of this Board-it is certainly not their desire-to cut down the provisions of the Act by a narrow and technical construction, but rather to give it a large and liberal interpretation…”
More recently, in Minister of Home Affairs et al v Fisher et al, AC 319 at p329, dealing with the Bermudian Constitution, Lord Wilberforce reiterated that a constitution is a document “sui generis calling for principles of interpretation of its own, suitable to its character”, and that as such, a constitution incorporating a Bill of Rights calls for [at p328]: “a generous interpretation avoiding what has been called ‘the austerity of tabulated legalism’ suitable to give individuals the full measure of the fundamental rights and freedoms referred to”. Such a broad, purposive analysis, which interprets specific provisions of a constitutional document in the light of its larger objects, is also consonant with the classical principles of American constitutional construction enunciated by Chief Justice Marshall in M’Culloch v State of Maryland (1819) 17 US (4 Wheaton) 316. It. is, as well, the approach I intend to take in the present case.118
It follows from these general comments that a construction and interpretation of the Charter involves considerable additional rules of construction to those used for ordinary statutes in order to achieve the “broad” and “purposive analysis” referred to by Chief Justice Dickson(as he then was). In Skapinker the court ruled that neither federal nor provincial Interpretation Actsapplied to the Charter as it is not a creation of Parliament or of a provincial legislature and ruled that headings in the Chartercould be used to assist in determining the intent of the makers where the section of the Charter under consideration was not clear or unambiguous. In the same case, the court declined to rule on the propriety of using historical material on the legislative history of the Charter in interpreting its provisions, although in a subsequent case, AG for Que v Quebec Ass’n of Protestant School Boards,119 the court did have regard to legislative history in construing section 23 of the Charter.120 Later still, Dickson, J(as he then was) in R v Big M Drug Mart Ltd121 made the following comment:
At the same time it is important not to overshoot the actual purpose of the right or freedom in question, but to recall that the Charter was not enacted in a vacuum, and must therefore, as this Court’s decision in Law Society of Upper Canada v Skapinker (1984), 11 CCC (3d) 481,9 DLR (4th) 161,  1 SCR 357, illustrates, be placed in its proper linguistic, philosophic and historical contexts.122
Again, in Southam Dickson, J expanded upon his earlier statement as to “purposive analysis” in commenting on the meaning of s8 of the Charter which provides a right to be secure against unreasonable search or seizure:
The Canadian Charter of Rights and Freedoms is a purposive document. Its purpose is to guarantee and to protect, within the limits of reason, the enjoyment of the rights and freedoms it enshrines. It is intended to constrain governmental action inconsistent with those rights and freedoms; it is not in itself an authorization for governmental action. In the present case this means, as Prowse JA pointed out, that in guaranteeing the right to be secure from unreasonable searches and seizures, s8 acts as a limitation on whatever powers of search and seizure the federal or provincial governments already and otherwise possess. It does not in itself confer any powers, even of “reasonable” search and seizure, on these governments. This leads. in my view, to the further conclusion that an assessment of the constitutionality of a search and seizure, or of a statute authorizing a search or seizure must focus on its “reasonable” or “unreasonable” impact on the subject of the search or the seizure, and not simply on its rationality in furthering some valid government objective.
Since the proper approach to the interpretation of the Canadian Charter of Rights and Freedoms is a purposive one, before it is possible to assess the reasonableness or unreasonableness of the impact of a search or of a statute authorizing a search, it is first necessary to specify the purpose underlying s8: in other words, to delineate the nature of the interests it is meant to protect.123
Dickson, J then proceeded to review the common law in England and the United States and concluded that s8 included “an entitlement to a ‘reasonable’ expectation of privacy”.124
In the Big M Drug Mart case, Dickson, J, speaking for a majority of the court, held that in deciding whether or not a particular law offends the Charter, one must have regard first to the legislative purpose of the particular law and only if the law passes that “initial test of constitutional validity” need the court go on to consider the effects of the particular law. As Dickson, J put it:
Thus if a law with a valid purpose interferes by its impact, with rights or freedoms, a litigant can still argue the effects of the legislation as a means to defeat its applicability and possibly its validity.125
Wilson, J, on the other hand, in concurring reasons, took the opposite view, holding that the Charter is “first and foremost an effects-oriented document”.126
It is clear from the judgment that both the purpose and effects of a particular law must be examined to determine whether or not there is a contravention of the Charter.
In Operation Dismantle Inc v The Queen,127 the court unanimously agreed that Cabinet decisions, pursuant to statutory authority or the Royal Prerogative, were reviewable by the courts, even if they involved political matters. Though the court did not find a violation of s7 of the Charter in the circumstances of that case, it clearly indicated a willingness to do so in circumstances where appropriate evidence was presented to the court, indicating a violation of that section.
The Operation Dismantle case raises the further question of the meaning of the word “law” in the Charter. In that case, the meaning of that word was considered in the context of s52(1) of the Charter which provides that the Constitution of Canada is the supreme law of Canada and that any law that is inconsistent with the provisions of the Constitution is, to the extent of the inconsistency, of no force and effect. The court appeared to interpret the meaning of “law” in an extremely broad fashion to include the executive action of Cabinet. Dickson, J, in his judgment, stated as follows:
I would like to note that nothing in these reasons should be taken as the adoption of the view that the reference to “laws” in s52 of the Charter is confined to statutes, regulations and the common law. It may well be that if the supremacy of the Constitution expressed in s52 is to be meaningful, then all acts taken pursuant to powers granted by law will fall within s52. Equally, it is not necessary for the resolution of this case to express any opinion on the application of s1 of the Charter or the appropriate principles for its interpretation.128
As pointed out by Pratt in “The Supreme Law in the Supreme Court: The First Seven Charter Cases”129 the court has yet to define the meaning of this word in s1 of the Charter where it refers to “reasonable limits prescribed by law” and in s15 which provides for equality “before and under the law” and the right “to equal protection and equal benefit of the law”. As Pratt points out, though a broad interpretation of that word in s52 is consistent with “an expansive and aggressive approach to the Charterbecause the court’s power to annul unconstitutional activity largely stems from that section”,130 on the other hand, “…the more expansive the meaning of ‘law’ in s1, the greater the potential for narrowing the impact of Charter rights and freedoms by means of reasonable limits.”131 And further, that “the meaning of ‘law’ in s15 falls both physically and analytically between s1 and s52”.132
This issue is more than of passing interest to those involved with prison law, bearing in mind the Supreme Court of Canada’s previous interpretation of s28 of the Federal Court Act “required by law to be made on a judicial or quasi-judicial basis” in Martineau (No.1) and Martineau (No.2) and its finding that Commissioner’s Directives did not have the force of law.133Pratt predicts that the meaning of “law” in s1 will be given a much more restrictive interpretation than its meaning in s52 and points out that otherwise a “valid Charter right could be limited or abrogated by a Cabinet decision taken under the Royal Prerogative,…”134 Though it is not difficult to imagine provisions in Commissioner’s Directives being found to be inconsistent with the Charter and therefore struck down as unconstitutional, just as they have been held invalid prior to the Charter as violations of natural justice, it is more difficult to imagine such Directives being upheld as “reasonable limits” on Charter rights that are “demonstrably justified in a free and democratic society.”135 Until the Supreme Court interprets the meaning of “law” in s1 specifically, the better view would appear to be that Commissioner’s Directives that purport to limit Charter rights are invalid and cannot, even if “reasonable”, meet the test of the words “prescribed by law” so as to amount to an effective limitation under s1 on Charter guaranteed rights or freedoms.135a If this view is incorrect, then the issues in Martineau (No.1) and (No.2) may require relitigation. Similar issues may well arise if the court interprets the word “law” in s1 to include the common law and does not restrict its meaning to statutes and regulations or other statutory instruments.
In Singh v Minister of Employment and Immigration,136 the Supreme Court held that s7 of the Charter applies to “everyone” in contrast to various other sections of the Charter which only apply to Canadian citizens or persons with the status of permanent resident. Wilson, J concluded that these words meant “… Every human being who is physically present in Canada and by virtue of such presence amenable to Canadian law”.137
The Singh case is a further interest, particularly in a prison law context, in that the court unanimously concluded that the procedures set out in the Immigration Act, 1976 were deficient in failing to provide procedures for a full oral hearing for convention refugee status claims and consequently violated s7 of the Charter. However, Beetz, J (Estey, J and Mcintyre, J concurring) declined to base his reasons on the Charter and instead found a violation of s2(e) of the Canadian Bill of Rights138which retains all its force and effect through s26 of the Charter.139 In his view, the provisions of the Canadian Bill of Rightswere “almost tailor made”140 for the factual situation presented. He reasoned that s2(e) of the Canadian Bill of Rights protects “a right which is fundamental, namely, ‘the right to a fair hearing in accordance with the principles of fundamental justice’ for the determination of one’s rights and obligations, fundamental or not..141 He concluded that the process of determining and re-determining refugee claims involved a determination of rights and obligations entitling the applicants to a right to a fair hearing in accordance with the principles of fundamental justice. In arriving at this conclusion, he re-introduces the “right”/”privilege” distinction and expressly says that the case is distinguishable from cases where a mere privilege was refused or revoked, citing Mitchell v R,142 a former decision of the Supreme Court of Canada in relation to parole revocation which held that s2(e) of the Canadian Bill of Rights was not applicable to such circumstances. Beetz, J then goes on to indicate that he is not suggesting that the principles of fundamental justice will require an oral hearing in all cases and that the most important factors in determining the procedural content of fundamental justice are the nature of the legal rights at issue and the severity of the consequences to the individuals concerned.143 In support for this proposition, he refers to the court’s decision in AG of Canada v Inuit Tapirisat et al144 and the judgment of Estey, J, who in turn quoted the classic statement from Tucker, LJ, in Russell v Duke of Norfolk145 and the fundamental rule as stated by Lord Denning in Salvarajan v Race Relations Board.146 No reference is made to Martineau (No.2) and in particular that portion of the judgment of Dickson, J to the effect that a narrow or technical interpretation of the word “rights” misconceives the broader purpose of judicial review of administrative action.147 Beetz, J then concludes that because the appellants have stated under oath their reasons for claiming convention refugee status and because the Immigration Act gives persons with that status the right to remain in Canada or the right not to be removed to a country where life and freedom is threatened, that the rights in issue are of vital importance to those concerned. It is interesting to note this conclusion, bearing in mind that the applicants had not been determined to have convention refugee status, but were merely applying or claiming to have that staus.. Beetz, J then continues and finds that threats to life or liberty are relevant with respect to the type of hearing that is warranted in the circumstances and holds that at least one full oral hearing is required before adjudication on the merits. He further points out that there are additional reasons requiring an oral hearing in circumstances where life or liberty may depend upon findings of fact and credibility and written submissions would be insufficient.148
Wilson, J (Dickson, CJC and Lamer, J concurring), though arriving at the same result, bases her reasons on her finding that the situation fell within the constitutional protections afforded by the Charter. Wilson, J points out, however, that the appellants, on the facts, are claiming that the procedural mechanisms in the Immigration Act as opposed to the application of those procedures to their particular cases have deprived them of their rights under the Charter and that “…if, as a matter of statutory interpretation, the procedural fairness sought by the appellants is not excluded by the scheme of the Act, there is, of course, no basis for resort to the Charter. The issue may be resolved on other grounds.”149 In other words, the court will not express an opinion on the constitutional validity of a statute in a situation in which it is not necessary to the court’s decision to do so. After a review of the nature of the rights affected and the procedure set out under the Act, Wilson, J concludes that the provisions in the Act are of the type which expressly preclude the courts from reading in the principles of natural justice or procedural fairness and that therefore it must be on the basis that the Charter requires the court to override Parliament’s decision to exclude the kind of procedural fairness sought.150 As to the nature of the rights in question, Wilson, J notes that the appellants did not have a right to come into or remain in Canada, but they did have the right to a determination from the Minister, based on proper principles, as to whether a permit should be issued entitling them to enter and remain in Canada and a right not to be returned to a country where his or her life or freedom would be threatened, as well as the right to appeal the removal order or deportation order.151
Wilson, J then proceeds to consider the meaning of the words “the right to life, liberty and security of the person” in s7 and reviews the “single right” theory articulated by Marceau, J in R v Operation Dismantle Inc152 to the effect that these words form a single right with closely interrelated parts and relates to matters of death, arrest, detention, physical liberty and physical punishment of the person. Even adopting this restrictive interpretation Wilson, J concludes that the “right” articulated in section 7 has three elements and that there need not be a deprivation of all three elements before an individual is deprived of his “right” under S7.153 Wilson, J then refers to the broad definition of “liberty” in decisions of the United States Supreme Court and concludes that to deprive a person of the avenues open to him under the Act to escape from fear of persecution must at least impair his right to life, liberty and security of the person in the narrow sense of the “single right” theory.154 With respect to the meaning of “security of the person”, Wilson, J reviews broad definitions of that term and concludes that it is not necessary to consider whether such an expansive approach to those words should be taken because, even adopting a narrow approach, the words must encompass “freedom from the threat of physical punishment or suffering as well as freedom from such punishment itself”.155 As support for this approach, Wilson, J refers to the prison law case of Collin v Lussier156 where a prisoner successfully quashed a transfer from medium security to maximum security by merely showing that it was likely that his health would be impaired by such a transfer.
With respect to the “right”/”privilege” distinction or dichotomy, Wilson, J points out that the courts have consistently held that immigration is a privilege and not a right and points out that that dichotomy played a significant role in narrowing the scope of the application of the Canadian Bill of Rights as was apparent from the judgment of the Supreme Court in Mitchell v R.157Wilson, J reviews the majority judgment of Martland, J in Mitchell and concludes:
I do not think this kind of analysis is acceptable in relation to the Charter. It seems to me rather that the recent adoption of the Charter by Parliament and nine of the ten provinces is part of the Canadian constitutional framework has sent a clear message to the courts that the restrictive attitude which at times characterize their approach to the Canadian Bill of Rights ought to be examined. I am accordingly of the view that the approach taken by Laskin, CJ, dissenting in Mitchell is to be preferred to that of the majority as we examine the question whether the Charter has any application to the adjudication of rights granted to an individual by statute.158
After a review of Laskin, CJ’s decision in Mitchell, Wilson, J concludes that on the facts in Singh, the appellants had a stronger argument than Mitchell and that given the potential consequences to them of a denial of refugee status it would be unthinkable that the Charter would not apply to entitle them to fundamental justice in an adjudication of their status. On the question of whether or not fundamental justice is denied by the procedures set up in the Immigration Act, Wilson, J accepts that at a minimum the concept of “fundamental justice” in s7 of the Charter includes the notion of procedural fairness and that procedural fairness may demand different things in different contexts.159 She expresses the view that matters such as death, physical liberty and physical punishment would, on the surface, at least constitute matters of such fundamental importance that procedural fairness would invariably require an oral hearing, but indicates that she’s prepared to accept that written submissions may be an inadequate substitute for an oral hearing in appropriate circumstances. However, written submissions will not be satisfactory for all purposes and where a serious issue of credibility is involved, fundamental justice requires that credibility be determined on the basis of an oral hearing.160 Wilson, J further concludes that because the proceedings before the Immigration Appeal Board were quasi-judicial, that the Board was not entitled to rely on material outside the record which the refugee claimant submitted on the application for redetermination.161 She characterizes the procedure as highly adversarial and holds that the procedure requiring the applicant to establish on the balance of probabilities that the Minister was wrong without knowledge of the Minister’s case beyond rudimentary reasons in rejecting the claim is impossible to reconcile with the requirements of “fundamental justice”. In Wilson, J’s view, fundamental justice requires an entitlement to discovery of the Minister’s case prior to such a hearing, subject to the doctrine of Crown privilege.162 On the question of whether the procedures amount to “reasonable limits prescribed by law that are demonstrably justified in a free and democratic society” under s1 of the Charter. Wilson, J expresses doubt that utilitarian considerations can constitute justifications for limitations on Charter rights because this would render the guarantees in the Charter illusory on the basis of administrative convenience.163In conclusion, Wilson, J expresses the caution that she does not foreclose the possibility that s7 of the Charter protects a wider range of interests than those involved on the facts in the Singh case.164
In Reference Re section 94(2) of the Motor Vehicle Act (BC),165 the Supreme Court of Canada once again had occasion to consider the ambit and scope of s7. In particular, the court was called upon to determine the scope of the words “principles of fundamental justice”. Lamer, J, for the majority, concluded that the phrase is not in itself a protected right but a qualifier to the protected right not to be deprived of “life, liberty and security of the person” and that its function was to set the parameters of that right.166 He further concluded that interpretation of the term had to be with reference to the protected right, but not so as to “frustrate or stultify it”,167 and that an interpretation equating “fundamental justice” with “natural justice” would be wrong and would strip the protected interests of most of their content and would also be inconsistent with the affirmative, purposive expression of those rights.168 He concluded that ss8 through 14 of the Charter address specific deprivations of the “right” to life, liberty and the security of the person in breach of the principles of fundamental justice and as such amounted to violations of s7. These sections, in his opinion, were illustrative of the meaning of “principles of fundamental justice” in criminal or penal law as they recognize principles given expression at common law, by international convention and in the very entrenchment of the Charter itself as essential elements for the administration of justice founded on the dignity and worth of the human person and the rule of law.169 Consequently, the principles of fundamental justice were to be found in the basic tenets and principles not only of the judicial process, but also of other components of the legal system and were not limited to procedural guarantees, although many are of that nature.170 To determine whether any given principle constitutes a principle of fundamental justice within the meaning of s7, an analysis of the nature, sources, rationale and essential role of that principle within the judicial process and in the evolving legal system was required.171 Consequently, the words “principles of fundamental justice” could not be given exhaustive definition, but would evolve as the court’s address specific violations of s.7.172 Though minutes of the proceedings of the special joint committee were admissible, little weight should be given to them due to their inherent unreliability. To cast the interpretation of s7 in terms of the comments made at such a committee would freeze the rights, values and freedoms expressed in the Charter as of the moment of adoption and deny it growth and adjustment over time.173 Furthermore, the interpretation of the words “principles of fundamental justice” in s2(e) of the Canadian Bill of Rights was of little assistance because of the different context of those words in that statute compared to the context in the Charter.174 It was held that an absolute liability offence with the potential to deprive of life, liberty or the security of the person violates s7. A combination of imprisonment and absolute liability would violate s7 irrespective of the nature of the offence and could only be salvaged by demonstrable justification under s1 of the Charter. Generally, no imprisonment could be imposed for an absolute liability offence and an offence punishable by imprisonment could not be an absolute liability offence.175 The public interest could only enter into the question as a factor under s1 and not under s7 and furthermore, administrative expediency, could not be invoked as a justification for sacrificing s7 rights, except in exceptional situations such as war, natural disasters or epidemics.176
Wilson, J arrived at the same conclusion but by a different route. In her view, the phrase “in accordance with principles of fundamental justice” was not a qualification on the right to life, liberty and security of the person in the sense of limiting, modifying or defining the parameters of that right. Instead, it was her view that it protects that right against deprivation or impairment unless such deprivation or impairment is affected in accordance with the principles of fundamental justice.177Section 7 does not provide a right to the principles of fundamental justice in itself and consequently for an offence to offend s7 it would have to violate the right to either life, liberty or security of the person through a violation of the principles of fundamental justice.178 As far as s1 of the Charter was concerned, it was her view that any reasonable limits under s1 would have to be imposed in accordance with the principles of fundamental justice, otherwise they could not be reasonable, nor justifiable, under s.1.179 Consequently, the phrase “except in accordance with the principles of fundamental justice” restricts the government’s power to impose limits under s1 and a limit imposed on a s7 right in accordance with the principles of fundamental justice would still have to meet the tests of s.1.180 Wilson, J agreed that there was no reason to restrict the principles of fundamental justice to procedural matters in light of the reference to the rule of law in the preamble to the Charter.181 In her view, imprisonment was the most severe sentence imposed by law, apart from death, and was to be generally reserved as a last resort for occasions when other sanctions could not achieve the objectives of the system.182 A requirement of mandatory imprisonment for an absolute liability offence, committed unknowingly and unwittingly and after the exercise of due diligence, was excessive and inhumane, and offends the principles of fundamental justice embodied in the Canadian penal system and was inconsistent with s7 of the Charter.183
In a prison law context, it is worth noting that Lamer, J, in holding that a broad interpretation of the words “principles of fundamental justice” was required, held that the rights involved were as fundamental as those which pertain to life, liberty and security of the person, the deprivation of which “has the most severe consequences upon an individual”184 citing, with approval, the decision of the Ontario High Court in R v Cadeddu185 which held that a prisoner has a right to a hearing, by virtue of s7 of the Charter, when the question of the suspension and possible revocation of parole is at issue. Furthermore, it is also worth noting that later in his judgment, he says:
Imprisonment (including probation orders) deprives persons of their liberty.186
And further still, when commenting on administrative expediency:
Indeed, administrative expediency certainly has its place in administrative law. But when administrative law chooses to call in aid imprisonment through penal law, indeed sometimes criminal law and the added stigma attached to a conviction, exceptional, in my view, will be the case where the liberty or even the security of the person guaranteed under 57 should be sacrificed to administrative expediency. Section 1, may for reasons of administrative expediency, successfully come to the rescue of an otherwise violation of s7, but only in cases arising out of exceptional conditions, such as natural disasters, the outbreak of war, epidemics and the like.187
Wilson, J, who agreed with the judgment of the majority but for different reasons, was of the view that the attachment of the mandatory term of imprisonment to an absolute liability offence created by statute offends a principle of fundamental justice because of the “theory of punishment in relation to fundamental justice.”188 Wilson, J held as follows:
It is now generally accepted among penologists that there are five main objectives of the penal system: see Nigel Walker, Sentencing in a Rational Society, (1969). They are:
- 1)to protect offenders and suspected offenders against unofficial retaliation;
- 2)to reduce the incidence of crime;
- 3)to ensure that offenders atone for their offences;
- 4)to keep punishment to the minimum necessary to achieve the objectives of the system; and
- 5)to express society’s abhorrence of crime.
Apart from death, imprisonment is the most severe sentence imposed by the law and is generally viewed as a last resort, ie, as appropriate only when it can be shown that no other sanction can achieve the objectives of the system.
The Law Reform Commission of Canada in its Working Paper 11 — Imprisonment and Release (Studies on Imprisonment, 1976) states at p10:
Justice requires that the sanction of imprisonment not be disproportionate to the offence, and humanity dictates that it must not be heavier than necessary to achieve its objective.189
In Wilson, J’s view, the nature of the absolute liability offence in question permitted a person to be convicted of the offence, even though he was unaware at the time of driving that his license was suspended and was unable to find this out even with the exercise of due diligence. Wilson, J felt, this would shock the conscience of the court and would bring the administration of justice into disrepute as an unreasonable and extravagant penalty, totally disproportionate to the offence and quite incompatible with the objectives of a penal system.190 In conclusion, Wilson, J held:
It is basic to any theory of punishment that the sentence imposed bear some relationship to the offence; it must be a “fit” sentence proportionate to the seriousness of the offence. Only if this is so can the public be satisfied that the offender “deserved” the punishment he received and feel a confidence in the fairness and rationality of the system. This is not to say that there is an inherently appropriate relationship between a particular offence and its punishment but rather that there is a scale of offences and punishments into which the particular offence and punishment must fit. Obviously this cannot be done with mathematical precision and many different factors will go into the assessment of the seriousness of a particular offence for purposes of determining the appropriate punishment but it does provide a workable conventional framework for sentencing. Indeed, judges in the exercise of their sentencing discretion have been employing such a scale for over a hundred years.191
Wilson, J concluded that a mandatory term of imprisonment for an offence committed unknowingly and unwittingly after the exercise of due diligence was grossly excessive and inhumane, was not required to reduce the incidence of the offence, was beyond anything required to satisfy the need for “atonement” and that society would not be abhorred by an unintentional and unknowing violation of the section in question. The sanction, therefore, offended the principles of fundamental justice embodied in our penal system.192
Bearing in mind that in relation to matters of imprisonment questions of the “life, liberty and security of the person” will frequently and invariably arise, as will questions of the “principles of fundamental justice” in relation thereto, the interrelationship between s7 and s1 of the Charter will frequently constitute the broad constitutional context in which each issue will arise in prison law litigation. Section 1, which allows for a balancing of interest through “reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society” is perhaps the most important section of the Charter which will determine the extent to which the rights and freedoms guaranteed by s1 and other sections of the Charter might be limited. (update with sentencing stuff CAM etc)
As noted earlier,193 the term “prescribed by law” in this section has yet to be definitively interpreted. Its further interpretation will involve an issue of fundamental importance in prison law in relation to the status of Commissioner’s Directives and other subordinate administrative rules. (update from cases)
Though s1 has been considered by the court on a number of occasions, 194 it was not until the decision of the Supreme Court of Canada in R v Oakes195 that some detailed guidance was provided with respect to the meaning of the term “reasonable limits”, In that case, the court struck down s8 of the Narcotic Control Act which placed a reverse onus on an accused, found to be in possession of a narcotic, by requiring such an accused to rebut a presumption of possession for the purpose of trafficking, instead of requiring the Crown to prove that element of the offence like any other. The court found that s8 of the Narcotic Control Act violated the presumption of innocence provided for in s11(d) of the Charter in that the section did not amount to a “reasonable limit” that could be “demonstrably justified in a free and democratic society”. Dickson, CJ, in giving judgment for the majority (concurred in by Macintyre, J and Estey, J) held that the presumption of innocence is one of the “core values of our criminal justice system”196 and following the “purposive approach” went on to define the meaning of that phrase in s11(d) of the Charter as follows:
The presumption of innocence is a hallowed principle lying at the very heart of criminal law. Although protected expressly in s11(d) of the Charter, the presumption of innocence is referable and integral to the general protection of life, liberty and security of the person contained in s7 of the Charter (see Reference re 594(2) of the Motor Vehicle Act, December 17, 1985, unreported, per Lamer J). The presumption of innocence protects the fundamental liberty and human dignity of any and every person accused by the State of criminal conduct. An individual charged with a criminal offence faces grave social and personal consequences, including potential loss of physical liberty, subjection to social stigma and ostracism from the community, as well as other social, psychological and economic harms. In light of the gravity of these consequences, the presumption of innocence is crucial. It ensures that until the State proves an accused’s guilty beyond all reasonable doubt, he or she is innocent. This is essential in a society committed to fairness and social justice. The presumption of innocence confirms our faith in humankind; it reflects our belief that individuals are decent and law-abiding members of the community until proven otherwise.197
After referring to the longstanding recognition of this cardinal value at common law and evidence of its widespread acceptance by its inclusion in the Universal Declaration of Human Rights, adopted December 10th, 1948 by the General Assembly of the United Nations and the International Covenant on Civil and Political Rights, 1966, art 14(2), and Canada’s accession to the covenant and the Optional Protocol effective August 19th, 1976,198 Dickson, CJ concluded that the right to be presumed innocent until proven guilty requires the following minimum content be given to s11(d) of the Charter:
First, an individual must be proven guilty beyond a reasonable doubt. Second, it is the State which must bear the burden of proof. As Mr. Justice Lamer stated in Dubois v The Queen (November 21, 1985, unreported) at p6:
Section 11(d) imposes upon the Crown the burden of proving the accused’s guilt beyond a reasonable doubt as well as that of making out the case against the accused before he or she need respond, either by testifying or calling other evidence.
Third, criminal prosecutions must be carried out in accordance with lawful procedures and fairness. The latter part of s11(d), which requires the proof of guilt “according to law in a fair and public hearing by an independent and impartial tribunal”, underlines the importance of this procedural requirement.199
In considering s1, Dickson, CJ provided the following detailed analysis:
It is important to observe at the outset that s1 has two functions: first, it constitutionally guarantees the rights and freedoms set out in the provisions which follow: and, second, it states explicitly the exclusive justificatory criteria (outside of s33 of the Constitution Act, 1982) against which limitations on those rights and freedoms must be measured. Accordingly, any s1 inquiry must be premised on an understanding that the impugned limit violates constitutional rights and freedoms-rights and freedoms which are part of the supreme law of Canada. As Madame Justice Wilson stated in Singh et al v Ministry of Employment and Immigration, supra, at pp219-19: “… it is important to remember that the courts are conducting this inquiry in light of a commitment to uphold the rights and freedoms set out in the other sections of the Charter.
A second contextual element of interpretation of s1 is provided by the words “free and democratic society”. Inclusion of these words as the final standard of justification for limits on rights and freedoms refers the Court to the very purpose for which the Charter was originally entrenched in the Constitution: Canadian society is to be free and democratic. The Court must be guided by the values and principles essential to a free and democratic society which I believe embody, to name but a few, respect for the inherent dignity of the human person, commitment to social justice and equality, accommodation of a wide variety of beliefs, respect for cultural and group identity, and faith in social and political institutions which enhance the participation of individuals and groups in society. The underlying values and principles of a free and democratic society are the genesis of the rights and freedoms guaranteed by the Charter and the ultimate standard against which a limit on a right or freedom must be shown, despite its effect, to be reasonable and demonstrably justified.
The rights and freedoms guaranteed by the Charter are not, however, absolute. It may become necessary to limit rights and freedoms in circumstances where their exercise would be inimical to the realization of collective goals of fundamental importance. For this reason, s1 provides criteria of justification for limits on the rights and freedoms guaranteed by the Charter. These criteria impose a stringent standard of justification, especially when understood in terms of the two contextual considerations discussed above, namely, the violation of a constitutionally guaranteed right or freedom and the fundamental principles of a free and democratic society.200
Dickson, CJ then reiterates the position as to the onus of proof as set out in his judgment in Hunter v Southam Inc201 to the effect that the onus of proof that a limit on a right or freedom guaranteed by the Charter is reasonable and demonstrably justified in a free and democratic society rests upon the party seeking to uphold the limitation. This judgment goes further to provide that the standard of proof under s1 is the civil standard of proof by a preponderance of probabilitiesy as opposed to a criminal standard requiring proof beyond a reasonable doubt, but that the civil standard must be applied rigorously requiring “a very high degree of probability …commensurate with the occasion”202 and bearing in mind that the section is being invoked to justify a violation of a constitutional right or freedom guaranteed by the Charter.203 This, Dickson, CJ said, would generally require cogent and persuasive evidence making clear to the court the consequences of imposing or not imposing a limit, as well as evidence of what alternative measures were available to implement the objective to the legislatures at the time of their decision.204 Dickson, CJ noted, however, that there may be cases where certain elements involved in a s1 analysis would be obvious or self-evident.205
The Chief Justice then sets out the framework or analysis required to establish that a limit is a reasonable and demonstrably justified one in a free and democratic society:
To establish that a limit is reasonable and demonstrably justified in a free and democratic society, two central criteria must be satisfied. First, the objective, which the measures responsible for a limit on a Charter right or freedom are designed to serve, must be “of sufficient importance to warrant overriding a constitutionally protected right or freedom”: R v Big M Drug Mart Ltd, supra, at p352. The standard must be high in order to ensure that objectives which are trivial or discordant with the principles integral to a free and democratic society do not gain s1 protection. It is necessary, at a minimum, that an objective relate to concerns which are pressing and substantial in a free and democratic society before it can be characterized as sufficiently important.
Second, once a sufficiently significant objective is recognized, then the party invoking s 1 must show that the means chosen are reasonable and demonstrably justified. This involves “a form of proportionality test”: R v Big M Drug Mart Ltd, supra, at p352. Although the nature of the proportionality test will vary depending on the circumstances, in each case courts will be required to balance the interests of society with those of individuals and groups. There are, in my view, three important components of a proportionality test. First, the measures adopted must be carefully designed to achieve the objective in question. They must not be arbitrary, unfair or based on irrational considerations. In short, they must be rationally connected to the objective. Second, the means, even if rationally connected to the objective in this first sense, should impair “as little as possible” the right or freedom in questions R v Big M Drug Mart Ltd, supra, at 352. Third, there must be a proportionality between the effects of the measures which are responsible for limiting the Charter right or freedom, and the objective which has been identified as of “sufficient importance”.
With respect to the third component, it is clear that the general effect of any measure impugned under s1 will be the infringement of a right or freedom guaranteed by the Charter; this is the reason why resort to s1 is necessary. The inquiry into effects must, however, go further. A wide range of rights and freedoms are guaranteed by the Charter, and an almost infinite number of factual situations may arise in respect of these. Some limits on rights and freedoms protected by the Charter will be more serious than others in terms of the nature of the right or freedom violated, the extent of the violation, and the degree to which the measures which impose the limit trench upon the integral principles of a free and democratic society. Even if an objective is of sufficient importance, and the first two elements of the proportionality test are satisfied, it is still possible that, because of the severity of the deleterious effects of a measure on individuals or groups, the measure will not be justified by the purposes it is intended to serve. The more severe the deleterious effects of a measure, the more important the objective must be if the measure is to be reasonable and demonstrably justified in a free and democratic society.206
Applying this test to s8 of the Narcotic Control Act, Dickson, CJ concluded from a review of existing legislation and international obligations, as well as senate reports and commissions of inquiry and legislation in other countries that the nature of Parliament’s interest or objective could be characterized as substantial and pressing and of sufficient importance to warrant overriding a constitutionally protected right or freedom in certain cases.207 The first criterion of s1 was therefore satisfied. In Dickson’s view, this conclusion was, to a large extent, “self-evident”.208 The section did not, however, pass the second stage and Dickson, CJ concluded that the means chosen by Parliament to achieve its objective was not internally rational because possession of a small or negligible quantity of narcotics would not support an inference of trafficking and it would be irrational and unfair to do so.209 Bearing in mind the seriousness of the offence and the maximum penalty available, Dickson, CJ held that the first component of the proportionality test had not been satisfied and consequently it was not necessary to consider the other two components.210
It is of interest to note that Dickson, J, in Oakes, indicates that in certain circumstances “reasonable limits” on guaranteed Charter rights will be self-evident.211 In Southam,212 Dickson, CJ made it clear that the onus of proof under s1 was on the party seeking to impose the limit. There is no onus on a person asserting that his Charter rights have been infringed to prove that the limits on his rights are unreasonable or not demonstrably justified in a free and democratic society. In AG Que v Quebec Assn of Protestant School Boards,213 it was held that the Quebec Minority Language Bill 101 was not capable of constituting a reasonable limit under s1 of the Charter. The court held that the provisions of the Bill were in direct conflict with s23 of the Charter and therefore could not be legitimized under s1 and could not be considered as exceptions to the rights and freedoms set out in the Charter, nor amount to amendments of the Charter. In the Big M Drug Mart214 case, Mr Justice Dickson held that “not every government interest or policy objective is entitled to s1 consideration”.215 He pointed out that: “… Parliament cannot rely upon an ultra vires purpose under s1 of the Charter: This use of s1 would invite colourability, allowing Parliament to do indirectly what it could not do directly.”216 As Pratt points out in his analysis of the first seven Charter cases:
Clearly, legislation found to be contrary to the Charter cannot be justified in terms of the very criteria which are offensive. Justification under s1 must, therefore, be accomplished by the reference to criteria external to the impugned purpose or effect.217
In Singh, Wilson, J commented on the limited amount of factual material put before the court in support in that case and rejected the utilitarian considerations and administrative convenience arguments put forward to justify curtailing Charter rights and freedoms.218 In R v Therens,219 a case where the accused was not informed of his rights under s10(b) of the Charter to retain and instruct counsel without delay and where, as a result, a breathalyzer certificate of analysis was excluded under s24(2) of the Charter, it was held that s1 of the Charter was not applicable because Parliament in s235(1) of the Criminal Code(the section authorizing peace officers, on reasonable grounds, to demand breath samples) had not purported to limit the rights provided in s10(b) of the Charter and Estey, J held that there was no need to consider s1 of the Charter because the accused’s rights were not violated as a result of the operation of law, but as a result of the conduct of the police officers in question.220Section 1 of the Charter was also considered by the court in Reference Re 594(2) of the Motor Vehicle Act221 where Lamer, J held that that section of the Motor Vehicle Act had not been shown to be a reasonable limit. Generally speaking therefore, it would appear that the courts will require some evidence to meet the onus under s1, but there will be cases where some proof of demonstrable justification will be self-evident.
The Charter has been considered by the Supreme Court of Canada in other cases to date and a brief comment on each of those cases should be made in relation to those matters arising that are of relevance to prison law. In Therens,222 the court interpreted s10 of the Charter and in particular, the meaning of the word “detention” in that section. LeDain, J, giving judgment for the majority on this aspect of the matter only, reconsidered prior decisions of the court on the meaning of these words before the Charter and held that they could not constitute a reliable guide.223 In LeDain, J’s view, the words of section 10 necessarily refer to a great variety of detentions of varying duration and that bearing in mind the purpose of s10, the word “detention” is “directed to a restraint of liberty other than arrest in which a person may reasonably require the assistance of counsel, but might be prevented or impeded from retaining and instructing counsel without delay but for the constitutional guarantee”.224 LeDain, J continued that in addition to deprivation of liberty by physical constraint, there would still be a detention within the meaning of s10 when a police officer or other agent of the state assumes control over the movement of the person by a demand or direction which may have significant legal consequence and which prevents or impedes access to counsel.225 LeDain, J agreed with the previous decision of the court in Chromiak 226 that detention requires “some form of compulsory restraint” to the extent that there would have to be some form of compulsion or coercion to constitute an interference with liberty or freedom of action amounting to a detention.227 However, in his view, the term was broad enough to include psychological compulsion or coercion in circumstances where a refusal to comply with a demand or a direction results in criminal liability.228 Although not strictly necessary for purposes of the case, LeDain, J indicated that he would go further and held that “the element of psychological compulsion, in the form of a reasonable perception of suspension of freedom of choice, is enough to make the restraint of liberty involuntary. Detention may be effected without the application or threat of application of physical restraint if the person concerned submits or acquiesces in the deprivation of liberty and reasonably believes that the choice to do otherwise does not exist.”229
This broad definition of detention raises interesting questions with respect to the various forms of detention that arise after imprisonment throughout the course of a sentence such as detentions in administrative segregation pending disciplinary court or under s31 of the CCRA.230 for the good order of the institution as well as various forms of detention resulting in transfers to higher security or to special handling units.
In Krug v R,231 the court considered the meaning of s11(h) of the Charter. La Forest, J, in giving judgment for the court, held that s11(h) of the Charter is very narrowly worded and does not address the problem of multiple convictions in the same proceeding. It merely provides that a person is not to be tried for the same offence in a subsequent proceeding. This does not mean, however, that the rule against multiple convictions or the Kienapple principle might not apply to the circumstances of any case. This interpretation of s11(h) is worthy of note when issues of res judicata arise in relation to disciplinary court convictions, followed by Criminal Code charges arising out of the same matter, or vice versa. (update)
In Valente v R,232 the court considered the meaning of s11(d) of the Charter and in particular, the meaning of the words “independent and impartial tribunal”. Though the decision pertained to the independence of provincial court judges, the decision is worth noting in relation to any consideration of the independence of so-called “independent chairpersons” sitting in disciplinary courts under the CCRA233 LeDain, J, giving judgment for the court, held that the concepts of “independence” and “impartiality” are different, notwithstanding a close relationship. “Impartiality” refers to a state of mind or attitude of the tribunal in relation to the issues and the parties in a particular case and absence of bias, actual or perceived.234 The word “independent” reflects or embodies the traditional constitutional value of judicial independence and connotes not merely a state of mind or attitude in the actual exercise of judicial functions, but a status or relationship to others, particularly to the executive branch of government, that rests on objective conditions or guarantees.235 In LeDain, J’s view, the test for independence under s11(d) should be, as for impartiality, whether the tribunal may be reasonably perceived as independent.236 The section cannot be construed to give provincial court judges the same constitutional guarantees of security of tenure, salary and pension as superior court judges because such a construction would result in an amendment to the judicature provisions of our constitution.237 Security of tenure was considered, however, to be the first essential condition of judicial independence and its essence involved being secure against interference by the executive or other appointing authority in a discretionary or arbitrary manner.238 The second essential condition for judicial independence was stated to be financial security, the essence of which is that the salary and pension should be established by law and not subject to arbitrary interference by the executive in a manner that could affect judicial independence.239 The third essential condition of judicial independence is institutional independence with respect to matters of administration bearing directly on the exercise of the judicial function and includes. at a minimum, such matters as assignment or judges, sittings of the court and court lists.240 Administrative autonomy could not be regarded as essential.241
It follows from this review of the majority of Supreme Court of Canada cases dealing with the Charter that have been decided to date, that not only will the Charter have a very significant influence on this area of the law, but students and practitioners of prison law will have to maintain a thorough familiarity with these decisions and keep an eye on future decisions of the Supreme Court to complete the fresh analytical approach the Charter requires.
After the Charter
The Supreme Court of Canada has now pronounced on the applicability of the Charter or specific aspects of it in specific prison law cases. In Gould v AG Canada and Solicitor General of Canada,242 the court declined to decide a question involving a section of the Canadian Elections Act243 in relation to s3 of the Charter where the proceedings involved an appeal from the Federal Court of Appeal reversing a decision of the Trial Division, which had granted an interlocutory mandatory injunction granting a prisoner the right to vote in a federal election. The Supreme Court agreed with the Federal Court of Appeal that a serious issue had been raised which required a trial and that the trial court’s decision amounted to a determination that the prisoner was entitled to act and be treated as though he had already won without having his action tried. The interim declaration of right was held not to be a declaration that could properly be made before trial.
Most of the decisions involving the Charter and prison law Issues have emanated from the provincial superior courts or the Federal Court Trial Division and a few of these have proceeded on appeal to provincial appellate courts, and more often, to the Federal Court of Appeal. Many of these cases were decided prior to the decisions of the Supreme Court of Canada that, have since provided more definitive guidance for the interpretation and application of the Charter and consequently, many of them will have to be considered and reconsidered in that light. What follows is a summary of some of those decisions of the courts in relation to prison law matters and the Charter.
Section 1 — Guaranteed rights subject to reasonable limits prescribed by law and demonstrably justified in a free and democratic society
In Re Russell et al and Radley, Chairman, Collins Bay Penitentiary Disciplinary Court244 the Federal Court had occasion to consider the various provisions of the Penitentiary Act and Regulations in relation to s1 of the Charter. The court concluded that the onus of demonstrable justification was on the party who sought to limit pertinent rights and freedoms and made the following general comments with respect to the applicability of s1 to prisoners:
The applicants, undergoing sentences of imprisonment as they are, find themselves confined within and restricted to a very special society which is neither free nor democratic. It is a society within a society. This free and democratic society which is Canada, in common with all other societies, whether free and democratic or totalitarian, protects itself from those who commit serious offences prescribed by its penal laws by segregating the offenders in prisons. Just as the rights and freedoms guaranteed by our constitutional traditions and our Charter aim to protect our people from the possible tyranny of State authority which has always been the notable vice of our species, so also the criminal law and other laws with penal sanctions aimed to protect our people from the predatory tyranny of criminal anarchy which has always been the other notable vice of our species. Until some more apt and humane method of dealing with criminal offenders be discovered or devised, most of the limits imposed on their rights and freedoms and prescribed by penal law are demonstrably justified for protection and deterrence in our society. But neither our constitutional traditions nor our Charter are so insensitively punitive as to strip prison inmates of all rights and freedoms. The applicants are however justifiably denied the plenitude of rights and even some of the fundamental freedoms proclaimed in the Charter. Limits on the freedoms of the press and other media of communication, of even peaceful assembly and of association guaranteed in s2 are surely more easily justified in the prison society than in Canadian society at large. So also mobility rights expressed in s6 are obviously sharply curtailed with demonstrable justification among prison inmates. Equally, while it is obvious that inmates’ rights to life and security of the person proclaimed in s7 are as invulnerable as those of anyone else, they are deprived of their right to liberty after a process of adjudication on proof beyond a reasonable doubt which must be presumed to have been in accordance with the principles of fundamental justice unless and until it be demonstrated to have been otherwise. At the other end of the spectrum of applicability, it is abundantly clear that the right not to be subjected to any cruel and unusual treatment or punishment enunciated in s12 is preeminently a prisoner’s right, even though that provision is formulated for “everyone”.
Thus, whether or not the Charter be engaged in any particular circumstance is never a matter of all-or-nothing. The structure, formulation and mode of expression of the Charter evince a clear intendment that some of the rights and freedoms apply to all persons at all times, some apply only to those who find themselves in a particular status or plight, as indicated by s11, and some may be limited with demonstrable justification as, for example, where the usual treatment or punishment for criminal conduct is deprivation of liberty.245
Similarly, in Re Maltby et al and AG Saskatchewan et al246 it was held, in relation to remand prisoners, that though there was an obligation on the court to ensure that prison administrators were complying with the requirements of the Constitution, nevertheless, the lawful incarceration of remand prisoners necessarily carried with it reasonable limits on the rights they enjoyed in a free and democratic society. The restrictions and limitations placed by the institution on the rights of remand prisoners were necessary in order that sufficient security would ensure that they remain in custody and not pose a danger to themselves or other inmates or staff and ensure that the facility was properly managed. The efficient management of a detention facility was held to be a valid objective that may justify the imposition of conditions and restrictions on prisoners in pretrial detention and these conditions and restrictions did not constitute punishment. The court dismissed various claims alleging violations of ss7, 8 and 12 of the Charter but upheld a claim that s3 of the Charter was being violated in not allowing such prisoners to vote in provincial elections. In contrast, in Jolivet and Barker v Her Majesty the Queen in Right of Canada247it was held that the disqualification from voting in federal elections under the Canada Elections Act, though in conflict with s3 of the Charter was justifiable under s1 because the exercise of the right to vote by prisoners would be impossible for practical reasons. The court held that the right to vote meant more than the, right to cast a ballot and included the right to make an informed electoral choice through freedom of belief, conscience, opinion, expression, association and assembly with complete freedom of access to the process of “discussion and the interplay of ideas” by which public opinion is formed. The restrictions imposed by imprisonment involving close control over association, assembly and discussion, and the interference with the free flow and circulation of information and ideas necessary to preserve prison order and discipline rendered it impossible for prisoners to make a free and democratic electoral choice. The right to vote was found to be a right which of necessity could not be exercised by prisoners serving a sentence of imprisonment and was therefore a justifiable limit. The court emphasized, however, that such disenfranchisement of criminal offenders was not justifiable on the basis of a need to protect society from the votes of unfit persons or for punitive purposes. In yet another s3 voting rights case, Levesque v AG Canada et al248 a violation of s3 was found to exist in relation to prisoners voting in a Quebec election and, in considering whether or not s1 reasonable limits could be imposed on that right, Rouleau, J held, citing the decision of the Federal Court of Appeal in Gould249(supra), that administrative or security reasons could not prevent the exercise of a constitutionally recognized right and that simply because imprisonment necessarily entailed loss of certain rights, this could not mean the whole spectrum of rights. In that case it was found that the Crown had failed to establish that imprisonment constituted a reasonable limit on the right to vote.
In Cadieux v The Director of Mountain Institution and the National Parole Board250 the Policy and Procedure Manual of the National Parole Board issued pursuant to s25 of the Parole Regulations was held not to be “prescribed by law” within the meaning of s 1 of the Charter and furthermore, the various provisions of the manual were held to be too broad to constitute “reasonable limits” on s7 Charter rights. The court commented that if the manual had been approved by the Governor in Council under s3(6) of the Parole Act, the conclusion of the court might have been different. Similarly, it has been held that s17 of the Parole Regulations could not be invoked to limit s7 Charter rights and could not be considered a reasonable limit on such rights. In Latham v Solicitor General of Canada et al,251 the National Parole Board purported to rely on certain provisions in s17 exempting disclosure at a parole hearing of confidential information and the court held that s17 was not effective to limit a Charter right whereas it may have been in relation to the common law duty of fairness. Again, in Wilson v The National Parole Board,252 it was held that s17 of the Parole Regulations, and by analogy, s54 of the Canadian Human Rights Act253 were limited in their application to the overriding provisions of s1 and s7 of the Charter, but, nevertheless, certain provisions in s54 of the Canadian Human Rights Act did not breach those sections and met the standards of fairness required.
In Belliveau v The Queen,254 it was held that the provisions of the Parole Act pertaining to mandatory supervision amounted to reasonable limits within the meaning of s1. It is evident that a considerable amount of prison law litigation is likely to take place in relation to s 1 of the Charter. All of the above decisions were decided prior to the decision of the Supreme Court of Canada in R v Oakes (supra)255 and future cases will have to take into account the detailed analysis of s1 provided in the judgment of Dickson, CJ on behalf of the court.
Section 2 — Fundamental Freedoms
Upon receiving a sentence of imprisonment a persons fundamental freedoms are obviously somewhat reduced. The question always is – to what degree? The answer to this question will usually be found in the statute and regulations governing the imprisonment in question and the section or rule will then be measured against section 1 of the Charter. “Freedom of Association” is the most obvious example. It is clearly reduced by incarceration but is not completely extinguished. A certain residual freedom continues to exist. The Institutional Head or the Chairperson in disciplinary court has the power to reduce “association” further by placing a prisoner in administrative or punitive segregation. Indeed it used to be called “disassociation” and before that “solitary confinement”. On the other hand, Parole Boards have the power to increase “association” once more. Matters involving “freedom of thought, belief, opinion and conscience” may be more difficult to limit whereas limits on “freedom of expression, including freedom of the press and other media of communication” are usually imposed by rules and regulations. Interestingly, s73 of the CCRA expressly provides for reasonable opportunities to peacefully assemble and associate between inmates, subject to reasonable limits for the security of the prison and the safety of persons. Similarly s75 applies to reasonable opportunities to participate in ones religion and in s74 to an opportunity to contribute to certain types of decisions affecting them as a whole or as a specific group. In each case where it is clear that a fundamental freedom has been infringed or limited or even threatened, the question is whether the limit is a reasonable one, prescribed by law, that is demonstrably justifiable in a free and democratic society.
To date, there have been a few prison law decisions dealing with the fundamental freedoms enumerated in s2 of the Charter. In Maltby (supra),256 it was held that limiting access to chaplains and religious ceremonies in provincial remand facilities did not violate the right to freedom of religion because, in the circumstances, the limitations were for reasons of security and the religious programs that did exist, though not perfect, were sufficient to allow for freedom of conscience and religion within such reasonable limits as were feasible in the circumstances. Similarly, the limits placed on the exercise of visiting privileges were held not to violate the rights to freedom of association and expression because the restrictions on those visiting privileges were incidental to legitimate government interests in security and were not unconstitutional restrictions.
Section 3 — Democratic Rights
The right to vote and to be qualified for membership in the House of Commons or a legislative assembly is guaranteed by s3 of the Charter: It cannot be overridden by s33 but it can be limited by s1, although it is difficult to do so, as reflected in the recent decision of the Supreme Court of Canada in Sauve(infra).
On October 31st, 2002,the Supreme Court of Canada, in Sauve v. Canada (Chief Electoral officer) 2002 SCC 68, by a slim majority of 5 – 4, held that section 51(e) of the Canada Elections Act, violated section 3 of the Charter (which was conceded) and that it was not justified under section 1 of the Charter.
The court held that to justify an infringement of a Charter right under section 1, the government had to show that the infringement achieved a constitutionally valid purpose or objective, and that the means chosen was reasonable and demonstrably justified. Here the government argued that the court should defer to Parliament on this question because it was a matter of social and political philosophy. The court said that while deference may be appropriate where the matter involves competing social and political policies, it was not appropriate on a decision to limit fundamental rights.
The Court noted that the right to vote is fundamental to our democracy and the rule of law and that it cannot be lightly set-aside. It held that limits on the right to vote required careful examination and not deference. The court pointed to the special importance of the right according to the framers of the Charter by the use of broad and untrammeled language and the fact that this right is exempt from the section 33 override notwithstanding clause. Parliament cannot use lofty objectives that are philosophically based and symbolic in nature to shield legislation from Charter scrutiny.
The government had failed to identify a particular problem that required denying the right to vote. It was therefore difficult to conclude that such a denial was directed at a “pressing and substantial” purpose. The record did not disclose precisely why a Parliament felt that more punishment was required for all federal prisoners nor what additional objectives Parliament hoped to achieve by this additional punishment that would not be accomplished by the original sentence imposed. The two broad-based objectives put forward by the government, namely (1) to enhance civic responsibility and respect for the rule of law; and (2) to provide additional punishment or “to enhance the general purposes of the criminal sanction”, were vague and symbolic objectives that could be asserted for every criminal offence and many non criminal measures.
Nevertheless the court went on to consider the “proportionality test” and found that the government failed to establish a rational connection between the denial of the right to vote and the governments stated objectives. The court found that denying prisoners the right to vote was more likely to send a message that undermined respect for the law and democracy than a message that enhanced those values. To deny prisoners the right to vote would remove an important means of teaching prisoners democratic values and social responsibility. Allowing elected representatives to disenfranchise a portion of the population has no place in a democracy built upon principles of inclusiveness, equality and citizen participation. As for the argument that prisoners should be denied the right to vote because of their “moral unworthiness”, the court found this to be inconsistent with the respect for the dignity of every person that lies at the heart of Canadian democracy and the Charter. That argument was contrary to the plain words of s.3 of the Charter and the fact that it is excluded from the s.33 override.
With respect to the argument that denying the right to vote enhances the punishment, the court held that the government had offered no credible theory as to why it should be allowed to deny a fundamental democratic right as part of punishment. It held that denying the right to vote did not comply with the requirements of legitimate punishment – namely, that the punishment was not be arbitrary and that it must serve a valid criminal law purpose. To avoid arbitrariness punishment has to be tailored to the individual circumstances of the individual offender and s51(e) had little to do with the offender’s particular crime. Further, disenfranchisement, according to the record and common sense, did not support the claim that it deters crime or rehabilitates criminals. The court held that a prohibition on all federal prisoners from voting, regardless of their crime, the harm they caused or the particular character of their conduct, did not meet the requirements of denunciatory, retributive punishment and was not rationally connected to the government’s stated goals.
In addition, the court held that section 51(e) was to broad and applied to too many people who should not be caught by it, even on the government’s own theory, and therefore it did not “minimally impair” the right to vote.
Finally, the court also held that the negative effects of denying citizens the right to vote would greatly outweigh the tenuous benefits that might ensue. Again, the court held that the removal of the right vote removed a route to social development and undermined correctional policy directed towards rehabilitation and re-integration. The court noted in particular, once again, the disproportionate number of aboriginal people in our penitentiaries and how the negative effects of taking away the right to vote would have the disproportionate impact upon this already disadvantaged group. Having found a violation of section 3 of the Charter, The court did not decide the section 15 equality arguments.
Prior to Sauve(supra) it had been held in the USA that prohibiting classes of person from voting goes to the core of democratic government. Mr. Justice Marshall of the Supreme Court of the United States expressed his concern about such prohibitions in Richardson v Ramirez 41 L Ed 2d 551 at p587:
This Court’s holding in Davis and Murphy that a State may disenfranchise a class of voters to “withdraw all political influence from those who are practically hostile” to the existing order, strikes at the very heart of the democratic process.”
In Canada, the federal government and all of the provinces except Newfoundland and Quebec enacted legislation prohibiting inmates from voting. The federal legislation was struck down in Sauve and to date Parliament has not introduced new legislation to replace it. Each of the provincial provisions limiting the right to vote in provincial elections, will now have to be re-examined in line of Sauve.
Since the enactment of the Charter of Rights, several courts have been asked to consider the constitutionality of some of these legislative provisions. As yet the courts have failed to develop a consistent analytical approach in dealing with the right to vote.
The conflicting approaches can be seen in Re Grondin and Ont (AG) (1989) 65 OR (2d) 427 (Ont HC) and Badger v Canada (AG) and Chief Electoral Officer of Canada  1 WWR 216 (Man CA).
In Grondin the Crown conceded that s16 of the Ontario Election Act, which prohibits inmates “under sentence” from voting, prima facie infringes s3. However, the Crown maintained that the disenfranchisement of inmates under sentence was a reasonable limit on the right to vote under section 1.
In finding s16 invalid, Mr Justice Bowlby pointed out that:
…the right to vote is so firmly entrenched in the Canadian Charter that, unlike other protected rights and freedoms, it is excluded from the override power afforded to parliament and the legislature by s33(1) of the Charter.
His Lordship concluded that (p423):
In my view, enabling convicted inmates to exercise their franchise and participate in the electoral process clearly advances those goals [rehabilitation]. The harmful effect of disenfranchisement on the rehabilitation of convicted inmates is of such significance that, in my view, disenfranchisement falls outside the parameters of s1 of the Charteras delineated by the Supreme Court of Canada in Oakes.
In evocative language reminiscent of many significant decisions of U.S. courts, Mr. Justice Bowlby continued at p432:
Punishment lies in confinement, but even with the most flagrant crime must exist hope of reform. This is the philosophy of our penal system; if not, then there has been much wasted thought by minds caught up in a penetrating hope. What greater avenue to constructive thought and hope of change of those who have contemptuously violated our laws is inherent in an interest in our democratic process and how we best will be governed The “prison bars” symbolize society’s contempt for the breaking of the law: the ballot, the sunrise or birth of reform, at least, in part.
At issue in Badger was s14(4)(e) (now s51(e)) of the Canada Elections Act, which then prohibited from voting-inmates “undergoing punishment”, which was later struck down by the Supreme Court of Canada in the first Sauve case.
In three separate concurring reasons the Manitoba Court of Appeal overturned the decision of Hirschfield, J (Badger et al v Canada (AG) and the Chief Electoral Officer of Canada -Unreported Manitoba Queen’s Bench, November 4, 1988).
Lyon, JA held that the enactment of the Charter was only intended to protect those rights in existence at the time the Charter came into force. In his view the Charter creates no new rights. Mr. Justice Lyon stated at p232:
I am satisfied that the framers of the Charter did not intend to create a new right, reflecting some unfamiliar, unconditional and abstract ideal which had never been enjoyed or accepted by the citizens of Canada. In these circumstances, it is clear that s14(4)(e) of the Canada Elections Act, an integral part of the right to vote since Confederation, cannot be construed as being in breach of s3 of the Charter.
Chief Justice Monnin stated that he was inclined to say that s3 of the Charter “is not an absolute right and therefore one that can be abridged by Parliament without s1 coming into play” (p222). However, because a majority of the decisions he reviewed were of a contrary view, he addressed the issue of whether the breach of s3 could be saved by s1 of the Charter, and concluded that s14(4)(e) is a reasonable and demonstrably justified limit on the right to vote.
Philp, JA agreed with the Chief Justice that s14(4)(e) was saved by s1, however, a doubt arose in his mind due to:
…the broad sweep of the disqualification, affecting all inmates in any penal institution, regardless of the nature of the offences for which they were convicted and regardless of the length of their sentences.
Mr. Justice Philp referred to Badger v Man (AG) (1986) 27 CCC (3d) 158 (Man QB), where Scollin, J considered the prohibition against prisoners from voting in the Manitoba Election Act. In that case Mr. Justice Scollin held that the disqualification provision failed the “proportionality test” laid down in R v Oakes (1986) 24 CCC (3d) 321 (SCC) because it applied to persons serving a few days for a minimal infraction of a regulatory statute, as well as to the inmate who has committed the most abhorrent of crimes.
Nonetheless, Philp JA concluded at p230 that:
Criminals serving their sentences have been disqualified from voting throughout Canadian history. If that disqualification is to be struck down under the Charter because of the breadth of its application, I would be hesitant to take on the duties of Parliament.
As mentioned above,s.14(4)(e) of the Canada Elections Act was also considered in Sauve v Canada (AG) (1989) 66 OR (2d) 234 (Ont HC) initially and in Re Jolivet and Barker and The Queen (1984) 7 CCC (3d) 431 (BCSC).
In Sauve the lower court held that the section survived the “proportionality test” because it was “reasonable in light of the history of the right to vote”, and “the disqualification is in fact upon those who have chosen to disqualify themselves”.
Unlike Sauve, Mr. Justice Taylor in Re Jolivet accepted that the disenfranchisement of prisoners cannot be justified under s1 on grounds of unfitness to vote, or as a further penalty for committing a crime. Rather the disqualification could only be justified if “the right to vote by prisoners would be impossible for practical reasons.”
After reviewing the living conditions of inmates, Taylor, J held at p436:
…that the restrictions imposed by imprisonment on freedom of the person, the close control which must be maintained by the State over association, assembly and discussion there, and inevitable interference in free inflow and circulation of information and ideas, all of which are necessary to preservation of prison order and discipline, render it impossible for prisoners to make the free and democratic electoral choice contemplated by the Constitution. The casting of a ballot under such conditions could not, in the context of the Charter, be described as an exercise of the “right to vote”.
Consequently, Taylor J concluded disenfranchising prisoners is justifiable and authorized by s1 of the Charter.
However, Mr. Justice Taylor’s reasons should be compared to Gould v Canada (AG)  1 FC 1119 (FCTD) [overruled by the Court of Appeal and Supreme Court of Canada but on the grounds that it was not a matter for an interim injunction,  1 FC 1133 (FCA); affirmed  2 SCR 124 (SCC)] and Levesque v Canada (AG) (1985) 25 DLR (4th) 184 (FCTD). In both cases the courts held that administrative or security reasons could not justify denying inmates their voting rights.
In Reynolds v BC (AG)  5 WWR 270 the BC Court of Appeal ruled that s3(1)(b) of the BC Election Act was of no force and effect to the extent that it denied persons on probation the right to vote.
The section disqualified any person convicted of an indictable offence unless he had been pardoned or completed his sentence. Chief Justice Nemetz writing for the majority said that the absence of similar restrictions in other jurisdictions, and bearing in mind that the purpose of non-custodial sentences is to allow the reintegration of incarcerated persons into society, disqualifying persons on probation from voting is not a reasonable limit within the meaning of s1 of the Charter.
As a result of the recent decision of the Supreme Court of Canada in Sauve (supra) there is no longer any prohibition from voting by any prisoners in federal elections.
Section 51(e) of the Canada Elections Act, RSC 1985, disqualifies from voting:
- (e)every person undergoing punishment as an inmate in any penal institution for the commission of any offence.
A number of earlier authorities held that that provision was constitutional. See for example, Badger v Canada (AG) and Chief Electoral Officer of Canada (Man CA), supra, overturning the decision of Hirschfield, J; Badger et al v Canada (AG) and the Chief Electoral Officer of Canada — Unreported Manitoba Queen’s Bench, November 4, 1988; Sauve v Canada (AG), supra; and Re Jolivet and Barker and The Queen. Gould v Canada (AG), supra , was to the contrary but was overturned by the higher courts on the basis that an interim injunction should not have been granted. However, in Sauve v. Canada(Attorney General), 2 SCR 438,the Supreme Court of Canada held it to be unconstitutional as an unjustified denial of the right to vote guaranteed by s.3 of the Charter.
Parliament responded by replacing section 51(e) with a provision that denied the right to vote to all inmates serving sentences of two years or more – namely all federal prisoners. It was at this latter provision that was struck down as unconstitutional by the Supreme Court of Canada in its recent decision in Sauve (supra).
Until 1985 s4 of the Newfoundland Election Act, RSN 1970 c106, disqualified from voting “every person held in custody under warrant of commitment in any penitentiary or gaol.”
However, in 1985 the Newfoundland legislature enacted The Charter of Rights Amendment Act, SN 1985 c11, and s69 of that Act repealed the disqualification of inmates from voting.
PRINCE EDWARD ISLAND
Section 21(d) of the Prince Edward Island Election Act, RSPEI 1974 cE-1 disqualifies from voting:
- (d)a person undergoing punishment in a penal or reform institution.
The constitutionality of this section is now suspect in light of Sauve (supra).
Section 26(d) of the Nova Scotia Elections Act, RSNS 1967 c83, disqualifies from voting:
- (d)a person undergoing punishment in a penal or reform institution.
The constitutionality of this section is now suspect in light of Sauve (supra).
Section 43(2) of the New Brunswick Elections Act, RSNB 1973 cE-3, states:
- s43(2) The following persons are disqualified from voting and shall not vote:
- (e)every person undergoing punishment as an inmate in a penal institution for the commission of any offence.
The constitutionality of this section is now suspect in light of Sauve (supra).
Section 51 of the Elections Act SQ 1979 c56 states:
- 51. Every inmate has the right to vote at general elections.
- To exercise his right to vote, an inmate must be entered on the list of the electors of the house of detention in which he is detained. He shall exercise his right to vote in the advance polling station of that establishment.
- His vote shall be counted in the electoral division of his domicile.
See also Levesque v Canada (AG) (1985) 25 DLR (4th) 184 (FCTD), where it was held that s3 of the Charter entitles an inmate in a federal prison to vote in a provincial election, notwithstanding security and administrative considerations.
Section 16 of the Ontario Election Act, SO 1984 c54 provides that:
- 16. Every person who is an inmate in a penal or correctional institution under sentence of imprisonment is disqualified from voting.
In Re Grondin and Ontario (AG) (1988) 65 OR (2d) 427 (Ont HCJ) the court ruled that s16 of the Ontario Election Act, 1984 SC 1984, c54, is inconsistent with s3 of the Charter and that it could not be saved by s1 of the Charter as a reasonable limit on the right to vote.
Bowlby, J stated that:
The right to vote has been guaranteed to every Canadian citizen by s3 of the Charter. If a limitation on such a fundamental aspect of democracy had been contemplated by those who framed our constitution, I am of the view that such a limitation could have been specifically provided for and made infinitely clear. By way of comparison, the exclusion of prisoners from the franchise is specifically sanctioned by the Fourteenth Amendment to the United States Constitution. In contrast, however, the right to vote is so firmly entrenched in the Canadian Charter that, unlike other protected rights and freedoms, it is excluded from the override power afforded to parliament and the legislature by s33(1) of the Charter.
In addition, the court ruled that s16 did not satisfy the Oakes proportionality test. The absence of any distinction in length of sentence and the fact the date of an election may occur during a one-week prison term, but not during the sentence of another inmate serving several years, gave to s16 an arbitrary aspect which could not be saved by s1. The recent decision of the Supreme Court of Canada in Sauve (supra) provides further support for the unconstitutionality of this section.
Section 31(d) of the Manitoba Elections Act, RSM 1987, cE30, disqualifies from voting:
- (d)Persons who are in gaols, prisons or places of detention serving a sentence imposed as punishment for an offence under the law.
Mr. Justice Scollin of the Manitoba Queen’s Bench held in Badger v Manitoba (AG) (1986) 27 CCC (3d) 158 that s31(d) infringed s3 of the Charter and could not be saved by s1 of the Charter. Though limiting the right of prisoners to vote may have legitimate objectives, the section as drafted fails to meet the proportionality test because it prohibits all inmates from voting, regardless whether their offence was serious or minor.
The Manitoba Court of Appeal, though not asked to consider the merits of Scollin J’s decision, were asked to issue mandamus to have the petitioners names placed on the voting list: Badger v Manitoba (AG) (1986) 29 CCC (3d) 92. The court declined to do so noting that there was only 17 hours before the polls opened, and it was really a matter for the chief electoral officer to decide what process should be used to enable inmates to vote.
This section is also suspect in terms of its constitutionality because of the recent decision of the Supreme Court of Canada in Sauve (supra).
Section 27 of the Saskatchewan Elections Act, ASS 1974, c38, provides that:
- 27. The following persons are hereby disqualified to be registered as voters and shall not vote:
In Re Maltby and Saskatchewan (AG) (1982) 2 CCC (3d) 153 (Sask QB), it was held that inmates on remand who had not been sentenced are not disqualified from voting. An appeal from this decision to the Saskatchewan Court of Appeal was dismissed as moot: 13 CCC (3d) 308 (Sask CA).
The decision over the Supreme Court of Canada in Sauve (supra) brings into question the constitutionality of this section.
Section 41 of the Alberta Election Act, RSA 1980, cE-2, provides that:
- 41. The following persons are not eligible to vote at an election:
- (d)persons who have been convicted of an offence and as a result of that conviction are, on polling day,
- (i) inmates of a correctional institution under the Corrections Act or a penitentiary under the Penitentiary Act(Canada) as a result of being sentenced to a term of imprisonment, other than inmates resident in facilities designated as community residential centres under this Act by an order of the Solicitor General, or
- (ii) inmates of a correctional institution under the Corrections Act awaiting sentencing for which a term of imprisonment may be imposed.
The recent decision of the Supreme Court of Canada in Sauve (supra) makes the constitutionality of this section suspect.
Section 3(1)(b) of the BC Election Act, RSBC 1979, c1O3, disqualifies from voting any person that:
- (b)has been convicted of treason or an indictable offence, unless he has secured a free or conditional pardon for the offence or has undergone the sentence imposed for the offence.
Although not a prison case the BC Court of Appeal addressed the issue of voting rights in Re Hoogbruin and BC (AG) (1986) 24 DLR (4th) 718. There the court stated at p720:
By way of preface it is to be noted that the right to vote is a democratic right so strongly entrenched in the Charter that unlike the fundamental freedoms set out in s2, and the legal rights set forth is ss7 to 15, it is not subject to the override clause afforded the Legislature by s33(1). Accordingly, subject only to obvious exclusions such as minors or mental incompetents, the right to vote is firmly entrenched in our Constitution.
See also Reynolds v BC (AG), supra.
The recent decision of the Supreme Court of Canada in Sauve (supra) calls into question the constitutionality and this section.
Section 28(3)(c) of the Northwest Territories Elections Act, SNWT 1986, c2 disqualifies from voting:
- (c)every person undergoing punishment as an inmate in a prison for the commission of an offence.
Once again, the constitutionality of this section is highly suspect as a result of the recent decision of the Supreme Court of Canada in Sauve (supra).
Section 5(d) of the Yukon Territory Elections Act, RSYT 1986, c48 disqualifies from voting:
- (d)every person who, by reason of being deprived of his liberty of movement while awaiting appeal or sentencing or while undergoing punishment for the commission of an offence, is unable to attend at a polling station to vote.
Similarly, this section is highly suspect in terms of its constitutionality in light of the recent decision of the Supreme Court of Canada in Sauve (Supra).
Section 7 — Legal Rights
As expected, s7 of the Charter has been raised in numerous cases involving prison law and can be expected, along with s1, to be raised most frequently in the future. Again, most of the decisions to date were decided prior to the decisions of the Supreme Court of Canada in Singh (supra)258 and the Motor Vehicle Reference (supra)259 and should therefore be considered along with those subsequent decisions of the Supreme Court of Canada.
A noteworthy case in regard to s7 and the retrospective/prospective application of the Charter is Gamble v The Queen  2 SCR 595 (SCC).
In a 3 to 2 decision the Supreme Court of Canada held that the ongoing detention of the appellant pursuant to the 25-year parole ineligibility condition in her sentence violated s7 of the Charter. The crime was committed in March 1976 and the appellant was convicted nine months later under former s214 (now s231) of the Criminal Codeand sentenced under s669(a). Both sections were proclaimed in force on July 26, 1976.
Writing for the majority, Wilson, J found that the law in force at the time the crime was committed should have been applied and that the appellant was convicted and sentenced under the wrong law. She added that a fundamental aspect of any legal system governed by “the rule of law” is that an accused must be tried and punished under the law in force at the time. the offence is committed.
Madame Justice Wilson held that the appellant’s s7 claim did not involve a retrospective application of the Charter. What was in issue in her view was the ongoing operation of the parole ineligibility provision in her sentence. Had the law at the time of the offence been applied the appellant might have been eligible for parole after 10 years instead of the 25-year parole ineligibility provision which came into effect after the crime had been committed and which the appellant was sentenced under.
In defining the issue Madame Justice Wilson stated (p25):
…the relevant Act to which the Charter is applied would not be the conviction or sentencing but the continuing execution of that part of the sentence which mandates a 25-year period of parole ineligibility.
The dissent, written by Chief Justice Dickson, held the appellant’s claim requires a retrospective application of the Charter. The Chief Justice said that the appellant’s argument, that she was wrongfully being denied parole eligibility for 25 years and that this amounted to an ongoing violation of s7, was dependent upon the argument that the original conviction and sentence would not have survived Charter scrutiny if they had been pronounced when the Charter was in force.
The Chief Justice took the view that even if the appellant’s conviction and sentence were initially invalid or improper, they were statutorily endorsed by the transitional provision provided by s27(2) of the Criminal Law Amendment Act (No.2) 1976.
That section states that where proceedings for treason, piracy or murder were commenced before the Act came into force and a new trial has been ordered, the offence shall be tried and determined, and the punishment in respect of the offence shall be imposed, as if the offence had been committed after the coming into force of the Act.
The Chief Justice went on to say that he could not: “accept that an ongoing violation of s7 can be found in this particular case without applying s7 to either s27(2) or to the sentence which it validated”. Both of which would require a retrospective interpretation of the Charter.
Madame Justice Wilson did not comment at length on s27(2) of the Criminal Law Amendment Act (No.2) 1976. It has to be read into her decision that s27(2) cannot save a conviction and sentence from Charter scrutiny where: 1) “the overwhelmingly significant fact is that the applicant was not properly convicted and sentenced”; and 2) the effect of the improper conviction and sentence creates an ongoing violation of the applicant’s liberty interest under s7 of the Charter.
“Conditional Release” — Most of the litigation involving s7 of the Charter in a prison law context has arisen in relation to applications I for conditional release in one form or another and suspensions and revocations of conditional release. The threshold issue involves a determination of whether or not a sufficient “liberty” interest or “security of the person” interest is involved so as to attract s7 and thereafter, the remaining issue is whether or not the person has been dealt with in accordance with the “principles of fundamental justice”. In R v Cadeddu and Nunnery,260 it was held that s7 of the Charter requires a hearing to be held in circumstances where revocation of I parole is involved. That this principle applies to provincial parolees as well as federal parolees, is clear from the decision in Cadeddu261 as well as the decisions in Re Martens and R,262 In Re Lowe,263 and In Re Conroy264 to name a few examples. In Cadieux (supra)265 s7 was he1d to apply to a decision to revoke an unescorted temporary absence program. Reed, J held that the interests of a prisoner affected by such a decision was similar to the interests of a prisoner facing possible revocation of day parole or full parole. Though the “liberty” interest was more limited in nature it was held to be similar in character. The distinction between “rights” and “privileges” was rejected as a ground for distinguishing between allowing and not allowing judicial review. In Reed, J’s view, the word “right” in s7 was to be interpreted in a generic sense as encompassing all concepts and not in a narrow sense. Consequently, the fact that one was dealing with the granting of a privilege did not lessen the applicability of the common law duty of fairness or s7 of the Charter principles of fundamental justice. The court did not go so far as to require a hearing in such circumstances, but held that a failure to disclose to the prisoner the case against him violated s7 and required a reconsideration and redetermination on proper principles. On the other hand, in O’Brien v The National Parole Board,266 it was held that an application for unescorted temporary absences did not bring into play s7 because such an application did not raise questions of the deprivation.of any constitutionally enshrined right of liberty such as might occur in revocation circumstances. Here, the court relied upon the “right/privilege” distinction, holding that a distinction must be drawn between a denial affecting the expection of enjoyment of some anticipated privilege of liberty and the deprivation of some right of liberty presently existing and enjoyed, where such deprivation is contrary to fundamental justice. However, if the Board had embarked upon a hearing, even though one was not legally required, it was then compelled to conduct the hearing in accordance with the principles of fundamental justice and the common law duty to act fairly. In Staples v The National Parole Board,267 it was held that s7 applied to an application for day parole. Whether or not a hearing was required was not decided. The court held that a decision to grant or refuse day parole was a decision pertaining to “liberty” and was not distinguishable from a decision to revoke parole. The court declined to decide whether or not s11 of the Parole Act, which purports to exclude the right to a hearing in relation to day parole, was in conflict with s7 of the Charter. It was sufficient, in the circumstances, to hold that the applicant had not been made aware of the substance of the materials adverse to his case that the Board would be considering, in order to enable him to respond with evidence or argument. The distinctions between the applicability of s7 to “applications” for a degree of liberty and to “revocations” of an existing degree of liberty and the degrees of liberty themselves promise further litigous consideration.
In those cases where a hearing is required, it has been held in Martens,268, Lowe269 and Hewitt270 (supra) that it is a violation of s7 to preclude the prisoner from being present for the entire hearing so as to obtain full disclosure of all relevant considerations. Furthermore, in Re Mason and The Queen,271 it was held that a prisoner is entitled to an in-person hearing before at least a majority of the full panel necessary in a particular case and if the majority of two members is unable to agree and a third vote is required, a new hearing would have to be held before three members. The Board could not have the third vote cast in the absence of the prisoner affected and his assistant and in the absence of submissions. To hold otherwise would have allowed the third Board member to render a decision based on written materials without a personal plea and this would be fundamentally unjust and unfair and violate s7. A decision on the question of parole by deportation, pursuant to s11.1 of the Parole Regulations was set aside on consent in Schertow v National Parole Board272 where all of the Board members determining or deciding the question were not present at the hearing.
In In Re Conroy (supra)273 it was held that s7 did not apply to a situation where a person was already on parole and the Board decided to impose an additional special condition. The addition of such a con- dition without notice to the party did not involve the deprivation of “liberty” and would not require a hearing, nor would it attract s7 principles. However, in Litwack v National Parole Board,274 it was held that a decision by the Board to impose terms or conditions on a parole on a subsequent decision reviewing such terms or conditions with a view to revoking or continuing them must be made in accordance with s7 of the Charter principles of fundamental justice. Though it was held that the imposition of the condition in the circumstances I was not unreasonable, nevertheless, a subsequent decision on an application to have it removed violated s7 principles because of undue delay and because the decision not to remove the condition was patently unreasonable in substance and inconsistent with the purposes of imprisonment on parole.
The decision in Litwack (supra)275 is an example of a decision rendered subsequent to the decision of the Supreme Court of Canada in Reference Re Section 94(2) of the Motor Vehicle Act (BC) (supra)276 which held that s7 was not merely procedural but also substantive. In Latham v Solicitor General of Canada et al (supra),277 a decision prior to the Motor Vehicle Reference (supra),278 it was held that s7 was merely procedural and not substantive and that s20 of the Parole Act was not in itself contrary to s7. However, non disclosure of the case against the prisoner, in the circumstances, still resulted in a violation of s7 and s17 of the Parole Regulations was held not to be a reasonable limit within s1 of the Charter on such s7 rights. Furthermore, the prisoner had not been entitled to be present throughout his hearing when the confidential information was discussed.
“Disclosure” — The question of the disclosure of the case against a person on an application for conditional release or in circumstances of possible revocation has arisen in various cases, both before the Charter under the duty of procedural fairness arising at common law, and since the Charter under s7 principles of fundamental justice. Frequently, considerations of s1 of the Charter come into play where statutory or other rules have been erected in an effort to prevent disclosure. In Cadieux (supra),279 it was held that the rules of fairness do not always require disclosure of all information that a decision making body has before it. Nevertheless, the court was of the view that it would be rare that a prisoner could not be told at least the gist of the case against him. However, the court could envisage some situations where it might be necessary to refuse to disclose even the gist of the case against a prisoner when the content of information related to conduct occurring within the institution might automatically lead to disclosure of the identity of an informer. Safety and order within the prison may require the non-disclosure of the identity of informers or if disclosure would automatically lead to the revealing of information collection methods and undermine the functioning of the Board.279a It was held that the public interests in preventing the repetition of offences when a prisoner is at large, in maintaining security and order in a penal institution and preserving the Board’s ability to function effectively, may outweigh the normal rule that a person is entitled to know the gist of the case against him, but the occasions upon which these exceptions would apply would be rare and would have to involve an element of necessity. Mere convenience for the functioning of the Board would not be enough, nor that the information was provided in confidence. These latter grounds were considered too weak to justify a limitation on the scope of a constitutional guarantee as contained in s7 of the Charter, particularly, when a person’s liberty is at stake. The court concluded that a prisoner is entitled to know the substance of the case against him to enable him to make a reply, but this did not mean that he was entitled to the identity of the source of the information, or production of the actual documents themselves, nor all the details of the case against him. Furthermore, there must be a nexus between the content of the information that the Board doesn’t wish to disclose and the protection of the public interests said to be served by the non-disclosure. The provisions of the Parole Board’s policy and procedures manual, which allowed for non-disclosure, did not apply because those rules were not “prescribed by law” to bring into play s1 of the Charter. Though s17 of the Parole Regulations and the provisions of the Privacy Act280 and Canadian Human Rights Act might have been legally effective to limit the common law duty of fairness, they could not be used to limit a s7 Charter right as their provisions were too broadly framed to be a reasonable limit under s1 of the Charter. In Staples (supra),281 an application to quash a decision denying day parole was granted because the Board failed to advise the applicant prisoner of the substance of the materials adverse to his case that the Board would be considering, in order to enable him to respond to it with evidence or argument. In H v The Queen and the National Parole Board,282 it was held that the provisions of the Privacy Act and in particular, ss19 through 28, did not control the question of disclosure in the case against a person and a fair opportunity to respond within the rules of natural justice of fairness. The Privacy Act allows individuals to obtain access to information about themselves in government files and the exemptions in the Act relate to requests for information made pursuant to the Act and do not operate as a limit on access to information to which an individual might be entitled as a result of other legal rules or principles such as the right to know the case against one, under the rules of natural justice. Similarly, a person does not have to exhaust remedies under the Privacy Act before applying to the court. The rules allowing for disclosure under the Privacy Actare different from and designed to serve different purposes from those flowing from the rules of natural justice. In that case, the Board had indicated it had some suspicions against the applicant but did not give him sufficient disclosure of the circumstances surrounding the suspicion. The court held that details of the suspicion should have at least included the dates of the alleged offences, the place and presumably some indication of the time and identity of victim. It was held that s17 of the Parole Regulations did not apply to an application for day parole. The court granted a writ of prohibition precluding the Board from relying on that information in coming to its decision. In Martens (supra),283 it became apparent on an internal review, that additional factors had been taken into account by the Board than had been expressed in the reasons given to the parolee and consequently, a new hearing was ordered. In Latham (supra)284 as previously indicated, s17 of the Parole Regulations was held not to be effective to limit the rights a parolee has under s7 of the Charter and that fairness required at least an outline be given to the person affected of the allegations being considered in deciding whether or not to deny that person his liberty. The court held that a law which purports to deny at least such minimal disclosure could not amount to a reasonable limit within the meaning of s1 of the Charter. Also, in Wilson v The National Parole Board (supra),285 where the Board had relied on confidential security information and withheld it from the prisoner, the court ordered the Board to make available to the prisoner the information contained in his security file, but indicated that the Board was not required to furnish him with such information referred to in s54(d)(ii) of the Canadian Human Rights Act286 pertaining to information obtained on a promise of confidentiality, express or implied, if that information would automatically lead to the disclosure of the identity of an informer. In addition, the Board was not required to furnish such information which was covered by the provisions of s54(c)(ii), (d)(ii) and (e) of the Canadian Human Rights Act,287 which includes information obtained on a promise of confidentiality and information that might reveal personal information concerning other individuals. Consequently, the court ordered disclosure, and though it held that s17 of the Parole Regulations and s54 of the Canadian Human Rights Act288 were limited in their application to the overriding provisions of s1 and s7 of the Charter, there were nevertheless certain provisions of s54 of the Canadian Human Rights Act289which did not breach those sections of the Charter and met the standards of fairness required. The court did say that the withholding of information simply obtained on a promise of confidentiality express or implied, with no other reason in support might well breach s7 principles. In each case, it would depend upon whether or not such disclosure would automatically lead to the identity of an informer, in which case, in the court’s view, such information would have to be kept secret. This entire area of disclosure and non-disclosure of information on such hearings and other hearings in a prison law context remains prolematic and a considerable amount of future litigation is likely. At common law the law in Canada is summarized in Lazarov v Secretary of State.290
“Disciplinary Courts” — Section 7 of the Charter has also been raised in relation to matters inside the prison, such as the internal disciplinary courts and in relation to transfers. In Howard v Presiding Officer of the Inmate Disciplinary Court of Stony Mountain Institution,291 the Federal Court of Appeal held that the effect of s7 of the Charter was to greatly enhance a prisoner’s right to the protection of the principles of fundamental justice in disciplinary court proceedings and that where earned remission is at risk, there is virtually a presumption in favour of counsel. Because earned remission was in jeopardy and because the prisoner might be sentenced to solitary confinement as punishments for disciplinary offences, it was held that the prisoner’s “liberty” and the “security of his person” were at stake and consequently, s7 came into play. Whether or not the “principles of fundamental justice” required, among other things, the right to assistance of counsel, arises out of the requirement that the person be afforded an opportunity to fairly and adequately present his case. There is a right to counsel where the circumstances are such that the opportunity to present the case adequately calls for the representation by counsel. In such circumstances, there is no discretion in the independent chairperson, although there may be a residual discretion in such a chairperson to allow counsel in other circumstances. In Toner v The Director of Mountain Institution et al,292 it was held that s7 had.not been breached in circumstances where there was no clear request for counsel made in the disciplinary court proceedings. In Mitchell v Crozier et al,293 a conviction for a “serious or flagrant offence” was quashed because the prisoner requested counsel and his request was denied contrary to the principle underlying the Howard decision (supra),294 but the application was dismissed in relation to two other convictions where the prisoner assumed that they were “minor” without reading the notice of offence and did not request counsel in relation to those charges. The court held that the failure to request counsel in relation to those charges was due to the prisoner’s own misconception of the nature of the charges and therefore, his own conduct.
Though it appears from the decision in Howard (supra)295 that in most circumstances involving “serious” offences, there will be a right to counsel, the question of who will pay to provide counsel where the prisoner cannot afford to pay raises additional problems. In Landry v Kent Institution Disciplinary Board,296 a prisoner who was charged with a serious offence requested counsel and the chairperson acceded to the request for an adjournment to obtain counsel, having in mind the decision of the Federal Court of Appeal in Howard. Landry then applied for legal aid and was told that though he was financially eligible, the matter was not covered by the British Columbia legal aid plan. Landry then applied to compel the Legal Services Society of British Columbia to provide counsel, arguing that he was a defendant in criminal proceedings that could lead to his imprisonment or alternatively, that the proceedings were civil and might result in him being imprisoned or confined or, in the further alternative, that he was faced with a legal problem that threatened his livelihood. If he came within .those terms, there was a mandatory obligation on the Legal Services Society of British Columbia to provide counsel. The disciplinary court proceedings were adjourned, pending a decision of the British Columbia Supreme Court on that issue, but before judgment was rendered, the chairperson decided to proceed with the charge and found him guilty and sentenced him to a forfeiture of 90 days earned remission. Shortly thereafter, the British Columbia Supreme Court ruled that proceedings were disciplinary and not criminal or civil and that he was therefore not entitled to legal aid. Landry applied to quash the decision of the chairperson in order to enable him to appeal the decision of the British Columbia Supreme Court to the Court of Appeal. The Federal Court Trial Division held that the chairperson’s decision to refuse a further adjournment, in the circumstances, bearing in mind the ethnic and educational background of the applicant, was tainted with unfairness and that the chairperson failed to take into account relevant matters and did not indicate that a fair trial could proceed without counsel. The decision was therefore quashed without hesitation. Subsequently, the British Columbia Court of Appeal dismissed Landry’s appeal on the issue of the obligation of the Legal Services Society to provide counsel and agreed with the court below that the proceedings were disciplinary and not civil or criminal.297
To date, the provision of legal aid has been the responsibility of the provinces, presumably under their constitutional power over the administration of justice. Consequently, whether or not a particular provincial government will be required to provide legal aid for disciplinary court matters will depend upon an interpretation of provincial legislation to determine whether or not it is mandatory or discretionary to provide legal aid in the circumstances. In British Columbia, the Court of Appeal has held that under British Columbia legislation, the provisions of legal aid for such matters is not mandatory.298 In Ontario, legal aid is provided for such matters and has been provided in post suspension parole revocation hearings for some time. In Manitoba, a duty counsel system prevails for disciplinary court matters. The question of whether or not these varying practices in various provinces bring into play an issue under s15 of the Charter may well arise in future. The alternative is for the federal government to provide funds for counsel in such circumstances. If neither government sees fit to provide funding, the result may be that certain disciplinary court matters will not proceed because the court has ruled that counsel is necessary in order to comply with s7 of the Charter and no one is able or willing to pay for counsel.
“Transfers” — Section 7 of the Charter has also been frequently raised in relation to the question of transfers from lesser security to higher security and to segregation units or special handling units. In Dubois v Sauve et al,299 the transfer of a prisoner to higher security and to administrative segregation and then a special handling unit, because of a new policy that persons receiving life sentences without eligibility for parole for 25 years be placed in special handling units, was held not to infringe s7 of the Charter. An allegation that the conditions in the special handling unit involved sensory deprivation and danger to health and offended the “security of the person” of the prisoner, as well as the principles of fundamental justice was rejected. On the other hand, in Hay v The National Parole Board et al,300 a prisoner who had earned a transfer to a minimum security was suddenly, due to a change in policy effecting a class of prisoners, transferred back to maximum security. In these circumstances, the court quashed the decision, holding that the transfer back to the penitentiary as a result of the policy was due to no fault or misconduct on the part of the prisoner and was arbitrary, cruel and unusual treatment or punishment and unfair and in derogation of the principles of natural justice and therefore s7 of the Charter.
In Bovair v Regional Transfer Board, Pacific Region, and Correctional Service of Canada,301 a prisoner was transferred from medium security to higher security for administrative reasons and not for punishment for a disciplinary offence and was not placed in administrative dissociation or segregation. He had, however, been charged with a disciplinary offence and held in segregation for several months until the charge was dismissed because a security guard witness did not appear, however he was held in segregation until his” actual transfer. The prison authorities relied on the allegations form- ing the basis for the disciplinary offence, as well as other older matters as the basis for the transfer. The court held that when a prisoner is sent to segregation for administrative or disciplinary reasons, the general duty of fairness and the Charter require that he be apprised of the reasons for the decision and must be afforded a reasonable oppor- tunity of replying, but the court was not convinced that the same prin- ciples applied to transfers from medium to maximum security. The court felt that the authorities had acted fairly in the transfer itself and were entitled to rely on the allegations forming the basis for the disciplinary offence, because the offence had not been dismissed on the merits. On the other hand, in Jamieson v Leblanc et al,302 it was.held that the jurisprudence was clear that there was a requirement of fairness when decisions are taken to transfer prisoners within the prison system. In support of this proposition, the court referred to Butler v R et al;303 Re Chester;304 Pilon et al v Yoemans;305Hay v The National Parole Board;306 and McInroy v R et al.307 The court went on to hold that though this did not require a formal hearing prior to transfer, that nevertheless s7 of the Charter now applied and the principles of fundamental justice required compliance with the common law duty of fairness. In this case, the court found that the procedure followed by the authorities did not meet its own internal standards or the legal requirements of fairness flowing from the Charter. The notices of transfer contained insufficient particularity and did not fully state the grounds for transfer. There was no indication that the prisoner’s replies had been taken into account. In Mitchell v Crozier et al (supra),308 the court quashed a transfer because the transfer board had relied on matters not disclosed or made available to the prisoner which he was therefore not able to respond to and the notice served on the prisoner in relation to the transfer, in accordance with the Commissioner’s Directives, failed to make reference to the other matters taken into account by the transfer board. In the court’s view, it would not have been a burdensome inconvenience or possible detriment to the prison authorities to provide the prisoner with those details by attaching documents to the notice or supplying the gist of the informa- tion on the notice itself. The court ordered the prisoner’s minimum security rating be reinstated and that he be returned to minimum security. In R v Chester (supra),309 the court quashed a transfer, holding that s7 dealt only with procedural and not substantive matters, but that in the circumstances, the duty of fairness required by common law, s7 of the Charter and the Commissioner’s Directives themselves, were not observed. The notice was insufficient as to reasons for the proposed transfer and the decision itself was not made by the person authorized to make it. The decision to transfer could not be ratified after the event by the Deputy Commissioner. The reasons for the transfer in the notice in question were at least equivocal and more particulars were required to enable the prisoner to adequately respond. Furthermore, the notice was found to be misleading and inadequate, bearing in mind that the prisoner was being transferred to a special handling unit. In the court’s view, the notice should have included at least a comprehensive listing of the.available material to be considered and a summary of the contents of such material. The court recommended that copies of documentation be provided to the inmate with the notice of transfer, but didn’t go so far as to hold that such copies must be provided to comply with the duty of fairness because in certain circumstances, some of the documentation might be entitled to confidentiality. The court expressed the hope that the prison authorities could delete confidential material or references so that the prisoner would have a fair opportunity to respond.
In Collin v Lussier,310 the court found that a transfer from medium security to maximum was a disguised punishment because of the prisoner’s activities as a prison legal affairs worker, which had led to some embarrassment on the part of the prison administration. Furthermore, the prisoner suffered from a heart condition and claimed that the transfer threatened his health due to increased stress and other matters at the new institution. The court held that the transfer was without adequate reasons and was in breach of the duty to act fairly. In addition, the court found that the prisoner’s right to the “security of his person” as guaranteed by s7 of the Charter, had been violated by threats to his health. Fundamental justice had not been accorded the inmate because he had not been informed of the grievance against him or given a chance to defend himself and had not received an impartial decision. He was ordered retransferred back to the original institution and was awarded damages under s24 of the Charter. However, on appeal,311 the award of damages was set aside because there was no evidence that the prisoner’s security of the person had in fact been infringed and because damages are not available on an application, but only in an action.
In Fitzgerald v Trono311a the prisoner was transferred without his consent because an informant had stated that he had made elaborate plans to escape and leave the country. The prisoner had previously made one escape attempt but since then had furthered his education, married and otherwise been a model prisoner. The court held that the Warden (who had not revealed the name of the informant or details of the information provided by him) must file additional material showing why disclosure was not possible. In the absence of a good reason for nondisclosure, the court held that there had been inadequate disclosure to the prisoner. The disclosure must be such that the prisoner could “playa reasonably informed part in the whole process”; his participation must be “meaningful”.
In Faulkner v Solicitor General of Canada311b the court held that if the Correctional Service involuntarily transfers an inmate without following the correct procedures (in this case inadequate notice to the inmate) it has the power to rescind the decision and correct the defect. Provided that power is exercised fairly, no grounds exist which warrant judicial intervention. The transfer of an inmate from one institution to another is an administrative matter and will only be interfered with by the courts on the rare occasion when it is manifestly clear that the inmate has not been dealt with fairly.
“Other Internal Matters” — A violation of s7 of the Charter was also alleged in relation to strip searches after contact visits in a provincial remand detention centre in Re Maltby (supra).312 The court found that such searches, to prevent and control the influx of drugs and weapons and other contraband that may pose a threat to institutional security, was a minimum reasonable requirement and did not involve a violation of s7.
Piche el al v Canada (Solicitor General) — In Piche el al v Canada (Solicitor General)312a the Federal Court of Appeal held that the introduction of double-bunking at Stony Mountain Institution was not contrary to s7 of the Charter, not did it breach the inmates’ right to fairness.
For the court MacGuigan JA agreed with the trial judge’s finding (see Piche et al v Solicitor General of Canada (1985) 17 CCC (3d) 1 (FCTD)) that the double-bunking decision was a policy decision not subject to judicial review. It found that the CSC was confronted with a serious over-crowding problem and that the double-bunking decision was:
“…essentially one as to the best adaptation of governmental resources to a need of startling proportions.”
The court also referred to the trial judge’s finding of facts:
“He found that “there is no empiric evidence that double-bunking increases, tension level” (A.B., Vol 10 at 1454), and that “the physical and mental condition of the plaintiffs does not support [the] conclusion” (A.B., Vol 10 at 1437) that from a psychiatric point of view double-bunking is a damaging, detrimental and dangerous form of incarceration. In other words, the Trial Judge found double-bunking neither physically nor psychologically harmful. It was an upsetting of the status quo, but not an interference with existing right.” (p7)
The appellants also relied on the legitimate-expectation-of-notice doctrine developed by the House of Lords in O’Reilly v Mackman  3 All ER 1124,  2 AC 237 and Council of Civil Service Unions v Minister for the Civil Service  3 All ER 935, Where Lord Fraser of Tullybelton expressed the doctrine as follows (at pp943-4):
“[E]ven where a person claiming some benefit or privilege has no legal right to it, as a matter of private law, he may have a legitimate expectation of receiving the benefit or privilege, and if so, the courts will protect his expectation by judicial review as a matter of public law… The test… is whether the practice of prior consultation of the staff on significant changes in their conditions of service was so well established by 1983 that it would be unfair or inconsistent with good administration for the government to depart from the practice in this case.”
The court held that this doctrine had no application as there was nothing in the record to support a practice of prior consultation with prisoners on matters of policy.
MacGuigan JA accepted the “residual right to privacy and dignity as a theoretically tenable position” (p9). However, the appellants’ s7 argument failed as they did not establish that the right to privacy and dignity “included a one-person-one-room component.”
This was a fact of which the court not take judicial notice. The court was prepared to take judicial notice of the fact “that one-person-one-room is a deep-rooted aspiration of our society, but, beyond that, without sociological evidence, it could not go.” (p10)
Section 8 — Search and Seizure
This section of the Charter has been raised on a couple of occasions in relation to institutional searches. Once again, the decisions were rendered prior to the decision of the Supreme Court of Canada in Hunter v Southam Inc (supra)313 and consequently, these decisions should be considered in light of that decision. A further decision of the Court in Dedman v R214should also be born in mind. The Dedman case involved a charge of failing to comply with a roadside demand for a breathalyzer. The charge arose prior to the Charter although the decision was rendered on July 31st, 1985.
The court upheld the police officer’s powers to randomly stop people in motor vehicles as being within the powers of the police at common law as set forth in R v Waterfield315 and within the general scope of police duties to prevent crime and to protect life and property. The court held that this power on the part of the police was both necessary to the execution of that police duty, and reasonable, having regard to the nature of the liberty interfered with, and the importance of the public purpose served by the interference. It seems likely that the courts will be attracted by the reasoning in Dedman in most but not all institutional search situations, bearing in mind that the test under s8 of the Charter is one of “reasonableness”.
In Re Maltby (supra)316 it was held that strip searches following contact visits in a provincial remand detention centre, which were conducted to prevent and control the influx of drugs and weapons and other contraband that might pose a threat to the security of the institution, were minimum reasonable requirements and did not violate the right to be secure against unreasonable search and seizure. Similarly, in Re Soenen and Thomas et al317 it was held that the search by prison officials for weapons and other contraband that required a prisoner to be stripped naked and bend over so that a visual examination of his rectal area could be carried out did not constitute an unreasonable search. The court expressed the view that a visual search of the rectum of a person just arrested in the absence of reasonable probable cause to believe that an object had been concealed anally might be unreasonable and in violation of a reasonable expectation of privacy, but a search in the case of pretrial detainees in a detention facility, so long as the search was conducted in good faith and not for the purposes of punishment, would not be unreasonable, nor would it violate any reasonable expectation of privacy. In the court’s view, such searches could be conducted in the absence of reasonable and probable grounds to believe that the prisoner being searched had concealed an object in his body cavity.
Section 9 — Detention or Imprisonment
This section of the Charter has also been raised on a few occasions in relation to prison matters. In particular, it has been raised in relation to transfers, the continued detention of habitual criminals, dangerous offender applications and the effects of s20 of the Parole Act.318
In R v Lyons,319 the dangerous offender provisions of the Criminal Code320 were held not to be arbitrary, bearing in mind the requirement of consent of the highest office of the Crown or his lawful deputy. In the court’s view, the words “arbitrarily” mean without a good reason in the sense that it is unreasonable, capricious, unjustifiable and applied purely by chance. In Re Mitchell and the Queen,321 a prisoner who had been declared a habitual criminal and sentenced to preventative detention under the old provisions of the Criminal Code, since repealed and replaced by the dangerous offender provisions, argued that he was being arbitrarily detained. The court held that the prisoner had failed to establish a prima facie violation of his right under this section as no evidence was adduced by him as to what criteria the National Parole Board in fact employed in reviewing his detention. The court noted that s695.1(2) of the Criminal Code322 required the National Parole Board to review his condition, history and circumstances every year for the purpose of determining whether he should be granted parole and that s10(1)(a) of the Parole Act323 set out clearly defined standards to guide the Board in making that decision. Consequently, the court was of the view that there was nothing inherently capricious or unreasonable about the procedure and in the absence of evidence as to what criteria the Board in fact employed in reviewing his detention, was not prepared to find that his continued detention was contrary to this section of the Charter. The court agreed, however, that simply because the statute set out a certain specific procedure, did not necessarily mean that the procedure was free from an attack under this section. The procedure itself would have to be scrutinized by the court to determine whether or not it was arbitrary in a sense of being capricious, unreasonable or unjustifiable.
In Maxie v The National Parole Board324 (supra), s20 of the Parole Act was considered in relation to this section and found not to authorize arbitrary detention or imprisonment either in the circumstances of the particular case or in looking generally at the statutory provisions as a whole. In Dankoski v Warden of William Head Institution,325 a prisoner applied for a recredit of remission under s20(3) of the Parole Act after the revocation of his parole and the Parole Board told him that they had decided to recredit 105 days. However, the prisoner remained in custody after the time for release, taking into account the recredit and the court held that this continued detention or imprisonment was arbitrary and ordered the prisoner’s release forthwith on mandatory supervision until his warrant expiry date.
In Dubois v Sauve (supra),326 it was held that a transfer to administrative segregation in a special handling unit because of a new policy directive applying to the prisoner’s particular circumstances did not amount to arbitrary detention or imprisonment even though the prisoner had been a model prisoner prior to the new policy. On the other hand, in Hay (supra),327 a prisoner who had earned a transfer to minimum security and was then suddenly transferred back to maximum security because of a change in policy effecting his particular situation, resulted in the court quashing the transfer and holding that the transfer, as a result of a policy, and without any fault or misconduct on the part of the prisoner, was arbitrary, cruel and unusual treatment or punishment and unfair in derogation of the principles of natural justice and therefore s7 of the Charter.
Though the Supreme Court of Canada has yet to comment on this specific section, the decision of the court in Therens (supra),328 and in particular that portion of the judgment pertaining to the meaning of the word “detention” under s10 of the Charter should be considered in relation to the word “detained” in this section.
Section 10 — Arrest or Detention
This section has been considered by the Supreme Court of Canada in Therens (supra)329 and that judgment should be borne in mind in considering the earlier decisions of lower courts in a prison law context. Furthermore, the decisions of the Supreme Court of Canada in Cardinal and Oswald (supra)330 and Miller v R331 and Morin v National Special Handling Unit Review Committee et al332 should also be borne in mind, even though they involve circumstances arising prior to the Charterbut were decided after the Charter came into effect and after the court’s decision in Therens. These latter decisions are important because they hold that the remedy of habeas corpus is available to determine the legality of one’s detention in solitary confinement (administrative segregation) or in special handling units. Such forms of detention are clearly recognized by the Supreme Court of Canada as constituting a further deprivation of liberty by the imposition of a particular form of detention distinct and separate from that imposed on the general inmate population of a prison. Bearing in mind the duty to act fairly and probably, s7 of the Charter principles of fundamental justice would require one to be informed of the reasons for such detention. Bearing in mind the entitlement to habeas corpus to determine the legality of such forms of detention there would appear to be no reason in principle why the right to retain and instruct counsel without delay and to be informed of that right upon such detention should not be applicable as well.
In Latham v Solicitor General of Canada et al (supra),333 this section was held not to apply in circumstances other than initial arrest or detention. The court was of the view that to hold otherwise in the context of prisons would impose upon the authorities a continuing day-to-day duty to advise inmates of their right to counsel. This case involved a suspension and revocation of parole and the court found that s7 of the Charter required that a parolee should have every reasonable opportunity to be represented by counsel at such hearings and that sufficient time should be given a prisoner to make all reasonable efforts to obtain counsel.333a
Section 11 — Proceedings in Criminal and Penal Matters
This section of the Charter is most often relied on in prison matters where the issue of double jeopardy arises. Section 11(h) of the Charter states that:
- 11.Any person charged with an offence has the right…
- (h)if finally acquitted of the offence, not to be tried for it again and, if finally found guilty and punished for the offence, not to be tried or punished for it again.
The Supreme Court of Canada has been cautious in interpreting the scope of this section. In prison related matters the leading case on double jeopardy is R v Shubley (1990) 52 CCC (3d) 481 (SCC). There the Supreme Court of Canada in a three-to-two decision (Cory J and Wilson J dissenting), ruled that s11(h) of the Charter does not bar Criminal Code proceedings against an inmate who has already been convicted in disciplinary proceedings in an Ontario provincial prison.
Applying the test set out by Wilson J in R v Wigglesworth (1987) 37 CCC (3d) 385 (SCC), Mclachlin J said that a prosecution is barred by s11(h) if the proceedings are by their very nature, criminal proceedings, or if the punishment invoked involves the imposition of true penal consequences.
It was held that a prison disciplinary proceeding is not by its very nature criminal because:
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.333b
McLachlin J also said that prison disciplinary proceedings do not involve true penal consequences. The proceedings involved neither fines nor imprisonment and the:
…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.333c
The majority did not refer to the significance of “prisons within prisons” following the Martineau v Matsqui Institution (No.2)(1979) 50 CCC (2d) 353 (SCC), line of cases, nor to the Court’s earlier decision in Solosky v The Queen (1979) 50 CCC (2d) 495 (SCC), which recognized that inmates retain those residual rights not expressly, or by necessary implication, taken away by legislation.333d However, Cory J writing for the minority started out by recognizing these earlier decisions of the Court. Mr. Justice Cory took the view that prison disciplinary proceedings do involve the imposition of true penal consequences. Referring to “prisons within prisons” Mr. Justice Cory held that solitary confinement is an additional violation of the residual liberties an inmate retains while in prison, and:
…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.333e
The dissenting members of the court also said that the loss of earned remission, or the ability to earn remission, is a true penal consequence. Viewed from the inmate’s perspective, any shortening of his confinement through earned remission, has the same effect as a reduction in his sentence. 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.”334
One month after the Supreme Court of Canada handed down Shubley the Court pronounced judgment in another double jeopardy case. In Van Rassel v The Queen (1990) 53 CCC (3d) 353 (SCC) an RCMP officer was charged in the United States with a number of offences arising out of the disclosure of confidential information, and was ultimately acquitted. The accused was then charged in Canada with breach of trust based on the same transaction that led to the U.S. charges. To the Canadian charge he entered a plea of autrefois acquit.
McLachlin J, this time writing for a seven member court, accepted that there is common law authority for the proposition that double jeopardy may apply to charges arising out of two nations. However, to make out the defence of autrefois acquit two conditions must be met:
- (1) the matter is the same, in whole or in part, and
- (2) the new count must be the same as at the first trial, or be implicitly included in that of the first trial, either in law or on account of the evidence presented if it had been legally possible at that time to make the necessary amendments.335
The court concluded that the plea of autrefois acquit did not apply because the Canadian charges dealt with Canadian events, and were based on a breach of trust by a Canadian official in relation to the people of Canada.
Similarly, following R v Wigglesworth336 the court said that s11(h) of the Charter could be of no assistance to the accused as the two offences he was charged with were not the same. Though both charges were criminal in nature and arose out of the same incident, the Canadian charge alleged wrongdoing by a Canadian official with a special duty to the Canadian public, whereas the American charge alleged wrongdoing by a person temporarily subject to American law.
At issue in Wigglesworth was whether an RCMP officer tried and convicted in RCMP service court, could later be tried on the same facts for common assault. Persons convicted under the RCMP Act were subject to imprisonment for one year and a fine.
Wilson J said that the central issue to be determined by the court was whether a “major service offence” constitutes an “offence” within the meaning of s11 of the Charter, and if so whether criminal charges would violate the appellant’s right under s11(h). After recalling that a purposive approach should be taken when interpreting the Charter (R v Big M Drug Mart Ltd337), the court reviewed earlier cases involving s11(h) and noted the presence of a so-called “disciplinary exception” to the application of s11. Thus, in R v Mingo (1982) 2 CCC (3d) 23 (BCSC), Toy J ruled that s11(h) does not apply to a criminal prosecution for conduct which had been the subject of earlier disciplinary proceedings against an inmate.
Similar results were reached in Yeomans v Gaw (1985) 22 CCC (3d) 311 (FCA) and Howard and Presiding Officer of Inmate Disciplinary Court of Stony Mountain Institution (1983) 8 CCC (3d) 557 (FCTD); subsequently reversed but in reliance on s7 of the Charter at 19 CCC (3d) 195 (FCA); contra Re Russell and Radley (1984) 11 CCC (3d) 289 (FCTD); Re Peltari and Director of the Lower Mainland Regional Correctional Centre (1984) 15 CCC (3d) 223 (BCSC); and Knockaert v Commissioner of Corrections (1986) 25 CCC (3d) 373 (FCTD); subsequently upheld 32 CCC (3d) 288 (FCA). The conclusion that s11 does not apply to disciplinary proceedings has also been arrived at in cases involving professional disciplinary statutes: ie, Re James and Law Society of BC (1982) 143 DLR (3d) 379 (BCSC); Re Rosenbaum v Law Society of Manitoba (1983) 6 CCC (3d) 472 (Man QB); Belhumeur v Discipline Committee of Quebec Bar Ass’n (1983) 34 CR (3d) 279 (Que SC); Re Law Society of Manitoba and Savino (1983) 1 DLR (4th) 285 (Man CA); Re Fang and College of Physicians & Surgeons of Alberta (1985) 25 DLR (4th) 632 (Alta CA).
The above authorities adopted a narrower interpretation of s11 from that developed in Re Nash and The Queen (1982) 70 CCC (2d) 490 (Nfld Prov Ct); Re Lazarenko and Law Society of Alberta (1983) 4 DLR (4th) 389 (Alta QB); and R v B & W Agricultural Services Ltd (1982) 3 CRR 354 (BC Prov Ct).
Wilson J preferred the narrower interpretation of s11 favoured by the majority of the authorities. She held that:
The rights guaranteed by s11 of the Charter are available to personsprosecuted by the state for public offences involving punitive sanction, ie, criminal, quasi-criminal and regulatory offences, either federally or provincially enacted.338
Though some authorities have held that the reference in s11 to an “offence” as opposed to a “criminal offence”, as contained in s2(f) of the Canadian Bill of Rights, was intended to give s11 a broader application than to mere “criminal offences”, Wilson J rejected this view in Wigglesworth.
The court adopted the conclusion of Toy J in R v Mingo:
In my respectful view, the authors of the new Charter, when they employed the unqualified word “offence” as opposed to “criminal offence”, were doing nothing more than providing for the equal protection of Canadian citizens from breaches of their rights under provincial as well as federal laws in so far as public as opposed to private or domestic prohibitions were concerned.339
Thus the Wigglesworth court preferred to restrict s11 to the most serious offences, i.e., criminal and penal matters, and to leave other “offences” subject to the more flexible criteria of fundamental justice in s7.
Wilson J said that:
In my view, if a particular matter is of a public nature, intended to promote public order and welfare within a public sphere of activity, then that matter is a kind of matter which falls within s11. It falls within the section because of the kind of matter it is. This is to be distinguished from private, domestic or disciplinary matters which are regulatory, protective or corrective and which are primarily intended to maintain discipline, professional integrity and professional standards or to regulate conduct within a limited sphere of activity….340
However, persons charged with private, domestic, or disciplinary matters may be able to rely on s11 if they involve the imposition of true penal consequences. Wilson J defined this as: “…imprisonment or a fine which by its magnitude would appear to be imposed for the purpose of redressing the wrong done to society at large rather than to the maintenance of internal discipline within the limited sphere of activity” (p402).
The court held that s11 applied to the proceedings Wigglesworth had faced in RCMP Service Court. But, he was not entitled to have the criminal charges stayed as there were two distinct delicts, or matters, which would sustain separate convictions. Madame Justice Wilson said:
The “offences” are quite different. One is an internal disciplinary matter. The accused has been found guilty of a major service offence and has, therefore, accounted to his profession. The other offence is the criminal offence of assault. The accused must now account to society at large for his conduct. He cannot complain, as a member of a special group of individuals subject to private internal discipline, that he ought not to account to society for this wrongdoing.341
Wilson J was aware that Wigglesworth was subject to one year’s imprisonment under the Royal Canadian Mounted Police Act, nonetheless she categorized the service court charge as an “internal disciplinary matter”.
It is clear that the Supreme Court of Canada has limited the application of s11(h) of the Charter to a narrow range of offences. In Shubley Cory J cited with approval Professor Stuart’s comments on the Saskatchewan Court of Appeal’s decision in Wigglesworth, that s11(h) should be given a broader application:
Section 11(h) provides protection only against double punishment. It might well be that some job-related disciplinary measures such as loss of work privileges, and even loss of qualification or job, should escape the net of s11(h). It would be strange if the imposition of such disciplinary measures could in effect exempt the accused from standing trial in a criminal court. Equally, a criminal prosecution should not insulate an accused from professional discipline. However, other punitive forms of disciplinary measures, such as fines or imprisonment, are indistinguishable from criminal punishment and should surely fall within the protection of s11(h).342
Such an interpretation was implemented in Peltari v The Director of the Lower Mainland Regional Correctional Centre et al,343where Gibbs, J held that the word “offence” in s11(h) means “conduct prohibited by law on pain or punishment”. In Peltari an inmate was acquitted of being unlawfully at large under the Criminal Code, but later was convicted of being unlawfully at large under the B.C. Correctional Centre Rules and Regulations. The court said that the test for whether a person has been subjected to double jeopardy contrary to s11(h) is: “are the offences identical in that they contain the same elements and constitute one and the same offence arising out of the same set of circumstances?” Gibbs J concluded that the offences were identical and quashed the subsequent disciplinary court conviction.
In light of Shubley344 and Van Rassef345 it would appear that Peltari is no longer good law. An issue that was left unresolved by Shubley is whether s7 of the Charter can be relied on by prisoners facing charges in criminal court and in disciplinary court. Madame Justice Wilson in Wigglesworth expressed the view that s11 should apply to only the most serious offences, and other “offences” should be considered under the more flexible criteria of s7. However, Shubley makes no reference to s7.
Section 11(h) arguments have been rejected in several other contexts. In a 15-year review under s745 of the Code the court said that s11 applies only to persons “charged with an offence”.346 A s745 review is commenced only after the inmate has served 15 years in prison, therefore s11 does not apply. The court also held that s11(d) of the Charter applies only to proceedings where the guilt or innocence of a person is to be determined.
In Belliveau v The Queen,347 the New Brunswick Court of Appeal said that charging a person criminally after having revoked his mandatory supervision because of the new offences, does not violate s11(h). Nor is there a violation of s11(h) when an inmate is punished in disciplinary court and then is subjected to a loss of earned remission, private family visits, or temporary absence passes.
Legislation permitting appeals by way of trial de novo is, however, inconsistent with s11(h). The Supreme Court of Canada in Corporation Professionnelle des Medecins du Quebec v Thibault (1988) 42 CCC (3d) 1, held that a provision which gives a prosecutor a second opportunity to try a case, even if the trial judgment was rendered according to law, is precisely the type of abuse that s11(h) seeks to prevent.
Several of the subsections in s11 of the Charter, other than ss11(h), were considered in Re Russell and Radley.348 The Federal Court held that prisoners retain the rights expressed in subsections (a), (b), (c), (g), (h) and (i) of s11, but ss(e) and (f) are of no application to inmates. Subsection (d) does have application, however, infringements of that subsection may be saved by s1 of the Charter as reasonable limits on prisoners’ rights so long as they are prescribed by law and demonstrably justifiable. So that, for example, a prisoner appearing in disciplinary court does not have a right to a “public hearing” because the opening of such proceedings to the general public would jeopardize the security of institutions, and the treatment and discipline of prisoners.
Subsection 11(b) was argued in R v Cardinal  6 WWR 62 (Alta CA),349,where the police had delayed executing warrants against the accused for 14 months until he was released on parole. The court found this process to be contrary to the purposes of parole and imprisonment, and ruled that there had been unreasonable delay contrary to s11(b). The charges were quashed.350
Judicial consideration was given to s11(i) in Re Mitchell and R,351 where a habitual criminal sought his release on habeas corpus with certiorari in aid, and pursuant to s24(1) of the Charter. The court held that s11(i) only applied to benefit the offender if the lesser penalty came into force before sentencing.352
For a further discussion of the Supreme Court of Canada in Shubley see “Solitary Confinement, Remission and Prison Discipline” by Allan Manson in 75 CR (3d) 356.
Section 12 — Cruel and Unusual Treatment or Punishment
The meaning of this section was considered in detail in Re Mitchell and R (supra)353 in relation to the continued detention of habitual criminals after the repeal of that status by Parliament. At the outset, the court determined that such detention was “punishment” notwithstanding that its primary purpose was for the protection of the public, and that in any event, it amounted to “treatment”. As to the standard to be applied in determining whether or not such treatment or punishment is cruel and unusual, the court went on to hold that the test was one of disproportionality. In other words, the central question was whether or not the treatment or punishment was disproportionate to the offence and the offender to the extent that it is so excessive as to outrage standards of decency and surpass all rational bounds of treatment or punishment. The court held that evidence that the treatment or punishment is unusually severe and excessive as not serving a valid penal purpose more effectively than less severe treatment or punishment would be sufficient to satisfy that test. Furthermore, evidence of arbitrary imposition of the treatment or punishment, though relevant, was not a prerequisite to a finding of disproportionality where the other factors are present. In the court’s view, public opinion should not playa part in the determination. On the facts, the court found that the prisoner’s incarceration for approximately 12 years as a result of property offences, was unduly severe, in light of the maximum limits of punishment for serious offences in the Criminal Code. Furthermore, the repeal of the legislation eliminated any general deterrent effect and it was found that individual deterrence had been satisfied by the imprisonment to date. In addition, the court was of the view that the purposes of retribution had been fulfilled and the question of reformation would be made more difficult by further incarceration. There was no evidence that the prisoner’s continued detention had been imposed arbitrarily, but on the facts the continued detention for an indefinite period was excessive. Consequently, the court found that the tests for cruel and unusual treatment or punishment had been met and that there was no evidence to justify the infringement of the applicant’s rights under s12 of the Charter by resort to s1, reasonable limits. However, this judgment was based on the assumption that the applicant was not dangerous and could not be shown to be a dangerous offender under the new legislation and judgment was reserved pending a further hearing on that issue. On resumption of the matter,354 the court found that the applicant had shown lack of dangerousness to the public and that he could not be shown to be a danger to society and be found to be a “dangerous offender” and consequently granted the writ of habeas corpus. It is interesting to note that the court put the onus on the applicant to establish, on the balance of probabilities, that he was not dangerous according to the criteria contained in s668 of the Criminal Code pertaining to “dangerous offenders”. To meet this burden, the applicant called evidence pertaining to his past record showing lack of violence and psychiatric evidence as to his lack of propensity for violence in the future. It is also of interest to note that the Parole Board reviewed the applicant’s case for parole between the first and second hearings in court and continued to deny him parole following the criteria for parole in the Parole Act.
Allegations of cruel and unusual treatment or punishment were also raised in relation to various practices in a remand facility in the case of Re Maltby (supra).355 The prisoners complained of limitations on access to recreational and educational facilities, including the use of handcuffs and shackles when prisoners were taken to and from the institution. The court dismissed the application, holding that the limitations imposed on the prisoners were mandated by legitimate security interests of the institution, as well as by the fact that remand prisoners were usually only held in such facilities for a brief period of time. In the court’s view, as long as the particular restrictions or conditions were reasonably related to a legitimate government objective, then those conditions or restrictions would not, without more, amount to unconstitutional punishment. If the conditions or restrictions were not reasonably related to such a legitimate objective, then they might amount to a constitutional violation. In the case of the use of handcuffs and shackles, the court held that there was no evidence to show that the practice was used without a valid reason and on the contrary, the evidence indicated that that practice was an extraordinary security measure used sparingly and with care, discretion and judgment. The court held that in the absence of substantial evidence to indicate an exaggeration by prison authorities, the court should defer to their expertise, in relation to policies and practices, that the administrators felt it necessary to preserve order and discipline and security in the institution. Similar issues in relation to remand facilities were raised in the case of Re Soenen and Thomas et al,356 where the complaints were in relation to contact visits, access to open-air exercise, searches and the manner of being processed on return to the institution. Visual rectal searches were conducted in the detention areas when searching for missing items and approved pesticides were used in processing prisoners on return from court or other facilities. Though the court dismissed the applications, s12 was thoroughly analyzed and a procedure to be followed in making a s12 allegation was suggested. The court held that the proper approach on such an allegation involving pretrial detainees was to determine, first of all, whether the act or conduct complained of amounted to “punishment”. If it did, then the court would hold that it was unconstitutional, as punishment may not constitutionally be inflicted upon remand prisoners. If the matters complained of were not “punishment”.. the court should go on to determine whether or not the practices amounted to “treatment”. In the court’s view, the word “treatment” is a broad one that would ordinarily encompass those matters involving pretrial detainees. The next question would involve a determination of whether or not the treatment is “cruel and unusual”. If the treatment is either cruel or unusual or both, indicating a violation of s12 rights, then the court should go on to consider the applicability of s1 of the Charter. In other words, it is inappropriate to commence the inquiry by using a balancing approach. A determination as to whether or not rights have been violated must take place first and only if a violation is found, does s1 come into play involving the balancing of individual interests against those of society. Thus, it was this court’s view that the principle of disproportionality ought not be applied in determining whether “treatment” is cruel and unusual, but only under s1 if that section is raised. In determining whether or not a matter is cruel and unusual, the court expressed the view that the following matters were relevant: (1) whether or not it is in accord with public standards of decency and propriety; (2) whether it is unnecessary because of the existence of adequate alternatives; (3) and whether or not the treatment can be applied on a rational basis and in accordance with ascertained or ascertainable standards.
In Collin and Nadeau v Kaplan and Yoemans,357 an application was brought on behalf of various prisoners for an injunction to prevent double bunking, alleging it to be cruel and unusual treatment or punishment, contrary to s12 of the Charter. The application was dismissed as only temporary double bunking was proposed and there was no proof that such a practice was cruel and unusual, although the court felt it was not a practice to be recommended. The prisoners attempted to rely on the United Nations Convention setting out the standard minimum rules for the treatment of prisoners358 but the court was not persuaded that it could rely on this convention as a basis for their entitlement to interlocutory injunction. The court did review United States authorities on double bunking and cruel and unusual treatment and relied upon the US Supreme Court decision in Rhodes et al v Kelly Chapman et al359 which held that five considerations relied upon by the lower courts were insufficient to support the conclusion of the lower courts that “double bunking” amounted to a constitutional violation. The five factors relied upon by the lower courts were, that the prisoners were serving long terms of imprisonment; that the prison housed 38% more prisoners than its capacity; that contemporary standards dictated that a prison inmate should have at least 50 to 55 square feet of living quarters as compared with the 63 square feet which double-bunked prisoners were sharing; a prisoner who is double bunked would spend most of his time in the cell with his cellmate; and that the prison had made double bunking a practice and it was not a temporary condition.
In Dubois v Sauve (supra)360 a challenge was made to a decision to transfer a model prisoner to administrative segregation and a special handling unit for policy reasons and it was argued that such detention violated s12. The court held that the modern definition of “cruel and unusual punishment” in penal law goes beyond “barbaric physical punishment” and includes “unnecessary and wanton infliction of pain…without penalogical justification”.361 The court said that this phrase must be understood in terms of “standards of decency that mark the progress of the maturing society”.362
In addition, the court held that the true purpose of the penal function is to “punish justly, to deter future crime, and to return imprisoned persons to society with an improved chance of being useful, law abiding citizens”.363 The application was dismissed on the basis that the prisoner was being treated essentially the same as other prisoners in terms of the cell occupied by him and the schedule of activities and that the isolation factor was being gradually relieved as he progressed through his rehabilitation efforts. On the other hand, in Hay v The National Parole Board (supra)364 the court arrived at the opposite conclusion on considering the transfer of a model prisoner for policy reasons from a minimum security prison back to a maximum security prison where there was no fault or misconduct on the part of the prisoner. In this case, the court found such treatment to be arbitrary, cruel and unusual and unfair and in violation of s7 of the Charter.
In Belliveau v The Queen (supra)365 it was held that the mandatory supervision provisions of the Parole Act involving loss of remission were not outrageous or excessive or beyond the rational bounds of morality, nor excessive or disproportionate and were in accord with Canadian standards of decency and propriety and could be applied on a rational basis in accordance with ascertainable standards and consequently, did not amount to a violation of s12.
Section 12 of the Charter was considered in Kindler v Minister of Justice of Canada — Unreported, December 20, 1988, No. A-81-87 (FCA). Kindler, a convicted murderer from the United States, sought relief by way of certiorari to prevent the Minister of Justice from surrendering him to the United States authorities without first seeking an assurance that the death penalty would not be used against him as provided for in Article 6 of the Extradition Treaty between Canada and the U.S. His application was dismissed and he appealed.
Marceau J in dismissing the appeal, based his decision on two propositions. The first being that capital punishment is not inevitably cruel and unusual punishment within the meaning of s12 of the Charter. The second proposition being that the Minister would only be required to seek and obtain assurances under s6 of the Treaty if the death penalty was per se a cruel and unusual punishment within the meaning of the Charter.
His Lordship concluded that:
“…for the Court to intervene, it does not suffice that the situation facing the fugitive in his country would not be in full accordance with the prescriptions of the Charter as we have come to see them in this country. It would be necessary that the situation “sufficiently shocks the conscience” (Schmidt v The Queen,  1 SCR 500 at 522), and be “simply unacceptable” (USA v Allard,  1 SCR 564 at 572), regardless of the Canadian context.” (p6)
And stated that:
“The punishment or treatment to which a fugitive is likely to be subjected, if returned to his country, may force the Minister to refuse to surrender him only if that punishment or treatment is one which is inherently and absolutely contrary to s12 of the Charter, torture being the easiest example. Otherwise, since the influence of the Canadian context is directly involved or an assessment of the circumstances of the foreign country is required, it should remain a question of executive discretion with which the courts ought not to intervene.” (p6-7)
In concurring reasons Pratte J said that it is common ground that the decision to surrender a fugitive must conform to the requirements of the Charter. But, he then held that s7 of the Charter does not prevent persons who face the death penalty from being extradited because a person can be deprived of the “right to life” so long as it is in accordance with the principles of fundamental justice. The deprivation of life is not in itself contrary to fundamental justice.
Pratte J then said:
“…I find it impossible to say that the death penalty is, in itself, a cruel and unusual punishment that is forbidden by s12 of the Charter when s7 of that same Charter expressly permits that a person be deprived of the right to life in accordance with the principles of fundamental justice.”
In dissenting reasons Hugessen J held that:
“…it is quite simply unthinkable that any Canadian court or government could countenance the extradition of any criminal, no matter how heinous his crime, to suffer torture at the hands of a foreign state.
A foreign punishment or treatment which falls within the proscription of s12 by being cruel and unusual creates a situation which, in the words of the quoted passage from Allard, is “simply unacceptable” to Canadians.” (p6)
Hugessen J then considered the cruel and unusual punishment issue. After citing with approval the dissent of Mcintyre JA (as he then was) in R v Miller and Cockriell 63 DLR (3d) 193 (BCCA), His Lordship said:
“Capital punishment is founded on no recognized sentencing principle and, since there is a valid, workable and acceptable alternative, is grossly disproportionate.” (p12)
Capital punishment being contrary to s12 of the Charter could not be justified under s1. Hugesson J concluded:
“…that capital punishment is cruel and unusual within the meaning of s12 of the Charter. For the Minister to surrender the appellant to suffer the death penalty at the hands of the American authorities would be simply unacceptable under our Constitution. That being so, the Minister has no discretion and no choice but to seek and obtain assurances under article 6 of the Treaty as a condition of surrendering the appellant.” (p16)
Section 13 — Self Crimination
The question frequently arises in prison related matters as to whether or not any statements or evidence given by a prisoner or parolee before various boards and tribunals affecting their existence, are admissible in subsequent criminal proceedings, or alternatively, whether or not evidence given in criminal proceedings might be admissible against them in subsequent prison or parole related proceedings. It should be noted that the protection is given to the witness who testifies in specific proceedings so that any evidence that incriminates that witness cannot be used against that witness in other proceedings, except in a prosecution for perjury or for the giving of contradictory evidence. The evidence given by other witnesses in criminal proceedings and indeed the evidence of the accused as a witness in criminal proceedings is frequently referred to or considered by prison and parole authorities in relation to subsequent decisions that have to be made affecting that accused witness throughout the course of their sentence. It is the converse situation involving a person who is compelled or otherwise feels obliged to make statements in disciplinary or parole suspension proceedings and is facing or who might face subsequent criminal proceedings that gives greater cause for concern. This issue has been addressed in relation to post suspension parole hearings in R v Carlson.366 In Carlson, the court in criminal proceedings held that by virtue of s13 of the Charter, the Crown could not lead in evidence in the criminal proceedings for manslaughter, statements made by the accused parolee at the post suspension hearing, even if the parolee was advised of his right to an assistant and it was made clear to him that he was not obliged to say anything regarding any outstanding charges at the post suspension hearing. The courts gave s13 of the Chartera broad and liberal interpretation and held that a parole hearing is a “proceeding” and that the statements made by the parolee are made as a “witness” even though such statements are not given under oath. The court said that though the word “testifies” usually signifies sworn evidence before a tribunal or officially constituted public body, that nevertheless the absence of an oath in the circumstances was not determinative as the accused parolee did appear before an officially constituted public body where he was required to assert his position and the consequences to him would be of great significance. The same issue does not appear to have arisen as yet in relation to disciplinary court proceedings inside prisons, although it has arisen in relation to the disciplinary proceedings of others, such as the legal profession. In Donald v Law Society of British Columbia,367the testimony of a lawyer defending a civil defamation suit was later admitted into evidence in disciplinary proceedings against him by the Law Society who found him guilty of professional misconduct. On appeal, the court held that the evidence incriminating him in the civil defamation proceedings could not be used in the subsequent disciplinary proceedings and that the words “any other proceedings” in s13 of the Charter would include any proceeding where one is exposed to a criminal charge, penalty or forfeiture.
Section 15 — Equality Rights
This section came into force on April 17th, 1985 and to date there do not appear to have been any cases arising in a prison or parole context. It is expected that this section will give rise to numerous applications in the future, bearing in mind the different treatment of male and female offenders, both federal and provincial, in numerous aspects of incarceration. It is likely that questions will arise around the different treatment of federal prisoners in different provinces, whether male or female prisoners, as well as around different circumstances within one province as between male and female offenders. For example, in relation to the searching of prisoners, it is provided that no female prisoner is to be searched except by a female person. No similar prohibition exists against the searching of male prisoners by female staff in federal prisons. In British Columbia, the provincial correctional legislation provides that searches must be conducted by persons of the same gender. It therefore seems likely that the federal provision does discriminate against male prisoners and denies them equal protection of the law. Though some lower courts have grappled with the meaning of various terms in s15, it is expected that it will be some time before any definitive guidance is provided by the Supreme Court of Canada.
Section 52 — The Supreme Law of Canadan
In all applications under the Charter, it is of fundamental importance to bear in mind the provisions of this section which provides that the Constitution of Canada is the supreme law of Canada and that any law that is inconsistent with the provisions of the Constitution is to the extent of the inconsistency of no force and effect. Consequently, where an application is made to declare that a particular law is inconsistent with the provisions of the Charter, it is this section which provides the ultimate remedy in having the law that is the subject of the challenge, declared unconstitutional as inconsistent. In Re Mason and The Queen, (supra)268 s24(2)(b) of the Parole Reguiations369 was held to be inherently unfair and in violation of s7 of the Charterand therefore of no force and effect under s52.
To maintain the balance between the legitimate interests of the government and the legitimate interests of the citizen, and to try and ensure that any conflict between the two is resolved in a peaceful manner, it becomes essential, particularly on behalf of the party with less power, to focus on the question of what remedies are available to ensure that the government powers so delegated are exercised in accordance with the law and that the parties affected thereby are similarly protected by the law. It should always be remembered that the lack of effective peaceful alternative remedies is a primary factor relied upon by those who resort to self-help or violence to achieve their objectives or to defend themselves. Consequently, the effectiveness of remedies provided by law can, to some extent, be measured in a prison law context by the amount of violence resorted to by prisoners in an endeavour to address what they consider to be legitimate grievances. To ensure that governments act within the Constitution and within the principle of fairness, depends to a great extent on the remedies available and the willingness of the courts to apply them to prevent injustices and to rectify them after they have occurred.
The remedies available to federal prisoners can be divided into two categories, the first consisting of internal remedies, such as the inmate grievance procedure and office of the Correctional Investigator (Ombudsman), and the second consisting of judicial remedies, in the Federal Court of Canada, both trial and appellant divisions, and in the provincial courts at all levels.
A. INTERNAL REMEDIES
1. The Grievance Procedure
The inmate grievance procedure is set out in Commissioner’s Directive 600.6.03.2370 entitled “Inmate Grievances and Appeals Against the Denial of a Claim Against the Crown” and in Commissioner’s Directive 600.6.03.3371 entitled, “Parolee Grievances”. The Commissioner’s Directives outline the general purpose and procedure for the grievance systems and are both supplemented by detailed Divisional Instructions that set out the specific procedures and rules. In relation to inmate grievances, Divisional Instruction 600.6.03.1372 deals with allocation of responsibilities and appointments, Divisional Instruction 600.6.03.2373 deals with handling and processing of inmate grievances and contains an annex indicating matters that are not grievable. Divisional Instruction 600.6.03.3374 deals with claims against the Crown and the appeal process. With respect to parolee grievances, Divisional lnstruction 600.6.03.4375 deals with the handling and processing of such grievances. The current Commissioner’s Directives and Divisional Instructions should always be consulted. Divisional Instructions are issued by Directors of divisions under the authority of the Commissioner of Corrections, pursuant to s7 of the Penitentiary Service Regulations.376
(a) The Inmate Grievance Procedure
The inmate grievance system is designed to provide redress to inmates who have been wronged while in confinement and all inmates have access to it, unless the Deputy Commissioner has imposed a limit on a particular inmate as to the number of grievances he may submit. The system is not to be suspended under any circumstances. The Directive sets out that there shall be no reprisal for proper use of the grievance system. Grievances may only be submitted with respect to matters coming within the jurisdiction of the Commissioner of Corrections and which occur during the period of the inmate’s confinement and which the prisoner feels has caused him a personal problem within the preceding two months. A prisoner must make a written complaint requesting corrective action from the institutional divisional head concerned, and can only submit the grievance if the matter has not been resolved and provided there are no other internal processes established for resolving the matter.
There are three levels within the grievance system. The first level involves an inmate grievance committee and the director of the institution. The second level involves the Deputy Commissioner of the region and the third level involves the Commissioner of Corrections or an officer delegated by him. The Commissioner of Corrections has delegated his authority to answer grievances to the Inspector General and in his absence, the senior Deputy Commissioner. The Deputy Commissioners in each region and directors in each region are required to designate, in writing, the officers authorized to act for them in answering grievances in their absences, or when they are unable to act. If there is no inmate grievance committee established or it is unable to fulfill its function, the director or his delegate are required to deal with the grievance at the first level. There is provision for an outside review board to which prisoners may submit the reply of the first level review. This review board has an advisory role to the director. Written answers, with reasons, must be given to written complaints and grievances in all cases and various time limits are set down in the Divisional Instructions. Grievances can either be upheld or denied or, if the matter is not within the jurisdiction of the Commissioner, or there is other internal means of redress, then the matter is to be considered non-grievable and rejected. If a complaint or grievance has been submitted and it is determined that the prisoner is pursuing an alternative remedy of any kind in a court, including matters within the jurisdiction of a justice of the peace, then the complaint or grievance is not to be responded to until the decision outside the institution has been handed down. This provision is of significance as a matter of law and would indicate that there is no requirement to exhaust the grievance procedure before resorting to legal remedies in the courts. Provision is made for the handling of emergency and sensitive complaints and grievances, as well as to allow prisoners to seek redress when corrective action promised in response to a complaint or a grievance is unreasonably delayed.
Provision is also made in the Divisional Instruction for the appointment of a grievance clerk from a list of prisoners selected by the voting members of the inmate grievance committee in the particular institution. The director of the institution can suspend or remove a prisoner from his position as grievance clerk. Similarly, the prisoner-appointed grievance clerk may decline to accept the position or may resign from the position at any time. The grievance clerk is required to inform and advise prisoners generally on the procedures, maintain appropriate forms, ensure that he is available during stated hours, assist prisoners in drafting complaints and grievances and keep records, as well as carrying out other duties requested by the grievance coordinator. They are not entitled to act as representatives at any stage during the proceedings and the director or the grievance coordinator may restrict access by the grievance clerk to certain files.
The grievance coordinators are designated members of staff who are required to advise the director on all matters concerning complaints and grievances and set up and monitor the procedures, arrange for briefing of prisoners on the procedures, ensuring that all written complaints are answered and files are set up and that those designated as emergency or sensitive complaints or grievances receive a response without delay. The grievance coordinator is also required to ensure that all grievances are properly registered and are, in appropriate cases, submitted to the inmate grievance committee and considered within five working days of receipt and that grievances dealt with by the first level are forwarded to the next higher level. They are also required to ensure that prisoners receive written acknowledgement of the date their grievance is received for transmission to the outside review board, that all grievances received for transmission to the second level are forwarded without delay and accompanied by all supporting documents and to follow up on any corrective action stated in answers to complaints or grievances.
Inmate grievance committees are required to consist of two prisoners from general population that are normally elected by the population, two alternate prisoner members, two staff members appointed by the director on a rotational basis and a non-voting chairperson who is appointed as needed by the grievance coordinator from a standing list of prisoners and staff who have indicated a willingness to serve in that capacity. In appropriate circumstances, there may be separate grievance committees for the general population, for segregation and for the protective custody prisoner population. Each committee has its own elected prisoner members, but the staff members, in the director’s discretion, may sit on the various grievance committees within an institution. Members of inmate committees are not eligible to serve on inmate grievance committees and prisoner members on inmate grievance committees hold office for six months and may be re-elected only once. Members of such committees may withdraw at any time or be suspended or removed by the director and no one who has an interest or who is any way involved or comes from the area of being grieved, is entitled to sit on an inmate grievance committee. Similarly, staff members who are on such committees are exempted from duty if their attendance would result in the closing of a shop or major activity area.
Outside review boards are composed of two volunteers who are members of the citizens advisory committee or some other community resource, who, at the director’s request, have agreed to serve. Such boards have two advisors, one from the staff appointed by the director and the other an inmate nominated by the person submitting the grievance.
Essentially, the system consists of a process where a prisoner who is seeking redress, who has not been able to resolve the matter in discussions with staff members, makes a written complaint pertaining to a matter that has caused the prisoner a personal problem within the last month. If the matter is an emergency, the sealed envelope containing the written complaint is to be marked and a more urgent procedure is set out. The same is true with respect to sensitive complaints that are required to be investigated within the greatest possible discretion. A prisoner who submits excessive complaints which are frivolous in nature may have the number of complaints he may submit limited. Provision is also made to allow the director to require the complainant to re-phrase his complaint if it does not conform to acceptable standards. On receipt of the complaint, the grievance coordinator registers the complaint and forwards it to the divisional head concerned. The divisional head is required to investigate the matter thoroughly and objectively without delay and wherever possible, interview the complainant and all other persons concerned to obtain full details in the matter. The divisional head may delegate others to perform the investigatory and interviewing tasks, but he must review the facts and sign for the response unless he is absent or unable to act. A reply, with reasons, must be submitted within five working days to the prisoner complainant through the grievance coordinator. If the complaint is valid, the divisional head is required to inform the prisoner of the corrective action proposed or recommended and estimated time required to complete the corrective action. If the corrective action requested by the prisoner is not appropriate and some other corrective action is intended, they are required to explain this to the prisoner. If the complaint is held to be invalid, the prisoner must be informed with reasons and advised of the subsequent procedure. If more time is required, the prisoner is to be informed, in writing, of the reasons for the delay and the amount of additional time required and the question of unreasonable delay is in itself a grievable matter. Complaints can be withdrawn in writing.
As previously stated, the written complaint procedure must be followed before a formal grievance can be filed. If the complaint is held invalid, a grievance can be submitted once again to the grievance coordinator and similar provisions are made for emergency and sensitive grievances as with written complaints. Grievances pertaining to medical diagnosis or treatment are required to be forwarded directly to the second level. Provision is also made for group grievances when a number of prisoners wish to associate themselves with a grievance or are personally affected by the subject matter of the grievance. A special procedure is set out for group grievances. Grievances that are frivolous may be limited in the same manner as written complaints. After the first level and when a grievance is submitted to the next higher level, written acknowledgement of receipt is required and the grievance must always be submitted to the next higher level no later than eight working days from the date when the prisoner receives a written answer to the grievance.
The inmate grievance committee is considered the first phase for processing grievances at the first level and that committee is required to deal with the grievance within five working days from receipt from the grievance coordinator. A fairly detailed hearing procedure is set out in the Divisional Instruction. Decisions and recommendations of the inmate grievance committee are decided by a majority vote and members dissenting from a majority vote may submit a separate report.
The second phase of the first level is the director of the institution who must also deal with the matter within five working days from receipt of the inmate grievance committee’s recommendation. If the grievance is rejected or denied at the first level, it may be submitted to the second level or a request for review of the grievance by the outside review board can be made.
The outside review board process is required to be completed within ten working days of the date the request for review is received by the grievance coordinator. Provision is made for a hearing in front of the outside review board and its recommendations, with reasons, are forwarded to the director with a copy to the Deputy Commissioner of the region.
If rejected at the first level, or proposed corrective action has not been taken within the estimated time, or reasonably soon thereafter, the grievance can be submitted to the Deputy Commissioner of the region. Once again, the answer and reasons of the Deputy Commissioner of the region must be given within ten working days of the date the grievance is received at Regional Headquarters.
Grievances at the third level can only be submitted to the Commissioner of Corrections if they have been rejected at the second level, or the proposed corrective action hasn’t been taken within the estimated time or reasonably soon thereafter. A grievance to the third level is submitted to the director of inmate affairs at National Headquarters with a copy to Regional Headquarters and is reviewed by the inmate affairs division prior to submitting its findings and recommendations to the Commissioner for decision. The same time limits and procedures set out for the second level apply to the third level.
There are provisions for the extension of these time limits. Provision is also made for a withdrawal of grievances and to cover the situation where a prisoner is released, prior to receiving an answer on his grievance. Prisoners who have been released may submit grievances no later than ten working days after their release, provided the grievance pertains to something that happened during the period of their confinement and which is grievable. They can appoint another prisoner still in confinement to represent them before the inmate grievance committee or outside review board.
Matters that are non-grievable are matters relating to the Privacy Act,377 including delays and appeals and issues pertaining to the content of files accessed under that Act, matters within the authority of the provinces or other agencies, such as the National Parole Board or the Correctional Investigator or his staff, matters involving claims against the Crown for loss of personal effects or compensation for work injuries, unless there has been no internal inquiry or there have been unreasonable delays in relation to such a matter, in which case the delays or lack of inquiry can be grieved. Similarly, matters pertaining to conviction and sentence or appeal in the courts or pertaining to the administration of justice that are not under the authority of the Commissioner of Corrections, or the treatment provided by individuals or organizations, including hospitals that are not under the Commissioner of Corrections’ jurisdiction are not grievable. Furthermore, decisions of independent chairpersons who are not responsible to the Commissioner of Corrections, as well as decisions taken by institutional chairpersons of disciplinary boards are not grievable. Finally, classification of inmate positions and means of redress with separate appeals that are provided to National Headquarters are not grievable.
(b) Appeals involving Claims against the Crown
In relation to appeals involving claims against the Crown, the Commissioner of Corrections has again delegated his authority to the Inspector General, or in his absence, the Senior Deputy Commissioner. Procedures are established in the Divisional Instructions to allow prisoners to appeal the denial of a claim against the Crown. Claims against the Crown seeking redress for injuries or loss of or damage to personal property are not grievable and must be proceeded with in accordance with the Crown Liability Act378 and the rules pertaining to inmate compensation administered by Labour Canada. Similarly, grievances cannot be submitted regarding the amount of any benefit or compensation awarded as the alternative appeal procedure set out in relation to claims against the Crown must be pursued. The only exception is when no required internal inquiry has been set up in such matters, or the time limit for the decision on the appeal has been exceeded and the claimant has not been notified of the delay. Provision is also made in relation to grievances commenced followed by a transfer of a prisoner to another institution and in relation to the confidentiality of information in grievances, the records and reports that are kept and a grievance manual is to be maintained in sufficient quantity in each institution for use by prisoners and staff.
When a prisoner makes a claim against the Crown and that claim is denied, or if he wishes to contest the amount of settlement awarded, there are provisions for an appeal within 30 days of receiving the notice of the outcome of the claim. The written appeals are forwarded to the assistant director of administration or to the superintendent if there is no such assistant director of administration. That person receiving the complaint is required to forward it to the regional manager of administration, who reviews the appeal and submits his findings and recommendations to the Deputy Commissioner of the region, who is required to inform the prisoner of his decision within 30 working days.
There is a further appeal to the Commissioner within eight working days of receipt of a decision from the Deputy Commissioner of the region. Once again, the inmate affairs division at National Headquarters investigates and reviews the matter and submits its findings and recommendations to the Commissioner, who is required to submit a written answer within 30 working days of receipt of the appeal.
If the claim is for an amount in excess of $100, but under $1,000, the assistant director of administration or the superintendent, on receipt of the appeal, is required to forward the matter directly to the director of the inmate affairs division at National Headquarters, who investigates and reviews the matter and submits his findings and recommendations to the Commissioner, who in turn must make a decision within 30 working days of receipt of the appeal.
If the claim is for an amount in excess of $1,000 and liability has been denied, and the prisoner continues to insist on payment, the director is required to forward the claim once again to the director of inmate affairs division at National Headquarters, who in turn will refer the matter to legal services for advice and once again, the Commissioner has to decide within 30 working days on receipt of the appeal.
(c) Parolee Grievances
With respect to parolee grievances, the purpose of that grievance system is to provide redress to parolees who feel they have been wronged while supervised on parole or mandatory supervision. This would include a prisoner on a day parole. When prisoners are released on parole, they are required to be advised of this procedure at their initial interview with the parole officer. Once again, they can only grieve matters within the jurisdiction of the Commissioner of Corrections and that have occurred while on parole or mandatory supervision and have caused them a problem within the preceding two months. Furthermore, before submitting a grievance, a written complaint seeking corrective action must be submitted to the area manager or section supervisor reporting to the district director or area manager or to the director of community correctional centre, or an officer in charge of a small parole office. Furthermore, if there are no other internal remedies established for resolution or redress and the matter has not been resolved by written complaint to the person specified, then and only then can a grievance be submitted.
Once again, there are three levels to the grievance system comprising the district director at the first level, the Deputy Commissioner of each region at the second level and the Commissioner of Corrections at the third level. The essential rules and procedures are very similar to the inmate grievance procedure.
It is expected that prisoners will first try to resolve matters in discussion with their parole officer, but if that fails to resolve the matter, then submit a written complaint and if that fails to resolve the matter, then submit a grievance. Provision is made for sensitive complaints and to limit excessive complaints. Written complaints must be dealt with within five working days. If the written complaint does not resolve the matter, a grievance can be submitted to a district director who similarly has five working days to answer the matter. If the matter is not resolved at that level, it can proceed to the second level involving the Deputy Commissioner of the region, who has ten working days to review and decide the matter. If that fails to resolve the matter, the third level grievance is to the Commissioner of Corrections and is dealt with through the director of the inmate affairs division at National Headquarters in the same manner as for inmate grievances generally.
Provision is made for withdrawal of grievances and to cover situations where a person is transferred within a region or between regions, as well as for the confidentiality of information and records and reports. If a grievance is submitted and then the prisoner or parolee’s warrant expires, the matter can be dropped or continued by leaving an address with the parole officer where answers can be forwarded. Furthermore, grievances can be submitted no later than ten working days after warrant expiry date, provided the grievance concerns something that happened to the parolee during the period of supervision and on a matter that is grievable.
Prisoners should be encouraged to use the complaint and grievance procedure on all suitable occasions. If it is ineffective, the best evidence of that will be in the record of the proceedings through the system. As a matter of fairness, it gives the staff and management an opportunity to hear a complaint and an opportunity to respond to it by corrective action or by at least stating their reasons in writing for not doing so. Resort to the grievance procedure is a mandatory prerequisite before a complaint can be lodged with the Correctional Investigator. Although not a mandatory prerequisite to judicial remedies, the record of proceedings throughout the grievance procedure will be an invaluable aid to counsel in assessing the merits for judicial action and avoiding the pitfalls suggested by Mr. Justice Pigeon in Martineau (No. 2), where he said as follows:
I must, however, stress that the order issued by Mahoney, J deals only with the jurisdiction of the Trial Division, not with the actual availability of the relief in the circumstances of the case. This is subject to the exercise of judicial discretion and in this respect it will be essential that the requirements of prison discipline be borne in mind, just as it is essential that the requirements of the effective administration of criminal justice be borne in mind when dealing with applications for certiorari before trial, as pointed out in AG Que v Cohen. It is specially important that the remedy be granted only in cases of serious injustice and that proper care be taken to prevent such proceedings from being used to delay deserved punishment so long that it is made ineffective, if not altogether avoided.379
And the comments of Mr. Justice Dickson in his concurring reasons:
5. It should be emphasized that it is not every breach of prison rules of procedure which will bring intervention by the Courts. The very nature of a prison institution requires officers to make “on the spot” disciplinary decisions and the power of judicial review must be exercised with restraint. Interference will not be justified in the case of trivial or merely technical incidents. The question is not whether there has been a breach of the prison rules, but whether there has been a breach of the duty to act fairly in all the circumstances. The rules are of some importance in determining this latter question, as an indication of the views of prison authorities as to the degree of procedural protection to be extended to inmates.380
2. The Correctional Investigator
The mandate of the Correctional Investigator is contained in Orders-in-Council PC 1973-1431, PC 1974-1696, PC 1976-1977, PC 1977-2801 and PC 1977-3209. The office commenced on June 5th of 1973 and was occupied by Miss Inger Hansen, ac, until October 1st, 1977. The position was temporarily assumed by her former assistant Mr. Brian McNally on September 19th, 1977, until November 15th, 1977, when Mr. Ronald L. Stewart became the new full time Correctional Investigator. The Correctional Investigator or Ombudsperson, as he is sometimes called, is a Commissioner, pursuant to Part II of the Inquiries Act,381 and holds office at pleasure. He is authorized to engage, with the concurrence of the Solicitor General of Canada, the services of such experts and other persons are as referred to in s11 of the Inquiries Act and he is required to submit an annual report to the Solicitor General of Canada regarding the problems investigated and action taken.
The mandate of the Correctional Investigator as set out in appropriate Orders-in-Council is as follows:
…to investigate, on his own initiative, on request from the Solicitor General of Canada, or on complaint from or on behalf of inmates as defined in the Penitentiary Act, and report upon problems of inmates that come within the responsibility of the Solicitor General of Canada other than problems raised on complaint
(a) concerning any subject matter or condition that ceases to exist or to be the subject of complaint more than one year before the lodging of the complaint with the Commissioner,
(b) where the person complaining has not, in the opinion of the Commissioner, taken all reasonable steps to exhaust available legal or administrative remedies, or
(c) concerning any subject matters or conditions falling under the responsibility of the Solicitor General of Canada that extend to and encompass the preparation and material for consideration of the National Parole Board,
and the Commissioner need to investigate if,
(d) subject matter of a complaint has previously been investigated, or
(e) in the opinion of the Commissioner, a person complaining has no valid interest in the matter.382
In addition, the Commissioner of Corrections has issued a Commissioner’s Directive No. 600.6.03.01383 pertaining to the Correctional Investigator. This Directive sets out the jurisdiction of the Investigator, his unlimited right of access to inmates in all Canadian penitentiaries by either regular announcement visits or irregular unannounced visits. Private interviews are to be arranged and the Investigator is to be provided with all the information he requests that pertains to any investigation including copies of documents for detention as required. Staff are directed to fully co-operate with the Correctional Investigator and correspondence from inmates to the Investigator is to be mailed unopened from the institution and correspondence from the investigator to inmates is to be delivered unopened to the inmate.
An important distinction that exists between the office of the Correctional Investigator and the office of a traditional Ombudsman is that the former reports to the Minister who has responsibility of the Canadian Corrections Service, namely the Solicitor General, and the latter reports directly to Parliament. This distinction has led to some criticism and scepticism being directed towards the office of the Correctional Investigator. The position of the present Correctional Investigator is succinctly stated in his Annual Report for 1977-78:
No matter how properly the Correctional Investigator performs his task, it will always be complicated under the present terms of reference. It is not so much whether there is actual direction by the Minister but how the office is perceived by the inmates. If the office appears to be part of the Ministry it loses credibility and the task becomes more difficult.
I reiterate, no interference has been encountered and none is anticipated but the Ombudsman can only be effective if the office maintains a high level of credibility.
…I merely wish to point out some of the difficulties inherent in the job of a Correctional investigator as compared with an Ombudsman who reports to Parliament.384
Legislative change to eliminate this distinction upon the creation of a federal Ombudsman, integrating the office of the Correctional Investigator as an assistant Ombudsman, has been considered by Parliament, but the proposals have yet to become law.385
The provision in the mandate requiring the person complaining to exhaust available legal or administrative remedies requires some comment. In practice, this phrase is interpreted to require the prisoner, except in delicate or urgent matters, to exhaust the inmate grievance procedure first. The intention is to avoid premature involvement on the part of the office of the Correctional Investigator and to bring about, through the use of the grievance procedure, a greater awareness by the administration of the nature of the complaints raised as well as weaknesses inherent in the grievance procedure itself. This condition precedent to the use of the office of the Correctional Investigator does not in practice require the prisoner to exhaust other legal remedies such as seeking relief in the courts. Similarly, a prisoner is not required to exhaust any remedy available within the mandate of the Correctional Investigator before he proceeds to seek relief in the court.
Prisoners should similarly be encouraged to use the office of the Correctional Investigator whenever appropriate after using the inmate grievance system. Once again, to those who might allege that the office is ineffective or unsatisfactory, the best evidence of that allegation will be the record of proceedings or communications supporting such an allegation. As previously stated, in some delicate or urgent situations, the Correctional Investigator will agree to become involved, prior to the use of the inmate grievance procedure. Similarly, in certain emergency situations, it will not be practical to resort to this office because of the further time that might be involved. It must be remembered that the Correctional Investigator cannot anticipate administrative action and therefore he can generally only be of assistance once action has been taken in an attempt to resolve a problem arising therefrom. Nevertheless, the record of communications with the Correctional Investigator and the decision arrived at by him after investigation, will undoubtedly prove invaluable once again to counsel in considering the merits of commencing a legal action and avoiding the pitfalls previously expressed.386
B. JUDICIAL REMEDIES
1. The Federal Court
In 1971, the Federal Court was created by the enactment of the Federal Court Act.387 Apart from continuing the jurisdiction of the old Exchequer Court and general jurisdiction over civil claims against the Crown, s18 of that Act gives the Trial Division of the Federal Court jurisdiction over the common law prerogative writs such as certiorari, prohibition, mandamus and quo warranto and with respect to injunctive and declaratory relief in relation to federal boards or tribunals. This involved a transfer of this jurisdiction in relation to federal boards or tribunals from the provincial superior courts. Jurisdiction over the writ of habeas corpus, except in relation to any member of the Canadian Forces serving outside Canada, remained with the provincial superior court. In addition, by s28, the Federal Court of Appeal was given the following jurisdiction:
28. Review of decisions of federal board, commission or other tibunal —
(1) Notwithstanding section 18 or the provisions of any other Act, the Court of Appeal has jurisdiction to hear and determine an application to review and set aside a decision or order, other than a decision or order of an administrative nature not required by law to be made on a judicial or quasi-judicial basis, made by or in the course of proceedings before a federal board, commission, or other tribunal, upon the ground that the board, commission or tribunal
- (a) failed to observe a principle of natural justice or otherwise acted beyond or refused to exercise its jurisdiction;
- (b) erred in law in making its decision or order, whether or not the error appears on the face of the record; or
- (c) based its decision or order on an erroneous finding of fact that it made in a perverse or capricious manner or without regard for the material before it.
(2) When application may be made — Any such application may be made by the Attorney General of Canada or any party directly affected by the decision or order by filing a notice of the application in the Court within ten days of the time the decision or order was first communicated to the office of the Deputy Attorney General of Canada or to that party by the board, commission or other tribunal, or within such further time as the Court of Appeal or a judge thereof may, either before or after the expiry of those ten days, fix or allow.
(3) Trial Division deprived of jurisdiction — Where the Court of Appeal has jurisdiction under this section to hear and determine an application to review and set aside a decision or order, the Trial Division has no jurisdiction to entertain any proceeding in respect of that decision or order.
(4) Reference to Court of Appeal — A federal board, commission or other tribunal to which subsection (1) applies may at any stage of its proceedings refer any question or issue of law, of jurisdiction or of practice and procedure to the Court of Appeal for hearing and determination.
(5) Hearing in summary way — An application or reference to the Court of Appeal made under this section shall be heard and determined without delay and in a summary way.
(6) Limitation on proceedings against certain decisions or orders — Notwithstanding subsection (1), no proceeding shall be taken thereunder in respect of a decision or order of the Governor in Council, the Treasury Board, a superior court or the Pension Appeals Board or in respect of a proceeding for a service offence under the National Defence Act.388
The enactment of these sections of the Federal Court Act led to a debate over the review jurisdiction between the Trial Division and the Court of Appeal. It was argued that s18 simply transferred jurisdiction from the provincial courts to the Trial Division of the Federal Court and that s28 removed that jurisdiction from the Trial Division giving it to the Court of Appeal, leaving s18 “sterile and without independent life”.389This debate was resolved by the decision of the Supreme Court in Martineau (No. 2)390 in which the Court held that the Trial Division has jurisdiction to grant an order in the nature of the writ of certiorari to quash the decision of a federal board or tribunal that was acting in a purely administrative capacity, or more accurately, that was “not required by law to act on a judicial or quasi-judicial basis” within the precise wording of s28. Notwithstanding this clarification of the jurisdiction of these courts, it is regrettably still necessary to classify or characterize the federal board or tribunal’s power as either administrative, quasi-judicial or judicial, in order to determine whether to commence proceedings in the Court of Appeal under s28 or in the Trial Division under s18. Further, the decisions of the Supreme Court of Canada in Martineau (No. 1)391 and in Martineau (No. 2)392 appear to decide that the jurisdiction of the Federal Court of Appeal under s28 is limited to the situation where the federal board or tribunal is “required by law” to act on a judicial or quasi-judicial basis and these words “by law” appear to have been narrowly interpreted to mean a requirement to act on a judicial or quasi-judicial basis imposed by the statute or regulations or some other form of “black letter” law as opposed to rules not having statutory force. When in doubt, the wisest course will be to commence proceedings in both courts, and by virtue of s28(3) to proceed with the application to the Court of Appeal first.
In addition, it must be remembered that the jurisdiction of the Trial Division under s18, and the Court of Appeal under s28, goes to a “federal board, commission or other tribunal” which is defined in s2(g) of the Federal Court Act to mean:
…any body or any person or persons having, exercising or purporting to exercise jurisdiction or powers conferred by or under an Act of the Parliament of Canada, other than any such body constituted or established by or under a law of a province or any such person or persons appointed under or in accordance with a law of a province or under s96 of The British North America Act,393
Thus care will have to be exercised to ensure that the intended respondents fall within this definition before proceedings are commenced. For example, in McNamara v Caros and Mendes,394 an application for an order in the nature of mandamus under s18 to compel an institutional physician to provide a prisoner with the essential medical treatment he requires in accordance with the Penitentiary Service Regulations and Directives was dismissed as against the institutional physician because it was held that such a physician was not, when acting in his professional capacity in the treatment of inmates, a “federal board, commission or tribunal” as defined.
As previously stated, jurisdiction over the writ of habeas corpus is still within the jurisdiction of the provincial superior courts. That jurisdiction includes the power to issue the writ of habeas corpus with certiorari in aid in circumstances where that writ is required to make the remedy of habeas corpus more effective. This is so, notwithstanding the jurisdiction of the Federal Court Trial Division under s18, in relation to certiorari to quash.395
Before proceeding to deal in detail with the specific remedies available under ss18 and 28 of the Federal Court Act and the remedies available in the provincial superior courts, the prospective litigant should also be aware of the further constitutional limits on the jurisdiction of the Federal Court in so far as it affects a claim for relief against the Crown or a Crown servant, for relief other than the kind of relief specified in ss18 and 28, such as a claim in tort for negligence or breach of statutory duty or a claim in breach of contract. By s101 of the British North America Act, the federal Parliament is empowered to establish a Federal Court “for the better administration of the laws of Canada”.396 Consequently, Federal Courts are confined to issues arising under “laws of Canada” and do not have the broader general jurisdiction of the provincial superior courts. It is apparently well settled that the phrase “laws of Canada” does not mean all laws in force in Canada whatever their source, but means federal laws such as federal statute law including regulations made under a federal statute.397 The difficulty arises when the claim is based on the common law, such as a claim in tort for negligence or breach of statutory duty, or when the claim is based on provincial statute laws. For a detailed consideration of these issues one should refer to two decisions of the Supreme Court of Canada, Quebec North Shore Paper Co v Canadian Pacific Ltd et al,398 and McNamara Construction (Western) Ltd et al v The Queen et al,399 as well, to the decision of the Federal Court Trial Division in Pacific Western Airlines Ltd and Canadian Acceptance Corporation Limited v R et al.400 For a more detailed consideration of these cases and the issues involved, reference should be made to a comment on the matter by Professor P.W. Hogg, appearing in the Canadian Bar Review.401
At present, it appears that the proper procedure to follow is to commence an action in the provincial superior court against the Crown servants or others, and commence a separate action in the Federal Court Trial Division against the federal Crown alone. Both actions will have to be proceeded with simultaneously in the absence of an agreement to the contrary. In the action in the Federal Court Trial Division, the plaintiff will be seeking to establish the liability of the federal Crown as being vicarious in relation to the Crown servants named in the action in the provincial superior court, and the plaintiff will be relying on the Crown Liability Act402 as the federal statute law, giving the Federal Court jurisdiction. The alternative would be to simply proceed against the Crown servants directly in the provincial superior courts seeking to hold them personally liable for any judgment obtained; or to simply proceed against the federal Crown in the Federal Court Trial Division seeking to have the particular Crown servant that you are interested in, nominated in the appropriate party to examine for discovery in those proceedings. Examples of prison cases that have proceeded in the provincial superior courts are Dodge v Bridger et al,403 a civil suit by a prisoner against various prison guards for assault in which both general and exemplary damages were recovered; Toews et al v MacKenzie et al,404 a claim by a passenger in a vehicle driven by a prisoner while out on temporary absence, suing both the prisoner driver, the owner of the vehicle and the warden of the prison, alleging negligence on the part of the warden in releasing the prisoner on the pass. The action against the warden was dismissed. Examples of cases that have proceeded in the Federal Court against the Crown alone are Timm v R,405 a claim by a prisoner for compensation for injuries sustained when he fell from an open truck while being transported under guard as one of a work party from the penitentiary to a nearby quarry; the claim was dismissed. Daoust v R,406 a claim by a prisoner for medical malpractice on the part of the institutional physician; the claim succeeded. MacLean v R,407 a claim by a prisoner who sustained injuries while working under supervision in the prison; the Supreme Court of Canada allowed an appeal from the Exchequer Court which had dismissed the claim. The prisoner was totally and permanently crippled for life and was awarded damages in the amount of $75,000. In Howley v R,408 a prisoner claimed damages sustained as a result of an injury inflicted by another prisoner alleging that the prison authorities knew or ought to have known that his assailant was dangerous and should have taken precautions to prevent the assault: the claim was dismissed.
(a) Section 28 — An Application to the Federal Court of Appeal to Review and Set Aside the Decision or Order of a Federal Board, Commission or other Tribunal
As previously stated, the jurisdiction of the Court of Appeal under this section has been the subject of some controversy. The key words giving rise to the various problems are “other than a decision or order of an administrative nature not required by law to be made on a judicial or quasi-judicial basis”. In other words, the Court of Appeal has jurisdiction if the decision or order in question is “required by law to be made on a judicial or quasi-judicial basis”. The decisions of the Supreme Court of Canada in Martineau (No. 1)409 and in Martineau (No.2)410 clearly establish that this remedy is not available to review or set aside the decision of an Inmate Disciplinary Board, where the rules of procedure before the Board are set down in Commissioner’s Directives which the courts have held do not have the force of “law”. The decision of the Disciplinary Board was therefore characterized as a decision or order “not required by law to be made on a judicial or quasi-judicial basis”. The judgments in both Martineau cases appear to suggest that the meaning of “required by law” contemplates a requirement imposed by “black letter law”, such as a statute or regulation and that a legal requirement imposed by implication of common law or otherwise will not suffice. Bearing that prescription in mind, further criteria for determining the jurisdiction of the Court of Appeal under this section were enunciated by Dickson, J in Minister of National Revenue v Coopers and Lybrand411 where he said as follows:
It is possible, I think to formulate several criteria for determining whether a decision or order is one required by law to be made on a judicial or quasi-judicial basis. The list is not intended to be exhaustive.
- (1)Is there anything in the language in which the function is conferred or in the general context in which it is exercised which suggests that a hearing is contemplated before a decision is reached?
- (2)Does the decision or order directly or indirectly affect the rights and obligations of persons?
- (3)Is the adversary process involved?
- (4)Is there an obligation to apply substantive rules to many individual cases rather than, for example, the obligation to implement social and economic policy in a broad sense?
These are all factors to be weighed and evaluated, no one of which is necessarily determinative. Thus, as to (1), the absence of express language mandating a hearing does not necessarily preclude a duty to afford a hearing at common law. As to (2), the nature and severity of the manner, if any, in which individual rights are affected, and whether or not the decision or order is final, will be important, but the fact that rights are affected does not necessarily carry with it an obligation to act judicially. In Howarth v National Parole Board,412 a majority of this Court rejected the notion of a right to natural justice in a parole suspension and revocation situation. See also Martineau and Butters v Matsqui Institution Disciplinary Board.413
In more general terms, one must have regard to the subject-matter of the power, the nature of the issue to be decided, and the importance of the determination upon those directly or indirectly affected thereby: see Durayappah v Fernando.414 The more important the issue and the more serious the sanctions, the stronger the claim that the power be subject in its exercise to judicial or quasi-judicial process.
The existence of something in the nature of a lis inter partes and the presence of procedures, functions and happenings approximating those of a Court add weight to (3). But, again, the absence of procedural rules analogous to those of Courts will not be fatal to the presence of a duty to act judicially.
Administrative decision does not lend itself to rigid classification of function. Instead, one finds realistically a continuum. As paradigms, at one end of the spectrum are rent tribunals, labour boards and the like, the decisions of which are eligible for judicial review. At the other end are such matters as the appointment of the head of a Crown corporation, or the decision to purchase a battle ship, determinations inappropriate to judicial intervention. The examples of either end of the spectrum are easy to resolve, but as one approaches the middle the task becomes less so. One must weigh the factors for and against the conclusion that the decision must be made on a judicial basis. Reasonable men balancing the same factors may differ, but this does not connote uncertainty or ad hoc adjudication; it merely reflects the myriad administrative decision-making situations which may be encountered to which the reasonably well-defined principles must be applied.415
Dickson, J then goes on to refer to an article entitled “Fairness: The New Natural Justice?416 by Professor D.J. Mullan, who expressed the matter as follows:
Why not deal with problems of fairness and natural justice simply on the basis that, the nearer one is to the type of function requiring straight law/fact determinations and resulting in serious consequences to individuals, the greater is the legitimacy of the demand for procedural protection but as one moves through the spectrum of decision-making functions to the broad, policy oriented decisions exercised typically by a minister of the Crown, the content of procedural fairness gradually disappears into nothingness, the emphasis being on a gradual disappearance not one punctuated by the unrealistic impression of clear cut divisions presented by the classification process?
In the case of Howarth v National Parole Board417 referred to by Dickson, J (as he then was) the Supreme Court of Canada ruled that there was no jurisdiction under s28 of the Federal Court Act to review and set aside a decision of the National Parole Board in a parole suspension and revocation situation. Since that decision, it should be noted, that there have been a number of significant amendments to both the Parole Act and Regulations which may well have changed the situation completely. Whereas by s6 of the Act the Board is still given “exclusive jurisdiction and absolute discretion to grant or refuse to grant parole or a temporary absence without escort pursuant to the Penitentiary Act and to revoke parole or terminate day parole,”418nevertheless, s13 has been amended to provide that “…subject to such Regulations as the Governor-in-Council may make in that behalf, the Board is not required, in considering whether parole should be granted or revoked, to personally interview the inmate or any person on his behalf”.419
The Governor-in-Council has passed Regulations,420 s15 of which requires that reviews for the purposes of determining whether or not to grant full parole are to be conducted by way of a hearing before not less than two members of the Board, unless the inmate requests otherwise, or the inmate is in a provincial institution. If it is not possible to comply with this provision because the inmate is not in lawful custody, the Board is required to carry out the review as soon as practical after the inmate is returned to custody. Section 17 requires the Board to furnish an inmate, whose case is to be reviewed for full parole, orally, or in writing, with all relevant information in the possession of the Board, and by virtue of subs (2) when the Board decides to provide the information in writing it must do so at least fifteen days before the review hearing. The Board is not required to furnish information contained in the documents prepared before the coming into force of s17 (effective June 1,1978) nor any of the information described in paragraphs 54(a) to (g) of the Canadian Human Rights Act.421 Section 19 requires the Board to give written or oral reasons for its decision and if the decision is not to grant full parole, the Board must inform the inmate in writing within fifteen days. Further, s20 of the Regulations, supra, provides that upon suspension of a parole and upon referral of the case to the Board, the inmate can apply for a post-suspension hearing within fifteen days of the date of the referral to the Board and then the Board is required to commence a hearing as soon as practical thereafter and inform the inmate of the date of the hearing at least fourteen days before the date that the hearing is to commence. Section 21 requires the Board to notify the inmate in writing of a decision to revoke his parole and of the reasons therefore. In addition, s22 entitles an inmate to ask for the re-examination of a Board decision to deny full parole or to revoke parole. If the request is received within thirty days from the date of the Board’s decision, the Board is mandatorily required to cause the decision to be re-examined by Board members who did not participate in the original decision being re-examined. If the request is not received within thirty days the Board has the discretion as to whether or not to re-examine the decision. These requirements for hearings, providing the inmate with relevant information and with reasons for decisions, having been promulgated in the Regulations, which clearly have the force of law, may be sufficient to characterize National Parole Board decisions as being “required by law to be made on a judicial or quasi-judicial basis”. The Federal Court of Appeal would then have jurisdiction to review and set aside such decisions on any of the grounds specified in s28 of the Act. If this characterization is incorrect, then the parolee’s remedy will lie under s18 of the Act at Trial Division.
In this regard, one should also give consideration to the meaning of the words “prescribed by law” in s1 of the Charter, the words “supreme law of Canada” in s52 and the words “law” in various parts of s15 of the Charter.422
(b) Section 18 — Application to the Federal Court Trial Division for an injunction, Writ of Certiorari, Prohibition, Mandamus, Quo Warranto, or for Declaratory Relief or Relief in the nature thereof against any Federal Board, Commission or other Tribunal.
(i) Injunction — An injunction is an equitable remedy which may be granted by a court to restrain one party from invading the rights of another or continuing such invasion or on occasion may be issued in a mandatory form compelling the invading party to restore matters to the positi6n in which they stood prior to his action. It can be issued on an interlocutory or interim basis during the course of an action for the purpose of preventing injury prior to the trial of the action on the merits, at which time a permanent injunction might be sought.
In applying for injunctive relief in the Federal Court it has been held that the relief must be sought by way of an action commenced in a normal manner by the issuing of a Statement of Claim and not by way of an Originating Notice of Motion with Affidavit material in support. This was decided by Addy, J in Dantex Woollen Co Inc v Minister of Industry Trade and Commerce et al423 where he stated as follows:
Injunctive relief must be sought by way of an action commenced in a normal manner by the issuing of a Statement of Claim. A motion for an interim or interlocutory injunction may of course be entertained before the action is heard. A Notice of Motion may be served either at the same time or following the issuing of the Statement of Claim. In cases of special urgency, a motion for interim relief may be launched previous to the instituting of the action, but would normally only be entertained when there is an understanding by the applicant to forthwith issue a Statement of Claim to support the motion.
In a prison law context, this point was made and the Dantex case referred to by Collier, J in Bruce and Meadley v The Commissioner of Corrections et al.424 This was a case in which the applicants, a federal prisoner and his fiancée, sought an injunction or relief in the nature thereof, restraining the Commissioner of Corrections and the Regional Director General in British Columbia from transferring the prisoner from British Columbia to Ontario pursuant to s15(3) of the Penitentiary Act,425pending compliance with the general duty of fairness towards the applicants.425a The applicants wanted the transfer restrained until they were provided with the full details of the case against them in relation to the proposed transfer and were afforded a fair opportunity of answering it. Further, they wanted the transfer stopped pending the completion of all legal action in which they, either individually or together, were involved and that were pending before the courts in the province of British Columbia and pending compliance with all applicable provisions of the Canadian Bill of Rights.426 The applicants proposed to marry and the Director of the British Columbia Penitentiary had refused permission. They took proceedings in the Federal Court challenging that decision and included in that application a claim for an injunction to prevent the contemplated transfer. However, that earlier application was dismissed by Walsh, J427 who held that that particular aspect of the earlier proceedings was premature because no final decision to transfer had been made. The proceedings challenging the Director’s refusal to permit the marriage were dismissed and an appeal was launched.428 In addition, the applicant, Bruce, was acting as his own counsel on an appeal from a conviction of a criminal offence and certain other criminal charges were still pending against him in the courts in British Columbia in which he proposed to similarly act as his own counsel. At the hearing of the application, counsel for the respondents chose not to rely on the procedural objection and consented to having the matter heard on the merits. The matter consequently proceeded as if the Originating Notice of Motion was a Statement of Claim seeking final injunctive relief, although Collier, J made it clear in his reasons that he did not endorse the procedure followed as any kind of precedent.429 A similar course of procedure was adopted in the Danfex430 case after special leave was granted by Addy, J who similarly made it clear to counsel that this procedure was not to be considered a precedent to the effect that final injunctive relief is normally to be granted by way of motion unsupported by an action. Addy, J then went on to say:
The present method of proceeding should not be adopted unless there exists very exceptional circumstances and should not be followed where there is formal objection thereto by a respondent, as the latter is normally entitled to pleadings, pretrial discoveries and a trial on oral evidence before the matter is finally disposed of.431
For a consideration of the principles involved in the granting of injunctions the reader is referred to the case of American Cyanamid Co v Ethicon Ltd432 where Lord Diplock in giving judgment for the court provides a general statement as follows:
My Lords, when an application for an interlocutory injunction to restrain a defendant from doing acts alleged to be in violation of the plaintiff’s legal right is made on contested facts, the decision whether or not to grant an interlocutory injunction has to be taken at a time when ex hypothesi the existence of the right or the violation of it, or both, is uncertain and will remain uncertain until final judgment is given in the action. It was to mitigate the risk of injustice to the plaintiff during the period before that uncertainty could be resolved that the practice arose of granting him relief by way of interlocutory injunction; but since the middle of the 19th century this has been made subject to his undertaking to pay damages to the defendant for any loss sustained by reason of the injunction if it should be held at the trial that the plaintiff had not been entitled to restrain the defendant from doing what he was threatening to do. The object of the interlocutory injunction is to protect the plaintiff against injury by violation of his right for which he could not be adequately compensated in damages recoverable in the action if the uncertainty were resolved in his favour at the trial; but the plaintiff’s need for such protection must be weighed against the corresponding need of the defendant to be protected against injury resulting from his having been prevented from exercising his own legal rights for which he could not be adequately compensated under the plaintiff ‘s undertaking in damages if the uncertainty were resolved in the defendant’s favour at the trial. The court must weigh one need against the other and determine where “the balance of convenience” lies.
He then goes on to reject the “prima facie case” test and then sets out the following guide lines:
In Bruce and Meadley v The Commissioner of Corrections434 an application for injunctive relief to restrain a transfer was dismissed. Collier, J rejected the notion of any general principle existing that an inmate who is to be transferred must be told of the “case for transfer” and given an opportunity to reply. He left open the question of whether or not a decision to transfer in some circumstances might point to a right to question the decision on grounds of lack of fairness. However, he could find no unfairness in law in the circumstances of that case. For an example of a prison law case in which an interlocutory injunction was successfully obtained, see Gunn v Yeomans et al.435 In that case the plaintiff prisoner sought an interlocutory injunction restraining the commissioner of corrections and the Director of Matsqui Institution in British Columbia from ordering any further searches of his person except those in accordance with s41(2) of the Penitentiary Service Regulation,436 pending the trial of the action, where he would seek similar relief by way of a permanent injunction. At trial, he sought a declaration that any Commissioner’s Directives or other subordinate orders, inconsistent with the provisions of the Regulations, were unlawful to the extent of any such inconsistency and that certain orders made to him by certain officers, which he refused to obey, were not lawful orders; and that a subsequent Disciplinary Board decision convicting him of disobeying a lawful order were not conducted fairly. A further interlocutory injunction application to restrain the Director of the Institution from imposing the suspended sentence imposed by the Disciplinary Board pending the trial of the action was abandoned on the defendant’s undertaking not to impose the sentence, which expired in any event days thereafter. As a result of an incident in the Institution several weeks before, involving another inmate, the Director had decided that all inmates going out of and returning to the Institution would be subjected to “skin frisks” or complete body searches. The plaintiff was required to attend outside the Institution for medical purposes and had no previous history of any violence of any consequence inside the prison. Walsh, J found that the Regulation, as drawn, required “specific suspicion of a given individual on reasonable grounds”437 before he could be searched. In his view, “it would require stronger wording to justify a general body search of the type indicated of all inmates on leaving or entering the institution, however desirable, useful or even necessary such a search may be”438 He pointed out that “if greater powers of search were necessary then the Regulation should be amended to provide for this.”439 He therefore found that “at least an arguable case for the granting of an injunction”440 had been made out and granted the relief sought. At trial, Cattanach, J made the injunction permanent and granted the declaratory relief sought.
(ii) Certiorari — The remedy of certiorari originated as a writ that issued from a superior court upon the complaint of a party that he had not received justice in an inferior court or could not receive an impartial trial in the inferior court. The effect of the writ was to call up the records of the inferior court to be examined by the superior court and if the complaint was found to be valid, the superior court would quash or set aside the decision of the inferior court. Over the years, the breadth or ambit of this writ was expanded to reach inferior tribunals, not courts in a strict Sense, that could nevertheless be characterized as performing judicial or close to judicial functions. For a long time it was thought that the availability of this remedy was limited to such situations as opposed to being a flexible remedy which would vary from time to time to meet the changing conditions of the exercise of government powers. This notion was unequivocally rejected in England in the decision of the House of Lords in Ridge v Baldwin.441 Since that time a flexible attitude towards the application of this remedy has been exhibited time and time again by the courts in England. It is now clearly established in that jurisdiction that the remedy is available to review the decision of a public administrator to ensure compliance by that administrator with what has become known as his “duty to act fairly” in a procedural sense, by giving any party affected by his decision an opportunity to know the case against him and a fair opportunity of responding to it. In Canada, this development did not occur until the decision of the Supreme Court of Canada in Nicholson v Haldimand-Norfolk Regional Board of Commissioners of Police,442 where the court found that a duty of fairness rested upon the police commissioners in dismissing a probationary constable. Judicial review was granted in that case under the provisions of the Judicial Review Procedure Act of Ontario.443 The jurisdiction of the Federal Court Trial Division in this regard was finally established by the decision of the Supreme Court of Canada in Martineau (No. 2).444 In that case, the applicant Martineau initially applied for judicial review under s28 of the Federal Court Act to the Court of Appeal. His application was dismissed by the Federal Court of Appeal445 and that dismissal was affirmed by a majority of the Supreme Court of Canada.446 In the s28 application, the Supreme Court of Canada ruled that the Commissioner’s Directives that set up the procedure governing the prison Disciplinary Board did not have the force of “law” and consequently the decision or order in question was not “required by law” to be made on a “judicial or quasi-judicial basis” within the meaning of the terms used in s28. Martineau then continued proceedings under s18 to the Trial Division, which had been held in abeyance pending the s28 application. Mahoney, J447 in the Trial Division concluded that that court had jurisdiction in the circumstances; but his decision was subsequently reversed unanimously by the Federal Court of Appeal.448 The Federal Court of Appeal ruled (prior to the decision in Nicholson) that the writ of certiorari continued to have application only where the decision attacked is either judicial in character or is required by law to be made on a judicial or quasi-judicial basis and because of the earlier decision of the Supreme Court of Canada in Martineau (No. 1)449 characterizing the decision or order as not being judicial or quasi-judicial, it followed that the remedy of certiorari was not available in the circumstances. The Supreme Court of Canada subsequently reserved the Federal Court of Appeal and restored the judgment of Mahoney, J in the Trial Division.450 This case now authoritatively establishes that the remedy of certiorari may be available in the case of a violation of the duty to act fairly in an administrative decision.
In Martineau (No.2)451 the reasons of the court were delivered by Mr. Justice Pigeon and were concurred in by five other judges. Reasons concurring in the result were delivered by Mr. Justice Dickson and were concurred in by the Chief Justice and Mr. Justice Maclntyre. In both sets of reasons reference is made to the decision of the United Kingdom Court of Appeal in R v Hull Prison Board of Visitors, ex parte St Germain et al,452 a case dealing with the review of prison disciplinary matters in England. It will be important, in considering the remedy of certiorari in prison matters in the future, to bear in mind that the court has a discretion to grant, or refuse to grant, the remedy in the circumstances of the case and to heed the warnings set out in the judgments in Martineau (No.2)453 as to the circumstances in which the remedy might be granted. Pigeon, J quotes from the headnote in the St Germain454 case in part as follows:
…Although proceedings of boards of visitors in respect of offences against discipline are subject to judicial review by the courts, such interference will only be justified if there has been some failure to act fairly, having regard to all relevant circumstances, and such unfairness can reasonably be regarded as having caused a substantial, as distinct from a trivial or merely technical, injustice which is capable of remedy. Moreover the requirements of natural justice are not necessarily identical in all spheres.455
He then goes on to say:
…the actual availability of the relief in the circumstances of the case. This is subject to the exercise of judicial discretion and in this respect it will be essential that the requirements of prison discipline be borne in mind, just as it is essential that the requirements of the effective administration of criminal justice be borne in mind when dealing with applications for certiorari before trial, as pointed out in AG Que v Cohen.456 It is specially important that the remedy be granted only in cases of serious injustice and that proper care be taken to prevent such proceedings from being used to delay deserved punishment so long that it is made ineffective, if not altogether avoided.457
Similarly, Dickson, J in his reasons states the following:
5. It should be emphasized that it is not every breach of prison rules of procedure which will bring intervention by the courts. The very nature of a prison institution requires officers to make ‘on the spot’ disciplinary decisions and the power of judicial review must be exercised with restraint. Interference will not be justified in the case of trivial or merely technical incidents. The question is not whether there has been a breach of the prison rules, but whether there has been a breach of the duty to act fairly in all the circumstances. The rules are of some importance in determining this latter question, as an indication of the views of prison authorities as to the degree of procedural protection to be extended to inmates.458
Notwithstanding these words of caution, the following additional comments in Dickson, J’s judgment are worth noting:
The term ‘rights of subjects’ has given concern, often being treated by Courts as the sine qua non of jurisdiction to permit review. There has been an unfortunate tendency to treat ‘rights’ in the narrow sense of rights to which correlative legal duties attach. in this sense, ‘rights’ are frequently contrasted with ‘privileges’, in the mistaken belief that only the former can ground judicial review of the decision-maker’s actions.459
When concerned with individual cases and aggrieved persons, there is the tendency to forget that one is dealing with public law remedies, which, when granted by the Courts, not only set aright individual injustice, but also ensure that public bodies exercising powers affecting citizens heed the jurisdiction granted them. Certiorari stems from the assumption by the Courts of supervisory powers over certain tribunals in order to assure the proper functioning of the machinery of Government. To give a narrow or technical interpretation to ‘rights’ in an individual sense is to misconceive the broader purpose of judicial review of administrative action. One should, I suggest, begin with the premise that any public body exercising power over subjects may be amenable to judicial supervision, the individual interest involved being but one factor to be considered in resolving the broad policy question of the nature of review appropriate for the particular administrative body.460
Later in his judgment, after referring to the judgment of the Chief Justice, speaking for the majority of the court in the Nicholson 461 case where the Chief Justice quoted a passage from Lord Denning’s judgment in Selvarajan v Race Relations Board,462 Dickson, J quotes from the same passage of the Master of the Rolls’ decision in Selvarajan as formulating the “fundamental rule”:
that, if a person may be subjected to pains or penalties, or be exposed to prosecution or proceedings, or deprived of remedies or redress, or in some such way adversely affected by the investigation and report, then he should be told the case made against him and be afforded a fair opportunity of answering it. (p. 19)463
Dickson, J goes on to note that it is of particular interest that this passage utterly ignores the imprecise “rights/privileges” dichotomy. After reviewing appropriate authorities, Dickson, J rejects the concept of any Rule bf Law to the effect that there exists a domestic “discipline” exception to the scope of certiorari . Finally, dealing with the content of the principles of natural justice and fairness he says that the content will vary according to the circumstances of each case as recognized by Tucker, LJ in Russell v Duke of Norfolk,464 and concludes that the underlying question which the courts will seek to answer in all cases dealing with natural justice and fairness is:
Did the tribunal on the facts of the particular case act fairly toward the person claiming to be aggrieved?465
It should be born in mind that since the Charter has come into effect, there have been a number of cases which have held that s7 of the Charter applies to various prison related matters and that the rights provided in s7 to the effect that one has the right to life, liberty and the security of the person and the right not to be deprived thereof, except in accordance with the principles of fundamental justice, have been held to enhance various prisoners’ rights. Consequently, the issue in a prison related case might not be limited to the application of the “duty to act fairly” and might involve a consideration of whether or not the tribunal in question has complied with the “principles of fundamental justice” which may, depending upon the circumstances of the case, involve more than the duty to act fairly. Counsel should therefore give consideration to joining with the application for certiorari under s18, an application for relief under s24(1) of the Charter claiming a violation of s7 rights.466
(iii) Prohibition — The writ or remedy of prohibition, like certiorari, issues from a superior court to an inferior tribunal to prevent the inferior tribunal from proceeding to hear or determine a particular matter on the grounds that the hatter is beyond or in excess of the jurisdiction of the particular tribunal. In other words, it is designed to prevent the inferior tribunal from exceeding its powers.
Like the remedy of certiorari, the remedy of prohibition was once thought to be limited to those cases where the function of the inferior tribunal in question could be characterized as judicial or quasi-judicial. The long line of English authorities commencing with Ridge and Baldwin467 provide ample authority that no such limitation exists. Roskil, LJ in Re Liverpool Taxi Owners’ Association468 perhaps best expresses the matter as follows:
The power of the court to intervene is not limited, as once was thought, to those cases where the function in question is judicial or quasi-judicial. Modern cases show that this court will intervene more widely than in the past. Even where the function is said to be administrative, the court will not hesitate to intervene in a suitable case if it is necessary to secure fairness….The long legal history of the former prerogative writs and of their modern counterparts, the orders of prohibition, mandamus and certiorari shows that their application has always been flexible as the need for their use in differing social conditions down the centuries had changed.469
As a result of the decisions of the supreme court of Canada in Nicholson 470 and Martineau (No. 2)471 the same principles now apply in Canada and are equally applicable to the remedy of prohibition as to certiorari . The decision in Martineau (No. 2)472 is particularly relevant in considering this remedy under s18 of the Federal court Act, and a party considering the use of this remedy should refer in particular to the guidelines arid principles set out in the judgment of Dickson, J in that decision. As previously indicated, consideration should be given to joining an application for relief under s24(1) of the Charter if Charterrights have been affected in circumstances of the case.
(iv) Mandamus — The writ or remedy of mandamus is once again, a remedy issuing out of a superior court and directed to an inferior tribunal or body, commanding the performance by that inferior tribunal or body of a specified act within the scope of its duty or power or directing the restoration of certain rights or privileges of which the party complaining claims to have been illegally deprived. In short, it is designed to compel a public official to do something that they have a legal or public duty to do.
Once again, the guidelines and principles set out in the decision of the Supreme Court-of Canada in Martineau (No.2)473are applicable in relation to this remedy and in particular reference should be made to the judgment of Dickson, J who extensively canvasses the numerous English decisions that have application.
In Bruce and Meadley v Reynett et at474 the applicants, in addition to various other forms of relief, sought mandamus to compel the Director of the British Columbia Penitentiary to construe and apply the laws of Canada conferring jurisdiction upon him in a manner so as not to abrogate, abridge or infringe, or to authorize the abrogation, abridgment or infringement of either of the applicants’ human rights and fundamental freedoms, as enunciated in the Canadian Bill of Rights475 and to compel him in his capacity to act fairly in exercising any jurisdiction so conferred in accordance with the duty to act fairly that falls upon all administrators. Walsh, J concluded that the facts of the case did not indicate that the Director had not acted fairly in arriving at his decision not to permit their marriage, and dismissed the application.
In McNamara v Caros and Mendes476 the applicant prisoner sought an order of mandamus to compel the respondents to provide him with the “essential medical treatment that he requires” in accordance with s16 of the Penitentiary Service Regulations,477 and Commissioner’s Directive No. 207. Mahoney, J dismissed the application as against the respondent, Mendes, the institutional physician holding that he was not a “federal board, commission or tribunal” as defined in the Federal Court Act478 when acting in his professional capacity in the treatment of its inmates. He also dismissed the application as against the respondent Director of Matsqui Institution because there was no evidence that the Director appointed the institutional physician or could remove him from his position and consequently he could not see that an order in the nature requested would be effective. He expressed no opinion as to whether mandamus was an appropriate remedy. This case illustrates the importance of naming the Commissioner of Corrections in most prison law applications. The case of Stevens v National Parole Board.479 is an example of a successful mandamus application. The case involved the validity of s20(1) of the Parole Regulations,480 requiring the Board to wait fifteen days from the date of the suspension of the prisoner’s parole and referral to it under s22(3) of the Parole Act,481 before revoking the parole. In the circumstances, the prisoner wanted his parole revoked as soon as possible because it would have resulted, upon recalculation of his sentence and crediting of earned remission, in his immediate release. The Board insisted on waiting the fifteen days required by s20(1)of the Regulations . Mahoney, J found the Regulations to be outside the powers delegated by s27(1)(k) of the Parole Act482 and inconsistent with s22(4) of the Parole Act,483 requiring the decision to be made “forthwith”, and granted the applicant a writ of mandamusdirecting the Board, “forthwith upon completion of the review of his case and the completion of its inquiries in connection with it, to either cancel the suspension of his release on mandatory supervision or to revoke his parole.484 A further example of an unsuccessful application tor mandamus is Re Rossi and R,485 where a prisoner sought mandamus to compel production of certain documents on his institutional file that were apparently holding up his transfer to a medium security institution. Walsh, J dismissed the application but in the course of his reasons made the following comments on the merits of mandamus as a form of relief:
A writ of mandamus lies to secure the performance of the public duty, in the performance of which the applicant has a sufficient legal interest. It does not lie to compel the performance of a mere moral duty or to order anything to be done that is contrary law: see S.A. de Smith, Judicial Review of Administrative Action, 2nd ed. (1968), pp 561-3. ‘Nor … will it issue in respect of a merely private duty … or against a respondent who is not commandable by the court or by whom the duty is not owed’: op cit, p 579.486
Walsh, J also pointed out that mandamus does not lie against the Crown and that the appropriate respondent in such an application Would be the particular penitentiary officers as representing the Crown.487 However, since the Charter has come into effect, it has been held that the Crown is subject to the provisions of the Charter in the same way as any other individual and that consequently, the rule of Crown immunity derived from the common law to the effect that mandamus could not issue against the Crown no longer applies. In Levesque v AG Canada et al,488 Rouleau, J declared that the prisoner plaintiff was entitled to vote in a provincial election in Quebec and that there was a duty under s3 of the Charter imposed upon government to ensure that such persons could vote and furthermore, issued a writ of mandamus compelling the Crown to prepare, within the penitentiary, a list of prisoners having necessary qualifications to vote under Quebec law and to establish a polling booth on the spot with the scrutineer appointed by the Chief Electoral Officer and a representative of each of the political parties sitting in the Quebec National Assembly so as to enable the prisoners to exercise their right to vote in the election. This case illustrates the importance of considering an application under s24(1) of the Charter, along with the application for prerogative writ relief in all instances where a Charter right is in issue.
The cases of Re Greene and Faquy et al.489 and In Re Baker.490 illustrate the lack of jurisdiction in the provincial superior courts to grant mandamus against federal prison authorities, jurisdiction in this regard having been transferred to the Federal Court by the Federal Court Act.
(v) Quo Warranto — The writ of quo warranto is directed towards preventing the continued exercise of powers that are not conferred by law. It generally arises as an attack on the right of a particular person to hold office but there is some authority that it extends to situations where the person against whom it is directed is taking upon himself authority or performing acts beyond the scope of the office.
This remedy is rarely resorted to but a recent attempt arose in the case of Bruce and Meadley v Reynett et al,491 where the applicants sought to challenge the jurisdiction of the Director of the British Columbia Penitentiary to deny them permission to marry. It was not disputed that the respondent Reynett was properly appointed to and occupying the office of Director of the Penitentiary. Although Walsh, J did not conclude that quo warranto was an appropriate remedy even if the Director exceeded his authority in the circumstances, he found that the remedy was, in any event, discretionary and held that the relief sought could be obtained through the alternative remedies of mandamus or injunction which were also asked for in the proceedings. Nevertheless, he did review in some detail in his judgment the various authorities dealing with the breadth or ambit of this remedy.492 It should be noted, however, that in the case of Gosselin v Drouin493 to which Walsh, J refers as the case relied upon by the respondents, the proceedings were taken pursuant to article 987 of the Quebec Civil Code and further, that in a footnote to the judgment of Owen, J494 reference is made to a number of earlier Quebec cases which hold that the writ lies in the case of a qualified officer committing abuses or illegalities in connection with his functions. These cases are Martel v Prevost,495 Martineau v Debien,496 Lavoie v Fortin,497 Blouin v Bray,498 and Morin v Buteau.499 Further, the case of Re Smith and Best et al500 a decision of Morrow, J of the Yukon Territories Supreme Court is of interest where the court appeared to be inclined to grant the relief sought but for the fact that the relief should have been sought in the Federal Court as opposed to the territorial superior court. For a recent example of a case in the Supreme Court of Canada where quo warranto was granted see Ex rel Gillespie v Wheeler501 where the writ was issued to remove the respondent from the office of Major of Moncton because he held an interest as Director or officer of a company that had contracts with the Municipality, notwithstanding that the Mayor had disclosed his interest. Consequently, it was unnecessary for the court to deal with the question of the ambit of this remedy.
(vi) Declaratory Relief — An action for declaratory relief or a declaratory judgment, as the name of the remedy suggests, is simply an action to obtain a binding order of a court on the status, rights and duties of the parties to the matter in controversy without the necessity of awarding any further consequential relief to ensure compliance with the court’s declaration.501a
Like the remedy of an injunction, this remedy can only be obtained in Federal Court in an action, that is, in proceedings started by a Statement of Claim, followed by the exchange of pleadings between the parties, pretrial discoveries and ultimately a trial on oral evidence, as opposed to an application, that is, proceedings started by an Originating Notice of Motion based on Affidavit material in support. See Sherman and Ulster Ltd v Commissioner of Patents502 and McNamara v Caros and Mendes.503 Although there are many advantages to this remedy where there is a need to establish facts or there is a conflict in the evidence requiring resolution through pretrial discoveries or by examination of cross-examination at trial, nevertheless, the remedy is frequently ineffective in the prison law context because of the longer period of time between the commencement of the action and the hearing at trial compared to the shorter period between the filing of a motion and the hearing thereof a few days or perhaps a week later. Consequently, only those prisoners who are able to bring an action for declaratory relief well in advance of their anticipated release date or before any other change in circumstances rendering the issue in controversy academic or moot, will be able to benefit. In circumstances where it is argued that the matter in controversy has become academic or moot, the applicant will have to satisfy the court that some practical purpose will be served in granting declaratory relief. The decision in Magrath v R504 provides a good illustration of the problems that can be encountered, in that case the plaintiff sought declaratory relief in respect of several matters and he succeeded in obtaining a declaration that certain disciplinary proceedings taken against him were not conducted fairly. Even though he had already undergone the punishment imposed, the declaration had some practical effect in erasing the conviction from his institutional record. However, he failed to obtain a declaration to set aside his transfer from a medium security institution to a maximum security institution because by the time the case came on for hearing he had already been transferred back to a lesser security institution. A further problem that arises in having to proceed by way of an action to seek this kind of relief is the expense. It is considerably more expensive to go through the various pretrial procedures and a full trial involving, in addition to filing, service, and hearing fees, the cost of transcripts of examinations for discovery and the cost of procuring the attendances of witnesses, particularly prisoner witnesses requiring transportation, escorts, maintenance and custody during the proceedings. Penitentiary Service Regulations, s26505authorizes the Director to require the party to the proceedings that require the prisoner witness to pay for these costs. Further, in the case of Magrath v National Parole Board506 the plaintiff commenced an action for declaratory relief as against the Parole Board and then brought a motion to the court for permission to continue the action “in forma pauperis” without being required to pay the prescribed fees as required by tariff A of the Federal Court Rules.507 Walsh, J dismissed the application and ruled that the British statute,508 still applicable in Canada, which authorized such proceedings as a substantive right as opposed to a matter of procedure should not be applied in the Federal Court to substitute for the absence of any such provisions in the Federal Court Rules when Parliament had deemed it necessary to provide for “in forma pauperis” appeals in the Supreme Court Act.509 and had not so provided for any proceedings in the Federal Court Act.
On occasion, these problems can be avoided by the parties agreeing as to the facts and filing an “agreed statement of facts” and then proceeding to trial on that basis more expeditiously and without the expense of the various pretrial proceedings.
It should also be noted that in the first Magrath510 case, question arose, but was not ultimately decided, as to the right of Magrath as a prisoner plaintiff to appear in the court and act as his own counsel. Counsel for the Crown took the position that the court only had jurisdiction under Rule 334 of the Federal Court Rules511 to issue a writ of habeas corpus ad testificandumfor his attendance as a witness. Because Magrath was also required to attend as a witness to present the plaintiff’s case, he remained in the court for that period and then counsel for the Crown renewed the objection. Magrath then successfully argued that he would have to be present to hear the defence evidence in the event that it became necessary for him to give reply evidence. At the conclusion of the defence’s case, the decision having been made not to call evidence in reply, counsel for the Crown renewed objection once again. Magrath was returned to the prison and it was not until Collier, J severely criticized the Crown position, his criticism being widely reported in the press,512 that the Minister instructed the appropriate institutional authorities to provide Magrath with a temporary absence to enable him to attend court to make his submission.513 The Minister indicated that as a matter of policy, in the future, prisoners would be entitled to attend court to argue their own cases. Regretfully, no legal decision on the issue was made and the matter continues to be governed by policy which is quite unsatisfactory. It should be added that the position taken by counsel for the Crown was supported by the absence of any authority in the Federal Court Act or Rules authorizing the court to require that a prisoner be brought to the trial of a civil matter other than for the purpose of giving evidence and by English common law authority namely, Benns v Mosely and Corbett,514Weldon v Neal,515 and Becker v Home Office et al.516 The decision of the Federal Court of Appeal in McCann et al v The Queen et al517 provides a further illustration in which the Court of Appeal affirmed a decision of the Trial Division denying an application on behalf of the plaintiff’s counsel to entitle the plaintiffs in that case to be present throughout the course of their trial.
The subsequent decision in McCann et al v R et al518 affords an example of a case where a prisoner plaintiff successfully obtained a declaratory judgment to the effect that the conditions and circumstances under which they had been held in solitary confinement at the British Columbia Penitentiary amounted to “cruel and unusual punishment” contrary to the provisions of the Canadian Bill of Rights . However, the Court also found that there was no authority to support a claim for consequential relief to compel the defendants to act in accordance with the declaratory judgment and the debate as to whether or not the defendants complied with the declaration continued until that prison was closed. The plaintiffs had initially been released from solitary confinement at the commencement of the lawsuit but some of them had been returned because of their involvement in a subsequent incident. After the judgment, they were moved to a different area but because of an incident occurring in that area, they were returned to the original area. Some minor physical changes were made and the authorities claimed that certain other changes could not physically be made in the circumstances. At least one of the plaintiffs continued to be held under circumstances substantially similar to the conditions criticized by Heald, J in his decision for a further period of approximately three and a half continuous years making the total time spent by this individual under those conditions to be close to eight years.519
Normally, the remedy of declaratory relief is used to declare the invalidity of a purely administrative or legislative action where there is no real basis for a claim for damages or other loss. Frequently, the claim is coupled with a claim for a permanent injunction thereby enabling the plaintiff to bring on a motion at an early stage in the proceedings to seek an interlocutory injunction pending the trial. For an example see Gunn v Yeomans et al520 where the plaintiff was successful in obtaining an interlocutory injunction restraining the Commissioner of Corrections and the Director of Matsqui Institution from ordering any further searches of his person except in accordance with s41(2) of the Penitentiary Service Regulations.521 which require suspicion on reasonable grounds before such searches can be conducted.
In Solosky v R,522 Dickson, J delivering reasons for the Court, reviews extensively the nature of declaratory relief and the principles upon which such relief might be granted. There must be a real dispute as opposed to a hypothetical one between the parties. The court has a discretion as to whether to grant the relief or not. The relief must be capable of having some practical effect in resolving the issues in dispute.523
C. REMEDIES IN THE PROVINCIAL SUPERIOR COURTS
1. Habeas Corpus ad Subjiciendum
This remedy, within the exclusive jurisdiction of the provincial superior courts, requires a person restrained of liberty to be brought before the court in order that the lawfulness of his imprisonment might be determined. In practice, the relief is obtained by petition or motion calling upon the keeper of the prison to show cause why the writ should not be issued. The specific practice will vary from province to province in accordance with the rules of the court for that province.523a Generally speaking, the applicant for the writ will file an Affidavit in support of his application which must establish a prima facie case of entitlement to the writ. The writ is then issued calling upon the keeper of the prison to produce the body of the prisoner and the documents authorizing the detention. The court then considers whether or not the detention is lawful and if found unlawful will order the discharge of the prisoner. In some provinces, it is a common practice, when both parties consent, to treat the initial application for the issuance of the writ as an application for discharge as though the writ had been issued and returned so that the whole matter is dealt with at one hearing.
In Miller,527 the applicant was transferred from the general population of the prison into a special handling unit. He brought an application for habeas corpus with certiorari in aid and that application was dismissed by Stelle, J of the Supreme Court of Ontario528 on the ground that the court lacked jurisdiction to issue certiorari in aid of habeas corpus because of the exclusive jurisdiction of the Federal court in respect of certiorari against federal boards, commissions or other tribunals, and on the further ground that on habeas corpus alone, the court was precluded by the jurisdiction of the Federal court, from considering anything but the warrants of committal, which were regular on their face and had not been challenged. The Ontario Court of Appeal allowed his appeal529 and the Crown appealed to the Supreme Court of Canada. Steele, J based his decision on the opinion of Ritchie, J in an earlier decision of the supreme court of Canada in Mitchell v R.530 The Ontario Court of Appeal, and the British Columbia Court of Appeal in Cardinal and Oswald,531 followed the contrary opinion of Laskin, CJC in that case. LeDain, J, in giving judgment for the court in Miller532 extensively reviews the previous jurisprudence of the Supreme Court of Canada on the admissibility of extrinsic evidence on an application tor habeas corpus, including Mitchell533 and In Re Shumiatcher,534 Re Trepanier,535 Ex Parte Macdonald536 and Goldhar v R,537 Re Sproule538 and Ex Parte Henderson539 and points out that the true distinction or criteria respecting admissibility of extrinsic or affidavit evidence on habeas corpus involves a determination of whether or not the issue presented goes to the merits or to the jurisdiction of the inferior tribunal. Many of these earlier decisions had indicated that on an application tor habeas corpus a court was limited to considering the validity of the warrants of committal on their face and could not go behind the warrant. As LeDain, J points out, in most of those cases, the issue presented was one going to the merits of the decision below and not to jurisdiction. LeDain, J concluded that, subject to the limitation arising from the conclusive character of the records of courts of superior or general common law jurisdiction, that a court may, on an application for habeas corp us with certiorari in aid, consider affidavit or other extrinsic evidence to determine whether there has been an absence or excess of jurisdiction. In arriving at this conclusion, he made the following comments:
Thus the true basis of this Court’s jurisprudence with respect to the admission or consideration of extrinsic evidence on an application for habeas corpus consists of two principles: the principle that extrinsic evidence must not be permitted to convert an application lot habeas corpus into an appeal on the merits, and the principle that the record of a superior court is conclusive as to the facts on which the court’s jurisdiction depends and cannot be contradicted by extrinsic evidence. It has been suggested that the court was particularly concerned about the first principle when it was exercising an original jurisdiction in respect of habeas corpus, and that this may have led to the broad and unqualified expression of the rule respecting the consideration of extrinsic evidence on habeas corpusthat is to be found in some of its decisions: see Sharpe, The Law of habeas corpus (1976), p 51 note 2. With respect to the second principle, I agree with the suggestion in Sharpe, “Habeas Corpus in Canada”, 2 Dal LJ 241 al p 261 (1975), that it should apply only to the records of superior courts or courts of general common law jurisdiction. In Mitchell v The queen (1975), 24 CCC (2d) 241, 61 DLR (3d) 77, 1197612 SCR 570, neither of these principles was applicable. As I have indicated, the grounds of attack were clearly jurisdictional, and the record, dependent as it was on the proceedings and decisions of an inferior tribunal, was not of the character emitted to be treated as conclusive of the facts of jurisdiction. In my respectful opinion, the view expressed in Mitchell that the affidavit evidence could not be considered went beyond the true basis of the court’s jurisprudence on this question. In fact, two members of the majority in the result (Martland and de Grandpre JJ), as well as the minority (Laskin CJG, Spence and Dickson JJ), did consider the affidavit evidence in deciding whether there had been an absence or excess of jurisdiction in ordering the detention.
As the British Columbia and Ontario Courts of Appeal pointed out in Cardinal and Oswald and in the case at bar, it may only be possible to establish jurisdictional error on habeas corpus by affidavit evidence, even where the record is brought up by certiorari in aid, This is particularly true of a violation of natural justice or a denial of procedural fairness. This is a compelling reason, in my opinion, for confining the rule against consideration of extrinsic evidence on an application for habeas corpus within its proper boundaries.
Support for a broader approach to the admission or consideration of extrinsic evidence on habeas corpus to determine issues of jurisdiction may be found in the decision of the House of Lords in Schtraks v Government of Israel et al,  AC 556, which was relied on by the Courts of Appeal in Cardinal and Oswald and the case at bar. There it was held that fresh evidence was admissible on an application for habeas corpus to show that the magistrate lacked jurisdiction to make the committal order in an extradition case because the offence was of a political character. Lord Hodson appears to have held in effect that the rule concerning the admission of affidavit evidence on habeas corpus is the same as it is on certiorari , as suggested by the following passage at pp 605-6:
Proceeding by habeas corpus is analogous to that by certiorari to remove a conviction, see Short and Mellor’s Crown Practice (1908), p 319. Affidavits are not admissible to controvert facts found by the judgment of a court of competent jurisdiction, though they may be received to show some extrinsic collateral matter essential to jurisdiction or to show total want or excess of jurisdiction.540
It is therefore of fundamental importance in bringing an application for habeas corpus to determine the nature of the tribunal under attack and to ensure that the issue for consideration is of a jurisdictional nature and not one going to the merits. There are numerous examples in the cases of applications for habeas corpus having been brought in an effort to secure one’s release after conviction by a superior Court of record or court of general common law jurisdiction which have failed because appeals had been taken and been dismissed and because the issue being raised related to the merits as opposed to one of jurisdiction.541
On the question of whether or not the remedy is available to secure the release of a prisoner from solitary confinement or a special handling unit, LeDain, J referred to the traditional two essential conditions as to the availability of this remedy, namely, (a) that there be a deprivation of liberty, and (b) that what is sought is the complete liberty of the applicant and not merely his or her transfer to another form of detention or restraint of libeity.541a After reviewing the cases on that issue, LeDain, J, commented on Dickson, J’s reference to the “prison within a prison” in Martineau v Matsqui Institution Disciplinary Board (No. 2),542 made the following comment:
This statement reflects the perception that a prisoner is not without some rights or residual liberty (see also Solosky v The Queen (1979), 50 CCC (2d) 495 at 510, 105 DLR (3d) 745 at 760,  1 SCR 821 at 839) and that there may be significant degrees of deprivation of liberty within a penal institution. The same perception is reflected in the reasons for judgment of McEachern CJSC and Anderson JA in Cardinal and Oswald and Cory JA in the case at bar on this issue. In effect, a prisoner has the right not to be deprived unlawfully of the relative or residual liberty permitted to the general inmate population of an institution. Any significant deprivation of that liberty, such as that effected by confinement in a special handling unit, meets the first of the traditional requirements for habeas corpus, that it must be directed against a deprivation of liberty.543
LeDain, J then went on to consider the second principle and pointed out that that principle had not been invariably applied by the courts and reviewed various examples where it had not been applied. He concluded that “the use of habeas corpus to release a prisoner from an unlawful form of detention within a penitentiary into normal association with the general inmate population of the penitentiary is consistent with these applications of the remedy.”544 LeDain, J then went on to review the American decisions on this subject, pointing out that in the United States, habeas corpus has been recognized as being available to challenge the validity of various forms of segregated confinement in a prison on grounds of a violation of due process and concluded that the better view was that the remedy was available to determine the validity of a particular form of confinement in a penitentiary, notwithstanding that the same issue can be determined by the Federal Court upon an application lot certiorari .
With respect to the nature of confinement in a special handling unit or in administrative segregation, LeDain, J remarked:
Confinement in a special handling unit, or in administrative segregation as in Cardinal and Oswald is a form of detention that is distinct and separate from that imposed on the general inmate population. It involves a significant reduction in the residual liberty of the inmate. It is in fact a new detention of the inmate, purporting to rest on its own foundation of legal authority. It is that particular form of detention or deprivation of liberty which is the object of the challenge by habeas corpus. It is release from that form of detention that is sought.545
In addition, however, LeDain, J expressed the following caution:
I do not say that habeas corpus should lie to challenge any and all conditions of confinement in a penitentiary or prison, including the loss of any privilege enjoyed by the general inmate population. But it should lie in my opinion to challenge the validity of a distinct form of confinement or detention in which the actual physical constraint or deprivation of liberty, as distinct from the mere loss of certain privileges, is more restrictive or severe than the normal one in an institution.546
In Cardinal and Oswald,547 the prisoners were placed in solitary confinement at a maximum security institution as the result of their involvement in a hostage taking at a medium Security institution. After some three months in that type of confinement the segregation review board recommended to the director that they be returned to the general population. The director declined to follow the recommendation. The segregation review board maintained its recommendation the following month and again, the director continued to hold them in segregation. The director indicated he would likely continue the segregation until the disposition of the criminal charges against them. He did not inform them of his reasons for refusing to follow the recommendation of the Board or afford them an opportunity of a hearing before him as to whether or not they should be released. The prisoners sought habeas corpus with certiorari in aid, claiming they had been denied procedural fairness in the continuation of their segregation and that they should be released to the populations. McEachern, CJSC of the British Columbia Supreme Court548 issued the writ holding that the continuing segregation was unlawful by reason of a denial of procedural fairness which went to jurisdiction and ordered their release to the population of the prison. Issues of the availability of certiorariand the admissibility of affidavit evidence on a habeas corpus application, as well as the availability of the remedy in the circumstances, were raised before McEachern, CJSC and resolved by him in favour of the applicants. The British Columbia Court of Appeal549 agreed unanimously with McEachern, CJSC as to the availability of the remedy, the availability of certiorariin aid and the admissibility of affidavit evidence, but the majority of the court disagreed with respect to the merits and held that if there had been a breach of the duty of procedural fairness, it was not of sufficient substance to amount to an excess of jurisdiction. The court did, however, agree that there was a duty of fairness arising in the circumstances. The Supreme Court of Canada550 allowed the appeal and restored the judgment of McEachern, CJSC. For the reasons given in Miller, the court agreed with the conclusions of the British Columbia Court of Appeal on the three issues concerning the jurisdiction of the British Columbia Supreme Court to grant the remedy with certiorari in aid and to consider affidavit evidence and that the remedy was available in the circumstances. The court further agreed with McEachern, CJSC and the Court of Appeal that the director was under a duty of procedural fairness in exercising his authority under s40 of the Penitentiary Service Regulations551 with respect to administrative dissociation or segregation (solitary confinement). In this regard, the court referred to Martineau (No. 2)552 to the effect that the duty of procedural fairness applied in principle to disciplinary proceedings within a penitentiary and concluded that the same principle applied to administrative segregation because its effect on the inmate was the same as punitive or disciplinary segregation. The major question was what did the duty of procedural fairness require in the circumstances. In this regard, LeDain, J agreed with McEachern, CJSC and Anderson, JA, in dissent, in the British Columbia Court of Appeal, that because of the serious effect of the director’s decision on the prisoners, procedural fairness required that he inform them of the reasons for his intended decision and give them an opportunity, however informal, to make representations to him concerning those reasons and the general question as to whether it was necessary or desirable to continue their segregation for the maintenance of good order and discipline in the institution. In LeDain, J’s view, the prisoners were entitled to know why the director did not intend to act in accordance with the recommendation of the review board and to have an opportunity before the director to state their case for release into the general prison population. The Director was entitled to rely upon information received from others, but had a duty to hear and consider what the prisoners had to say concerning their involvement in the incident and anything else relevant to the question of the effect of their release into the population. These were the minimal or essential requirements of procedural fairness in the circumstances and were compatible with a concern for the process of prison administration and its special nature and exigencies which should not be unduly burdened or obstructed by the imposition of unreasonable or inappropriate procedural requirements. On the question of whether or not the breach of the duty of procedural fairness amounted to “sufficient substance” for the court to intervene, LeDain, J remarked:
Certainly, a failure to afford a fair hearing, which is the very essence of the duty to act fairly, can never of itself be regarded as not of “sufficient substance” unless it be because of its perceived effect on the result or, in other words, the actual prejudice caused by it. If this be a correct view of the implications of the approach of the majority of the British Columbia Court of Appeal to the issue of procedural fairness in this case, I find it necessary to affirm that the denial of a right to a fair hearing must always render a decision invalid, whether or not it may appear to a reviewing court that the hearing would likely have resulted in a different decision. The right to a fair hearing must be regarded as an independent, unqualified right which finds its essential justification in the sense of procedural justice which any person affected by an administrative decision is entitled to have. It is not for a court to deny that right and sense of justice on the basis of speculation as to what the result might have been had there been a hearing.553
In Morin,554 the prisoner was in medium security when another prison was killed and Morin was then transferred to a maximum security prison and placed in segregation. Morin was charged with the murder and then moved to a special handling unit. He was then acquitted of the offence by a jury and sought his release from the special handling unit. His case was reviewed, but it was decided to continue his confinement in the special handling unit, despite the acquittal. He applied for a writ of habeas corpus without certiorari in aid to obtain his release. Bergeron, J of the Quebec Superior Court555 expressed the view that his continued confinement, despite the acquittal, was without foundation and in violation of the rules of natural justice and fairness, but dismissed the application, being of the view that the court lacked jurisdiction to determine the validity of the confinement because of the jurisdiction of the Federal Court under s18 to issue certiorari against any federal board, commission or other tribunal and the limits of the role of habeas corpus . The Quebec Court of Appeal dismissed the appeal.556For the reasons given in Miller,557 LeDain, J allowed the appeal.
2. Habeas Corpus with Certiorari in Aid
As indicated under the previous section, an applicant for habeas corpus will frequently seek certiorari in aid at the same time as a means of bringing up the record of proceedings in the inferior court or tribunal to be-examined by the superior court to make the remedy of habeas corpus more effective by enabling the court to go behind warrants of committal and show earlier jurisdictional defects or illegalities leading up to the conviction or issuance of the warrant or the decision effecting liberty that is in issue. The enactment of the Federal Court Act558 in 1971, transferring jurisdiction with respect to certiorari in relation to federal boards or tribunals from the provincial superior courts to the Federal Court of Canada, introduced the question of whether or not there was any difference or distinction between an application for certiorari brought to quash a conviction or other order and an application for certiorari in aid of habeas corpus for the purposes earlier described. The law in Canada on this issue was unsettled until the recent decisions of the Supreme Court of Canada in the trilogy of Miller,559 Cardinal and Oswald560 and Morin.561 The uncertainty of the law prior to these decisions is illustrated by the earlier decision of the Supreme Court of Canada in Mitchell v R.562 In that case, Laskin, CJC, in dissent, with the concurrence of Spence and Dickson, JJ, dealt with the matter as follows:
A prime consideration in this appeal, both for counsel for the appellant and counsel for the Board, was whether habeas corpus with certiorari in aid was or was not available to the appellant, or whether habeas corpus alone was or was not available, and if available, whether it permitted the appellant to go behind the warrant of committal of March 5, 1974 for the purpose of determining whether the Board had exceeded its jurisdiction by acting in violation of the rules of natural justice or in violation of the Canadian Bill of Rights.
As to the availability of habeas corpus through a provincial superior court I have no doubt. Nothing but express federal legislation directed to such an end would exclude a subject’s right to resort to habeas corpus. There is nothing of that sort in the Federal Court Act, RSC 1970, c10 (2nd Supp). Section 17(5) thereof mentions habeas corpus as an exclusive remedy in that court in relation only to members of the Canadian Armed Forces serving outside of Canada; the Act is otherwise silent on habeas corpus, which is not mentioned either in s18 or in s28, the two central provisions on review jurisdiction in respect of federal agencies.
Although not seriously contesting the appellant’s right to resort to habeas corpus in a provincial superior court, counsel for the respondent Board contended that certiorari in aid was not open because exclusive jurisdiction to invoke certiorari against a federal agency like the National Parole Board was vested in the Federal Court, either in its Trial Division under s18 or in the Court of Appeal under s28. Counsel would have it that the appellant could not bring up the proceedings before the Board by certiorari in aid and could not, without resort to them, go behind the bare terms of the warrant of committal through habeas corpus alone. This exercise in scholasticism is without merit, especially when counsel conceded that it was at least open to the court to look at the Board’s warrant of apprehension of February 8, 1974. I do not regard ss710 or 711 of the Criminal Code in their reference to certiorarias having any bearing on the present issue. What to me is more relevant is an affirmation of the right to habeas corpus in s2(c)(iii) of the Canadian Bill of Rights, and if necessary, I would read it as embracing certiorari in aid to make the remedy an effective one and not simply an exhibit in a show case.
It is quite clear to me that there is a marked difference between certiorari, used to quash a conviction or an order by its own strength, and certiorari in aid of habeas corpus to make the latter remedy more effective by requiring production of the record of proceedings for that purpose…563
Ritchie, J with whom four other judges concurred, treated the application as one for habeas corpus simplicitor without certiorariin aid and then later in his reasons, after holding that on habeas corpus alone the court could not go behind the warrant, stated as follows:
I have indicated that I do not think a writ of certiorari would lie to inquire into and review the administrative acts of the Parole Board, including its act in causing the appellant’s parole to be suspended on December 24 and the manner in which such suspension was effected. In this regard, the law has not changed since the case of Security Export Co v Hetherington  3 DLR 519, [19231 SCR 539…, where Sir Lyman Duff had occasion to say at p 534 DLR, pp 549-50 SCR:
The general rule touching the of f ice of the writ of certiorari is usually expressed by saying that it lies to remove acts of inferior courts and judicial acts of bodies possessing statutory jurisdiction, but it does not lie to remove acts which are merely ministerial.
In any event, the court of Queen’s Bench of Manitoba would, in my opinion, have had no jurisdiction to issue a writ of certiorari having regard to the terms of section 18 of the Federal Court Act…564
Martland, J wrote separate reasons concurring in the result as expressed by Ritchie, J but does not deal with this issue in his reasons, which are concurred in by de Grandpre, J.
It appeared, therefore, that the majority of the court took the position that there was no distinction between certiorari alone and certiorari in aid of habeas corpus and that one would have to go to the Federal court for certiorari and to the provincial superior courts for habeas corpus . As noted above, this issue has now been settled by the supreme court of Canada and LeDain, J, in giving reasons for the court in Miller,565 reviewed the conflicting opinions of the court in Mitchell566 and after pointing out that the subsequent decision of the court in Martineau v Matsqui Institution Disciplinary Board (No.2)567 had expanded the ambit of certiorari to the extent that it was not confined to decisions required to be made on a judicial or quasi-judicial basis but applied, to quote Dickson, J “whever a public body has power to decide any matter effecting the rights, interests, property, privileges, or liberties of any person”568 and then went on to expressly adopt the dissenting judgment of Laskin, CJC in Mitchell569 to the effect that the distinction between certiorari to quash and certiorari in aid should be regarded as a procedural or evidentuary device to make habeas corpus more effective. In conclusion, LeDain, J stated as follows:
There can be no doubt that certiorari in aid is important, if not essential, to the effectiveness of habeas corpus . This was emphasized by both Anderson JA, with whom the other members o, the British Columbia Court of Appeal agreed on this issue in Cardinal and Oswald, and by Cory JA in the case at bar. In many cases it may not be possible for a court to determine whether there has been an absence or excess of jurisdiction if the record of the tribunal which imposed or authorized the detention is not brought before it. The importance of habeas corpus itself, and by implication the importance of maintaining it as a fully effective remedy is, as Laskin CJC observed, given particular emphasis by its inclusion as a guaranteed right in s2(c)(iii) of the Canadian Bill of Rights. To this recognition may now be added the constitutional guarantee of the right to habeas corpus in s10(c) of the Canadian Charter of Rights and Freedoms. Because of the clear intention to leave the habeas corpus jurisdiction over federal authorities with the provincial superior courts and the importance of certiorari in aid to the effectiveness of habeas corpus, it cannot, in my opinion, have been intended that the reference to certiorari in s18 of the Federal Court Actshould have the effect of undermining or weakening the habeas corpus jurisdiction of the provincial superior courts by the exclusion or denial of certiorari in aid. Certainly such a construction is to be avoided if at all possible. It can be avoided by application of the distinction emphasized by Laskin CJC between certiorari as an independent and separate mode of review having as its object to quash the decision of an interior tribunal and certiorari as an ancillary procedure used to serve an essentially evidentiary purpose. A very full discussion of this distinction, with reference to many of the decisions in which it has been noted and applied, is to be found in Cromwell, “Habeas Corpus and Correctional Law”, 3 Queen’s LJ 295 at pp 320-3 (1977). Applying the distinction to the reference to certiorari in s18 of the Federal Court Act, it is reasonable to conclude, because of the association in that section of certiorari with the other prerogative and extraordinary remedies, that the reference is to the independent remedy of certiorari to quash. It is unlikely that Parliament intended to confer an exclusive jurisdiction to issue certiorari in aid when it had clearly withheld the jurisdiction to issue habeas corpus.570
D. REMEDIES UNDER SECTION 24 OF THE CHARTER
Section 24 of the Charter provides that anyone whose rights or freedoms as guaranteed by the Charter have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances. It is important to note that this provides that the application for a remedy must be to a court of “competent jurisdiction” and to date, this phrase has been interpreted to mean a court which, apart from s24(1) had jurisdiction over the parties and the subject matter prior to the Charter. The Supreme Court of Canada has yet to pass upon the meaning of this phrase. In a prison law context, this would mean that matters over which the Federal Court of Canada had jurisdiction in the past would continue to remain within that court’s jurisdiction and if a violation of a Charter right arose in relation to such matters, then the remedy under s24 would have to be applied for in the Federal Court. Similarly, matters over which the provincial superior courts had jurisdiction would remain within the jurisdiction of those courts and violations of Charter rights arising in relation to such matters would have to be dealt with in those courts by way of an application under s24(1) of the Charter.
There is still some considerable debate on this issue among commentators,571 but the better view for the time being would be to bring a traditional remedy in the appropriate court with jurisdiction prior to the Charter and to couple that remedy with an application for a further remedy under s24.
This view appears to be the one adopted by the courts so far in relation to prison law matters. In Re Latham and The Solicitor General of Canada,572 an application was made to the Federal Court Trial Division for various forms of relief, including habeas corpus and Strayer, J held that the Federal Court Trial Division did not have jurisdiction to issue habeas corpus, except as specifically stated in the Federal Court Act, and that s24 of the Charter did not alter this situation, but only allows the court to give remedies it was already empowered to give in the past, except that now new grounds could be advanced, such as violations of Charter rights as a basis for those earlier remedies.
In Re Mitchell and R,573 the Ontario High Court, on an application for habeas corpus ad subjiciendum with certiorari in aid, or relief pursuant to s24(1) of the Charter held, following the decision of the British Columbia Court of Appeal in Re Cardinal and Oswald and R574 and the Ontario Court of Appeal in R v Miller.575 and the decision of the Ontario High Court in R v Cadeddu,576 that the court had jurisdiction to grant habeas corpus ad subjiciendum with certiorari in aid and because the court had jurisdiction to deal with that remedy independent of the Charter , it was also a “court of competent jurisdiction” to grant a remedy under s24(1) of the Charter . Ultimately, the court felt that the granting of the writ of habeas corpus was the appropriate remedy in all of the circumstances.
The other issue arising from the wording of s24 involves determination of what is “an appropriate and just remedy” in the circumstances. In Collin v Lussier577 where the court found that a transfer amounted to disguised punishment and found a violation of s7 Charter rights, the court quashed the transfer, ordered a re-transfer and awarded damages in the amount of $18,000 including $7,500 in exemplary damages. However, on appeal,578 that portion of the trial court judgment awarding damages was set aside. The court held that even if the prisoner was entitled to claim damages, he could not do so by means of an application, but only by the bringing of an action. In other words, even if s24(1) allows a claim for damages, the Federal Court of Appeal has expressed the view that such a claim would have to be advanced in accordance with the usual rules of procedure for damage claims. It should be noted that an application simply involves a motion with supporting affidavits whereas an action involves the exchange of pleadings, examinations for discovery and a trial with witnesses. The Federal Court Trial Division in Lasalle v Disciplinary Tribunal of Leclerc Institute et al579 came to the same conclusion as the Federal Court of Appeal in Lussier and Collin580and held that s24 was not, in itself, authority for awarding damages to a person who had been found to have been treated unfairly and that such damages, if any, could only be sought in a court of competent jurisdiction from parties subject to the jurisdiction of such court and in appropriate proceedings brought in that court.
At present, therefore, it would seem to follow that prison law applications or actions should be brought or commenced in the same courts that they would have been prior to the Charter and if Charter violations are involved in the circumstances, such applications or action should seek relief under s24 of the Charter as well, and the remedies sought should be consistent with remedies that the courts could provide prior to the Charter and the applicant or plaintiff should ensure that the proceedings commenced and commensurate with the rules of court allowing for such claims for relief prior to the Charter.
Consequently, in prison law matters, most applications will be brought to either the Federal Court Trial Division or the provincial superior courts. This does not mean, however, that applications for relief under s24 might not arise in various county or district courts or provincial courts in appropriate circumstances where a prison law issue presents itself and the court would have had jurisdiction to grant relief prior to the Charter.
Remedied under s24(2) of the Charter seeking to have evidence excluded in proceedings under s24(1) will only arise where the applicant or plaintiff has established, having regard to all the circumstances, that the admission of such evidence in the proceedings would bring the administration of justice into disrepute. It should be noted that the onus of establishing that the administration of justice will be brought into dispute is on the applicant or plaintiff and he or she must do so on the balance of probabilities. Most applications of this nature arise in the course of criminal proceedings where it is established that there has been an unreasonable search and Seizure or a similar Charter right has been violated. There continues to be some uncertainty arising out of the judgment of the Supreme Court of Canada in Therens v R581 as to when the administration of justice will be brought into disrepute and those seeking a remedy under this subsection would be wise to thoroughly review that decision of the court.
E. ADDITIONAL REMEDIES IN THE CONTEXT OF CRIMINAL AND QUASI-CRIMINAL PROSECUTIONS AND DEFENCES
It perhaps goes without saying that the prisoner, like any other citizen is entitled to resort to the regular criminal process when his complaints is to the effect that his keepers have committed a criminal or quasi-criminal offence, whether against the Criminal Code of Canada, any other federal statute or regulations thereunder, or any provincial statute or regulation thereunder in force in the province in which, he is incarcerate?. The case of R v Berrie (and seven others)582 provides a good example. In that case several penitentiary officers were charged with common assault arising out of an attempt on their part to shave a prisoner who had disobeyed an order of the Director to shave his beard. They were convicted and in so doing, Govan, Prov Ct J held that there was no authority either by statute or by common law to justify the trepass to the prisoner’s person and that the use of force in the circumstances was unreasonable to enforce the Director’s order, particularly in the absence of circumstances pointing to urgency or necessity. He also found that the prisoner’s security of his person was guaranteed by the Canadian Bill of Rights notwithstanding the fact that he was a prisoner of a federal penitentiary.
In considering these kinds of remedies, however, the complainant would do well to consider first the words of Paul Weiler583 where he says:
In the first place criminal law sanctions cannot be a credible deterrent to unlawful police activity. The investigative and prosecutorial institutions which are necessary to implement the criminal law include the intended criminal defendants and thus there is a built-in disincentive to activating this process. Added to this natural human tendency to close ranks with one’s colleagues is the realization that the individual police officer’s conduct, while technically a deviation from the legal rule, is not in breach of the normal practice of his department, a practice which may be considered by the police to be not only necessary but desirable….
It is not uncommon, in my experience, for local justices of the peace and Crown prosecutors to treat complaints by prisoners seeking to enforce this kind of remedy with disdain. In some cases the justice of the peace might refuse to accept the information and the complainant will have to resort to mandamus to compel him to issue process. In other cases, the prosecutor might refuse to proceed and put the onus on the complainant to prosecute privately. Even if the complainant surmounts these initial hurdles he may find himself before a local judge who treats the complaint with similar disdain and dismisses the information on technical grounds. The case of McNamara v Mendes584 affords an example. In that case, the prisoner complainant having unsuccessfully sought mandamus in the Federal Court Trial Division585 to compel the prison authorities to provide him with the “essential medical treatment that he required” in accordance with the Penitentiary Service Regulations and Directives, namely treatment by a physician licenced to practice in the province of British Columbia, then proceeded to lay an information before the Provincial Court of British Columbia charging the institutional physician with practicing medicine while not registered under the British Columbia Medical Act.586 The justice of the peace reluctantly issued process once the prisoner complainant obtained the assistance of counsel but the local Crown counsel refused to prosecute the matter and the complaint had to proceed as a private prosecution. The accused physician was represented by counsel on behalf of the Medical Protection Association and a preliminary objection was raised to the information that it was a nullity for failing to set out the person upon whom he allegedly practiced, namely the complainant, and the means of practising. The provincial court judge accepted the objection and dismissed the information as being a nullity notwithstanding the provisions of s67 of the Summary Convictions Act587 which provided that no information is insufficient by reason only that it does not name the person injured or intended or attempted to be injured or it does not specify the means by which the alleged offence was committed, and notwithstanding the fact that the private prosecutor in the case had appeared on numerous occasions before the same provincial court judge, but on the defence side, and had made the same preliminary objection in other cases to that judge, only to have it summarily dismissed as being without merit.
In considering these kinds of remedies it is also interesting to note that although the Governor-in-Council is given authority by s37(2) of the Penitentiary Act588 to impose summary conviction procedures and penalties for a violation of the Penitentiary Service Regulations, except in relation to prisoners who are dealt with through the disciplinary court procedure, which are dealt with by ss38 and 39, this authority has only been exercised to create s41 dealing with delivering, or attempting to deliver, contraband to an inmate or receiving or attempting to receive contraband from an inmate and trespassing upon penitentiary land, which is more likely to be applied to visitors than staff. In other words, there is no offence section to which a prisoner can resort if a staff member fails to comply with the provisions of the Penitentiary Act or Regulations . In the circumstances, consideration should be given to resorting to s115 of the Criminal Code of Canada589 which makes it an indictable offence to contravene, without lawful excuse, “an act of the Parliament of Canada by wilfully doing anything that it forbids or by wilfully omitting to do anything that it requires to be done….” However, it may be that the words “act of Parliament of Canada” as used in this section are not sufficiently broad to encompass a Regulation enacted thereunder.
Though s115 has rarely been used,590 its scope gives rise to interesting possibilities, particularly in relation to the enforcement of the provisions of the Canadian Bill of Rights which, it should be noted in s2 thereof, mandatorily requires every law of Canada to be construed and applied as not to abrogate, abridge or infringe or to authorize the abrogation, abridgment or infringement of any of the rights or freedoms recognized in the Bill unless the particular law of Canada has expressly been declared to operate notwithstanding the Canadian Bill of Rights. Section 2 goes on to provide in particular that no law of Canada shall be construed or applied so as to, among other things:
authorize of affect the arbitrary detention, imprisonment or exile of any person;
impose or authorize the imposition of cruel and unusual treatment of punishment;
- (c)deprive a person who has been arrested or detained
- (i) of the right to be informed promptly of the reasons for his arrest or detention,
- (ii) of the right to retain and instruct counsel without delay, or
- (iii) of the remedy way of habeas corpus for the determination of the validity of his detention and for his release if the detention is not lawful;
authorize a court, tribunal, commission board or other authority to compel a person to give evidence if he is denied counsel, protection against self-crimination or other constitutional safeguards;
deprive a person of the right to a fair hearing ln accordance with the principles of fundamental justice for the determination of his rights and obligations;
deprive a person charged with a criminal offence of the right to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal, or of the right to reasonable bail without just cause; or
deprive a person of the right to the assistance of an interpreter in any proceedings in which he is involved or in which he is a part or a witness, before a court, commission, board or other tribunal, if he does not understand or speak the language in which such proceedings are conducted.
As pointed out by Mr Justice Toy in R v Bruce, Wilson and Lucas591 s2, when dealing with s1 rights and freedoms, speaks of the law as being “construed and applied” and later, when referring to the particulars specified in paragraphs (a) to (g) of s2, the words used are “construed or applied” and although the word “and” is used in one place and “or” in the next, the use of the verb “applied” is at least a warning that something more than the construing of a statute is involved. These words seem to place a mandatory obligation on penitentiary officers to construe and apply the powers given to them under the Penitentiary Actand Regulations in a manner consistent with the provisions of the Canadian Bill of Rights . To quote the words of the Ontario Court of Appeal in R v Institutional Head of Beaver Creek Correctional Camp, ex parte MacCaud:592
…the interpretation placed on the Penitentiary Act and the Regulations under it are as restrictive upon the actions of an institutional head as are the provisions of the Canadian Bill of Rights.
The words of Govan, J in R v Berrie (and seven others)593 are also pertinent where he says, referring to the Canadian Bill of Rights:
In the preamble of that Act there is an acknowledgement of ‘the dignity and worth of the human person’…. Further to section 1(a) of the Act there is also section 2 which provides a mandatory rule of interpretation to be applied in construing the relevant sections of the Penitentiary Act and its Regulations as well as the relevant provisions of the Criminal Code. The Canadian Bill of Rights does not apply to all persons except prisoners or all laws of Canada except the Penitentiary Act.
The provisions of s115 of the Criminal Code of Canada might be found to apply not only in relation to the specific matters specified in s2 of the Bill of Rights but also in relation to the human rights and fundamental freedoms spelled out in s1 relating to freedom of speech, freedom of religion and so forth.
Notwithstanding the fact that jurisdiction over matters internal to federal penitentiaries lies primarily with the Federal Court of Canada, the provincial superior courts continue to enjoy some jurisdiction with respect to the care and custody of prisoners when the prisoners in question are before those courts on an indictment for a new charge, usually arising out of an incident that took place during their incarceration in a federal penitentiary. This jurisdiction, apart from the specific jurisdiction given to both the superior and inferior courts in relation to prisoners on remand awaiting trial, by the Criminal Code, arises from the inherent jurisdiction of the superior courts. However, this jurisdiction appears to be limited to those situations in which the prisoner complains about matters to do with his care and custody before and during his trial which in turn are demonstrated by him to affect the process of the court in conducting the trial in a fair and orderly manner and affecting the prisoner accused’s ability to make full answer and defence. For example, in R v Newman and others594 the Chief Justice of the Supreme Court of British Columbia, upon application to him by counsel for the accuseds for an order, pursuant to the inherent jurisdiction of the court, for the removal of the prisoners from the solitary confinement unit at the British Columbia Penitentiary to the usual provincial remand facilities because the conditions and circumstances in the solitary confinement unit were having such effects on the physical and mental health of the prisoners as to interfere with their ability to instruct counsel and make full answer in defence, indicated that in his view the court had inherent jurisdiction to make such an order, although he declined to do so initially, taking the position that the matter should be dealt with by the appropriate penitentiary authorities. Approximately five days later the prisoners were moved by administrative order from the British Columbia Penitentiary to Kent Federal Penitentiary and initially placed in solitary confinement at that location. Upon further application by counsel for the accuseds thereafter, the Chief Justice, pursuant to his inherent jurisdiction, ordered the removal of the prisoners from Kent Institution to the Lower Mainland Regional Correctional Centre (the usual provincial remand center) effective one week prior to the commencement of their trial and throughout the duration of the trial. Further, by the time the trial was approaching, several prisoner witnesses to the incident had been transferred out of the province of British Columbia to various locations and the Chief Justice further ordered, pursuant to his inherent jurisdiction, that those prisoners be brought back to British Columbia in order that they might be interviewed by counsel for the defence to determine whether or not their attendance might be necessary as witnesses at the trial. Thus, to that limited extent, the provincial superior court affected the place and manner of custody of the accused who also happened to be federal prisoners. It should be noted that in addition to the mental and physical effects on the conditions of the accuseds and their solicitor/client relationship, that the specific conditions and circumstances themselves had previously been declared to violate the Canadian Bill of Rights prescription against the imposition of “cruel and unusual treatment or punishment”.595
Further, the case involved eight accused of which three were already in the provincial remand center, their federal sentences having expired. This led to a situation where some counsel were faced with the situation of having some clients in one institution and other clients in a different institution while all were facing a joint charge in addition to the further problems of access to those in solitary confinement in the federal penitentiary, notwithstanding efforts of the penitentiary authorities to facilitate matters. Also, the second federal penitentiary to which some of the accused were transferred was located approximately eighty miles from Vancouver, where the trial was to take place.
The basis for the inherent jurisdiction of the provincial superior courts is based on the principle that Parliament intended the courts to have the power to control their own process and that where the Criminal Code is silent as to procedure or simply silent in not providing that a certain part of the Code applies to the circumstances, the court can, by analogy or otherwise, establish the procedure to be followed. The code itself contains several provisions regarding the court’s jurisdiction over both the person and the offence596 and in several instances, specifically authorizes a court to convey prisoners from one jurisdiction to another,597 as well as authorizing them to issue various forms of warrants to compel an accused person’s appearance before the court to be dealt with according to law and authorizing the court to specify which prison shall hold the accused in custody.598
Section 460(1)(b) affords a good example in that it authorizes the court to not only compel the attendance of any person (prisoner or witness) who is confined in a prison, at a preliminary inquiry, a trial or to simply give evidence, but also by subsections (4)and (5) the court is entitled to direct the manner in which the prisoner is to be kept in custody.599 In R v Bruce, Wilson and Lucas600 at the preliminary hearing stage, the provincial court judge relied on section 456(1)(d)601 to remand the prisoners from solitary confinement at the British Columbia Penitentiary to the Lower Mainland Regional Correctional Centre (Oakalla).
There are several cases, not involving prison law matters, that afford examples of reliance by the courts upon their inherent jurisdiction over their process where the Code has been silent as to procedure.602 That this inherent jurisdiction is confined to superior courts appears clear from the judgment of Ritchie, J in Doyle v R603 where he states:
Whatever inherent powers may be possessed by a superior court judge in controlling the process of his own court, it is my opinion that the powers and functions of a magistrate acting under the Criminal Code are circumscribed by the provisions of that statute and must be found to have been thereby conferred either expressly or by necessary implication.
The basis for the exercise of this inherent jurisdiction, at least in relation to federal prisoners who are before the courts once again for offences allegedly committed while in prison, is the principle of “equality before the law”604 which requires that all persons, whether in prison or not, have the right to make full answer in defence605 to a charge against them and to be treated equally in so doing both by the application of the law and the protection of the law. In considering this question, one should now also have regard to s15 of the Charter which provides that every individual is “equal before and under the law” and has the right to the “equal protection and equal benefit of the law” without discrimination, and in particular, without discrimination on certain specified bases.
On occasion, a prisoner charged with an offence will assert as a substantive defence that his actions were committed with reasonable justification or excuse or out of necessity because of the abuse or anticipated abuse of power by the prison authorities. In other words, the prisoner maintains that he was entitled to resort to the remedy of “self-help” because of the actions of the authorities towards him. Though strictly speaking it is the action taken by the prisoner which might be classified as the remedy, nevertheless it is the defence to the subsequent charge for the act which determines the effectiveness and validity of the remedy. The remedies or defences of self defence, private defence, duress and impossibility are similar in application and should be noted. However, it is beyond the scope of his introduction to deal in any detail with all of the possible defences that might arise and this discussion will be limited to a consideration of “reasonable justification or excuse and necessity”.
The remedies or defences of “reasonable justification or excuse” or “necessity” will most likely arise in a prison context out of a riot or hostage taking when one or more participants are charged with either unlawful confinement606 or extortion607 or both. An examination of the Criminal Code ‘s sections dealing with these offences discloses that in relation to unlawful confinement the offence is to confine “without lawful authority” and in relation to the offence of extortion the offence is to extort “without reasonable justification or excuse”. Consequently, the wording of the statute itself enables the accused to raise these defences as statutory defences in appropriate circumstances. The defence of necessity, on the other hand, is a common law defence preserved by subsections 7(2) and (3) of the Criminal Code.608 The defence of necessity was considered by the Supreme Court of Canada in the case of Morgentaler v R609 where the accused was charged with procuring an abortion. He admitted the act and relied upon the defence of necessity in addition to a statutory defence. The jury acquitted, but the Court of Appeal set aside the verdict and substituted a conviction and the supreme court of Canada, by a majority, dismissed the subsequent appeal. The majority of the court found that there was no evidence of urgent necessity for effecting the abortion in disregard of other procedures that were open to the accused and, consequently, that the trial judge erred in putting the defence of necessity to the jury as there was no evidence to support it. However, the Court went on generally to indicate that the defence of necessity must, at the very least, rest upon evidence from which a jury could find, first, that the accused in good faith considered the situation to be such an emergency that a failure to do something immediately would endanger the life or health of the patient, and secondly, that upon any reasonable view of the facts, compliance with the law was impossible. The minority on the other hand felt that there was some evidence to go to the jury and that its sufficiency was for the jury to decide. These defences were similarly raised in a prison context in R v Bruce, Wilson and Lucas.610
In that case, three prisoners were charged with unlawful confinement and extortion arising out of a hostage taking incident at the British Columbia Penitentiary. In their defence, they maintained that they acted “with reasonable justification or excuse” and out of “necessity”. They took the position that the evil they committed — the taking of hostages — was necessary because there were no effective peaceful alternatives available to them to avoid a greater evil, namely their return to solitary confinement at the British Columbia Penitentiary which they believed to be “cruel and unusual treatment or punishment” contrary to the provisions of s2(b) of the Canadian Bill of Rights . One of the accused, by the time of the trial, had been successful as one of the plaintiffs in the case of McCann et al v R et al611 a civil case in which a number of prisoners successfully obtained a declaration from the Federal Court Trial Division that the conditions and circumstances in the solitary confinement unit at the British Columbia Penitentiary during the time period in question did amount to cruel and unusual treatment or punishment, contrary to the Canadian Bill of Rights.612 Evidence was presented at the trial before the jury that the accused had each spent varying lengthy periods of time in solitary confinement and then had been released into the general prison population. As a result of rumours which they corroborated through staff, they heard that they were about to be returned to solitary and they had a genuine fear for their physical and mental well being if so returned. Evidence was called in their defence to show the ineffectiveness of the inmate grievance procedure, the inability of the Correctional Investigator to do anything about the matter, and the ineffectiveness of previous judicial remedies even where declaratory relief was successfully obtained but little was done, in their view, to comply with the declaratory judgment. Although the defences were left to the jury, there being evidence to support them, the trial judge did preclude the defence from calling expert evidence on the question of whether or not the accused were or would be subjected to “cruel and unusual treatment or punishment”. In his reasons, Toy, J declined to find that on the evidence the accused had been subjected to cruel and unusual treatment or punishment notwithstanding the McCann613 decision. As a result, the accused were prevented from pointing to the alleged breach of the Canadian Bill of Rights614 as being the greater evil that they were trying to avoid. It is most important to note that this case, and the defences raised, pointed to circumstances of urgency or emergency where the greater evil that they sought to avoid was an immediate and physical one involving a threat to their physical and mental well being, and therefore the security of their person. It is equally important to note that there was evidence presented to the jury of attempts to exhaust prior peaceful remedies and their ineffectiveness. It should be equality apparent that it is extremely difficult to define beforehand the circumstances in which the defence of necessity might be available. As Kenny Said “It is just possible to imagine cases in which the expediency of breaking the law is so overwhelmingly great that people may be justified in breaking it but these cases cannot be defined beforehand”.615 In most cases where the defence is raised, it will ultimately be up to the jury to decide whether the defence is applicable after appropriate instructions from the presiding trial judge on the applicable legal principles. In R v Bruce, Wilson and Lucas616 the jury convicted. An appeal from that decision was ultimately abandoned.
It should also be noted and perhaps stressed, that at the time of R v Bruce, Wilson and Lucas617 there was a general consensus about the ineffectiveness of the existing inmate grievance procedure and the courts clearly appeared to be exhibiting a “hands off” policy towards prisoner attempts to resolve their complaints in the courts. Since that time, however, the grievance procedure has been substantially revised and provides some opportunity for examination of the grievance by an outside review board. In addition, the Supreme Court of Canada decided in Martineau (No. 2)618 that judicial remedies are indeed available in the Federal Court Trial Division to quash decisions of federal boards, commissions or tribunals. Most importantly, the Supreme Court of Canada decided in trilogy of cases in Cardinal and Oswald,619 Miller620 and Morin (supra)621 that the provincial superior courts have jurisdiction to grant habeas corpus with or without certiorari in aid to secure the release of a prisoner from solitary confinement (the prison within the prison) to the general population if that form of detention is unlawful in the circumstances. Consequently, these subsequent judicial decisions and modifications of internal remedies would appear to make it most unlikely that the kind of situation that prevailed at the old British Columbia Penitentiary giving rise to the defences in R v Bruce, Lucas and Wilson622 will arise again. Any prisoner being subjected to that kind of treatment in solitary confinement or elsewhere within the prison system now has an opportunity to get into a court on habeas corpus or on certiorari or both to have the legality of their detention or aspects of that detention determined by a court of law and seek an appropriate remedy. Given these changes, it seems unlikely that a court would give effect to the defences suggested, except in extreme circumstances, and only after clear evidence that these peaceful remedies are clearly ineffective. Each case will have to be decided on its own facts.
The principles enunciated by Dicey623 forming the “Rule of Law”, are not merely abstract legal principles but rather principles that have been formulated as a result of a considerable experience with, and deep understanding of, human behaviour. Clearly, in the realm of conflict resolution between the individual in society and the state or government, the existence of arbitrary power in the hands of a government official, coupled with the absence of judicial remedies for the protection of the rights and liberties of the subjects, leads to a situation where resort to force or violence as a remedy would become the rule of the day. The undesirability of this state of affairs is obvious and it is from this premise that the challenge continues for the Canadian Correctional Service, the Bar and the judiciary, to ensure the existence of effective peaceful remedies to prevent the abuse of power by officials of government and to ensure that such powers are exercised fairly, both in a substantive and procedural sense, and in accordance with the general law and the law of the constitution. The failure of effective peaceful remedies to redress legitimate grievances results in violence. It is the duty and responsibility of an independent Bar and judiciary to ensure that the remedy of violence is unnecessary for the resolution of disputes between the citizens themselves and the citizens and their government.
The time is past when the wielders of legitimated violence can count on their immunity from the fury they inspire in their victims. “The strong are not that strong … the weak are not that weak.” ln a moral vacuum the resistence of the oppressed must become the involuntary conscience of the oppressor.624