Appellants were prisoners who were allegedly
involved in a hostage‑taking incident in Matsqui Institution. Criminal
charges of forcible seizure and attempted escape were laid against them. They
were transferred to Kent Institution where they were placed, on the Director's
oral instructions, in administrative dissociation or segregation, pursuant to
s. 40 of the Penitentiary Service Regulations, on the ground that it was
necessary for the maintenance of good order and discipline in the institution.
The Director did not make an independent inquiry into the alleged involvement
of the appellants in the hostage‑taking incident but relied on what he
had heard from the warden of Matsqui Institution and personnel at regional
headquarters. The Segregation Review Board, which reviewed the appellants' segregation
monthly in accordance with s. 40 of the Regulations, recommended that they be
released from administrative segregation into the general prison population.
The Director refused to follow the Board's recommendation on the ground that
the appellants' release from segregation before the disposition of the criminal
charges pending against them would "probably" or "possibly"
introduce an unsettling element into the prison population. The Director did
not inform the appellants of his reasons for refusing to follow the Board's
recommendation and did not give them an opportunity to be heard as to whether
he should act in accordance with the recommendation.
Appellants challenged their continued confinement in
administrative dissociation or segregation by applications for habeas corpus
with certiorari in aid. McEachern C.J.S.C. in the Supreme Court of
British Columbia held that the Court had jurisdiction to issue certiorari
in aid of habeas corpus, despite the exclusive jurisdiction by way of certiorari
of the Federal Court of Canada under s. 18 of the Federal Court Act , and
that habeas corpus would lie to determine the validity of confinement in
administrative segregation. On the merits of the applications, he held that the
continued segregation of the appellants, despite the recommendation of the
Segregation Review Board, had become unlawful because of a breach of the duty
of procedural fairness, and he ordered the release of the appellants into the
general population of the penitentiary. The British Columbia Court of Appeal
held that the Supreme Court had jurisdiction to issue certiorari in aid
of habeas corpus, that the Court could on habeas corpus alone
consider affidavit evidence to determine whether there had been an absence or
excess of jurisdiction, and that habeas corpus would lie to determine
the validity of confinement in administrative segregation, but a majority of
the Court of Appeal held that the continued segregation of the appellants had
not been rendered unlawful by a breach of the duty of procedural fairness. The
appeal was accordingly allowed.
Held: The appeal should
be allowed.
For the reasons given in R. v. Miller, [1985]
2 S.C.R. 613, the Court of Appeal correctly concluded (a) that the British
Columbia Supreme Court had jurisdiction to issue certiorari in aid of habeas
corpus; (b) that the Court could on an application for habeas corpus
alone consider affidavit evidence to determine whether there had been an
absence or excess of jurisdiction; and (c) that habeas corpus would lie
to determine the validity of the confinement of an inmate in administrative
dissociation or segregation, and if such confinement be found to be unlawful to
order his release into the general population of the institution.
The Director was under a duty of procedural fairness
in exercising the authority conferred by s. 40 of the Regulations with respect
to administrative dissociation or segregation. At common law, a duty of
procedural fairness lies 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. The duty of procedural fairness has
been held to apply in principle to disciplinary proceedings within a
penitentiary, and although administrative segregation is distinguished from
punitive or disciplinary segregation in the Regulations, the effect on the
prisoner is the same and gives rise to the duty to act fairly. The extent to
which procedural requirements are imposed in the prison setting must, however,
be approached with caution.
The original imposition of administrative
dissociation or segregation on the appellants was a lawful exercise of the
Director's discretionary authority and was not carried out unfairly. In view of
the urgent or emergency nature of the decision there could be no requirement of
prior notice and hearing. In the case of the Director's decision to continue
the appellants' segregation, despite the recommendation of the Segregation
Review Board that they be released into the general population of the
penitentiary, procedural fairness required that the Director inform the
appellants of the reasons for his intended decision and give them an
opportunity before him, however informal, to state their case for release.
These minimal requirements of procedural fairness were fully compatible with
the concern that the process of prison administration, because of its special
nature and exigencies, should not be unduly burdened or obstructed by the
imposition of unreasonable or inappropriate procedural requirements.
As to the possible suggestion in the decision of the
majority of the Court of Appeal that the breach of the duty of procedural
fairness, if any, was not of sufficient consequence to render the continued
segregation of the appellants unlawful, 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.
By his failure to afford the appellants a fair
hearing on the question whether he should act in accordance with the
recommendation of the Segregation Review Board the Director rendered the
continued segregation of the appellants unlawful. They, therefore, had a right
on habeas corpus to be released from administrative dissociation or
segregation into the general population of the penitentiary.
Cases Cited
R. v. Miller,
[1985] 2 S.C.R. 613, followed; Nicholson v. Haldimand‑Norfolk Regional
Board of Commissioners of Police, [1979] 1 S.C.R. 311; Martineau v.
Matsqui Institution Disciplinary Board (No. 2), [1980] 1 S.C.R. 602; Attorney
General of Canada v. Inuit Tapirisat of Canada, [1980] 2 S.C.R. 735; R.
v. Hull Prison Board of Visitors, ex parte St Germain, [1979] 1 All E.R.
701, referred to.
Statutes and Regulations Cited
Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10, s. 18.
Penitentiary Act, R.S.C. 1970, c. P‑6.
Penitentiary Service
Regulations, C.R.C. 1978, c. 1251, s. 40(1),
(2).
APPEAL from a judgment of the British Columbia Court
of Appeal, [1982] 3 W.W.R. 593, 137 D.L.R. (3d) 145, 67 C.C.C. (2d) 252, 35
B.C.L.R. 201, allowing an appeal from orders of McEachern C.J.S.C. granting
relief upon applications for habeas corpus with certiorari in aid
and ordering appellants' release from administrative dissociation into the
general prison population. Appeal allowed.
B. A. Crane, Q.C.,
for the appellants.
W. B. Scarth, Q.C.,
and Mary Humphries, for the respondent.
The judgment of the Court was delivered by
1. Le
Dain J.‑‑The general question in this appeal is whether
relief by way of habeas corpus with certiorari in aid is
available in a provincial superior court to obtain the release of a prisoner in
a federal penitentiary from administrative dissociation or segregation into
normal association with the general population of the penitentiary on the ground
that the segregation was imposed or continued in breach of the requirements of
procedural fairness.
2. The appeal is by leave of this Court
from the judgment of the British Columbia Court of Appeal on March 31, 1982,
[1982] 3 W.W.R. 593, 67 C.C.C. (2d) 252, allowing an appeal from the judgment
of McEachern C.J. of the Supreme Court of British Columbia on December 30, 1980
granting relief upon applications for habeas corpus with certiorari
in aid and ordering that the appellants be released from administrative
dissociation or segregation in Kent Institution into the general population of
the penitentiary, subject to all the jurisdiction of the Director as set forth
in the Penitentiary Act, R.S.C. 1970, c. P‑6, and regulations
thereunder.
3. The appellants were imprisoned in
Matsqui Institution when, on July 27, 1980, they became involved in a hostage‑taking
incident in which they allegedly held a guard at knifepoint and unlawfully
confined him for five hours. Criminal charges of forcible seizure and attempted
escape were laid against the appellants, and on July 28, 1980 they were
transferred to Kent Institution, a maximum security penitentiary, where they
were placed in administrative dissociation or segregation on the oral
instructions of the warden (hereinafter referred to as the
"Director") of the institution, pursuant to s. 40(1)(a) of the
Penitentiary Service Regulations, C.R.C. 1978, c. 1251. Section 40 reads
as follows:
40. (1)
Where the institutional head is satisfied that
(a) for the
maintenance of good order and discipline in the institution, or
(b) in the best
interests of an inmate
it is necessary or
desirable that the inmate should be kept from associating with other inmates,
he may order the inmate to be dissociated accordingly, but the case of every
inmate so dissociated shall be considered, not less than once each month, by
the Classification Board for the purpose of recommending to the institutional
head whether or not the inmate should return to association with other inmates.
(2) An
inmate who has been dissociated is not considered under punishment unless he
has been sentenced as such and he shall not be deprived of any of his
privileges and amenities by reason thereof, except those privileges and
amenities that
(a) can only be
enjoyed in association with other inmates, or
(b) cannot
reasonably be granted having regard to the limitations of the dissociation area
and the necessity for the effective operation thereof.
4. Administrative dissociation or
segregation, as it was called by the Director of Kent Institution in his
evidence, and as it will for convenience be referred to hereinafter, is a form
of confinement involving severe restrictions on mobility, activity and
association. It is described in the reasons for judgment of McEachern C.J.S.C.
as follows:
The
liberty and freedom of a prisoner placed in segregation is further reduced, and
solitary confinement (a term the Director does not accept) is a phrase used by
prisoners to describe segregation.
The
cells used to house prisoners in segregation are 6 feet wide, 10 feet long and
8 feet high. Access is gained through a solid door containing a small window.
There is a window on the outside wall. The cell contains a radio, a bed, and a
combination basin/toilet.
The
regular routine for these prisoners in the absence of outside visitors or
consultation with lawyers, et cetera, is to be locked in their cells for 23
hours per day, with one hour for exercise. Visitors are permitted to visit
every day Monday through Friday. Lawyers are permitted to visit as a general
rule on Tuesdays and Wednesdays. Prisoners in segregation have access to a
canteen, but there are limits on what they can purchase. They are paid an
allowance (the amount was not specified) at the same grade they were paid
before being segregated. I mention these matters, because the Director makes a
point that administrative dissociation is not the same thing as what is often
called solitary confinement.
5. The segregation of the appellants was
reviewed once a month, in accordance with s. 40 of the Regulations, by a
classification board called the Segregation Review Board, which was composed of
members of the penitentiary staff. The appellants appeared before the Board. On
October 7, 1980 the Board recommended to the Director that the appellants be
returned to normal association with the general prison population. The Director
declined to follow this recommendation. In its subsequent reviews of the
appellants' case the Board maintained its favourable recommendation, but the
Director continued to hold them in segregation. At the time their applications
for habeas corpus with certiorari in aid were heard in November
1980, they had been in segregation for some four months, and the indication was
that the Director would likely continue the segregation until disposition of
the criminal charges against them.
6. In his affidavits filed in response to
the appellants' applications for habeas corpus with certiorari in
aid and in his testimony on cross‑examination the Director indicated that
he had ordered the segregation of the appellants because of what he had heard
from the warden of Matsqui Institution and personnel at regional headquarters
concerning the hostage‑taking incident, and that apart from these
conversations he had not made, and he did not intend to make, an independent
inquiry into the appellants' alleged involvement in the incident. He had
decided not to follow the recommendation of the Segregation Review Board
because, while he accepted its favourable opinion of the appellants' conduct in
Kent Institution, he believed that their release from segregation before the
disposition of the criminal charges against them would result in the
"probable" or "possible" introduction of an unsettling
element into the general population of the institution and was therefore not in
the interests of the maintenance of good order and discipline in the institution.
He could not point to a specific reason for holding this belief but based it on
his personal assessment of the "dynamics" of the institution, a
judgment which he referred to at one point as an "instinctive
reaction" and conceded at another point could be described as a "gut
reaction". He indicated that the primary consideration underlying his
decision was the seriousness of the hostage‑taking incident in which the
appellants were alleged to have been involved, and he could not point to any
factor that would be likely to change his decision before the question of their
involvement had been clarified by disposition of the criminal charges. It was
not for him to determine that question when it was before the courts.
7. Although the Director talked to the
appellants he did not inform them of his reasons for refusing to follow the
recommendation of the Segregation Review Board that they be released from
segregation into the general population of the institution or afford them the
opportunity of a hearing before him as to whether they should be released.
II
8. In their applications for habeas
corpus with certiorari in aid and their supporting affidavits the
appellants attacked the original imposition and continuation of their
administrative segregation, despite the recommendation of the Segregation
Review Board, on the ground that it was not necessary for the maintenance of
good order and discipline in the institution. At the hearing of their
applications, however, the jurisdictional issue that emerged was whether they
had been denied procedural fairness in the imposition and continuation of their
segregation. There also emerged two issues concerning the jurisdiction of the
Court to entertain an application for habeas corpus with certiorari
in aid to obtain the release of an inmate of a federal penitentiary from
administrative segregation into normal association with the general population
of the institution: (a) whether, in view of the exclusive jurisdiction of the
Federal Court of Canada under s. 18 of the Federal Court Act, R.S.C.
1970 (2nd Supp.), c. 10, to issue certiorari against any federal board,
commission or other tribunal, the Supreme Court of British Columbia had
jurisdiction to issue certiorari in aid of habeas corpus; and (b)
whether habeas corpus will lie to challenge the validity of the
confinement of an inmate in administrative segregation and, if such confinement
be found to be unlawful, to order his release into the general population of
the institution.
9. In the Supreme Court of British
Columbia, McEachern C.J. held that the Court had jurisdiction to issue certiorari
in aid of habeas corpus against a federal board, commission or other
tribunal and that habeas corpus would lie to release an inmate from
administrative segregation into the general population of a penitentiary. On
the merits, he held that while the original imposition of segregation was not
carried out with unfairness, its continuation despite the recommendation of the
Segregation Review Board that the appellants be released into the general
population of the institution was unlawful by reason of a denial of procedural
fairness.
10. The British Columbia Court of Appeal
(Nemetz C.J. and Macdonald and Anderson JJ.A.) were unanimously of the view,
for reasons given by Anderson J.A., that the Supreme Court of British Columbia
had jurisdiction to issue certiorari in aid of habeas corpus;
that in any event a court could, on an application for habeas corpus
alone, consider affidavit evidence in determining whether there had been an
absence or excess of jurisdiction in ordering a detention; and that habeas
corpus would lie to challenge the validity of confinement in administrative
segregation and to order the release of an inmate from such segregation, if
found unlawful, into the general population of the penitentiary. They were
further agreed that in exercising the authority conferred by s. 40 of the
regulations with respect to administrative segregation the Director had a duty
of procedural fairness, but a majority of the Court (Nemetz C.J.B.C. and
Macdonald J.A.), Anderson J.A. dissenting, held that there had not been a
breach of that duty. Nemetz C.J.B.C. 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. On this ground the appeal was allowed and the
judgment of McEachern C.J.S.C. ordering the release of the appellants into the
general population of the penitentiary set aside.
11. The appellants appeal from the judgment of
the Court of Appeal on the question whether there was a breach of the duty of
procedural fairness in the continuation of their segregation despite the
recommendation of the Segregation Review Board. While supporting the conclusion
of the majority of the Court of Appeal on this issue, the respondent contends
that the Supreme Court of British Columbia did not have jurisdiction to issue certiorari
in aid of habeas corpus and that habeas corpus will not lie to obtain
the release of an inmate of a penitentiary from administrative segregation into
the general population of the institution.
12. It should be noted that at the time the
appeal was heard by the British Columbia Court of Appeal the appellants had
been released from Kent Institution. The court was of the view, however, that
the appeal should be heard because of the general importance of the issues
raised. This Court has proceeded on the same basis.
III
13. For the reasons given in R. v. Miller,
[1985] 2 S.C.R. 613, which was heard at the same time as this appeal, I agree
with the conclusions of the British Columbia Court of Appeal expressed in the
reasons of Anderson J.A., with whom Nemetz C.J. and Macdonald J.A. concurred,
on the three issues concerning the jurisdiction of the British Columbia Supreme
Court: (a) that the Court had jurisdiction to issue certiorari in aid of
habeas corpus; (b) that the Court could on an application for habeas
corpus alone consider affidavit evidence to determine whether there had
been an absence or excess of jurisdiction; and (c) that habeas corpus
will lie to determine the validity of the confinement of an inmate in
administrative segregation, and if such confinement be found to be unlawful, to
order his release into the general inmate population of the institution. There
is no significant difference, in so far as the last question is concerned,
between confinement in administrative dissociation or segregation, pursuant to s.
40(1) of the Penitentiary Service Regulations, and confinement in a
special handling unit, as in Miller, supra. Both are
significantly more restrictive and severe forms of detention than that
experienced by the general inmate population. Indeed, as indicated in the
reasons for judgment in Miller, supra, Commissioner's Directive
274 of December 1, 1980 provides that phase 1 of confinement in a special
handling unit shall consist of a period of assessment in administrative
segregation.
IV
14. There can be no doubt, as was held by
McEachern C.J.S.C. and the Court of Appeal, that the Director was under a duty
of procedural fairness in exercising the authority conferred by s. 40 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
Regional Board of Commissioners of Police, [1979] 1 S.C.R. 311; Martineau
v. Matsqui Institution Disciplinary Board (No. 2), [1980] 1 S.C.R. 602; Attorney
General of Canada v. Inuit Tapirisat of Canada, [1980] 2 S.C.R. 735. In Martineau
(No. 2), supra, 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 s. 40 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.
15. 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. The caution with which this question must be approached in the
context of prison administration was emphasized by this Court in Martineau
(No. 2), supra. Pigeon J., with whom Martland, Ritchie, Beetz, Estey
and Pratte JJ. concurred, said at p. 637:
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 Attorney General of Quebec v. Cohen ([1979] 2
S.C.R. 305). 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.
Dickson J. (as he then was), with whom Laskin C.J. and McIntyre J.
concurred, expressed a similar caution at p. 630 as follows:
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.
The same caution was emphasized by the Court of Appeal in R. v. Hull
Prison Board of Visitors, ex parte St Germain, [1979] 1 All E.R. 701, which
was referred to by Pigeon and Dickson JJ. in Martineau (No. 2), supra,
and in which Megaw L.J. said at p. 713 concerning the judicial review of prison
disciplinary decisions:
It is certainly not any
breach of any procedural rule which would justify or require interference by
the courts. Such interference, in my judgment, would only be required, and
would only be justified, if there were some failure to act fairly, having regard
to all relevant circumstances, and such unfairness could reasonably be regarded
as having caused a substantial, as distinct from a trivial or merely technical,
injustice which was capable of remedy.
V
16. Although McEachern C.J.S.C. severely
criticized the imposition of administrative segregation by oral instructions
that are not followed as soon as possible by written notice with reasons for
the decision, he held, as I have indicated, that the original imposition of
administrative segregation in this case was a lawful exercise of the Director's
discretionary authority under s. 40(1) of Penitentiary Service Regulations,
and that it was not carried out unfairly. That conclusion was not seriously
challenged on the appeal, and, indeed, it would not appear to be open to
challenge. Because of the apparently urgent or emergency nature of the decision
to impose segregation in the particular circumstances of the case, there could
be no requirement of prior notice and an opportunity to be heard before the
decision.
17. The procedural unfairness found by
McEachern C.J.S.C. was in continuing the administrative segregation of the
appellants, despite the recommendation of the Segregation Review Board that
they be released into the general population of the penitentiary, without
giving them notice of the reasons for refusing to follow that recommendation
and an opportunity to be heard, including a chance to present their side of the
hostage‑taking incident. McEachern C.J.S.C. also held that there was an
appearance of unfairness in the apparently closed mind of the Director on the
question of whether the segregation should be continued despite the favourable
recommendation of the Board, and even a suggestion that the segregation was
being continued in an attempt to force the appellants to plead guilty to the
criminal charges pending against them. He said that the Director was required
to make an independent inquiry into the circumstances of the hostage‑taking
incident, to examine the appellants' files and to ascertain whether the
continuation of the segregation was impairing their ability to instruct
counsel, as they claimed. The heart of his conclusion on the issue of
procedural fairness is contained in the following statement:
The Director had
jurisdiction to disregard the recommendation of the Review Board, but to do so
with fairness, it seems to me, the Petitioners ought to have been informed of
the reasons of the Director for continued segregation, and they should have
been given a fair opportunity to answer the case against them.
18. In the Court of Appeal Nemetz C.J. said
that he disagreed with the opinion of McEachern C.J.S.C. that the Director had
a duty to make further inquiry into the hostage‑taking incident and to
allow the prisoners an opportunity to be heard on their alleged involvement in
the incident. After referring to the necessity, emphasized in the decision of
this Court in Inuit Tapirisat, supra, of considering the
legislative scheme as a whole, he said:
This
decision assists me in analyzing the case at bar. Although the director's
function is essentially administrative in nature, he is given broad powers
under s. 40 of the regulations. He is not burdened with any standards or
guidelines in the exercise of his power to order that inmate be dissociated.
Procedural standards have not been imposed or implied. He must have enough
latitude to respond to the requirements of prison security as he sees fit. This
is especially so in cases of violence such as hostage‑taking.
After quoting the passages from the judgments of Pigeon and Dickson JJ.
in Martineau (No. 2), supra, which have been quoted above,
concerning the caution which must be adopted towards the imposition of
procedural requirements in the prison setting, Nemetz C.J.B.C. concluded on the
issue of fairness as follows:
Section
40(1) gives the director a broad discretionary power. In arriving at his
decision as to whether a prisoner is to be dissociated from the others in the
prison, he must be satisfied that it is for the maintenance of good order and
discipline or in the best interests of an inmate.
It is
my view that his testimony shows that it was the former concern that caused him
to disregard the classification board's recommendation for the month of
October. Was he justified in doing so? I think he was. The seriousness of the
incident and the circumstances surrounding it, as well as the situation in his
prison generally, played an important part in his determination. The
classification board's view related primarily to the assessment of the
behaviour of the two prisoners while in dissociation. However, the director had
to also consider his responsibilities in regard to the proper operation and
security of the whole institution. In my view, unless mala fides or unfairness
can be shown, his assessment should prevail. No mala fides has been shown. Any
procedural unfairness, if it exists, is not of sufficient substance to cause me
to conclude that the director acted outside of his jurisdiction.
19. Macdonald J.A. was of the view that there
had not been a denial of procedural fairness because the appellants knew the
considerations underlying the imposition and continuation of administrative
segregation in their case. He said:
With
great respect, I cannot find procedural unfairness in the circumstances here.
The petitioners would know that they were in dissociation at Kent because of
the incident at the Matsqui Institution in which they were alleged to have
taken a guard hostage at knifepoint. When they first appeared before the
Classification Board in July, they were expressly informed that they had been
placed in dissociation because of that incident. Now, there are many factors
favourable to the petitioners. They weighed with the Classification Board and
resulted in the recommendation in October that they be returned to the general
prison population. But they did not prevail with the director. He did not
decide in accordance with the recommendation. It was not a case of a decision
made under the influence, or possible influence, of material unknown to the two
inmates. The director was extensively cross‑examined as to his reasons.
He pointed out that the Classification Board was concerned with the two
individuals, whereas his responsibility was the operation of the whole
institution. He said that he was concerned about the seriousness of the incident
in which the two men had been involved; the effect of the unresolved
allegations and the situation generally on the inmate population, including the
violent element; and the factor of deterrence. Weighing the factors, the
director decided upon continued dissociation. I can find no procedural
unfairness. I think the essence of the complaints here is with respect to the
decision itself rather than the circumstances in which it was made. I am of the
opinion that the director acted within his jurisdiction.
20. Anderson J.A., dissenting on the question
of procedural fairness, expressed himself as in agreement with the reasons of
McEachern C.J.S.C. After referring to the cautions expressed in Martineau
(No. 2), supra, concerning the application of procedural
requirements in a prison setting, he said:
... while the procedural
protection available to the respondent was limited in the way described by all
members of the Supreme Court in Martineau, supra, I have concluded that
McEachern C.J.S.C. was correct in holding that the director did not observe
even the most minimal standards of procedural fairness. While the respondent
was not entitled to a full hearing or to confront witnesses or to counsel, at
the very least he ought to have been given an opportunity to make
representations as to why he should no longer be kept in solitary confinement.
I cannot do better than repeat what McEachern C.J.S.C. said in his reasons for
judgment in respect of this issue:
"The
director had jurisdiction to disregard the recommendation of the review board,
but to do so with fairness, it seems to me, the petitioners ought to have been
informed of the reasons of the director for continued segregation, and they
should have been given a fair opportunity to answer the case against them. They
should not have had to make out their case to a mind that was closed or almost
closed against them. To continue their segregation in the face of the
recommendation of the review board in the particular circumstances of this case
raises a reasonable apprehension that they should plead guilty which, by itself
is enough to cast a pervasive appearance of unfairness over these cases. In
addition, although a decision based upon a policy (such as one for prisoners
who are awaiting trial or for prisoners who have taken a hostage) may be
perfectly lawful, fairness requires timely reconsideration of the particular
circumstances of each prisoner and individual whose residual rights and
privileges are adversely being affected."
VI
21. The issue then is what did procedural
fairness require of the Director in exercising his authority, pursuant to s. 40
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 C.J.S.C. and Anderson J.A. 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
J.A., 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.
22. 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.
23. There is the question, suggested by the
reasons for judgment of Nemetz C.J.B.C., 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 C.J.B.C.,
was not of "sufficient substance". Both Nemetz C.J.B.C. and Macdonald
J.A. 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 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.
24. For these reasons I am of the opinion that
by his failure to afford the appellants a fair hearing on the question whether
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, the Director rendered the continued segregation
of the appellants unlawful. They, therefore, had a right on habeas corpus
to be released from administrative dissociation or segregation into the general
population of the penitentiary. I would accordingly allow the appeal, set aside
the judgment of the Court of Appeal and restore the judgment of McEachern
C.J.S.C.
Appeal allowed.
Solicitor for the appellants: John W. Conroy,
Abbotsford.
Solicitor for the respondent: Roger Tassé, Ottawa.
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