Judgments

[1993] 1 F.C. 710

A-904-90

Arthur Winters (Appellant)

v.

Regional Transfer Board, Prairie Region (Correctional Service Canada) and Michael Gallagher, Warden of Edmonton Institution (Respondents)

Indexed as: Williams v. Canada (Regional Transfer Board) (C.A.)

Court of Appeal, Isaac C.J., Pratte and Hugessen JJ.A.—Edmonton, December 3, 1992; Ottawa, January 14, 1993.

Penitentiaries — Warden's decision to transfer convict from Edmonton Institution to High Maximum Security Unit at Saskatchewan Penitentiary based on wrong understanding of facts — Acting Assistant Deputy Commissioner confirming Warden's decision — No progress summary filed contrary to Commissioner's Directive — Documents on file at Edmonton spoke well of convict's performance — Breach of procedural fairness — Decision confirming set aside — Transfer without opportunity to consult lawyer denial of right to counsel — Duty to inform convict of right to counsel, provide reasonable opportunity to exercise right when decision made to place in administrative segregation, transfer — Transfer to administrative segregation, high maximum security constituting new detention.

Constitutional law — Charter of Rights — Criminal process — Right to counsel — Federal penitentiary inmate transferred to high maximum security facility without opportunity to contact lawyer — Charter, s. 10 giving right to retain and instruct counsel without delay on arrest or detention — Transfer to high security or administrative segregation constituting new and separate detention — Duty to inform appellant of right to counsel and to provide reasonable opportunity to exercise right when decision made to place in administrative segregation, transfer to high maximum security.

Judicial review — Prerogative writs — Warden's decision to transfer convict from Edmonton Institution to High Maximum Security Unit at Saskatchewan Penitentiary based on wrong understanding of facts — Acting Assistant Deputy Commissioner confirming Warden's decision — No progress summary filed contrary to Commissioner's Directive — Documents on file in Edmonton praising convict's performance — Decision to confirm quashed — In some circumstances procedural fairness requiring administrative authority to disclose all material in its possession relevant to proposed decision — Progress summary in hands of decision-maker essential to procedural fairness herein — Contrary to fundamental justice to withhold, refuse to consider materials favourable to convict in possession of penitentiary authorities.

The appellant was serving a sentence of life imprisonment at the Edmonton Institution, a federal penitentiary. After a knife fight between two inmates, the inmates were ordered to return to their cells and were locked in (a “lock-down”). The Warden formed the opinion, based on information communicated to him by his staff, that the appellant was partially responsible for disrupting the smooth progress of the lock-down. He ordered the appellant's administrative segregation and immediate transfer to the High Maximum Security Unit at Saskatchewan Penitentiary. The appellant received a notification of recommendation for involuntary transfer prior to his departure from Edmonton Institution setting out the basis of the Warden's decision. As soon as he was advised of the intention to transfer him, the appellant sought permission to contact a lawyer, but his request was denied. After his arrival at Prince Albert, he received an expanded notification of recommendation for involuntary transfer. Appellant's requests to contact a lawyer were denied until after he was given the second notification. After consulting counsel, the appellant prepared and filed a written response to the transfer. Criminal charges laid against the appellant for obstructing the lock-down were subsequently withdrawn and it was inferred from this that the Warden had been mistaken in his view of the lock-down incident. The transfer was subsequently confirmed by the Acting Assistant Deputy Commissioner after consideration of the two notifications of recommendation for involuntary transfer and the appellant's written response thereto.

Commissioner’s Directive 540 lists a progress summary (brief picture of the inmate’s general behaviour and progress while incarcerated) as a mandatory document to be before the decision-maker considering a transfer. A notice of involuntary transfer recommendation and inmate written response must be provided in addition to the progress summary. No progress summary was ever submitted to the Acting Assistant Deputy Commissioner, although there were several documents on file at the Edmonton Institution which praised the appellant’s performance, including one dated after all but one of the incidents mentioned in the notification of recommendation for involuntary transfer.

On this appeal against a trial judgment denying an application to quash the decision to transfer and subsequent confirmation thereof, the issues were whether there had been a denial of procedural fairness and the appellant’s right to counsel.

Held, the appeal should be allowed.

There are some circumstances in which procedural fairness requires that an administrative authority disclose to a concerned person all material in its possession which may be relevant to a proposed decision regarding that person. This duty is at its highest in the criminal process, where the prosecution must disclose to the accused all material in its possession whether or not the Crown proposes to use such material. While rules governing prosecutions should not be imported without distinction into procedures relating to the transfer of penitentiary inmates, in the particular circumstances, the requirement of a progress summary in the hands of the decision-maker was an essential component of procedural fairness. The appellant had been transferred from Edmonton where he might have had access to documents and materials which might reflect favourably upon him, to Prince Albert where such access would be almost impossible and where he was held in conditions of extreme severity, bordering on isolation. The materials which would advance the appellant’s case were under the exclusive control of the penitentiary authorities and it was not in accordance with fundamental justice to not only withhold such materials from him, but to refuse to consider them at all. The Acting Assistant Deputy Commissioner reached his decision based on information now known to be wrong and without considering more up-to-date material which was highly favourable to the appellant. Such material, or a summary thereof, was required to be considered and it was possible to provide it.

The appellant was denied the right to counsel. Although an inmate’s right to consult counsel at any reasonable time does not require demonstration and exists independently of Charter guarantees, section 10 applies. That section provides that on arrest or detention everyone has the right to retain and instruct counsel without delay. It is well settled that a transfer into high security or administrative segregation amounts to a new and separate detention. The authorities were under a positive duty to inform the appellant of his right to counsel and to provide him with a reasonable opportunity to exercise that right as soon as they had decided to place him in administrative segregation and to transfer him to high maximum security. On the evidence, it would not have been impossible or impractical to have given the appellant an opportunity to consult a lawyer. Denial of the request to consult his lawyer could not be justified on the basis of the urgency of the situation. The Warden’s decision breached the appellant’s Charter rights and confirmation of the transfer should be quashed.

STATUTES AND REGULATIONS JUDICIALLY CONSIDERED

Canadian Charter of Rights and Freedoms, being Part I of the Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44], ss. 10, 24.

Criminal Code, R.S.C., 1985, c. C-46 (as am. by R.S.C., 1985 (1st Supp.), c. 27, s. 39), ss. 129, 279.

CASES JUDICIALLY CONSIDERED

APPLIED:

The Queen v. Miller, [1985] 2 S.C.R. 613; (1985), 52 O.R. (2d) 585; 24 D.L.R. (4th) 9; 16 Admin. L.R. 184; 23 C.C.C. (3d) 97; 49 C.R. (3d) 1; 63 N.R. 321; 14 O.A.C. 33.

CONSIDERED:

R. v. Manninen, [1987] 1 S.C.R. 1233; (1987), 41 D.L.R. (4th) 301; 34 C.C.C. (3d) 385; 58 C.R. (3d) 97; 76 N.R. 198; Mills v. The Queen, [1986] 1 S.C.R. 863; (1986), 29 D.L.R. (4th) 161; 26 C.C.C. (3d) 481; 52 C.R. (3d) 1; 21 C.R.R. 76; 67 N.R. 241; 16 O.A.C. 81; R. v. Gamble, [1988] 2 S.C.R. 595; (1988), 31 O.A.C. 81; 45 C.C.C. (3d) 204; 66 C.R. (3d) 193; 89 N.R. 161.

REFERRED TO:

R. v. Stinchcombe, [1991] 3 S.C.R. 326; (1991), 120 A.R. 161; [1992] 1 W.W.R. 97; 83 Alta. L.R. (2d) 193; 68 C.C.C. (3d) 1; 8 C.R. (4th) 277; 130 N.R. 277; 8 W.A.C. 161.

APPEAL from trial judgment ([1991] 1 F.C. 251; (1990), 38 F.T.R. 169) dismissing application for orders quashing the Warden’s decision to place the appellant in administrative segregation and to transfer him to high maximum security on an emergency basis, and the subsequent decision confirming and approving that transfer. Appeal allowed.

COUNSEL:

Charalee F. Graydon for appellant.

Larry M. Huculak for respondents.

SOLICITORS:

Bishop & McKenzie, Edmonton, for appellant.

Deputy Attorney General of Canada for respondents.

The following are the reasons for judgment rendered in English by

Hugessen J.A.:

Introduction

The appellant is serving a sentence of life imprisonment for first degree murder. On November 5, 1989, he was an inmate at the Edmonton Institution, a federal penitentiary, and was a resident of Living Unit “A” which was composed largely of lifers. At about 6:00 p.m., a knife fight occurred between two inmates in the courtyard of the Institution where there was a large number of inmates present. The appellant was not in the courtyard at the time of the fight and was not implicated in it. Indeed, he was in his living unit. Because the correctional officers were only able to recover one of the two weapons used in the fight and because of the generally tense situation, the authorities ordered a “lock-down” of all the inmates i.e., that they all should be returned to and be locked in their cells. The lock-down did not proceed smoothly in Living Unit “A” and the Warden of the Institution, basing himself on information received from his subordinates, formed the opinion that the appellant and four others had been responsible for impeding the operation of the locking barriers and for preventing two correctional officers, who were in the living unit at the time, from leaving it. On November 6, 1989, he ordered the appellant’s administrative segregation and his immediate transfer to the High Maximum Security Unit at the Saskatchewan Penitentiary. Some weeks later, on December 22, 1989, the appellant’s involuntary transfer to high maximum security was confirmed by the Acting Assistant Deputy Commissioner.

This appeal is from a decision of the Trial Division [[1991] 1 F.C. 251] dismissing the appellant’s application for orders quashing both the Warden’s initial decision to place the appellant in administrative segregation and to transfer him to high maximum security on an emergency basis, and the subsequent decision confirming and approving that transfer.

The Facts

The initial decision of the Warden was based upon his understanding of the facts as communicated to him by the staff of the Institution. That understanding is set out in the first paragraph of a notification of recommendation for involuntary transfer which was given to the appellant on November 6, 1989 prior to his leaving Edmonton:

Commencing at 1815 hours on November 5, 1989 you did assist inmate McLaren in pulling open the lower “A” Unit riot barrier and then block it with a chair. You were observed providing direction to other A Unit inmates that resulted in two officers being blocked from emergency exiting the Unit Office. You prevented them by participating in intimidating behavior and placing objects on the floor to impede their ability to exit. You were observed armed with a bat-like object during this incident.

On August 24, 1989 during an inmate committee meeting you did become verbally aggressive and stated that you would take out staff members if an attempt was made to remove you.

89-06-08—You were threatening to disrupt the industrial program at the Institution while negotiating to introduce programs.

89-03-18—You signed a memorandum to all inmates indicating all were to participate in a peaceful sitdown until the Institution met seven demands.

On 89-02-16 at approximately 1300 hours you were involved in a fight with inmate Dingwall in the courtyard.

Your actions on November 5, 1989 contributed to a serious institutional incident by preventing an emergency lock-up of all inmates following a serious fight with weapons in the courtyard.

As a result of your demonstrated disruptive behavior, you are being transferred to higher security on an emergency basis. [Appeal Book, at page 70.]

(It may be noted parenthetically that the alleged incidents referred to in the second, third, fourth and fifth paragraphs of this document were never made the subject of any disciplinary or other action against the appellant and had not even, apparently, given rise to any warnings.)

The Warden’s view of the facts justifying the transfer was enlarged upon and expanded in a second “Notification of Recommendation for Involuntary Transfer” which was given to the appellant on November 7, 1989, after his arrival at Prince Albert:

Commencing at approximately 1815 hours on November 5, 1989 you did assist inmate McLaren in pulling open the lower “A” Unit riot barrier and then block it with a chair. You were overheard saying “What the fuck’s going on. We’re not locking up.” You then appeared at the Unit Office door and advised Officers Kerich and Reekie that almost all the inmates in the Unit are lifers and “We have fuck all to lose.” You were advised to lock up but refused. You were observed walking around the Unit armed with a wooden object shaped like a baseball bat. You were involved and overheard providing direction to other inmates to place broom and/or mop handles on the floor of the foyer by the base of the stairs, near the sub control so as to make it difficult for Officers Kerich and Reekie to walk across the floor in order to exit the Unit. You were also involved in blocking the “A” Unit door to the sub control airlock. When Officers Kerich and Reekie entered the “A” Unit vestibule, you jammed yourself into the inner door to prevent it from closing and thereby, preventing the Officers from completing an emergency exit from the Unit as the inner door has to be closed for the outer door to open. Throughout the incident you were observed providing direction to other “A” Unit inmates that resulted in the incident escalating in seriousness.

Your actions on November 5, 1989 contributed to a serious institutional incident by preventing an emergency lockup of all inmates following a serious fight with weapons in the courtyard.

On August 24, 1989 during an inmate committee meeting you did become verbally aggressive and stated that you would take out staff members if an attempt was made to remove you. On 89-06-08 you were threatening to disrupt the industrial program at the Institution while negotiating to introduce programs.

On 89-03-18, you signed a memorandum to all inmates indicating all were to participate in a peaceful sitdown until the Institution met your seven demands.

On 89-02-16 at approximately 1300 hours, you were involved in a fist fight with inmate Dingwall in the inner courtyard of Edmonton Institution.

As a result of your demonstrated disruptive behavior at Edmonton Institution, you were transferred on an emergency basis to higher security. [Appeal Book, at page 71.]

In addition to the transfer to high maximum security, the alleged involvement of the appellant and four others in the incident in Living Unit “A” in Edmonton Institution on November 5, 1989 also gave rise to charges being laid against them under sections 279 (unlawful confinement) and 129 (obstruction) of the Criminal Code [R.S.C., 1985, c. C-46 (as am. by R.S.C., 1985 (1st Supp.), c. 27, s. 39)]. At the hearing of the appeal, we were informed by counsel that, subsequent to the hearing in the Trial Division, those charges came on for preliminary inquiry in the criminal courts. The appellant, for medical reasons, was unable to be present, but, at the conclusion of the preliminary inquiry all four of his co-accused were discharged on all counts. Subsequently, the charges against the appellant were withdrawn by the Crown. The only conclusion that we can draw from this is that the Warden was mistaken in his view of what had taken place in Living Unit “A” on November 5, 1989 and that the appellant was and is innocent of the allegations made against him.

Prior to leaving Edmonton Institution, and as soon as he was advised of the intention of the authorities to transfer him to the High Maximum Security Unit, the appellant asked to be allowed to consult counsel but his request was denied. This is how he puts the matter in his affidavit:

7. On or about November 6, 1989 at approximately 2:00 p.m., Correctional Officer Fecteau attended at my cell in A Unit and advised me that I was being transferred to the High Maximum Security Unit, Saskatchewan Penitentiary. At the time Correctional Officer Fecteau attended at my cell, I was aware that he was accompanied by members of the Institutional Emergency Response Team.

8. I accompanied Correctional Officer Fecteau to the Admissions and Discharge Department where I was provided with a Notice stating that I would be transferred to Saskatchewan Penitentiary where I would placed (sic) in Administrative Segregation on the High Maximum Security Unit (attached hereto and marked as Exhibit “A” is a true copy of the Notice I received from Mr. Fisher in Admissions and Discharge on November 6, 1989).

9. While at the Admissions and Discharge Department, I asked Correctional Officer Fisher to be provided an opportunity to contact legal counsel and was advised by Officer Fisher that I would not be allowed to contact legal counsel. [Affidavit of Arthur Winters, Appeal Book, at page 6.]

After his arrival at Prince Albert the appellant asserts that he again made several requests to consult his lawyer but that these were not complied with until after he was given the second “Notification of Recommendation for Involuntary Transfer”. On his cross-examination he said:

Q   I see. So on the plane you received Exhibit C from Mr. Fecteau, I believe?

A    Yes, I did.

Q   And did you receive any other documentation regarding why you were being transferred, either on the plane or after you got to Prince Albert?

A    A couple of days later, we received another one of these in the SHU—that’s what they call the special handling unit. It’s a couple of pages down here.

Q   Exhibit E?

A    Exhibit E, yes. We received it.

Q   So you personally got a copy of Exhibit E from a security officer or somebody?

A    The guy that runs the SHU. His name is Vic Taylor.

Q   And did he read it to you as well, Exhibit E?

A    No, he didn’t read it to me. He just gave it to me.

Q   I see. And was there any discussion between you and Mr. Taylor regarding counsel?

A    Yes, as soon as he found out. When we got there, we made numerous requests of the officers in the SHU that we wanted to make contact with legal counsel from the time we got there, and we were told we weren’t allowed to make any calls.

Q   You say “we”. I’m just interested in what you did.

A    Okay. I asked and I was told, no, I wasn’t allowed to make any calls until I seen this Mr. Taylor. I told him and he ordered them at that time as soon as I finished talking to him to be taken to a telephone and allowed, be able to make a call.

Q   You say when you arrived at Prince Albert, you asked to contact counsel?

A    Yes, I did.

Q   On how many occasions? Do you recall?

A    Pretty well anybody—I can’t say the exact number. Anybody that would listen more or less. Every officer that came to my door.

Q   What time of the day were these requests made?

A    Numerous times during the day. They do their range walks or they do the—come to our slots for meals, stuff like that.

Q   So when you were taken to Prince Albert, you were placed in the special handling unit?

A    M-hm.

Q   Yes?

A    Yes.

Q   And how is that different from [sic] the situation at the Edmonton Institution?

A    Well, what it is is you are handcuffed and shackled everywhere you go pretty well. If you are anywhere where you are in contact with anybody, you are handcuffed or put in a body belt, restrained with your hands to your side with shackles on your feet. There is a guard up above you with a rifle and you’re escorted everywhere you go with a minimum two guards and you [sic] never at any time allowed with any other people, inmates or staff. [Cross-examination of Arthur Winters, Appeal Book, at pages 94-96.]

Following his finally being allowed to contact counsel, the appellant prepared and filed a written response to the proposed transfer as provided for in paragraphs 15 to 18 of Commissioner’s Directive 540: “Transfers of Inmates”:

INVOLUNTARY TRANSFERS

15. The inmate shall be notified, in writing, of a proposed involuntary transfer and the reasons for the transfer. The inmate shall be provided with as much substance and detail as possible to allow the inmate to know the case against him/her, and to provide him/her with the opportunity to respond.

16. The inmate shall be informed, in writing, that he or she has the right to respond to the proposed transfer, in writing, within 48 hours of the notification.

17. The inmate’s written response to a proposed involuntary transfer shall be considered by the decision-maker. At such time as the decision-maker authorized an involuntary transfer, the reasons for the decision shall be provided, in writing, to the inmate. In those cases where the inmate has provided a written response to the proposed involuntary transfer, the reasons provided by the decision-maker shall indicate that consideration was given to the inmate’s response.

18. In an emergency situation, a transfer may take place without prior notification to the inmate. In such cases, the inmate shall be informed of the reasons for the transfer within two working days after placement in the receiving institution, and shall have the opportunity to respond, in writing, within 48 hours from the time of notification. The reasons for the transfer and the response shall be considered by the decision-maker, and if the involuntary transfer decision is upheld, the decision-maker shall provide the inmate with the decision and the reasons in writing.

In due course, and as indicated, the Acting Assistant Deputy Commissioner approved the transfer:

7. My decision to approve the transfer was made after considering the Notifications which are Exhibits “A” and “B” to this my Affidavit as well as the Applicant’s response to these Notifications. [Affidavit of Jack Linklater, Appeal Book, at page 68.]

Issues In Appeal

Of several points taken by the appellant, we only called upon the respondents to reply to two, namely the failure to respect the requirements of procedural fairness and the denial of the right to counsel.

Procedural Fairness

As indicated, the decision of the Acting Assistant Deputy Commissioner was reached after considering only the two “Notification[s] of Recommendation for Involuntary Transfer” and the appellant’s written response thereto. There was clearly a failure to comply with the provisions of Commissioner’s Directive 540, Annex A: “Standards for Inmates Transfers” paragraphs 3 and 4 of which read as follows:

DOCUMENTATION

3.   The decision-maker shall be provided with certain mandatory documents for review when considering all transfers. This requirement does not apply to transfers which occur in relation to the initial placement of offenders. The transfer documentation package shall include, but is not limited to, the following:

a.   progress summary;

b.   inmate transfer application (required for voluntary transfers only);

c.   FPS number;

d.   preventive security memoranda; and

e.   transfer referral decision sheet.

4.   In addition to the documents identified as mandatory for all transfer decisions, the following information must be provided to the decision-maker when an involuntary transfer is proposed or after an emergency transfer has been effected:

a.   notice of involuntary transfer recommendation; and

b.   inmate written response. [Emphasis added.]

In particular, it is quite clear that no progress summary was ever prepared or submitted to the Acting Assistant Deputy Commissioner:

8. Normally, a Progress Summary Report would be prepared when an inmate is being transferred. However, in this case, I am advised by reviewing the files of the Correctional Service of Canada and truly believe that due to the emergency nature of this transfer, a Progress Summary Report was not prepared. I am also advised by reviewing the files of the Correctional Service of Canada and truly believe that at the time of the transfer, the individuals who would normally have prepared a Progress Summary Report were on strike. [Affidavit of Jack Linklater, Appeal Book, at page 68.]

The progress summary, as the name implies, is intended to give a brief picture of the inmate’s general behaviour and progress during his incarceration. It is a document which may well be expected to contain material which will be favourable to the inmate. Indeed, if such material exists it would have to be reflected therein. In fact, it is clear that the files at Edmonton Institution contained a number of reports which spoke well of the appellant’s performance.

In a document entitled “Progress Report” (we were not informed whether or not this was the same thing as a “progress summary”) and dated April 17, 1989, we find the following:

SUMMARY

Overall, Mr. Winters’ performance has been satisfactory up to February 2, 1989. His involvement in the Inmate Committee has made him more visible to the rest of the institutional staff. As stated in all progress reports in the past year or two, Mr. Winters will vocalize his concerns, but has not had a physical confrontation with staff. For the most part, Mr. Winters is an effective mediator on the Unit and with the Committee. Project continued employment with the Hobby Shop and family support in the next reporting period. [Appeal Book, at page 62.]

In a further document signed by Correctional Officer Harvie and dated September 11, 1989, it is written:

1)   For over 5 months Art Winter was one of my inmate employees in the hobby shop here at Edmonton Institution.

2)   Art helped me immensely in the administrative and operational areas of the hobby shop. If I had a question about procedure, when I first started in the ship, Art had the definitive answer.

3)  As Art learned more about tools he was quick to assist others with his knowledge. Art was a very dependle (sic) and concientious (sic) employee.

4)   I would be happy to have Art work for me anytime. He is a self-starter and able to see all aspects of a situation. He requires little supervision to do his job. [Appeal Book, at page 64.]

It may be noted that this latter document is subsequent in time to all of the alleged incidents mentioned in the “Notification of Recommendation for Involuntary Transfer” other than the alleged events of November 5, 1989.

Given the contents of Commissioner’s Directive 540, previously quoted, the respondents can hardly contend that the progress summary would not have been relevant to the decision made by the Acting Assistant Deputy Commissioner. Indeed, although it is common ground that the Commissioner’s Directive does not have the force of law, it describes the progress summary as being mandatory to the decision-making process.

In my view, there are some circumstances in which procedural fairness will require that an administrative authority disclose and make available to the person concerned all material which may be in the authority’s possession and which may arguably have a bearing for or against a decision which it is proposed to make regarding such person. This duty is at its highest and most developed in the criminal process, where the Supreme Court has recently confirmed in unambiguous terms the duty of the prosecution to disclose to the accused all material in its possession whether or not the Crown proposes to use such material.[1]

While I would not wish to be understood as holding that the rules governing prosecutions should be imported without distinction into the procedures relating to the transfer of penitentiary inmates, I am nonetheless of the view that, in the particular circumstances of this case, the requirement of a progress summary in the hands of the decision-maker was an essential component of procedural fairness.

It will be recalled that under the terms of the procedure laid down in Commissioner’s Directive 540 the appellant was required to respond to the “Notification of Recommendation of Involuntary Transfer” within 48 hours. It will also be recalled that the appellant had, within that same 48-hour period, been transferred on an emergency basis from Edmonton, where he might be expected to have or to have access to documents and materials which might reflect favourably upon him, to Prince Albert where such access would be almost impossible and where he was held in conditions of extreme severity, bordering on isolation. The materials which would advance the appellant’s case were under the exclusive control and direction of the penitentiary authorities and it is simply not in accordance with the dictates of fundamental justice for them not only to withhold such materials from him but to refuse to consider them at all.

The Acting Assistant Deputy Commissioner reached his decision on the basis of information relating to the November 5, 1989 incident which we now know to be wrong. He also reached it on the basis of allegations relating to previous incidents but without considering more up-to-date material which was highly favourable to the appellant and which was in the exclusive control of the correctional authorities. Such material, or a summary thereof, was required to be considered and, whether or not some employees were on strike, it was clearly possible to provide it. In those circumstances the decision cannot be allowed to stand.

Right to Counsel

It is clear that the appellant was denied the right to consult counsel. The existence of that right cannot be doubted. The most important breach of it occurred while the appellant was still in Edmonton and when he was first advised of the intention to transfer him to high maximum security. I have previously quoted from the appellant’s affidavit to this effect. The circumstances of the denial of counsel are more fully stated in the appellant’s cross-examination:

A    I was taken from there to the A and D area here of the Institution where I was brought in front of Ed Fisher.

Q   What’s the A and D Unit?

A    A and D is admission and discharge.

Q   Who is Ed Fisher?

A    Ed Fisher was a AS-5 and he was at the time, as far as I know, running the Institution.

Q   What happened to him there?

A    He gave me this sheet of paper right here.

Q   Which is Exhibit A to your Affidavit?

A    Yes.

Q   And did he tell you anything when he gave you that piece of paper?

A    He read it to me and told me that I was being transferred to Prince Albert Penitentiary, and that on an emergency basis, and that was about it.

Q   Did he give you any reasons at that time?

A    For being transferred?

Q   Yes.

A    No, he didn’t. All he said was what is here.

Q   He basically read Exhibit A to you?

A    He read this thing.

Q   What happened after he read that Exhibit A to you?

A    As soon as he read it to me, I asked to contact a lawyer.

Q   What was his response?

A    No.

Q   Did he give a reason?

A    No, just no.

Q   And were you, in fact, transferred to Prince Albert Penitentiary that day?

A    Yes, within about two hours I was gone. [Cross-examination of Arthur Winters, Appeal Book, at pages 88-89.]

In an affidavit given by the Warden, the respondents make some attempt to justify the denial of counsel on the grounds of the emergency nature of the transfer:

7. Normally a Progress Summary Report would be prepared in support of a recommendation for an involuntary transfer. However, due to the emergency nature of this transfer, no such Progress Summary Report was prepared. For the same reason, there was no time to afford him the opportunity to obtain counsel. [Affidavit of Michael Gallagher, Appeal Book, at page 78.]

However, in his cross-examination the Warden makes it quite clear that it would, by no means, have been impossible or impractical to give the appellant an opportunity to consult his lawyer, at least by telephone:

Q   Sir, prior to their transfer to the high maximum security unit, the applicants were taken to the Admissions and Discharge Department at Edmonton Institution; is that correct?

A    That’s correct.

Q   And approximately when would that have been?

A    I can’t say with certainty but I believe it was around 2 o’clock in the afternoon.

Q   Is there a telephone in the Admissions and Discharge Department?

A    Yes.

Q   Sir, is it the case that the applicants remained at Edmonton Institution from the evening of November the 5th to the following day November the 6th at approximately 2 p.m.?

A    Yes.

Q   Sir, is it correct that the applicants each slept in their own cells on the night of November 5th following the alleged incident?

A    I believe that to be the case.

Q   Is it correct that none of applicants were removed to the segregation and disassociation unit following the alleged incident?

A    Yes. [Cross-examination of Michael Gallagher, Appeal Book, Appendix 1, at page 61.]

It will be recalled that, on the appellant’s evidence, supra, up to two hours passed from the time he was first taken to the Admissions and Discharge Department to the time he left Edmonton. Manifestly, the denial of his request to consult his lawyer could not be justified on the basis of the urgency of the situation.

The right of a person in the appellant’s position to consult counsel at any reasonable time does not require demonstration and exists quite independently of Charter [Canadian Charter of Rights and Freedoms, being Part I of the Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44]] guarantees. In the circumstances of this case, however, it is my view that section 10 of the Charter is also in play. That section reads:

10. Everyone has the right on arrest or detention

(a) to be informed promptly of the reasons therefor;

(b) to retain and instruct counsel without delay and to be informed of that right; and

(c) to have the validity of the detention determined by way of habeas corpus and to be released if the detention is not lawful.

It is now settled law that a transfer into high maximum security or administrative segregation such as that to which the appellant was subjected amounts to a new and separate detention over and above the detention to which he was already subject by reason of the sentence of life imprisonment that he was serving. In The Queen v. Miller,[2] Le Dain J., speaking for the Court, put the matter thus:

Confinement in a special handling unit, or in administrative segregation as in Cardinal, 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. For the reasons indicated above, I can see no sound reason in principle, having to do with the nature and role of habeas corpus, why habeas corpus should not be available for that purpose. 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.

While it is true that the Miller case turned on the definition of detention for the purposes of determining the availability of the writ of habeas corpus guaranteed by paragraph (c) of section 10, I can see no valid reason for accepting some different definition for the purposes of determining the limits of the right to counsel guaranteed by paragraph (b). That being so, and quite independently of the appellant’s request to consult his lawyer, it seems to me that the authorities were under a positive duty both to inform the appellant of his right to counsel and to provide him with a reasonable opportunity to exercise that right as soon as they had decided to place him in administrative segregation and to transfer him to high maximum security. The circumstances are closely parallel to those which obtained and were commented on in R v. Manninen:[3]

In my view, s. 10(b) imposes at least two duties on the police in addition to the duty to inform the detainee of his rights. First, the police must provide the detainee with a reasonable opportunity to exercise the right to retain and instruct counsel without delay. The detainee is in the control of the police and he cannot exercise his right to counsel unless the police provide him with a reasonable opportunity to do so. This aspect of the right to counsel was recognized in Canadian law well before the advent of the Charter. In Brownridge v. The Queen, [1972] S.C.R. 926, a case decided under the Canadian Bill of Rights, Laskin J., as he then was, wrote at pp. 952-53:

The right to retain and instruct counsel without delay can only have meaning to an arrested or detained person if it is taken as raising a correlative obligation upon the police authorities to facilitate contact with counsel. This means allowing him upon his request to use the telephone for that purpose if one is available.

The duty to facilitate contact with counsel has been consistently acknowledged under s. 10(b) of the Charter by the lower courts: R. v. Nelson (1982), 3 C.C.C. (3d) 147 (Man. Q.B.); R. v. Anderson (1984), 10 C.C.C. (3d) 417 (Ont. C.A.); R. v. Dombrowski (1985), 18 C.C.C. (3d) 164 (Sask. C.A.), and the Ontario Court of Appeal in this case. In Dombrowski, the Court held that, where a telephone is available at an earlier occasion, there is no justification for delaying the opportunity to contact counsel until arrival at the police station.

In my view, this aspect of the right to counsel was clearly infringed in this case. The respondent clearly asserted his right to remain silent and his desire to consult his lawyer. There was a telephone immediately at hand in the office, which the officers used for their own purposes. It was not necessary for the respondent to make an express request to use the telephone. The duty to facilitate contact with counsel included the duty to offer the respondent the use of the telephone. Of course, there may be circumstances in which it is particularly urgent that the police continue with an investigation before it is possible to facilitate a detainee’s communication with counsel. There was no urgency in the circumstances surrounding the offences in this case.

What is not so clear in the present case is the remedy which should flow from the denial of counsel. On the one hand, the infringement of the appellant’s rights was gross and cannot possibly be justified in the circumstances. On the other hand, it is arguable that the infringement had no consequences beyond the initial decision by the Warden, and that that decision was spent as soon as the appellant was in fact moved to the Saskatchewan Penitentiary where, in due course, he was given his right to counsel prior to the final decision by the Acting Assistant Deputy Commissioner. Given, however, that, as we now know, the Warden’s decision was based on a wrong understanding of the facts and that, in reality, the appellant was innocent of the offences charged against him, I am unable to assert with confidence that the intervention of a lawyer at the earliest stages and prior to the appellant’s removal from Edmonton might not have had a favourable impact upon the Warden’s decision. And since the decision of the Acting Assistant Deputy Commissioner was itself triggered by the Warden’s decision, the denial of counsel by the latter may have had very serious consequences indeed.

If it were necessary to do so, I would not hesitate on the authority of Mills v. The Queen[4] and R. v. Gamble[5] to exercise the broad discretion conferred by subsection 24(1) so as to set aside the Warden’s decision. Since, however, on the facts of this case, I have already concluded that the decision of the Acting Assistant Deputy Commissioner must, in any event, be set aside on other grounds, I would simply declare that the Warden’s decision had been reached in breach of the appellant’s Charter rights.

Conclusion

For these reasons, I would allow the appeal with costs here and below. I would set aside the decision of the Trial Division and declare that the decision of the Warden of the Edmonton Institution to place the appellant in administrative segregation and to transfer him to the High Maximum Security Unit was reached in breach of the appellant’s Charter rights. I would order that the decision of the Acting Assistant Deputy Commissioner approving and confirming the transfer of the appellant from the Edmonton Institution to the High Maximum Security Unit be quashed and that a copy of the judgment herein be placed on the appellant’s file with Correctional Service Canada.

Isaac C.J.: I agree.

Pratte J.A.: I agree.

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