[1994] 1 F.C. 15
T-344-93
Roy Lee (Applicant)
v.
Deputy Commissioner, Correctional Service of Canada, Pacific Region (Respondent)
T-345-93
Allan Mathieson (Applicant)
v.
Deputy Commissioner, Correctional Service of Canada, Pacific Region (Respondent)
Indexed as: Lee v. Canada (Deputy Commissioner, Correctional Service, Pacific Region) (T.D.)
Trial Division, Rothstein J.—Vancouver, July 26 and 28, 1993.
Penitentiaries — Transfers — Applications to quash decisions to transfer inmates from maximum security penitentiary to Special Handling Unit elsewhere — As result of refusal to extend time limit for response to notification of involuntary transfer, transfer decisions issued without benefit of applicants’ submissions — Acting Deputy Commissioner refusing to alter Deputy Commissioner’s transfer decisions — Internal grievances denied — Transfer decisions affecting inmates’ residual liberties must comply with principles of fundamental justice, including procedural fairness — Applicants denied opportunity to file meaningful responses when time limit not extended — Decision arbitrary, unnecessary — Commissioner’s directive providing time limit merely guideline — Precise reasons for refusal required — Refusal to alter transfer decisions deficient as made with knowledge of information not provided to applicants prior thereto; not providing reasons therefor — Denial of internal grievance deficient as no reasons given — Oral hearings not required where information may originate with informers as not all parties before decision-maker at same time, no opportunity for cross-examination.
Constitutional law — Charter of Rights — Life, liberty and security — Decisions to transfer inmates from maximum security penitentiary to Special Handling Unit elsewhere interfering with residual liberty — Required to be made in accordance with principles of fundamental justice under Charter, s. 7 — Including procedural fairness i.e. reasonable opportunity to make meaningful response to allegations — Decisions affecting liberty must deal with principal elements of submissions.
Judicial review — Prerogative writs — Certiorari — Applications to quash decisions to transfer inmates from maximum security penitentiary to Special Handling Unit elsewhere — Decisions required to conform to principles of fundamental justice, including procedural fairness — Refusal to extend time limit to respond to notification of transfer depriving applicants of opportunity to present meaningful response — Precise reasons for refusal required — Transfer decisions invalid — Refusal to alter transfer decisions made with knowledge of information not previously provided to applicants — Decision-maker to disclose all relevant information in his possession, unless would reveal identity of informants — Doubtful subordinate can objectively, independently assess superior’s decision.
These were applications to quash the Deputy Commissioner’s decisions to transfer the applicants from Kent, a maximum security institution, to the Special Handling Unit at the Saskatchewan Penitentiary, because he believed that the applicants had been involved in a conspiracy to commit prison breach. When prison officials learned of the conspiracy, the applicants were placed in solitary confinement. Six days later they each received a notification of recommendation for involuntary transfer indicating the reasons therefor. The applicants were given 48 hours to respond to the allegations against them pursuant to the Commissioner’s directive on “Transfers of Inmates”. The Acting Warden refused to extend the time to respond because he felt that the applicants posed a serious risk to the security and safety of both the institution and the community. The respondent’s decisions transferring the applicants issued the following day, and the applicants were transferred the next day. The applicants filed their responses one week later. When they subsequently obtained further particulars of the alleged conspiracy, they filed further submissions. The Acting Deputy Commissioner for the Pacific Region refused to alter the transfer decisions. Although he referred to the original decisions as “my decision”, the original transfer decisions were signed by the respondent. The applicants’ internal grievances were also denied.
The issues were whether the transfer decisions were made in accordance with principles of natural justice or procedural fairness, which are embraced in the broader concept of fundamental justice.
Held, the applications should be allowed.
A decision to transfer an inmate to a prison where his freedom will be more severely restricted deprives the inmate of his residual liberty, and must be made in accordance with the principles of fundamental justice under Charter, section 7. Procedural fairness required that the inmates be given a reasonable opportunity to file a meaningful response. That was denied when the Acting Warden refused to extend the time to file responses, with the result that the Deputy Commissioner, when making the transfer decisions, had only the information supplied by the Acting Warden upon which to base his decision. There was no indication that the Acting Warden gave any consideration to the possibility of any extension, even though at the time of the request the applicants had been in solitary confinement for one week. No explanation was given as to why the applicants would pose a risk even while in solitary confinement. That the Acting Warden chose not to follow the procedure for transferring inmates in emergency situations (i.e. without notification) indicated that the situation must not have been so urgent as to justify the refusal to grant an extension. The Commissioner’s directives themselves do not have the force of law, but where they codify a principle of common law or, with reference to correctional institutions, apply provisions of the Charter, such codification would have the force of law because of the underlying legal force of what is codified. The refusal of an extension was unnecessary and arbitrary and deprived the applicants of their right to have their positions considered before the transfer decisions were made. The 48-hour provision was merely a guideline. In non-emergency situations, time to provide a meaningful response may involve a few extra days. Precise reasons should accompany a refusal of an extension. A general assertion about the risk to safety and security is insufficient. As the transfer decisions were made without any hearing contrary to procedural fairness, they were invalid.
The Acting Deputy Commissioner’s refusal to alter the transfer decisions did not cure the deficiencies associated therewith. Additional information was provided to the applicants with said refusal which the applicants had not had when they were formulating their responses. The decision-maker must disclose all relevant information in his possession, unless to do so would reveal the identity of informants. The Acting Deputy Commissioner did not have the benefit of the applicants’ submissions on the additional information. Again, the applicants were denied a fair hearing and decisions were made contrary to the principles of procedural fairness. The Acting Deputy Commissioner’s decision was also deficient for not giving any reasons therefor. The Commissioner’s directive required that the “reasons provided by the decision-maker shall indicate that consideration was given to the inmate’s response”. A statement that consideration was given to an inmate’s response did not satisfy that requirement. Decisions dealing with a person’s liberty must deal with the principal elements of the submissions. Finally, it was doubtful that a subordinate could approach the question of altering his superior’s prior decision with the objectivity and independence that is required for a fair decision.
The decisions denying the grievances were deficient in that they simply said that responses had been considered. Some explanation as to why the applicants were not believed was required.
Oral hearings are not a requirement of fundamental justice in proceedings involving involuntary transfers where some information may originate with informers. Not all parties would be before the decision-maker at the same time and there would be no opportunity for cross-examination. While appropriate in some circumstances, in view of the disposition herein, it was unnecessary for the Court to review all the information upon which the decisions were based.
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], s. 7.
CASES JUDICIALLY CONSIDERED
APPLIED:
Demaria v. Regional Classification Board, [1987] 1 F.C. 74; (1986), 21 Admin. L.R. 227; 30 C.C.C. (3d) 55; 53 C.R. (3d) 88; 5 F.T.R. 160; 69 N.R. 135 (C.A.); Northwestern Utilities Ltd. et al. v. City of Edmonton, [1979] 1 S.C.R. 684; (1978), 12 A.R. 449; 89 D.L.R. (3d) 161; 7 Alta. L.R. (2d) 370; 23 N.R. 565.
CONSIDERED:
Singh et al. v. Minister of Employment and Immigration, [1985] 1 S.C.R. 177; (1985), 17 D.L.R. (4th) 422; 12 Admin. L.R. 137; 14 C.R.R. 13; 58 N.R. 1.
REFERRED TO:
Gallant v. Canada (Deputy Commissioner, Correctional Service Canada), [1989] 3 F.C. 329; (1989), 36 Admin. L.R. 261; 68 C.R. (3d) 173; 25 F.T.R. 79; 92 N.R. 292 (C.A.); Re B.C. Motor Vehicle Act, [1985] 2 S.C.R. 486; (1985), 24 D.L.R. (4th) 536; [1986] 1 W.W.R. 481; 69 B.C.L.R. 145; 23 C.C.C. (3d) 289; 48 C.R. (3d) 289; 18 C.R.R. 30; 36 M.V.R. 240; 63 N.R. 266; Martineau et al. v. Matsqui Institution Inmate Disciplinary Board, [1978] 1 S.C.R. 118; (1977), 77 D.L.R. (3d) 1; 33 C.C.C. (2d) 366; 14 N.R. 285; Williams v. Canada (Correctional Service, Regional Transfer Board, Prairie Region), [1991] 1 F.C. 251; (1990), 38 F.T.R. 169 (T.D.).
APPLICATIONS to quash, for breach of natural justice or procedural fairness principles, decisions to transfer applicants from maximum security penitentiary to Special Handling Unit at another institution. Applications allowed.
COUNSEL:
Sasha P. A. Pawliuk for applicant Lee.
J. Peter Benning for applicant Mathieson.
James A. Graham for respondent.
SOLICITORS:
Legal Services Society, Abbotsford, B.C., for applicant Lee.
Conroy & Company, Abbotsford, B.C., for applicant Mathieson.
Harper, Grey, Easton & Company, Vancouver, B.C., for respondent.
The following are the reasons for order rendered in English by
Rothstein J.: These are two applications for certiorari to quash decisions of the respondent transferring each of the applicants from Kent, a maximum security penitentiary, to the Special Handling Unit at the Saskatchewan Penitentiary at Prince Albert. A decision to transfer a prisoner to a penal institution where his freedom will be more severely restricted, as was the case here, is a committal to a “prison within a prison” which deprives the prisoner of his residual liberty. Such a decision must be made “in accordance with the principles of fundamental justice” under section 7 of the 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]]. (See Gallant v. Canada (Deputy Commissioner, Correctional Service Canada), [1989] 3 F.C. 329 (C.A.), at page 337.) The issues in this case pertain to whether the transfer decisions were made in accordance with principles of natural justice or procedural fairness which are embraced in the broader concept of fundamental justice. (See Re B.C. Motor Vehicle Act, [1985] 2 S.C.R. 486, at pages 501-502.)
The decisions to transfer the applicants were made because the respondent believed that the applicants had been involved in a conspiracy to commit prison breach. The gist of the information that came to the knowledge of the respondent is taken from a progress summary appraisal and recommendation dated September 4, 1992, in the Lee matter.
A group of General Population inmates was planning a violent helicopter escape from Kent Institution sometime during the month of October, 1992. Although more inmates are involved it is intended that three will attempt to escape. LEE is believed to be one of the three intending to escape. LEE’s involvement is seen to be as a leader in organizing the plot.
Inmate Rocha … was to be released on Mandatory Supervision in early October, 1992 and was to be a key organizer on the outside. He was to, with assistance, hijack the same helicopter and pilot that were used in a previous helicopter escape from Kent Institution which occurred on June 18, 1990. It was believed by the conspirators that this pilot knows the area very well, particularly at the institution. In order to ensure that the pilot complies with their wishes his wife was to be held hostage during the event. Should the pilot fail to co-operate or should the escape fail, the wife was to be killed.
The escape was to occur shortly after 1400 hrs on a week-day afternoon when the escapees and accomplices would be in the main Recreation Area as they are all kitchen workers (afternoon recreation is limited to “shift workers” which include kitchen workers). Just prior to the helicopter arriving, the group of inmates involved were to take the staff supervising the Recreation Area hostage and move them to the Recreation Yard. This was to help ensure that security staff would not shoot the conspirators. Automatic firearms were to be supplied from the helicopter as it landed in the Recreation Yard. The helicopter was to leave the institution with the escapees and proceed south over Mount Cheam into Washington State.
Following consultation with Ipso D. Dick, local R.C.M.P. has independently investigated the information provided and concluded that the substance of the information appears to be credible. Police agencies have assisted in the investigation and have confirmed that members of the conspiracy have the necessary associations to provide the weapons, manpower and other assistance needed to effect this plan.
Despite the appearance of maintaining a low profile and being a conscientious kitchen worker, LEE continues to exhibit violent and aggressive behavior. It is believed that LEE was the main organizer and recruited the other members based on their experience and ability to assist with this plan. LEE’s ability to plan and arrange an escape involving the complexities of this plan clearly indicate a disregard for life and the criminal justice system. Another serious concern is the subject’s alleged associates in the community which would be willing to participate in a conspiracy of this magnitude. As such, LEE is seen to present a serious and persistent risk to staff and offenders of Kent Institution. Of greater concern in this instance is the high degree of endangerment to the potential innocent victims in the community. As LEE has the capacity and resources to effect a conspiracy that would place in jeopardy the number of individuals involved clearly indicates a need for a transfer to a High Maximum Security Unit.
Lee was convicted of first degree murder on August 28, 1988, and is not eligible for parole for 25 years until August 27, 2013. Mathieson was convicted of manslaughter and conspiracy to commit prison breach. He was sentenced to 18 years commencing on May 30, 1984. At the relevant time they were inmates at Kent.
As a result of the information relating to the conspiracy coming to the attention of prison officials, Lee and Mathieson were placed in the solitary confinement unit at Kent on September 2, 1992. They were each told that they were suspected of being involved in a conspiracy to commit prison breach.
On September 8 they were each given documents entitled Notification of recommendation for involuntary transfer/transfer to a high maximum security facility issued by the Acting Warden of Kent, and a progress summary report. The notification indicated that the Acting Warden was recommending to the respondent that the applicants be transferred to the Special Handling Unit at Prince Albert. The reasons for the proposed transfers were indicated on the documents. The applicants were each given 48 hours to respond to the allegations against them.
On September 9, 1992, counsel that the applicants had retained, Ms. Sasha Pawliuk, sought an extension of time to respond. Ms. Pawliuk spoke with the Acting Warden to request the extension but this was denied. On September 10, the respondent’s decisions transferring the applicants to Prince Albert were issued. On September 11, 1992, the applicants were transferred to Prince Albert and they continue there to this day.
On September 18, in the case of Lee, and September 21 in the case of Mathieson, Ms. Pawliuk filed responses with the respondent.
On September 24, 1992, the respondent wrote to Ms. Pawliuk stating:
I have reviewed your submission on behalf of Mr. Lee. I am forwarding it to the National Review Committee for their consideration.
No acknowledgement of receipt of the Mathieson submission was sent to Ms. Pawliuk.
Subsequent to filing the responses, Ms. Pawliuk obtained further particulars of the alleged conspiracy. These further particulars had been made available by prison officials to another of the alleged co-conspirators Martino Rocha. As a result of coming into possession of this further information, Ms. Pawliuk filed further submissions on October 6, 1992. In the case of Mr. Lee the further submission was sent to the National Review Committee because of the advice given to Ms. Pawliuk by the respondent that her earlier submission had been forwarded to the National Review Committee. In the case of Mr. Mathieson the further submission was made to the respondent.
On October 21, 1992, T. J. Sawatzky, Acting Deputy Commissioner for the Pacific Region wrote to Ms. Pawliuk refusing to “alter my decision”. Although he refers to the original decision as “my decision” the original decisions transferring Lee and Mathieson appear to have been signed by the respondent.
On November 23, 1992, the applicants filed internal grievances to the Office of the Commissioner of Corrections in Ottawa. On March 9, 1993, the grievances were denied.
The process followed in these cases by the prison officials appear to have been guided by commissioner’s directives entitled “Transfers of Inmates” dated July 12, 1991 [Commissioner’s Directive, No. 540]. Counsel explained that Commissioner’s directives have been held not to have the force of law but are considered merely directions as to the manner of carrying out duties in the administration of correctional institutions. (See Martineau et al. v. Matsqui Institution Inmate Disciplinary Board, [1978] 1 S.C.R. 118, at page 129.) However, where a directive codifies a principle of common law or, with reference to correctional institutions, applies provisions of the Canadian Charter of Rights and Freedoms or other statutes, such codification would, of course, have the force of law, not because of the Commissioner’s directive per se, but because of the underlying legal force of what is codified.
Section 13 of the “Transfers of Inmates” Directive provides:
13. 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.
It was pursuant to this directive that the Acting Warden provided information to the applicants on September 8, 1992, and established a 48-hour period for them to file their responses. The Acting Warden explained his reasons for refusing to allow the extension to file responses requested by Ms. Pawliuk in the cross-examination of his affidavit:
I can’t recall specifically, but I believe the—I believe I indicated we thought these people were a real and present threat and it was an eminent threat; that it wasn’t changed significantly by their being in segregation; that indeed it can, could be made even more dangerous or at least that is what my thoughts were at the time and that in, in numerous other cases of involuntary transfers—not numerous, we don’t do very many involuntary transfers, but in other cases extensions have gone for I believe sometimes weeks or I think even months or more than a month. In this case I believe the danger was, was present. I believe it was imminent and I expressed—I had a high, high degree of concern for the security and safety of both the institution and the community in this regard. That’s to the best of my recollection that phone call.
In insisting on the 48-hour deadline and refusing the extension of time request, I am of the opinion that the Acting Warden denied the applicants the opportunity to make effective responses. The result was that the respondent, when making his transfer decisions on September 10, 1992, had only the information supplied by the Acting Warden upon which to base those decisions.
There is no indication of any consideration by the Acting Warden as to the possibility of any extension whatsoever, notwithstanding that by the time the discussion between the Acting Warden and counsel took place on September 9, the applicants had been in the solitary confinement unit for one week.
While it is alleged that the extension could not be granted because the applicants posed a serious risk even while in solitary confinement at Kent, there is nothing in the material before me to explain why this would be the case. In any event, emergency situations are covered in section 15 of the “Transfers of Inmates” Directive:
15. 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 of 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.
This was not the option chosen by the Acting Warden.
Because the applicants had been in solitary confinement for one week prior to the request for extension and because the Acting Warden had not chosen to act under section 15 of the Commissioner’s Directive, I am forced to conclude that the situation was not so urgent as to justify the refusal to grant any extension of time for the filing of responses by the applicants.
The result was that the applicants made no submissions by the deadline set by the Acting Warden, and the Deputy Commissioner’s decisions were based only on information he received from the Acting Warden.
As I have indicated, the Commissioner’s directives themselves do not have the force of law. While nothing in the material suggests that the Acting Warden was not, in good faith, trying to adhere to the guidelines in the Commissioner’s directives, I am nonetheless forced to conclude that the decision to refuse an extension of time was unnecessary and arbitrary and had the result of denying to the applicants their right to have their positions considered by the respondent before making his transfer decisions. I come to this decision bearing in mind the admonitions in the jurisprudence that prisons are not “choir schools” and that there is a heavy responsibility on prison administrators to have regard for the safety and security of prison guards and other personnel in an institution and, indeed, the prisoners themselves as well as the public. While, there may well be good reason for a 48-hour deadline for the filing of responses in some cases, the 48-hour provision should be treated, at most, as a guideline. What procedural fairness requires is that inmates be given a reasonable opportunity to file a meaningful response. In non-emergency situations, a few extra days may be involved. Where this cannot be accommodated, there is an obligation on the official refusing the extension request to give precise reasons as to why it cannot be accommodated. A general assertion about the risk to safety and security is insufficient.
Procedural fairness required that Lee and Mathieson be given the right to a fair hearing in respect of their proposed involuntary transfer to Prince Albert. In respect of the September 10, 1992 decisions, they were given no hearing at all. The September 10, 1992 decisions were not made in compliance with requirements of procedural fairness and were therefore invalid.
The question then arises whether, notwithstanding the deficiencies associated with the September 10, 1992 decisions, the situation was cured by the subsequent decisions of Mr. Sawatzky on October 21, 1992, after which submissions on behalf of the applicants had been filed. I am of the view that it was not. First, additional information was provided to counsel with the October 21, 1992 decisions. Although Mr. Sawatzky was of the view that the substance of the information he was providing with these decisions was not inconsistent with information already given to the applicants, there are some apparent differences. For example, the name of an additional alleged conspirator was included in the subsequent information but not in the original information. A more detailed explanation of the alleged arrangements for the prison escape was also given. This was information Mr. Sawatzky had when he made his decision not to alter the original decisions. The applicants did not have that information and were therefore unable to use it in formulating their responses. “The burden is always on the authorities to demonstrate that they have withheld only such information as is strictly necessary for that purpose” (Demaria v. Regional Classification Board, [1987] 1 F.C. 74 (C.A.), at pages 77-78). It is not for the decision-maker to pick and choose the information that will be disclosed to various inmates. All information in his possession that is relevant must be disclosed unless to do so would reveal the identity of informants. When he made his October 21, 1992 decisions, Mr. Sawatsky did not have the benefit of the applicants’ submissions on the additional information which he provided to Ms. Pawliuk with those decisions. Again, the applicants were denied a fair hearing and decisions were made contrary to the principles of procedural fairness.
A second deficiency with the October 21, 1992 decisions is that they set forth no reasons as to why the Acting Deputy Commissioner came to the conclusion not to alter the September 10, 1992 transfer decisions. Section 14 of the “Transfers of Inmates” Directive provides:
14. The inmate’s written response to a proposed involuntary transfer shall be considered by the decision-maker. At such time as the decision-maker authorizes 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.
While I have indicated that Commissioner’s directives themselves do not have the force of law, a directive such as section 14, in my view, adapts procedural fairness rights and indeed section 7 Charter protections to the situation of involuntary transfers. It is not sufficient for inmates to be given the right to make submissions. The submissions must be considered by the decision-maker. The requirement that the decision-maker shall indicate that consideration has been given to inmates’ responses is not one that is satisfied by lip service. It is not sufficient for a decision to simply state, as was the case here, that consideration was given to an inmate’s response. Such a statement does not go far enough in satisfying the requirement that the response was, in fact, considered. Decisions dealing with the liberty of persons, even within the confines of a prison, must come to grips with the principal elements of relevant submissions. In this context, the words of Estey J. in Northwestern Utilities Ltd. et al. v. City of Edmonton, [1979] 1 S.C.R. 684, at pages 705-706 are worth noting:
The law reports are replete with cases affirming the desirability if not the legal obligation at common law of giving reasons for decisions …. This obligation is a salutary one. It reduces to a considerable degree the chances of arbitrary or capricious decisions, reinforces public confidence in the judgment and fairness of administrative tribunals, and affords parties to administrative proceedings an opportunity to assess the question of appeal and if taken, the opportunity in the reviewing or appellate tribunal of a full hearing which may well be denied where the basis of the decision has not been disclosed.
While the decision of Estey J. in Northwestern Utilities pre-dates the Canadian Charter of Rights and Freedoms, his words are all the more important today.
Counsel for the respondent argued that because the applicants had allowed the September 10, 1992 decisions to be made without making submissions, adherence to the rules of procedural fairness should not be strictly required with respect to the October 21, 1992 decisions. I have some doubt about the validity of this proposition generally but, in any event, I have found the September 10, 1992 decisions to be invalid. For the October 21, 1992 decisions to have cured the deficiency would require that at least they be made in accordance with minimum standards of procedural fairness.
Finally, with respect to the October 21, 1992 decisions, I would observe that it was the Acting Deputy Commissioner who was deciding not to alter the September 10, 1992 decisions of his superior, the Deputy Commissioner. My decision that the October 21, 1992 decisions of the Acting Deputy Commissioner did not conform with normal standards of procedural fairness is not based on this point. However, I must say that I have serious doubt that a subordinate can approach the question of altering his superior’s prior decision with the objectivity and independence that is required for a fair decision.
Finally there are the March 9, 1993 decisions denying the grievances of the applicants. These decisions state in part:
… comments from your Solicitor have been considered in the response to this grievance. CSC considers the information received regarding the escape plot to be reliable. Disclosure of the identity of informants will not be provided. I support the decision to transfer you to the Special Handling Unit. CSC considers the information regarding the escape plot to be valid and reliable. Proper procedures were followed when you were transferred from Kent to the Special Handling Unit. Your grievance is, therefore, denied.
In my view these decisions suffer from the same deficiency as the October 21, 1992 decisions of Mr. Sawatzky. It is insufficient to simply say that responses have been considered. If statements of the applicants in their submissions are not believed, then some explanation as to why they are not believed must be given. The obligation to consider submissions is not satisfied by a mere assertion to that effect.
Although the foregoing reasons are sufficient to dispose of this application, I will comment briefly on two other arguments of the applicants. One is that the applicants had a right to an oral hearing. Counsel relied on Singh et al. v. Minister of Employment and Immigration, [1985] 1 S.C.R. 177, in which it was held that fundamental justice in the circumstances of that case required an oral hearing where serious issues of credibility were involved. While I can appreciate that in appropriate cases an oral hearing may be a requirement of fundamental justice, I do not see that to be the case in the context of proceedings involving involuntary transfers where certain information originates with informers. In these cases, not all parties are before the decision-maker at the same time. There can be no opportunity for cross-examination. The cases suggest that an oral hearing is not a requirement in these circumstances. (See Demaria, supra, at pages 77-78 and Williams v. Canada (Correctional Service, Regional Transfer Board, Prairie Region), [1991] 1 F.C. 251 (T.D.), at page 261.)
A second argument relates to whether the applicants were given sufficient details of the allegations against them in order to make meaningful responses. This raises a very difficult problem where the information originates from informers whose identity must be protected. The difficulty is made even greater when, as in this case, what is alleged is a conspiracy to commit a crime in the future. Here, details as to the proposed prison breach were provided. However, the real issue is whether there was indeed a conspiracy and whether the applicants were involved. Whether additional information about the conspiracy could have been provided without disclosing the identity of informants, I am unable to say. During argument it was suggested by counsel for the applicants that all the information upon which the decisions were based should be reviewed by the Court to see what more could have been given to the applicants. In an appropriate case there might be merit to such an approach. In view of my disposition of this matter, it is not necessary in this case.
The decisions transferring the applicants to the Special Handling Unit at Saskatchewan Penitentiary in Prince Albert are quashed.