A-361-75
Robert Thomas Martineau and Robert Earl But
ters (Applicants)
v.
The Matsqui Institution Inmate Disciplinary
Board (Respondent)
Court of Appeal, Jackett C.J., Ryan J. and Shep-
pard D.J.—Vancouver, January 23, 1976; Ottawa,
February 5, 1976.
Judicial review—Jurisdiction—Inmates charged with
offences—Whether decision of disciplinary board failed to
observe principles of natural justice—Whether board exceeded
jurisdiction—Whether board erred in law—Whether Court has
jurisdiction Penitentiary Act, R.S.C. 1970, c. P-6, ss. 3-6,
22(1),(3), 23, 29 and Penitentiary Service Regulations, ss. 2.28,
2.29(g),(h)—Commissioner's Directives, No. 242, Dec. 18,
1973; No. 213, May 1, 1974 Federal Court Act, s. 28(1),(6).
Applicants, inmates at the Matsqui Institution, were both
charged with two disciplinary offences, viz., being two inmates
in one cell, and committing an indecent act. After a hearing by
the inmate disciplinary board, they were sentenced to 15 days
solitary with restricted diet and loss of privileges. They allege
that the board failed to observe principles of natural justice in
denying them the right to be fully informed of the alleged
offences, to have a fair hearing, to have fair opportunity to
present their case, and to have a judicial decision on material
properly before the board. They also allege that the board
exceeded its jurisdiction in finding them guilty of an offence
unknown to law and in adopting a procedure contrary to the
Canadian Bill of Rights, and, that the Board erred in law, in
that the offence of being in an indecent position is unknown in
law, and the decision was not supported by the evidence.
Respondent contends that a disciplinary decision under the
Penitentiary Act is administrative, and not required to be made
on a judicial or quasi-judicial basis.
Held, dismissing the appeal, the Court lacks jurisdiction.
Disciplinary decisions are different from those administrative
decisions impliedly required to be made on a judicial or quasi-
judicial basis in such a way that they can be supervised
judicially. The decisions, though penal in nature and required
by administrative rules to be fair and just, are not decisions
within the meaning of section 28. The fact that statutory
remission is subject to reduction does not change their nature.
However, any decision affecting the rights of an individual
must be a bona fide exercise of the powers vested in the
penitentiary authorities. And, section 28(6) cannot be read to
say that section 28(1) would, if not for subsection (6), include
proceedings for a "service offence" under the National Defence
Act, and therefore, similar proceedings under statutes such as
the Penitentiary Act.
Per Ryan J. (dissenting): The Court has jurisdiction. The
Penitentiary Service Regulations, in so far as they relate to
inmate discipline, and the Commissioner's Directive, No. 213
both infused with legality by their enactment pursuant to
section 29 of the Penitentiary Act, establish a structure for the
administration of inmate discipline imposing a legal require
ment that disciplinary decisions, in relation to serious and
flagrant offences, must be made on a quasi-judicial basis.
Howarth v. National Parole Board (1975) 18 C.C.C. (2d)
385; The Queen v. White [1956] S.C.R. 154; Commission
er of Patents v. Farbwerke Hoechst Aktiengesellschaft
[1964] S.C.R. 49 and Association of Radio & Television
Employees v. CBC [1975] 1 S.C.R. 118, applied. Ex parte
Parker [1953] 1 W.L.R. 1150 and Ex parte Fry [1954] 1
W.L.R. 730, agreed with. Saulnier v. Quebec Police Com
mission (1976) 57 D.L.R. (3d) 545; Ridge v. Baldwin
[1964] A.C. 40 and R. v. Institutional Head of Beaver
Creek Correctional Camp, ex parte MacCaud [1969] 1
O.R. 373, disagreed with. In re H. K. [1967] 2 Q.B. 617;
Schmidt v. Home Secretary [1969] 2 Ch. 149 and R. v.
Secretary of State [1973] 3 All E.R. 796, discussed.
JUDICIAL review.
COUNSEL:
J. Conroy for applicants.
J. Haig for respondent.
SOLICITORS:
Abbotsford Community Legal Services,
Abbotsford, B.C., for applicants.
Deputy Attorney General of Canada for
respondent.
The following are the reasons for judgment
delivered orally in English by
JACKETT C.J.: This is a section 28 application to
set aside "the decision and order made against
ROBERT THOMAS MARTINEAU and ROBERT EARL
BUTTERS at Matsqui Institution, in British
Columbia on Wednesday the 18th day of June,
1975, by Disciplinary Board members ... conduct
ing a hearing of the Inmate Disciplinary Board
pursuant to the Regulations under the Penitentiary
Act . . . ."
On June 16, 1975, an officer of the Institution
made an "Incident Report" reading as follows:
On 15 June 75 at approximately 1430 hrs. while doing security
rounds in the west wing, third floor, I found 4461 MARTINEAU
in 8142 BUTTERS cell, namely 3=W-22.
It was apparent to me at this time that there was an indecent
homosexual act in progress, between the two above mentioned
inmates. Circumstances surrounding my assumptions are as
follows:
a) As I opened the cell door I found MARTINEAU laying on his
back on BUTTERS bed.
b) BUTTERS was on his knees on the floor, bent over MAR-
TINEAU with his face in the area of MARTINEAU'S crotch.
c) On being startled by my presence, BUTTERS straightened
up, I then noticed that the fly on MARTINEAU'S trousers
was open.
I was shocked and embarrassed at such conduct and after
gaining control of my thoughts asked them, "what is your
explanation of this?" BUTTERS and MARTINEAU at this time
both stood up. I was then asked by MARTINEAU what I intended
to do about it.
Having had no association with this type of conduct prior to
this incident, I explained to him that I would check with my
supervisors, and let them know. MARTINEAU later approached
me and pleaded with me to give them a break, and forget about
the whole incident.
On the same day the same officer made a separate
"Offence Report" reporting each of the applicants
for having committed the following offences:
On June 15/75 at approximately 1430 hrs.
1) Two inmates in a cell
Committing an indecent act (homosexual)
On June 17, 1975 another officer completed a
separate form in respect of each of the applicants,
entitled "Determination of Offence Category".
This latter form was attached to the "Offence
Report" and, in addition to indicating "Flagrant
or Serious", had forms filled in apparently intend
ed to indicate that the matter was referred to a
"Disciplinary Board for hearing of charge" under
subsections (g) and (h), section 2.29 of the Peni
tentiary Service Regulations. A further form
headed "Offence Report" and "Re: FORMAL
NOTIFICATION" was prepared in respect of each of
the applicants showing that he (identified by
inmate number and surname) "Committed an
offence" at "approx 1430 hrs. 15 Jun 75" of which
there was shown as a "Summary", in Butters's
case, "permitting another inmate in his cell with
out authorization contrary to institutional rules
and regulations and committing an indecent act"
and, in Martineau's case, "being in another
inmate's cell contrary to institutional rules and
regulations and committing an indecent act". This
latter form also showed, in the case of each man,
that he was
To be charged under P.S.R. 2.29 (h) (g) () () ( )
(h) wilfully disobeys or fails to obey any regulation or rule
governing the conduct of inmates
(g) is indecent, disrespectful or threatening in his actions lan
guage or writing toward any other person
This latter form also purports, in Butters's case, to
have been signed by him in acknowledgment of
receipt of a copy. A report from the officer of the
Institution who acted as "Chairman, Inmate Disci-
plinarÿ Board" shows his version of what hap
pened thereafter as follows:
4. Inmates Martineau and Butters received Formal Notifica
tions of charges on the 17 June 1975, twenty-four hours prior to
appearing before the Inmate Disciplinary Board on the 18 June
1975. Both inmates appeared separately.
5. Both inmates were informed of the charges verbally as
presented in writing by the witnessing Officer. Inmates Mar-
tineau and Butters entered a plea of guilty to Penitentiary
Service Regulations, Section 2.29 Sub-section (h) "in that Insti
tutional Rules and Regulations do not permit two inmates in
one cell at the same time", and not guilty to charges as outlined
under Penitentiary Service Regulations Section 2.29, sub-sec
tion (g) "Committing an indecent act as outlined in the Com
missioners Directive Number 242".
6. As a result of their respective plea to Sub-section (g) of the
Penitentiary Service Regulations, Section 2.29 (not guilty), the
witnessing Officer was called to give evidence.
7. The witnessing Officer gave evidence in the presence of
inmate Martineau and inmate Butters.
8. The witness was questioned by the Chairman of the Board
and by the members of the Board in the presence of inmate
Martineau and Butters.
9. Inmate Butters and Martineau were permitted to question
the witness through the Chairman of the Board. It is to be
noted that Martineau's method of questioning had to be cor
rected because he was making statements not asking questions,
and his behaviour was in contempt towards the witness and the
Board.
10. Inmates Martineau and Butters were afforded the opportu
nity to call witnesses, both inmates declined, but requested
Legal Counsel. They were informed this was not permissible
under the Penitentiary Act, and the Board would proceed in
accordance with the Commissioners Directive Number 213,
"Guidelines for Inmate Disciplinary Board". Both inmates
were afforded the opportunity to make statements in their
defence of charges.
11. In summing up the evidence as obtained from the witness
ing Officer, through evidence given in writing, verbally, ques
tioning and from verbal statements made by inmates Butters
and Martineau, the Chairman of the Board informed inmates
Martineau and Butters that they had wilfully disobeyed Rules
and Regulations by being in the same cell at the same time.
That their indecent position in the cell as observed by the
witnessing Officer indicated that their behaviour was not
acceptable and that the Board found them guilty as charged.
12. Inmates Martineau and Butters were informed that they
were sentenced to the Special Corrections Unit for fifteen (15)
days, commencing on the 18 June 1975, and during that period
they would be on a restricted diet and would lose all privileges
not normally approved while confined to that area.
In each case, there is a document entitled "Hear-
ing of Charge" reflecting the respective pleas of
"Guilty" and "Not Guilty", the findings of "guil-
ty" and the punishment imposed.
The section 28 application is obviously intended
as an application to set aside each of the decisions
in question.' The section 28 application sets forth
the grounds on which the decisions are attacked as
follows:
(I) THAT the Board failed to observe the following principles of
natural justice:
(a) the right of the inmates to be fully informed of the
disciplinary offence they allegedly committed, prior to the
hearing;
(b) the right of the inmates to a fair hearing;
(c) the denial to the inmates of a fair opportunity to present
their case and hear evidence relevant to the matter they are
called upon to face;
(d) the right of the inmates to a judicial decision upon
material properly before the Board and not capriciously or in
reliance upon some considerations not relevant to the charge.
(2) THAT the Board acted beyond its jurisdiction in:
(i) finding the applicants guilty of an offence unknown to
law;
(ii) in adopting a procedure contrary to Section 2(d) and
(e) of the Canadian Bill of Rights, R.S.C. 1970 Appendix
III.
(3) THAT the Board erred in law in making its decision in that:
I should have thought that there should have been a sepa
rate section 28 application by each of the applicants in respect
of the decision made against him but the point was not raised
and I mention it only so that this cannot be accepted as
authority approving such a joinder.
(i) the offence of being in an indecent position is unknown
in law;
(ii) their decision was not supported by the evidence.
(4) Upon such further and other grounds as counsel may
advise.
Pursuant to order made under Rule 1402, there
has been added to the case on which this applica
tion is to be decided an affidavit taken by each of
the applicants. That of Martineau reads, in part:
(2) THAT on or about the 17th day of June, 1975 I was served
with a notice indicating that I had been charged with the
following inmate disciplinary offences pursuant to the Regula
tions under the Penitentiary Act R.S.C. 1970 c. P-6:
(a) being two inmates in one cell;
(b) committing an indecent act.
(3) THAT I am informed by ROBERT EARL BUTTERS and verily
believe that he was also charged with the same offences arising
out of the same incident.
(4) THAT on Wednesday the 18th day of June, 1975 I was
called before the Inmate Disciplinary Board at Matsqui Institu
tion, Matsqui, British Columbia, and the members of the Board
were Mr. WALTER ROBERT SWAN, acting as chairman and
accompanied by Mr. DONALD FRANCIS PAVALIS and Mr.
WAYNE SISSONS.
(5) THAT upon being taken to the place where the Board was
sitting I was told to wait outside and I did so for approximately
one hour, when Mr. Robert Earl BUTTERS came out of the room
in which the Board was conducting the hearing.
(6) THAT I then entered the room and the charges were read
out to me and I was asked my plea and I entered a plea of
guilty to the charge of being two inmates in a cell and a plea of
not guilty to the charge of committing an indecent act.
(7) THAT thereafter a Mr. DUPPERON, a guard at the Institu
tion, read out a statement of his evidence with respect to the
circumstances surrounding the alleged offences and I was then
given an opportunity to ask him questions regarding his
statement.
(8) THAT when I attempted to ask Guard DUPPERON questions
I was repeatedly told by the chairman of the Board, Mr. SWAN,
that my questions were irrelevant and did not deal directly with
the charge.
(9) THAT I was never asked to state my position or give my
evidence with respect to the circumstances alleged against me.
(10) THAT I was then sent out of the room and Robert Earl
BUTTERS was called back in.
(11) THAT approximately ten minutes later I was called back in
and was told that I had been found guilty of being in an
indecent position and not of committing an indecent act.
(12) THAT at no time was I present when Robert Earl BUTTERS
gave evidence relating to this matter nor was I given an
opportunity to ask him questions on his evidence.
(13) THAT I did not know that there existed a disciplinary
offence of being in an indecent position and I still do not know
if such an offence exists.
(14) THAT on being found guilty I received a sentence of fifteen
days in the special correctional unit on a restricted diet.
(15) THAT I do not know if the sentence imposed upon me was
for one or both of the alleged offences.
That of Butters reads in part:
(2) THAT on or about the 17th day of June, 1975 I was served
with a notice indicating that I had been charged with the
following inmate disciplinary offences pursuant to the Regula
tions under the Penitentiary Act R.S.C. 1970 c. P-6:
(a) being two inmates in one cell;
(b) committing an indecent act.
(3) THAT I am informed by ROBERT THOMAS MARTINEAU and
verily believe that he was also charged with the same offences
arising out of the same incident.
(4) THAT on Wednesday the 18th day of June, 1975 I was
called before the Inmate Disciplinary Board at Matsqui Institu
tion, Matsqui, British Columbia, and the members of the Board
were Mr. WALTER ROBERT SWAN, acting as chairman and
accompanied by Mr. DONALD FRANCIS PAVALIS and Mr.
WAYNE SISSONS.
(5) THAT upon being called before the Disciplinary Board on
Wednesday the 18th day of June, 1975 the two charges were
read out to me and I entered a plea of guilty to the charge of
being two inmates in one cell and a plea of not guilty to the
charge of committing an indecent act.
(6) THAT thereafter a Mr. DUPPERON, a guard at the Institu
tion, read out a statement of his evidence with respect to the
circumstances surrounding the alleged offences and I was then
given an opportunity to ask him questions regarding his
statement.
(7) THAT Mr. DUPPERON was then asked to leave the room.
(8) THAT I was then given an opportunity to state my position
in this matter and I stated that I had been outside my cell
window washing same when inmate MARTINEAU came into my
cell and that as soon as I finished washing the windows I
re-entered my cell through the window, onto my bed, and then
onto my cell floor. That to the best of my recollection MR.
MARTINEAU was sitting on part of my bed and I had no sooner
re-entered my cell when guard DUPPERON appeared in the
doorway. That definitely no indecent act took place between
myself and inmate MARTINEAU and I did not see any indecent
position taken by Mr. MARTINEAU nor did I take such a position
myself.
(9) THAT guard DUPPERON was then recalled and I was given a
further opportunity to ask him questions and as a result of my
questioning guard DUPPERON admitted that he had not seen an
indecent act take place but he had concluded that one had
taken place from the position that he alleged he had found
myself and Mr. MARTINEAU in.
(10) THAT guard DUPPERON alleged that Mr. MARTINEAU'S
pants were undone when he entered the cell and at no time did
I see or notice Mr. MARTINEAU'S pants to be undone.
(11) THAT at no time was inmate MARTINEAU present when
guard DUPPERON was giving this evidence or when I was giving
my evidence.
(12) THAT I was then told to leave the room and inmate
MARTINEAU was called in.
(13) THAT I was not present when inmate MARTINEAU was in
the room where the hearing was being conducted nor was I
given an opportunity to ask him any questions on any evidence
he may have given.
(14) THAT when I was asked questions by the Board relating to
this matter I answered same because I believed that I was
required to do so and that I would be charged with a further
offence if I did not do so.
(15) THAT I was subsequently called back into the hearing
room and I was then advised that I had been guilty of being in
an indecent position and not of committing an indecent act and
that I was sentenced to a period of fifteen days in the Special
Correctional Unit on a restricted diet.
(16) THAT I did not know that there existed an offence of being
in an indecent position and I still do not know if such an offence
exists.
(17) THAT I do not know if the sentence imposed upon me was
for one or both of the alleged offences.
It is common ground that the Institution in
question has been established as a "penitentiary"
under the Penitentiary Act, R.S.C. 1970, c. P-6.
The following provisions of that Act would seem to
be of possible relevance:
3. There shall continue to be a penitentiary service in and for
Canada which shall be known as the Canadian Penitentiary
Service.
4. (1) The Governor in Council may appoint and fix the
salary of an officer to be known as the Commissioner of
Penitentiaries who, under the direction of the Minister, has the
control and management of the Service and all matters con
nected therewith.
5. (1) The Minister may appoint officers of the Service to
be known as Directors of Divisions and Regional Directors.
6. (1) The Commissioner, under the direction of the Minis
ter, may appoint such other officers and employees of the
Service as are necessary for the administration of this Act.....
22. (1) Every person who is sentenced or committed to •
penitentiary for a fixed term shall, upon being received into a
penitentiary, be credited with statutory remission amounting to
one-quarter of the period for which he has been sentenced or
committed as time off subject to good conduct.
(3) Every inmate who, having been credited with statutory
remission, is convicted in disciplinary court of any disciplinary
offence is liable to forfeit, in whole or in part, the statutory
remission that remains to his credit, but no such forfeiture of
more than thirty days shall be valid without the concurrence of
the Commissioner or an officer of the Service designated by
him, nor more than ninety days without the concurrence of the
Minister.
23. The Commissioner or an officer of the Service desig
nated by him may, where he is satisfied that it is in the interest
of the rehabilitation of an inmate, remit any forfeiture of
statutory remission but shall not remit more than ninety days of
forfeited statutory remission without the approval of the
Minister.
29. (1) The Governor in Council may make regulations
(a) for the organization, training, discipline, efficiency,
administration and good government of the Service;
(b) for the custody, treatment, training, employment and
discipline of inmates; and
(c) generally, for carrying into effect the purposes and provi
sions of this Act.
(2) The Governor in Council may, in any regulations made
under subsection (1) other than paragraph (b) thereof, provide
for a fine not exceeding five hundred dollars or imprisonment
for a term not exceeding six months, or both, to be imposed
upon summary conviction for the violation of any such
regulation.
(3) Subject to this Act and any regulations made under
subsection (1), the Commissioner may make rules, to be known
as Commissioner's directives, for the organization, training,
discipline, efficiency, administration and good government of
the Service, and for the custody, treatment, training, employ
ment and discipline of inmates and the good government of
penitentiaries.
The following provisions of regulations made by
the Governor in Council and called the Penitentia
ry Service Regulations would seem to be relevant:
Inmate Discipline
2.28. (1) The institutional head of each institution is respon
sible for the disciplinary control of inmates confined therein.
(2) No inmate shall be punished except pursuant to an order
of the institutional head or an officer designated by the institu
tional head.
(3) Where an inmate is convicted of a disciplinary offence
the punishment shall, except where the offence is flagrant or
serious, consist of loss of privileges.
(4) The punishment that may be ordered for a flagrant or
serious disciplinary offence shall consist of one or more of the
following:
(a) forfeiture of statutory remission;
(b) dissociation for a period not exceeding thirty days,
(i) with a diet, during all or part of the period, that is
monotonous but adequate and healthful, or
(ii) without a diet;
(c) loss of privileges.
2.29. Every inmate commits a disciplinary offence who
(g) is indecent, disrespectful or threatening in his actions,
language or writing toward any other person,
(h) wilfully disobeys or fails to obey any regulation or rule
governing the conduct of inmates,
Commissioner's Directive No. 242 of December
18, 1973, is headed "Homosexual Activities in
Penitentiaries" and reads:
1. AUTHORITY
This directive is issued pursuant to subsection 2.29(g) of the
Penitentiary Regulations.
2. DIRECTIVE
Although homosexual activity does not now, with certain
exceptions; constitute an offence under the Criminal Code of
Canada, it remains an indecent action and, as such, is prohib
ited by subsection 2.29(g) of the Penitentiary Regulations.
Commissioner's Directive No. 213 of May 1,
1974, reads, in part, as follows:
1. AUTHORITY
This directive is issued pursuant to subsection 29(3) of the
Penitentiary Act and sections 2.28, 2.29, 2.30 and 2.31 of the
Penitentiary Service Regulations.
4. OFFICERS DESIGNATED TO AWARD PUNISHMENT
The Director of the institution shall designate, in writing, in
accordance with P.S.R. 2.28(2), those officers who may award
punishment at the minor offence level and at the serious or
flagrant offence level.... The officers designated to award
punishment for serious or flagrant offences shall not be below
the level of Assistant Director.'
6. INMATE OFFENCES
Inmate offences are as listed in section 2.29 of the P.S.R.
7. SERIOUS OR FLAGRANT OFFENCES
a. Serious or flagrant offences may include:
(11) is indecent, disrespectful, or threatening in his
actions, language, or writing, towards any other person;
b. If the inmate is found guilty of a serious or flagrant
offence, punishments shall consist of one or more of the
following (in accordance with P.S.R.):
(1) forfeiture of statutory remission;
(2) dissociation for a period not to exceed thirty days with
the normal diet or with the dissociation diet (as per D.I.
No. 667), during all or part of the period;
9. DETERMINATION OF CATEGORY OF OFFENCE
The guidelines defining an offence as either major or minor are
not intended to restrict the discretion of the Director of the
institution or the officer designated by him, who shall deter
mine the category of offence; each case shall be assessed
according to its own merits depending on the circumstances
surrounding the incident.
11. ACTION BY WITNESSING OFFICER
When an institutional officer witnesses what he considers to be
an act of misconduct on the part of one or more inmates, he
shall, depending on the circumstances, take one or more of the
following steps:
c. immediately advise the Senior Security Officer on duty,
during the normal working day, or the officer in charge of
the institution at all other times, in the event that temporary
dissociation or confinement of the inmate to his cell is
warranted;
d. take note of the offence and place a written memorandum
on inmate's file for future reference;
e. write an offence report (see Annex "A" attached).
12. OFFENCE REPORTS
a. An offence report shall be submitted to a designated
officer who shall decide whether or not further investigation
is necessary, and shall determine the category of offence. The
Senior Security Officer on duty shall immediately be
informed of serious or flagrant offences committed, in order
to enable him to take immediate action in relation to any
thing which may have a bearing on the security of the
institution.
c. If the investigation and findings indicate that the offence
is flagrant or serious in nature, the report shall be forwarded
to the Director of the institution who shall proceed in accord
ance with the provisions of paragraph 13.
13. HEARING OF CHARGES FOR SERIOUS OR FLAGRANT
OFFENCES
a. The Director of the Institution, or an officer designated by
him, not below the level of Assistant Director, shall hear all
cases where the offence is flagrant or serious in nature and, if
the inmate is found guilty, shall decide the appropriate
punishment. Two staff members may be appointed to assist
in a hearing, but their role shall be as advisers only.
c. No finding shall be made against an inmate charged
under Section 2.29 of the P.S.R. for a serious or flagrant
offence unless he:
(1) has received written notice of the charge in sufficient
detail so that he may direct his mind to the occasion and
events upon which the charge is made, and a summary of
the evidence alleged against him;
(2) has received the written notice and summary referred
to in paragraph (1) at least 24 hours before the beginning
of the hearing, so that he has reasonable time to prepare
his defence;
(3) has appeared personally at the hearing so that the
evidence against him was given in his presence;
(4) has been given an opportunity to make his full answer
and defence to the charge, including the introduction of
relevant documents, and the questioning and cross-exami
nation of the witnesses which shall be done through the
presiding officer; the inmate is entitled to call witnesses on
his own behalf, except that, where the request for the
attendance of any such witness is believed by the presiding
officer to be frivolous or vexatious, the presiding officer
may refuse to have such witness called and will advise the
inmate of the reason for the refusal.
d. The decision as to guilt or innocence shall be based solely
on the evidence produced at the hearing and, if a conviction
is to be registered, it can only be on the basis that, after a
fair and impartial weighing of the evidence, there is no
reasonable doubt as to the guilt of the accused.
14. AWARDING A PUNISHMENT
a. Before awarding a punishment, the Director of the Insti
tution, or an officer designated by him, shall review the
inmate's past conduct and progress, decide whether the
offence was committed deliberately or on impulse, and con
sider the need for further professional opinions.
b. The following provision shall apply in respect to an award
or punishment:
(1) Where an inmate is deprived of one or more privileges,
it shall be for a stated period of time and the inmate shall
be so informed. During a period in which an inmate is
deprived of a privilege or privileges, the Director of the
institution, or an officer designated by him, may, however,
suspend the punishment, subject to the continuing good
behaviour of the inmate. However, there shall be no
suspension of punishment if the inmate is further convicted
of a similar offence during the same month.
(2) When the award is one of punitive dissociation, the
Director of the institution or an officer designated by him,
is authorized to suspend the punishment, pending future
good behaviour, and to suspend a portion of such award
where there is an indication of a change in attitude and a
commitment by the inmate to cooperate in the program.
(3) Every inmate who, having been credited with statutory
remission, is convicted in disciplinary court of a flagrant or
serious offence, is liable to forfeit, in whole or in part, the
statutory remission that remains to his credit, but no such
forfeiture of more than thirty days shall be valid without
the concurrence of the Regional Director; no more than
ninety days shall be valid without the concurrence of the
Minister. Where there is no Regional Director and the
recommended forfeiture exceeds thirty days, institutions
shall refer the case, with appropriate recommendation, to
the Commissioner. Where the punishment of forfeiture of
statutory remission is applied, the inmate shall be
informed that, under Section 23 of the Penitentiary Act,
all or part of the forfeited remission may be remitted,
provided that it is in the interest of his rehabilitation
(paragraph 3 refers).
The respondent challenged the jurisdiction of
this Court to entertain this application under sec
tion 28 of the Federal Court Act on the ground
that a disciplinary decision under the Penitentiary
Act is a decision of an administrative nature that is
not required to be made on a judicial or quasi-judi
cial basis. Argument was heard on the question so
raised and, at the end of such argument, the Court
upheld the objection and dismissed the section 28
application without hearing the applicants upon
the merits of their attacks on the decisions taken
against them by the disciplinary board. The parties
were informed that reasons would be deposited in
the Registry for that decision as soon as possible.
In my view, disciplinary decisions in the course
of managing organized units of people such as
armies or police forces or in the course of manag
ing institutions such as penal institutions are,
whether or not such decisions are of a routine or
penal nature, an integral part of the management
operation. As a matter of sound administration, as
such decisions touch in an intimate way the life
and dignity of the individuals concerned, they
must be, and must appear to be, as fair and just as
possible. For that reason, as I conceive it, there has
grown up, where such decisions are of a penal
nature, a practice of surrounding them with the
phraseology and trappings of criminal law proce
dure. Nevertheless, in my view, disciplinary deci
sions are essentially different in kind from the
class of administrative decisions that are impliedly
required, in the absence of express indication to
the contrary, to be made on a judicial or quasi-
judicial basis in such a way that they can be
supervised by judicial process. In my view, that is
the principle underlying Howarth v. National
Parole Board', The Queen v. White', Regina v.
Metropolitan Police Commissioner Ex parte
2 (1975) 18 C.C.C. (2d) 385.
3 [1956] S.C.R. 154.
Parker 4 , and Ex parte Fry'. For that reason, I
conclude that the disciplinary decisions here in
question, even though of a penal nature and even
though they are required by administrative rules
to be made fairly and justly, are not decisions that
are required to be made on a judicial or quasi-judi
cial basis within the meaning of those words in
section 28 of the Federal Court Act.
In my view, the fact that statutory remission
(section 22 of the Penitentiary Act) is made sub
ject to reduction by such disciplinary decisions
does not change the essential nature of such
decisions. 6
On the other hand, I should say, although it is
not relevant to the question of jurisdiction involved
here, that, in my view, any such decision that
operates to affect the rights of an individual must
be a bona fide exercise of the powers vested in the
Penitentiary authorities,' and anything done
otherwise would have no validity by virtue of the
governing statute and regulations.
I do not overlook the fact that section 28(6) of
the Federal Court Act expressly prohibits a section
28 application in respect of a proceeding for a
"service offence" under the National Defence Act.
While, on the view that I hold, such provision is
4 [1953] 1 W.L.R. 1150.
5 [1954] 1 W.L.R. 730.
There is an obvious difference between disciplinary deci
sions and decisions removing persons from statutory offices.
Compare Saulnier v. Quebec Police Commission (1976) 57
D.L.R. (3d) 545, and Ridge v. Baldwin [1964] A.C. 40.
6 To this extent, I am not in agreement with the views
expressed by the Ontario Court of Appeal in Regina v. Beaver
Creek Correctional Camp, ex parte MacCaud [1969] 1 O.R.
373. Compare the reasoning in Commissioner of Patents v.
Farbwerke Hoechst Aktiengesellschaft Formals Meister
Lucius & Bruning [1964] S.C.R. 49, per Judson J. (delivering
the judgment of the Court) at page 57.
Compare In re H. K. [1967] 2 Q.B. 617, per Lord Parker
C.J. at page 630; Schmidt v. Home Secretary [1969] 2 Ch.
149, per Lord Denning M.R. at page 169; and R. v. Secretary
of State [1973] 3 All E.R. 796, per Lord Denning at page 803.
unnecessary, I am not persuaded that it can be
read as saying that section 28(1) would, if it were
not for subsection' (6), include such a proceeding,
and, therefore, includes similar proceedings under
such statutes as the Penitentiary Act. 8
For the above reasons, I concluded that this
Court has no jurisdiction to consider this section
28 application.
I should add that, while I came to the above
conclusion on the best analysis that I could make
of the statute in the light of the relevant jurispru
dence, in my view, the result accords with the
realities of the situation. Assuming, without
expressing any opinion on the matter, that there
should be some improvement in the present
arrangements for review of decisions of Penitentia
ry disciplinary tribunals, it does not seem to me
that a judicial review by an ordinary court can
provide a review of a character that would improve
matters. If there is to be a review of a sufficiently
speedy character, and of a character that would
not insert unwieldy and unworkable characteristics
into disciplinary proceedings, as it seems to me,
such review cannot be by the procedures of an
ordinary court but must be by specially designed
procedures and by special tribunals of a kind
sometimes referred to as "visitors".
* * *
The following are the reasons for judgment
rendered in English by
RYAN J.: The facts of the case and the relevant
provisions of the Penitentiary Act, the Penitentiary
Service Regulations and the Commissioner of
Penitentiaries directives are set out in the reasons
for judgment of Chief Justice Jackett.
This case presents a serious question concerning
the scope of section 28 of the Federal Court Act in
relation to the administration of discipline in
8 Compare Association of Radio & T.V. Employees v. CBC
[1975] 1 S.C.R. 118, per Laskin J. (as he then was) (dissent-
ing) at pages 134-35, whose reasons on this point were con
curred in by Martland J. (delivering the judgment of the
majority) at page 127.
Canadian penitentiaries. I confess to having had
some difficulty in reaching a firm conclusion on
this question.
The decisions of the respondent disciplinary
board which are challenged by the applicants
involved convictions on charges of having commit
ted serious and flagrant offences under a code of
offences set out in the Penitentiary Service Regu
lations. The convictions were entered following
certain proceedings taken under the Commissioner
of Penitentiaries Directive No. 213.
Whether we have jurisdiction to entertain these
applications depends on whether the decisions in
question were of an administrative nature required
by law to be made on a judicial or quasi-judicial
basis.
In Regina v. Institutional Head of Beaver Creek
Correctional Camp, Ex parte MacCaud 9 , the
Ontario Court of Appeal, in considering the nature
of the penitentiary disciplinary system, character
ized penitentiary discipline as an administrative
matter:
It is clear that in the performance of his duties as an officer
of the Service in charge of an institution and responsible for the
safe custody and disciplinary control of its inmates, the major
commitment of an institutional head is to make administrative
decisions for which he is responsible to his superior only and in
regard to which the right of review by certiorari is not
available. 10
In The Queen v. White", the decision of the
Supreme Court of Canada was that the Royal
Canadian Mounted Police disciplinary procedures
there in question were administrative in nature;
they were treated as being neither judicial nor
quasi-judicial in character, a character that would
have rendered decisions made pursuant to them
reviewable on certiorari.
There is, of course, a wide difference between
the Mounted Police establishment, with its
similarities to a military organization, and a peni
tentiary. But there is at least this much in common
between the military and military-type organiza-
9 [1969] 1 O.R. 373.
° Id., at page 378.
n [1956] S.C.R. 154.
tions on the one hand and prisons on the other:
breaches of discipline must of necessity be dealt
with promptly. I share the opinion of the Ontario
Court of Appeal in the Beaver Creek Correctional
Camp case that penitentiary discipline is an
administrative matter.
I recognize,. of course, that in the Beaver Creek
Correctional Camp case it was held that, although
the institutional head's decisions are administra
tive, there is a duty to act judicially or quasi-judi
cially when such decisions affect the civil rights of
an inmate. Civil rights, in the view of the Court,
are rights that affect the inmate's status as a
person as distinguished from his status as an
inmate. The only right of the applicants which
would fall within the civil rights of inmates as
those rights were enumerated by the Ontario
Court of Appeal, that appears to have been threat
ened in this case'', was the right to statutory
remission; this right was included as a civil right
by the Ontario Court because its forfeiture in
whole or in part would entail prolongation of a
period of confinement and thus would adversely
affect the inmate's liberty. After Howarth v. Na
tional Parole Board'', it would seem difficult,
however, to accept an actual or potential loss of
statutory remission as being, in itself, a sufficient
factor to add to the making of an administrative
decision a duty to act quasi-judicially. 14
In my view then, apart from the possible effect
of the Commissioner's Directive, there would not
in this case be a requirement that the disciplinary
board should act judicially or quasi-judicially.
That is not necessarily to say that the hoard would
be free of an obligation to act with fairness. But
that is another matter 's. This, however, leaves the
12 It seems to me that if a decision depriving an inmate of a
civil right would be one that would have to be made on a
quasi-judicial basis, the possibility that such a decision might
be made would have the same effect.
3 (1975) 18 C.C.C. (2d) 385.
14 See, in particular, Beetz J. at page 400.
15 In the Howarth case, Pigeon J. said at page 388:
The reason I am stressing this point is that in argument,
counsel for the appellant relied mainly on cases dealing with
the duty of fairness lying upon all administrative agencies, in
very important question whether the procedural
provisions of the Commissioner's Directive No.
213 add to the administrative process a duty to, act
quasi-judicially. It is far from easy to discover the
answer to this question. I do not think that one can
say that because, apart from the Directive, a disci
plinary function would be purely administrative,
the addition of a procedure by way of rules made
in the exercise of a delegated power would make
no difference. One must inquire whether the rules
are such as to impose duties with correlative rights
concerning the exercise of the administrative func
tion which require that decisions be made on such
a basis as, having regard to relevant authorities,
has come to be regarded as at least quasi-judicial.
The answer can be ascertained, in my opinion, only
by considering the rules in relation to the discipli
nary function, and by examining the terms of the
statute itself.
It is pertinent to note that, in the Beaver Creek
case, the Ontario Court of Appeal was of opinion
that the Directive in question in that case, similar
to but not identical with Directive No. 213, did not
vest in the inmates a right, as against members of
the penitentiary staff, to adherence to its terms.
Some weight was given to the difference between
regulations effected by the Governor in Council
and rules made by the Commissioner, rules which,
in the view of the Court, were made by him as part
of the administrative process for which he is
responsible. The Court noted (at pages 380-381)
the context of various common law remedies. These are, in
my view, completely irrelevant in the present case because a
s. 28 application is an exception to s. 18 and leaves intact all
the common law remedies in the cases in which it is without
application. The Federal Court of Appeal did not consider, in
quashing the application, whether the Parole Board order
could be questioned in proceedings before the Trial Division.
No facts were put in evidence and the only point dealt with
was whether the impugned order was one that could be said
to be required by law to be made on a judicial or quasi-judi
cial basis.
And again, at page 389, His Lordship said:
Practically all the argument addressed to us by counsel for
appellant merely tended to show that a case could possibly be
made for some common law remedy, that the Parole Board
must have a duty to act fairly, not that it has to decide on a
judicial or quasi-judicial basis.
that the Commissioner's directives are internal to
the Penitentiary Service: "They define for the staff
member the manner in which, and the limits
within which he and other members of the service
are expected to perform their duties ...." On the
other hand it is clear that the Directive was made
pursuant to an authority to make rules in respect
of inmate discipline vested in the Commissioner by
a subsection of the governing statute, and that the
rules encompass procedures in respect of notice
and the making of answer and defence to a charge
which would fall within the usual requirements of
natural justice. It is also true that the sanctions
provided for flagrant and serious offences involve
serious penalties.
I have formed the opinion that the Penitentiary
Service Regulations, in so far as they relate to
inmate discipline, and the Commissioner's Direc
tive No. 213, both infused with legality by their
enactment pursuant to section 29 of the Peniten
tiary Act, establish a structure for the administra
tion of inmate discipline imposing a legal require
ment that disciplinary decisions, in relation to
serious and flagrant offences, must be made on a
quasi-judicial basis. I have therefore concluded
that we do have jurisdiction.
* * *
The following are the reasons for judgment
rendered in English by
SHEPPARD D.J.: I agree with the Chief Justice.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.