T-4302-75
In re the Penitentiary Act and in re Robert
Thomas Martineau
Trial Division, Mahoney J.—Vancouver, June 27;
Ottawa, July 14, 1977.
Jurisdiction — Prerogative writ — Certiorari — Applicant
convicted by Penitentiary Board of disciplinary offence and
punished — Allegation that neither he nor representative
allowed to be present when evidence given — Certiorari sought
to quash convictions — Whether or not the Trial Division has
jurisdiction to entertain application for writ of certiorari
Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10, s. 18 —
Penitentiary Act, R.S.C. 1970, c. P-6 — Penitentiary Service
Regulations, SOR/62-90, s. 2.29 as amended by SOR/72-398,
s. 4.
The application is to determine a question of law under Rule
474: whether or not the Trial Division has jurisdiction to grant
certiorari in the circumstances. The Supreme Court had
affirmed that, in the circumstances, the Court of Appeal did
not have jurisdiction under section 28 of the Federal Court Act
to grant relief. The applicant seeks certiorari to quash convic
tions of the applicant by a Penitentiary Inmate Disciplinary
Board for a "serious and flagrant" disciplinary offence. The
applicant had been convicted by the Board of the offences and
punished by dissociation. He alleges that neither he nor a
representative was permitted to be present when the Board
received the evidence of the person alleged to have participated
with him in the offences of which he was convicted.
Held, the Trial Division has jurisdiction to hear an applica
tion for certiorari to quash the Board's decision. The discipli
nary offences of which the applicant was convicted were creat
ed by law and the punishment imposed authorized by the law.
As a precondition to the imposition of the punishment, the law
requires conviction of the offence and it envisages some process
by which an inmate is to be determined to have committed the
offence. Although the law is silent as to that process, a public
body, authorized by law to impose a penalty more than a mere
denial of privileges, has a duty to act fairly in arriving at its
decision to impose the punishment.
Regina v. Institutional Head of Beaver Creek Correctional
Camp, ex parte MacCaud [1969] 1 C.C.C. 371, applied.
Howarth v. National Parole Board [1976] 1 S.C.R. 453,
considered.
APPLICATION.
COUNSEL:
John W. Conroy for applicant.
John R. Haig for respondent.
SOLICITORS:
John W. Conroy, Abbotsford, for applicant.
Deputy Attorney General of Canada for
respondent.
The following are the reasons for order ren
dered in English by
MAHONEY J.: By agreement, this is deemed to
be an application by the applicant, Robert Thomas
Martineau, under Rule 474 of the Rules of this
Court for a preliminary determination of a ques
tion of law: namely, whether or not the Federal
Court of Canada, Trial Division, has jurisdiction
to grant relief by way of certiorari in the circum
stances. That the Federal Court of Appeal has no
jurisdiction, under section 28 of the Federal Court
Act', to grant relief in the circumstances has been
affirmed by the Supreme Court of Canada 2 . These
proceedings were commenced concurrently with
the section 28 proceedings and were, on consent,
adjourned sine die pending its disposition.
The applicant seeks an order in the nature of a
writ of certiorari removing into this Court, for the
purpose of quashing the same, convictions of the
applicant by the respondent, Inmate Disciplinary
Board, Matsqui Institution, for "flagrant and seri
ous" disciplinary offences. It is not disputed that
Matsqui Institution is a penitentiary constituted
under the Penitentiary Acta and that the respond
ent, Inmate Disciplinary Board, is "a federal
board, commission or other tribunal" within the
meaning of section 18 of the Federal Court Act,
which provides:
18. The Trial Division has exclusive original jurisdiction
(a) to issue an injunction, writ of certiorari, writ of prohibi
tion, writ of mandamus or writ of quo warranto, or grant
declaratory relief, against any federal board, commission or
other tribunal; and
' R.S.C. 1970 (2nd Supp.), c. 10.
2 Martineau and Butters v. Matsqui Institution Inmate Dis
ciplinary Board [1978] 1 S.C.R. 118.
3 R.S.C. 1970, c. P-6.
(b) to hear and determine any application or other proceed
ing for relief in the nature of relief contemplated by para
graph (a), including any proceeding brought against the
Attorney General of Canada, to obtain relief against a
federal board, commission or other tribunal.
The facts upon which this application is based
and the material provisions of the Penitentiary Act
and the regulations and directives made by its
authority are fully set out in the judgment of
Jackett C.J., in the Federal Court of Appeal 4 and
I do not intend to quote them extensively here.
Suffice it to say, as to the facts, the applicant was
convicted of "flagrant or serious" disciplinary
offences and punished by dissociation for 15 days
on a restricted diet. He alleges that neither he, nor
anyone representing him, was permitted to be
present when the respondent received the evidence
of the person alleged to have participated with him
in the offences of which he was convicted.
The relevant provisions of the Penitentiary Act
are subsections 29(1) and (2):
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.
The disciplinary offences which the applicant
was found by the respondent to have committed
are created by section 2.29 of the Penitentiary
Service Regulations':
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,
4 [1976] 2 F.C. 198 at pp. 199 ff.
5 SOR/62-90.
The regulations envisage that these offences, inter
alia, may be "flagrant or serious" or they may not.
If not, punishment is restricted to loss of privileges.
If "flagrant or serious", the punishment is pre
scribed by subsection 2.28(4) 6 :
2.28. .. .
(4) The punishment that may be ordered for a flagrant or
serious disciplinary offence shall consist of any 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.
I take it that the jurisdiction to grant the relief
sought depends upon the material in support of the
application disclosing that some right of the appli
cant has been abridged or denied. A punishment
consisting only of a "loss of privileges" would not,
by definition, involve a denial or abridgement of
any right. The liability to forfeiture of statutory
remission when an inmate "is convicted in discipli
nary court of any disciplinary offence" is expressly
provided by subsection 22(3) of .the Act. The
liability to dissociation as punishment depends
entirely on the regulation made by authority of
section 29 of the Act. With respect to that author
ity, it was not argued that subsection 29(2) of the
Act is to be construed as not authorizing the
inclusion of a penalty for its violation in a regula
tion made under paragraph 29(1)(b) and that,
therefore, regulations made by authority of para
graph 29(1)(b) are not "law" 7 .
6 SOR/72-398.
7 In holding that the Federal Court of Appeal had no juris
diction to entertain the section 28 application herein, a majority
of the Supreme Court of Canada held [Howarth v. National
Parole Board [1976] 1 S.C.R. 453 at p. 471] that the decision
was "of an administrative nature not required by law to be
made on a judicial or quasi-judicial basis". Four of the five
judges who arrived at the conclusion did so on the basis that
Commissioner's directives were not "law", while the regulations
were "law". In reaching that conclusion, the four judges appar-
(Continued on next page)
In Regina v. Institutional Head of Beaver Creek
Correctional Camp, ex parte MacCaud 8 , the
Ontario Court of Appeal enunciated the principles
to be applied in an application such as this and
came to the conclusion that the decision of the
institutional head was amenable to certiorari in
two situations:
1. Where the sentence imposed deprived the
inmate, in whole or part, of any civil right which,
as a person, he continues to enjoy notwithstanding
that he is an inmate and that some impairment
and deprivation of his civil rights is necessarily
incidental to that status.
2. Where the sentence imposed deprived the
inmate, in whole or part, of any statutory civil
right to which he is entitled as an inmate.
The only example the Ontario Court of Appeal
suggested in the second category was forfeiture of
statutory remission. The Supreme Court of
Canada, in considering the section 28 application
herein, took the opportunity to disagree with that
as being an appropriate example. The Ontario
Court of Appeal did hold that an inmate derived
no statutory civil right from Commissioner's direc
tives, a result confirmed by the Supreme Court in
its judgment. I do not find it necessary to pursue
this ground for certiorari further because I am
unable to identify any "statutory civil right" given
the applicant, as an inmate, that was in any way
affected by the decision complained of, it being
established that Commissioner's directive No. 213
gave him no such right.
As to an inmate's civil rights as a person, the
Ontario Court of Appeal said [at page 377]:
(Continued from previous page)
ently attached considerable significance to the fact that section
29 authorizes penalties for violation of the regulations but not
for violation of the Commissioner's directives. The fifth, who
concurred in the result, adopted the reasons of Chief Justice
Jackett in the Federal Court of Appeal. He appears not to have
considered the question of whether or not the Commissioner's
directive in issue was "law" as a distinct question apart from
what it requires of the Respondent in terms of making its
decision on a "judicial or quasi-judicial basis".
8 [1969] 1 C.C.C. 371.
The proper test to be applied is to ask whether the proceedings
sought to be reviewed have deprived the inmate wholly or in
part of his civil rights in that they affect his status as a person
as distinguished from his status as an inmate. If the application
of this test provides an affirmative answer in arriving at that
decision the institutional head is performing a "judicial" act.
It would be trite to say that an inmate of an institution
continues to enjoy all the civil rights of a person save those that
are taken away or interfered with by his having been lawfully
sentenced to imprisonment. Rather we consider that it is desir
able to attempt to enumerate what are the civil rights to which
an inmate remains entitled, which may be affected by the act of
the institutional head of the penitentiary in which he is an
inmate.
At the outset, it must be observed that the passing of a
sentence upon a convicted criminal extinguishes, for the period
of his lawful confinement, all his rights to liberty and to the
personal possession of property within the institution in which
he is confined, save to the extent, if any, that those rights are
expressly preserved by the Penitentiary Act. Since his right to
liberty is for the time being non-existent, all decisions of the
officers of the Penitentiary Service with respect to the place
and manner of confinement are the exercise of an authority
which is purely administrative, provided that such decisions do
not otherwise transgress rights conferred or preserved by the
Penitentiary Act. [Emphasis is mine.]
I have considerable difficulty accepting that
proposition where the decision as to place and
manner of confinement is made with a view to
punishing the inmate for something other than the
crime for which he has been imprisoned, yet, in its
context, it would appear obviously to have been so
intended. That there is a distinction between dis
sociation as punishment and dissociation for other
reasons is made clear by section 2.30 of the
regulations.
The disciplinary offences of which the appellant
was convicted were created by law. The punish
ment imposed was authorized by law. The law
required that, as a precondition to the imposition
of the punishment, he be "convicted" of the
offence. I am mindful of, and accept, the caveat of
Chief Justice Jackett not to place too much signifi
cance on the fact that the phraseology of criminal
proceedings is imported into the regulations.
Nevertheless, it is manifest that the law envisages
some process by which an inmate is to be deter
mined to have committed a disciplinary offence,
prescribed by law, as a condition precedent to the
imposition of a punishment, also prescribed by
law. The law, the statute and regulations which
prescribe both offence and punishment, is silent as
to that process.
In Howarth v. National Parole Board 9 , Mr.
Justice Pigeon, speaking for a clear majority of the
Supreme Court of Canada, while denying the Fed
eral Court of Appeal's section 28 jurisdiction in
the circumstances, observed:
It will be seen that while supervisory jurisdiction over federal
boards is conferred generally upon the Trial Division without
any restriction as to the nature of the decision under consider
ation, the new remedy created by s. 28 is restricted in its
application to judicial decisions or to administrative orders
required by law to be made on a judicial or quasi-judicial basis.
It is only in respect of such decisions or orders that the new
remedy equivalent to an appeal is made available. Thus the
clear effect of the combination of ss. 18 and 28 is that a
distinction is made between two classes of orders of federal
boards. Those that, for brevity, I will call judicial or quasi-judi
cial decisions are subject to s. 28 and the Federal Court of
Appeal has wide powers of review over them. The other class of
decisions comprises those of an administrative nature not
required by law to be made on a judicial or quasi-judicial basis.
With respect to that second class, the new remedy of s. 28, the
kind of appeal to the Appeal Division, is not available, but all
the other remedies, all the common law remedies, remain
unchanged by the Federal Court Act. The only difference is
that the jurisdiction is no longer exercisable by the superior
courts of the provinces, but only by the Trial Division of the
Federal Court. The very fact that such a distinction is made
shows that the s. 28 application is not intended to be available
against all administrative board decisions.
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
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-judicial basis.
I take it that in Canada, in 1975, a public body,
such as the respondent, authorized by law to
impose a punishment, that was more than a mere
denial of privileges, had a duty to act fairly in
arriving at its decision to impose the punishment.
9 [1976] 1 S.C.R. 453 at pp. 471-472.
Any other conclusion would be repugnant. The
circumstances disclosed inthis application would
appear to be appropriate to the remedy sought. I
am not, of course, deciding whether the remedy
should be granted but merely whether it could be
granted by the Federal Court of Canada, Trial
Division. In my view it could.
ORDER
IT IS ORDERED AND ADJUDGED THAT this Hon
ourable Court does have jurisdiction to grant the
relief sought in these proceedings and that the
costs of the application be costs in the cause.
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.