T-3250-76
Jack Clinton Magrath (Plaintiff)
v.
The Queen (Defendant)
Trial Division, Collier J.—Vancouver, September
7, 8, 9, 12 and 13; Ottawa, November 8, 1977.
Imprisonment — Action for declaratory relief on five issues
— Conviction by Disciplinary Board alleged to be improper
Transfer to another penitentiary allegedly effected outside of
prescribed procedures — Loss or detention of property termed
unlawful — Prison transfer to serve dissociation punishment
contended to be cruel and unusual, especially after serious riot
occurred — Interest on plaintiff's personal money, and pay
deducted, and appropriated, without consent — Whether or
not declaratory relief should be granted for each issue
Penitentiary Act, R.S.C. 1970, c. P-6, ss. 13, 29 — Penitentia
ry Service Regulations, SOR/62-90, ss. 2.08, 2.22, 2.26, 2.28,
2.29.
Plaintiff, a penitentiary inmate, seeks declaratory relief con
cerning five issues. A Disciplinary Board conviction was argued
to have been improper and a transfer to another institution to
have been effected outside prescribed procedures. The loss of
certain personal property and the detention of other possessions
were alleged to have been unlawful. Also, the transfer to the
British Columbia penitentiary to serve dissociation punishment
was described as cruel and unusual punishment, especially after
a serious riot occurred there. Finally, bank interest on personal
money had been credited and portions of pay had been trans
ferred to an inmate fund without plaintiff's consent.
Held, the action is allowed in part. The Commissioner's
directives are not "law". By section 18, the Trial Division has
jurisdiction to entertain a claim to set aside a federal board's
administrative action not required to be made on a judicial or
quasi-judicial basis. The plaintiff did not receive a fair hearing
and expungement will have some practical effect for it legally
will erase the conviction from plaintiff's institutional record.
The transfer process, however, is quite different. An inmate has
no right to appear in person or to be heard concerning transfers
and is not entitled to reasons why one is carried out or refused.
Plaintiff's transfer to the British Columbia penitentiary, and his
serving his dissociation punishment there, was merely inciden
tal to an administrative decision based on previous conduct.
Neither the transfer nor the occurrence of a serious riot there
amounts to cruel and unusual punishment. The establishment
of rates of pay is an administrative decision made by the
Commissioner. There is no right in law to any pay at all, and
logically, no right to challenge the deduction of a day's pay.
Similar reasoning applies to the complaint concerning the
retirement of the previously incurred debt. The Penitentiary
Service Regulations and Commissioner's directives, however,
do not authorize the transfer of interest earned on an inmate's
personal money without consent. An accounting is possible.
Plaintiff's other claims concerning personal property loss or
deprivation were not proved, except for a short-term depriva
tion of typing paper that does not warrant compensation.
In re Martineau [1978] 1 F.C. 312, applied. Martineau
and Butters v. Matsqui Institution Inmate Disciplinary
Board [ 1978] 1 S.C.R. 118, applied. Minister of Manpow
er and Immigration v. Hardayal [1978] 1 S.C.R. 470,
followed. Re Anaskan and The Queen (1977) 15 O.R. (2d)
515, followed. McCann v. The Queen [ 1976] 1 F.C. 570,
distinguished.
ACTION.
COUNSEL:
Jack Clinton Magrath on his own behalf.
J. Watchuk for defendant.
SOLICITORS:
Jack Clinton Magrath on his own behalf.
Deputy Attorney General of Canada for
defendant.
The following are the reasons for judgment
rendered in English by
COLLIER J.: The plaintiff is, and at material
times was, an inmate of a federal penitentiary.
This is not his first incarceration. This action is
brought in person. The original statement of claim
was filed August 16, 1976. The defendant neglect
ed to file a defence within the prescribed time. As
a result of interlocutory motions, an amended
statement of claim was filed December 21, 1976. I
have recorded those dates for this reason. Between
the filing of the two statements of claim a serious
riot occurred at the British Columbia penitentiary.
The plaintiff was, at that time, an inmate of that
institution.
The plaintiff claims declaratory relief in respect
of five matters:'
(a) On June 21, 1976, while an inmate of
Mountain Institution in British Columbia, he
was convicted by a Disciplinary Board of a
"flagrant or serious disciplinary offence". The
charge was that he had failed "... to obey a
lawful order of a penitentiary officer. (Refused
a direct order)." The punishment was 10 days
S.C.U., HB/RD. 2 The plaintiff asserts the con
viction was improper; the Board did not comply
with the procedure laid down for such hearings.
(b) On the same day the plaintiff was trans
ferred from Mountain Institution to the British
Columbia penitentiary. The plaintiff says this
transfer was effected without complying with
prescribed procedures. In particular, he was not,
before transfer given a hearing, nor was he ever
informed of the reasons for the transfer.
(c) The plaintiff alleges that while he was at
Mountain Institution he had certain personal
possessions. When he was transferred to the
British Columbia penitentiary some of those
articles were missing. Certain others were, he
says, unlawfully detained; they were not
returned for over a year. The plaintiff seeks a
declaration he was improperly and unlawfully
deprived of the latter possessions. In addition,
punitive damages are sought.
(d) The plaintiff alleges his transfer and con
finement to the British Columbia penitentiary
was, particularly because of the riot, "cruel and
unusual punishment." A declaration accordingly
is sought.
(e) While the plaintiff was at Mountain Institu
tion he, and other inmates, earned prescribed
pay. The plaintiff alleges some portions of this
' The Queen is the only defendant named. The Attorney
General of Canada is not a party. The defendant did not raise
any objection to the effect that in an action for declaratory
relief (such as this) the Attorney General should be the proper
party defendant. If the objection had been raised, and if I had
agreed with it, I would have ordered the Attorney General be
substituted or added as a defendant.
2 This means 10 days dissociation in a solitary confinement
unit, with a hard bed and a reduced diet.
pay were improperly, and without his consent,
'transferred to the Inmate Welfare Fund. He
says this money, along with that of other
inmates, was used to retire a previous debt
attributed to the Welfare Fund. He says the
indebtedness was incurred through the fault of
the staff of the institution. Finally, on this
aspect, the plaintiff claims that bank interest, on
personal monies, was unlawfully, and without
his consent, credited to the Inmate Welfare
Fund.
I turn now to the facts.
The plaintiff is 60 years old. He was convicted
of trafficking in heroin and, in May of 1975, was
sentenced to 9 years. He was first at the British
Columbia penitentiary. It is a maximum security
prison. In September 1975 he was transferred to
Matsqui Institution, near Abbotsford, B.C. It is a
medium-maximum security unit.
On March 25, 1976 he was transferred to
Mountain Institution, at Agassiz, B.C. The latter
is a medium security prison. In each case, as the
security classification of the prison lessens, the
privileges given the inmates are somewhat better.
The setting, too, is more desirable. The evidence is
that the plaintiff was never, at any time, a security
risk in the sense he was likely to escape or lead
attempts to that end.
Not too long after his move to Mountain Institu
tion, the plaintiff was made the editor of a house
newspaper. It was a new project. It was called
"Con-Versely".
At Mountain Institution there was an Inmates'
Welfare Committee. Its members were inmates
elected by their fellow prisoners. There was, as
well, a fund called the Inmate Welfare Fund.
Some of its funds come from inmates' earnings.
Each inmate is paid a prescribed daily rate. The
applicable section of the Penitentiary Service
Regulations is 2.26:
2.26 (1) The Commissioner may, with the approval of the
Treasury Board, authorize rates of pay for inmates, which rates
shall be designed to encourage them to become better citizens
upon release from custody and, in particular, to
(a) provide greater incentive to inmate workers;
(b) encourage inmates to accumulate reasonable financial
reserves for the day of their release;
(c) motivate inmates to work constructively and apply them
selves to learning trade skills; and
(d) prepare inmates for employment in free society in
accordance with the requirements of that society.
(2) Pay at the rates authorized in accordance with subsec
tion (1) shall be
(a) paid to inmates in such manner,
(b) applied to such purposes,
(c) subject to such forfeitures and deductions, and
(d) accounted for in such manner,
as may be prescribed by directives.
Commissioner's Directive No. 232 provides
there shall be deducted from each inmate one
day's pay per month and that amount deposited in
the Inmate Welfare Fund. While the plaintiff was
at Mountain Institution three days' pay, a total of
$2.10, was transferred from the plaintiff's credit to
the credit of the Inmate Welfare Fund.
No consent was ever obtained from the plaintiff
authorizing this deduction or transfer.
The Fund also derived monies from donations
and from profits on the sale of coffee. The
Inmates' Welfare Committee, if it wished to spend
funds for certain purposes (for example a special
dinner for families and friends of inmates), or
amenities, would outline its request to the adminis
tration of the institution. There were two steps:
(1) The purpose of the request was reviewed. If
it appeared desirable, it was approved by the
administration.
(2) The administration then ascertained if there
were sufficient funds in the Fund. If so, the
necessary funds were frozen pending receipt of
an actual invoice. In the case of Mountain
prison the actual accounting was done at Mat-
squi Institution.
At one time at Mountain Institution the method of
obtaining supplies for the purposes outlined was to
carry charge accounts with local merchants. This
policy was, before December 1975, changed to a
cash basis.
In December of 1975 (before the plaintiff came
to Mountain Institution), a member of the then
Inmates' Welfare Committee somehow managed
to order food and other materials, on a credit
basis, from merchants. The two-step procedure
outlined above had not been followed. In the early
part of the next year it became apparent the
amount owed to suppliers exceeded the funds to
the credit of the Inmate Welfare Fund. The sum
involved was approximately $1,500. The adminis
tration decided it would have to be made good by
the inmates. It took until sometime in May 1976
before the outstanding bills were paid.
The practical result of this was a cut-back in
entertainment and other amenities which were
usually provided by means of Inmate Welfare
Fund monies. The plaintiff says, with some logic,
that he and others who were not in Mountain
Institution in the Christmas season of 1975 never
shared in the largesse of the former Inmates'
Welfare Committee; but the compulsory deduc
tions from his pay after March 25, 1976 were,
with deductions from other inmates, used to retire
the previous over-expenditures.
The evidence clearly indicates there was friction
and discontent between inmates and the institution
staff in respect of the decision that the outstanding
bills would have to be retired solely by the
inmates.
I go now to another matter.
On June 18, 1976 the plaintiff was directed by a
security officer to report to Ms. Alix Jenkins, the
Head of Socialization. At this point in time the
plaintiff had apparently become disgruntled with
what he thought was lack of progress and coopera
tion in turning out the prison newspaper. He had
indicated his displeasure. I do not know, however,
the specific reason why, on that day, he was told to
report to Ms. Jenkins. When he was so directed he
told the security officer that Ms. Jenkins could "go
fuck herself". The officer, in accordance with
procedure, filed an "officers report" (Ex. 7A). 1
quote the euphemistic description, there set out, of
what had occurred:
At approximately 1454 hrs, in the vicinity of Hut #10 I
ordered Inmate McGrath to report to Ms. Jenkins. He declined
stating that he would talk to the director or Mr. Wynn Smith
and that Ms. Jenkins could go and perform an un -natural sex
act upon herself.
At this stage I reproduce the section of the
statute, the regulations, and the Commissioner's
Directive dealing with disciplinary offences:
Penitentiary Act
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 the 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.
Penitentiary Service Regulations
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
(a) disobeys or fails to obey a lawful order of a penitentiary
officer,
Commissioner's Directive No. 213 (Ex. 17)
8. SERIOUS OR FLAGRANT OFFENCES
a. Serious or flagrant offences may include:
(9) disobeys or fails to obey a lawful order of a penitentia
ry officer;
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;
(3) loss of privileges.
13. OFFENCE REPORTS
b. If it is determined that the offence is of a minor nature,
the officer designated to award punishment (in accordance
with para. 5) shall, after consultation with appropriate staff
members, award punishment in the form of forfeiture of one
or more privileges for a specified period. The disposing of
minor charges will be as informal as possible.
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 14.
14. HEARING OF CHARGES FOR SERIOUS OR FLA
GRANT 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.
b. The hearing of an inmate who is under charge shall
commence, as far as is practicable, within three working days
from the date of the offence but may, when circumstances
require, be adjourned from time to time.
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.
Pursuant to the Regulations and Commission
er's Directive No. 213 a charge was prepared
under paragraph (a) of section 2.29 of the Regula
tions (see above). I have earlier set out that specif
ic charge. It had been determined the offence
would be categorized as flagrant or serious. Mr. G.
V. Young, the Assistant Director of Technical
Services, was designated to hear the charge and
decide the appropriate punishment. At one time
Mr. Young had been involved in hearing a large
number of disciplinary charges, as many as 25 or
30 in a year. By 1976 he was only hearing 2 or 3.
On June 21, 1976 the plaintiff was brought
before Mr. Young.
At this point I shall recount Young's version as
to the procedure followed. The offence as
described under heading 3 of Ex. 7 was read out to
the plaintiff. The officer's report, from which I
have already quoted, was also read. The plaintiff
was asked to plead. He pleaded not guilty. Young
then asked the plaintiff "... to state his case ..."
as to why he was pleading not guilty. A discussion
then ensued, with the plaintiff taking the position
the direction to report to Ms. Jenkins was not a
"direct order". The plaintiff was then asked if he
had anything further to say. The answer was No.
Magrath was then escorted out. Young deliberated
and concluded the plaintiff was guilty. The plain-
tiff was recalled. The decision was given. The
punishment imposed was 10 days' dissociation.
The officer who had given the order to Magrath
was not present during this hearing. Nor were the
other officers who witnessed the incident and who
signed Ex. 7A. They did not, at any time, give oral
evidence. The plaintiff was not given any opportu
nity to question them.
Mountain Prison did not have a solitary confine
ment unit. Matsqui Institution and the British
Columbia Penitentiary did. Normally, an inmate
of Mountain Prison, directed to serve solitary con
finement, was transferred to Matsqui for that pur
pose. On completion of the term he was returned
to Mountain.
In this case the director of Mountain Institution,
Mr. Mort, because of difficulties he felt the plain
tiff had been causing, and because of this particu
lar disciplinary offence, decided to request the
plaintiff be transferred to the British Columbia
Penitentiary. That was done by telephone. The
request was acceded to by Mr. A. A. Byman, the
Director of the Regional Reception Centre, Pacific
Region. The plaintiff was not told he was being
transferred to the British Columbia Penitentiary.
Nor was he told, at any time, the reason for his
transfer. Nor was the matter of the transfer
referred to the Regional Classification Board.
Immediately following the conclusion of the dis
ciplinary hearing, the plaintiff was taken to a
custody cell. He was held there until all necessary
arrangements for transfer were completed. In the
prison jargon, he was "scooped". Security officers
were directed to go to his cubicle in the living
quarters to collect his belongings. I was told that
word of a scoop quickly spreads through the prison
population. A scooped inmate's personal posses
sions are often, at that stage, stolen.
The security officers found, among the plain
tiff's personal articles, two sheets of aluminum, an
aluminum ruler, and some typing paper. It was
decided these articles belonged to the penitentiary
service. They were not sent with the plaintiff to the
British Columbia Penitentiary. The officers did
not see any fountain pen or chess set. The plaintiff
testified they were in his cubicle before he went
before the disciplinary board.
There was testimony, which I accept, that while
the plaintiff was at Matsqui Institution his wife
had brought him some sheets of aluminum and an
aluminum ruler. These materials were for use in a
copper-working hobby the plaintiff had. His wife
also brought him some typing paper. When he
went from Matsqui Institution to Mountain
Prison, what was left of all these materials accom
panied him.
The plaintiff complained by letter, quite soon
after being admitted to the British Columbia Peni
tentiary, about his missing effects. At first, the
administration at Mountain Prison took the view
that the plaintiff had the onus of proving owner
ship. The institution then made inquiries. As I
understood the evidence, the typing paper was
determined to be the plaintiff's. It was returned to
him in November or December of 1976.
The defendant does not concede the aluminum
sheets and the ruler were the plaintiff's property.
The sheets are said to be a different size from
those which the plaintiff's wife brought to Matsqui
Institution. The administrative staff at Mountain
Prison decided finally, rather than argue the point,
to return those particular articles. They were deliv
ered to Matsqui Institution (where the plaintiff
then was) in August of this year.
When the plaintiff was moved to the British
Columbia Penitentiary on June 21, 1976 he was
placed in the punishment unit. After three weeks
he was moved to the third tier of the East wing.
He was assigned to work in the law library. He
was not, for some reason, placed in the reception
centre. If he had been put there, he would not have
been in the East wing.
In the early fall of 1976 tension began to de
velop in the British Columbia Penitentiary. On
September 9, 1976 the staff instituted a ban on
overtime work. This made the institution almost
inoperable; the director declared an emergency
situation. The tension grew higher. On September
24, 1976 a small group of inmates did damage to
some cells. On September 27 a riot broke out in
the East wing. There was a great deal of damage
done. There was some hostage-taking. Undoubted
ly the East wing was a dangerous place to be.
There was risk of injury or even death.
Order was restored on October 1, 1976. Fortu
nately there had been no injuries or loss of life.
The East wing was not habitable. Approximately
250 inmates, including the plaintiff, were moved
into the gymnasium. They slept on the floor. Hot
meals were not available for some weeks.
The plaintiff was not an active participant in the
riot.
A large number of the inmates were, in October
and later, seen by the Classification Board in
respect of transfer. Many, including the plaintiff,
were recommended for transfer. The plaintiff was,
in fact, moved to Matsqui Institution on January
5, 1977.
I shall complete the history. The Regional Clas
sification Board, in May or June of this year,
directed the plaintiff be transferred to Agassiz
Work Camp. That institution is lower on the secu
rity scale than Matsqui. There are better sur
roundings and more privileges, such as temporary
absences. At the date of this trial, the plaintiff had
not been moved to Agassiz Work Camp. Eye
surgery had been performed at Matsqui. Agassiz
does not have a hospital. Once the plaintiff
receives a medical clearance his transfer will be
carried out.
There is one final factual matter. Any personal
monies that accompany an inmate to an institution
are placed to his credit in a fund called the Inmate
Trust Fund. Any monies received by him while in
custody, other than pay, are credited to him in the
same fund. The relevant section of the Regulations
is 2.22:
2.22. (1) All moneys that accompany an inmate to the
institution and all moneys that are received on his behalf while
he is in custody shall be deposited to his credit in a trust
account to be known as the Inmate Trust Fund.
(2) No moneys in the Inmate Trust Fund that stand to the
credit of an inmate shall be paid out unless
(a) the inmate gives a direction in writing authorizing the
payment out, and
(b) the institutional head or other authorized officer certifies
that, in his opinion, the payment is calculated to assist in the
reformation and rehabilitation of the inmate.
(3) No moneys in the Inmate Trust Fund standing to the
credit of an inmate shall, except where a family relationship
exists, be transferred to the credit of another inmate.
The bank holding the Inmate Trust Fund, from
time to time, pays interest on some of the monies
in this account. The interest is then apportioned
among the various institutions in the Region. Divi
sional Instruction No. 834 (Ex. 22) provides:
Interest
3. Interest, if any, paid by the bank on deposits in the Inmate
Trust Fund, shall be transferred semi-annually to the Inmate
Welfare Fund, in accordance with the directive on Inmate
Trust Fund.
In the plaintiff's case, his personal balance in
the Inmate Trust Fund from February through
November 1976 varied from a low of $14.18 to a
high of $120.05 (Ex. 24). No evidence was given
as to the plaintiff's share of any bank interest. But
I think it fair to assume his personal funds had
earned some interest.
No consent to transfer of this interest was ever
obtained from the plaintiff, or from other inmates.
The evidence discloses that at one time consents
were automatically obtained. This was stipulated
in the "manual". At one point when a new manual
was issued, the former direction, for some reason,
did not appear.
I turn now to the claims advanced by the
plaintiff.
(a) The Failure to Comply with the Prescribed
Procedure at the Disciplinary Hearing
There is, at the outset, an issue as to the juris
diction of this Court. That issue is whether the
Trial Division can, by virtue of section 18 of the
Federal Court Act, entertain a claim for the set
ting aside (in effect) of an administrative decision
made by a federal board when the decision was not
required to be made on a judicial or quasi-judicial
basis.
In my view there is jurisdiction.
Mahoney J. in In re Martineau 3 , decided the
Trial Division of this Court had jurisdiction by
way of certiorari for the purpose of quashing an
allegedly faulty conviction of a penitentiary disci
plinary board. The allegations made by the inmate
in that case were somewhat similar to the facts
here. It was said there was failure to comply with
the procedural provisions set out in Commission
er's Directive 213. Mahoney J. referred to the
decision of the Supreme Court of Canada in Mar-
tineau and Butters v. Matsqui Institution Inmate
Disciplinary Board 4 . There, four members of that
Court had held Commissioner's directives were not
"law" 5 .
Mahoney J. went on at pages 317-318:
The disciplinary offences of which the appellant was convict
ed were created by law. The punishment imposed was author
ized 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 significance on the fact that the
phraseology of criminal proceedings is imported into the regu
lations. Nevertheless, it is manifest that the law envisages some
process by which an inmate is to be determined 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.
and at pages 318-319:
I take it that in Canada, in 1975, a public body, such as the
respondent, authorized by law to impose a punishment, that
3 [1978] 1 F.C. 312.
4 [1978] I S.C.R. 118 (hereinafter "Martineau and
Butters").
5 The four dissenting members of the Court took the opposite
view. The ninth member adopted the reasons of Jackett C.J. in
the Federal Court of Appeal. The latter did not specifically
deal with the point.
was more than a mere denial of privileges, had a duty to act
fairly in arriving at its decision to impose the punishment. Any
other conclusion would be repugnant.
I agree with the observations and conclusions of
Mahoney J.
In the Federal Court of Appeal, Jackett C.J.
had said of disciplinary decisions: 6
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-judicial basis within the meaning of those
words in section 28 of the Federal Court Act.
Pigeon J. in the Supreme Court of Canada
(speaking for himself and three others) said, in
respect of Jackett C.J.'s observation: 7
With respect, I find it difficult to agree with the view that
Directive No. 213 merely requires that a disciplinary decision
such as the impugned order be made fairly and justly.
The most recent decision which, in my view,
further supports the jurisdiction of the Trial Divi
sion to intervene in matters of this kind, is Minis
ter of Manpower and Immigration v. Hardayal 8 .
In that case the Minister granted a permit to
Hardayal permitting him to enter Canada and
remain for a specified period. Before the expiry
date the Minister cancelled the permit. The Feder
al Court of Appeal decided Hardayal ought to
have been given, before the cancellation by the
Minister, a reasonable opportunity to make sub
missions. In doing so the Federal Court of Appeal
concluded the decision of the Minister was one to
which section 28 of the Federal Court Act applied.
The Supreme Court of Canada held the decision of
the Minister to cancel was a decision "of an
administrative nature"; it was not required to be
made or carried out on a judicial or quasi-judicial
basis. At pages 478-479 Spence J., giving the
judgment of the Court, said:
6 [1976] 2 F.C. 198 at p. 211.
7 [1978] 1 S.C.R. 118 at p. 127.
8 [1978] 1 S.C.R. 470. See also Howarth v. National Parole
Board [1976] 1 S.C.R. 453, per Pigeon J. at pp. 471-472.
Such power was, in the opinion of Parliament, necessary to give
flexibility to the administration of the immigration policy, and I
cannot conclude that Parliament intended that the exercise of
the power be subject to any such right of a fair hearing as was
advanced by the respondent in this case. It is true that in
exercising what, in my view, is an administrative power, the
Minister is required to act fairly and for a proper motive and
his failure to do so might well give rise to a right of the person
affected to take proceedings under s. 18(a) of the Federal
Court Act but, for the reasons which I have outlined, I am of
the opinion that the decision does not fall within those subject
to review under s. 28 of the said Federal Court Act.
I go now to the issue of whether, in the circum
stances earlier outlined, the disciplinary board pre
sided over by Mr. Young acted fairly in coming to
its decision. In my view it did not.
Even though Commissioner's Directive 213 does
not have the force of law, 9 it provides to my mind,
9 In these reasons I shall proceed on the basis that Commis
sioner's directives are not "law". That was the conclusion of
Pigeon J. in Martineau and Butters, concurred in by three
other Judges. Laskin C.J.C., for himself and three other
Judges, said at p. 121:
What then remains in issue that would persuade the
majority of the Federal Court of Appeal to refuse jurisdic
tion? That Court limited its consideration of the s. 28
application to that question and did not consider the merits
of the applicants' attack on the decision of the respondent.
The nub of the matter is, thus, as my brother Pigeon noted,
whether the directives prescribing what I may compendiously
call natural justice for the appellants were made pursuant to
"law" and were, therefore, to be observed by the penitentiary
authorities.
As noted in footnote 5 (supra), Judson J. agreed with the
reasons of Jackett C.J. in the Court below. The effective result
was that the appeal was dismissed.
Jackett C.J. did not specifically indicate his view as to
whether the directive was or was not "law". But it seems to me,
when his reasons are considered as a whole and contrasted with
the reasons of Ryan J. who dissented, the inference, (as Laskin
C.J.C. suggests), must be that the majority decision in the
Federal Court of Appeal did not consider the directive to be
"law".
I think acceptance of the view put forward by Pigeon J., until
the difficulty is resolved by higher Courts, is the most realistic
approach I, as a Trial Judge, should take.
For a very recent case comment on the Martineau and
Butters case, and the status of Commissioner's directives, see
H. N. Janisch "What is Law, etc." (1977) 55 Can. B. Rev. 576.
a guide to this Court in determining whether the
manner in which the disciplinary board came to its
decision was carried out fairly. 10 The Directive lays
down a relatively simple procedure, somewhat akin
to that followed at the hearing of ordinary crimi
nal offences. Notice of the so-called charge is to be
given. The inmate then has an opportunity to
prepare his defence. He must appear personally at
the hearing. All that was done in the plaintiff's
case.
The purpose of a personal appearance by the
inmate is obviously for two reasons: the evidence
be given in his presence; he be given an opportu
nity to make a full defence, including the question
ing of his own witnesses and the cross-examination
of other witnesses.
In the plaintiff's case the salutary directions
aimed at producing fairness were disregarded.
After the charge was read and the plaintiff had
indicated his defence was one of not guilty, he was
then questioned as to why he was taking that
position. No oral evidence was presented in proof
of the charge. The plaintiff was given no right to
cross-examine the officers who had signed the
report. In my opinion, the tribunal failed to act
"fairly". "
It matters not that the facts, as they ultimately
came out in this Court, suggest the plaintiff was
probably guilty of the disciplinary charge. What
does matter is that he did not have a fair hearing
before the tribunal charged with determining guilt
or innocence, and imposing what could be severe
punishment. The Penitentiary Service publicly
recognizes that dissociation is a severe penalty.
Paragraph 16(c)(1) of Directive 213 so states.
The next matter is whether the plaintiff, in the
discretion of the Court, ought to be granted the
10 See the remarks of Laskin C.J.C. in Martineau and But
ters at p..124:
How justly or fairly such persons must be dealt with depends
on the nature of the tribunal and on the issues confided to it.
Where the procedure to be followed is spelled out, the Court
is relieved of the obligation of determining what natural
justice demands.
" The expression used in the Hardayal decision.
declaratory relief he asks. Declaratory relief,
standing alone, should only be given after careful
consideration and in a clear case. Further, a court
will usually not grant such relief where the decla
ration would be devoid of legal effect. In this case
the plaintiff's hearing is over and he has long since
undergone his punishment.
But I am told a conviction of a disciplinary
offence becomes part of an inmate's institutional
record. It follows him wherever he goes in the
penitentiary system. It is taken into consideration
in respect of certain matters such as transfers ' 2 or
temporary absences. The latter are referred to in
the jargon as T.A.'s. 13 In this case it is my view a
suitable declaration or declarations might legally
erase the conviction from the plaintiff's institution
al record. In any event I am satisfied expungement
will have some practical effect. 14
(b) The Transfer of the Plaintiff from Mountain
Institution to the British Columbia Peniten
tiary without a Hearing and without Comply
ing with Prescribed Procedures
The relevant provisions of the Penitentiary Act
dealing with transfer of inmates appear to be
subsections 13(2),(3) and (4). I set them out:
13. ...
(2) The Commissioner may make rules naming the peniten
tiaries in which, in the first instance, persons sentenced or
committed in any part of Canada to penitentiary shall be
received.
(3) Where a person has been sentenced or committed to
penitentiary, the Commissioner or any officer directed by the
Commissioner may, by warrant under his hand, direct that the
person shall be committed or transferred to any penitentiary in
Canada, whether or not that person has been received in the
relevant penitentiary named in rules made under subsection
(2).
(4) Where a person has been sentenced or committed to
penitentiary, the officer in charge of the regional headquarters
for the region in which the person is confined may, by warrant
under his hand, direct the transfer of that person to any other
penitentiary within the region.
12 See Penitentiary Service Regulations, s. 2.04.
13 See Penitentiary Act, R.S.C. 1970, c. P-6, s. 26.
14 See Merricks v. Nott-Bower [1964] 1 All E.R. 717.
I have difficulty with some of these provisions
and with certain directives. Pursuant to subsection
13(3) the Commissioner issued Directive No. 110
(Ex. 13). It, in paragraph 3(a), authorizes
"Regional Directors" to direct "by warrant under
their hand", the transfer of an inmate from one
penitentiary to any other penitentiary in Canada.
The same directive, in paragraph 3(b), provides
that certain other kinds of directors may order the
transfer of an inmate from one penitentiary to
another, but only within their particular region.
Mr. Byman, who signed the warrant of transfer
on June 21, 1976, was the Director of the Regional
Reception Centre in the Pacific Region. He does
not, so far as I can see, fall within the class of
directors referred to in paragraph 3(b). Exhibit 10,
dated March 1, 1977, is a communication from the
Regional Director, Pacific Region, to Mr. Byman.
The opening paragraph reads as follows:
Please consider this communication to be an official letter of
delegation to you from this office with respect to Commission
er's Directive 110, to empower you to issue warrants of
transfer.
I can find nothing in subsection 13(4) of the
statute, the Regulations, or Directive 110, permit
ting the Regional Director to delegate his power.
It is said Mr. Byman was properly designated by
virtue of Ex. 10. That letter of delegation is dated
after the impugned transfer here. But I infer Mr.
Byman had been so delegated at the relevant time.
He has been the Director of the Regional Recep
tion Centre since October 1, 1973. He testified
that, as such, he has been responsible for all
transfers within the Pacific Region and into other
regions.
In Martineau and Butters, Pigeon J. described
the legal effect and operation of Commissioner's
directives as follows: 15
I have no doubt that the regulations are law. The statute
provides for sanction by fine or imprisonment. What was said
by the Privy Council with respect to orders in council under the
War Measures Act in the Japanese Canadians case ([1947]
A.C. 87), at p. 107, would be applicable:
15 [1978] 1 S.C.R. 118 at p. 129.
The legislative activity of Parliament is still present at the
time when the orders are made, and these orders are "law".
I do not think the same can be said of the directives. It is
significant that there is no provision for penalty and, while they
are authorized by statute, they are clearly of an administrative,
not a legislative nature. It is not in any legislative capacity that
the Commissioner is authorized to issue directives but in his
administrative capacity. I have no doubt that he would have the
power of doing it by virtue of his authority without express
legislative enactment. It appears to me that s. 29(3) is to be
considered in the same way as many other provisions of an
administrative nature dealing with departments of the adminis
tration which merely spell out administrative author
ity that would exist even if not explicitly provided for by
statute.
In my opinion it is important to distinguish between duties
imposed on public employees by statutes or regulations having
the force of law and obligations prescribed by virtue of their
condition of public employees. The members of a disciplinary
board are not high public officers but ordinarily civil servants.
The Commissioner's directives are no more than directions as
to the manner of carrying out their duties in the administration
of the institution where they are employed... .
It then appears to me that if Commissioner's
Directive 110 is not "law", 16 it was nevertheless
specifically authorized by subsection 13(3) of the
Penitentiary Act or was the kind of administrative
direction which Pigeon J. considered the Commis
sioner could issue without specific legislative per
mission, but merely by virtue of his general au
thority. If that is so, there was, nevertheless, no
evidence before me that the Commissioner had
directed that any officer of Mr. Byman's category
might issue warrants of transfer. Exhibit 10, the
Regional Director's purported delegation, does not
correct the matter. 17
It is not, as I see it however, necessary to express
any final opinion on this problem. If (and 1 merely
assume this) the Byman transfer warrant was
technically unauthorized, what legal right of the
inmate plaintiff, for which practical legal redress
can be given, has been invaded or impinged? If
some kind of right was affected, what can now be
16 Strictly speaking, the Supreme Court of Canada was deal
ing with the expression "required by law" found in subsection
28(1) of the Federal Court Act. But as I read the judgments,
the expression "law" was considered in its general sense.
17 I have not overlooked 1.02(d) of the Regulations: It is
there stated that a Commissioner's directive includes any rule,
regulation or order issued by the Commissioner or on his behalf
under his authority.
done? The plaintiff was physically transferred to
the British Columbia Penitentiary. From there he
went to Matsqui Institution, a medium security
prison. When he has medical clearance, his cur
rently suspended transfer to Agassiz Work Camp
will be carried out. There, the setting, atmosphere,
privileges and easier security measures will be, I
understand, at least equivalent to or better than
those at Mountain Prison.
I shall later return to the questions I have posed.
The real complaint put forward by the plaintiff
in argument was in respect of the manner in which
his transfer from Mountain Prison was decided
upon. He was not given notice a transfer was being
considered. He was not given a hearing. The ques
tion was not referred to the Regional Classification
Board. He was never given any reasons. It was
only after he started this litigation that he became
aware of those reasons. 18 The plaintiff argues the
prison staff did not comply with laid-down
procedures.
He refers to Penitentiary Service Regulations
section 2.03 and Divisional Instruction 1024. The
Regulation is as follows':
2.03. The inmate shall, in accordance with directives, be
confined in the institution that seems most appropriate having
regard to
(a) the degree and kind of custodial control considered
necessary or desirable for the protection of society, and
(b) the program of correctional training considered most
appropriate for the inmate.
Divisional Instruction 1024 deals with the trans
fer of inmates within a region. I can find no au
thority in the Penitentiary Act or in the Regula
tions for these divisional instructions. 19 I proceed
on the basis they are not "law", on which the
plaintiff might, perhaps, be able to found some
legal right. At best, they possibly have the same
18 A memo "To Whom It May Concern", dated November
29, 1976, signed by Mr. Mort (Ex. 12).
19 Again I have not overlooked Regulation 1.02(d). Nor have
I overlooked Regulation 3.06. I do not find Ex. 23 (Divisional
Instruction No. 315—"Directives Management") to be ade
quate authority, or of assistance.
status and authority as Pigeon J. ascribed to Com
missioner's directives.
The Instruction provides for the setting up of a
Regional Classification Board. The Board is
charged with assessing inmates regarding their
suitability for transfer. The training needs of the
inmate are asserted to be the primary consider
ation. "Criteria for transfer" are set out. The
Instruction applies both to transfers to reduced
security institutions and to the return of inmates to
maximum security institutions.
In the latter case, paragraph 3(c) provides:
(c) Except in reasons of emergency, the Institutional Head
who recommends that an inmate be returned to maximum
security will advise the Chairman of the Board of his reasons,
in writing and the case will be considered by thelioard at the
following meeting. The recommendation will then be forwarded
to the authority responsible for authorizing transfers.
Here Mr. Mort, the Institutional Head, and Mr.
Byman decided the proposed transfer of the plain
tiff was for reasons of emergency; it was not
necessary therefore to have the plaintiff's case
considered by the Regional Classification Board.
Emergency transfer to maximum security is, I
am told, not confined to situations where there is a
serious security risk such as possible escape, or
suspected plots to do so. It includes those where an
inmate is, in the view of the Institutional Head, in
some personal danger from fellow inmates. Such
transfers are also made when an inmate, for
reasonable grounds, requests a transfer. He may,
for example, feel he is in some danger. But they
also embrace situations where the Institutional
Head feels it is essential in the interests of the
institution a particular inmate be moved quickly
and returned to maximum security.
I do not find anything in the legislation or the
Regulations which prescribe, or even suggest, the
rights the plaintiff claims in respect of his transfer.
Directive 1024 creates an administrative body
primarily to consider requests or recommendations
for transfer to lesser security institutions. It pro-
vides some guidelines and criteria for classification
boards, and for the other administrative staff. The
process of transfer is, as I see it, quite different
from that of discipline of inmates and the proce
dures to be followed before convictions are regis
tered and punishment imposed. In my view,
inmates are not entitled, as of right, to appear in
person, or be heard, on proposals to or questions of
transfer. I think that is true even when an applica
tion for transfer is made by or on behalf of an
inmate to a lesser security institution. It is equally
true, speaking generally, in respect of transfers to
which the inmate, if given the opportunity, would
object—the plaintiff's situation here. Nor do I
think an inmate is entitled, as a matter of course,
to reasons why a transfer is carried out, or refused.
There may be security, or the safety of informants,
involved.
A somewhat similar issue, in respect of prison
transfers, came recently before the Court of
Appeal for Ontario in Re Anaskan and The
Queen. 20 The inmate was transferred from a pro
vincial correctional centre in Saskatchewan to a
federal penitentiary in Kingston. The inmate was
not consulted. The transfer was made under the
terms of an agreement entered into, pursuant to
section 15 of the Penitentiary Act, by the appropri
ate federal Minister with the Province of Sas-
katchewan. One of the submissions on behalf of
the inmate was that before the request for her
transfer to the federal institution was put forward,
she should have been given a full and fair hearing.
The Court rejected that contention. At page 524
this was said:
The Acting Director of Corrections, carrying out his respon
sibility for the administration of provincial institutions, and
under the agreement between the two Governments, requested
that the appellant be transferred from a provincial institution to
a federal penitentiary. There is no "right" in a prisoner to be in
a particular institution; that is made clear by the enactment of
s. 15(1) and by s-ss. (2) to (4) of s. 13 of the same Act. It is
then a matter of policy and of administrative concern where an
individual serves his or her sentence. There is no quasi-judicial
20 0977) 15 O.R. (2d) 515.
quality in this determination which would call into play the
audi alteram partem rule or require a hearing of any kind. If
the submissions made on behalf of the appellant were accepted
as being the law, then every transfer, within the federal peni
tentiary system itself, or otherwise, would call for a hearing.
and at pages 525-526:
The task of a provincial official in deciding to request a
transfer in the interests of the inmate and the administration of
the institution itself, where the inmate has no "right" to be in a
particular institution, seems to me to be peculiarly an adminis
trative decision. Nor do I believe it to be the type of administra
tive decision which gives the person affected a right to be
heard. The inmate forfeited his liberty by his voluntary act and
he has no right to be heard in the determination of where he is
to be incarcerated. There is no basic right being affected here
such as would give rise to a duty to act in accordance with the
principles of natural justice. If there were such a right, the
person sentenced, at the time of sentencing or at least before he
is committed to an institution, would have a right to be heard in
the decision as to where he is to serve his sentence. Such a
prospect serves to emphasize that the decision in this case is
purely an administrative one affecting no fundamental or civil
right. In addition, it should be pointed out, there has been no
suggestion of bias or that the official or officials acted capri
ciously or dishonestly.
I do not say an inmate may never have a right to
question, on grounds of lack of fairness, a decision
to transfer him. Some circumstances may point to
such a right. My opinion is confined to the matter
of notice and the right to a hearing of some kind.
I now pose a question similar to one I earlier put
forward. Assuming the plaintiff was entitled to
notice and to be heard, what practical redress can
the Court now give? The plaintiff is back in lower
security institutions. A declaration, as asked for,
will not now, as I see it, assist him. Some of the
remarks in Merricks v. Nott-Bower (supra) are
apt. The plaintiffs in that case were policemen
who, some years before the litigation, had been
transferred to other posts. They alleged the trans
fers were ordered as a kind of punishment. The
applicable regulation did not permit transfers on
that ground. Lord Denning M.R. said at page 721:
All that is claimed is a series of declarations, all of them to the
effect that the transfer was made without regard to the regula
tions and without regard to the principles of natural justice. It
is asked: What use can such declarations be at this stage, when
the transfer took place six and a half years ago? What good
does it do now? There can be no question of re-opening the
transfers. The plaintiffs have been serving in these divisions all
this time. They cannot be transferred back to Peckham. On this
point we have been referred to a number of cases which show
how greatly the power to grant a declaration has been widened
in recent years. If a real question is involved, which is not
merely theoretical, and on which the court's decision gives
practical guidance, then the court in its discretion can grant a
declaration.
Salmon L.J., at page 724, put it this way:
It is said: Even if the plaintiffs' rights under the regulations
were infringed, what good could the remedies which are
claimed by the plaintiffs do them? Can they benefit by these
declarations? If a plaintiff seeks some declaration in which he
has a mere academic interest, or one which can fulfil no useful
purpose, the court will not grant the relief claimed. In this case,
however, again without deciding the point in any way, it seems
to me clearly arguable that, if the declarations are made, they
might induce those in authority to consider the plaintiffs'
promotion, there being some evidence that the alleged transfers
by way of punishment have prejudiced, and whilst they remain
will destroy, the plaintiffs' chances of promotion.
In the case before me, assuming an infringement
of rights, no useful or practical purpose would be
served in granting the declaration sought.
For all the above reasons, the plaintiff's claim,
under this particular head, is dismissed.
(c) The Deprivation, or Loss, of Certain Personal
Possessions
Penitentiary Service Regulations section 2.08 is
perhaps relevant:
2.08. The institutional head shall take reasonable care to
ensure that the effects of an inmate which, in accordance with
the directives, he is permitted to bring into and keep in the
institution, are protected from loss or damage.
The plaintiff has not, in my view established, by
a preponderance of evidence, that reasonable care
was not taken in respect of the missing fountain
pen and chess set.
He was deprived of his typing paper for a short
time. He has not persuaded me he suffered any
financial loss or compensable inconvenience, war
ranting relief in his favour. No case has been made
out for damages, punitive or nominal.
There remains the matter of the two sheets of
aluminum and the aluminum ruler. To my mind,
there were sufficient grounds for the staff at
Mountain Institution to conclude these articles
were the property of the institution. Even after
inquiries established the plaintiff's wife had
brought similar articles to him at Matsqui there
was, in my view, still sufficient doubt about the
whole matter.
The plaintiff has not satisfied me, by a prepon
derance of evidence, he was unlawfully deprived of
these particular articles.
His claims, in respect of this head, are
dismissed.
(d) The Transfer to the British Columbia Peni
tentiary was "Cruel and Unusual Punish
ment"
The plaintiff relies on McCann v. The Queen 21
and particularly on Heald J.'s proposition that a
punishment or a confinement can be described as
cruel and unusual if adequate alternatives to dis
sociation exist. The plaintiff says an adequate
alternative here was to send him to Matsqui Insti
tution to undergo his dissociation punishment. In
the normal course, after the 10 days, he would
have been returned to Mountain Institution.
I do not think the plaintiff's claim, under this
head, is sound. The plaintiff was not sent to the
British Columbia Penitentiary merely to serve the
dissociation punishment. That was incidental. He
was transferred there as a result of an administra
tive decision based on his previous conduct
(including the disciplinary offence) and the view of
Mr. Mort and Mr. Byman that an immediate
transfer should be effected.
I have already dealt with the so-called legality
of the transfer itself. The placing of the plaintiff in
a maximum security institution with less desirable
surroundings, fewer amenities, and lesser privi
leges does not, in the circumstances here, fall
within the strictures against "cruel and unusual
punishment".
Nor is the plaintiff's case strengthened because
a serious riot subsequently occurred while he was
21 [ 1976] 1 F.C. 570.
confined in that maximum security institution.
Riots and rebellions in penal institutions are well
known. They occur more frequently than one cares
to see. The British Columbia Penitentiary has been
plagued with problems for the last few years. It
does not, however, follow that removal to that
institution amounts to the imposition of cruel and
unusual punishment.
This claim for relief will be dismissed.
(e) The Deduction of Pay for Credit to the
Inmate Welfare Fund, and the Transfer of
Interest on Personal Funds without Consent
I have already set out Penitentiary Service
Regulations section 2.26 permitting the Commis
sioner, in his discretion, to authorize rates of pay.
The deduction of one day's pay per month for
deposit in the Inmate Welfare Fund is prescribed
by Commissioner's Directive 232. For reasons ear
lier set out, I conclude this directive does not have
the force of law. The Commissioner is given a
discretion to establish rates of pay, or not to
establish them. He has elected to do the former. If
that decision to authorize pay is merely an
administrative one, then there is no legal right, as I
see it, flowing automatically to the plaintiff on
which he could succeed in the courts against the
defendant or the Commissioner if his authorized
pay was not credited to him. If there is no right in
"law" to any pay at all, then there can logically be
no right to challenge the deduction of one day's
pay per month for the Inmate Welfare Fund. It
would seem to follow a consent to the deduction is
therefore not required.
On similar reasoning, the complaint, that the
deduction of $2.10 from the plaintiff's allotment
was unjustifiably used to retire a previous over-
expenditure in the Inmate Welfare Fund, and the
relief claimed, cannot succeed.
There remains the matter of the transfer of bank
interest, owned by the Inmate Trust Fund, to the
Inmate Welfare Fund. That transfer was made
pursuant to Divisional Instruction 834 (Ex. 22).
The Instruction seems to have generated from
Commissioner's Directive No. 233 (Ex. 20). The
latter stipulated revenue for the Inmate Welfare
Fund should be derived from inmate pay, inmate
canteen profits, interest and gifts.
I can find no authority, in the Penitentiary
Service Regulations or in any Commissioner's
Directive put in evidence at trial, authorizing the
transfer to the Inmate Welfare Fund of interest
earned by the inmates' personal monies in the
Inmate Trust Fund. 22 Individual consents to such
transfers would, of course, permit that use of the
interest. Regulation 2.22 is quite clear. It is "law".
An inmate's personal monies are deposited to his
credit in a trust account. The Regulation explicitly
provides that no monies standing to the credit of
an inmate are to be paid out unless the inmate
gives a written authorization. Monies standing to
his credit, in my opinion, include interest.
Should a declaration, in respect of this head, be
granted? I realize a direction having the effect of
transferring back to the credit of the plaintiff
whatever portion he is entitled to of the bank
interest paid to the Inmate Trust Fund may result
in a difficult and time-consuming accounting pro
cess. It may be that other inmates may demand
the same treatment. I am, nevertheless, convinced
the accounting can be done. The plaintiff's prop
erty has, in my view, been applied in a manner and
for the purposes to which he has not consented.
There has been a clear infringement of a right. In
those circumstances I do not think a court should
be deterred by possibilities of difficulty and
expense on the part of a defendant in rectifying the
matter.
There will be an appropriate declaration and
directions.
There has been divided success in this action. In
the circumstances there will be no costs to either
party.
22 In practice, the Inmate Pay Account and the Trust Fund
are in one bank account. The Penitentiary Service, in its
accounting procedures, keeps a separate record in respect of
each inmate's balance in the Trust Fund, and in respect of his
balance in the pay account.
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.