T-794-85
Fred Harold Mitchell (Applicant)
v.
Tom Crozier in his capacity as the Acting Super
intendent of Elbow Lake Institution, Allan Guinet
in his capacity as the Independent Chairperson of
the Disciplinary Court of Kent Institution and the
Regional Transfer Board, Pacific Region Correc
tional Service Canada (Respondents)
Trial Division, McNair J.—Vancouver, June 3,
1985; Ottawa, February 3, 1986.
Penitentiaries — Inmate convicted of serious disciplinary
offences — Transferred to higher security institution —
Transfer set aside and minimum security rating reinstated —
Failure to include allegations as to conduct in reasons for
emergency transfer denial of opportunity to respond — Duty
to act fairly — Commissioner's directives requiring notice of
reasons for transfer — No right to copies of adverse informa
tion on file as creating too onerous burden on prisons and not
justifiable by reasonable standard of fundamental justice
Transfer rules to permit expeditious action in emergency
situations — No right to personal appearance before board —
Penitentiary Service Regulations, C.R.C., c. 1251, ss. 14, 38
(as am. by SOR/80-209, s. 2), 38.1(1),(2) (as enacted by
SOR/80-209, s. 3), 39(g),(h),(k) — Penitentiary Act, R.S.C.
1970, c. P-6, s. 13(3) — Federal Court Act, R.S.C. 1970 (2nd
Supp.), c. 10, s. 18.
Constitutional law — Charter of Rights — Life, liberty and
security — Inmate charged and convicted of serious discipli
nary offences carrying penalty of loss of earned remission —
Inmate believing charges minor and refusing to read charge
sheets — Disciplinary court refusing request for counsel made
after two serious charges dealt with — Convictions on two
serious charges to stand — Charter s. 7 not contravened — S.
7 not creating absolute right to counsel in all disciplinary
proceedings: Howard v. Stony Mountain Institution, /19841 2
F.C. 642; (1985), 57 N.R. 280 (C.A.) — Failure to exercise
right to counsel result of applicant's own conduct — Canadian
Charter of Rights and Freedoms, being Part I of the Constitu
tion Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11
(U.K.), s. 7.
Motion for certiorari to quash convictions of three discipli
nary offences and the sentences imposed therefor, as well as the
decision to transfer the applicant to a higher security institu
tion. The applicant, an inmate, was charged with two "serious"
offences and with threatening officials. The inmate chose not to
read the charge sheet which disclosed that the first two charges
were designated as "serious". He did not request counsel until
the disciplinary court was considering the third charge. His
request was denied and he was convicted and sentenced on all
three charges. Because of the nature of the charges and his
conduct generally, he was transferred on an emergency basis
from a minimum to a maximum security institution. He was
served with a notice of transfer advising him of his right to
make written representations, but refused to sign it. The notice
of transfer stated the reasons for transfer as being that the
applicant was under charges and that he was abusive and
threatening to staff. The inmate was subsequently transferred
to a medium security institution. The Regional Transfer Board
upheld the emergency transfer based solely on the allegations in
the notice of transfer. The applicant objects that the reclassifi-
cation decision was based on other file material on his general
deportment of which he had no notice. This additional material
portrayed the applicant as a "solid con" type, and an alcohol
and drug abuser. The issues are: (1) whether the decision to
transfer and reclassify was fatally flawed by the denial of any
opportunity to respond, having regard to the fact that the
Regional Transfer Board relied on file material that was not
made available to the applicant; and (2) whether the refusal of
counsel on the hearing of the two serious charges violated
section 7 of the Charter or contravened the common law duty
of fairness.
Held, the decision on the applicant's emergency transfer
must be quashed and his minimum security rating reinstated.
The convictions for the two "serious" offences should stand. It
was agreed that the sentences imposed should be quashed as
well as the conviction on the charge of threats because of the
decision in Howard v. Stony Mountain Institution, [1984] 2
F.C. 642; (1985), 57 N.R. 280 (C.A.).
Prison disciplinary officials have a duty to act fairly in the
exercise of their administrative functions, such as making the
decision to transfer an inmate. The courts should not interfere
with such a decision unless it is readily apparent that the
prisoner has not been dealt with fairly, taking all factors into
account. The Commissioner's directives which do not have the
force of law, but formulate prescribed procedural guidelines,
require that an inmate be given immediate notice in writing of
the reasons for transfer and his right to submit written objec
tions. The reasons for transfer should give him sufficient infor
mation to enable him to make written objections. The notice of
transfer herein contained only the gravamen of the charges and
made no reference to demerit marks for deteriorating behavi
our. These allegations were just as much part of the emergency
transfer as the disciplinary offences and thus come within the
category of matter for which full written reasons must be given.
There is also no evidence that the applicant was promptly
notified of the final decision to reclassify. The applicant was
not entitled to copies of adverse information in his file as this
would place an impossible burden on prison authorities that
could not be justified by any reasonable standard of fundamen
tal justice or procedural fairplay. The transfer rules are direct
ed toward expeditious action in emergency and sometimes
perilous situations. The applicant was not entitled to appear
before the Board in person. The complete process of transfer
and reclassification is predicated solely on review.
Forfeiture of earned remission is a denial of a right to liberty
guaranteed by section 7 of the Charter. However, according to
the Howard case, section 7 did not create an absolute right to
counsel at all disciplinary hearings. Although, on the broad
principle in Howard, it would appear that the applicant was
entitled to counsel because of the possibility of forfeiture of his
earned remission, this right must be judged according to the
particular circumstances. The applicant's misconception about
the nature of the charges arose as a result of his own conduct.
He should have been fully aware of his right to request counsel
and he chose not to do so. He was not deprived of his right to
liberty under section 7 of the Charter.
CASES JUDICIALLY CONSIDERED
APPLIED:
Howard v. Stony Mountain Institution, [1984] 2 F.C.
642; (1985), 57 N.R. 280 (C.A.).
REFERRED TO:
Martineau v. Matsqui Institution Disciplinary Board
(No. 2), [1980] 1 S.C.R. 602; (1979), 106 D.L.R. (3d)
385; 50 C.C.C. (2d) 353; Butler v. The Queen et al.
(1983), 5 C.C.C. (3d) 356 (F.C.T.D.); Magrath v. R.,
[1978] 2 F.C. 232 (T.D.); Bruce v. Yeomans, [1980] 1
F.C. 583; (1979), 49 C.C.C. (2d) 346 (T.D.); Bruce v.
Reynett, [1979] 2 F.C. 697; [1979] 4 W.W.R. 408; 48
C.C.C. (2d) 313 (T.D.); R. v. Chester (1984), 5 Admin.
L.R. 111 (Ont. H.C.).
COUNSEL:
Patricia A. Sasha Pawliuk for applicant.
Mary A. Humphries for respondents.
SOLICITORS:
Legal Services of British Columbia for
applicant.
Deputy Attorney General of Canada for
respondents.
The following are the reasons for order ren
dered in English by
McNAIR J.: The applicant, who is a prisoner
serving a fifteen-year penitentiary sentence, has
applied by motion under section 18 of the Federal
Court Act [R.S.C. 1970 (2nd Supp.), c. 10] for
orders in the nature of certiorari to quash his
convictions on three offences under the Penitentia
ry Service Regulations [C.R.C., c. 1251] and the
sentences imposed therefor, and as well the deci
sion of the Regional Transfer Board to transfer the
applicant to a higher security institution. The
grounds put forward in the notice of motion are as
follows:
a) The Independent Chairperson of Kent Institution acted in
excess of or without jurisdiction by failing to allow the appli
cant legal representation in disciplinary court, contrary to
Section 7 of the Canadian Charter of Rights and Freedoms,
the principles of natural justice, and the common law duty to
act fairly;
b) The Independent Chairperson of Kent Institution did not
allow the applicant to make any representations pertaining to
an appropriate sentence after making a determination of guilt,
contrary to Section 7 of the Canadian Charter of Rights and
Freedoms, the principles of natural justice, and the common
law duty to act fairly;
c) The Regional Transfer Board acted in excess of or without
jurisdiction by failing to supply the applicant with reasons for
his transfer to higher security or an opportunity to respond
thereto before the decision to transfer was made, contrary to
the Penitentiary Act, the Penitentiary Service Regulations, and
Commissioner's Directive No. 600-2-04.1, Section 7 of the
Canadian Charter of Rights and Freedoms, the principles of
natural justice, and the common law duty to act fairly;
d) Upon such further and other grounds as counsel may advise
and this Honourable Court may permit.
It was agreed by counsel for the parties that all
three sentences imposed in relation to the three
convictions be quashed. It was further agreed that
the conviction on the charge of making threats and
being disrespectful should also be quashed because
of the recent decision of the Federal Court of
Appeal in the Howard [Howard v. Stony Moun
tain Institution, [1984] 2 F.C. 642; (1985), 57
N.R. 280 (C.A.)] case.
In December of 1984 the applicant had been an
inmate of the Elbow Lake Institution in the Prov
ince of British Columbia for more than a year.
Elbow Lake is a minimum security facility with a
security classification of S-2. As the result of
incidents which occurred on December 24, 1984,
Mitchell was charged with three breaches of the
Penitentiary Service Regulations, namely:
1) failure to report for mandatory noon count;
2) locking the door to his quarters while he was inside; and
3) making threats or being disrespectful.
He was duly served with copies of the charge
sheets relating to those alleged incidents. The
documents clearly disclosed that the first two
charges were designated in the offence category
square or window as "serious" rather than
"minor" in nature. In any event, Mitchell was in
jeopardy of losing his earned remission on all three
charges. The applicant, in a fit of pique, chose not
to read the charge sheets and threw them in the
garbage. Because of the serious nature of the
charges and his conduct generally, the applicant
was transferred on an emergency basis to the Kent
Institution, which has an S-6 security classifica
tion. The wheels were put in motion for a discipli
nary hearing.
On January 7, 1985 the applicant was again
served with copies of the charge sheets, and once
again he chose not to read them. Despite this, he
contends that he was still honestly acting under the
impression that the first two charges were minor
ones.
On January 8, 1985 the applicant appeared
before Allan N. Guinet, Independent Chairperson
of the Disciplinary Court, and the charges were
dealt with the above-mentioned sequential order.
The applicant now maintains that had he realized
that the first two charges were being treated as
serious he would have asked for counsel to repre
sent him on the hearing thereof. He did request
counsel when the third charge came up for con
sideration, but his request was denied. The appli
cant was convinced on all three charges and was
sentenced to five days loss of remission on each of
the first two and twenty days punitive dissociation.
In addition, he forfeited fifteen days of earned
remission.
As stated, counsel for the respondents has
conceded that the conviction on the third discipli
nary charge, namely, that of making threats or
being disrespectful must be quashed by reason that
the applicant was refused the right of counsel and
that a new hearing will eventually have to be held
on that charge. The applicant seeks to have the
convictions on the other charges quashed as well.
The grounds have already been referred to.
The Acting Superintendent of Elbow Lake, Tom
Crozier, was the official responsible for the appli
cant's emergency transfer from the Elbow Lake
Institution to the Kent Institution at or about 2:00
o'clock in the afternoon of December 24, 1984. His
affidavit makes it clear that they did not want the
applicant back at Elbow Lake.
On the same day of his arrival at Kent, the
applicant was served with a notice of transfer in
the usual form. It contained a provision whereby
the inmate could indicate his election whether or
not to make representations in writing with respect
to the transfer and a space for his signature. The
affidavit of the process server makes it clear that
he explained the nature and effect of the notice to
the inmate and afforded him the opportunity to
sign, but that Mitchell was belligerent and refused
to sign it.
On January 15, 1985 the applicant was trans
ferred from Kent Institution to Matsqui Institu
tion. The prison authorities say that it was at his
own request. Mitchell denies this. In his report to
the Regional Classification Board, Crozier stated
in paragraph 6:
6. I request a permanent transfer in this instance. However,
unless Mr. Mitchell acts further to compromise himself while
at Kent, I suggest he could alternatively be placed at Matsqui
Institution.
The fact of whether the transfer from the max
imum security institution of Kent to the medium
security institution of Matsqui emanated from the
applicant's request or at the instance of the prison
authorities is immaterial.
On January 22, 1985, Douglas R. McGregor,
acting in the capacity of Regional Transfer Board,
made the review decision upholding the emergency
transfer and the reclassification of the applicant
from the Elbow Lake Institution (S-2) to the
Matsqui Institution (S-5). McGregor swore an
affidavit on May 6, 1985, the material paragraphs
of which read:
3. That I made the decision to reclassify the petitioner from
Elbow Lake Institution (S-2) to Matsqui Institution (S-5) on
the twenty-second of January, 1985, although the petitioner
was moved on the fifteenth of January, 1985 from Kent
Institution to Matsqui Institution, upon his request.
4. Mr. Crozier, the Acting Superintendent's recommendation to
transfer the petitioner from Elbow Lake was upheld by the
Regional Transfer Board on the basis, solely, of the two
allegations contained in the Notice of Transfer attached to the
petitioner's affidavit as exhibit "F".
5. The remaining material submitted to the Regional Transfer
Board by the Acting Superintendent was considered in relation
to reclassifying the petitioner and determining the appropriate
place of confinement.
6. Prior to making the decision to reclassify the petitioner, the
Regional Transfer Board had received a copy of the Notice of
Transfer referred to in paragraph four herein, indicating that
the petitioner refused to sign, pending legal counsel.
McGregor swore a further affidavit on May 28,
1985 for the purpose of clarifying his earlier
affidavit. The material averments of this supple
mentary affidavit read:
4. THAT following the incident on December 24, 1984, when
Mr. Mitchell was transferred to Kent Institution, he automati
cally lost his Elbow Lake security level because of his behaviour
at Elbow Lake. By the fact of transfer to Kent his security level
became S-6, or maximum security. Mr. Crozier's decision to
transfer Mr. Mitchell to Kent Institution was upheld by myself
solely on the basis of the two allegations contained in the
Notice of Transfer attached to the applicant's affidavit as Ex.
"F".
5. Following receipt of the transfer material received from Mr.
Crozier and attached as Ex. "G", "H", and "I", to his affidavit
sworn on April 26, 1985 and after noting Mr. Crozier's recom
mendations that Mr. Mitchell could be placed in a lower
security level in Matsqui Institution, I decided to reclassify Mr.
Mitchell to level S-5 and place him in Matsqui Institution.
The applicant was apprised on December 24,
1984 of the reasons for his emergency transfer and
the grounds on which it was based. These are set
out on the notice of transfer which stated:
Pursuant to subsection 13 of the Penitentiary Service Regula
tions, I have recommended that your case be studied for
transfer to Kent Institution (Matsqui) by the Regional Trans
fer Board for the following reasons:
— you are under charges;
— you were abusive and threatening to staff at Elbow Lake
Institution on 1984.12.24.
Two reasons were given but the applicant chose to
make no response. The other reasons, which prob
ably went more to the applicant's reclassification,
are contained in paragraph 2 of Crozier's report to
the Regional Classification Board which reads:
Mr. Mitchell's behaviour has been deteriorating recently and
inmates have now come forward to report that Mr. Mitchell
has been intimidating and pressing various inmates to either
secure drugs and money or to simply harass suspected inform
ers or inmates that Mitchell simply did not like. Mr. Mitchell
was believed to be under the influence of drugs on 1982.12.21.
The applicant takes the objection that the deci
sion to reclassify, whether a two-phase reclassifica-
tion from S-2 to S-6 and back to S-5 as contended
by counsel for the respondents or a one-step reclas-
sification from Elbow Lake to Matsqui, was made
on the basis of a working progress summary and
other file material touching on his general deport
ment that had been submitted by Crozier to the
Regional Transfer Board and of which he had no
notice whatever. The thrust of this additional ma
terial portrayed the applicant as something of a
"solid con" type and "muscle man" in terms of his
relationship with the staff and other inmates at
Elbow Lake as well as being an alcohol and drug
abuser. The material further indicated that the
applicant had been removed from the post of
canteen operator because of suspicions of outright
fraud and improper manipulation of the accounts.
The essence of this is summarized in Crozier's
report aforesaid.
In my view, the matter of loss of remission and
forfeiture of earned remission is no longer in issue
and has become academic and non-existent for all
practical intents by reason of the agreement of
counsel that the three sentences be quashed in any
event.
As I see it, this leaves only two salient issues,
which are: (1) whether the refusal of representa
tion by counsel on the hearing of the two other
serious and flagrant charges, which the applicant
mistakenly characterized as being minor miscon
duct charges, violated section 7 of the Canadian
Charter of Rights and Freedoms [being Part I of
the Constitution Act, 1982, Schedule B, Canada
Act 1982, 1982, c. 11 (U.K.)] or contravened the
common law duty of fairness; and (2) whether the
decision to transfer and reclassify was fatally
flawed by the denial of any opportunity to respond,
having regard especially to the fact that the
Regional Transfer Board relied on file material
that was not disclosed or made available to the
applicant. I propose to deal with these issues in
reverse order but, before doing so, I should allude
briefly to the statutory regime and prescribed code
of procedure that would seem to particularly bear
thereon.
Subsection 13(3) of the Penitentiary Act, R.S.C.
1970, c. P-6, authorizes the transfer of prison
inmates to any penitentiary in Canada. The Act
gives the Governor in Council power to make
regulations, inter alia, for the custody, treatment,
training, employment and discipline of inmates.
Subject to the Act and any regulations made
thereunder, the Commissioner may make rules, to
be known as Commissioner's directives, for the
organization, training, discipline, efficiency,
administration and good government of the Ser
vice, and for the custody, treatment, training, and
employment and discipline of inmates and the
good government of penitentiaries.
These directives do not have the force of law but
nevertheless they must be taken as formulating
prescribed procedural guidelines for the exercise of
the administrative process with respect to the par
ticular subject-matter thereof.
The charges were laid under the following provi
sions of section 39 of the Penitentiary Service
Regulations, which read:
39. 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,
(k) does any act that is calculated to prejudice the discipline
or good order of the institution,
Section 38 [as am. by SOR/80-209, s. 2] of the
Regulations provides:
Inmate Discipline
38. (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
(a) an order of the institutional head or an officer designated
by the institutional head; or
(b) an order of a disciplinary court.
(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 or earned remission or
both;
(b) dissociation for a period not exceeding thirty days;
(c) loss of privileges.
Subsection 38.1(1) [as enacted by SOR/80-209,
s. 3] provides for a disciplinary court and reads in
part as follows:
Disciplinary Court
38.1 (1) The Minister may appoint a person to preside over a
disciplinary court.
(2) A person appointed pursuant to subsection (1) shall
(a) conduct the hearing;
(b) consult, in the presence of the accused inmate, with two
officers designated by the institutional head;
(c) determine the guilt or innocence of an accused inmate
appearing before him; and
(d) on finding an accused inmate guilty, order such punish
ment authorized by these Regulations as he deems suitable.
The code of conduct and procedure for a disci
plinary court is spelled out in various Commission-
ers' directives and it is unnecessary to elaborate on
the procedural content thereof. What is in issue
here is the right to counsel. Annex "A" to Com
missioner's Directive No. 213 stated:
12. MISCELLANEOUS
a. Occasions have arisen where an accused has made formal
or informal demands that he be represented by counsel.
Such demands shall be met with the response that he is not
entitled to counsel, and that the hearing will proceed
without the accused person being represented.
This was revoked by Commissioner's Directive
No. 600-7-03.1 made on August 31, 1984, which
reads:
Representation is granted at the request of the accused inmate
solely where the Chairperson believes that such a representa
tion is necessary for a fair hearing.
The net effect is substantially the same.
There are as well regional instructions issued
from time to time under Commissioners' direc
tives. Regional Instruction 600-2-04 is pertinent to
the question of the applicant's reclassification, and
the relevant provisions are:
5. Reclassification within this instruction encompasses the
complete process of:
a. initial (interim) movement of the offender where an
emergency is deemed to exist;
b. the case documentation justifying the placement to a
higher security institution;
c. the Regional Classification Board review;
d. the final decision rendered in each case with notification
to the offender concerned. [Emphasis added.]
8. a. The Regional Classification Board decision shall be ren
dered within the fourteen (14) day interim period to
either reclassify or return the offender to the institution
from which he/she was removed ....
The reference to Regional Classification Board
applies mutatis mutandis for the purpose of this
case to the Regional Transfer Board. Moreover, it
is made abundantly clear from the Regional
Instruction that the complete file documentation
on any inmate subjected to emergency transfer and
reclassification must be forwarded to the Regional
Transfer Board for purposes of its review. This is
further manifested by section 14 of the Penitentia
ry Service Regulations, which reads:
14. The file of an inmate shall be carefully reviewed before
any decision is made concerning the classification, reclassifica-
tion or transfer of the inmate.
In my opinion, the term "reclassification" must
be taken to comprehend the complete process of
emergency transfer, case documentation study,
review by the Regional Transfer Board, and the
Board's final decision whether to uphold the trans
fer and to reclassify or not. The applicant insists
that he was denied the opportunity to respond
meaningfully to his reclassification, whether in the
first instance or by virtue of his disentitlement to
the case documentation on which the Board relied
in conducting its review and making the final
decision. In short, he contends that the Board
failed to properly apprise him of the gist of the
case against him and thereby contravened the
principle of fundamental justice or, alternatively,
violated the common law duty of fairness or what
can be appropriately described in this instance as
"procedural fairplay".
A recent interim instruction or directive was
issued on November 1, 1984 with respect to
involuntary inmate transfers. The reasons for the
instruction were thus explained in the opening
paragraph:
Recently some major problems have been experienced with
regard to the processing of involuntary inmate transfers in that
inmates have not been informed of the reasons for their trans
fer. Accordingly, C.D. 600-2-04.1 "Transfers Within Canada"
will be amended to reflect this interim instruction ....
The specific procedure to be followed was laid
down in the concluding paragraph of the instruc
tion, which reads:
Should an emergency lead to a decision to transfer an inmate
quickly and without notice, the written reasons for his transfer
shall be prepared, transferred with the inmate and served to
him upon arrival at the receiving institution. The written
reasons shall be accompanied by a written notice that the
inmate may submit written objections to his transfer for con
sideration by the designated decision maker. Any objections
submitted by the inmate shall be routed to the designated
decision maker who shall cause a written response to be pre
sented to the inmate within ten working days of the date of the
objections.
Prison disciplinary officials have a duty to act
fairly in the exercise of their administrative func
tions. The decision to transfer a prisoner from one
institution to another is essentially an administra
tive matter that should only be interfered with by
the courts on the rare occasions when it is readily
apparent that the prisoner so transferred has not
been dealt with fairly, taking all factors into
account. The advent of the Charter may have
widened the scope of the factors but it has not
changed the administrative nature of the decision
to transfer and reclassify a prison inmate, which
more often than not falls to be determined by the
common law precepts of the duty to act fairly.
While the rules contained in Commissioner's direc
tives require that an inmate subjected to emergen
cy transfer be given immediate notice in writing of
the reasons for transfer and his right to submit
written objections within forty-eight hours to the
appropriate classification or transfer board, he is
not entitled as of right to appear or be heard in
person before the board on the matter of his
transfer and reclassification. Suffice it that the
written reasons for transfer set out the outline or
gist of the case against him sufficient to enable
him to make written objections thereto and that he
be notified in writing reasonably soon thereafter of
the decision-maker's reasons for decision on the
review: see Martineau v. Matsqui Institution Dis
ciplinary Board (No. 2), [1980] 1 S.C.R. 602;
(1979), 106 D.L.R. (3d) 385; 50 C.C.C. (2d) 353;
Butler v. The Queen et al. (1983), 5 C.C.C. (3d)
356 (F.C.T.D.), per Walsh J., at page 361;
Magrath v. R., [1978] 2 F.C. 232 (T.D.); Bruce v.
Yeomans, [1980] 1 F.C. 583; (1979), 49 C.C.C.
(2d) 346 (T.D.); Bruce v. Reynett, [1979] 2 F.C.
697; [1979] 4 W.W.R. 408; 48 C.C.C. (2d) 313
(T.D.); and R. v. Chester (1984), 5 Admin. L.R.
111 (Ont. H.C.).
Collier J., made this very apt statement in
Magrath v. The Queen, supra, at page 255:
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 con
fined to the matter of notice and the right to a hearing of some
kind.
The circumstance particularly relied on by the
applicant is that he should have been given copies
of the working progress summary and all other
adverse case documentation in his file or at least
proper notice thereof in order to afford him ade
quate opportunity to respond to the gist of the case
against him. It is my opinion that this contention is
totally unacceptable in the context that it would
place an impossible and time-consuming burden on
prison authorities that could not be justified by
any reasonable standard of fundamental justice or
procedural fairplay, apart from the question of
prejudicial threat to the safety of security person
nel or prison informants by the disclosure of confi
dential information. The whole thrust of the rules
for the transfer and reclassification of prison
inmates is directed toward prompt and expeditious
action in emergency and sometimes perilous situa
tions, where time is usually very much of the
essence. Moreover, the complete process of trans
fer and reclassification is predicated solely on
review and there is nothing in the present rules, in
my view, to mandate anything approaching the
semblance of an in-person hearing. That being the
case, are there some other circumstances that may
point to some right that has been violated? As I
see it, there are.
The entire case against Mitchell encompassed
the complete process of emergency transfer and
the reclassification of his security rating. This was
the administrative matter referred to the Regional
Classification Board for review and final decision.
The notice of transfer form served on Mitchell in
the dissociation unit at Kent Institution on Decem-
ber 24, 1984 contained only the gravamen of the
charges with respect to the three flagrant and
serious disciplinary offences and made no refer
ence to the demerit marks for deteriorating
behaviour and conduct alluded to by Crozier in his
memorandum or report to the Regional Classifica
tion Board. These allegations were just as much
part and parcel of the applicant's emergency trans
fer as the disciplinary offences and thus come
within the category of matter for which full writ
ten reasons thereof must be prepared and served
on the inmate upon arrival at the receiving institu
tion. In that way, he would be fairly apprised of
the gist of the case against him and it would then
be up to him whether or not he elected to make
any written contra representations. Mitchell made
no representations regarding the disciplinary
offences, but that was only part of it. What bur-
densome inconvenience or possible detriment could
have resulted from serving Mitchell with the
Acting Superintendent's report to the Board along
with the notice of transfer or, failing that, a nota
tion on the notice itself of the gist of the content of
paragraph 2 of the said report? I can envisage
none. In my opinion, either of these modes of
procedure would have sufficed to comply with the
standard of fairness prescribed by the Commis
sioner's own, self-imposed procedural obligations.
The procedural obligations were breached in
another regard. There is no evidence that Mitchell
was promptly notified of the final decision to
reclassify by the Regional Transfer Board. There
is some suggestion that his lawyer may have been
served with notification sometime in late May or
June of 1985 but, in my view, this is far too late.
I further consider that the actual reclassification
subject-matter with which the Regional Transfer
Board was predominently concerned was
Mitchell's reclassification from the S-2 security
rating of Elbow Lake to the S-5 rating of Matsqui
where he had been transferred from Kent on Janu-
ary 15, 1985, despite anything in McGregor's
second affidavit to the contrary.
For the foregoing reasons, I am of the opinion
that the Regional Transfer Board's final decision
on the applicant's emergency transfer and reclas-
sification must be quashed with the result that his
S-2 security rating shall be automatically reinstat
ed and that he be returned forthwith to the Elbow
Lake Institution from whence he came.
This brings me to the final point, namely,
whether the denial of representation by counsel on
the hearing of the first two charges before the
disciplinary court violated the applicant's right to
liberty under section 7 of the Charter, which came
into effect on April 17, 1982, and reads:
7. Everyone has the right to life, liberty and security of the
person and the right not to be deprived thereof except in
accordance with the principles of fundamental justice.
It is well settled that the forfeiture of an
inmate's earned remission is a denial of a right to
liberty guaranteed by section 7 of the Charter,
conditional or qualified as it may be. Counsel for
the applicant argues that the denial of representa
tion by counsel on the hearing of the first two
charges amounted to a clear violation of section 7
and she places much reliance on the recent Federal
Court of Appeal case of Howard v. Stony Moun
tain Institution, [1984] 2 F.C. 642; (1985), 57
N.R. 280 (C.A.). Counsel for the respondents
counters with the argument that the rationale
underlying the Howard case was the inmate's
request for counsel and the denial thereof, that
without the request for counsel there can be no
unfair denial, and that Mitchell's failure to under
stand the serious nature of the first two charges
was the result of his own failure or refusal to read
them and not of any misunderstanding on his part.
The [N.R.] headnote summary of Howard accu
rately states the strict ratio as follows [at page
280]:
Summary:
A prison inmate was charged with several breaches of the
Penitentiary Service Regulations. The charges were character
ized as serious or flagrant and conviction could result in the
irrevocable loss of earned remission. The presiding officer of
the Inmate Disciplinary Court refused the inmate's request to
be represented by counsel at the hearing. The inmate applied
for an order of prohibition to stop the presiding officer from
continuing in the absence of the inmate's lawyer. The Federal
Court of Canada, Trial Division, dismissed the application. The
inmate appealed.
The Federal Court of Appeal allowed the appeal and held
that in the circumstances s. 7 of the Canadian Charter of
Rights and Freedoms guaranteed the right of the inmate to
counsel. The court held that the inmate's liberty was at stake
and the right in s. 7 of the Charter not to be deprived of liberty
except in accordance of the principles of fundamental justice
required the inmate in the circumstances to have a lawyer to
enable him to adequately state his case.
The Court was clearly of the opinion that sec
tion 7 of the Charter did not create any absolute
right to counsel in all prison disciplinary
proceedings.
Thurlow C.J., expounded on this theme, stating
at pages 662-663 F.C.; at page 292 N.R.:
I am of the opinion that the enactment of section 7 has not
created any absolute right to counsel in all such proceedings. It
is undoubtedly of the greatest importance to a person whose
life, liberty or security of the person are at stake to have the
opportunity to present his case as fully and adequately as
possible. The advantages of having the assistance of counsel for
that purpose are not in doubt. But what is required is an
opportunity to present the case adequately and I do not think it
can be affirmed that in no case can such an opportunity be
afforded without also as part of it affording the right to
representation by counsel at the hearing.
Once that position is reached it appears to me that whether
or not the person has a right to representation by counsel will
depend on the circumstances of the particular case, its nature,
its gravity, its complexity, the capacity of the inmate himself to
understand the case and present his defence. The list is not
exhaustive. And from this, it seems to me, it follows that
whether or not an inmate's request for representation by coun
sel can lawfully be refused is not properly referred to as a
matter of discretion but is a matter of right where the circum
stances are such that the opportunity to present the case
adequately calls for representation by counsel.
Pratte J., concurred with the Chief Justice.
MacGuigan J., took a slightly different
approach to reach the same result. The learned
Judge pointed out that while the Canadian Chart
er of Rights and Freedoms does not create new
rights it does, however, introduce a distinctly new
perspective that may well serve to enhance existing
ones. He then addressed himself to the question
whether the implications of an "adequate oppor
tunity" to answer a charge in the context of the
right to counsel have been enhanced by the Chart
er. MacGuigan J., concluded thus at page 685
F.C.; at page 305 N.R.:
What section 7 requires is that an inmate be allowed counsel
when to deny his request would infringe his right to fundamen
tal justice. The existence of the right admittedly depends on the
facts. But the right, when it exists, is not discretionary, in the
sense that the presiding officer has a discretion to disallow it.
The presiding officer's authority cannot, in my view, prevent a
reviewing court from looking at the facts and substituting its
own view if it is persuaded by them that the case is one in
which counsel should be allowed in order to afford the inmate
the rights guaranteed by section 7.
The learned Judge made this further significant
statement at page 688 F.C.; at page 306 N.R.:
In sum, other than, perhaps, in fact situations of unique
simplicity, I cannot imagine cases where a possible forfeiture of
earned remission would not bring into play the necessity for
counsel. Indeed, in my view the probability that counsel will be
required for an adequate hearing on charges with such conse
quences is so strong as to amount effectively to a presumption
in favour of counsel, a departure from which a presiding officer
would have to justify.
It would appear therefore on the broad principle
of Howard that the applicant was entitled to be
represented by counsel in the proceeding before
the disciplinary court because of the possibility of
forfeiture of his earned remission. However, this
right to representation by counsel must be judged
according to the particular circumstances of the
case. There is no evidence that Mitchell was a
person of defective mental capacity or lacking in
intelligence or understanding. Indeed, everything
points to the contrary. The disciplinary court cha
racterized all three charges as serious and there is
nothing in the record to suggest any differentiation
with respect to the two so-called minor charges,
calculated or otherwise. Mitchell admits in his own
affidavit:
... I believed these two charges were "minor" and that I could
not lose remission, and did not ask for counsel. Had I realized
that these were "major" charges, I would have requested
counsel.
What led to this misconception on his part was
his own conduct and nothing else. The applicant
refused on two occasions to read the charges and
took it upon himself to categorize them as minor in
nature. There was no inducement or representation
by the disciplinary court to treat them as other
than serious. The applicant was or should have
been fully aware of his right to request representa
tion by counsel in relation to the two charges
complained of and he chose not to do so. Where is
the denial in these circumstances of any constitu
tionally guaranteed right? Put another way, can
an accused inmate's failure to exercise his right to
request representation by counsel in disciplinary
proceedings, of which he is or should have been
aware but for his own conduct, be afterwards seen
to constitute a deprivation of his right to liberty
within the meaning of section 7 of the Charter? I
think not.
For these reasons, it is my opinion that the two
convictions under paragraphs (h) and (k) of sec
tion 39 of the Penitentiary Service Regulations
should stand and ought not be quashed. The com
plaint of lack of representation by counsel on the
matter of sentencing is no longer in issue and need
not be addressed. It is agreed that the three sen
tences will be quashed and, in my view, the forfeit
ure of fifteen days earned remission is now aca
demic. If I am wrong on this point then counsel for
the applicant can bring on an application to show
cause why the earned remission forfeiture should
not be revoked.
The applicant did not gain all that he wanted on
his motion but the substance of it was largely
successful. Under the circumstances, the applicant
is entitled to his costs of the motion. An order will
therefore go in accordance with these reasons for
decision.
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