A-185-86
Vincenzo Demaria (Appellant)
v.
Regional Classification Board and K. Payne
(Respondents)
INDEXED AS: DEMARIA v. REGIONAL CLASSIFICATION BOARD
Court of Appeal, Thurlow C.J., Mahoney and
Hugessen JJ.—Ottawa, August 6 and 13, 1986.
Judicial review — Prerogative writs — Certiorari — Proce
dural fairness — Appeal from dismissal of certiorari applica
tion — Appellant transferred from medium to maximum
security institution for bringing cyanide into prison — No
cyanide found — Particulars of allegations not given as all
information confidential — Appeal allowed — Appellant
treated unfairly — Where not intended to hold hearing, par
ticularly important notice contain as much detail as possible
or right to answer becoming illusory — Test is whether enough
information revealed to allow person concerned to answer case
against him, not whether good grounds for withholding infor
mation — Federal Court Rules, C.R.C., c. 663, R. 337(2)(6).
Penitentiaries — Inmate transferred from medium to max
imum security facility for bringing contraband, namely cya
nide, into institution — No cyanide found — Details of
allegation not given as based on confidential information —
Although authorities entitled to protect confidential sources of
information, possible to give substance of information while
protecting identity of informant — Transfer decision quashed
as convict treated unfairly.
COUNSEL:
Dianne L. Martin for appellant.
Carolyn Kobernick for respondents.
SOLICITORS:
Martin, Gemmell; Associates, Toronto, for
appellant.
Deputy Attorney General of Canada for
respondents.
The following are the reasons for judgment
rendered in English by
HUGESSEN J.: This is an appeal from a decision
of the Associate Chief Justice [(1986), 2 F.T.R.
157 (F.C.T.D.)] dismissing the appellant's applica
tion for relief by way of certiorari and otherwise
against a decision transferring him from Collins
Bay. Institution to Millhaven Institution»
The appellant is serving a life term of imprison
ment for murder. He is presently ineligible for
parole and will continue so for some years. His
sentence was imposed in 1982 and he was initially
confined at Millhaven, a maximum security peni
tentiary. In due course, his application for reclas-
sification to a lower order of security was granted
and, on March 12, 1985, he was transferred to
Collins Bay, a medium security institution. Less
than a week later, on March 18, he came under
suspicion of having brought cyanide into the
prison. He was placed in segregation pending
investigation until, on May 2, 1985, he was trans
ferred back to Millhaven and reclassified as max
imum security. No disciplinary or criminal pro
ceedings were taken against him.
The reasons invoked by the prison authorities to
justify their decision for the retransfer were set out
in a "48-hour notice" dated April 9, 1985, signed
by the warden of Collins Bay and given to the
appellant. The text reads as follows:
48-HOUR NOTICE
1. You are hereby notified that I intend to recommend your
transfer to increased security, for the reasons given below.
2. I have reasonable and probable grounds to believe that you
are responsible for bringing contraband into this institution, ie,
the poisonous substance cyanide.
3. You may make any comments, in writing, within two (2)
working days and these shall accompany my recommendation.
The hearing in the Trial Division took place August 14,
1985. Judgment was rendered February 28, 1986. Neither the
record nor the brief reasons for judgment reveal any reason for
the delay. The appeal was heard at a special sitting during the
long vacation as being a matter touching the liberty of the
subject.
Some further amplification of those reasons is
contained in a letter of May 21, 1985, from the
Regional Manager of Offender Programs to the
appellant confirming the decision to transfer him.
That letter reads:
On May 2, 1985 you were transferred to Millhaven Institution
from Collins Bay Institution. The reason given you was, based
on confidential information, there are reasonable grounds to
believe you brought cyanide into Collins Bay Institution.
Your resonse (sic) to this action has been reviewed. As well a
careful review has been made of the circumstances and infor
mation available which prompted your transfer to increased
security.
The original decision stands. Should you disagree with this
decision, you have access to the inmate grievance procedure.
It is not disputed that a reasonably grounded
belief that the appellant had brought cyanide into
Collins Bay would be an adequate justification for
the decision to retransfer him to Millhaven. It is
also not in issue that in reaching that decision the
authorities were under a duty to act fairly towards
the appellant. The only real question in the present
case is as to the content of that duty. More
narrowly still, it is to know whether the appellant
was given adequate notice of what was being
alleged against him and a fair opportunity to
answer those allegations.
I have set out above the only relevant written
communications given to the appellant. The case
material also suggests that the appellant was orally
advised that the information on which the authori
ties were relying had been obtained from the staff
of Millhaven and from the Ontario Provincial
Police. He was also told that no cyanide had, in
fact, been found.
Both the appellant and his lawyer tried on sever
al occasions to obtain particulars of the allegations
against him and of the information on which they
were based. These requests were refused, the
reason given being, as stated in the affidavit filed
on behalf of respondent,
... that all preventive security information acquired by the
Correctional Service of Canada was confidential and could not
be released to an inmate's legal representative. (Case book,
page 53.)
There is, in my view, simply no doubt that the
appellant was not treated with the fairness to
which he was entitled. The purpose of requiring
that notice be given to a person against whose
interests it is proposed to act is to allow him to
respond to it intelligently. If the matter is contest
ed, such response will normally consist of either or
both of a denial of what is alleged and an allega
tion of other facts to complete the picture. Where,
as here, it is not intended to hold a hearing or
otherwise give the person concerned a right to
confront the evidence against him directly, it is
particularly important that the notice contain as
much detail as possible, else the right to answer
becomes wholly illusory. Indeed the present case is
an excellent example of the right to answer being
frustrated and denied by the inadequacy of the
notice. The appellant is told that there are reason
able grounds for believing him to have brought in
cyanide. He is given no hint of what those grounds
are. The allegations against him are devoid of
every significant detail. When? Where? How?
Whence came the poison? How was it obtained?
For what purpose? How much? The allegation is
said to be based on information obtained by the
Millhaven staff and the Ontario Provincial Police.
What information comes from which source? Is
there an informer involved? If so, how much of the
substance of his statement can be revealed while
protecting his identity? Have the police pursued
their enquiries? Have they made any arrests? The
list of questions is almost endless.
In the absence of anything more than the bald
allegation that there were grounds to believe that
he had brought in cyanide, the appellant was
reduced to a simple denial, by itself almost always
less convincing than a positive affirmation, and
futile speculation as to what the case against him
really was.
There is, of course, no doubt that the authorities
were entitled to protect confidential sources of
information. A penitentiary is not a choir school
and, if informers were involved (the record here
does not reveal whether they were or not), it is
important that they not be put at risk. But even if
that were the case it should always be possible to
give the substance of the information while pro
tecting the identity of the informant. The burden is
always on the authorities to demonstrate that they
have withheld only such information as is strictly
necessary for that purpose. A blanket claim, such
as is made here, that "all preventive security infor
mation" is "confidential and (cannot) be
released", quite apart from its inherent
improbability, 2 is simply too broad to be accepted
by a court charged with the duty of protecting the
subject's right to fair treatment. In the final anal
ysis, the test must be not whether there exist good
grounds for withholding information but rather
whether enough information has been revealed to
allow the person concerned to answer the case
against him. But whichever way it be stated, the
test is not met in the present case.
In my view, we should allow the appeal, set
aside the judgment at trial, and issue an order in
the nature of certiorari quashing the impugned
decision. There is no need to grant the appellant's
subsidiary conclusions in mandamus to order his
return to Collins Bay.
One minor technical difficulty remains for reso
lution: in the course of his reasons for judgment,
the Trial Judge said [at page 158]:
... the parties agree that the respondents named in the style of
cause are incorrect. Counsel for the Crown offered to consent
to an amendment of the style of cause; however, in light of the
disposition of this matter no amendment is required. [Case
Book, page 71.]
No argument was addressed to this question on
the hearing of the appeal. If an amendment to the
style of cause is thought to be necessary, it should
be made before the entry of formal judgment.
Accordingly, I would direct, pursuant to Rule
337(2)(b), 3 that the appellant, after obtaining an
amendment to the style of cause if so advised,
prepare a draft of a judgment to implement the
2 Anyone who has ever seen a so-called "security" file knows
that a large proportion of the material in it is routine informa
tion readily available elsewhere.
3 Federal Court Rules, C.R.C., c. 663.
Court's conclusion and move for judgment
accordingly.
THURLOW C.J.: I agree.
MAHONEY J.: I agree.
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.