T-2600-83
Marcel Pilon and Donald Tyler, Inmates of Mill-
haven Penitentiary (Applicants)
v.
Donald Yeomans, the Commissioner of Correc
tions (Respondent)
Trial Division, McNair J.—Ottawa, January 26
and April 30, 1984.
Judicial review — Prerogative writs — Penitentiaries —
Certiorari and mandamus — Transfer of inmates from
medium to maximum security penitentiary without opportu
nity of hearing — No denial of fundamental fairness as
inmates informed and no statutory requirement for full-scale
hearing — Application denied — Penitentiary Act, R.S.C.
1970, c. P-6, ss. 13(3), 29(3) — Federal Court Act, R.S.C.
1970 (2nd Supp.), c. 10, s. 18.
Constitutional law — Charter of Rights — Legal rights —
Transfer of inmates from medium to maximum security peni
tentiary — Necessary and reasonable limitations on rights in
course of lawful incarceration authorized by Charter s. 1 —
Unless constitutional right manifestly violated, security deci
sions of institutional heads not generally open to review by
courts — Transfer not depriving applicants of right to life,
liberty and security of person nor constituting arbitrary deten
tion or imprisonment — Canadian Charter of Rights and
Freedoms, being Part I of the Constitution Act, 1982, Schedule
B, Canada Act 1982, 1982, c. 11 (U.K.), ss. 1, 7, 9 —
Penitentiary Act, R.S.C. 1970, c. P-6, ss. 13(3), 29(3).
Penitentiaries — Transfer of inmates from medium to max
imum security penitentiary without opportunity of hearing —
No breach of duty to act fairly as inmates duly informed and
as no statutory requirement for full-scale hearing — Neces
sary and reasonable limitations on rights in course of lawful
incarceration, such as transfer for security reasons, authorized
by Charter s. 1 — Unless constitutional right manifestly
violated, security decisions of institutional heads not generally
open to review by courts — Transfer not violating Charter ss. 7
and 9 — Canadian Charter of Rights and Freedoms, being
Part I of the Constitution Act, 1982, Schedule B, Canada Act
1982, 1982, c. 11 (U.K.), ss. 1, 7, 9 — Penitentiary Act, R.S.C.
1970, c. P-6, ss. 13(3), 29(3) — Federal Court Act, R.S.C.
1970 (2nd Supp.), c. 10, s. 18.
Following an alarming increase in violence at the Collins Bay
medium security institution, the applicants were identified as
having a negative influence on the general inmate population
there and were transferred to the Millhaven maximum security
institution. The applicants allege that the transfers contravene
sections 7 and 9 of the Charter and alternatively violate the
principles of procedural fairness. They therefore apply for a
writ of certiorari to quash their transfer and for a writ of
mandamus to be transferred back to Collins Bay.
The sole issue is whether there was any breach of a clear
duty of procedural fairness in the decision-making process
concerning the transfer of the applicants to a maximum secu
rity institution, especially since the applicants were not afford
ed the opportunity of a hearing.
Held, the application should be dismissed. The duty of
fairness in any particular circumstance must be ascertained by
reference to the legislative framework within which the
administrative process operates. Nothing in the applicable Act
or regulations requires a full-scale hearing as a prelude to a
transfer. And the applicants were duly informed of their trans
fer and of the reasons therefor, in conformity with the appli
cable Commissioner's directive.
Restrictions and limitations placed on the rights of inmates
for security reasons, such as a transfer to a more secure
institution, are permissible under section I of the Charter. This
Court could not agree with McDonald J.'s position in Soenen v.
Dir. of Edmonton Remand Centre (1983), 35 C.R. (3d) 206
(Alta. Q.B.) to the effect that the Charter of Rights and
Freedoms must be interpreted in an absolute sense and dis
sociated from section 1 thereof. Unless there has been a mani
fest violation of a constitutionally guaranteed right, the broad
principle that it is not generally open to the courts to question
the judgment of an institutional head as to what may, or may
not, be necessary in order to maintain security within a peniten
tiary still prevails. The administrative decision to transfer the
applicants did not constitute in the circumstances a deprivation
of their right to life, liberty and security of the person guaran
teed by section 7 of the Charter. Nor did the implementation of
their transfer constitute arbitrary detention or imprisonment
contrary to section 9. There was therefore no obligation to
afford the applicants a hearing with respect to their transfer.
CASES JUDICIALLY CONSIDERED
APPLIED:
Regina v. Cadèddu (1982), 40 O.R. (2d) 128 (H.C.);
Solosky v. The Queen, [1980] 1 S.C.R. 821; 105 D.L.R.
(3d) 745; Re Anaskan and The Queen (1977), 76 D.L.R.
(3d) 351 (Ont. C.A.); Re Maltby et al. and Attorney-
General of Saskatchewan et al. (1983), 143 D.L.R. (3d)
649 (Sask. Q.B.).
NOT FOLLOWED:
Soenen v. Dir. of Edmonton Remand Centre (1983), 35
C.R. (3d) 206 (Alta. Q.B.).
COUNSEL:
Fergus O'Connor for applicants.
J. Pethes for respondent.
SOLICITORS:
Fergus J. O'Connor, Kingston, Ontario, for
applicants.
Deputy Attorney General of Canada for
respondents.
The following are the reasons for judgment
rendered in English by
MCNAIR J.: This is a motion by the applicants
under section 18 of the Federal Court Act [R.S.C.
1970 (2nd Supp.), c. 10] for a writ of certiorari to
quash their transfer from a medium security peni
tentiary to a maximum security one and for a writ
of mandamus to compel their transfer back to the
medium security institution from which they were
transferred. The grounds of attack are that the
transfers contravene sections 7 and 9 of the Cana-
dian Charter of Rights and Freedoms [being Part
I of the Constitution Act, 1982, Schedule B,
Canada Act 1982, 1982, c. 11 (U.K.)] and, alter
natively, violate the principles of procedural fair
ness. What it all comes down to and, indeed turns
on, is simply that the applicants were not afforded
the opportunity of a hearing with respect to their
transfers.
The motion is supported by the affidavits of the
applicants. The subject matter of each is essential
ly much the same. Filed in opposition are the
affidavits of Kenneth H. Payne, Institutional Head
of the Collins Bay medium security institution,
and John C. Ryan, Institutional Head of the Mill-
haven maximum security institution. The motion
proceeded on the basis of this affidavit evidence
and the submissions of counsel.
The applicants were both inmates of the Collins
Bay penitentiary, which is a medium security insti
tution. By the end of August, 1983, violence had
increased alarmingly at the Collins Bay penitentia
ry. Despite their assertions to the contrary, the
applicants were not model prisoners. The Security
Division of Collins Bay identified a number of
specific inmates as having a negative influence on
the general inmate population. Among those iden
tified were the applicants. The segregation of the
suspects followed but this is not an issue in the
motion. The transfer of the identified suspect
inmates, including the applicants, to a maximum
security institution was considered as a further
step to stabilization of security.
After consultation and consideration, these
inmates, including the applicants, were transferred
to the Millhaven maximum security penitentiary.
The formal transfer of the applicants and the other
suspect inmates was implemented by formal war
rant under the hand of F. Luciani, Assistant
Regional Manager, Offender Programs, on behalf
of the Commissioner as an officer directed under
subsection 13(3) of the Penitentiary Act [R.S.C.
1970, c. P-6]. The warrant was dated September
8, 1983. On the same date, the applicants were
each given a written memorandum confirming that
they had been advised in person of the reasons for
their transfer and incorporating the written reason
therefor in paragraph 3 of the memorandum itself,
which states:
3. You are being transferred to Millhaven institution as a result
of your behaviour in this institution. You are being transferred
for the good order and security of the institution. You may also
be considered for an inter-regional transfer.
The transfer from Collins Bay to the Millhaven
maximum security institution was completed on
September 9, 1983.
The applicants now contend that the written
reason specified in the memorandum is an insuffi
cient reason for the transfer. They also contend
that they were denied the right to a hearing. Yet
there is no evidence they ever requested a hearing.
In essence, these are the issues for determination.
The Payne affidavit deposes that the incidence
of violence at the Collins Bay institution notice
ably subsided after the transfer of the eleven sus
pect inmates to Millhaven. There is nothing to
refute this. There is some evidence to indicate that
incidents of violence at the Millhaven institution
for the period from January to September, 1983,
substantially exceeded those for the whole of 1982.
No inference can be drawn to implicate the appli
cants because they only arrived there about
mid-September.
Each applicant in his affidavit avers that the
transfer was detrimental. Both evince apprehen
sion, fear and anxiety from what is alleged to be
the more dangerously volatile life milieu at Mill-
haven. Both applicants attest to previous experi
ence as inmates of Millhaven penitentiary. This is
countered to some extent by the affidavit of John
C. Ryan, the Warden of Millhaven penitentiary,
where he points out that the so-called prisoner's
"code of conduct" with respect to acts of violence
is the same at Collins Bay. Certainly, if one wants
to look for trouble it can be easily found.
The applicants go on to contend that their trans
fers will entail loss of some of the amenities hither
to enjoyed at Collins Bay. This is refuted in large
part by the affidavit of the Warden of Millhaven.
In any event, these anxieties and amenity concerns
are more in the nature of self-serving, subjective
opinions on mere sidelights which do not go to the
crux of the matter at hand. It is my opinion that
the sole issue here is simply whether there was any
breach of a clear duty of procedural fairness in the
decision-making process of transferring the appli
cants to a maximum security institution.
Paragraph 9 of the affidavit of Kenneth H.
Payne, Warden of Collins Bay penitentiary, says:
9. Before their transfer, Correctional Officer Troyer advised
the applicants Marcel Pilon and Donald Tyler orally of the
reasons for their transfer. In addition, he provided the appli
cants Marcel Pilon and Donald Tyler with a written notice
dated September 8, 1983 which set out that both applicants
were being transferred to Millhaven Institution for the good
order and security of the Collins Bay Institution. Attached to
the Affidavit of Marcel Pilon as Exhibit "A" is a true copy of
the written notice delivered by Correctional Officer Troyer. A
notice in the same terms was delivered to the applicant Donald
Tyler on September 8, 1983. Each notice was signed by me.
The affidavit of the applicant, Donald Tyler, has
annexed thereto as Exhibit "A" a copy of a letter
dated September 7, 1983 from his counsel, Fergus
J. O'Connor, to the Warden of Collins Bay.
In the opening sentence of his letter, Mr.
O'Connor states that he interviewed Tyler on Sep-
tember 6, 1983. The letter goes on to point to the
applicant's complaint of his segregation (which is
not an issue) and fear of a transfer to Millhaven
and the applicant's assertion that neither segrega
tion nor transfer is justified. The last part of the
letter reads as follows:
From the strictly legal point of view, I must insist that
reasons be given for Mr. Tyler's segregation. As his legal
counsel, I ask that you provide those to me forthwith. As well,
if you are considering a transfer, I respectfully request that you
give all possible consideration to the positive aspects of Mr.
Tyler's performance. He is still a young man serving a life term
and a transfer to Millhaven will certainly set back any possibili
ty of parole for probably years to come.
I thank you for your attention and look forward to your
reply. [Underlining added.]
Mr. Payne did not deign to reply. The letter is
corroborative of the fact that the applicants were
apprised by Correctional Officer Troyer of the
reasons for their pending transfer prior to Septem-
ber 6, 1983. It is of some significance too that at
that stage the applicants were not requesting rea
sons for the threatened transfer nor seeking a
hearing in respect thereof.
Subsection 13(3) of the Penitentiary Act reads
as follows:
13....
(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).
The Act gives the Governor in Council power to
make regulations, inter alia, for the discipline and
good government of the Service, the custody of
inmates and generally for carrying into effect the
purposes of the Act.
Subject again to the Act and any regulations
made thereunder, the Commissioner may make
rules, to be known as Commissioner's directives,
for the following purposes:
29....
(3) ... for the organization, training, discipline, efficiency,
administration and good government of the Service, and for the
custody, treatment, training, and employment and discipline of
inmates and the good government of penitentiaries.
The scope of the directives is broad. It is true
that these directives do not have the force of law
but, by the same token, there is little doubt that
they must be considered as formulating the guide
lines for administrative action with reference to
the particular subject matter in question.
Section 18 of Commissioner's Directive 260
says:
18. When an inmate is to be transferred by administrative
decision, without having so requested, he shall be informed,
subject to security considerations, of the intention to transfer
him and be given forty-eight (48) hours to present reasons for
reconsidering the decision. By the same paragraph the inmates
shall be informed, in writing, of the reasons for the final
decision.
The whole thrust of the applicants' objection
was directed to the alleged denial of natural justice
and fairness comprehended under the general con
cept of a duty to act fairly in the circumstances.
They contend that the principles of fundamental
justice demand, in the case of a transfer, that the
inmate be given a reason for the transfer with
enough precision to permit him to respond, that an
opportunity be afforded for such response, and
that consideration be given to the response in
arriving at the decision. Further or in the alterna
tive, they invoke sections 7 and 9 of the Charter
and maintain that the decision to transfer them
from a medium security penitentiary to a max
imum security institution resulted in some depriva
tion of liberty and security of the person as well as
constituting arbitrary detention or imprisonment. I
have considered the authorities cited by counsel
and it is unnecessary in my view, to extensively
elucidate the legal principles applicable to the
matter, except in very general terms.
The simple question on all aspects of the case is
whether on the particular facts the prison author
ity acted fairly toward the applicants as persons
claiming to be aggrieved by the administrative
decision to transfer them to a maximum security
institution without having afforded them the op
portunity of a hearing.
I will deal first with the aspect of procedural
fairness.
The law is clear that an administrative decision
to transfer a prisoner from one penal institution to
another is the exercise of the administrative pro
cess in a disciplinary matter which should not be
lightly interfered with by a court unless it is
manifestly apparent that there has been a clear
breach of a fundamental duty of fairness. In this
context, there is no rule of law which necessarily
exempts the exercise of such disciplinary powers of
transfer from review by certiorari. The duty of
fairness in any particular circumstances must be
ascertained by reference to the legislative frame
work within which the administrative process oper
ates. By regarding matters in that light, courts in
their role of reviewing administrative decisions are
less likely to succumb to the temptation of sub
stituting their hindsight judgment for that of the
administrative decision-maker and thus arbitrarily
assume the legislative or administrative function.
I can find nothing in the Act or regulations
which mandatorily requires a full-scale hearing as
a necessary prelude to an administrative decision
to transfer a prison inmate from one security
institution to another. Section 18 of the Directive
prescribes a procedural code which requires that
the inmate be informed of the administrative deci
sion to transfer, subject to security considerations,
and that he be given forty-eight hours to present
reasons for reconsidering the administrative deci
sion. The Directive concludes by stating that the
inmates shall be informed, in writing, of the rea
sons for the final decision. There is nothing in the
Directive which requires that the initial notifica
tion of intention to transfer shall be in writing. The
requirement is simply that the inmate be informed.
Following such notification, the inmate has forty-
eight hours to present reasons for reconsideration.
This option is left to the inmate. The exercise of
such option is a matter of choice. Whether or not
he exercises it, the reasons for final decision must
be communicated to him in writing. I apprehend
nothing here which suggests even the semblance of
a requirement for a hearing under the panoply of
procedural fairness as a necessary first step in the
decision to transfer.
I am satisfied on the evidence that the appli
cants were fully apprised of the intention to trans
fer prior to September 6, 1983. The initiative then
passed to them. They did not request a hearing. In
the result, they were provided with written reasons
for the final decision to transfer on September 8,
1983, and on the following day were transferred to
Millhaven. The prison authority informed the
applicants of the administrative decision to trans
fer, as it was obliged to do, and the applicants had
the opportunity to respond, had they chosen to do
so. In my opinion, the prison authority was not
obliged to inaugurate a hearing as a token sop to
fundamental fairness. Accordingly, this ground of
objection fails.
This leaves for consideration the Charter invoca
tions under sections 7 and 9. Again, I do not
propose to expound at length on the law.
In my opinion, Sirois J., stated the correct,
applicable principle to be applied in prison cases
involving alleged Charter violations in Re Maltby
et al. and Attorney-General of Saskatchewan et
al. (1983), 143 D.L.R. (3d) 649 (Sask. Q.B.), at
page 655:
The lawful incarceration of the applicants as remand inmates
bears with it necessarily reasonable limitations on their rights
previously enjoyed in a free and democratic society. These
restrictions are no doubt the sort of reasonable restrictions that
the framers of the Canadian Charter of Rights and Freedoms
envisioned when they included in s. 1 the words "guarantees the
rights and freedoms set out in it subject only to such reasonable
limits prescribed by law..." (Emphasis mine.) The institution
may and certainly must place restrictions and limitations on the
rights of the applicants so that sufficient security will ensure
that they will remain in custody and will not pose a danger to
themselves or to other inmates or staff.
The applicants here were remand inmates as
opposed to sentenced inmates but, in my view, the
principle applies even more forcibly to the latter.
With respect, I disagree with McDonald J. that
the guaranteed rights and freedoms under the
Charter must be interpreted in an absolute sense
and dissociated from section 1 thereof, if this is
what he meant to say in Soenen v. Dir. of Edmon-
ton Remand Centre (1983), 35 C.R. (3d) 206
(Alta. Q.B.).
I consider that the enshrined Charter rights are
always subject to section 1 and that the only
separation which could be envisaged would be that
going to the burden of proof and not the matter of
substantive right. Unless there has been a manifest
violation of a constitutionally guaranteed right, the
broad principle that it is not generally open to the
courts to question the judgment of an institutional
head as to what may, or may not, be necessary in
order to maintain security within a penitentiary
still prevails: see Regina v. Cadeddu (1982), 40
O.R. (2d) 128 (H.C.); Solosky v. The Queen,
[1980] 1 S.C.R. 821; 105 D.L.R. (3d) 745; and Re
Anaskan and The Queen (1977), 76 D.L.R. (3d)
351 (Ont. C.A.).
I am satisfied on the reasonable balance of
probability based on the evidence as a whole that
the administrative decision to transfer the appli
cants to a maximum security institution did not
constitute in the circumstances a deprivation of
their right to life, liberty and security of person
under section 7 of the Charter. For the same
reason, I find that what was done in implementing
their transfer could not be construed by the broad
est stretch of imagination as arbitrary detention or
imprisonment under section 9. Furthermore, there
is no evidence raising the suggestion of bias or the
fact that the decision-maker acted capriciously or
dishonestly.
I am of the opinion therefore that the institu
tional head of Collins Bay penitentiary was under
no obligation to afford the applicants a hearing
with respect to the administrative decision to
transfer them to Millhaven penitentiary. The
application fails on this ground as well.
For these reasons, I dismiss the motion, but
without costs.
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