T-2410-87
Vincenzo DeMaria (Applicant)
v.
Regional Transfer Board and Mr. Tom Epp,
Warden of Joyceville Institution (Respondents)
INDEXED AS: DEMARIA V. CANADA (REGIONAL TRANSFER
BOARD)
Trial Division, Reed J.—Toronto, January 11;
Ottawa, January 29, 1988.
Penitentiaries — Telephone conversation in which inmate
advising office of Member of Parliament as to consequences if
convicts' requests not met used as basis for transfer to higher
security penal institution — Written communications between
inmates and M.P.'s privileged — Arbitrary exercise of
administrative authority — Choice of maximum security
institution arbitrary in light of inmate's personal circum
stances, lack of substance to charge — Doctrine of curial
deference as to prison management not preventing judicial
review of arbitrary decision.
Constitutional law — Charter of Rights — Life, liberty and
security — Charter, s. 7 guarantee applicable to involuntary
transfers of inmates to higher security institutions — S. 7
requiring procedural fairness and also decisions not be arbi
trary (without factual basis).
Judicial review — Prerogative writs — Certiorari —
Application to quash warden's decision to transfer inmate to
higher security penal institution — Transfer decision, based on
telephone conversation between inmate and Member of Parlia
ment, arbitrary, as no factual basis supporting it — Applica
tion allowed.
Barristers and solicitors Duty of counsel appearing
before Court to present all relevant case law, including cases
contrary to position.
This was a motion for certiorari to quash a decision of the
warden to transfer an inmate from a medium security (Joyce -
ville) to a maximum security (Millhaven) institution. This
decision was confirmed by the Regional Transfer Board. The
applicant also sought mandamus to require the warden to
transfer him back to Joyceville, and to have a Penitentiary
Service Regulations charge quashed. The transfer and the
charge were based on a telephone conversation between the
applicant, who was Chairman of the Inmate Committee, and
the executive assistant to his Member of Parliament, the offi
cial Opposition critic of the Solicitor General. A corrections
officer reported that the inmate said that if inmates' requests
were not met "something heavy was going to go down —
maybe this weekend." The reasons given for the transfer were
that the inmate had made inciteful remarks and had failed to
negotiate in good faith regarding the normalization routine
following recent riots at Joyceville. The warden thought it
inappropriate for the applicant to discuss the agenda of an
upcoming meeting with someone outside the institution, and to
indicate that there was tension inside. There was no assertion
that the applicant was involved in stirring up trouble at the
institution. The Offence Report, leading to a charge under the
Regulations, was a watered down version of the Unusual
Occurrence Report. The applicant contended that the decisions
in question constituted an arbitrary exercise of administrative
authority, and therefore were without regard to the principles
of fundamental justice.
Held, the application for certiorari should be allowed; the
application for mandamus and to have the charge against the
inmate quashed should be denied.
It is well established that the Charter, section 7 applies to
decisions concerning the involuntary transfer of an inmate to a
higher security penal institution. Both the Federal Court of
Appeal and the Supreme Court of Canada have interpreted
section 7 as requiring that there be not only procedural fairness
in the narrow sense, but also that decisions not be made in an
unreasonable or arbitrary manner. Setting aside a decision of
an administrative body on the ground that it was arbitrary, or
unreasonable as having been made without evidence to support
it, is one of the traditional grounds of judicial review. As such it
is within the concept of "fundamental justice".
There was no evidence that a transfer was necessary on an
"emergency basis". The applicant was not suspected of plan
ning a disturbance within the institution. It is repugnant that
the communication of information about the situation inside a
prison to one's Member of Parliament was considered an
inciteful activity. A Penitentiary Service directive treats written
communications between inmates and Members of Parliament
as privileged. The same policy reasons should apply to tele
phone communications. Basing a decision to transfer an inmate
to a higher security institution on such a communication was an
arbitrary exercise of administrative authority. The choice of
Millhaven was arbitrary in the extreme, in that the inmate's
family lived in Toronto, and their visits were a positive influ
ence on his life. Warkworth was a medium security institution
closer to Toronto than either Joyceville or Millhaven. Nor was
there evidence that the applicant had been negotiating in bad
faith, in that he was never told to keep information concerning
the proposed negotiations with the institution.
The doctrine of curial deference — which gives administra
tive decision-makers, particularly those required to make
impromptu decisions relating to the conduct of prisons, "the
right to be wrong" — does not prevent judicial review of an
arbitrary decision. In any event, the Board's decision confirm
ing the transfer was not made "in the heat of the moment" and
will fall with the warden's decision.
The charge of an offence against the Regulations would not
be quashed, as argument as to the Court's authority to grant
the relief sought was inadequate.
Neither of the respondents had authority to move the appli
cant from Millhaven, so the application for mandamus must be
denied. However, a failure to transfer the applicant to a
medium security institution would be a breach of the order for
certiorari.
Counsel were reminded that as officers of the Court, they
have a duty to bring forward all relevant case law, including
cases contrary to their position.
STATUTES AND REGULATIONS JUDICIALLY
CONSIDERED
Canadian Charter of Rights and Freedoms, being Part I
of the Constitution Act, 1982, Schedule B, Canada Act
1982, 1982, c. 11 (U.K.), s. 7.
Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10, s. 11.
Penitentiary Service Regulations, C.R.C., c. 1251, s.
39(k).
CASES JUDICIALLY CONSIDERED
APPLIED:
Re B.C. Motor Vehicle Act, [1985] 2 S.C.R. 486:
Howard v. Stony Mountain Institution, [1984] 2 F.C.
642 (C.A.); Re Hay and National Parole Board et al.
(1985), 21 C.C.C. (3d) 408 (F.C.T.D.); Collin v. Lussier,
[1983] 1 F.C. 218; 6 C.R.R. 89 (T.D.).
REFERRED TO:
Jacobson v. Canada (Regional Transfer Board (Pacific))
T-2307-86, judgment dated April 14, 1987, F.C.T.D., not
yet reported; Jamieson v. Commissioner of Corrections
(1986), 2 F.T.R. 146; 51 C.R. (3d) 155 (T.D.).
COUNSEL:
Dianne L. Martin for applicant.
Michael Duffy for respondents.
SOLICITORS:
Dianne L. Martin, Toronto, for applicant.
Deputy Attorney General of Canada for
respondents.
The following are the reasons for order ren
dered in English by
REED J.: The applicant brings a motion for a
writ of certiorari to quash a decision made by the
Warden of Joyceville Institution and the confirma
tion of that decision by the Regional Transfer
Board.
The decision challenged was made on October
22, 1987. It ordered the applicant transferred from
Joyceville, a medium security correctional institu
tion, to Millhaven, a maximum security correc
tional institution. The applicant also seeks a writ
of mandamus requiring the warden to transfer him
back to Joyceville or to some other medium secu
rity institution.
In addition, the applicant seeks to have a charge
quashed. The charge, which has not yet been
heard, is that he committed a "serious or flagrant"
institutional offence contrary to paragraph 39(k)
of the Penitentiary Service Regulations, C.R.C.,
c. 1251.
The transfer from Joyceville to Millhaven, and
the charge that a serious or flagrant institutional
offence had occurred, arose as a result of certain
conversations the applicant had with Mr. Nun-
ziata's office on October 21, 1987. Mr. Nunziata
is both the applicant's Member of Parliament and
the Official Opposition critic of the Solicitor-
General.
The applicant contends that the decision to
transfer him and the decision by the Regional
Transfer Board confirming that decision constitut
ed an arbitrary exercise of administrative author
ity and, therefore, was taken without regard to the
principles of fundamental justice. 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.)] requires
that:
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 now well established that this section
applies to decisions taken with respect to the
involuntary transfer of an inmate from one penal
institution to another (at least when that transfer
involves the move from a lower security to a higher
security institution). See: Re Hay and National
Parole Board et al. (1985), 21 C.C.C. (3d) 408
(F.C.T.D.); Jacobson v. Canada (Regional Trans
fer Board (Pacific)), judgment dated April 14,
1987, Federal Court, Trial Division, T-2307-86,
not yet reported; Jamieson v. Commissioner of
Corrections (1986), 2 F.T.R. 146; 51 C.R. (3d)
155 (T.D.).
In the Hay case, Mr. Justice Muldoon wrote, at
page 415:
Ordinarily and quite properly the courts are reluctant to
interfere with the penitentiary authorities' administrative deci
sions to transfer inmates from one institution to another and
from one security setting to another. So long as those adminis
trative decisions are not demonstrably unfair, they ought prop
erly to be left to those who have the heavy responsibility of
preserving good order and discipline among the prison
population.
In light of the well-founded notion of "a prison within a
prison", transfers from open to close or closer custody can
certainly engage the provisions of ss. 7 and 9 of the Canadian
Charter of Rights and Freedoms. The decision to effect such
an involuntary transfer, without any fault or misconduct on the
part of the inmate, as it is abundantly clear was done in the
applicant's case, is the quintessence of unfairness and
arbitrariness.
Also, in Collin v. Lussier, [1983] 1 F.C. 218; 6
C.R.R. 89 (T.D.), Mr. Justice Decary, at pages
229 F.C.; 97 C.R.R. said:
The fact of transferring an inmate from an institution with a
lower security level to one with a higher level in fact constitutes
a punishment, for it is a reduction in his freedom.
The applicant, in this case, argues that the
transfer decision and its confirmation were made
arbitrarily and without regard to the rules of
fundamental justice because there are no facts
which can reasonably support the decisions which
were taken.
The facts which gave rise to the decision to
transfer the applicant are as follows. In August,
1987, there had been serious disturbances at
Joyceville resulting in extensive property damage.
Consequently, stringent controls were imposed on
the prison population. The applicant, Vincenzo
James DeMaria, was elected Chairman of the
Inmate Committee at Joyceville on October 8,
1987. Thomas Epp became Warden of Joyceville
on October 13, 1987. For nine years previous to
that date he had worked in the national headquar
ters of the Correctional Services of Canada, a
position which involved little direct contact with
inmates. The two men met on Monday, October
19, 1987; it was agreed the warden would meet
with the Inmate Committee on Friday, October
23, 1987, to discuss an agenda which had previous
ly been received by him. The agenda related to the
lessening of the restrictions which had been placed
on the inmates as a result of the riots of the
previous August.
On October 21, 1987, Mr. DeMaria, the appli
cant, spoke on the telephone to Mr. Nunziata's
executive assistant, a Mr. David Pratt. The correc
tions officer who was in the room at the time of
the telephone conversation reported this to
Warden Epp. The report stated that the applicant
had discussed the agenda of the upcoming meeting
with Mr. Pratt and had said:
... if some of their requests weren't met that "something heavy
was going to go down—maybe this weekend". And if something
happened it wasn't the inmates' fault—it was THEIRS! He said
committee was trying to diffuse (sic) situation but things were
pretty hot right now.
The warden prepared an Emergency Involun
tary Transfer Notice to transfer the inmate from
Joyceville to Millhaven the next day. The reasons
given for the transfer were:
1. Inciteful remarks made to M.P.'s office threatening incidents
at Joyceville should inmate demands not be met.
2. Failure to negotiate in good faith with the warden on serious
matters regarding the normalization routine.
As I understand the respondents' position with
respect to the second reason, it was originally
asserted that Mr. DeMaria had agreed not to
discuss the agenda with anyone outside the institu
tion and thus, the warden viewed the discussion
with Mr. Nunziata's office as a breach of that
agreement. However, on cross-examination on his
affidavit, the warden conceded that no such agree
ment had existed. It is clear that the reason for the
transfer was that the warden thought it inappro
priate for Mr. DeMaria to discuss the agenda with
Mr. Nunziata (or his executive assistant) and par
ticularly to indicate that there was a high degree
of tension in the institution. The warden circulated
a notice to the prison population the following day
which said, in part:
Some eight short days ago, I assumed the position of Warden
of this Institution. One of my first priorities at that time was to
familiarize myself with the institution, its policies and routines.
I also met with the Inmate Committee on Monday, 1987-10-19
on an informal basis to get to know the individual committee
members and to prepare for a more formal meeting, complete
with agenda, which was to be held on Friday, 1987-10-23. The
members of the Inmate Committee agreed to this arrangement.
Unfortunately, Inmate Committee Chairman, DeMaria, chose
not to respect this agreement and, in fact, aired the concerns of
the Committee, which we are actively studying, to persons
outside the Service. Such conduct on the part of an Inmate
Committee Chairman is totally unacceptable to me. As a
result, I have taken steps to relieve him of his position as
Chairman and am transferring him to another institution.
[Underlining added.]
With respect to the first ground given for the
transfer, no assertion is made that the applicant
intended to or was involved in any stirring up to
trouble at the institution. The warden took no
action after the report of the telephone conversa
tion to investigate as to whether or not, in fact,
there was an incipient disturbance being planned
at the institution. On cross-examination he stated
that given the extensive restrictions, which at the
time were imposed on the inmates, it was unlikely
that any such disturbance could occur. It is clear
the Warden was annoyed that Mr. DeMaria was
talking to Mr. Nunziata's office. He referred to it
as "a tawdry tactic".
With respect to the allegation that the remarks
made by Mr. DeMaria were inciteful, Mr. Pratt
signed an affidavit stating:
I have come to know the Applicant and his wife as Constitu
ents through my employment as Mr. Nunziata's Executive
Assistant. I have corresponded and had telephone communica
tion with the applicant's wife on many occasions over the years
and have corresponded with the applicant on many occasions
over the years, as has Mr. Nunziata. I had telephone communi
cation with the applicant on October 20th, 1987 for the first
time. This communication has always related to matters of
concern to the Applicant or his wife which come within the
ambit of a member of Parliament's duty to his constituents and
on a number of occasions have included advice.
On or about the 20th and 21st of October, 1987 in the course
of my duties as Executive Assistant to Mr. John Nunziata, I
spoke on the telephone with the applicant at Joyceville
Institution.
Without breaching the confidentiality of my telephone con
versations with the Applicant herein, I am prepared to swear
unequivocally that: 1. The conversations in question were nei
ther inciteful nor intimidative; 2. The applicant in these conver
sations sought the advice and assistance of his member of
parliament, and made no demands or threats; 3. The conversa
tions were intended to be private and confidential. With the
exception of discussing them with Mr. Nunziata in the normal
course, I did not reveal the contents of these conversations with
anyone until the matter became public knowledge through the
media. [the media became aware of the phone conversation as a
result of Mr. DeMaria's transfer to Millhaven] 4. On behalf of
Mr. Nunziata I gave the applicant advice which I verily believe
he accepted. That advice could in no way prejudice the security
or good order of the institution. If ordered by this Honourable
Court I am prepared to reveal the full content of these conver
sations to the best of my ability.
The corrections officer who wrote up the Unusu
al Occurrence Report, also wrote out the Offence
Report which led to Mr. DeMaria being charged
with an act "calculated to prejudice the discipline
or good order of the institution", contrary to para
graph 39(k) of the Penitentiary Service Regula
tions. The text of that report states:
... during a phone conversation with M.P. Nunciatta's [sic]
office, inmate DeMaria indicated that if some of the inmates'
requests were not met that something might happen. The
committee had tried to diffuse the situation, but things were
pretty hot and if something did happen, it wouldn't be the
inmates' fault.
It is to be noted that the tone of this description
is much milder than that contained in the Unusual
Occurrence Report. Also, there is no reference to
something being about to happen "this weekend".
When the warden made enquiries about the differ
ence in the wording, he was given an explanation
by the officer's supervisor. This explanation
appears in the warden's answers during cross-
examination:
A. She was, she was concerned about, about the ramifica
tions of the transfer and the subsequent case in inmate court
and she was personally somewhat reluctant to go on record in
court as in independent chairperson court as having said that,
so she ....
Q. So she was concerned about the accuracy of her recollec
tion of the conversation?
A. No she was concerned about the, no, I asked her about
that or I asked that question. I said, was the original statement
true? Yes. Well, was it watered down then, which is really
what's happened? And ....
Q. Yes?
A. ... There was some visibility that she was acquiring as
having heard this call and reporting on it and subsequently
writing the Offence Report. She felt personally being a little bit
uneasy about the visibility that it was generating for her, so she
concluded by toning down the wording in that Offence Report.
During the cross-examination, on being asked as
to how one could conclude that remarks made over
the telephone to a Member of Parliament would be
inciteful and constitute a threat to the security of
the institution, the warden indicated that this con
clusion arose because the comments were made to
Mr. Nunziata's office. His concern was that such
discussions would lead to the information being
disclosed to the press. The press would then report
that information in the newspapers. Inmates
receive and read newspapers. Thus, the informa
tion would be circulated back within the prison
and have a "destabilizing" effect.
The applicant's position is that he was entitled
to consult with Mr. Nunziata, who may be the
opposition critic for the Solicitor General, but, who
is also Mr. DeMaria's Member of Parliament. It is
argued that the conversations with Mr. Pratt were
of the same privileged character as those with Mr.
Nunziata would be, because Mr. Pratt was really
acting as a stand-in for Mr. Nunziata. The appli
cant takes the position that his communications
with his Member of Parliament are privileged.
I accept that Mr. Pratt should be treated as a
stand-in for Mr. Nunziata, in this case, and that
whatever privilege attaches to communications be
tween Mr. DeMaria and Mr. Nunziata would also
attach to those with Mr. Pratt.
It is clear that had the communications with
Mr. Nunziata's office been by letter they would
have been treated as privileged by the Correctional
Services officers. Commissioner's Directive No.
085 provides that correspondence with Members
of Parliament will be privileged. The Directive is
silent, however, as to the status of such communi
cation if it takes place by telephone. Thus, the
applicant cannot rely on Directive No. 085 as a
source of claim for privilege.
The applicant was given notice of the reasons
for his transfer and an opportunity to respond
thereto. Thus, the fact situation in this case raises
more than just procedural fairness in the narrow
sense of that concept. Both the Federal Court of
Appeal and the Supreme Court of Canada, in my
view, have interpreted section 7 of the Canadian
Charter of Rights and Freedoms as requiring that
there be not only procedural fairness, in the
narrow sense, but also that decisions not be made
in an unreasonable or arbitrary manner. In Re
B.C. Motor Vehicle Act, [1985] 2 S.C.R. 486, Mr.
Justice Lamer, speaking for the majority of the
Court, said at pages 512-513:
We should not be surprised to find that many of the princi
ples of fundamental justice are procedural in nature. Our
common law has largely been a law of remedies and procedures
and, as Frankfurter J. wrote in McNabb v. United States 318
U.S. 332 (1942), at p. 347, "the history of liberty has largely
been the history of observance of procedural safeguards". This
is not to say, however, that the principles of fundamental
justice are limited solely to procedural guarantees.
And in Howard v. Stony Mountain Institution,
[1984] 2 F.C. 642, at page 661, the Federal Court
of appeal (per Thurlow C.J.) indicated that even in
a procedural sense, what is required by section 7
would:
... no doubt vary with the particular situation and the nature
of the particular case. An unbiased tribunal, knowledge by the
person whose life, liberty or security is in jeopardy of the case
to be answered, a fair opportunity to answer and a decision
reached on the basis of the material in support of the case and
the answer made to it are features of such a procedure.
[Underlining added.]
Setting aside a decision of an administrative body
on the ground that it is arbitrary, or unreasonable
as having been made without evidence to support it
is, of course, one of the traditional grounds of
judicial review. As such, it is within the concept of
"fundamental justice".
There are a number of reasons why I am of the
view that the applicant must succeed in this case.
In the first place, there is absolutely no evidence
that a transfer was necessary on an "emergency
basis". There is no suggestion by the prison offi
cials that they thought the applicant was causing
or planning to cause disturbances within the insti
tution. It is repugnant to think that the communi
cation of information about the situation inside a
prison to one's Member of Parliament could be
considered an inciteful activity. The Penitentiary
Services' own directive treats communications be
tween inmates and Members of Parliament as
privileged, when they occur by letter. The policy
reasons for such should be equally applicable to
telephone communication. Obviously such com
munications can be monitored, as can written cor
respondence, to ensure that they are bona fide. But
to base a decision to transfer an inmate from a
medium to a maximum security institution on the
fact that the inmate had a telephone conversation
with his Member of Parliament, even if the inmate
is saying things the prison officials do not want
said, or even if the communication exaggerates in
some way the actual facts, is an arbitrary exercise
of administrative authority. Also, the choice of
Millhaven was arbitrary in the extreme. The
warden indicated that Millhaven was chosen
because it was a maximum security institution and
because he understood that the inmate had a
girlfriend or common-law wife in the Kingston
area. In fact, the inmate has a legal wife and two
children who live in Toronto and who have always
lived in Toronto. The relevant prison reports indi
cate that the inmate's wife and children visit the
inmate often and are a very positive influence in
his life. There is a medium security prison closer to
Toronto than either Millhaven or Joyceville: that is
Warkworth. Transfer to that institution would cer
tainly have been a more suitable choice if the
objective of fostering the familial relationship had
been a strong consideration. Also, there is no
evidence that Mr. DeMaria was negotiating in bad
faith. There is no indication that he was asked to
keep information concerning the agenda or pro
posed negotiations within the institution. The
warden may have felt that it was appropriate to do
so but there is no evidence that Mr. DeMaria was
told of this condition.
Counsel for the respondents argues that there
has developed, in recent years, the doctrine of
curial deference. That is, the courts, in general, are
reluctant to second guess administrative decision-
makers, especially with respect to decisions that
relate to the conduct of prisons and especially with
respect to decisions which need to be made on the
spur of the moment. It is argued that administra
tive decision-makers have "the right to be wrong"
I accept that argument. But it does not go so far as
to prevent judicial review of an arbitrary decision,
that is, one made without a factual basis to sup
port it.
I note that in this case, even if one were to
accept the argument that the warden, being
required to decide on the spur of the moment, was
entitled to "the right to be wrong", the Regional
Transfer Board's confirmation of that decision was
not one made "in the heat of the moment". The
Board had an opportunity to reflect on the appro
priateness of punishing an inmate for communicat-
ing by telephone with his Member of Parliament.
The Board had before it both the original version
of the conversation with Mr. Nunziata's office and
the "watered-down" version found in the offence
report. There was an opportunity to make inquiries
of Mr. Nunziata's office as to the nature of the
communication. (In fact, Mr. Nunziata had called
the warden's office to discuss the matter with him
but the warden did not return the call.) There were
the personal circumstances of the applicant (his
family living in Toronto) and particularly his
transfer to Millhaven. The Regional Transfer
Board could have rescinded the transfer decision
and returned the inmate to Joyceville, or they
could have transferred him to Warkworth. Instead,
they confirmed the transfer to Millhaven. In the
circumstances, I think this decision was arbitrary
and made in the absence of any evidence to sup
port it. Since the initial decision made by Warden
Epp will be quashed, the confirmation of that
decision by the Regional Transfer Board will fall
with it. Therefore, there will be no need to deal
specifically with the confirmation decision in the
order to be given.
It is argued that this Court has no authority to
grant the third relief sought, that is, to quash the
charge that an offence contrary to the Penitentiary
Service Regulations occurred. To some extent, I
think this issue becomes somewhat moot in the
light of the decision given with respect to the
transfer. If there is a lack of factual basis to
support a decision to transfer the inmate, there is
equally a lack of factual basis on which a charge
can be supported. Nevertheless, argument before
me on the question of where this Court received
authority to grant such an order was so sparse that
I am not prepared to formally grant that remedy.
With respect to the request for an order of
mandamus, I am not convinced that either of the
respondents to this application have authority to
move the applicant from Millhaven. Certainly
Warden Epp does not, and I have been referred to
no authority which demonstrates to me that the
Regional Transfer Board has that authority.
Clearly, quashing the original transfer order car
ries with it a requirement that DeMaria be either
transferred back to Joyceville or to another
medium security institution. While I am not pre-
pared to grant the order of mandamus sought, for
the reasons noted above, it is clear that if the
appropriate prison officials do not transfer
DeMaria either back to Joyceville or to another
medium security institution, they would be, in this
case, in breach of the order of certiorari which is
to be given.
I think it was conceded by counsel for the
applicant that the request for a declaration that
communications between the applicant and his
Member of Parliament are privileged is not one
procedurally open in the context of this motion.
I will make one last comment with respect to
this case. Counsel who appear before this Court
are, by operation of section 11 of the Federal
Court Act, R.S.C. 1970 (2nd Supp.), c. 10, officers
of the Court. As such, they have a duty to call to
the Court's attention the jurisprudence which is
relevant to the issue in question, that is, the juris
prudence which is contrary to their position, as
well as that which supports their position. I can
understand that it is difficult to keep up to date
with respect to the many Charter decisions which
are being rendered. This area of the law is, at
present, fast-developing. Nevertheless, when there
is a failure to bring relevant jurisprudence to the
attention of the Court, it puts the Court in a
difficult position. The ends of justice would be
much better served if all counsel could be a bit
more diligent with respect to this aspect of their
obligation to the Court.
An order shall go in accordance with these
reasons. The applicant will be awarded his costs.
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.