Judgments

[1996] 1 F.C. 247

T-3002-94

Shawn Murray (Applicant)

v.

S.H.U. National Review Board Committee of the Correctional Service of Canada and Michel Deslauriers, Director, Regional Reception Centre, Ste-Anne-des-Plaines, Quebec (Respondents)

Indexed as: Murrayv. Canada (Correctional Service, S.H.U. National Review Board Committee) (T.D.)

Trial Division, Tremblay-Lamer J.—Montréal, September 7; Ottawa, September 22, 1995.

Penitentiaries — Application to quash 1994 refusal to transfer applicant from Special Handling Unit (SHU) to lower security institution because refused to participate in anger management program — Transfer to lower security institution recommended since 1993 — Board intending to transfer applicant to Kent Institution until January 1994 policy change requiring inmate to follow anger management program — Application allowed — Corrections and Conditional Release Act, Regulations not permitting applicant to question legality of SHUs — Necessary for protection of public — Within Board’s power to transfer inmate under Act, s. 29, Regulations, s. 5, Commissioner’s Directive 551 — Ongoing maintenance in SHU must be conducted in accord with Act, s. 28 requiring Service to take all “reasonable” steps to ensure inmates confined in least restrictive environment consistent with degree, kind of custody necessary — Absent change of behaviour, arbitrary to abandon positive evaluation on introduction of new policies.

Administrative law — Judicial review — Application to quash refusal to transfer applicant from Special Handling Unit to lower security institution, mandamus compelling transfer — Board studying transfer request without applicant’s knowledge — Breach of procedural fairness — Whenever process would not cause undue hardship to administration of correctional system, inmate should be allowed to make representations when decision affects rights, interest or privileges — Not undue burden to inform applicant of date of review, provide opportunity to at least make written representations.

This was an application to quash the refusal to transfer the applicant from the Special Handling Unit (SHU), to which he had been transferred in 1991 after he was involved in a hostage-taking incident, to a lower security institution. The transfer was refused because he had declined to participate in an anger management program, despite the recommendation by his Case Management Team made in March, 1993 that the applicant should be transferred to the Prairie Regional Psychiatric Centre, and the Board’s own decision to transfer the applicant to Kent Institution, which was only cancelled because the applicant refused to go. In January 1994 a new policy was introduced which required inmates to follow an anger management program. In September, 1994 the Board studied the applicant’s transfer request in his absence and without his knowledge, and decided to keep him in the SHU because he had not complied with his programming requirements. The applicant has always been classified at the maximum security level.

The issues were: (1) whether SHUs were illegal; (2) whether the transfer to the SHU was unlawful as having been undertaken by other than the competent legal authority; (3) whether there was a breach of procedural fairness; (4) whether the respondents had an obligation to detain the applicant in the least restrictive setting possible; (5) whether it was arbitrary or unfair to impose new conditions upon transfer procedures when a final decision had been made, and there had been no misconduct by the applicant.

Held, the application should be allowed.

(1) Neither the Corrections and Conditional Release Act nor the Corrections and Conditional Release Regulations allow the applicant to question the legality of the existence of SHUs. The security classification levels provided in Regulations, section 18 and Act, section 30 pertain to the individual. The security classification of the inmate does not necessarily identify the institution. In fact, the Act authorizes the placement of an inmate in any penitentiary. SHU’s are necessary to provide for the protection of the public, which includes staff of the penitentiary and other inmates. The existence of SHUs is legal.

(2) The power to transfer an inmate from an SHU to another penitentiary does not belong to the Head of the Penitentiary, but is within the Board’s power in accordance with section 29 of the Act (which gives the Commissioner the power to transfer inmates from one penitentiary to another), section 5 of the Regulations (delegation of section 29 powers), and Commissioner’s Directive No. 551.

(3) The respondents failed to meet the requirements of procedural fairness. While not requiring personal attendance in every case, procedural fairness does require that whenever the process would not cause undue hardship to the administration of the correctional system, an inmate should be allowed to make representations when a decision affects his rights, interest or privileges. It would not have created an undue burden for the administration to have informed the applicant of the date when his case would be reviewed and to have given him at least the opportunity to make written representations.

(4) The ongoing maintenance of an applicant in a SHU must be conducted in accordance with section 28 of the Act. The obligation to “take all reasonable steps to ensure that the penitentiary in which the person is confined is one that provides the least restrictive environment” while taking into account the degree and kind of custody necessary is a continuing duty, not restricted to the moment at which an inmate is first transferred. The decision to maintain an applicant in a SHU must also be “reasonable” in order to ensure that he was confined in the “least restrictive environment”. Imposing new rules on a decision in process raised a question of law as to arbitrariness.

(5) New policies should not apply to a process which has concluded that an inmate qualified for a transfer to a lower security institution. An inmate transfer decision is always subject to the conduct of an inmate. A positive decision can be altered if there is evidence of misconduct by the inmate before the execution of the transfer. There was no evidence of misconduct by the applicant which could have prompted the impugned decision. The applicant had earned, if not the right, then the privilege of being transferred to a lower security level institution. In the absence of evidence of a change in the applicant’s behaviour, it was arbitrary for the respondents to abandon a positive evaluation on the introduction of new policies.

STATUTES JUDICIALLY CONSIDERED

Corrections and Conditional Release Act, S.C. 1992, c. 20, ss. 4(d),(e), 11, 28, 29, 30(1), 31.

Corrections and Conditional Release Regulations, SOR/92-620, ss. 5, 18, 19.

Penitentiary Service Regulations, C.R.C., c. 1251, s. 13.

CASES JUDICIALLY CONSIDERED

APPLIED:

R. v. Chester (1984), 5 Admin. L.R. 111; 40 C.R. (3d) 146 (Ont. H.C.); Gaudet v. Marchand, [1994] 3 S.C.R. 514; affg (1994), 63 Q.A.C. 286 (C.A.); Hay v. Nat. Parole Bd. (1985), 13 Admin. L.R. 17; 48 F.T.R. 165 (F.C.T.D.); Gaw v. Commr. of Corrections (1986), 19 Admin. L.R. 137; 2 F.T.R. 122 (F.C.T.D.).

CONSIDERED:

The Queen v. Miller, [1985] 2 S.C.R. 613; (1985), 52 O.R. (2d) 585; 24 D.L.R. (4th) 9; 16 Admin. L.R. 184; 23 C.C.C. (3d) 97; 49 C.R. (3d) 1; 63 N.R. 321; 14 O.A.C. 33; Morin v. National SHU Review Committee, [1985] 1 F.C. 3 (1985), 20 C.C.C. (3d) 123; 46 C.R. (3d) 238; 60 N.R. 121 (C.A.); Cardinal et al. v. Director of Kent Institution, [1985] 2 S.C.R. 643; (1985), 24 D.L.R. (4th) 44; [1986] 1 W.W.R. 577; 69 B.C.L.R. 255; 16 Admin. L.R. 233; 23 C.C.C. (3d) 118; 49 C.R. (3d) 35; 63 N.R. 353.

APPLICATION to quash a refusal to transfer the applicant from a Special Handling Unit to a lower security institution. Application allowed.

COUNSEL:

Stephen Fineberg for applicant.

André Lespérance for respondents.

SOLICITORS:

Stephen Fineberg, Montréal, for applicant.

Deputy Attorney General of Canada for respondents.

The following are the reasons for order rendered in English by

Tremblay-Lamer J.: The applicant is currently detained in a special handling unit (SHU) of the Regional Reception Centre located in Ste-Anne-des-Plaines, province of Quebec, sometimes known as a high maximum security unit, to which he was transferred on September 6, 1991 after pleading guilty to a charge of hostage-taking in August 1991. This incident occurred inside the prison and a sentence of eighteen months was added to his original sentence. Prior to his transfer, he had been detained in a maximum security institution on an eight-year sentence for robbery.

On September 2, 1994, the respondents refused to transfer the applicant to a lower security institution and decided to maintain the applicant in the SHU. The decision indicates that the applicant would remain in the SHU as he “had not complied with the programming requirements established by [his] CMT and National Review Board members”. It is from that decision that the applicant seeks judicial review for the purpose of obtaining the following relief:

(1) An order in the nature of certiorari to quash the decision of September 2, 1994 by the Special Hand- ling Unit National Review Board Committee of the Correctional Service of Canada, refusing to transfer the applicant to lower security and maintaining him in the Special Handling Unit; and

(2) an order in the nature of mandamus compelling the Correctional Service of Canada to transfer the applicant without delay to one of its Regional Psychiatric Centres, or, in the alternative, to a maximum security penitentiary.

BACKGROUND FACTS

Shortly after his arrival at the institution on September 6, 1991, the applicant was seen by a Correctional Services psychiatrist, Dr. Alfred Thibault. Dr. Thibault issued a report on January 13, 1992 on the basis of a December 31, 1991 interview with the applicant. According to the applicant, Correctional Services Canada has relied upon this report to maintain him in the Special Handling Unit. This report has been the subject of a complaint by the applicant before the Syndic de la corporation professionelle des médecins du Québec in which he argues that no actual interview took place because the psychiatrist, who never identified himself, met with him briefly.

The recommendation that the applicant should be transferred back to a “lower security” institution dates back to March 12, 1993. A “Progress Summary Report” prepared by the Case Management Team, recommended that the applicant be transferred to the Prairie Regional Psychiatric Centre in Saskatoon before transferring him to a maximum security institution. This report and its recommendation were endorsed in writing by the Special Handling Unit’s case management supervisor. In a “Summary of Psychological Follow-up” dated March 15, 1993, the Correctional Services Canada psychologist also recommended that the applicant be transferred to another institution where he could benefit in specific programs. Following these reports, a Correctional Services Canada transfer sheet, recommending the applicant’s transfer to the Regional Psychiatric Centre in the Prairies, was signed by the institution’s head of preventive security on April 7, by Unit Manager Pierre Groulx on April 8, and on April 19 by Deputy Warden Daniel Mérineau, acting on behalf of Warden Michel Deslauriers, the respondent. A further document entitled “Security Classification” indicates that the proper security classification for the applicant is “Maximum”. This document, amongst others, was signed by the Warden respondent on April 8, 1993.

In July 1993, counsel for the applicant wrote to the Warden and his superior, the Deputy Commissioner, regarding the continued detention of the applicant in the Special Handling Unit. Also in July, the applicant was attacked by a another inmate who succeeded in stabbing the applicant in the upper arm. Following this incident, the applicant was placed in dissociation until sometime in October, 1993.

On August 20, 1993 the applicant received a letter dated August 10, 1993 in which Correctional Services Canada indicated that, despite the recommendation of the Special Handling Unit to transfer the applicant to the Prairie Regional Psychiatric Centre in Saskatoon, the SHU National Review Board Committee of the Correctional Services of Canada (the Board) had decided on July 8, 1993 to transfer the applicant to Kent Institution in Agassiz, British Columbia. The proposed transfer date was September 28, 1993.

Prior to the transfer, the applicant informed his case management officer on September 10, 1993 and the Warden respondent on September 14, 1993 that he would refuse the transfer to Kent Institution. He felt he should rather be placed in a “Regional Psychiatric Centre before proceeding to an ordinary penitentiary.” He requested a transfer to the Pacific Regional Psychiatric Centre in Abbotsford, British Columbia. On September 15, 1993, the applicant changed his mind and accepted the transfer to the Kent Institution, believing it would increase his chances to transfer to the Regional Psychiatric Centre. Meanwhile, the applicant learned that another prisoner, one who was not accepted by the general population at the Special Handling Unit, would be travelling with the applicant to Kent Institution. The applicant believed this would place him in a dangerous position as inmates at Kent Institution would expect him to instruct them on this prisoner’s status and by the same token that prisoner would view the applicant as a threat. As a result, on September 22, 1993 the applicant informed his case management officer that he would refuse the transfer to Kent Institution. The day before the transfer was scheduled, the Warden respondent and the institutional psychologist explained to the applicant that his was not a psychiatric case and that the programs he needed were available at Kent. As the applicant still refused to go to Kent Institution, the Warden cancelled the applicant’s transfer.

On November 12, 1993, the Board met with the applicant and refused him the transfer to a regional psychiatric centre. The applicant suggested a transfer to maximum institutions in Renous, New Brunswick or Edmonton, Alberta. The Board did not accept these proposals.

In December 1993, the applicant requested a transfer to Donnacona Maximum Institution near Québec City, where he would be closer to his father. On January 18, 1994, the Special Handling Unit produced a new “Summary Appraisal and Recommendation” sheet. It still recommended the transfer to Kent Institution.

On January 28, 1994, the Board met with the applicant and asked him if he would participate in an anger management program. The applicant responded that he would not. On the same day, the applicant’s case management officer informed the applicant of the Board’s decision to keep him in the Special Handling Unit. A written notice was sent to the applicant on February 21, dated January 31, 1994, that his transfer was refused. The notice included this recommendation: “You are strongly encouraged to involve yourself in `Anger Management’ and continue meeting with the psychologist.” According to the applicant, this program did not exist in English at the institution and he did not want to be the first inmate to enrol in the program since it would lead to serious reprisals from the inmate population.

An “Offender Security Level Referral” sheet dated May 6, 1994, signed on that date by the case management officer and on May 19 by the Warden respondent, reports that the applicant’s security classification is “MAXIMUM”. This is also the conclusion of a “Progress Summary Report” completed on May 9. The “Progress Summary Appraisal and Recommendation” report dated May 6, recommends that the applicant remain in the SHU.

On May 26, 1994, the applicant submitted a new application for transfer to Donnacona Maximum Institution. On June 30, 1994 the Board again decided to maintain the applicant in the SHU and strongly encouraged him to continue his psychological follow-up and acquire anger management techniques.

On June 28, 1994, a new “Progress Summary Report” was prepared. This report contains errors as to the charges pertaining to the hostage-taking incident. These errors had previously been reported and recognized as errors by Correctional Services Canada. They still appeared however in this report. In addition, this report relies on Dr. Thibault’s assessment which, according to the applicant, never actually occurred. Finally the applicant asserts that this report was relied upon by the Board in making its September 2, 1994 decision.

On July 4, 1994, the applicant was placed in dissociation because a knife had been found in his cell, hidden under the combination sink/toilet unit. On July 19, 1994, the applicant was found not guilty by the institution’s disciplinary court. The applicant was however maintained in dissociation until August 4, 1994. On the evening of August 18, 1994, the day before the applicant was to appear before the National Parole Board, a shank was found in his cell in the caulking under the sink/toilet. He was again placed in dissociation. The chair of the disciplinary court found the applicant not guilty of possession of contraband on September 23, 1994. The reasons for his decision included the observation that the cell had not been inspected prior to the applicant being placed in it despite the applicant’s formal request for an inspection as he had noticed a hole under the sink/toilet unit. Furthermore, the chairperson found that the object found was not a shank but rather an old blunt piece of metal.

While he was in dissociation, on July 13, 1994, counsel for the applicant wrote to the head of the Board requesting the applicant’s transfer to a regional psychiatric centre or in the alternative to a maximum security institution. Counsel also requested that both he and the applicant be present when the Board reviewed the applicant’s case.

On September 2, 1994, while the applicant was in dissociation, the Board studied his transfer request in the applicant’s absence and without his knowledge. The Board decided to maintain the applicant in the Special Handling Unit as the applicant had not complied with his programming requirements. These requirements included meeting with his case management officer monthly and individual psychological follow-up, such follow-up including anger management techniques. The applicant was informed of this decision on September 23, 1994.

ISSUE

Did the Board act illegally in deciding on September 2, 1994 to maintain the applicant in the SHU because he refused to comply with the programming requirements?

ANALYSIS

1.         Illegality of the existence of the SHU

Although the issue was raised by counsel, the legality of such institutions was not questioned by the Supreme Court of Canada in The Queen v. Miller.[1] Le Dain J. states, at page 618:

Confinement in a special handling unit is reserved for particularly dangerous inmates, as indicated by s. 5 of Commissioner’s Directive 274 of December 1, 1980, which defines “Special Handling Unit” as follows: “‘Special Handling Unit’ (SHU) is a facility established to deal exclusively with inmates who, in addition to requiring maximum security, have been identified as being particularly dangerous.” ... it may be said that confinement in a special handling unit is a significantly more restrictive form of detention than the normal one in a penitentiary, involving the loss or denial of several privileges or amenities enjoyed by the general inmate population.

The applicant submits that Miller was decided prior to the new legislation and therefore provides no authority to confirm the legality of the SHU.

He refers to many sections of the Corrections and Conditional Release Act[2] and of the Corrections and Conditional Release Regulations[3] to demonstrate the illegality of the existence of the Special Handling Unit. Paragraph 4(e) of the Act provides that one of the principles by which Correctional Services must be guided is:

4. ...

(e) that offenders retain the rights and privileges of all members of society, except those rights and privileges that are necessarily removed or restricted as a consequence of the sentence;

Section 4 further imposes respect for the liberty of the inmate through the terms of paragraph (d) which requires:

4. ...

(d) that the Service use the least restrictive measures consistent with the protection of the public, staff members and offenders;

Furthermore, subsection 30(1) of the Act provides:

30. (1) The Service shall assign a security classification of maximum, medium, or minimum to each inmate in accordance with the regulations made under paragraph 96(z.6).

Accordingly, section 18 of the Regulations states:

18. For the purposes of section 30 of the Act, an inmate shall be classified as

(a) maximum security ...;

(b) medium security ...; and

(c) minimum security ....

The applicant therefore submits that neither the Act nor the Regulations give authority for the construction and habitation of institutions operating at a higher security level than maximum security institutions.

I do not agree with the applicant that the new legislation allows him to question the legality of the existence of special handling units. Section 18 of the Regulations and section 30 of the Act provide a scale of levels of security by which an inmate should be classified. This security classification pertains to the individual inmate and does not claim to describe the levels of security attributed to a particular penitentiary nor does it provide any authority for the construction of any institution, be it maximum, medium or minimum. The applicant, at all times, was classified as “maximum”, although he was maintained in a different institution than “ordinary” maximum institutions. The security classification of the inmate does not necessarily identify the institution.

In fact, the Act authorizes the placement of an inmate in any penitentiary. Section 11 of the Act provides:

11. A person who is sentenced, committed or transferred to penitentiary may be received into any penitentiary, and any designation of a particular penitentiary in the warrant of committal is of no force or effect. [My emphasis.]

Guidelines for the determination of the appropriate institution can be found in section 28 of the Act:

28. Where a person is, or is to be, confined in a penitentiary, the Service shall take all reasonable steps to ensure that the penitentiary in which the person is confined is one that provides the least restrictive environment for that person, taking into account

(a) the degree and kind of custody and control necessary for

(i) the safety of the public,

(ii) the safety of that person and other persons in the penitentiary, and

(iii) the security of the penitentiary;

(b) accessibility to

(i) the person’s home community and family,

(ii) a compatible cultural environment, and

(iii) a compatible linguistic environment; and

(c) the availability of appropriate programs and services and the person’s willingness to participate in those programs.

Section 28 of the Act is, in essence, the same as the old section 13 of the Regulations in which it provided:

13. The inmate shall, in accordance with directives, be confined in the institution that seems most appropriate having regard to

(a) the degree and kind of custodial control considered necessary or desirable for the protection of society, and

(b) the program of correctional training considered most appropriate for the inmate.[4]

Holland J. in Chester[5] confirmed the validity of special handling units as falling within the scope of section 13. He stated, at page 136:

Section 13 of the regulations, in my view, authorizes the establishment of the S.H.U. by reason of the requirement that an inmate be confined to an institution with facilities capable of providing protection to the public and rehabilitation to the inmate. The definition of an institution under the regulations (which is the same as the definition of penitentiary under the Act) includes a “facility of any description ... that is operated by the Service for the custody, treatment or training of persons sentenced or committed to a penitentiary ...” In my view, an S.H.U. is a facility of that kind and therefore, is an institution under s. 13. In addition, it is my view that the word “society” is not restricted to members of the public living in the community but also includes the guards and other inmates in the penitentiary.

I must agree with Holland J. that special handling units are necessary to provide for the protection of the public, which includes staff of the penitentiary and other inmates. I therefore conclude that the existence of the Special Handling Unit is legal.

2.         The authority to transfer an inmate from the SHU

The applicant argues that the transfer to the SHU is unlawful as having been taken by other than the competent legal authority.

MacGuigan J.A., in his majority judgment in Morin v. National SHU Review Committee,[6] stated, at page 17:

Nevertheless, the only legal authority with respect to transfers to SHU’s appears to be found in subsection 40(1), which puts the responsibility squarely on the institutional director or his lawful deputy....

However, in the light of the fact that the parties did not argue the legality of the Commissioner’s Directives and the further fact that the appellant appeared to concede the lawfulness of the initial SHU confinement, I believe I should refrain from deciding the case on this ground.

I do not agree with the applicant. The power to transfer an inmate from the Special Handling Unit to another penitentiary does not belong to the Head of the Penitentiary (who orders transfers into administrative segregation under section 31) but is clearly within the power of the Board in accordance with section 29 of the Act, section 5 of the Regulations, and the Commissioner’s Directive, No. 551. This was confirmed by the Supreme Court of Canada in Gaudet v. Marchand,[7] in which the Court held that the Commissioner may delegate his power of transfer to a staff member. As section 29 grants the Commissioner power to transfer inmates from one penitentiary to another, section 5 of the Regulations provides:

5. (1) A staff member who is designated by name or position for that purpose in Commissioner’s Directives may exercise powers, perform the duties or carry out the functions that are assigned to the Commissioner by any of the following provisions of the Act:

…

(b) section 29; ...

Section 31 of the Act and section 19 of the Regulations referred to by counsel for the applicant, have no application in this case as those sections deal with the segregation of inmates who are already held in the Special Handling Unit. The conditions surrounding segregation are different than the conditions prevailing in the general population of the Special Handling Unit. The September 2, 1994 decision was simply to keep the applicant in the Special Handling Unit and not to segregate him as provided by section 31 of the Act and section 19 of the Regulations.

3          ProceduralFairness

The applicant requested a personal appearance with his lawyer before the Board. On the facts, he was not advised that the Board was meeting on September 2, 1994, nor was he invited to submit written representations.

The respondents argue that the Supreme Court of Canada has explained that the content of the obligations imposed by procedural equity will vary according to the circumstances. There is, therefore, no obligation on the Board to have the applicant appear in person. In Cardinal et al. v. Director of Kent Institution,[8] the Court stated, at page 654:

The question, of course, is what the duty of procedural fairness may reasonably require of an authority in the way of specific procedural rights in a particular legislative and administrative context and what should be considered to be a breach of fairness in particular circumstances. The caution with which this question must be approached in the context of prison administration was emphasized by this Court in Martineau (No. 2), supra. Pigeon J., with whom Martland, Ritchie, Beetz, Estey and Pratte JJ. concurred, said at p. 637:

I must, however, stress that the Order issued by Mahoney J. deals only with the jurisdiction of the Trial Division, not with the actual availability of the relief in the circumstances of the case. This is subject to the exercise of judicial discretion and in this respect it will be essential that the requirements of prison discipline be borne in mind, just as it is essential that the requirements of the effective administration of criminal justice be borne in mind when dealing with applications for certiorari before trial, as pointed out in Attorney General of Quebec v. Cohen ([1979] 2 S.C.R. 305). It is specially important that the remedy be granted only in cases of serious injustice and that proper care be taken to prevent such proceedings from being used to delay deserved punishment so long that it is made ineffective, if not altogether avoided.

The Court added:

The issue then is what did procedural fairness require of the Director in exercising his authority, pursuant to s. 40 of the Penitentiary Service Regulations, to continue the administrative dissociation or segregation of the appellants, despite the recommendation of the Board, if he was satisfied it was necessary or desirable for the maintenance of good order and discipline in the institution. I agree with McEachern C.J.S.C. and Anderson J.A. that because of the serious effect of the Director’s decision on the appellants, procedural fairness required that he inform them of the reasons for his intended decision and give them an opportunity, however informal, to make representations to him concerning these reasons and the general question whether it was necessary or desirable to continue their segregation for the maintenance of good order and discipline in the institution.[9]

According to the respondents, the applicant had plenty of opportunity to submit written representations to the Board before it made its decision on September 2, 1994.

While I agree with the respondents that procedural fairness does not create the requirement of personal attendance in every case, the decision in Cardinal confirms that whenever the process would not cause undue hardship to the administration of the correctional system, the inmate should be allowed to make representations when a decision affects his rights, interest or privileges.

In the present case, not only was the applicant not informed of the date when his case would be reviewed, but his counsel’s request to be present with the applicant remained unanswered.

I cannot find that it would have created an undue burden for the administration to have informed him of the date and to have given him, if not the right to be present, the opportunity to make written representations.

The respondents have failed to meet the requirements of procedural fairness.

4.         The least restrictive setting

The applicant submits that the respondents have an obligation to detain the applicant at the appropriate level of security in the least restrictive setting possible. The applicant has been classified by the respondents as a maximum security inmate and he argues that his detention above the level of maximum security violates the Act.

At the risk of being repetitive, section 28 of the Act provides:

28. Where a person is, or is to be, confined in a penitentiary, the Service shall take all reasonable steps to ensure that the penitentiary in which the person is confined is one that provides the least restrictive environment for that person, taking into account

(a) the degree and kind of custody and control necessary for

(i) the safety of the public,

(ii) the safety of that person and other persons in the penitentiary, and

(iii) the security of the penitentiary;

(b) accessibility to

(i) the person’s home community and family,

(ii) a compatible cultural environment, and

(iii) a compatible linguistic environment; and

(c) the availability of appropriate programs and services and the person’s willingness to participate in those programs.

In Miller, the Court agreed with the then Commissioner’s Directive No. 274 that some inmates, in addition to requiring maximum security, needed further restraint as they were identified as being particularly dangerous. Currently, the Commissioner’s Directive, No. 551 provides that special handling units are created to provide an environment in which dangerous inmates may be motivated to behave in a more responsible manner.

As I have previously observed, SHU’s are legal in that they deal with inmates who, taking into account all elements of section 28, need further restraint as they are considered more “dangerous” than inmates in the general population at a maximum security penitentiary.

The applicant was identified as a dangerous inmate after his involvement in a hostage-taking incident in a Saskatchewan penitentiary. One can easily conclude that his transfer to the SHU after such an event was “reasonable” according to the standards of section 28. In any event, the decision before me is not his original transfer to the SHU, but rather the decision to maintain him in such institution.

The ongoing maintenance of the applicant in the SHU must also be conducted in accordance with the requirements of section 28. The obligation imposed by the Act to “take all reasonable steps to ensure that the penitentiary in which the person is confined is one that provides the least restrictive environment” (my emphasis) is a continuing duty not restricted to the moment at which an inmate is first transferred.

The September 2, 1994 decision to maintain the applicant in the SHU also had to be “reasonable” in order to ensure that the applicant was confined in the “least restrictive environment”. What was reasonable in the circumstances is not obvious. The recommendation that the applicant be transferred back to a lower institution dates back to March 12, 1993. As a matter of fact, it was recommended that he be transferred to the Prairie Regional Psychiatric Centre in Saskatoon. However, on July 8, 1993 the Board felt he should be transferred to Kent Institution and held that opinion until January 31, 1994, when it refused the transfer in its entirety, instead requiring the applicant to follow an anger management program at the SHU.

The respondents have admitted that the change of heart as to the transfer was due to a policy change that required inmates to follow an anger management program. If it were not for the applicant’s own refusal of the transfer to Kent Institution, he would have been transferred on September 28, 1993. Despite his refusal, the authorities still held the opinion that the applicant be transferred to Kent Institution.

Was it “reasonable” to impose this new policy requirement on the applicant whose behaviour did not warrant his maintenance in the SHU? The respondents may have believed it to be reasonable. However, imposing new rules on a decision in process raises a question of law as to arbitrariness.

5.         Arbitrariness of the decision

Both parties agree that the applicant was refused a transfer to a lower security institution because he had not complied with specific programming requirements. The evidence shows that the respondents abandoned their positive evaluation once a new national policy relating to programming requirements was implemented and not followed by the applicant. A January 1994 report, prepared by Correctional Services Canada, stated that greater importance should be placed on program participation of SHU inmates before they are transferred to a lower security institution.

The applicant argues that the September 2, 1994 decision was arbitrary and unfair because it relied solely on the implementation of new rules after the applicant had satisfied the old ones. Furthermore, the refusal was not based on the misbehaviour of the applicant.

The issue that this raises is whether or not it is arbitrary or unfair to impose new conditions upon transfer procedures when in fact a final decision has been made and this in light of the absence of any misconduct of the applicant?

The question of imposing new rules on an inmate was examined by Muldoon J. in Hay v. Nat. Parole Bd.[10] Hay had been transferred from a minimum security institution to a maximum security institution as a result of change in policy. The only reason for the transfer was the policy change and there was no allegation of misconduct on the inmate’s part. Muldoon J. stated, at page 27:

Whether or not it was made in good faith, the decision to transfer the applicant from the Saskatchewan Farm Institution back to the penitentiary was arbitrary and unfair. 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.

It may be that the policy change invoked by the respondents affects a contemplated class of inmates, but that, in the absence of fault, cannot prevail over the inmate’s individually guaranteed legal rights.

He added, at pages 27-28:

... having clearly earned the privilege of being placed in the farm annex, this applicant despite his serious crimes in 1977, is not to be moved about like cordwood, simply because he is in a class of inmates contemplated by the change of policy in 1984.

Muldoon J. spoke of a “privilege” having been earned by the inmate as no misconduct justified any transfer from one institution to another.

In Gaw v. Commr. of Corrections,[11] the applicant applied for an order compelling the Commissioner to comply with an investigation procedure that he had undertaken to follow. The Commissioner had informed the applicant that if a preliminary investigation concluded that a further inquiry was necessary, a formal hearing would take place. However, the Commissioner later informed the applicant that no formal hearing would occur. Dubé J. stated, at page 140:

It has been clearly established by the jurisprudence that a public authority is bound by its undertakings as to the procedure it will follow, provided the procedure does not conflict with its duty. When a public authority has promised to follow a certain procedure and an interested person relied and acted upon that promise, it is not in the interest of good administration nor is it in the interest of fairness, to disregard that promise and to deal with that person by way of a procedure different from the one the public body committed itself to follow. One does not change the rules in the middle of the game, especially where the basic rights of a person are at play. [My emphasis.]

From March of 1993 until January of 1994, a recommendation for transfer to a lower security institution stood in the applicant’s file. This decision was based on periodical evaluations. It meant that the risk posed by the applicant was not high enough to maintain him in a SHU. He was no longer considered as “dangerous inmate” to be kept in the SHU.

New rules or policies should not apply to a process which has concluded that an inmate qualified for a transfer to a lower security institution. We must speak here of a process since an inmate transfer decision is always subject to the conduct of the inmate. In the context of inmate transfers, a positive decision can be altered if there is evidence of misconduct on the part of the inmate before the execution of the transfer. However, this was not the case. There is no evidence of misconduct on his part which could have prompted the September 2, 1994, decision. The applicant clearly had earned, if not the right, then the privilege of being transferred to a lower institution. With no evidence of change of behaviour on the part of the applicant, it is arbitrary in my view for the respondents to abandon a positive evaluation based solely on the introduction of new policies. The decision of September 2, 1994, is therefore quashed.

The last valid decision rendered by the Board, before the new rules were implemented, dates back to November 12, 1993 in which it recommended transfer to Kent Institution. That decision therefore stands.

Correctional Services Canada is therefore ordered to transfer the applicant to a maximum security penitentiary without delay unless the applicant has committed any misconduct that would justify denying him the transfer. The choice of the institution is that of the respondents and not of the applicant since, on the practical side, it may no longer be possible to send the applicant to Kent Institution.

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