T-3097-75
Michael Frederick Kosobook and Franklin Aelick
(Plaintiffs)
v.
The Solicitor General of Canada, The Honourable
Warren Allmand, The Commissioner of Penitenti
aries, A. Therrein, The Director of Millhaven
Maximum Security Penitentiary, J. A. Dowsett,
The Assistant Director of Millhaven Maximum
Security Penitentiary, S. M. Scrutton, and the
Chairman of the Millhaven (Maximum Security)
Penitentiary Segregation Review Board, L. Alai -
rie (Defendants)
Trial Division, Gibson J.—Toronto, November 24;
Ottawa, December 19, 1975.
Imprisonment—Prerogative writs—Jurisdiction—Segrega-
tion of prisoners—Motions to strike and to dismiss, or to
extend time—Plaintiffs complaining of lack of notice of Clas
sification Board's hearings, and that they cannot attend such
hearings or see evidence put before the Board—Penitentiary
Service Regulations, s. 2.30.
Since January 22, 1975, plaintiffs have been separated from
other inmates, and have been advised by the Segregation
Review Board that such segregation is for the good order and
discipline of the institution. Plaintiffs allege that (1) they have
never been, and in future will not be given notice of Board
hearings reviewing their continued segregation; (2) that they
have not been and will not, be permitted to attend such hear
ings; (3) that they have not been and will not be given
documents and other evidence put before the Board. Defend
ants apply to strike out the statement of claim, claiming lack of
jurisdiction of the Court; to dismiss, on grounds that the Court
lacks jurisdiction to hear an application for prohibition and
certiorari; to strike out the statement of claim on the ground
that it discloses no reasonable cause of action; or, to extend the
time for filing and serving the defence.
Held, striking out the statement of claim, the action is
dismissed. The Board, having purely administrative functions,
has no duty to inform plaintiffs of allegations and evidence put
forth, or to afford plaintiffs an opportunity to attend and be
heard. Nor must it observe the audi alteram partem rule. It has
been held that a decision as to the manner of confining an
inmate is not a decision affecting his civil rights. There is no
claim that the Board has received, or proposes to receive any
evidence to which it is not entitled; that it has made, or
proposes to make recommendations that it is not entitled to
make; or that it has done or will do anything unlawful. The
declaratory relief sought under section 18 of the Federal Court
Act as an original remedy lacks merit. There is no basis for a
declaration (1) that the Board is proposing to do anything
unlawful; (2) that plaintiffs should be given notice; (3) that
evidence put before the Board should be given to plaintiffs; and
(4) that plaintiffs may attend future hearings. Nor is there any
basis for prohibition, certiorari or mandamus. Any order or act
of the "institutional head(s)" pursuant to section 2.30 of the
Regulations, being purely administrative, cannot contravene
the Canadian Bill of Rights.
Guay v. Lafleur [1976] S.C.R. 12; Mitchell v. The Queen
(1976) 24 C.C.C. (2d) 241, applied. Ex parte MacCaud
[ 1969] 1 O.R. 373, discussed.
ACTION.
COUNSEL:
D. G. Humphrey, Q.C., and G. Lapkin for
plaintiffs.
G. W. Ainslie, Q.C., and J. P. Malette for
defendants.
SOLICITORS:
Humphrey, Locke, Ecclestone & Kane,
Toronto, for plaintiffs.
Deputy Attorney General of Canada for
defendants.
The following are the reasons for judgment
rendered in English by
GIBSON J.: This is an application on behalf of
the defendants under Rule 419 of this Court for an
order:
(a) striking out the plaintiffs' statement of
claim on the ground that the Court does not
have jurisdiction to grant the relief sought;
(b) dismissing the claim for prohibition and
certiorari in aid of a writ of mandamus on the
ground that the Court does not have jurisdiction
to entertain an application for prohibition and
certiorari;
(c) striking out the statement of claim and dis
missing the action on the ground that the state
ment of claim discloses no reasonable cause of
action; or
(d) in the alternative, extending the time for
filing and serving of the defence by the defend
ants, if required, until 15 days after the final
determination of this application.
The plaintiffs in this action have, as noted from
the style of cause, sued a number of persons. The
plaintiffs presently are prisoners serving sentences
at Kingston Penitentiary, having been transferred
on November 7, 1975 from Millhaven Maximum
Security Penitentiary at Bath, Ontario.
The acts and proposed acts complained of in this
statement of claim relate to hearings by the "Clas-
sification Board"' referred to in this statement of
claim as "Kingston Penitentiary Regional Recep
tion Centre Segregation Board". The substance of
the complaints may be stated as follows: namely,
(1) that the plaintiffs have not been given and in
future will not be given any notice of hearings of
the said Board held pursuant to and prescribed by
section 2.30 of the Penitentiary Service Regula
tions; (2) that the plaintiffs have not been permit
ted and in future will not be permitted to attend
any such hearings of said Board; and (3) that the
plaintiffs have not had and in future will not be
given any production to them of any documents or
other evidence put before such Board for consider
ation by it at such hearings.
Section 2.30 of the Penitentiary Service Regu
lations made pursuant to the Penitentiary Act,
R.S.C. 1970, c. P-6 reads as follows:
Dissociation
2.30. (1) Where the institutional head is satisfied that
(a) for the maintenance of good order and discipline in the
institution, or
(b) in the best interests of an inmate
it is necessary or desirable that the inmate should be kept from
associating with other 'inmates he may order the inmate to be
dissociated accordingly, but the case of every inmate so dis
sociated shall be considered, not less than once each month, by
the Classification Board for the purpose of recommending to
the institutional head whether or not the inmate should return
to association with other inmates.
(2) An inmate who has been dissociated is not considered
under punishment unless he has been sentenced as such and he
shall not be deprived of any of his privileges and amenities by
reason thereof, except those privileges and amenities that
(a) can only be enjoyed in association with other inmates, or
(b) cannot reasonably be granted having regard to the limi
tations of the dissociation area and the necessity for the
effective operation thereof.
"Classification Board" within the meaning of those words
as used in section 2.30 of the Penitentiary Service Regulations
made pursuant to the Penitentiary Act, R.S.C. 1970, c. P-6.
The plaintiffs, prisoners serving a sentence, were
transferred on November 7, 1975 from Millhaven
Maximum Security Penitentiary to the Kingston
Penitentiary Regional Reception Centre and since
January 22, 1975 have been housed in segregation
cells apart from other prisôners of either Mill-
haven Maximum Security Penitentiary or the
Kingston Penitentiary.
The plaintiffs have been advised from time to
time by the said Segregation Review Board that
they have been segregated from the rest of the
inmates for the good order and discipline in the
institution.
The plaintiffs in this action allege that they have
never been given and it is not proposed that they
be given notice of the hearings of the said Board
reviewing the plaintiffs' continued segregation, nor
production of any documents or other evidence put
or to be put in future before such Board nor have
they been permitted nor is it intended that they be
permitted to attend any hearings or meetings of
the said Board, and that the converse should
obtain; and they are asking this Court to so order.
The plaintiffs at paragraphs 3, 4, 5, 6, 7, 20, 21,
22 and 23 of their statement of claim put their
allegations in this way:
3. In early January of 1975 one Andrews who was a prisoner at
Millhaven Institution was stabbed to death in the penitentiary.
4. Following this incident, on January 22, 1975 the plaintiffs
were taken by guards from their places in the prison population
and placed in segregation cells apart from the other prisoners of
the institution. This action was taken at the direction of the
defendant J. A. Dowsett, the Director of Millhaven Institution.
5. At the time of their transfer the plaintiffs were given no
explanation for their confinement in segregation where they are
confined to segregation cells for twenty-three hours each day
and with restricted privileges.
6. On February 20, 1975 the plaintiffs were advised by a
memorandum from the defendant Dowsett that they had been
segregated for the good order and discipline of the institution.
They were also informed that the decision was based upon an
investigation into a recent stabbing incident.
7. By a notice dated February 19, 1975 the plaintiffs were
informed that the Segregation Review Board of the Institution
which reviews all segregation cases once each month had
decided that the plaintiffs were to remain in segregation until
the investigation of recent incidents at the institution were
completed.
20. The plaintiffs were given no prior notice of these and
subsequent hearings of the Segregation Review Board and were
not allowed to attend these and subsequent Board meetings.
21. On November 7, 1975 the plaintiffs were transferred to the
Kingston Penitentiary Regional Reception Centre from Mill-
haven Maximum Security Penitentiary.
22. At Kingston Penitentiary the segregation of the plaintiffs is
continuing subject to the review of the Kingston Penitentiary
Regional Reception Centre Segregation Review Board.
23. The plaintiffs have been given no notice of hearings of the
Kingston Penitentiary Regional Reception Centre Segregation
Review Board reviewing their continued segregation and have
not been permitted to attend any such Board meetings.
The plaintiffs in their prayer for relief in their
statement of claim at paragraphs 26, 27, 28 and 29
premise such claims for relief on the acts and
proposed acts of the said Segregation Review
Board made and to be made at their hearings held
pursuant to the said section 2.30 of the Penitentia
ry Service Regulations.
The said paragraphs of their prayer for relief
read as follows:
26. A writ of prohibition to prevent the continued segregation
of the plaintiffs from the general population of Millhaven
Penitentiary.
27. A writ of mandamus with certiorari in aid thereof to quash
the decisions of the defendants and to compel the production of
all documents upon which the defendants rely and to accord the
plaintiffs a full, fair and impartial hearing according to the
rules of natural justice.
28. A declaratory judgment enunciating the rights of the plain
tiffs to counsel, and to the due process of law and equality
before the law, and to have matters concerning their confine
ment decided in accordance with the rules of natural justice
and Canadian Bill of Rights in that the plaintiffs must be
informed of the specific factual allegations and evidence pre
sented against them and be afforded an opportunity to present
evidence in reply to the allegations.
29. A declaratory judgment that segregation or disassociation
constitutes an infringement of the Canadian Bill of Rights.
It is not alleged or suggested that the defendant
The Solicitor General of Canada, The Honourable
Warren Allmand, the defendant The Commission
er of Penitentiaries, A. Therrein, the defendant
The Director of Millhaven Maximum Security
Penitentiary J. A. Dowsett, and the defendant The
Assistant Director of Millhaven Maximum Secu
rity Penitentiary S. M. Scrutton, took part in, or in
future will take part in any of the hearings of the
said Board after which recommendations were
made and are to be made in future to "the institu
tional head" of Kingston Penitentiary or Mill-
haven Penitentiary within the meaning of those
words in section 2.30 of the said Regulations above
quoted or otherwise.
It was conceded and admitted by counsel for the
plaintiffs for the purposes of this motion that the
acts done or proposed in future to be done by the
said Board which are complained about are "pure-
ly administrative" as opposed to such having any
"judicial" or "quasi-judicial" content or character.
There are no facts pleaded in the statement of
claim from which it could be inferred that any of
the defendants have usurped or are attempting to
usurp any of the power of "the institutional head"
of the Kingston Penitentiary who has the power to
order the disassociation of the plaintiffs from other
prisoners. There is also no allegation that any of
the defendants has made or proposes to make any
order of any kind.
Having carefully reviewed the pleadings and
proceedings in this matter and the authorities and
the submissions of counsel, in my view, first, the
said Board not having any judicial or quasi-judi
cial functions, but instead having purely adminis
trative duties, has no duty to inform the plaintiffs
at any time of any factual allegations and evidence
presented or to be presented to the said Board nor
any duty to afford the plaintiffs an opportunity to
be present at any such hearings or to present any
evidence in reply to any such allegations or
evidence.
Second, there is also no duty on such Board to
observe any of the practice encompassed in the
audi alteram partem rule. (See Guay v. Lafleur
[1965] S.C.R. 12; Robert Reid, Administrative
Law and Practice, pages 111, 167; Dussault,
Traité de droit administratif, vol. 2, page 1230).
In Ex parte MacCaud 2 the Court of Appeal of
Ontario held that any decision as to the manner in
which an inmate of a correctional institution is to
be confined is not a decision which would affect
the inmate's civil rights. The matter was put this
way:
Since his right to liberty is for the time being non-existent, all
decisions of the officers of the Penitentiary Service with respect
to the place and manner of confinement are the exercise of an
authority which is purely administrative, provided that such
2 [1969] I O.R. 373 at 379.
decisions do not otherwise transgress rights conferred or pre
served by the Penitentiary Act. Likewise, the withdrawal of or
restrictive interference with privileges, the normal punishment
for a disciplinary offence which is not flagrant or serious, does
not affect any civil right of the inmate as a person: and if the
exercise of the disciplinary powers inherent in the administra
tive functions of the institutional head results only in the
withdrawal of privileges, this is not the exercise of a power
which so affects the civil rights of the prisoner as a person as to
endow the withdrawal or interference with the character of a
judicial act.
There is no allegation that the said Board has
received or proposes to receive in the future any
documents or evidence or other information that it
is not entitled to or will not be entitled to; that any
recommendations it has made or in future proposes
to make to the "head of an institution" is not or
will not be one that they are entitled to make; or
that they have in the past or that they propose in
the future to do or perform anything unlawful.
Section 18(a) of the Federal Court Act pre
scribes the relief that may be given by the Trial
Division of the Federal Court. It reads as follows:
18. The Trial Division has exclusive original jurisdiction
(a) to issue an injunction, writ of certiorari, writ of prohibi
tion, writ of mandamus or writ of quo warranta, or grant
declaratory relief, against any federal board, commission or
other tribunal;
As a consequence, the declaratory relief sought
of the Court in this action under section 18 of the
Federal Court Act in its capacity as an original
remedy and not as a supervisory remedy premised
on the facts alleged in the statement of claim, is
therefore without merit. Specifically, there is no
basis in law for any judicial declaration after trial
(1) that the said Board is proposing to do anything
unlawful in conducting, in relation to the plain
tiffs, its review and making its recommendations to
the "institutional head(s)" pursuant to the explicit
power given to it by section 2.30 of the Penitentia
ry Service Regulations; (2) that the plaintiffs
should be given notice of any future hearings of
such Board; (3) that production of any documents
or other evidence that may be put before such
Board at any future meetings should be given to
the plaintiffs; and (4) that the plaintiffs or their
representatives may attend or participate in any
future hearings of such Board.
There is also no basis on the facts alleged in the
statement of claim for this Court to issue any
order of prohibition, certiorari or mandamus after
trial for any relief asked for in the prayer.
Finally, any order or act or proposed order or
act of the "institutional head(s)" made pursuant to
the enabling power of section 2.30 of the Peniten
tiary Service Regulations being purely administra
tive cannot in any way contravene the Canadian
Bill of Rights, S.C. 1960, c. 44 (cf Mitchell v.
The Queen (1976) 24 C.C.C. (2d) 241).
Accordingly, ORDER TO GO that the statement
of claim be and it is hereby struck out and the
action dismissed with 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.