Judgments

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Decision Content

T-3250-76
Jack Clinton Magrath (Plaintiff)
v.
The Queen (Defendant)
Trial Division, Collier J.—Vancouver, September 7, 8, 9, 12 and 13; Ottawa, November 8, 1977.
Imprisonment — Action for declaratory relief on five issues — Conviction by Disciplinary Board alleged to be improper Transfer to another penitentiary allegedly effected outside of prescribed procedures — Loss or detention of property termed unlawful — Prison transfer to serve dissociation punishment contended to be cruel and unusual, especially after serious riot occurred — Interest on plaintiff's personal money, and pay deducted, and appropriated, without consent — Whether or not declaratory relief should be granted for each issue Penitentiary Act, R.S.C. 1970, c. P-6, ss. 13, 29 — Penitentia ry Service Regulations, SOR/62-90, ss. 2.08, 2.22, 2.26, 2.28, 2.29.
Plaintiff, a penitentiary inmate, seeks declaratory relief con cerning five issues. A Disciplinary Board conviction was argued to have been improper and a transfer to another institution to have been effected outside prescribed procedures. The loss of certain personal property and the detention of other possessions were alleged to have been unlawful. Also, the transfer to the British Columbia penitentiary to serve dissociation punishment was described as cruel and unusual punishment, especially after a serious riot occurred there. Finally, bank interest on personal money had been credited and portions of pay had been trans ferred to an inmate fund without plaintiff's consent.
Held, the action is allowed in part. The Commissioner's directives are not "law". By section 18, the Trial Division has jurisdiction to entertain a claim to set aside a federal board's administrative action not required to be made on a judicial or quasi-judicial basis. The plaintiff did not receive a fair hearing and expungement will have some practical effect for it legally will erase the conviction from plaintiff's institutional record. The transfer process, however, is quite different. An inmate has no right to appear in person or to be heard concerning transfers and is not entitled to reasons why one is carried out or refused. Plaintiff's transfer to the British Columbia penitentiary, and his serving his dissociation punishment there, was merely inciden tal to an administrative decision based on previous conduct. Neither the transfer nor the occurrence of a serious riot there amounts to cruel and unusual punishment. The establishment of rates of pay is an administrative decision made by the Commissioner. There is no right in law to any pay at all, and logically, no right to challenge the deduction of a day's pay. Similar reasoning applies to the complaint concerning the retirement of the previously incurred debt. The Penitentiary Service Regulations and Commissioner's directives, however, do not authorize the transfer of interest earned on an inmate's personal money without consent. An accounting is possible.
Plaintiff's other claims concerning personal property loss or deprivation were not proved, except for a short-term depriva tion of typing paper that does not warrant compensation.
In re Martineau [1978] 1 F.C. 312, applied. Martineau and Butters v. Matsqui Institution Inmate Disciplinary Board [ 1978] 1 S.C.R. 118, applied. Minister of Manpow er and Immigration v. Hardayal [1978] 1 S.C.R. 470, followed. Re Anaskan and The Queen (1977) 15 O.R. (2d) 515, followed. McCann v. The Queen [ 1976] 1 F.C. 570, distinguished.
ACTION. COUNSEL:
Jack Clinton Magrath on his own behalf. J. Watchuk for defendant.
SOLICITORS:
Jack Clinton Magrath on his own behalf.
Deputy Attorney General of Canada for defendant.
The following are the reasons for judgment rendered in English by
COLLIER J.: The plaintiff is, and at material times was, an inmate of a federal penitentiary. This is not his first incarceration. This action is brought in person. The original statement of claim was filed August 16, 1976. The defendant neglect ed to file a defence within the prescribed time. As a result of interlocutory motions, an amended statement of claim was filed December 21, 1976. I have recorded those dates for this reason. Between the filing of the two statements of claim a serious riot occurred at the British Columbia penitentiary. The plaintiff was, at that time, an inmate of that institution.
The plaintiff claims declaratory relief in respect
of five matters:'
(a) On June 21, 1976, while an inmate of Mountain Institution in British Columbia, he was convicted by a Disciplinary Board of a "flagrant or serious disciplinary offence". The charge was that he had failed "... to obey a lawful order of a penitentiary officer. (Refused a direct order)." The punishment was 10 days S.C.U., HB/RD. 2 The plaintiff asserts the con viction was improper; the Board did not comply with the procedure laid down for such hearings.
(b) On the same day the plaintiff was trans ferred from Mountain Institution to the British Columbia penitentiary. The plaintiff says this transfer was effected without complying with prescribed procedures. In particular, he was not, before transfer given a hearing, nor was he ever informed of the reasons for the transfer.
(c) The plaintiff alleges that while he was at Mountain Institution he had certain personal possessions. When he was transferred to the British Columbia penitentiary some of those articles were missing. Certain others were, he says, unlawfully detained; they were not returned for over a year. The plaintiff seeks a declaration he was improperly and unlawfully deprived of the latter possessions. In addition, punitive damages are sought.
(d) The plaintiff alleges his transfer and con finement to the British Columbia penitentiary was, particularly because of the riot, "cruel and unusual punishment." A declaration accordingly is sought.
(e) While the plaintiff was at Mountain Institu tion he, and other inmates, earned prescribed pay. The plaintiff alleges some portions of this
' The Queen is the only defendant named. The Attorney General of Canada is not a party. The defendant did not raise any objection to the effect that in an action for declaratory relief (such as this) the Attorney General should be the proper party defendant. If the objection had been raised, and if I had agreed with it, I would have ordered the Attorney General be substituted or added as a defendant.
2 This means 10 days dissociation in a solitary confinement unit, with a hard bed and a reduced diet.
pay were improperly, and without his consent, 'transferred to the Inmate Welfare Fund. He says this money, along with that of other inmates, was used to retire a previous debt attributed to the Welfare Fund. He says the indebtedness was incurred through the fault of the staff of the institution. Finally, on this aspect, the plaintiff claims that bank interest, on personal monies, was unlawfully, and without his consent, credited to the Inmate Welfare Fund.
I turn now to the facts.
The plaintiff is 60 years old. He was convicted of trafficking in heroin and, in May of 1975, was sentenced to 9 years. He was first at the British Columbia penitentiary. It is a maximum security prison. In September 1975 he was transferred to Matsqui Institution, near Abbotsford, B.C. It is a medium-maximum security unit.
On March 25, 1976 he was transferred to Mountain Institution, at Agassiz, B.C. The latter is a medium security prison. In each case, as the security classification of the prison lessens, the privileges given the inmates are somewhat better. The setting, too, is more desirable. The evidence is that the plaintiff was never, at any time, a security risk in the sense he was likely to escape or lead attempts to that end.
Not too long after his move to Mountain Institu tion, the plaintiff was made the editor of a house newspaper. It was a new project. It was called "Con-Versely".
At Mountain Institution there was an Inmates' Welfare Committee. Its members were inmates elected by their fellow prisoners. There was, as well, a fund called the Inmate Welfare Fund. Some of its funds come from inmates' earnings. Each inmate is paid a prescribed daily rate. The applicable section of the Penitentiary Service Regulations is 2.26:
2.26 (1) The Commissioner may, with the approval of the Treasury Board, authorize rates of pay for inmates, which rates shall be designed to encourage them to become better citizens upon release from custody and, in particular, to
(a) provide greater incentive to inmate workers;
(b) encourage inmates to accumulate reasonable financial reserves for the day of their release;
(c) motivate inmates to work constructively and apply them selves to learning trade skills; and
(d) prepare inmates for employment in free society in accordance with the requirements of that society.
(2) Pay at the rates authorized in accordance with subsec tion (1) shall be
(a) paid to inmates in such manner,
(b) applied to such purposes,
(c) subject to such forfeitures and deductions, and
(d) accounted for in such manner,
as may be prescribed by directives.
Commissioner's Directive No. 232 provides there shall be deducted from each inmate one day's pay per month and that amount deposited in the Inmate Welfare Fund. While the plaintiff was at Mountain Institution three days' pay, a total of $2.10, was transferred from the plaintiff's credit to the credit of the Inmate Welfare Fund.
No consent was ever obtained from the plaintiff authorizing this deduction or transfer.
The Fund also derived monies from donations and from profits on the sale of coffee. The Inmates' Welfare Committee, if it wished to spend funds for certain purposes (for example a special dinner for families and friends of inmates), or amenities, would outline its request to the adminis tration of the institution. There were two steps:
(1) The purpose of the request was reviewed. If it appeared desirable, it was approved by the administration.
(2) The administration then ascertained if there were sufficient funds in the Fund. If so, the necessary funds were frozen pending receipt of an actual invoice. In the case of Mountain prison the actual accounting was done at Mat- squi Institution.
At one time at Mountain Institution the method of obtaining supplies for the purposes outlined was to carry charge accounts with local merchants. This
policy was, before December 1975, changed to a cash basis.
In December of 1975 (before the plaintiff came to Mountain Institution), a member of the then Inmates' Welfare Committee somehow managed to order food and other materials, on a credit basis, from merchants. The two-step procedure outlined above had not been followed. In the early part of the next year it became apparent the amount owed to suppliers exceeded the funds to the credit of the Inmate Welfare Fund. The sum involved was approximately $1,500. The adminis tration decided it would have to be made good by the inmates. It took until sometime in May 1976 before the outstanding bills were paid.
The practical result of this was a cut-back in entertainment and other amenities which were usually provided by means of Inmate Welfare Fund monies. The plaintiff says, with some logic, that he and others who were not in Mountain Institution in the Christmas season of 1975 never shared in the largesse of the former Inmates' Welfare Committee; but the compulsory deduc tions from his pay after March 25, 1976 were, with deductions from other inmates, used to retire the previous over-expenditures.
The evidence clearly indicates there was friction and discontent between inmates and the institution staff in respect of the decision that the outstanding bills would have to be retired solely by the inmates.
I go now to another matter.
On June 18, 1976 the plaintiff was directed by a security officer to report to Ms. Alix Jenkins, the Head of Socialization. At this point in time the plaintiff had apparently become disgruntled with what he thought was lack of progress and coopera tion in turning out the prison newspaper. He had indicated his displeasure. I do not know, however, the specific reason why, on that day, he was told to report to Ms. Jenkins. When he was so directed he told the security officer that Ms. Jenkins could "go fuck herself". The officer, in accordance with procedure, filed an "officers report" (Ex. 7A). 1 quote the euphemistic description, there set out, of what had occurred:
At approximately 1454 hrs, in the vicinity of Hut #10 I ordered Inmate McGrath to report to Ms. Jenkins. He declined stating that he would talk to the director or Mr. Wynn Smith and that Ms. Jenkins could go and perform an un -natural sex act upon herself.
At this stage I reproduce the section of the statute, the regulations, and the Commissioner's Directive dealing with disciplinary offences:
Penitentiary Act
29. (1) The Governor in Council may make regulations
(a) for the organization, training, discipline, efficiency, administration and good government of the Service;
(b) for the custody, treatment, training, employment and discipline of inmates; and
(c) generally, for carrying into effect the purposes and provi sions of the Act.
(2) The Governor in Council may, in any regulations made under subsection (1) other than paragraph (b) thereof, provide for a fine not exceeding five hundred dollars or imprisonment for a term not exceeding six months, or both, to be imposed upon summary conviction for the violation of any such regulation.
(3) Subject to this Act and any regulations made under subsection (1), the Commissioner may make rules, to be known as Commissioner's directives, for the organization, training, discipline, efficiency, administration and good government of the Service, and for the custody, treatment, training, employ ment and discipline of inmates and the good government of penitentiaries.
Penitentiary Service Regulations
2.28. (1) The institutional head of each institution is respon sible for the disciplinary control of inmates confined therein.
(2) No inmate shall be punished except pursuant to an order of the institutional head or an officer designated by the institu tional head.
(3) Where an inmate is convicted of a disciplinary offence the punishment shall, except where the offence is flagrant or serious, consist of loss of privileges.
(4) The punishment that may be ordered for a flagrant or serious disciplinary offence shall consist of one or more of the following:
(a) forfeiture of statutory remission;
(b) dissociation for a period not exceeding thirty days,
(i) with a diet, during all or part of the period, that is monotonous but adequate and healthful, or
(ii) without a diet;
(c) loss of privileges.
2.29. Every inmate commits a disciplinary offence who
(a) disobeys or fails to obey a lawful order of a penitentiary officer,
Commissioner's Directive No. 213 (Ex. 17)
8. SERIOUS OR FLAGRANT OFFENCES
a. Serious or flagrant offences may include:
(9) disobeys or fails to obey a lawful order of a penitentia ry officer;
b. If the inmate is found guilty of a serious or flagrant offence, punishments shall consist of one or more of the following (in accordance with P.S.R.):
(1) forfeiture of statutory remission;
(2) dissociation for a period not to exceed thirty days with the normal diet or with the dissociation diet (as per D.I. No. 667), during all or part of the period;
(3) loss of privileges.
13. OFFENCE REPORTS
b. If it is determined that the offence is of a minor nature, the officer designated to award punishment (in accordance with para. 5) shall, after consultation with appropriate staff members, award punishment in the form of forfeiture of one or more privileges for a specified period. The disposing of minor charges will be as informal as possible.
c. If the investigation and findings indicate that the offence is flagrant or serious in nature, the report shall be forwarded to the Director of the institution who shall proceed in accord ance with the provisions of paragraph 14.
14. HEARING OF CHARGES FOR SERIOUS OR FLA GRANT OFFENCES
a. The Director of the institution, or an officer designated by him, not below the level of Assistant Director, shall hear all cases where the offence is flagrant or serious in nature and, if the inmate is found guilty, shall decide the appropriate punishment. Two staff members may be appointed to assist in a hearing, but their role shall be as advisers only.
b. The hearing of an inmate who is under charge shall commence, as far as is practicable, within three working days from the date of the offence but may, when circumstances require, be adjourned from time to time.
c. No finding shall be made against an inmate charged under Section 2.29 of the P.S.R. for a serious or flagrant offence unless he:
(1) has received written notice of the charge in sufficient detail so that he may direct his mind to the occasion and events upon which the charge is made, and a summary of the evidence alleged against him;
(2) has received the written notice and summary referred to in paragraph (1) at least 24 hours before the beginning of the hearing, so that he has reasonable time to prepare his defence;
(3) has appeared personally at the hearing so that the evidence against him was given in his presence;
(4) has been given an opportunity to make his full answer and defence to the charge, including the introduction of relevant documents, and the questioning and cross-exami nation of the witnesses which shall be done through the presiding officer; the inmate is entitled to call witnesses on his own behalf, except that, where the request for the attendance of any such witness is believed by the presiding officer to be frivolous or vexatious, the presiding officer may refuse to have such witness called and will advise the inmate of the reason for the refusal.
d. The decision as to guilt or innocence shall be based solely on the evidence produced at the hearing and, if a conviction is to be registered, it can only be on the basis that, after a fair and impartial weighing of the evidence, there is no reasonable doubt as to the guilt of the accused.
Pursuant to the Regulations and Commission er's Directive No. 213 a charge was prepared under paragraph (a) of section 2.29 of the Regula tions (see above). I have earlier set out that specif ic charge. It had been determined the offence would be categorized as flagrant or serious. Mr. G. V. Young, the Assistant Director of Technical Services, was designated to hear the charge and decide the appropriate punishment. At one time Mr. Young had been involved in hearing a large number of disciplinary charges, as many as 25 or 30 in a year. By 1976 he was only hearing 2 or 3.
On June 21, 1976 the plaintiff was brought before Mr. Young.
At this point I shall recount Young's version as to the procedure followed. The offence as described under heading 3 of Ex. 7 was read out to the plaintiff. The officer's report, from which I have already quoted, was also read. The plaintiff was asked to plead. He pleaded not guilty. Young then asked the plaintiff "... to state his case ..." as to why he was pleading not guilty. A discussion then ensued, with the plaintiff taking the position the direction to report to Ms. Jenkins was not a "direct order". The plaintiff was then asked if he had anything further to say. The answer was No. Magrath was then escorted out. Young deliberated and concluded the plaintiff was guilty. The plain-
tiff was recalled. The decision was given. The punishment imposed was 10 days' dissociation.
The officer who had given the order to Magrath was not present during this hearing. Nor were the other officers who witnessed the incident and who signed Ex. 7A. They did not, at any time, give oral evidence. The plaintiff was not given any opportu nity to question them.
Mountain Prison did not have a solitary confine ment unit. Matsqui Institution and the British Columbia Penitentiary did. Normally, an inmate of Mountain Prison, directed to serve solitary con finement, was transferred to Matsqui for that pur pose. On completion of the term he was returned to Mountain.
In this case the director of Mountain Institution, Mr. Mort, because of difficulties he felt the plain tiff had been causing, and because of this particu lar disciplinary offence, decided to request the plaintiff be transferred to the British Columbia Penitentiary. That was done by telephone. The request was acceded to by Mr. A. A. Byman, the Director of the Regional Reception Centre, Pacific Region. The plaintiff was not told he was being transferred to the British Columbia Penitentiary. Nor was he told, at any time, the reason for his transfer. Nor was the matter of the transfer referred to the Regional Classification Board.
Immediately following the conclusion of the dis ciplinary hearing, the plaintiff was taken to a custody cell. He was held there until all necessary arrangements for transfer were completed. In the prison jargon, he was "scooped". Security officers were directed to go to his cubicle in the living quarters to collect his belongings. I was told that word of a scoop quickly spreads through the prison population. A scooped inmate's personal posses sions are often, at that stage, stolen.
The security officers found, among the plain tiff's personal articles, two sheets of aluminum, an aluminum ruler, and some typing paper. It was
decided these articles belonged to the penitentiary service. They were not sent with the plaintiff to the British Columbia Penitentiary. The officers did not see any fountain pen or chess set. The plaintiff testified they were in his cubicle before he went before the disciplinary board.
There was testimony, which I accept, that while the plaintiff was at Matsqui Institution his wife had brought him some sheets of aluminum and an aluminum ruler. These materials were for use in a copper-working hobby the plaintiff had. His wife also brought him some typing paper. When he went from Matsqui Institution to Mountain Prison, what was left of all these materials accom panied him.
The plaintiff complained by letter, quite soon after being admitted to the British Columbia Peni tentiary, about his missing effects. At first, the administration at Mountain Prison took the view that the plaintiff had the onus of proving owner ship. The institution then made inquiries. As I understood the evidence, the typing paper was determined to be the plaintiff's. It was returned to him in November or December of 1976.
The defendant does not concede the aluminum sheets and the ruler were the plaintiff's property. The sheets are said to be a different size from those which the plaintiff's wife brought to Matsqui Institution. The administrative staff at Mountain Prison decided finally, rather than argue the point, to return those particular articles. They were deliv ered to Matsqui Institution (where the plaintiff then was) in August of this year.
When the plaintiff was moved to the British Columbia Penitentiary on June 21, 1976 he was placed in the punishment unit. After three weeks he was moved to the third tier of the East wing. He was assigned to work in the law library. He was not, for some reason, placed in the reception centre. If he had been put there, he would not have been in the East wing.
In the early fall of 1976 tension began to de velop in the British Columbia Penitentiary. On September 9, 1976 the staff instituted a ban on overtime work. This made the institution almost inoperable; the director declared an emergency situation. The tension grew higher. On September 24, 1976 a small group of inmates did damage to some cells. On September 27 a riot broke out in the East wing. There was a great deal of damage done. There was some hostage-taking. Undoubted ly the East wing was a dangerous place to be. There was risk of injury or even death.
Order was restored on October 1, 1976. Fortu nately there had been no injuries or loss of life. The East wing was not habitable. Approximately 250 inmates, including the plaintiff, were moved into the gymnasium. They slept on the floor. Hot meals were not available for some weeks.
The plaintiff was not an active participant in the riot.
A large number of the inmates were, in October and later, seen by the Classification Board in respect of transfer. Many, including the plaintiff, were recommended for transfer. The plaintiff was, in fact, moved to Matsqui Institution on January 5, 1977.
I shall complete the history. The Regional Clas sification Board, in May or June of this year, directed the plaintiff be transferred to Agassiz Work Camp. That institution is lower on the secu rity scale than Matsqui. There are better sur roundings and more privileges, such as temporary absences. At the date of this trial, the plaintiff had not been moved to Agassiz Work Camp. Eye surgery had been performed at Matsqui. Agassiz does not have a hospital. Once the plaintiff receives a medical clearance his transfer will be carried out.
There is one final factual matter. Any personal monies that accompany an inmate to an institution are placed to his credit in a fund called the Inmate Trust Fund. Any monies received by him while in custody, other than pay, are credited to him in the
same fund. The relevant section of the Regulations is 2.22:
2.22. (1) All moneys that accompany an inmate to the institution and all moneys that are received on his behalf while he is in custody shall be deposited to his credit in a trust account to be known as the Inmate Trust Fund.
(2) No moneys in the Inmate Trust Fund that stand to the credit of an inmate shall be paid out unless
(a) the inmate gives a direction in writing authorizing the payment out, and
(b) the institutional head or other authorized officer certifies that, in his opinion, the payment is calculated to assist in the reformation and rehabilitation of the inmate.
(3) No moneys in the Inmate Trust Fund standing to the credit of an inmate shall, except where a family relationship exists, be transferred to the credit of another inmate.
The bank holding the Inmate Trust Fund, from time to time, pays interest on some of the monies in this account. The interest is then apportioned among the various institutions in the Region. Divi sional Instruction No. 834 (Ex. 22) provides:
Interest
3. Interest, if any, paid by the bank on deposits in the Inmate Trust Fund, shall be transferred semi-annually to the Inmate Welfare Fund, in accordance with the directive on Inmate Trust Fund.
In the plaintiff's case, his personal balance in the Inmate Trust Fund from February through November 1976 varied from a low of $14.18 to a high of $120.05 (Ex. 24). No evidence was given as to the plaintiff's share of any bank interest. But I think it fair to assume his personal funds had earned some interest.
No consent to transfer of this interest was ever obtained from the plaintiff, or from other inmates. The evidence discloses that at one time consents were automatically obtained. This was stipulated in the "manual". At one point when a new manual was issued, the former direction, for some reason, did not appear.
I turn now to the claims advanced by the plaintiff.
(a) The Failure to Comply with the Prescribed Procedure at the Disciplinary Hearing
There is, at the outset, an issue as to the juris diction of this Court. That issue is whether the Trial Division can, by virtue of section 18 of the Federal Court Act, entertain a claim for the set ting aside (in effect) of an administrative decision made by a federal board when the decision was not required to be made on a judicial or quasi-judicial basis.
In my view there is jurisdiction.
Mahoney J. in In re Martineau 3 , decided the Trial Division of this Court had jurisdiction by way of certiorari for the purpose of quashing an allegedly faulty conviction of a penitentiary disci plinary board. The allegations made by the inmate in that case were somewhat similar to the facts here. It was said there was failure to comply with the procedural provisions set out in Commission er's Directive 213. Mahoney J. referred to the decision of the Supreme Court of Canada in Mar- tineau and Butters v. Matsqui Institution Inmate Disciplinary Board 4 . There, four members of that Court had held Commissioner's directives were not "law" 5 .
Mahoney J. went on at pages 317-318:
The disciplinary offences of which the appellant was convict ed were created by law. The punishment imposed was author ized by law. The law required that, as a precondition to the imposition of the punishment, he be "convicted" of the offence. I am mindful of, and accept, the caveat of Chief Justice Jackett not to place too much significance on the fact that the phraseology of criminal proceedings is imported into the regu lations. Nevertheless, it is manifest that the law envisages some process by which an inmate is to be determined to have committed a disciplinary offence, prescribed by law, as a condition precedent to the imposition of a punishment, also prescribed by law. The law, the statute and regulations which prescribe both offence and punishment, is silent as to that process.
and at pages 318-319:
I take it that in Canada, in 1975, a public body, such as the respondent, authorized by law to impose a punishment, that
3 [1978] 1 F.C. 312.
4 [1978] I S.C.R. 118 (hereinafter "Martineau and Butters").
5 The four dissenting members of the Court took the opposite view. The ninth member adopted the reasons of Jackett C.J. in the Federal Court of Appeal. The latter did not specifically deal with the point.
was more than a mere denial of privileges, had a duty to act fairly in arriving at its decision to impose the punishment. Any other conclusion would be repugnant.
I agree with the observations and conclusions of Mahoney J.
In the Federal Court of Appeal, Jackett C.J. had said of disciplinary decisions: 6
For that reason, I conclude that the disciplinary decisions here in question, even though of a penal nature and even though they are required by administrative rules to be made fairly and justly, are not decisions that are required to be made on a judicial or quasi-judicial basis within the meaning of those words in section 28 of the Federal Court Act.
Pigeon J. in the Supreme Court of Canada (speaking for himself and three others) said, in respect of Jackett C.J.'s observation: 7
With respect, I find it difficult to agree with the view that Directive No. 213 merely requires that a disciplinary decision such as the impugned order be made fairly and justly.
The most recent decision which, in my view, further supports the jurisdiction of the Trial Divi sion to intervene in matters of this kind, is Minis ter of Manpower and Immigration v. Hardayal 8 . In that case the Minister granted a permit to Hardayal permitting him to enter Canada and remain for a specified period. Before the expiry date the Minister cancelled the permit. The Feder al Court of Appeal decided Hardayal ought to have been given, before the cancellation by the Minister, a reasonable opportunity to make sub missions. In doing so the Federal Court of Appeal concluded the decision of the Minister was one to which section 28 of the Federal Court Act applied. The Supreme Court of Canada held the decision of the Minister to cancel was a decision "of an administrative nature"; it was not required to be made or carried out on a judicial or quasi-judicial basis. At pages 478-479 Spence J., giving the judgment of the Court, said:
6 [1976] 2 F.C. 198 at p. 211.
7 [1978] 1 S.C.R. 118 at p. 127.
8 [1978] 1 S.C.R. 470. See also Howarth v. National Parole Board [1976] 1 S.C.R. 453, per Pigeon J. at pp. 471-472.
Such power was, in the opinion of Parliament, necessary to give flexibility to the administration of the immigration policy, and I cannot conclude that Parliament intended that the exercise of the power be subject to any such right of a fair hearing as was advanced by the respondent in this case. It is true that in exercising what, in my view, is an administrative power, the Minister is required to act fairly and for a proper motive and his failure to do so might well give rise to a right of the person affected to take proceedings under s. 18(a) of the Federal Court Act but, for the reasons which I have outlined, I am of the opinion that the decision does not fall within those subject to review under s. 28 of the said Federal Court Act.
I go now to the issue of whether, in the circum stances earlier outlined, the disciplinary board pre sided over by Mr. Young acted fairly in coming to its decision. In my view it did not.
Even though Commissioner's Directive 213 does not have the force of law, 9 it provides to my mind,
9 In these reasons I shall proceed on the basis that Commis sioner's directives are not "law". That was the conclusion of Pigeon J. in Martineau and Butters, concurred in by three other Judges. Laskin C.J.C., for himself and three other Judges, said at p. 121:
What then remains in issue that would persuade the majority of the Federal Court of Appeal to refuse jurisdic tion? That Court limited its consideration of the s. 28 application to that question and did not consider the merits of the applicants' attack on the decision of the respondent. The nub of the matter is, thus, as my brother Pigeon noted, whether the directives prescribing what I may compendiously call natural justice for the appellants were made pursuant to "law" and were, therefore, to be observed by the penitentiary authorities.
As noted in footnote 5 (supra), Judson J. agreed with the reasons of Jackett C.J. in the Court below. The effective result was that the appeal was dismissed.
Jackett C.J. did not specifically indicate his view as to whether the directive was or was not "law". But it seems to me, when his reasons are considered as a whole and contrasted with the reasons of Ryan J. who dissented, the inference, (as Laskin C.J.C. suggests), must be that the majority decision in the Federal Court of Appeal did not consider the directive to be "law".
I think acceptance of the view put forward by Pigeon J., until the difficulty is resolved by higher Courts, is the most realistic approach I, as a Trial Judge, should take.
For a very recent case comment on the Martineau and Butters case, and the status of Commissioner's directives, see H. N. Janisch "What is Law, etc." (1977) 55 Can. B. Rev. 576.
a guide to this Court in determining whether the manner in which the disciplinary board came to its decision was carried out fairly. 10 The Directive lays down a relatively simple procedure, somewhat akin to that followed at the hearing of ordinary crimi nal offences. Notice of the so-called charge is to be given. The inmate then has an opportunity to prepare his defence. He must appear personally at the hearing. All that was done in the plaintiff's case.
The purpose of a personal appearance by the inmate is obviously for two reasons: the evidence be given in his presence; he be given an opportu nity to make a full defence, including the question ing of his own witnesses and the cross-examination of other witnesses.
In the plaintiff's case the salutary directions aimed at producing fairness were disregarded. After the charge was read and the plaintiff had indicated his defence was one of not guilty, he was then questioned as to why he was taking that position. No oral evidence was presented in proof of the charge. The plaintiff was given no right to cross-examine the officers who had signed the report. In my opinion, the tribunal failed to act "fairly". "
It matters not that the facts, as they ultimately came out in this Court, suggest the plaintiff was probably guilty of the disciplinary charge. What does matter is that he did not have a fair hearing before the tribunal charged with determining guilt or innocence, and imposing what could be severe punishment. The Penitentiary Service publicly recognizes that dissociation is a severe penalty. Paragraph 16(c)(1) of Directive 213 so states.
The next matter is whether the plaintiff, in the discretion of the Court, ought to be granted the
10 See the remarks of Laskin C.J.C. in Martineau and But ters at p..124:
How justly or fairly such persons must be dealt with depends on the nature of the tribunal and on the issues confided to it. Where the procedure to be followed is spelled out, the Court is relieved of the obligation of determining what natural justice demands.
" The expression used in the Hardayal decision.
declaratory relief he asks. Declaratory relief, standing alone, should only be given after careful consideration and in a clear case. Further, a court will usually not grant such relief where the decla ration would be devoid of legal effect. In this case the plaintiff's hearing is over and he has long since undergone his punishment.
But I am told a conviction of a disciplinary offence becomes part of an inmate's institutional record. It follows him wherever he goes in the penitentiary system. It is taken into consideration in respect of certain matters such as transfers ' 2 or temporary absences. The latter are referred to in the jargon as T.A.'s. 13 In this case it is my view a suitable declaration or declarations might legally erase the conviction from the plaintiff's institution al record. In any event I am satisfied expungement will have some practical effect. 14
(b) The Transfer of the Plaintiff from Mountain Institution to the British Columbia Peniten tiary without a Hearing and without Comply ing with Prescribed Procedures
The relevant provisions of the Penitentiary Act dealing with transfer of inmates appear to be subsections 13(2),(3) and (4). I set them out:
13. ...
(2) The Commissioner may make rules naming the peniten tiaries in which, in the first instance, persons sentenced or committed in any part of Canada to penitentiary shall be received.
(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).
(4) Where a person has been sentenced or committed to penitentiary, the officer in charge of the regional headquarters for the region in which the person is confined may, by warrant under his hand, direct the transfer of that person to any other penitentiary within the region.
12 See Penitentiary Service Regulations, s. 2.04.
13 See Penitentiary Act, R.S.C. 1970, c. P-6, s. 26.
14 See Merricks v. Nott-Bower [1964] 1 All E.R. 717.
I have difficulty with some of these provisions and with certain directives. Pursuant to subsection 13(3) the Commissioner issued Directive No. 110 (Ex. 13). It, in paragraph 3(a), authorizes "Regional Directors" to direct "by warrant under their hand", the transfer of an inmate from one penitentiary to any other penitentiary in Canada. The same directive, in paragraph 3(b), provides that certain other kinds of directors may order the transfer of an inmate from one penitentiary to another, but only within their particular region.
Mr. Byman, who signed the warrant of transfer on June 21, 1976, was the Director of the Regional Reception Centre in the Pacific Region. He does not, so far as I can see, fall within the class of directors referred to in paragraph 3(b). Exhibit 10, dated March 1, 1977, is a communication from the Regional Director, Pacific Region, to Mr. Byman. The opening paragraph reads as follows:
Please consider this communication to be an official letter of delegation to you from this office with respect to Commission er's Directive 110, to empower you to issue warrants of transfer.
I can find nothing in subsection 13(4) of the statute, the Regulations, or Directive 110, permit ting the Regional Director to delegate his power.
It is said Mr. Byman was properly designated by virtue of Ex. 10. That letter of delegation is dated after the impugned transfer here. But I infer Mr. Byman had been so delegated at the relevant time. He has been the Director of the Regional Recep tion Centre since October 1, 1973. He testified that, as such, he has been responsible for all transfers within the Pacific Region and into other regions.
In Martineau and Butters, Pigeon J. described the legal effect and operation of Commissioner's directives as follows: 15
I have no doubt that the regulations are law. The statute provides for sanction by fine or imprisonment. What was said by the Privy Council with respect to orders in council under the War Measures Act in the Japanese Canadians case ([1947] A.C. 87), at p. 107, would be applicable:
15 [1978] 1 S.C.R. 118 at p. 129.
The legislative activity of Parliament is still present at the time when the orders are made, and these orders are "law".
I do not think the same can be said of the directives. It is significant that there is no provision for penalty and, while they are authorized by statute, they are clearly of an administrative, not a legislative nature. It is not in any legislative capacity that the Commissioner is authorized to issue directives but in his administrative capacity. I have no doubt that he would have the power of doing it by virtue of his authority without express legislative enactment. It appears to me that s. 29(3) is to be considered in the same way as many other provisions of an administrative nature dealing with departments of the adminis tration which merely spell out administrative author ity that would exist even if not explicitly provided for by statute.
In my opinion it is important to distinguish between duties imposed on public employees by statutes or regulations having the force of law and obligations prescribed by virtue of their condition of public employees. The members of a disciplinary board are not high public officers but ordinarily civil servants. The Commissioner's directives are no more than directions as to the manner of carrying out their duties in the administration of the institution where they are employed... .
It then appears to me that if Commissioner's Directive 110 is not "law", 16 it was nevertheless specifically authorized by subsection 13(3) of the Penitentiary Act or was the kind of administrative direction which Pigeon J. considered the Commis sioner could issue without specific legislative per mission, but merely by virtue of his general au thority. If that is so, there was, nevertheless, no evidence before me that the Commissioner had directed that any officer of Mr. Byman's category might issue warrants of transfer. Exhibit 10, the Regional Director's purported delegation, does not correct the matter. 17
It is not, as I see it however, necessary to express any final opinion on this problem. If (and 1 merely assume this) the Byman transfer warrant was technically unauthorized, what legal right of the inmate plaintiff, for which practical legal redress can be given, has been invaded or impinged? If some kind of right was affected, what can now be
16 Strictly speaking, the Supreme Court of Canada was deal ing with the expression "required by law" found in subsection 28(1) of the Federal Court Act. But as I read the judgments, the expression "law" was considered in its general sense.
17 I have not overlooked 1.02(d) of the Regulations: It is there stated that a Commissioner's directive includes any rule, regulation or order issued by the Commissioner or on his behalf under his authority.
done? The plaintiff was physically transferred to the British Columbia Penitentiary. From there he went to Matsqui Institution, a medium security prison. When he has medical clearance, his cur rently suspended transfer to Agassiz Work Camp will be carried out. There, the setting, atmosphere, privileges and easier security measures will be, I understand, at least equivalent to or better than those at Mountain Prison.
I shall later return to the questions I have posed.
The real complaint put forward by the plaintiff in argument was in respect of the manner in which his transfer from Mountain Prison was decided upon. He was not given notice a transfer was being considered. He was not given a hearing. The ques tion was not referred to the Regional Classification Board. He was never given any reasons. It was only after he started this litigation that he became aware of those reasons. 18 The plaintiff argues the prison staff did not comply with laid-down procedures.
He refers to Penitentiary Service Regulations section 2.03 and Divisional Instruction 1024. The Regulation is as follows':
2.03. 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.
Divisional Instruction 1024 deals with the trans fer of inmates within a region. I can find no au thority in the Penitentiary Act or in the Regula tions for these divisional instructions. 19 I proceed on the basis they are not "law", on which the plaintiff might, perhaps, be able to found some legal right. At best, they possibly have the same
18 A memo "To Whom It May Concern", dated November 29, 1976, signed by Mr. Mort (Ex. 12).
19 Again I have not overlooked Regulation 1.02(d). Nor have I overlooked Regulation 3.06. I do not find Ex. 23 (Divisional Instruction No. 315—"Directives Management") to be ade quate authority, or of assistance.
status and authority as Pigeon J. ascribed to Com missioner's directives.
The Instruction provides for the setting up of a Regional Classification Board. The Board is charged with assessing inmates regarding their suitability for transfer. The training needs of the inmate are asserted to be the primary consider ation. "Criteria for transfer" are set out. The Instruction applies both to transfers to reduced security institutions and to the return of inmates to maximum security institutions.
In the latter case, paragraph 3(c) provides:
(c) Except in reasons of emergency, the Institutional Head who recommends that an inmate be returned to maximum security will advise the Chairman of the Board of his reasons, in writing and the case will be considered by thelioard at the following meeting. The recommendation will then be forwarded to the authority responsible for authorizing transfers.
Here Mr. Mort, the Institutional Head, and Mr. Byman decided the proposed transfer of the plain tiff was for reasons of emergency; it was not necessary therefore to have the plaintiff's case considered by the Regional Classification Board.
Emergency transfer to maximum security is, I am told, not confined to situations where there is a serious security risk such as possible escape, or suspected plots to do so. It includes those where an inmate is, in the view of the Institutional Head, in some personal danger from fellow inmates. Such transfers are also made when an inmate, for reasonable grounds, requests a transfer. He may, for example, feel he is in some danger. But they also embrace situations where the Institutional Head feels it is essential in the interests of the institution a particular inmate be moved quickly and returned to maximum security.
I do not find anything in the legislation or the Regulations which prescribe, or even suggest, the rights the plaintiff claims in respect of his transfer. Directive 1024 creates an administrative body primarily to consider requests or recommendations for transfer to lesser security institutions. It pro-
vides some guidelines and criteria for classification boards, and for the other administrative staff. The process of transfer is, as I see it, quite different from that of discipline of inmates and the proce dures to be followed before convictions are regis tered and punishment imposed. In my view, inmates are not entitled, as of right, to appear in person, or be heard, on proposals to or questions of transfer. I think that is true even when an applica tion for transfer is made by or on behalf of an inmate to a lesser security institution. It is equally true, speaking generally, in respect of transfers to which the inmate, if given the opportunity, would object—the plaintiff's situation here. Nor do I think an inmate is entitled, as a matter of course, to reasons why a transfer is carried out, or refused. There may be security, or the safety of informants, involved.
A somewhat similar issue, in respect of prison transfers, came recently before the Court of Appeal for Ontario in Re Anaskan and The Queen. 20 The inmate was transferred from a pro vincial correctional centre in Saskatchewan to a federal penitentiary in Kingston. The inmate was not consulted. The transfer was made under the terms of an agreement entered into, pursuant to section 15 of the Penitentiary Act, by the appropri ate federal Minister with the Province of Sas- katchewan. One of the submissions on behalf of the inmate was that before the request for her transfer to the federal institution was put forward, she should have been given a full and fair hearing.
The Court rejected that contention. At page 524 this was said:
The Acting Director of Corrections, carrying out his respon sibility for the administration of provincial institutions, and under the agreement between the two Governments, requested that the appellant be transferred from a provincial institution to a federal penitentiary. There is no "right" in a prisoner to be in a particular institution; that is made clear by the enactment of s. 15(1) and by s-ss. (2) to (4) of s. 13 of the same Act. It is then a matter of policy and of administrative concern where an individual serves his or her sentence. There is no quasi-judicial
20 0977) 15 O.R. (2d) 515.
quality in this determination which would call into play the audi alteram partem rule or require a hearing of any kind. If the submissions made on behalf of the appellant were accepted as being the law, then every transfer, within the federal peni tentiary system itself, or otherwise, would call for a hearing.
and at pages 525-526:
The task of a provincial official in deciding to request a transfer in the interests of the inmate and the administration of the institution itself, where the inmate has no "right" to be in a particular institution, seems to me to be peculiarly an adminis trative decision. Nor do I believe it to be the type of administra tive decision which gives the person affected a right to be heard. The inmate forfeited his liberty by his voluntary act and he has no right to be heard in the determination of where he is to be incarcerated. There is no basic right being affected here such as would give rise to a duty to act in accordance with the principles of natural justice. If there were such a right, the person sentenced, at the time of sentencing or at least before he is committed to an institution, would have a right to be heard in the decision as to where he is to serve his sentence. Such a prospect serves to emphasize that the decision in this case is purely an administrative one affecting no fundamental or civil right. In addition, it should be pointed out, there has been no suggestion of bias or that the official or officials acted capri ciously or dishonestly.
I do not say an inmate may never have a right to question, on grounds of lack of fairness, a decision to transfer him. Some circumstances may point to such a right. My opinion is confined to the matter of notice and the right to a hearing of some kind.
I now pose a question similar to one I earlier put forward. Assuming the plaintiff was entitled to notice and to be heard, what practical redress can the Court now give? The plaintiff is back in lower security institutions. A declaration, as asked for, will not now, as I see it, assist him. Some of the remarks in Merricks v. Nott-Bower (supra) are apt. The plaintiffs in that case were policemen who, some years before the litigation, had been transferred to other posts. They alleged the trans fers were ordered as a kind of punishment. The applicable regulation did not permit transfers on that ground. Lord Denning M.R. said at page 721:
All that is claimed is a series of declarations, all of them to the effect that the transfer was made without regard to the regula tions and without regard to the principles of natural justice. It is asked: What use can such declarations be at this stage, when
the transfer took place six and a half years ago? What good does it do now? There can be no question of re-opening the transfers. The plaintiffs have been serving in these divisions all this time. They cannot be transferred back to Peckham. On this point we have been referred to a number of cases which show how greatly the power to grant a declaration has been widened in recent years. If a real question is involved, which is not merely theoretical, and on which the court's decision gives practical guidance, then the court in its discretion can grant a declaration.
Salmon L.J., at page 724, put it this way:
It is said: Even if the plaintiffs' rights under the regulations were infringed, what good could the remedies which are claimed by the plaintiffs do them? Can they benefit by these declarations? If a plaintiff seeks some declaration in which he has a mere academic interest, or one which can fulfil no useful purpose, the court will not grant the relief claimed. In this case, however, again without deciding the point in any way, it seems to me clearly arguable that, if the declarations are made, they might induce those in authority to consider the plaintiffs' promotion, there being some evidence that the alleged transfers by way of punishment have prejudiced, and whilst they remain will destroy, the plaintiffs' chances of promotion.
In the case before me, assuming an infringement of rights, no useful or practical purpose would be served in granting the declaration sought.
For all the above reasons, the plaintiff's claim, under this particular head, is dismissed.
(c) The Deprivation, or Loss, of Certain Personal Possessions
Penitentiary Service Regulations section 2.08 is perhaps relevant:
2.08. The institutional head shall take reasonable care to ensure that the effects of an inmate which, in accordance with the directives, he is permitted to bring into and keep in the institution, are protected from loss or damage.
The plaintiff has not, in my view established, by a preponderance of evidence, that reasonable care was not taken in respect of the missing fountain pen and chess set.
He was deprived of his typing paper for a short time. He has not persuaded me he suffered any financial loss or compensable inconvenience, war ranting relief in his favour. No case has been made out for damages, punitive or nominal.
There remains the matter of the two sheets of aluminum and the aluminum ruler. To my mind,
there were sufficient grounds for the staff at Mountain Institution to conclude these articles were the property of the institution. Even after inquiries established the plaintiff's wife had brought similar articles to him at Matsqui there was, in my view, still sufficient doubt about the whole matter.
The plaintiff has not satisfied me, by a prepon derance of evidence, he was unlawfully deprived of these particular articles.
His claims, in respect of this head, are dismissed.
(d) The Transfer to the British Columbia Peni tentiary was "Cruel and Unusual Punish ment"
The plaintiff relies on McCann v. The Queen 21 and particularly on Heald J.'s proposition that a punishment or a confinement can be described as cruel and unusual if adequate alternatives to dis sociation exist. The plaintiff says an adequate alternative here was to send him to Matsqui Insti tution to undergo his dissociation punishment. In the normal course, after the 10 days, he would have been returned to Mountain Institution.
I do not think the plaintiff's claim, under this head, is sound. The plaintiff was not sent to the British Columbia Penitentiary merely to serve the dissociation punishment. That was incidental. He was transferred there as a result of an administra tive decision based on his previous conduct (including the disciplinary offence) and the view of Mr. Mort and Mr. Byman that an immediate transfer should be effected.
I have already dealt with the so-called legality of the transfer itself. The placing of the plaintiff in a maximum security institution with less desirable surroundings, fewer amenities, and lesser privi leges does not, in the circumstances here, fall within the strictures against "cruel and unusual punishment".
Nor is the plaintiff's case strengthened because a serious riot subsequently occurred while he was
21 [ 1976] 1 F.C. 570.
confined in that maximum security institution. Riots and rebellions in penal institutions are well known. They occur more frequently than one cares to see. The British Columbia Penitentiary has been plagued with problems for the last few years. It does not, however, follow that removal to that institution amounts to the imposition of cruel and unusual punishment.
This claim for relief will be dismissed.
(e) The Deduction of Pay for Credit to the Inmate Welfare Fund, and the Transfer of Interest on Personal Funds without Consent
I have already set out Penitentiary Service Regulations section 2.26 permitting the Commis sioner, in his discretion, to authorize rates of pay. The deduction of one day's pay per month for deposit in the Inmate Welfare Fund is prescribed by Commissioner's Directive 232. For reasons ear lier set out, I conclude this directive does not have the force of law. The Commissioner is given a discretion to establish rates of pay, or not to establish them. He has elected to do the former. If that decision to authorize pay is merely an administrative one, then there is no legal right, as I see it, flowing automatically to the plaintiff on which he could succeed in the courts against the defendant or the Commissioner if his authorized pay was not credited to him. If there is no right in "law" to any pay at all, then there can logically be no right to challenge the deduction of one day's pay per month for the Inmate Welfare Fund. It would seem to follow a consent to the deduction is therefore not required.
On similar reasoning, the complaint, that the deduction of $2.10 from the plaintiff's allotment was unjustifiably used to retire a previous over- expenditure in the Inmate Welfare Fund, and the relief claimed, cannot succeed.
There remains the matter of the transfer of bank interest, owned by the Inmate Trust Fund, to the Inmate Welfare Fund. That transfer was made pursuant to Divisional Instruction 834 (Ex. 22). The Instruction seems to have generated from
Commissioner's Directive No. 233 (Ex. 20). The latter stipulated revenue for the Inmate Welfare Fund should be derived from inmate pay, inmate canteen profits, interest and gifts.
I can find no authority, in the Penitentiary Service Regulations or in any Commissioner's Directive put in evidence at trial, authorizing the transfer to the Inmate Welfare Fund of interest earned by the inmates' personal monies in the Inmate Trust Fund. 22 Individual consents to such transfers would, of course, permit that use of the interest. Regulation 2.22 is quite clear. It is "law". An inmate's personal monies are deposited to his credit in a trust account. The Regulation explicitly provides that no monies standing to the credit of an inmate are to be paid out unless the inmate gives a written authorization. Monies standing to his credit, in my opinion, include interest.
Should a declaration, in respect of this head, be granted? I realize a direction having the effect of transferring back to the credit of the plaintiff whatever portion he is entitled to of the bank interest paid to the Inmate Trust Fund may result in a difficult and time-consuming accounting pro cess. It may be that other inmates may demand the same treatment. I am, nevertheless, convinced the accounting can be done. The plaintiff's prop erty has, in my view, been applied in a manner and for the purposes to which he has not consented. There has been a clear infringement of a right. In those circumstances I do not think a court should be deterred by possibilities of difficulty and expense on the part of a defendant in rectifying the matter.
There will be an appropriate declaration and directions.
There has been divided success in this action. In the circumstances there will be no costs to either party.
22 In practice, the Inmate Pay Account and the Trust Fund are in one bank account. The Penitentiary Service, in its accounting procedures, keeps a separate record in respect of each inmate's balance in the Trust Fund, and in respect of his balance in the pay account.
 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.