T-2613-79
Andrew Graydon Bruce and Sandra Meadley
(Applicants)
v.
Donald Yeomans, in his capacity as Commissioner
of Corrections, and James Murphy, in his capaci
ty as Regional Director General of Corrections for
the Pacific Region (Respondents)
Trial Division, Collier J.—Vancouver, July 11 and
17, 1979.
Prerogative writs — Injunction — Penitentiaries — Peni
tentiary Service proposing to transfer applicant Bruce from
B.C. Penitentiary to Ontario — Transfer allegedly interfering
with legal actions or pending legal actions of applicant Bruce
or of both applicants — Whether or not applicants should
have been told of reasons why Bruce is to be transferred, and
then be given a right of reply — Penitentiary Act, R.S.C. 1970,
c. P-6, s. 13(3) — Canadian Bill of Rights, S.C. 1960, c. 44
[R.S.C. 1970, Appendix III, ss. 1(b), 2(e)].
Applicants, Bruce, an inmate at the British Columbia Peni
tentiary, and Meadley, seek an injunction restraining the exer
cise by respondents of the transfer powers given them by
subsection 13(3) of the Penitentiary Act pending (a) compli
ance with their alleged general duty toward applicants by
providing them with full details of the case against them with
respect to the proposed transfer and affording them an opportu
nity to reply; (b) completion of all legal actions in which
applicants, individually or together, are involved in, or which
are pending before the British Columbia courts; and (c) compli
ance with the Canadian Bill of Rights. Applicants, together,
are appealing a Trial Division decision to dismiss an appeal
from the refusal of the Director of the British Columbia
Penitentiary to grant them permission to marry. Applicant
Bruce is appealing a conviction from a hostage-taking incident.
Charges are pending as a result of Bruce's alleged involvement
in an attempted escape from the penitentiary. Local counsel is
either representing applicants in their joint action, or giving
applicant Bruce legal advice in those actions where he is
representing himself.
Held, the application is dismissed. Although the decision to
transfer a prisoner in the penitentiary system is administrative,
and not judicial or quasi-judicial, there is a duty to act fairly in
arriving at that decision. An inmate who is to be transferred
need not be told of the "case for transfer" and given an
opportunity to reply, either as a general principle or in the
circumstances of this case. The transfer will not necessarily
render the "marriage appeal" moot for the Court will be well
aware that Bruce could be transferred back, at any time, to a
British Columbia institution. There is no unfairness, in law,
that applicant Meadley may decide, because of Bruce's trans
fer, to sever her British Columbia connections and go to
Ontario. There is no unfairness in transferring Bruce to Ontario
when the pending criminal appeal and other criminal charges
are to be heard in British Columbia, for undoubtedly he will be
brought to British Columbia when those matters come on for
hearing. There is no unfairness, in law, from the fact that,
because of the transfer, Bruce will not have quick and ready
access to oral advice and assistance from his lawyer. The
statutory procedures followed by the respondents have not
infringed either applicant's right to equality before the law or
to a fair hearing.
Magrath v. The Queen [1978] 2 F.C. 232, followed.
Nicholson v. Haldimand-Norfolk Regional Board of
Commissioners of Police [1979] 1 S.C.R. 311, discussed.
APPLICATION.
COUNSEL:
J. W. Conroy for applicants.
W. B. Scarth for respondents.
SOLICITORS:
J. W. Conroy, c/o Abbotsford Community
Legal Services, Abbotsford, for applicants.
Deputy Attorney General of Canada for
respondents.
The following are the reasons for judgment
rendered in English by
COLLIER J.: The applicants seek an injunction,
or "relief in the nature thereof'. The applicant
Bruce is an inmate of the British Columbia Peni
tentiary. Bruce and the other applicant, Meadley,
hope to marry. The respondent Yeomans is the
Commissioner of Corrections. The respondent
Murphy is Regional Director General of Correc
tions for the Pacific Region.
The Penitentiary Service proposes to transfer
Bruce from the B.C. Penitentiary to Millhaven
Institution in Ontario'. The applicants say the
exercise, by the respondents, of the transfer powers
given by subsection 13(3) of the Penitentiary Act e ,
should be restrained, pending:
(a) compliance with their general duty of fair
ness toward the applicants by providing them
with the full details of the case against them in
relation to the proposed transfer and affording
them a fair opportunity of answering it; and
(b) the completion of all legal actions in which
the applicants, either individually or together,
are involved in and that are pending before the
courts in the Province of British Columbia; and
(c) compliance with all applicable provisions of
the Canadian Bill of Rights, R.S.C. 1970,
Appendix III.
It is necessary to refer to some earlier
proceedings.
The applicants proposed to marry. The Director
of British Columbia Penitentiary refused permis
sion. The applicants took proceedings in this Court
challenging, on a number of grounds, that deci
sion. Walsh J. dismissed those proceedings 3 .
Included in that application was a claim for an
injunction to prevent the then contemplated trans
fer of Bruce from British Columbia to Millhaven.
' Millhaven is, as I understand it, a Federal Adjustment
Centre. That kind of facility is defined in Commissioner's
Directive No. 174, as follows:
a. A Federal Adjustment Centre (FAC) is a special facility
established to deal exclusively with inmates who, in addi
tion to meeting the normal maximum security criteria,
have been identified as being particularly dangerous.
c. For the purposes of this directive, a dangerous inmate is
one who, while under sentence or in custody, demonstrates
aggressive behaviour which poses a threat to staff, inmates
or other persons. Such conduct includes the commission of,
and attempts to commit, offences of forcible confinement
or any act resulting in death or the infliction of serious
bodily harm.
In Martineau & Butters v. The Matsqui Institution Inmate
Disciplinary Board [1978] I S.C.R. 118, Commissioner's
Directives were held not to be "law." I refer to the relevant
directives here because the respondents were, I assume, follow
ing them.
2 R.S.C. 1970, c. P-6, as amended by S.C. 1976-77, c. 53, ss.
35-44.
3 Bruce v. Reynett [1979] 2 F.C. 697.
Walsh J. held, in effect, that particular aspect of
the earlier proceedings was premature.
The applicants have launched an appeal against
the "marriage aspect" of the decision of Walsh J.
There are some further facts. Bruce was, on
June 9, 1975, involved in a hostage-taking affair at
the B.C. Penitentiary. He was convicted of certain
charges arising out of that matter. He was sen
tenced to 14 years imprisonment. He has appealed
that conviction and sentence. He is acting as his
own counsel. The appeal may be heard this fall.
On January 28, 1978 there was an attempted
escape from the penitentiary. Bruce and others are
alleged to have been involved. Charges were laid
against the participants. The charges against
Bruce are still pending. He, again, is acting as his
own counsel.
Bruce, in respect of the appeal from the decision
of Walsh J., is represented by Mr. J. W. Conroy of
the Abbotsford Community Legal Services. Mr.
Conroy gives him, as well, advice and assistance in
respect of the two outstanding criminal matters.
I revert now to the present application.
At the outset of the hearing, I raised a proce
dural question. The applicants seek their injunctive
relief by way of originating notice of motion. I
suggested the proper procedure should be by way
of statement of claim or declaration. I had in mind
the decision of Addy J. in Dantex Woollen Co. Inc.
v. Minister of Industry, Trade and Commerce',
where he expressed that view. Mr. Scarth, counsel
for the respondents here, did not wish to rely on
any procedural objections, but to have the merits
of the matter determined. I agreed to hear and
decide on the basis of the present format. But by
so agreeing, I want it understood I do not endorse
the procedure here as any kind of precedent.
I turn now to the argument on the merits.
It is common ground the decision to transfer a
prisoner in the penitentiary system is an adminis
trative one, not a judicial or quasi-judicial one. It
4 [1979] 2 F.C. 585.
is common ground, as well, there is, generally
speaking, a duty to act fairly in arriving at that
administrative decision 5 . The real contest here is
whether, in the circumstances of this case, the
applicants should have been told of the reasons
why Bruce is to be transferred ("the case against
him") and then have been given an opportunity to
respond.
The applicants say "yes". The respondents say
"no"
The applicants rely strongly on Nicholson,
where the majority of the Court held a probation
ary constable had the right to know why he was
being let go and the right, orally or in writing, to
respond. But each case must depend on its own
facts and circumstances. Counsel for the appli
cants asserts, as a general principle, that an inmate
who is to be transferred must be told of the "case
for transfer" and given an opportunity to reply.
I cannot agree.
With some diffidence, I set out the views I
expressed in Magrath v. The Queen where a some
what similar situation arose, and a similar argu
ment was made 6 .
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. ... The process of transfer is, as I see
it, quite different from that of discipline of inmates and the
procedures to be followed before convictions are registered and
5 See Nicholson v. Haldimand-Norfolk Regional Board of
Commissioners of Police [1979] 1 S.C.R. 311. Three recent
decisions, of assistance here, where Nicholson has been con
sidered, are:
Re Downing and Graydon (1979) 21 O.R. (2d) 292 (Ont.
C.A.). Islands Protection Society v. R. in Right of B.C.
(1979) 11 B.C.L.R. 372 (B.C.S.C.). Re Webb and Ontario
Housing Corporation (1979) 22 O.R. (2d) 257 (Ont. C.A.).
6 [1978] 2 F.C. 232 at pp. 253-255.
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 opportu
nity, would object—the plaintiffs 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. ((1977) 15 O.R. (2d) 515.) The
inmate was transferred from a provincial 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 appropriate federal Minister with
the Province of Saskatchewan. 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 re
sponsibility 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 administra
tive concern where an individual serves his or her sentence.
There is no quasi-judicial 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 penitentiary 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
administrative decision. Nor do I believe it to be the type of
administrative 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 determi
nation 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 institu
tion, 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 adminis-
trative one affecting no fundamental or civil right. In addi
tion, it should be pointed out, there has been no suggestion of
bias or that the official or officials acted capriciously 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 con
fined to the matter of notice and the right to a hearing of some
kind.
One can envisage situations where an instant
transfer may be in the best interests of security in
the institution or in the best interests of inmates.
Assume a situation where reliable information is
given by an informant to prison authorities that
another inmate or inmates are planning an escape
or an insurrection. The security of the institution
may demand immediate transfer of the alleged
ringleaders. I cannot imagine the law requiring,
before such a transfer, the potential transferees be
told of the "case" against them and given the
opportunity to reply.
There is nothing in the Nicholson case, in my
view, which requires, as a matter of course, that an
inmate who is to be transferred be informed of the
"case" for transfer, with an opportunity to
respond.
But, it is said, in the particular circumstances
here, the general requirement of fairness warrants:
(a) a conclusion that Bruce and Meadley should
have been made aware of the reasons for the
transfer, and given an opportunity to respond;
(b) in any event, a ruling that the decision to
transfer, in the unusual circumstances here and
at this particular time, is tainted with unfair
ness.
The following facts are pointed to.
The applicants have made arrangements to be
married in British Columbia. They have met the
requirements of the law of that Province. If Bruce
is transferred to Ontario, new arrangements will
have to be made to comply with Ontario law. If
the transfer is carried out, the appeal by Bruce
from the decision of Walsh J. may be held to be
academic; the refusal of permission to marry was
made in respect of the circumstances existing in
British Columbia; at the hearing of the appeal,
those circumstances will no longer be present.
I do not think it necessarily follows that the
transfer will render the "marriage appeal" moot.
The Court will be well aware that Bruce could be
transferred back, at any time, to a British
Columbia institution. Nor do I think there is any
unfairness, in law, that the applicant Meadley may
decide, because of Bruce's transfer, to sever her
British Columbia connections and go to Ontario.
The pending criminal appeal and criminal
charges, earlier described, are also referred to. It is
said there is unfairness in transferring Bruce to
Ontario when those matters are to be heard in
British Columbia. I see no merit in that conten
tion. Bruce will undoubtedly be brought to British
Columbia when those matters come on for hear
ing. Nor do I think there is any unfairness, in law,
in deciding to transfer Bruce to Ontario, where he
will not have quick and ready access to oral advice
and assistance from Mr. Conroy.
Finally, the applicants rely on the Canadian Bill
of Rights'. The same facts and circumstances, and
essentially the same contentions were advanced in
respect of paragraph 1(b) (the right to equality
before the law) and paragraph 2(e) (the right to a
fair hearing). In my opinion, none of those rights,
of either applicant, has been infringed, in the
statutory procedures followed by the respondents.
The originating notice of motion is dismissed.
' S.C. 1960, c. 44 [R.S.C. 1970, Appendix III].
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.