T-1867-79
Andrew Graydon Bruce and Sandra Gaye Mead-
ley (Applicants)
v.
Herbert Reynett, in his capacity as Institutional
Head of the British Columbia Penitentiary,
Donald Yeomans, in his capacity as Commissioner
of Corrections and any Officer of the Canadian
Penitentiary Service directed by the Commission
er of Corrections pursuant to section 13(3) of the
Penitentiary Act (Respondents)
Trial Division, Walsh J.—Vancouver, April 9, 10
and 26, 1979.
Prerogative writs — Quo warranto — Mandamus —
Injunction — Inmate in dissociation denied permission to
marry — Inmate also eligible for possible unwanted transfer
to out-of-province institution — Quo warranto sought to
determine if penitentiary's Institutional Head entitled to exer
cise functions or jurisdictions claimed in his decision —
Mandamus sought to compel Institutional Head to construe
any law of Canada in relation to proposed marriage in accord
ance with Canadian Bill of Rights — Injunction sought to
restrain Institutional Head from dealing with proposed mar
riage except in accordance with his jurisdiction — Injunction
sought to restrain Commissioner of Corrections from execut
ing possible unwanted transfer — Federal Court Act, R.S.C.
1970 (2nd Supp.), c. 10, s. 18 — Penitentiary Service Regula
tions, SOR/62-90, ss. 2.10, 2.27, 2.30(1),(2) — Canadian Bill
of Rights, S.C. 1960, c. 44 (R.S.C. 1970, Appendix III), ss. 1,
2(b),(e).
Applicants Meadley and Bruce (an inmate held in dissocia
tion at the British Columbia Penitentiary) apply for relief
pursuant to section 18 of the Federal Court Act following the
refusal of the Institutional Head to grant them permission to
marry. They seek a writ of quo warranto to ascertain whether
or not the Penitentiary's Institutional Head is entitled to exer
cise the functions or jurisdictions claimed in his decision deny
ing permission to marry. Alternatively, applicants seek a writ of
mandamus compelling the Institutional Head to construe and
apply any law of Canada conferring jurisdiction on him in
relation to the proposed marriage in accordance with the
Canadian Bill of Rights, and to act fairly in exercising any
such jurisdiction. Then, too, applicants seek an injunction
restraining the Institutional Head from interfering in the pro
posed marriage except in accordance with his jurisdiction.
Finally, applicants seek an injunction restraining the Commis
sioner of Corrections or those under his direction from exercis
ing any jurisdiction to transfer applicant Bruce to an institution
outside British Columbia pending completion of all matters
pertaining to the proposed marriage and compliance with the
duty of fairness to provide applicants with full details of the
case against them and to afford them an opportunity to answer,
both in relation to the proposed marriage and the proposed
transfer.
Held, the application is dismissed. Quo warranto does not go
beyond a mere attack on the right to hold office or extend to
situations where the person against whom it is directed is
taking upon himself authority to perform or performing acts
beyond the scope of the office. It is not the appropriate remedy
even if the Institutional Head exceeded his authority in refusing
permission to applicants to marry. The relief sought should be
through the alternative remedies sought. The standing order
under which Mr. Reynett refused permission for the marriage
and his authority to make the decision refusing it are valid. It
should not be concluded that the provisions of the Canadian
Bill of Rights are applicable since the right to marry is not one
of the fundamental rights specifically protected by that Act
although it was a common law right not specifically taken away
by the provisions of the Penitentiary Act and Regulations. A
person confined to prison must of necessity be deprived of many
rights, and retains only those that may be permitted by the
Regulations. This fact does not justify a conclusion that the
Penitentiary Act and Regulations infringe the Canadian Bill of
Rights merely because it is not specifically stated therein that it
shall operate notwithstanding the said statute. The Institutional
Head merely exercised his administrative discretion in refusing
permission to marry, even though this permission may have
been given other prisoners on other occasions. Applicant cannot
contend that he was being denied equality before the law. The
Institutional Head, nevertheless, had a duty to act fairly. This
Court cannot review an administrative decision by going into
the merits of it but must limit findings to whether the decision
and the manner in which it was made was done fairly. There is
nothing to indicate that the Institutional Head acted unfairly.
No mandamus will therefore be issued against the Institutional
Head nor any injunction restraining him from interfering with
the proposed marriage. No injunction should be issued on a
quia timet basis to stop a transfer that may never take place.
While the question of transfer is clearly an administrative
decision, it should also be carried out fairly taking all factors
into consideration. It cannot be said that a decision has not
been made fairly when no decision has in fact yet been made—
only an indication of what might possibly take place at some
indeterminate future date.
APPLICATION.
COUNSEL:
John Conroy for applicants.
W. B. Scarth for respondents.
SOLICITORS:
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
WALSH J.: The applicants move pursuant to
section 18 of the Federal Court Act, R.S.C. 1970
(2nd Supp.), c. 10, for the following relief.
1. A writ of quo warranto to ascertain whether or
not the respondent Herbert Reynett, in his capaci
ty as Director of the British Columbia Penitentia
ry, is entitled to exercise the functions or jurisdic
tion claimed in his decision of March 23, 1979,
denying permission to the applicant Andrew Gray-
don Bruce to marry the applicant Sandra
Meadley.
2. In the alternative, a writ of mandamus compel
ling the said respondent Herbert Reynett, in his
capacity as Institutional Head of the British
Columbia Penitentiary, to construe and apply any
law of Canada conferring jurisdiction upon him in
relation to the proposed marriage between the
applicant Andrew Graydon Bruce and Sandra
Meadley in such a manner as not to abrogate,
abridge or infringe or to authorize the abrogation,
abridgment or infringement of either of the appli
cants' human rights and fundamental freedoms as
enunciated in the Canadian Bill of Rights and to
compel him in his capacity to act fairly in exercis
ing any jurisdiction so conferred in accordance
with the duty to act fairly that falls upon all
administrators.
3. An injunction restraining the said respondent in
his said capacity from interfering in the proposed
marriage between the applicants except in accord
ance with his jurisdiction.
4. An injunction restraining the respondent
Donald Yeomans in his capacity as Commissioner
of Corrections and any other officer of the Canadi-
an Penitentiary Service directed by the Commis
sioner pursuant to section 13(3) of the Penitentia
ry Act, R.S.C. 1970, c. P-6, from exercising any
jurisdiction pursuant to the said section to transfer
the applicant Andrew Graydon Bruce to Millhaven
Institution in the Province of Ontario or any other
institution outside the Province of British
Columbia pending:
(a) the completion of all matters pertaining to
the proposed marriage between the applicants
and
(b) compliance with their general duty of fair
ness toward the applicants by providing them
with full details of the case against them and
affording them a fair opportunity of answering
it, both in relation to the proposed marriage and
the proposed transfer.
The application is supported by affidavits from
Sandra Meadley and Andrew Graydon Bruce both
of which affidavits have a number of documents
exhibited thereto. The petition is primarily based
however on the memorandum dated March 23,
1979 from Mr. Reynett as Director of the British
Columbia Penitentiary to Andrew Graydon Bruce
giving his reasons for refusing to approve the
marriage. The memorandum refers to a conversa
tion nine months previously with Bruce respecting
his desire to marry Sandra Meadley and states
that an extensive investigation and gathering of
documents resulted including documents or reports
from Father A. Roy, Reverend T. Speed, the
Attorney General of British Columbia, the Van-
couver Office of the National Parole Service and
an updated profile and documentation from
Bruce's classification officer. Reference is made to
three conversations with Miss Meadley from
which he concluded that she is devoted to and
dedicated to the proposed marriage. The Director
states that he must decide where the wedding can
take place if approved and whether the activity is
one which would affect the security of the institu
tion. He then states his conclusion:
In view of our restrictions and privileges for an individual
housed under P.S.R. 2.30 (1)(a), in particular regarding visit
ing it would be a violation of my own Standing Orders to
permit a marriage.
The fact that your past actions have qualified you for transfer
to a Special Handling Unit and have held you in Segregation
since 1975, can leave me only to conclude that to grant
permission to marry while in dissociation would simply not be
in the best interest of security for the Institution.
I believe that at the present time marriage represents an
unrealistic expectation of self fulfillment. I realize that your
intentions are sincere and they represent a very positive process
of advancement and indicate to me a strong desire to change.
However, until such time that you can show the ability to
function in a normal prison setting I can not approve a wedding
taking place.
Although the letter only refers to section
2.30(1)(a) of the Regulations, it will be convenient
here to quote the entire Regulation 2.30 since
subsection (2) was invoked by applicants in argu
ment in view of the fact that in the present case
the dissociation was not imposed as a punishment
to which Bruce had been sentenced. The Regula
tion reads as follows:
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.
It will be convenient to review the facts which
have led to applicant Bruce being held in dissocia
tion and also the steps which have been taken to
further the desire of the applicants to marry set
out in their affidavits and accompanying docu
ments. Applicant Bruce was born in North Van-
couver and is 30 years of age. Applicant Meadley
was also born in North Vancouver and is 23 years
of age. Bruce was convicted of murder on June 19,
1970 and sentenced to life imprisonment. Accord
ing to a letter from the Parole Board he would be
eligible for parole on April 23, 1980. His affidavit
sets out that with the exception of the two-week
period immediately after the imposition of his life
sentence, a three-month period toward the begin
ning of 1971, a two-month period at the end of
1971, and a six-month period from December 18,
1974 until June 9, 1975, which periods were spent
in general population, the rest of his sentence has
been served in solitary confinement and since June
9, 1975, he has been kept continuously in solitary
confinement at the British Columbia Penitentiary,
a continuous period of nearly four years under
Regulation 2.30. Reference is made to a decision
of Heald J. in the case of McCann v. The Queen'
in which applicant Bruce was one of the plaintiffs
to the effect that this constitutes cruel and unusual
punishment contrary to the Canadian Bill of
Rights. The judgment found however, that the
decision to dissociate under section 2.30(1)(a) of
the Regulations was purely administrative and
that plaintiffs were not entitled to the declaration
sought as neither section 1(a) nor 2(e) of the
Canadian Bill of Rights applied. Section 1 of the
Canadian Bill of Rights 2 reads:
1. It is hereby recognized and declared that in Canada there
have existed and shall continue to exist without discrimination
by reason of race, national origin, colour, religion or sex, the
following human rights and fundamental freedoms, namely,
(a) the right of the individual to life, liberty, security of the
person and enjoyment of property, and the right not to be
deprived thereof except by due process of law;
(b) the right of the individual to equality before the law and
the protection of the law;
(e) freedom of religion;
(d) freedom of speech;
(e) freedom of assembly and association; and
(f) freedom of the press.
Section 2(b) and (e) read:
2. Every law of Canada shall, unless it is expressly declared
by an Act of the Parliament of Canada that it shall operate
notwithstanding the Canadian Bill of Rights, be so construed
and applied as not to abrogate, abridge or infringe or to
authorize the abrogation, abridgment or infringement of any of
the rights or freedoms herein recognized and declared, and in
particular, no law of Canada shall be construed or applied so as
to
(b) impose or authorize the imposition of cruel and unusual
treatment or punishment;
(e) deprive a person of the right to a fair hearing in accord
ance with the principles of fundamental justice for the deter
mination of his rights and obligations;
On June 9, 1975, after having spent six months
in the general population, allegedly in the belief
that he was to be returned to the solitary confine
' [1976] 1 F.C. 570.
2 S.C. 1960, c. 44 [R.S.C. 1970, Appendix III].
ment unit, applicant Bruce became involved in a
hostage taking incident as a result of which he was
charged with extortion and convicted on March
10, 1977 and sentenced to 14 years. An appeal
from this is pending in which appeal Bruce pro
poses to act as his own counsel. On February 21,
1978, he was charged with five counts resulting
from a further hostage taking incident occurring
on January 28, 1978 in association with four
others in which his trial has not yet taken place
although the charges against his co-accused have
all been disposed of. He proposes to act as his own
counsel in these proceedings also, with the assist
ance and advice of his counsel in the present
application.
On July 7, 1978, he took steps to seek a psychia
tric assessment as a result of which he has had
interviews, and assessments by a series of psychia
trists, in one case outside the penitentiary under
security escort. He states that he is also aware that
for some time the Penitentiary Service officials
have been conducting assessments with a view to
determining whether or not he meets the criteria
for transfer to a Special Handling Unit which in
his case would involve a transfer to Millhaven
Institution in Ontario, and apparently from Mr.
Reynett's memorandum he meets the qualifica
tions. No final decision has been made with
respect to the transfer which he strongly opposes
as in addition to Miss Meadley all his family,
friends and community ties are in the Province of
British Columbia. He also fears the treatment
from security staff there in view of his reputation,
and other inmates there will expect him to be a
leader and assist them in taking action. He states
that he has never been fully informed of the case
against him and Miss Meadley with respect to
their desire to marry as he has not been provided
with any of the reports, assessments or other inves
tigations referred to in Mr. Reynett's memoran
dum nor has he been given an opportunity to
respond thereto. He is prepared to have the mar
riage take place inside the penitentiary grounds at
New Westminster and to submit to reasonable
security measures and he desires that the marriage
should be a Christian wedding. While held in
administrative dissociation under Regulation 2.30
the visiting procedure involves the receipt of a
telephone call by the solitary confinement unit
from the visits and correspondence office indicat
ing they are ready to receive him for a visit there
and that he is then subjected to a complete skin
frisk including the taking off of his clothes, lifting
arms and feet, stooping over and spreading his
buttocks, following which, after dressing, his legs
are shackled and his hands chained including a
chain around his waist and he is then moved by
escort to the visiting area and on returning is again
subjected to a complete skin frisk, and that all of
his visits except with lawyers and psychiatrists are
screened visits over a telephone without any oppor
tunity for physical contact. Only one person from
the solitary confinement unit is allowed out of the
unit at a time, but he has received a number of
open table visits from various lawyers and doctors
without any incidents affecting the security of the
institution. He states that in 1972 he was permit
ted an open visit with his former wife and son
Jason without incident. He has also attended out
side the penitentiary under escort on numerous
occasions over the last six years for medical or
court purposes including an attendance at the
Royal Columbian Hospital in 1975 for several
weeks and was then transferred to the security
ward at the Vancouver General Hospital where he
remained until August 1975, and a further attend
ance there for an operation in 1976 on two occa
sions as well as attendance at the offices of doctors
and a specialist.
He first advised Mr. Reynett of his desire to
marry Miss Meadley in June 1978 and was told to
discuss this with his classification officer David
Davis, which he then did. He was told that the
consent of the Attorney General would be
required, and a community assessment of Miss
Meadley by the Parole Service, that he should also
discuss it with the chaplain or priest and that
finally the approval of Mr. Reynett would be
required.
Considerable delays took place however and he
was informed that they were awaiting the commu
nity assessment from the Parole Service on Miss
Meadley. It was not until March 23, 1979 that
Mr. Reynett advised him that he had decided not
to permit the marriage to take place and gave him
the memorandum which has already been referred
to.
The affidavit of Miss Meadley states that in
order to visit Bruce she had to fill out a detailed
form with the Canadian Penitentiary Service
which would involve a security check by the Royal
Canadian Mounted Police. From January until
April 1977 she visited him approximately three
times per month. Beginning in May 1977 she
visited once a week until September 1977, and in
September and October 1977 they felt that
because of the circumstances their relationship
should be discontinued so it was agreed that she
would stop the visits. They continued to corre
spond however and in November 1977 she recom
menced her visits which continued twice a week
except for the period from late January 1978 until
the end of April 1978, when they were stopped as
a result of the hostage taking incident. In April
1978 she had to complete a new form for security
purposes in order to obtain reinstatement of visit
ing privileges. In May 1978 they decided they
were in love and wished to get married. Because of
the outstanding charges against Bruce arising out
of the January 1978 hostage taking incident it was
necessary to obtain the consent of the Attorney
General of the Province of British Columbia, in
the event that the proposed marriage might inter
fere with the administration of justice. On Septem-
ber 28, 1978 the Ministry of the Attorney General
indicated to her attorney that the only legal objec
tion to the marriage was the pending charges. In
due course it was determined that she would not be
called as a witness in any proceedings against
Bruce and on December 22, 1978 the Ministry of
the Attorney General indicated that it was the
Ministry's position that the proposed marriage
would not interfere with or prejudice the adminis
tration of justice.
She recounts her various meetings with Mr.
Reynett and attempts to inquire about the security
arrangements which would have to be made to
facilitate the marriage, and states that he refused
to discuss these matters. She cooperated with the
parole officer from the National Parole Service
but he refused to give her a copy of the community
assessment report, stating that it was confidential,
but he did inform her that on a rating out of ten
his report was seven in favour of the proposed
marriage. Finally it was only as a result of a letter
from her attorney to Mr. Reynett dated March 8,
1979 that the latter's decision was made soon
thereafter. She confirms that she was not permit
ted to examine any of the reports or assessments
on her but that Mr. Reynett informed her that if
there was anything negative in any of the reports
he would advise her and she has not been advised
of any negative aspects of the reports concerning
her. Prior to the decision to refuse to permit the
marriage her attorney advised her to obtain the
appropriate marriage licence, which she obtained
on March 29, the services of a registered clergy
man and two credible witnesses in preparation for
the marriage as required by the Marriage Act of
the Province of British Columbia. 3 She exhibits
with her affidavit the marriage licence, a letter
from a minister of the Westminster Unitarian
Church indicating his willingness to perform the
marriage, and a letter from a family consultant
and his wife informing her that they are willing to
act as the two witnesses required.
With respect to the possibility of Bruce's trans
fer to the Millhaven Institution in Ontario she
states that this would seriously interfere with their
marriage plans and that she would have to leave
her employment, family and friends in British
Columbia to follow him and re-establish herself in
Ontario and reapply once again at that location to
try and complete their marriage plans.
One of the legal issues is whether quo warranto
is an appropriate procedure in the circumstances
of the present case. Applicants contend that it goes
beyond a mere attack on the right to hold office
and extends to situations where the person against
whom it is directed is taking upon himself author
ity to or performing acts beyond the scope of the
office. Applicants do not contest that Mr. Reynett
was properly appointed to and occupying the office
which he holds. While applicants cite various
authorities the most pertinent are the cases of Rex
ex rel. Haines v. Hanniwell 4 and Regina ex rel.
McPhee v. Sargent 5 . In the first of these McRuer
C.J.H.C. states at page 47:
3 R.S.B.C. 1960, c. 232.
4 [1948] O.R. 46.
5 (1967) 64 D.L.R. (2d) 153.
In Reg. v. The Guardians of St. Martin's in the Fields
(1851), 17 Q.B. 149 at 163, 117 E.R. 1238, Erle J. deduces
from Darley v. The Queen ex rel. Kinahan (1846), 12 Cl. & F.
520, 8 E.R. 1513, three tests of the applicability of quo
warranto: "the source of the office, the tenure, and the duties."
After dealing with the source and tenure of the
office which are not disputed in the present case he
states [at pages 47-48]:
The duties of the office must be duties and functions of a public
nature, that is, duties and functions that refer to the public over
which the King's Courts have jurisdiction and whose interests
the procedure provided by quo warranto is designed to protect.
It appears to me that this citation refers to the
duties of the office generally. The issue in the case
was whether a member of the Niagara Falls
Bridge Commission held a public office to which
quo warranto proceedings applied. I do not consid
er this case as authority for the proposition that if
a public office is properly held quo warranto can
be extended to attack some action taken in excess
of the authority of the person holding the office. In
the McPhee case Tysoe J.A. stated at page 158:
Early in this judgment I said that the purpose of an informa
tion in the nature of a quo warranto is to test the right or
authority by which a person holds an office and to ascertain
whether he is rightfully entitled to exercise the functions
claimed. It seems to me that a proper subject of the inquiry,
and a natural starting point in it, is the appointment to the
office and the legality of that appointment, for if the appoint
ment is invalid the appointee is without any right or authority
to hold the office or to exercise the functions thereof. [Empha-
sis mine.]
In reaching this conclusion he had relied in part on
an old American authority High's Extraordinary
Legal Remedies (1874) at page 436 where it was
stated:
Nor does it command the performance of his official functions
by any officer to whom it may run, since it is not directed to the
officer as such, but always to the person holding the office or
exercising the franchise, and then not for the purpose of
dictating or prescribing his official duties, but only to ascertain
whether he is rightfully entitled to exercise the functions
claimed. [Emphasis mine.]
At page 448 the same authority stated however:
Since the remedy by quo warranto, or information in the
nature thereof, is only employed to test the actual right to an
office or franchise, it follows that it can afford no relief for
official misconduct and can not be employed to test the legality
of the official action of public or corporate officers. Thus, in the
case of breaches of trust alleged to have been committed by
trustees of an incorporated association, relief should properly
be sought in equity and not by proceedings in quo warranto. So
where a public officer threatens to exercise powers not con
ferred upon him by law, or to exercise the functions of his office
beyond its territorial limits, the proper remedy would seem to
be by injunction, rather than by a quo warranto information.
Thus, the information will not lie to prevent the legally con
stituted authorities of a city from levying and collecting taxes
beyond the city limits, under an act of legislature extending the
limits, and the constitutionality of such an act can not be
determined upon a quo warranto information. [Emphasis
mine.]
In rendering his judgment Mr. Justice Tysoe also
at page 157 referred to a statement by Lush J. in
the case of The King v. Speyer; The King v. Cassel
[1916] 1 K.B. 595 at page 628 where he stated:
By means of this information [quo warranto] and the writs of
mandamus and prohibition this Court can and does exercise
control on all persons who hold public offices ... and discharge
public duties, either judicial or otherwise; they are the processes
by which this Court compels them to discharge those duties
according to law if they fail to do so, or prohibits them from
acting if they have no lawful authority to do so. [Emphasis
mine.]
In rendering his judgment in the McPhee case
McFarlane J.A. as he then was referred to another
statement by Lush J. in the aforementioned case at
page 627 in which he stated:
There was no doubt a time at which the old writ of quo
warranto was used exclusively in order to prevent encroach
ments on the King's prerogative. But as times changed the
nature and scope of the writ became enlarged, and even before
the case of Darley v. The Queen the proceeding by way of
information in the nature of quo warranto which had taken the
place of the older writ had come to have a far wider applica
tion. It is the process by which persons who claim to exercise
public functions of an important and substantive character, by
whomsoever appointed, can be called to account if they are not
legally authorized to exercise them. [Emphasis mine.]
In reply to this respondents' counsel referred to
the Quebec case of Gosselin v. Drouin 6 in which
Owen J.A. at page 210 stated:
6 [1959] Q.B. (Que.) 201.
The next question of law is whether a writ of quo warranto
lies only when there is a question of usurpation and title to
office or whether it also lies in cases where a qualified person
commits abuses or illegalities in the exercise of his functions.
and again on the same page:
There is a line of jurisprudence to the effect that the writ of
quo warranto lies in the case where a qualified officer commits
abuses or illegalities in connection with his functions.
Opposed to the above cases is a decision of this Court: Bégin
v. Bolduc ([1944] K.B. 725), which refers to a previous deci
sion of this Court and holds that a writ of quo warranto does
not lie in the case of illegalities or abuses committed by such
officer in the exercise of his functions ....
Neither party cited any later decision contrary to the holding
in Bégin v. Bolduc and I would follow this judgment and hold
that a writ of quo warranto does not lie in the present case.
There is no doubt about Mr. Reynett's right to
hold the office which he does and I do not con
clude that quo warranto is the appropriate remedy
even if Mr. Reynett exceeded his authority in
refusing permission to applicants herein to marry
at the present time. The remedy is discretionary, in
any event, and I believe that the relief sought
could be obtained through the alternative remedies
of mandamus or injunction also asked for in the
present proceedings. Respondents do not attack
the procedural right to seek these remedies, but
merely contend that on the facts they are not
applicable and should not be granted.
Applicants attacked the validity of the Standing
Order by virtue of which Mr. Reynett refused
permission for the marriage and his authority to
make the decision refusing it. Section 29(1) of the
Penitentiary Act, R.S.C. 1970, c. P-6 permits the
Governor in Council to make regulations "(b) for
the custody, treatment, training, employment and
discipline of inmates; and (c) generally, for carry
ing into effect the purposes and provisions of this
Act". Section 29(3) provides that the Commission
er may issue directives and it reads as follows:
29....
(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.
Turning to the Regulations adopted by Order in
Council No. P.C. 1962-302 on March 8, 1962 7 ,
sections 1.13, 1.14, 1.15, and 1.16 make distinc
tions between Commissioners' directives, divisional
staff instructions, standing orders, and routine
orders. Section 1.15 deals with Standing Orders
and section 1.15(1) reads as follows:
1.15. (1) An institutional head may, under the authority of
the Commissioner, issue Standing Orders which shall include
all orders that are peculiar to his institution.
It would appear that if Mr. Reynett had issued
any Standing Order relating to marriage of prison
ers in the British Columbia Penitentiary of which
he is Institutional Head (and no such Standing
Order was produced) there might be a serious
question as to his authority to issue such an order
as it would be doubtful if such an order could be
"peculiar to his institution". Whether such an
order exists however or was properly made by him
the decision made might well be within his author
ity as Institutional Head of the Institution. Section
1.12(1) of the Regulations as amended by P.C.
1972-2327 on September 21, 1972 8 reads as
follows:
1.12. (1) The institutional head is responsible for the direc
tion of his staff, the organization, safety and security of his
institution and the correctional training of all inmates confined
therein.
Section 1.12(2) permits delegation to subordinates
of matters of routine or of minor administration
but requires him to give personal attention to "(a)
matters of general organization and policy, [and]
(b) important matters requiring his personal atten
tion and decision, ..." Certainly the decision relat
ing to the marriage is one to which Mr. Reynett
devoted his personal attention. Section 2.30 of the
Regulations reads as follows:
2.30. (1) Where the institutional head is satisfied that
(a) for the maintenance of good order and discipline in the
institution, or
7 SOR/62-90.
8 SOR/72-398.
(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.
Applicant Bruce as was previously indicated has
been kept in dissociation for nearly four years
because of his previous involvement in hostage
taking incidents and his counsel stressed that
although he has been dissociated he is not con
sidered as being under punishment not having been
sentenced to dissociation as such. The duration of
or necessity for this dissociation is not before the
Court in the present proceedings despite its long
duration. Mr. Reynett apparently feels that a con
tinuation of it is necessary "for the maintenance of
good order and discipline in the institution" and
that, although not under punishment, the privilege
and amenity of marriage (if this is one of the
privileges and amenities to which a prisoner is
entitled) is one that he can be deprived of because
it "cannot reasonably be granted having regard to
the limitations of the dissociation area and the
necessity for the effective operation thereof'.
There are a substantial number of reports and
opinions from psychiatrists annexed to Bruce's
affidavit recommending the desirability of his
transfer to the Maximum Security Matsqui Psy
chiatric Centre where treatment might prove
highly beneficial to him in the opinion of these
experts, and he has been seeking this transfer
which has been delayed however until the comple
tion of his trial concerning the hostage taking
incident in January 1978. This appears from a
letter to Sandra Meadley from the Honourable
Jean Jacques Biais, Solicitor General dated Octo-
ber 17, 1978.
Although Mr. Reynett's refusal was an adminis
trative decision the question was raised as to
whether he had complied with the duty to act
fairly in refusing permission for the marriage at
the present time. The last paragraph of his letter
indicating this refusal reads as follows:
I believe that at the present time marriage represents an
unrealistic expectation of self fulfillment. I realize that your
intentions are sincere and they represent a very positive process
of advancement and indicate to me a strong desire to change.
However, until such time that you can show the ability to
function in a normal prison setting I can not approve a wedding
taking place.
Counsel understandably raises the question as to
how he can show his ability to function in a normal
prison setting as long as he is held in dissociation.
Attention was drawn to the sections of the
Regulations indicating the importance of rehabili
tation in the penitentiary system. In particular
Regulation 2.10(1) and (2) reads as follows:
2.10. (1) There shall be, at each institution, an appropriate
program of inmate activities designed, as far as practicable, to
prepare inmates, upon discharge, to assume their responsibili
ties as citizens and to conform to the requirements of the law.
(2) For the purpose of giving effect to subsection (1) the
Commissioner shall, so far as practicable, make available to
each inmate who is capable of benefitting therefrom, academic
or vocational training, instructive and productive work, reli
gious and recreational activities and psychiatric, psychological
and social counselling.
However Regulation 2.27 reads:
2.27. It is the duty of the institutional head to take all
reasonable steps to ensure the safe custody of inmates commit
ted to his care.
and certainly this latter Regulation is especially
important in view of Bruce's past history in the
hostage taking incidents.
In so far as the law of British Columbia is
concerned there is no longer any impediment to
marriage. It has now been determined that Miss
Meadley would not be called as a witness against
him at his trial, and a marriage licence has been
obtained (although subsequent to Mr. Reynett's
decision to refuse permission to marry), a clergy
man has agreed to perform the marriage, and a
family consultant and his wife who have known
applicant Sandra Meadley for some years and
have discussed the situation with her are willing to
act as witnesses. This does not of course bind Mr.
Reynett if he has the authority under the Peniten-
tiary Service Regulations to refuse to give
permission.
Applicants' counsel invokes the cardinal rule of
interpretation that a statute cannot be so interpret
ed as to take away a right unless it does so
specifically, arguing that the right to marry is a
fundamental right which is not lost by incarcera
tion in a penitentiary, and that the Institutional
Head has no discretion to refuse permission for a
marriage to which no legal impediment exists
unless the safe custody of the inmate is involved or
the maintenance of good order and discipline in
the institution. In support of this argument he
refers to the case of Spooner Oils Limited v. The
Turner Valley Gas Conservation Board 9 at which
it is stated:
A legislative enactment is not to be read as prejudicially
affecting accrued rights, or "an existing status" (Main v. Stark
((1890) 15 App. Cas 384, at 388)), unless the language in
which it is expressed requires such a construction. The rule is
described by Coke as a "law of Parliament" (2 Inst. 292),
meaning, no doubt, that it is a rule based on the practice of
Parliament; the underlying assumption being that, when Parlia
ment intends prejudicially to affect such rights or such a status,
it declares its intention expressly, unless, at all events, that
intention is plainly manifested by unavoidable inference.
By analogy he points out that under the provisions
of the Canada Elections Act, R.S.C. 1970 (1st
Supp.), c. 14, s. 14(4)(e) disqualifies from voting
every person undergoing punishment as an inmate
in any penal institution for the commission of any
offence.
Incarceration must of necessity involve the loss
of a substantial number of privileges and amenities
but the question raised is whether all privileges
and amenities are lost save those specifically per
mitted by virtue of the Penitentiary Act and Regu
lations or whether conversely an inmate retains all
privileges save for those specifically taken away
from him by such Act and Regulations, as appli
cants contend. In this connection reference was
made to the case of Regina v. Institutional Head
of Beaver Creek Correctional Camp, Ex parte
9 [1933] S.C.R. 629 at p. 638.
MacCaud 10 at page 377 where it was stated:
It would be trite to say that an inmate of an institution
continues to enjoy all the civil rights of a person save those that
are taken away or interfered with by his having been lawfully
sentenced to imprisonment.
and again:
At the outset, it must be observed that the passing of a
sentence upon a convicted criminal extinguishes, for the period
of his lawful confinement, all his rights to liberty and to the
personal possession of property within the institution in which
he is confined, save to the extent, if any, that those rights are
expressly preserved by the Penitentiary Act.
At page 380 it is stated:
It is only where the action of the institutional head does not
affect the rights of the inmate as a person, or his statutory
rights as an inmate, that the institutional head is not answer
able to the Court for the propriety of his procedures and the
legality of his decision.
This does not mean however that there was a
requirement for Mr. Reynett to act judicially, as
appears from the majority decision of the Supreme
Court in the case of Martineau and Butters v. The
Matsqui Institution Inmate Disciplinary Board"
in which Pigeon J. rendered the majority judgment
and stated at page 133:
At the risk of repetition I will stress that this does not mean
that whenever the decision affects the right of the applicant,
there is a duty to act judicially.
In a further argument applicants invoke the
provisions of the Canadian Bill of Rights (supra)
relying on section 2 thereof which provides that
unless it is expressly declared by an Act of Parlia
ment that it shall operate notwithstanding the
Canadian Bill of Rights every law of Canada shall
be so construed and applied as not to abrogate, or
infringe on any of the rights or freedoms recog
nized and declared in the said Canadian Bill of
Rights. There is no provision in the Penitentiary
Act to the effect that it shall operate notwithstand
ing the Canadian Bill of Rights, but it should not
be concluded from this that the provisions of the
Canadian Bill of Rights are applicable in the
present case since the right to marry is not one of
the fundamental rights specifically protected by
that Act although it was a common law right not
specifically taken away by the provisions of the
10 [1969] 1 C.C.C. 371.
" [1978] I S.C.R. 118.
Penitentiary Act and Regulations. It is self evident
that a person confined to a prison or penitentiary
must of necessity be deprived of many rights, such
as the right to liberty and to enjoyment of prop
erty, and retains only those that may be permitted
by the Regulations. The fact that this is so does
not justify a conclusion that the Penitentiary Act
and Regulations thereunder infringe the Canadian
Bill of Rights merely because it is not specifically
stated therein that it shall operate notwithstanding
the said statute. Applicant Bruce contends that he
has been deprived of the right to equality before
the law contrary to the provisions of section 1 (b).
As Mr. Justice Ritchie pointed out however in the
Supreme Court case of The Attorney General of
Canada v. Lavell 12 :
There is no language anywhere in the Bill of Rights stipulating
that the laws of Canada are to be construed without discrimina
tion unless that discrimination involves the denial of one of the
guaranteed rights and freedoms ....
In the case of The Queen v. Burnshine 13 Martland
J. in rendering the majority judgment of the Court
referred at page 704 with approval to another
statement of Ritchie J. in the Lavell case (supra)
at page 1365 in which he stated:
In my view the meaning to be given to the language
employed in the Bill of Rights is the meaning which it bore in
Canada at the time when the Bill was enacted, and it follows
that the phrase "equality before the law" is to be construed in
light of the law existing in Canada at that time.
In considering the meaning to be attached to "equality
before the law" as those words occur in s. 1(b) of the Bill, I
think it important to point out that in my opinion this phrase is
not effective to invoke the egalitarian concept exemplified by
the 14th Amendment of the U.S. Constitution as interpreted by
the courts of that country. (See Smythe v. The Queen ([1971]
S.C.R. 680) per Fauteux C.J. at pp. 683 and 686). I think
rather that, having regard to the language employed in the
second paragraph of the preamble to the Bill of Rights, the
phrase "equality before the law" as used in s. 1 is to be read in
its context as a part of "the rule of law" to which over-riding
authority is accorded by the terms of that paragraph.
In the case of Attorney General of Canada v.
Canard" Beetz J. stated at page 205:
Equality before the law without discrimination by reason of
race, national origin, colour, religion or sex does not simply
mean equality with every other person within the class to whom
a particular law relates: such a meaning would render possible
all forms of prohibited discrimination so long as the other
12 [1974] S.C.R. 1349 at p. 1364.
13 [1975] 1 S.C.R. 693.
14 [1976] 1 S.C.R. 170 at p. 205.
members of a class were also being discriminated against in the
same way.
Applying these principles to the facts of the
present case it would appear that if there were
something in the Penitentiary Act or Regulations
specifically providing for the marriage of prisoners
and these provisions were not complied with or
applied unfairly in the case of Bruce he could
contend that he was being denied "equality before
the law". He might even conceivably claim dis
crimination if, even in the absence of such regula
tion, applications of prisoners to marry were
invariably granted and he alone had been refused
this permission. It is evident that this is not the
case however and that Mr. Reynett merely exer
cised his administrative discretion in refusing this
permission to Bruce, even though permission to
marry may have been given to other prisoners on
other occasions.
Reference was made to the American case of
Vawter Jr. v. Reed, a decision in the United States
District Court for the Eastern District of North
Carolina Raleigh Division bearing the No. 77-363-
CRT dated February 24, 1978, applicants' counsel
providing a photostat copy for the Court. This
reviewed some of the American jurisprudence
dealing with the right to marriage stating that:
The right to marry is a fundamental right protected by the
Constitution of the United States. Absent a compelling State
interest, which has not been shown here, or of institutional
security or administrative convenience, which have not been
shown either, that right remains paramount, and the Depart
ment of Correction regulation must fail the test of
constitutionality.
As already pointed out however the Canadian Bill
of Rights differs sufficiently from the provisions of
the American Constitution to make American
jurisprudence largely inapplicable in the interpre
tation of the Canadian Bill of Rights.
Applicants also invoke section 2(e) of the
Canadian Bill of Rights which prohibits the con
struction of a Canadian law so as to "deprive a
person of the right to a fair hearing in accordance
with the principles of fundamental justice for the
determination of his rights and obligations". It was
contended that by refusing to show applicant
Sandra Meadley the assessment reports made with
respect to her she had been deprived of a fair
hearing. The decision was a purely administrative
one however and not one required to be made on a
judicial or quasi-judicial basis. This does not mean
that there was not a duty imposed on Mr. Reynett
to act fairly. This question was dealt with defini
tively in a recent case of Nicholson v. Haldimand-
Norfolk Regional Board of Commissioners of
Police [1979] 1 S.C.R. 311, in which Laskin C.J.
at page 324 stated:
I accept, therefore, for present purposes and as a common law
principle what Megarry J. accepted in Bates v. Lord Hailsham
([1972] 1 W.L.R. 1373), at p. 1378, "that in the sphere of the
so-called quasi-judicial the rules of natural justice run, and that
in the administrative or executive field there is a general duty
of fairness".
and again on the same page:
The emergence of a notion of fairness involving something
less than the procedural protection of traditional natural justice
has been commented on in de Smith, Judicial Review of
Administrative Action, supra, at p. 208 ....
Respondent however refers to a quotation at
page 327 of the same judgment, from a decision of
Lord Denning in the case of Selvarajan v. Race
Relations Board [1976] 1 All E.R. 12, at which he
stated at page 19, after reviewing recent British
jurisprudence:
In all these cases it has been held that the investigating body is
under a duty to act fairly; but that which fairness requires
depends on the nature of the investigation and the consequences
which it may have on persons affected by it. The fundamental
rule is that, if a person may be subjected to pains or penalties,
or be exposed to prosecution or proceedings, or deprived of
remedies or redress, or in some such way adversely affected by
the investigation and report, then he should be told the case
made against him and be afforded a fair opportunity of answer
ing it. The investigating body is, however, the master of its own
procedure. It need not hold a hearing. It can do everything in
writing. It need not allow lawyers. It need not put every detail
of the case against a man. Suffice it if the broad grounds are
given. It need not name its informants. It can give the sub
stance only. Moreover it need not do everything itself. It can
employ secretaries and assistants to do all the preliminary work
and leave much to them. But, in the end, the investigating body
itself must come to its own decision and make its own report.
This was referred to in the Ontario Court of
Appeal, in the judgment of Re Downing and Gray-
don (1979) 21 O.R. 292 in which Blair J. states at
page 307:
Both Guay v. Lafleur, supra, and the Alliance des Profes-
seurs case, supra illustrate the traditional view that the princi
ples of natural justice govern the exercise of judicial powers but
not administrative powers. This distinction may now be some
what blurred by the developing doctrine of "fairness" appli
cable to the exercise of administrative powers: see Nicholson v.
Haldimand-Norfolk Regional Board of Com'rs of Police
[[1979] 1 S.C.R. 311]. The wholesome restraint thus placed on
arbitrariness in administrative decisions does not, however,
detract from the specific and well-established requirements of
natural justice which govern the exercise of judicial powers.
Reference was also made to the Nicholson case in
this Court in the case of Inuit Tapirisat of Canada
v. The Right Honourable Jules Léger [1979] 1
F.C. 710, in which Le Dain J. at page 716, after
referring to the Nicholson case states:
In view of this decision it is not sufficient in my respectful
opinion, when a question is raised as to a duty to act fairly in a
procedural sense, to find that the function or power in issue is
neither judicial nor quasi-judicial. Counsel for the respondents
submitted that the statement of claim does not raise the
question of a duty to act fairly as something distinct from
natural justice. The precise conceptual relationship of a proce
dural duty to act fairly to the rules of natural justice is not so
clear in my opinion that one should make technical distinctions
between them the basis for striking out a statement of claim. In
my view the statement of claim contains a sufficient allegation
of a denial of a "fair hearing" to permit the appellants to
invoke the duty to act fairly as a basis of their claim. I do not
think that references to natural justice in a case such as this one
should preclude reliance on a duty to act fairly.
Applying this jurisprudence to the facts of the
present case I find that there is nothing to indicate
that respondent Reynett did not act fairly. The
fact that the application for permission to marry
was under consideration for a lengthy period of
time indicates that it was not a decision made
without due consideration. It is indicated that
extensive documentation and reports were received
and that there were frequent conversations with
applicant Sandra Meadley. From paragraph 4 of
Mr. Reynett's letter it appears that the factors
which he deemed necessary to take into consider
ation were that the penitentiary is not a public
place, and whether the activity was one which
would affect the security of the institution. (In this
connection it was conceded that permission for
open or closed visits does not depend on marriage
status but even if he were married he would merely
be in the same position as other prisoners married
at the time of their incarceration. The nature of
visits depends on the conduct of the prisoner, not
on his marital status.)
He concludes that Bruce's past actions which
have qualified him for transfer to a Special Han
dling Unit, and the fact that he has been held in
segregation since 1975 lead him to conclude that
to grant permission to marry while in dissociation
would not be in the best interest of the security of
the institution, and therefore at the present time
that the proposed marriage represents an unrealis
tic expectation of self fulfilment. He recognizes
that the intentions of Bruce indicate a positive
process of advancement and a strong desire to
change and indicates that until such time that he
can show the ability to function in a normal prison
setting he cannot approve a wedding. In other
words he requires Bruce to prove his attitude has
really changed for the better before approving the
marriage but does not close the door to it altogeth
er. While it may be argued, as it was, that it is
difficult for Bruce to show that his attitude has
changed until he is released from dissociation into
a more normal environment, this is not an issue
before the Court in the present proceedings nor is
the fact that it has been indicated that he may be
held in dissociation pending the final determina
tion of the charges against him before being trans
ferred to the Regional Psychiatric Centre in
Abbotsford. This Court cannot review an adminis
trative decision by going into the merits of it but
must limit findings to a conclusion as to whether
the said decision and the manner in which it was
made indicates that this was not done fairly. The
evidence does not so indicate. No mandamus will
therefore be issued against Mr. Reynett nor any
injunction restraining him from interfering with
the proposed marriage, as he had the right and
authority to make this administrative decision, and
the Court cannot substitute its opinion for the
conclusion which he reached.
One further matter remains to be decided,
namely whether an injunction should be issued
restraining the respondent Donald Yeomans in his
capacity as Commissioner of Corrections, and any
other officer of the Canadian Penitentiary Service
directed by him from transferring applicant Bruce
to Millhaven Institution in the Province of Ontario
before completion of matters pertaining to his
proposed marriage.
It would appear that family considerations and
medical evidence should be taken into consider
ation in deciding whether a prisoner should be
moved, and some of the medical affidavits indicate
he might suffer a severe psychological set-back
and possibility of rehabilitation be diminished if
his desire to marry is not merely postponed until
his conduct improves, but if he is also transferred
to a place far distant from his family and fiancée
which would also apparently frustrate his desire to
undergo rehabilitation treatment at the Regional
Psychiatric Centre in Abbotsford. Moreover appli
cant Sandra Meadley indicates that she would
have to give up her employment to follow him to
the Millhaven area in order to continue her asso
ciation with him there, which would certainly pose
considerable hardship on her. While the question
of transfer is also clearly an administrative deci
sion, it also should be carried out fairly taking all
factors into consideration. This conclusion was
reached by Collier J. in the case of Magrath v.
The Queen [1978] 2 F.C. 232 in which he stated at
page 255:
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.
This conclusion was reached even before the deci
sion of the Nicholson case.
The question may well be academic at present
as apparently no decision has yet been made
respecting a transfer. However applicants under
standably have cause for some alarm as a result of
the somewhat peculiar phraseology of the second
last paragraph of Mr. Reynett's letter stating "The
fact that your past actions have qualified you for
transfer to a Special Handling Unit" and also the
statement in Mr. Yeomans' letter of September 5,
1978, to Mr. Bryan Williams who had written him
as attorney for Bruce and others, to the effect that
"You are correct in assuming that Mr. Bruce is
likely to be transferred to the Federal Adjustment
Centre at the Millhaven Institution in Ontario
once the Courts have dealt with his case."
Quite aside from the fact that the question of
transfer is an administrative decision and the
Court should not substitute its views for those of
the Commissioner of Corrections or his duly
authorized representatives it would appear that no
injunction should be issued on a quia timet basis to
stop a transfer which may never take place. It is
evident that a transfer will not be made until the
various actions in which Bruce is involved in Brit-
ish Columbia Courts have finally been terminated,
and by that time the situation on which the deci
sion will be made may very well have changed. For
example as indicated previously Bruce may then
be transferred to the Regional Psychiatric Centre
at Abbotsford for treatment, rather than to Mill-
haven for incarceration. It cannot be said that a
decision has not been made fairly when no final
decision has in fact yet been made, but there is
merely an indication of what may possibly take
place at some indeterminate future date. The
request for injunction must therefore also be
refused. As this is an unusual application raising a
serious legal issue which has not been dealt with
before, the dismissal of the application is made
without costs.
ORDER
Applicants' application is dismissed without
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.