T-2395-83
Gerald Russell and Norman Semmens (Appli-
cants)
v.
Peter Radley, Chairman, Collins Bay Penitentiary
Disciplinary Court (Respondent)
Trial Division, Muldoon J.—Ottawa, November 8,
1983 and January 23, 1984.
Constitutional law — Charter of Rights — Penitentiaries —
Disciplinary offences — Applicants charged under s.
39(c),(i),(k) of Regulations — Chairman of Disciplinary Court
adjourning hearings sine die — Motions to prohibit respondent
from proceeding with disciplinary hearings — Applicants
asserting right to be tried within reasonable time pursuant to s.
11(b) of Charter, and alleging lack of independence and
impartiality of tribunal, contrary to s. 11(d) — Respondent
arguing that "offence" within s. 11 excluding "disciplinary
offence" — Applicability of Charter at issue — Duty of Court
to apply, not evade, supreme law of Canada — Most limits on
inmates' rights and freedoms, prescribed by law, justified for
protection of society — S. 7 right to liberty justifiably forfeit
ed — S. 11 offence covering disciplinary offence — Applicants
retaining rights set out in s. 11(a),(b),(c),(g),(h),(i) — S. 11(e)
and (f) not applicable to disciplinary offences — S. 11(d)
entitling applicants to fair, not public, hearings — Restriction
justified for security reasons and by fact that Disciplinary
Court is tribunal, not court — Chairman having independence
as member of legal profession and person appointed by Gover
nor in Council to preside over Disciplinary Court — As
administrative tribunal, Disciplinary Court not subject to
plenitude of independence as possessed by true courts — No
allegation of bias, therefore no finding of lack of impartiality
— Disciplinary action requiring swiftness — Applicants not
tried within reasonable time pursuant to s. 11(d)'— Prohibi
tion granted and charges quashed — Canadian Charter of
Rights and Freedoms, being Part I of the Constitution Act,
1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.), ss. 2,
6, 7, 11, 12, 24 — Penitentiary Act, R.S.C. 1970, c. P-6, s. 29
(as am. by S.C. 1976-77, c. 53, s. 44) — Penitentiary Service
Regulations, C.R.C., c. 1251, ss. 38 (as am. by SOR/80-209, s.
2), 38.1 (as added idem, s. 3 and as am. by SOR/81-940, s. 1),
39 — Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10, s. 18
— National Defence Act, R.S.C. 1970, c. N-4, s. 120 —
Canadian Bill of Rights, R.S.C. 1970, Appendix III, ss. 1(b),
2 (f).
Penitentiaries — Disciplinary offences — Inmates charged
under s. 39(c),(i),(k) of Regulations — Motions to prohibit
respondent from proceeding with disciplinary hearings
adjourned sine die — Whether applicants entitled to be tried
within reasonable time under s. 11(b) of Charter of Rights
Whether respondent lacking independence and impartiality
contrary to s. 11(d) — Whether "disciplinary offence" within
meaning of "offence" in s. 11 — Protection of society justify
ing most limits on inmates' rights and freedoms — S. 7 right
to liberty justifiably forfeited — "Offence" in s. 11 embracing
"disciplinary offence" — Applicants retaining rights set out in
s. 11(a),(b),(c),(g),(h),(i) — S. 11(e) and (f) not applicable to
disciplinary offences — Disciplinary hearings to be fair, not
public — Security of penal institution and fact Disciplinary
Court tribunal, not true court, justifying limitation — No
allegation of bias, therefore no finding of lack of impartiality
— As administrative tribunal, Disciplinary Court not subject
to plenitude of independence possessed by true courts —
Chairman having independence as member of legal profession
and person appointed by Governor in Council to preside over
Disciplinary Court — Disciplinary action requiring swiftness
— Failure to try applicants within reasonable time pursuant to
s. 11(d) — Prohibition granted and charges quashed —
Canadian Charter of Rights and Freedoms, being Part I of the
Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c.
11 (U.K.), ss. 2, 6, 7, 11, 12, 24 — Penitentiary Act, R.S.C.
1970, c. P-6, s. 29 (as am. by S.C. 1976-77, c. 53, s. 44) —
Penitentiary Service Regulations, C.R.C., c. 1251, ss. 38 (as
am. by SOR/80-209, s. 2), 38.1 (as added idem, s. 3 and as
am. by SOR/81-940, s. 1), 39 — Federal Court Act, R.S.C.
1970 (2nd Supp.), c. 10, s. 18.
The applicants seek orders of prohibition restraining the
Chairman of a Disciplinary Court from proceeding with the
hearings of charges laid under section 39 of the Regulations.
Offence reports and "Notification of Charge" forms were
prepared and dates set for the disciplinary hearings. Appearing
before the Chairman, the applicants requested that the charges
be quashed on the ground that he was not independent. The
Chairman adjourned the hearings sine die, the question of the
tribunal's independence and impartiality being the subject of a
pending application before the Federal Court. However, the
Chairman had not, at the relevant time, been advised of the
withdrawal of that application. The applicants argue (1) that
by delaying the hearings, the Chairman denied them the right
to be tried within a reasonable time pursuant to paragraph
11(b) of the Charter, thereby breaching his common law duty
of fairness and prejudicing their defence; (2) that the Chairman
is not an independent tribunal within the meaning of paragraph
11(d) of the Charter and is therefore without jurisdiction; (3)
that there is a reasonable apprehension of bias preventing the
Chairman from being categorized as independent from the
Correctional Service of Canada; (4) that Commissioner's
Directive 213 which sets out the guidelines for inmate disci
pline, does not guarantee the applicants a fair hearing within
the meaning of paragraph 11(d) of the Charter in that the
tribunal lacks power to compel witnesses, that two correctional
staff members may attend and advise the tribunal whereas the
inmate is not entitled to any representation and that it requires
the hearing be heard by a person designated by the institutional
director; (5) and finally that they were denied the right to
liberty or security as guaranteed by section 7 of the Charter.
The respondent contends that the applicants are not persons
"charged with an offence" since the word "offence" in section
11 of the Charter excludes "disciplinary offences" and there
fore none of the rights guaranteed in section 11 should be
afforded to them. The issue is whether the provisions of the
Charter are applicable and if so, whether the applicants have
made out a case for relief.
Held, prohibition is granted and the charges are in effect
quashed.
The issue of whether the Charter be engaged in any particu
lar circumstance is never a matter of all or nothing. Because
the Charter is entrenched in the Constitution, it is part of the
supreme law of Canada and the Court's duty leads in the
direction of application rather than evasion of that supreme
law. Nor should the Court accept the notion that if the whole
text of a provision cannot be aptly applied, none of the provi
sion is apt to be applied. The articulation of the rights guaran
teed in that law are limited only by the measure of what is
demonstrably justifiable in a free and democratic society.
The respondent's argument that the "offence" referred to in
section 11 excludes any disciplinary offence fails. "Offence"
means conduct (truly, culpable misconduct) defined and pro
hibited by law, which, if found beyond a reasonable doubt to
have been committed in fact, is punishable by fine, imprison
ment or other penalty imposed according to law upon the
offender. By that standard, a disciplinary offence defined in the
Penitentiary Service Regulations clearly constitutes an
"offence" within the meaning of section 11 of the Charter.
Having been convicted of offences for which they were
sentenced to imprisonment, the applicants have justifiably for
feited their rights to liberty guaranteed by section 7 of the
Charter. They are, however, not to be punished or to be
confined in "a prison within a prison" except in accordance
with the principles of fundamental justice unless such depriva
tion be demonstrably justified in a free and democratic society.
Despite their convict status, the applicants' rights to life and
security of the person are, and remain, as vivid as any other
person's rights thereto. Equally they retain the rights expressed
in paragraphs I 1(a),(b),(c),(g),(h) and (i). Paragraphs 11(e)
and () are not applicable in the present circumstances.
Some limitations on an inmate's rights are demonstrably
justifiable in prison situations. "To be presumed innocent until
proven guilty according to law" is without any doubt applicable
to inmates such as these applicants. The Commissioner's Direc
tive is consonant with this, the law in question being those
portions of the Regulations made in relation to prison discipline
for swift, summary hearings.
The hearing must be fair, but need not be public. The
opening of such proceedings to the general public would con
tradict the requirements of paragraphs 29(1)(a) and (b) and
subsection 29(3) of the Penitentiary Act, subsection 38(1) of
the Regulations and the Commissioner's Directive in so far as
they aim to maintain the security of the institutions and the
discipline of inmates. Moreover, paragraph 11(d) of the
Charter clearly contemplates that an allegation of an offence
may be tried by a body or person other than a court. When a
court is intended, as is clear in Charter section 24, the English
language version employs that very word. The French language
version makes no distinction and employs the word "tribunal"
in reference to both sorts of institution. The Supreme Court of
Canada's characterization of a person who presides over a
disciplinary court pursuant to the Regulations as a federal
administrative tribunal has not been rendered invalid by the
Charter, but rather section 11 seems to have been formulated
with it in mind. Since disciplinary offences are adjudicated by a
tribunal which is not a court, it follows that the hearing does
not have to be public.
The requirement of fairness is not contravened by Regulation
38.1(2)(b) which obliges the Chairman to "consult, in the
presence of the accused inmate, with two officers designated by
the institutional head". It is not the two officers who make the
determination of guilt or otherwise, but the Chairman; there is
nothing inherently unfair in this situation.
The final requirement is that the hearing be "by an
independent and impartial tribunal". In regard to inmates,
there is nothing untoward about according the responsibility for
their disciplinary control to the head of the institution in which
they are undergoing lawful punishment, so long as the proce
dures are infused with fairness. However, by providing for the
appointment of "a person to preside over a disciplinary court",
and especially when that person bears the independence of a
member of the bar who is not associated with the Correctional
Service, such as the respondent, the Governor in Council
greatly augmented the reality as well as the appearance of
independence of the trier of allegations of disciplinary offences.
The disciplinary "court", being in reality an administrative
tribunal, is not required by any standard to evince the plenitude
of independence possessed by true courts. The conclusion of the
Supreme Court of Canada in MacKay v. The Queen, [1980] 2
S.C.R. 370 whereby the President of the Standing Court
Martial constituted an independent and impartial tribunal,
cannot but lead to the finding that the respondent does not lack
independence. As constituted, the administrative tribunal at
issue raises no reasonable apprehension in the minds of
informed persons, viewing the matter realistically and practi-
cally—having thought through it—about the independence of
the respondent, and others in his position. In the absence of any
allegation by applicants or confession by the Chairman regard
ing the latter's lack of impartiality, the tribunal must be found
to be impartial.
Official disciplinary action in prisons ought to be swift and
sure. The notion of swiftness is reified by paragraph 11(b)
which ensures to the applicants the right to be tried and either
convicted or acquitted within a reasonable time. A reasonable
time in regard to the trial of disciplinary offences will inevita
bly be of very short duration in most instances since everyone
essential to the proceedings, except the Chairman of the disci
plinary court, is actually imprisoned "within the walls" of the
institution. The fact that all the needed persons are ordinarily
within the institution is what differentiates the investigation,
accusation and disposition of a disciplinary offence from those
of an offence alleged to have been committed outside an
institution. In the case of an inmate charged with a disciplinary
offence, "to be tried within a reasonable time" must ordinarily
mean to be tried much more swiftly than is reasonable or even
possible in the case of a person charged with a criminal or penal
offence under federal or provincial law. In the present case, the
applicants were not tried within a reasonable time and by
adjourning their hearings sine die the respondent has uninten
tionally made it impossible to do so. It is neither necessary nor
desirable to impute fault to the respondent or even to the
applicants in the present circumstances. Accordingly, pursuant
to subsection 24(1) of the Charter, the provisions of the Feder
al Court Act are properly invoked to grant the applicants
orders in the nature of prohibition.
CASES JUDICIALLY CONSIDERED
FOLLOWED:
Martineau v. Matsqui Institution Disciplinary Board
(No. 2), [1980] 1 S.C.R. 602; 50 C.C.C. (2d) 353;
MacKay v. The Queen, [ 1980] 2 S.C.R. 370; 54 C.C.C.
(2d) 129.
APPLIED:
Regina v. Altseimer (1982), 38 O.R. (2d) 783 (C.A.); Re
Davidson and Disciplinary Board of Prison for Women et
al. (1981), 61 C.C.C. (2d) 520 (F.C.T.D.). '
CONSIDERED:
Regina v. Mingo et al. (1982), 2 C.C.C. (3d) 23
(B.C.S.C.).
REFERRED TO:
Regina v. Institutional Head of Beaver Creek Correc
tional Camp, ex parte MacCaud, [1969] 1 C.C.C. 371
(Ont. C.A.); Martineau et al. v. The Matsqui Institution
Inmate Disciplinary Board (No. 1), [1978] 1 S.C.R. 118;
33 C.C.C. (2d) 366; Howard v. Presiding Officer of the
Inmate Disciplinary Court of Stony Mountain Institu
tion, judgment dated September 1, 1983, Federal
Court—Trial Division, T-1112-83, not yet reported;
Regina v. Miller (1982), 39 O.R. (2d) 41; 29 C.R. (3d)
153 (C.A.); Regina v. Valente (No. 2) (1983), 2 C.C.C.
(3d) 417 (Ont. C.A.); The Committee for Justice and
Liberty, et al. v. The National Energy Board, et al.,
[1978] 1 S.C.R. 369; 68 D.L.R. (3d) 716.
COUNSEL:
Fergus J. O'Connor for applicants.
J. Pethes for respondent.
SOLICITORS:
Correctional Law Project, Kingston, for
applicants.
Deputy Attorney General of Canada for
respondent.
The following are the reasons for order ren
dered in English by
MULDOON J.: The two applicants have chosen
to join their respective and distinct complaints into
this proceeding in which each seeks an order in the
nature of prohibition restraining the Chairman of
the Institutional Disciplinary Court at Collins Bay
Institution in the person of Peter Radley, Esq.,
barrister and solicitor, from continuing with the
hearings, or either of them, pending before him in
regard to each of the applicants.
The hearings are the following:
1. In regard to Gerald Russell,
(i) a charge under s. 39. (i) of the Penitentiary Service
Regulations (hereafter, the Regulations) of having "contra-
band in his possession" on May 13, 1983, at 09:30 o'clock;
the Inmate Offence Report and Notification of Charge form
(hereafter: the Report) bears the following description:
"During a routine search of this inmate's cell, the following
items of contraband were found-1 extension cord with
remote control, electrical wiring, 1 electric motor, 2 tatooing
needles plus 1 fine pen nib, 1 wooden box, 1 steel box, 1
cardboard box of tracings,"; the name of the witnessing
officer is inscribed; the offence is categorized as "serious";
and there is noted that a copy of the Report was delivered to
the inmate at 12:45 o'clock on May 31, 1983, with a hearing
date proposed for 13:00 o'clock on May 25, 1983, before a
disciplinary court; and
(ii) a charge under s. 39 (k) of the Regulations of doing an
"act that is calculated to prejudice the good order of the
institution" at 19:30 o'clock on July 22, 1983; the Report
bears the following description: "Appeared to be under influ
ence of intoxicant"; the name of the witnessing officer is
inscribed; the offence is categorized as "serious"; and there is
noted that a copy of the Report was delivered to the inmate
at 13:00 o'clock on July 27, 1983, with a hearing date
proposed for 13:00 o'clock the same day, before a discipli
nary court.
2. In regard to Norman Semmens,
(i) a charge under s. 39 (c) of the Regulations of failing "to
work to the best of his ability" on July 23, 1983, at 08:00
o'clock; the Report bears the following description: "Failed
to come out to work" [in or at the dairy-barn]; the name of
the witnessing officer is inscribed; the offence is categorized
as "serious"; and there is noted that a copy of the Report was
delivered to the inmate at 11:20 o'clock on July 27, 1983,
with a hearing date proposed for 13:00 o'clock on August 3,
1983 before a disciplinary court; and
(ii) a charge under s. 39 (k) of the Regulations of doing an
"act that is calculated to prejudice the discipline and good
order of the institution" on July 22, 1983 at 22:30 o'clock;
the Report bears the following description: "Inmate Sem-
mens 6746 appeared to be under the influence of an intoxi
cant. Semmens had difficulty walking, and his speech was
not as usual"; the name of the witnessing officer is inscribed;
the offence is categorized as "serious" [Disposition of
inmate—Confined to cell]; and there is noted that a copy of
the Report was delivered to the inmate at 11:25 o'clock on
August [sic] 27, 1983, with a hearing date proposed for
13:00 o'clock on August 3, 1983 before a disciplinary court.
Both of Semmens' reports bear the notations
"adj." (adjourned)—"sine die" and the second
discloses that the hearing was previously remanded
to "1:00 7 Sept. 83 to speak w. Q.C.L.P." which
no doubt means Queen's Correctional Law
Project. In regard to both charges levied against
Russell which are under consideration in these
proceedings, it is apparent that the hearing date
proposals were somewhat optimistic by comparison
with the dates and times at which the copies of the
respective Reports were actually delivered to him.
Documents purporting to be affidavits were filed
on behalf of and apparently signed by each of the
applicants and two such documents were filed on
behalf of and apparently signed by the respondent.
These purported affidavits are respectively sup
posedly sworn before someone who is "A Commis
sioner, Etc." whatever that may be; and the appli
cant Russell's purported affidavit bears a piece of
paper taped to the foot of its second page contain
ing its last paragraph, a jurat and the signatures of
the deponent and "A Commissioner, Etc." Wheth
er or not these documents be affidavits, their
nature and authenticity were not questioned at the
hearing and so they will be regarded dubitante as
affidavits for the strictly limited purposes of these
proceedings.
Because of the importance of the issues raised in
these proceedings it would appear better to sacri
fice brevity in favour of thoroughness and par
ticularity in addressing the issues. In that vein,
although the applicants and the respondent all
express very similar versions of the events in issue,
it will be appropriate to peruse what each says.
In regard to Gerald Russell, he himself deposed
in his affidavit:
3. On May 31, 1983, I received notice of a charge that on May
13, 1983, I was allegedly in possession of contraband contrary
to section 39 (i) of the Penitentiary Service Regulations.
4. In June, 1983, I was first required to appear before Mr.
Peter Radley, a Barrister and Solicitor, in his capacity as the
Chairman of the Disciplinary Court at Collins Bay Institution
with respect to the offence mentioned above. At that time, I
requested an adjournment to seek legal advice. Mr. Radley
adjourned the case.
5. On July 27, 1983, I received notice of a charge that, on July
22, 1983, I was allegedly guilty of appearing to be under the
influence of an intoxicant.
6. In July, 1983, I appeared before Mr. Peter Radley in his
capacity as the Chairman of the Disciplinary Court at Collins
Bay Institution with respect to both of the charges mentioned
above.
7. At this appearance I requested that the charges be quashed
because the Chairman was not independent.
8. Mr. Radley thereupon adjourned the hearing until further
notice. No date was set for the further hearing.
9. To date, I have received no notice of any date having been
scheduled for the hearing of these charges.
10. I have at no time entered any plea with respect to these
charges.
11. I am advised and verily believe that the Chairman has no
power to compel the attendance of witnesses. If able to do so, I
could prove through witnesses that I am innocent of the
charges.
12. Because of the delay, I am no longer sure that the witnesses
capable of proving my innocence are still available or maintain
an accurate recollection of the events in question.
13. In any event, I do not know whether the witnesses will come
to speak on my behalf without being compelled to do so.
14. I verily believe that I have a good defence on the merits to
each charge.
In regard to Gerald Russell's complaints, the
respondent Peter Radley deposed:
4. On June 15, I presided over a Disciplinary Court at Collins
Bay Penitentiary. On that date, the applicant Gerald Russell
appeared before me with respect to a charge of possession of
contraband contrary to section 39 (i) of the Penitentiary Ser
vice Regulations. Attached hereto and marked as Exhibit "C"
to this my Affidavit is a true copy of the Inmate Offence
Report concerning the alleged offence of possession of
contraband.
5. When the applicant Gerald Russell appeared before me on
June 15, 1983, he requested an adjournment in order to consult
a lawyer and this adjournment was granted, on contraband
charge.
6. The applicant Gerald Russell next appeared before me on
July 6, 1983 and pleaded not guilty to the said charge. At that
time, the applicant Gerald Russell raised the question of my
independence as a Chairperson. I adjourned the hearing on the
charge of possession of contraband because of a pending
application in the Federal Court of Canada concerning the
independence of Roy B. Conacher, also a person designated by
the Solicitor General of Canada to preside over Disciplinary
Courts.
7. The applicant Gerald Russell appeared before me on July 13,
1983 and requested an adjournment because of the pending
application concerning Roy B. Conacher.
8. On July 27, 1983, the applicant Gerald Russell appeared
before me with respect to the charge of possession of contra
band and with respect to a charge of doing an act that is
calculated to prejudice the good order of the institution con
trary to section 39 (k) of the Penitentiary Service Regulations.
Attached hereto and marked as Exhibit "D" to this my Affida
vit is a true copy of the Inmate Offence Report concerning the
second charge.
9. On July 27, 1983, the applicant Gerald Russell requested
that both charges be adjourned because of the pending applica
tion concerning Roy B. Conacher and I granted his requests.
10. On August 3, 1983, the applicant Gerald Russell was
scheduled to appear before me with respect to the two charges;
however, there was insufficient time to deal with these charges
and as a result, Mr. Russell was not brought before me.
11. On August 10, 1983, the applicant Gerald Russell appeared
before me with respect to the two charges. At that time I
adjourned both charges sine die pending the resolution of the
application concerning Roy B. Conacher.
12. I am advised by Mario Dion, Legal Counsel to the Depart
ment of the Solicitor General, and verily believe that the
application to the Federal Court of Canada concerning the
independence of Roy B. Conacher was withdrawn by the
applicant the Attorney General of Canada on August 10, 1983.
I was not advised of the withdrawal of this application until
approximately the middle of the month of September, 1983.
In regard to Norman Semmens, he himself
deposed:
4. In July of 1983, I was an inmate of Frontenac Institution, a
minimum security, open concept institution commonly referred
to as a "camp" operated by the Correctional Service of
Canada, in the Township of Kingston, in the County of Fron-
tenac, in the Province of Ontario.
5. On July 25th, for my positive performance, I was promoted
from 3e to 5i rating in my job and I received a corresponding
increase in pay.
6. On July 27th, 1983, I received notices that, for an incident
that allegedly occurred on July 22, 1983, I was charged with
being under the influence of an intoxicant and, for an incident
that occurred on July 23, 1983, I was charged with failing to
attend work.
7. On July 28, 1983, I was transferred from Frontenac Institu
tion to Collins Bay Institution because of the aforementioned
charges.
8. Since July 28, 1983, I have been incarcerated at Collins Bay
Institution. At Collins Bay, I was reduced to the lowest pay
scale and was "warehoused" without employment until Sep-
tember 9th when I obtained employment working on the
grounds. Even now, though I have employment, I am denied
fence clearance due to those charges remaining outstanding.
9. Prior to this transfer my parole plans were well formulated. I
had a parole hearing scheduled for October and anticipated
being paroled to the St. Leonard's Halfway House in Brant-
ford. On October 3, I was advised by the representative of the
halfway house that I was not going to be accepted there and
that a major factor was the recent transfer to Collins Bay by
reason of those outstanding charges. I was advised by my
Classification Officer that I should agree to postpone my parole
hearing because, under the circumstances, my chances were not
good. I therefore agreed to postpone my hearing.
10. On August 24, 1983, I was first required to appear before
Mr. Peter Radley, a Barrister and Solicitor, in his capacity as
the Chairman of the Disciplinary Court at Collins Bay Institu
tion with respect to the two offences mentioned above. I
requested and was granted an adjournment to September 7th,
1983, to seek legal advice.
11. On September 7, 1983, I again appeared before Mr. Peter
Radley in his capacity as the Chairman of the Disciplinary
Court at Collins Bay Institution with respect to the same two
offences.
12. At this appearance, I advised Mr. Radley that I wished to
be represented by a lawyer during the proceedings and that I
did not wish to have the matter adjourned.
13. In response to my request, the Chairman informed me that
an adjournment would be ordered as witnesses need to be
called.
14. I then requested that the charges be quashed because the
Chairman was not independent.
15. The Chairman then asked me if I understood what I was
doing and I replied that I did. He then said that the reason he
asked if I understood what I was doing was because the hearing
would have to be adjourned to await a court decision with
respect to the question of independence.
16. I then informed Mr. Radley that I had been advised by Mr.
Fergus O'Connor, Barrister and Solicitor, and the Director of
the Correctional Law Project as well as by the Inmate Commit
tee at Collins Bay Institution that this matter was no longer
before the courts.
17. Mr. Radley then informed me that he had not received any
documentation as to whether or not court action was still
pending with respect to this issue.
18. I then requested a two week [sic] adjournment to prove that
this issue was no longer before the courts, and then resolve
these cases promptly.
19. Mr. Radley replied that the hearing would be adjourned
until further notice which he went on to explain could be in two
weeks, two months or a year or two.
20. To date, I have received no notice of any date having been
scheduled for the hearing of these charges.
21. I have at no time entered any plea with respect to these
charges.
22. I maintain that I have a defence on the merits to each of
these charges.
23. Attached hereto and marked as Exhibit "A" to this my
Affidavit is a copy of the Commissioner's Directive concerning
discipline.
24. The said Commissioner's Directive provides in s. 12b that
the hearing of a charge shall commence, as far as is practicable,
within seven working days from the date the charge was laid,
unless a justifiable reason warrants delay. The said Directive
further provides that, when circumstances require, the hearing
may be adjourned from time to time.
25. I am advised and verily believe that the Chairman has no
power to compel the attendance of witnesses. If able to do so, I
could prove through witnesses that I am innocent of the
charges.
26. Because of the delay, I am no longer sure that the witnesses
capable of proving my innocence are still available or maintain
an accurate recollection of the events in question.
27. In any event, I do not know whether the witnesses will come
to speak on my behalf without being compelled to do so.
28. This Affidavit is made in support of an application to
prohibit the Chairman from proceeding with the hearing of the
aforementioned charges on the grounds that to do so would
violate my right to a hearing within a reasonable time and my
right to a fair hearing before an independent and impartial
tribunal and that, in any event, it would not be in accordance
with procedural fairness.
In regard to Norman Semmens' complaints, the
respondent Peter Radley deposed:
4. On August 24, 1983, the applicant Norman Semmens
appeared before me in my capacity as a Chairman of a
Disciplinary Court at Collins Bay Penitentiary with respect to
two charges. The first charge related to his alleged failure to
work to the best of his ability contrary to section 39 (c) of the
Penitentiary Service Regulations and the second charge related
to an act that is calculated to prejudice the discipline or good
order of the institution contrary to section 39 (k) of the said
Regulations. Attached hereto and marked as Exhibits "C" and
"D" to this my Affidavit are true copies of the inmate offence
reports concerning the two charges.
5. When the applicant Norman Semmens appeared before me
on August 24, 1983, he requested an adjournment with respect
to both charges in order to seek legal advice. I granted his
requests for this purpose and adjourned both charges.
6. The applicant Norman Semmens next appeared before me
on September 7, 1983 at which time the charges were
adjourned at the request of the said applicant and at this time
he further indicated that he wished to be represented by a
lawyer in all future proceedings, as well as questioning my
independence. I adjourned the matter sine die in accordance
with the procedure followed in previous cases when the question
of independence was raised.
7. On September 28, 1983, the applicant Norman Semmens
then appeared on the list with respect to the two charges and at
that time I adjourned both charges due to my previous ruling
adjourning the matter sine die.
8. On October 5, 1983, the applicant Norman Semmens was
scheduled to appear before me with respect to both charges.
Since there was not sufficient time available, the applicant
Norman Semmens was not called before me.
9. On October 19, 1983, the applicant Norman Semmens again
appeared on the list, at his request; however, since I had been
served that very morning with the Federal Court of Canada
documents, I did not have him brought before me.
The applicants regard not only the particular
proceedings, but also the regime under which the
proceedings are taken as polyproblematic, because
they assert the following grounds for seeking
prohibition:
1) That by delaying the Applicants' hearings the said Chair
man has, as regards each of the four charges, denied the
Applicants the right to be tried within a reasonable time,
pursuant to section 11 (b) of the Constitution Act, 1982, Part 1
(hereinafter referred to as the Charter).
2) That in the alternative to ground number one, the said
Chairman has breached his common law duty of fairness by
delaying the Applicants' hearings and by adjourning them for
an indefinite period and has thereby, in relation to each of the
four charges, prejudiced the Applicants' defence, and therefore
to proceed would be unfair to the Applicants.
3) That the said Chairman is not an independent tribunal
within the meaning of section 11 (d) of the Charter and
therefore has no jurisdiction to try these offences.
4) That in the alternative to ground number three, there is a
reasonable apprehension of bias preventing the said Chairman
from being appropriately categorized as independent from the
Correctional Service of Canada and therefore to proceed on
any of the four charges would be unfair to the Applicants.
5) That the Commissioner's Directive 600-7-03, which directs
the Chairman as to the conduct of the hearing, does not
guarantee the Applicants a fair hearing within the meaning of
section 11 (d) of the Charter for the following reasons.
(a) There is no power in the tribunal to compel witnesses;
(b) Two correctional staff members are entitled to be present
to advise the Tribunal, yet no representative of the inmate is
entitled to be present;
(c) Although the Regulation provides that the Minister may
appoint a person to preside over a disciplinary court, the
Directive requires that the hearing be heard by a person
designated by the institutional director.
(d) Such other reasons as counsel may advise and this
Honourable Court permit.
6) That in the alternative to ground number five, the Appli
cants are denied their common law right to be treated fairly for
the reasons set out in paragraph five, or any of them.
7) That, as regards the charge against the Applicant Gerald
Russell that arose out of an incident alleged to have occurred
on July 22, 1983, the Applicant has not had notice of the
charge in sufficient detail to enable him to direct his mind to
the occasion and events upon which the charge is based,
contrary to the said Commissioner's Directive, and to the
requirement of fairness and to the right to a fair hearing
guaranteed by the Charter.
8) That, in all the circumstances, as regards each of the four
charges, or any of them, to allow the hearing to proceed would
allow the applicants, or either of them, to be deprived of the
right to liberty, or in the alternative, the right to security of
person, not in accordance with the principles of fundamental
justice, contrary to section 7 of the Charter.
The first question to be answered is whether
that part [Part I] of our Constitution Act, 1982,
[Schedule B, Canada Act 1982, 1982, c. 11
(U.K.)] which is called the Canadian Charter of
Rights and Freedoms (hereinafter the Charter) is
engaged by the circumstances and issues of law
presented in these proceedings. If the Charter be
not so engaged, or to the extent to which it is not
so engaged, the applicants then move the Court to
determine whether in the circumstances there be
any subsisting, pre-Charter, common law rights
which they can articulate in order to be accorded
the order in the nature of prohibition which they
seek.
That question of whether the Charter be
engaged or not is clearly more subtle than to call
for an all-or-nothing answer. Section 1 of the
Charter guarantees that "the rights and freedoms
set out in it [are] subject only to such reasonable
limits prescribed by law as can be demonstrably
justified in a free and democratic society". The
ordinary, sensible rule of construction here exacts
that, as between contending parties, the burden of
demonstrating that there are such limits prescribed
by law which are reasonable, and that they are
justified in such a society, is to be borne by the
party who seeks to limit the pertinent rights and
freedoms by reducing their operation or effect in
the circumstances. Such a rule is certainly not
unreasonable as between contending parties, but it
does not restrict the Court from making such a
determination as may be necessary in order to
construe the Charter in proceedings in which the
Charter is sought to be applied.
The applicants, undergoing sentences of impris
onment as they are, find themselves confined
within and restricted to a very special society
which is neither free nor democratic. It is a society
within a society. This free and democratic society
which is Canada, in common with all other socie
ties, whether free and democratic or totalitarian,
protects itself from those who commit serious
offences prescribed by its penal laws by segregat
ing the offenders in prisons. Just as the rights and
freedoms guaranteed by our constitutional tradi
tions and our Charter aim to protect our people
from the possible tyranny of State authority which
has always been the notable vice of our species, so
also the criminal law and other laws with penal
sanctions aim to protect our people from the pre
datory tyranny of criminal anarchy which has
always been the other notable vice of our species.
Until some more apt and humane method of deal
ing with criminal offenders be discovered or
devised, most of the limits imposed on their rights
and freedoms and prescribed by penal law are
demonstrably justified for protection and deter
rence in our society.
But neither our constitutional traditions nor our
Charter are so insensitively punitive as to strip
prison inmates of all rights and freedoms. The
applicants are however justifiably denied the pleni
tude of rights and even some of the fundamental
freedoms proclaimed in the Charter. Limits on the
freedoms of the press and other media of com
munication, of even peaceful assembly and of asso
ciation guaranteed in section 2 are surely more
easily justified in the prison society than in
Canadian society at large. So also, mobility rights
expressed in section 6 are obviously sharply cur
tailed with demonstrable justification among
prison inmates. Equally, while it is obvious that
inmates' rights to life and security of the person
proclaimed in section 7 are as invulnerable as
those of anyone else, they are deprived of their
right to liberty after a process of adjudication on
proof beyond a reasonable doubt which must be
presumed to have been in accordance with the
principles of fundamental justice unless and until
it be demonstrated to have been otherwise. At the
other end of the spectrum of applicability, it is
abundantly clear that the right not to be subjected
to any cruel and unusual treatment or punishment
enunciated in section 12 is pre-eminently a prison
er's right, even though that provision is formulated
for "everyone".
Thus, whether or not the Charter be engaged in
any particular circumstance is never a matter of
all or nothing. The structure, formulation and
mode of expression of the Charter evince a clear
intendment that some of the rights and freedoms
apply to all persons at all times, some apply only to
those who find themselves in a particular status or
plight, as indicated by section 11, and some may
be limited with demonstrable justification as, for
example, where the usual treatment or punishment
for criminal conduct is deprivation of liberty. This
view of the profile of applicability of the provisions
of the Charter is consonant with the profoundly
reasonable dictum of Mr. Justice Zuber in Regina
v. Altseimer' where he said:
... it may be appropriate to observe that the Charter does not
intend the transformation of our legal system or the paralysis of
law enforcement. Extravagant interpretations can only trivial
ize and diminish respect for the Charter which is part of the
supreme law of this country. 2
This view is equally consonant with the dictum of
Mr. Justice Dickson in the Supreme Court's pre-
Charter case of Martineau v. Matsqui Institution
Disciplinary Board (No. 2) 3 where he said:
' (1982), 38 O.R. (2d) 783 (C.A.).
2 Ibid., at p. 788.
3 [1980] 1 S.C.R. 602; 50 C.C.C. (2d) 353.
The rule of law must run within penitentiary walls. 4
Because the Charter is entrenched in the Constitu
tion, it is indeed part of the supreme law of
Canada. Accordingly, the Court's duty is to apply
it, or so much of it as can be reasonably applied, in
all circumstances, even if some of its provisions
cannot be reasonably applied simultaneously in the
same circumstances. The duty leads in the direc
tion of application rather than evasion of the
supreme law of Canada, and away from any notion
that if the whole text of a provision cannot be aptly
applied, none of the provision is apt to be applied.
Counsel for the respondent argues that the cir
cumstances disclosed in these proceedings do not
engage section 11 of the Charter because it applies
to "Any person charged with an offence", which
he contends does not mean a disciplinary offence
as provided in section 39 of the Penitentiary Ser
vice Regulations.' Those are the regulations which
are promulgated pursuant to section 29 of the
Penitentiary Act, 6 thus:
REGULATIONS AND RULES
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;
(b.1) prescribing the compensation that may be paid pursu
ant to section 28.1 and the manner of its payment;
(b.2) defining the term "spouse" and the expression "depend-
ent child" for the purposes of section 28.1;
(b.3) for the collection, administration and distribution of
estates of deceased inmates; and
(e) generally, for carrying into effect the purposes and
provisions of this 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,
4 Ibid., S.C.R. at p. 622, C.C.C. at p. 373.
6 C.R.C., c. 1251.
6 R.S.C. 1970, c. P-6 (as am. by S.C. 1976-77, c. 53, s. 44).
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.
It is noteworthy that the above-cited section of
the Penitentiary Act, by subsection (3), provides
for delegation of authority to the Commissioner of
Corrections to make rules consistent with the Act
and regulations for the discipline of inmates. Both
the applicant Semmens and the respondent annex
ed to their affidavits a copy of current rules, titled
"Guidelines for Inmate Discipline". A copy of
those rules, known as Commissioner's Directives,
is annexed to these reasons.*
The Service Regulations made by the Governor
in Council which provide for inmate discipline, the
disciplinary court and inmate offences are the
following:
Inmate Discipline
38. (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
(a) an order of the institutional head or an officer designated
by the institutional head; or
(b) an order of a disciplinary court.
(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) a forfeiture of statutory remission or earned remission or
both;
(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.
Disciplinary Court
38.1 (1) The Minister may appoint a person to preside over a
disciplinary court.
(2) A person appointed pursuant to subsection (1) shall
(a) conduct the hearing;
(b) consult, in the presence of the accused inmate, with two
officers designated by the institutional head;
* The Editor has chosen not to publish Commissioner's
Directive 213 and Annex "A" thereto in view of their length—
they comprise a document of some 23 pages.
(c) determine the guilt or innocence of an accused inmate
appearing before him; and
(d) on finding an accused inmate guilty, order such punish
ment authorized by these Regulations as he deems suitable.
(3) The remuneration of a person appointed pursuant to
subsection (1) shall be two hundred and fifty dollars for each
day that he presides over a disciplinary court, plus travelling
expenses in accordance with the Treasury Board travel
directive.
Inmate Offences
39. Every inmate commits a disciplinary offence who
(a) disobeys or fails to obey a lawful order of a penitentiary
officer,
(b) assaults or threatens to assault another person,
(c) refuses to work or fails to work to the best of his ability,
(d) leaves his work without permission of a penitentiary
officer,
(e) damages government property or the property of another
person,
(J) wilfully wastes food,
(g) is indecent, disrespectful or threatening in his actions,
language or writing toward any other person,
(h) wilfully disobeys or fails to obey any regulation or rule
governing the conduct of inmates,
(i) has contraband in his possession,
(j) deals in contraband with any other person,
(k) does any act that is calculated to prejudice the discipline
or good order of the institution,
(1) does any act with intent to escape or to assist another
inmate to escape,
(m) gives or offers a bribe or reward to any person for any
purpose,
(n) contravenes any rule, regulation or directive made under
the Act, or
(o) attempts to do anything mentioned in paragraphs (a) to
(n).
Relevant to the question of whether those
breaches of discipline proscribed by section 39 of
the Penitentiary Service Regulations are offences
which engage the provisions of section 11 of the
Charter, certain features of them should be con
sidered. First of all, they are designated as
offences. Some, but not all of those disciplinary
offences, constitute criminal offences of general
application, such as assault, bribery, and escaping
lawful custody. The possession of, and dealing in,
contraband could constitute a criminal offence, if
the contraband were property or substances which
are themselves interdicted by penal laws of general
application. There is no limitation period such as is
prescribed in the summary conviction provisions of
the Criminal Code [R.S.C. 1970, c. C-34] and in
provincial summary conviction statutes. Also note
worthy is the absence of a classification of offences
according to procedural incidents or substantive
gravity. Indeed, procedural provisions apart from
paragraph 38.1(2)(b) are not to be found. It is true
that subsections 38(3) and (4) of the Regulations
refer to offences which are "flagrant or serious"
but they do not designate those offences or define
the circumstances in which an offence is to be so
characterized. No appeal from a disciplinary
court's determination of guilt or innocence, or
from a punishment ordered, is provided.
Some of the noticed features of the disciplinary
offences are addressed by the Commissioner's
Directives. First of all, and in consonance with the
Regulations, the designation of "offence" is car
ried into the Directives. For those disciplinary
offences which constitute criminal offences, para
graph 9, CONTRAVENTION OF THE CRIMINAL
CODE, provides:
9. ...
Where an inmate commits a serious or flagrant offence
which clearly contravenes the Criminal Code of Canada, the
institutional director shall have an information laid with the
local law enforcement authority unless circumstances war
rant otherwise. In such instances, the institutional director
may order the administrative dissociation of the inmate
(PSR 2.30 (1)(a)) [sic], if he considers such action neces
sary, pending the inmate's appearance in outside court.
Although no limitation period is prescribed by
the Penitentiary Service Regulations, the Com
missioner's Directive, in paragraph 12, HEARING
OF CHARGES FOR SERIOUS OR FLAGRANT
OFFENCES, provides:
12. ...
b. The hearing of a charge shall commence, as far as is
practicable, within seven working days from the date the
charge was laid, unless a justifiable reason warrants delay,
but may, when circumstances require, be adjourned from
time to time.
There is still no specific provision limiting the time
within which a report charging a disciplinary
offence is to be completed or within which a
charge is to be laid, but paragraph 10 of the
Directives, ACTION BY WITNESSING OFFICER,
requires an "officer witnessing what he considers
to be an act of misconduct ... depending on the
circumstances [to] take one or more of the follow
ing steps":
10. ...
f. write an offence report on form PEN 1324, entitled
"Inmate Offence Report and Notification of Charge".
Also, paragraph 11 of the Directives, OFFENCE
REPORTS, exacts:
11....
a. An offence report shall be submitted to the officer desig
nated by the institutional director, who shall decide wheth
er or not further investigation is necessary, and shall
determine the category of offence. The senior security
officer on duty shall immediately be informed of serious or
flagrant offences committed, in order to enable hint to take
immediate action in relation to anything which may have a
bearing on the security of the institution.
The Directive is of course a set of rules made by
the Commissioner with statutory authority (so
long as intra vires) for the governance of the
members of the Service' at least. There is a clear
implication in the Directive to the effect that if
action is not to be taken immediately, it must
surely be taken within a reasonable time. Although
the Commissioner's Directive is not to be regarded
as "law" within the wording of section 28 of the
Federal Court Act [R.S.C. 1970 (2nd Supp.), c.
10], because "It is not in any legislative capacity
that the Commissioner is authorized to issue direc
tives, but in his administrative capacity", 8 yet,
even before the enactment of the Charter, inmates
were held to be entitled to have the Directives
applied fairly and in accordance with the rules of
natural justice. 9
The Penitentiary Service Regulations in section
38 single out "flagrant or serious disciplinary
offences" and, in subsection (4), provide for severe
punishments, which, in terms enforcing discipline
in that special, segregated society of penitentiary
inmates, appear to be demonstrably justifiable in a
free and democratic country where capital punish
' Regina v. Institutional Head of Beaver Creek Correctional
Camp, ex parte MacCaud, [1969] 1 C.C.C. 371 (Ont. C.A.).
8 Martineau et al. v. The Matsqui Institution Inmate Disci
plinary Board (No. 1), [1978] 1 S.C.R. 118, at p. 129; 33
C.C.C. (2d) 366, at p. 374.
9 Martineau (No. 2), supra, fn. 3, S.C.R. at p. 629, C.C.C.
at p. 378.
ment and the lash are currently eschewed by Par
liament's penal policy. It is, however, not the
Regulations but the Commissioner's Directives
which purport to prescribe any classification of
offences as between the categories of "minor" and
"serious or flagrant". Subsection 38(1) of the
Regulations imposes and accords responsibility for
the disciplinary control of inmates upon the insti
tutional head of each institution and, in regard to
classification or assessment of the gravity of any
particular offence actually charged, the Commis
sioner's Directives, in paragraph 7, DETERMINA
TION OF CATEGORY OF OFFENCE, provide as
follows:
7. ...
a. The guidelines defining an offence as either serious/fla-
grant or minor are not intended to restrict the discretion of
the institutional director or the officer designated by him,
in determining the category of offence. Each case shall be
assessed according to its own merits depending on the
circumstances surrounding the incident.
Thus, it is the institutional head or an officer
designated by him who in each instance makes an
ad hoc classification of each offence, consonant
with the authority delegated through the Peniten
tiary Act and the Penitentiary Service Regula
tions. Paragraph 5c of the Commissioner's Direc
tives provides that a person appointed to preside
over a disciplinary court, if any be actually
appointed, shall be assigned "to hear charges and
award punishment in all cases of serious or fla
grant offences". No specific authority is vested in
the president of a disciplinary court, upon hearing
the circumstances of an alleged offence, to reduce
the charge from a flagrant or serious offence to a
minor one and to convict the inmate of the latter,
however such authority may well be accorded by
an as yet undiscovered implication of paragraph
38.1(2)(d) of the Regulations.
In light of all these statutory, regulatory and
directive provisions, counsel for the respondent
asserts that each of the applicants is not a "person
charged with an offence" and that none of the
rights guaranteed in section 11 of the Charter is to
be accorded to the applicants. He cites the judg
ment of Mr. Justice Toy in Regina v. Mingo et
al. 10 in which it was held:
In my respectful view, the authors of the new Charter, when
they employed the unqualified word "offence" as opposed to
"criminal offence", were doing nothing more than providing for
the equal protection of Canadian citizens from breaches of
their rights under provincial as well as federal laws in so far as
public as opposed to private or domestic prohibitions were
concerned. The test of what constitutes an offence falls to be
determined by examining the enactment and determining, in so
far as federal legislation is concerned, if the allegation is dealt
with by a court with jurisdiction to hear an indictable or
summary conviction offence. In the case of provincial legisla
tion, if the allegation is dealt with by a court with jurisdiction
to hear an offence triable under the provisions of the Offence
Act, R.S.B.C. 1979, c. 305. A cursory examination of several
provincial statutes as well as the Penitentiary Act, R.S.C. 1970,
c. P-6, and its regulations, satisfies me that the provincial
Legislatures as well as Parliament have provided in their
enactments for internal disciplinary procedures in addition to
the creation of "offences" which are dealt with exclusively in
public courts of competent jurisdiction.'
With utmost respect to a learned and
experienced jurist, that analysis seems to make the
characterization and quality of an alleged miscon
duct dependent upon the nature of the tribunal
which adjudicates the allegation of misconduct.
The same qualification is placed on the characteri
zation of "offence" by Mr. Justice Nitikman,
another learned and experienced jurist, in the case
of Howard v. Presiding Officer of the Inmate
Disciplinary Court of Stony Mountain Institu
tion, 12 but there the qualification is unnecessary to
the finding of non-entitlement to counsel as a
matter of course, but rather as a matter of discre
tion, in disciplinary proceedings. There is no such
qualification expressed in section 11 or anywhere
else in the Charter. Indeed, the opposite is appar
ent. Thus, against this notion that the only
offences intended by section 11 are those which
are "dealt with by a court with jurisdiction to hear
an indictable or summary conviction offence", is
the plain fact that section 11 nowhere mentions
any "court". It speaks only of "an independent and
impartial tribunal" and of "a military tribunal".
10 (1982), 2 C.C.C. (3d) 23 (B.C.S.C.).
" Ibid., at p. 36.
12 Judgment dated September 1, 1983, Federal Court—Trial
Division, T-1112-83, not yet reported.
"Tribunal" is a generic word which includes
courts in its scope. Thus, in this generic sense, all
courts are tribunals, but all tribunals are not
courts. In effect, then, paragraph 11(d) of the
Charter clearly contemplates that an allegation of
an offence may well be tried by a body or person
other than a court. When a court is intended, as is
clear in section 24 of the Charter, the English
language version employs that very word i.e. "a
court of competent jurisdiction" and "Where ... a
court concludes." The French language version of
the Charter makes no distinction and employs the
word tribunal in reference to both sorts of institu
tion. Of course, well before the Charter was for
mulated and enacted the Supreme Court of
Canada 13 most emphatically characterized a
person who presides over a disciplinary court pur
suant to the Penitentiary Service Regulations as a
federal administrative tribunal who or which is
subject to supervision by certiorari (and perforce,
prohibition) pursuant to section 18 of the Federal
Court Act. That characterization has not been
rendered invalid by the Charter, but rather section
11 seems to have been formulated with it in mind.
Now, there seems to be no doubt that, because
the Charter is constitutionally entrenched, the
offences intended by section 11 are those created
by federal, provincial and municipal legislation as
indicated in Regina v. Mingo et al. 14 Equally,
there seems no doubt that the word "offence" in
section 11 excludes a tort or a délit. What then is
meant by "offence"? Surely it must mean conduct
(truly, culpable misconduct) defined and prohib
ited by law, which, if found beyond a reasonable
doubt to have been committed in fact, is punish
able by fine, imprisonment or other penalty
imposed according to law upon the culpable mis
creant, the offender. By that standard, a discipli
nary offence defined in the Penitentiary Service
Regulations is surely an offence within the mean
ing of section 11 of the Charter.
13 Martineau (No. 2), supra, fn. 3.
14 Supra, fn. 10.
It behooves the Court to declare and to apply
the supreme law of Canada in so far as it is
possible to do so, limiting the articulation of the
rights guaranteed in that law only by the measure
of what is demonstrably justifiable in a free and
democratic society. Section 11 of the Charter is
not intended to paralyze penitentiaries by over-
judicializing disciplinary proceedings. Mr. Justice
Cattanach of this Court expressed the realistic
need of maintaining firm control of inmates with a
wisdom which transcends the proclamation of the
Charter, but does not gainsay it, when, in Re
Davidson and Disciplinary Board of Prison for
Women et a1. 15 he observed:
The very nature of a prison is such prison officers must make
immediate decisions, the disobedience of which by inmates will
necessarily result in charges being laid and restrictions and
penalties imposed. This is essential and must be made as part of
the routine process. Disobedience to legitimate orders in this
regard must be followed by swift and certain punishment. If the
powers and authority of the prison officers are curbed and the
deterrent of speedy and sure punishment removed the conse
quences will be chaotic.
Thus it has been frequently said that interference with this
routine activity by the Courts would be as unthinkable as with
the actions of the sergeant-major on the parade ground and the
actions of the commanding officer in exercising powers of
summary discipline in his orderly room.
This, in my view, corresponds with the summary discipline to
be exercised by the warden of a penitentiary, and now by the
presiding officer of a Disciplinary Court appointed under s.
38.1 of the Penitentiary Service Regulations and is an integral
part of the operational management. 16
In the same vein, Mr. Justice Pigeon, in delivering
the majority reasons in Martineau (No. 2),"
expressed this admonition:
... it will be essential that the requirements of prison discipline
be borne in mind, just as it is essential that the requirements of
the effective administration of criminal justice be borne in mind
when dealing with applications for certiorari before trial .... It
is specially important that the remedy be granted only in cases
of serious injustice and that proper care be taken to prevent
such proceedings from being used to delay deserved punishment
so long that it is made ineffective, if not altogether avoided. ' g
'S (1981), 61 C.C.C. (2d) 520 (F.C.T.D.).
16 Ibid., at p. 534.
17 Supra, fn. 3.
18 Ibid., S.C.R. at p. 637, C.C.C. at p. 360.
In that same case Mr. Justice Dickson also
commented:
The very nature of a prison institution requires officers to make
"on the spot" disciplinary decisions and the power of judicial
review must be exercised with restraint .... The question is not
whether there has been a breach of the prison rules, but
whether there has been a breach of the duty to act fairly in all
the circumstances. 19
Mr. Justice Toy's view in Regina v. Mingo et
a 1. 2° expressed a similar appreciation of the con
stant realities of prison discipline, thus:
An examination of the disciplinary offences in s. 39 of the
current Penitentiary Service Regulations, C.R.C. 1978, c.
1251, satisfies me that the disciplinary offences and the hope
fully rapid disposition of those offences are a necessary adjunct
required by the institutional heads to maintain discipline for the
benefit not only of staff but other inmates in the institution as
well as the offending inmate. 21
The rights and freedoms proclaimed in April
1982 did not abolish those realities of prison disci
pline, even though some rights may now impinge
upon it. For example, section 11 can apply unex-
ceptionably in paragraphs (a),(b) and (c) to
inmates charged with disciplinary offences, where
as paragraphs (e) and (f) are not applicable. Para
graphs (g),(h) and (i) are not problematic.
Paragraph 11(d) needs analysis because it
would appear that in a prison situation some limi
tations are demonstrably justifiable. "To be pre
sumed innocent until proven guilty according to
law" is surely applicable to inmates in the appli
cants' circumstances. Indeed, the Commissioner's
Directives are consonant with this, bearing in mind
that the law in question is those portions of the
Penitentiary Service Regulations made in relation
to prison discipline, for swift, summary hearings.
"In a fair and public hearing" presents no prob
lem in regard to the requirement of the fairness of
the hearing. It must be fair. It does not need to be
public because it is properly held in a prison
setting from which the comings and goings of the
public are excluded. These disciplinary offences
19 Ibid., S.C.R. at p. 630, C.C.C. at p. 379.
20 Supra, fn. 10.
21 Ibid., at p. 34.
are adjudicated by a tribunal which is not a court
and here the distinction truly comes into play. If
the adjudicatory body were a court then the hear
ing would, of course, have to be public unless it
were authorized by law to be held with the public
excluded.
The applicants' counsel urged however that the
disciplinary tribunal, by its very composition, is
inherently unfair because the Regulations in para
graph 38.1(2)(b) oblige the president to "consult,
in the presence of the accused inmate, with two
officers designated by the institutional head". If
the presence of those two officers be a requirement
for the tribunal's being regularly constituted, it
nevertheless does not need to be emphasized that it
is not the two officers who make the determination
of guilt or otherwise. As was noted by Mr. Justice
Cattanach in Re Davidson and Disciplinary Board
of Prison for Women et al. 22 in this regard:
In this instance the presiding officer of the Disciplinary
Court was a barrister and solicitor. She was assisted by two
prison officers whom I would liken to assessors in an Admiralty
action before the Federal Court of Canada. 23
Nothing inherently unfair was found by Cattanach
J. in this situation. Accordingly, while the Charter
requirement of a fair hearing is engaged in these
circumstances, it is not contravened by the provi
sion requiring the presence of the two prison
officers.
The final requirement is that the hearing be "by
an independent and impartial tribunal". To be
sure, every court before which any person is
charged with an offence under the Criminal Code
or under provincial legislation or municipal
by-laws must be both independent and impartial.
Thus far, no court established, constituted and
maintained by either federal or provincial law has
been found to lack independence. From time to
time certain judges have declined to adjudicate
cases when they have themselves doubted their
own impartiality or when it has been called into
question, as may happen when, for example, a
close friend, or an adversary, a former associate, or
a member of the judge's family is involved in the
22 Supra, fn. 15.
23 Ibid., at p. 535.
case. Here, the applicants have not alleged that the
respondent is partial. They have alleged no facts
regarding any personal bias. He must then be
found to be impartial, in the absence of any allega
tion or confession of lacking impartiality.
The profile of the engagement of the Charter by
the applicants' circumstances can be summarized.
Having been convicted of whatever offences for
which they were sentenced to their respective
terms of imprisonment, the applicants have
already and justifiably forfeited their rights to
liberty guaranteed by section 7 of the Charter.
They are, however, not to be deprived of such
liberty as is accorded to the general inmate popu
lation that is to say, they are not to be punished or
to be confined in "a prison within a prison" 24
except in accordance with the principles of funda
mental justice, unless of course, such deprivation
be demonstrably justified in a free and democratic
society. The proper, unbiased conduct of the prison
disciplinary process evinces nothing inherently in
conflict with the principles of fundamental justice.
Despite their convict status, the applicants' rights
to life and security of the person, allowing for the
more hazardous conditions of prison life, are, and
remain, as vivid as any other person's rights there
to. Equally, they retain their rights expressed in
paragraphs (a),(b),(c),(g),(h) and (i) of section 11
of the Charter. None of the applicants' above-not
ed rights has been infringed or diminished in the
disciplinary proceedings which are the subject of
their applications. Paragraphs (e) (bail) and (f)
(trial by jury) of section 11 are not engaged by
being charged with a disciplinary offence, in these
circumstances at least.
Certain reasonable limits on an inmate's rights
according to paragraph 11(d) are prescribed by
law, 25 and are demonstrably justified. Thus, in
disciplinary proceedings an inmate has no right to
a public hearing because the opening of such
proceedings to the general public would be serious
24 Regina v. Miller (1982), 39 O.R. (2d) 41; 29 C.R. (3d)
153 (C.A.). Leave to appeal to the Supreme Court of Canada
granted November 1, 1982.
25 The Penitentiary Act (fn. 6) and the Penitentiary Service
Regulations (fn. 5).
ly at variance with the requirements of paragraphs
29(1)(a) and (b), and subsection (3), of the Act,
subsection 38(1) of the Regulations and the Com
missioner's Directives in so far as they aim to
maintain the security of the institutions, and the
custody, treatment and discipline of inmates. The
security risks alone militate against admission of
the general public, or journalists of whatever
medium, to such hearings.
In regard to inmates, especially, there is nothing
untoward about according the responsibility for
their disciplinary control to the head of the institu
tion in which they are undergoing lawful punish
ment, so long as the procedures are infused with
fairness. Even so, the institutional head may not be
seen to be sufficiently independent in the disposi
tion of alleged offences of a flagrant or serious
nature. By providing for the appointment of "a
person to preside over a disciplinary court", and
especially when that person bears the indepen
dence of a member of the bar who is not associated
with the Penitentiary Service, the Governor in
Council greatly augmented the reality as well as
the appearance of independence of the trier of
allegations of disciplinary offences. The discipli
nary "court", being in reality an administrative
tribunal, performing an administrative function, is
not required by any standard to evince the pleni
tude of independence possessed by true courts.
In seeking to apply paragraph 11(d) of the
Charter, one must consider whether the "tribunal"
in question be a court or an administrative tri
bunal. The judgment of the Supreme Court of
Canada in MacKay v. The Queen 26 provides help
in this regard. A member of the Armed Forces was
tried and convicted by a Standing Court Martial,
in Canada, pursuant to section 120 of the National
Defence Act 27 on charges of trafficking in and
possession of narcotics. He argued that paragraphs
1(b) and 2(f) of the Canadian Bill of Rights 28
rendered section 120 of the National Defence Act
inoperative for denying him equality before the
law and, more pertinently, for depriving him of a
fair and public hearing by an independent and
26 [1980] 2 S.C.R. 370; 54 C.C.C. (2d) 129.
27 R.S.C. 1970, c. N-4.
28 R.S.C. 1970, Appendix III.
impartial tribunal. In upholding the conviction, the
majority of the Judges of the Supreme Court
opined that neither of paragraphs 1(b) or 2(f) of
the Canadian Bill of Rights was offended. In their
view the accused was not deprived of a hearing by
an independent and impartial tribunal by reason of
the fact that the President of the Standing Court
Martial was a member of the Canadian Armed
Forces and a member of the Judge Advocate
General's Branch. That conclusion, when weighed
against the status and position of the respondent in
this present case, hardly leads one to a finding that
a person appointed to preside over a disciplinary
"court" lacks independence, even though the
standard of independence is not equal to that of a
real court. The question of independence, within
the meaning of paragraph 11(d) of the Charter,
was reviewed by the Ontario Court of Appeal in
the case of Regina v. Valente (No. 2), 29 but there
it was related to the Ontario Provincial Court
(Criminal Division) and not to a tribunal perform
ing administrative functions as in this present case.
Clearly, the independence of the respondent and
all other persons appointed to preside over discipli
nary courts would be rendered more apparent if
the institutional head were obliged to call them in
turn, and without discretionary selection, from a
rota or list which, once formulated, would remain
fixed as to sequence, even allowing for unavailabil-
ity. However, it is not necessary to judicialize
either the tribunal or its procedures in order to
achieve sufficient independence for prison discipli
nary tribunals to remain validly constituted within
the contemplation of paragraph 11(d) of the
Charter. As constituted, this administrative tri
bunal surely raises no reasonable apprehension in
the minds of informed persons, viewing the matter
realistically and practically, having thought
through it—to paraphrase Mr. Justice de
Grandpré 30 —about the independence of the
respondent, and others in his position. The
respondent, constituting and presiding over the
Disciplinary Court was independent, and as noted
earlier, he was impartial.
29 (1983), 2 C.C.C. (3d) 417 (Ont. C.A.).
3° In The Committee for Justice and Liberty, et al. v. The
National Energy Board, et al., [1978] 1 S.C.R. 369, at p.
394; 68 D.L.R. (3d) 716, at p. 735.
Given, then, that this particular administrative
tribunal, the Disciplinary Court, and its proce
dures do not evade but rather, engage, section 11
of the Charter according to a particular profile of
appropriate application, have the applicants, or
either of them, made out a case for relief in regard
to any of its provisions?
One can hardly dissent from the notion that
official disciplinary action in prisons ought to be
swift and sure. The notion certainly comprehends
procedural fairness and proof beyond a reasonable
doubt. The power and authority to conduct the
hearing surely carry with them, in the circum
stances of adjudicating an alleged offence, the
power and authority to secure the attendance
before the disciplinary court of those members of
the penitentiary staff and those inmates whom the
accused inmate reasonably requires to establish,
without redundance, any facts on which the
accused inmate seeks to rely in making a defence
to the charge. This is a necessary implication of
conducting a fair hearing and if the applicants be
correct in fearing that there is any substantial
doubt about it, then that which is now to be
implied could and should be specifically articulat
ed in either the statute or the Regulations. It is not
the Court's business to legislate, of course, but
rather it is to construe the legislation and if there
be such necessary implications in it, as there are
here, to declare them.
As noted, the disciplinary action ought, as well,
to be swift. This notion is actually reified by
paragraph 11(b) which ensures to the applicants
the right to be tried, and either to be convicted or
to be acquitted, within a reasonable time. A
reasonable time in regard to the trial of discipli
nary offences will inevitably be of very short dura
tion in most instances because everyone who is
essential to the proceedings, except the president
of the disciplinary court, comes daily to work or is
actually imprisoned "within the walls", of the
institution. The institution within which the
offence is alleged to have been committed is the
proper venue for the proceedings, which ought to
be completed before needed staff members go on
vacation and before needed inmates are trans
ferred or released. Such swiftness will not always
be possible, but the provision that the time within
which the accused is to be tried needs to be
"reasonable", accords some flexibility for those
exceptional cases in which it is just not possible to
be so swift as is ordinarily possible.
The fact that all the needed persons are ordinar
ily within the walls is what differentiates the inves
tigation, accusation and disposition of a discipli
nary offence from those of an offence alleged to
have been committed outside an institution. There,
among the public at large, the suspects, the ulti
mate accused and witnesses may leave the munici
pality, the province, or even the country, and those
who are so inclined have the wide world in which
to hide, disperse or destroy evidence, in order to
frustrate and impede the investigation. There, as
well, the process of law is a judicial process and
not one conducted before an administrative tri
bunal. So it is that in the case of an inmate
charged with a disciplinary offence, "to be tried
within a reasonable time" must ordinarily mean to
be tried much more swiftly than is reasonable or
often even possible in the case of a person who is
charged with a criminal or penal offence under
federal or provincial laws of general application.
In the special circumstances of this present case
the applicants were not tried within a reasonable
time and finally, by adjourning their hearings sine
die, the respondent has quite unintentionally made
it impossible to do so. It is to be hoped that the
special circumstances of the applicants' cases will
not often, if ever, be repeated. With hindsight one
could wish that the respondent had not regarded
the questioning of the tribunal's independence and
impartiality as a matter which demanded such an
adjournment, or that he had been promptly
advised of the withdrawal of the application for
mandamus brought in this Court against his fellow
tribunal president Mr. Conacher. With hindsight
one wishes that the respondent had proceeded to
hear the applicants' cases with all swiftness. It is
neither necessary nor desirable to impute fault to
the respondent, or even to the applicants, in the
circumstances of this case. Once the law's applica-
tion to disciplinary offences is settled, such circum
stances ought not to be factors in future cases.
However, the circumstances of this case cannot be
wished away and they have truly prevented the
applicants, who are persons charged with offences,
from being tried within a reasonable time. Accord
ingly, pursuant to subsection 24(1) of the Canadi-
an Charter of Rights and Freedoms, the provisions
of the Federal Court Act are properly invoked to
grant to the applicants the orders in the nature of
prohibition which they seek and to prohibit Peter
Radley, and any other person authorized by law to
conduct a hearing on the charges against the appli
cants mentioned in their notice of motion, from
conducting hearings on those charges. In effect the
charges are quashed even though the applicants
sought prohibition and not certiorari, because
prohibition in these circumstances produces the
same effect.
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