A-190-82
Réjean Morin (Appellant)
v.
National SHU Review Committee, J. U. M.
Sauvé, Deputy Commissioner, Security, Chairman
of the National Committee, Dr. Garneau, Deputy
Commissioner, Inmate Program, Howard Mans-
field, Director General, Medical Services, Dr. R.
Benoit, designated representative for the Montreal
Region, Mr. St-Onge and Mr. Bonhomme, Correc
tional Investigator, all members of the National
Committee reviewing the case of Réjean Morin
(Respondents)
Court of Appeal, Pratte, Hugessen and Mac-
Guigan JJ.—Montreal, March 18; Ottawa, May
15, 1985.
Penitentiaries — Jury acquitting appellant of murdering
fellow inmate — Deputy Commissioner, Security, maintaining
appellant in special handling unit (SHU) despite acquittal —
Deputy Commissioner misdirecting himself as to law —
Review of double jeopardy principles and doctrine of res
judicata in Canada, England and U.S.A. — Identity of matter
test and criminal sanctions test, derived from American
authorities, satisfied — Deputy Commissioner relying on mat
ters previously decided upon by jury — No evidence of appel
lant's misbehaviour other than that before jury — Correction
al proceedings analogous to criminal sanctions — Parties not
raising issue of Deputy Commissioner's authority to order
detention in SHU's — Appeal allowed — Penitentiary Act,
R.S.C. 1970, c. P-6, ss. 13(3), 29(1) (as am. by S.C. 1976-77 c.
53, s. 44),(3) — Penitentiary Service Regulations, C.R.C., c.
1251, ss. 2, 13, 14, 40(1),(2) — Federal Court Act, R.S.C. 1970
(2nd Supp.), c. 10, s. 18 — Canadian Bill of Rights, R.S.C.
1970, Appendix III, s. 1(a).
Estoppel — Res judicata — Inmate acquitted by jury of
murdering fellow inmate — Deputy Commissioner, Security,
maintaining inmate in special handling unit (SHU) despite
acquittal — Res judicata and double jeopardy principles in
Canada, England and U.S.A. reviewed — American "collater-
al estoppel" approach adopted — Tests of identity of matter
and criminal sanctions, derived from American experience, met
— American authorities having precedential value in Canada
through doctrine of res judicata — Appeal allowed — Decla
ration granted that respondents without legal justification for
detaining appellant in SHU — Constitution Act, 1867, 30 &
31 Vict., c. 3 (U.K.) /R.S.C. 1970, Appendix II, No. 5] (as am.
by Canada Act 1982, 1982, c. 1l (U.K.), Schedule to the
Constitution Act, 1982, Item 1), s. 91(27) — Criminal Code,
R.S.C. 1970, c. 34, s. 688 — U.S. Const., Amends. V, XIV.
The appellant was charged with the first-degree murder of a
fellow inmate while serving a term of life imprisonment at a
maximum security institution. Upon examination of his file by
the National Special Handling Unit Review Committee,
chaired by the Deputy Commissioner, Security, the appellant
was placed in a special handling unit (SHU), a facility estab
lished pursuant to Commissioner's Directive 274, to segregate
particularly dangerous inmates. Following his trial and acquit
tal by a jury, the appellant requested a transfer to a medium
security institution. That request was denied by the Deputy
Commissioner, Security. The denial was predicated upon the
appellant having in fact committed the murder. The appellant
unsuccessfully challenged his continued detention by way of
habeas corpus before the Superior Court of Montreal. He then
appealed by way of certiorari and mandamus before the Trial
Division of this Court but his application was dismissed. He
now appeals that decision.
Held (Pratte J. dissenting), the appeal should be allowed and
a declaration granted that the respondents had no legal justifi
cation for holding the appellant in a SHU after his acquittal.
Per MacGuigan J. (Hugessen J. concurring): Ordinary
prison transfers are purely administrative acts, and the decision
to maintain a convict in a SHU, which may be conceptualized
as a transfer decision of a negative kind, is administrative
rather than quasi-judicial in nature. Judicial review of adminis
trative action, although limited, does exist. The landmark case
in this area is Padfield and Others v. Minister of Agriculture,
Fisheries and Food, [1968] A.C. 997, where the House of
Lords held that the consideration of legally irrelevant factors
and a misuse of power by the Minister amounted to ultra vires
action. Lord Upjohn, adopting the classification of Lord Parker
C.J. of the Divisional Court, held that (a) an outright refusal to
consider the relevant matter, or (b) a misdirection as to law, or
(c) the taking into account of some wholly irrelevant or
extraneous consideration, or (d) the failure to take into account
a relevant consideration, amounted to unlawful behaviour.
The principal question for decision is thus whether the
Deputy Commissioner may have misdirected himself in law so
as to be subject to judicial intervention. That question involves
an examination of the double jeopardy concept and of the
doctrine of res judicata. Canadian and English authorities
dealt with that doctrine only within the context of successive
criminal prosecutions. In the United States the "collateral
estoppel" approach, "derived from the broader common law
principle of res judicata" was adopted to "compensate for the
deficiencies of the double jeopardy protection".
According to Stewart J. in Ashe v. Swenson, 397 U.S. 436
(1970), collateral estoppel "means simply that when an issue of
ultimate fact has once been determined by a valid and final
judgment, that issue cannot again be litigated between the
same parties in any future lawsuit". That "approach requires a
court to `examine the record of a prior proceeding' ... with an
eye to all the circumstances of the proceedings".
One cannot disagree with the proposition that a criminal
acquittal cannot be a bar to a subsequent civil action arising
out of the same facts. The real question is how to classify the
subsequent proceedings when the latter is not on all fours with
the usual characteristics of either criminal or civil litigation.
What may usefully be derived from the American authorities
are two tests of collateral estoppel, viz. the identity of matter
test and the criminal sanctions test. In the light of the accept
ance of collateral estoppel in Canada through the doctrine of
res judicata, the American authorities would seem to be of
persuasive value as precedents in Canada, despite the absence
of a constitutional charter of rights at the relevant time in this
Country.
(1) Identity of matter test
The real basis for the Deputy Commissioner's decision to
continue detention was the documentation he had in his posses
sion which convinced him that the appellant was guilty of the
murder. Those documents had been made available and taken
into account at the appellant's trial. Moreover, the Deputy
Commissioner continued to rely on a pre-trial statement of a
witness and on the before-death declaration of the victim,
another matter before the jury. In summary, the Deputy Com
missioner had no evidence whatsoever of any misbehaviour
other than what was before the jury. Thus, the very issue which
the Deputy Commissioner purported to decide, i.e. whether the
appellant had murdered his fellow inmate, had already been
decided by a jury on the basis of the same facts. The identity of
matter test appears to be more than adequately satisfied.
(2) Criminal sanctions test
The language, purpose and effect of section 8 of Commis
sioner's Directive 274, which deals with special handling units,
must be examined in order to determine whether correctional
proceedings, such as those at issue, should be analogized to
criminal or civil matters.
The language of section 8 is that of the criminal law:
"particularly dangerous", "prejudicial to the maintenance of
good order", "reasonable and probable grounds", "intends or is
likely to commit a violent or dangerous act". Its purpose, to
confine in a special way those whose conduct is marked by
serious incidents of violence, is also similar to that of the
criminal law. The effect of the SHU confinement, viz. intensifi
cation of imprisonment in a prison within a prison, is also
highly analogous to a criminal sanction. It is preventive legisla
tion, akin to section 688 of the Criminal Code dealing with
dangerous offenders. For there to be a "criminal" sanction for
purposes of res judicata, an offence does not have to be
criminal within the meaning of subsection 91(27) of the Con
stitution Act, 1867. The predecessor form of section 688 sur
vived that test before the Supreme Court of Canada in Ex p.
Matticks (1973), 10 C.C.C. (2d) 438 (Que. C.A.), [1973]
S.C.R. vi sub nom. Pearson v. Lecorre. The Court also held in
that case that section 688 was not rendered inoperative by the
Canadian Bill of Rights. Furthermore, the Deputy Commis
sioner's admission that his action was taken "to avoid further
problems" is itself an objective that is characteristic of criminal
law. The proper analogy is thus clearly to criminal rather than
to civil law.
The respondents' argument that the decision at issue is a
discretionary one with which the Court should not interfere,
could be tenable only if there were other facts for the decision
which had not been available in the criminal process. In the
present circumstances, the respondents clearly misdirected
themselves as to the law when they refused to give full effect to
the criminal acquittal.
The issue of the authority of the Deputy Commissioner to
make decisions either as to the initial or continued detention of
inmates in SHU's was not raised, the parties not having argued
the legality of the Commissioner's Directives. The Directives,
valid as internal directives binding penitentiary officials in
relation to the internal discipline of the Correctional Service,
could not confer any legal authority in relation to inmates, least
of all where they conflicted with the Regulations made under
the authority of the Governor in Council. The only legal
authority with respect to transfers to SHU's appeared to be
found in subsection 40(1) of the Penitentiary Service Regula
tions which puts the responsibility on the institutional head or
his lawful deputy to order the administrative or protective
dissociation of inmates.
Per Pratte J. (dissenting): The Deputy Commissioner was
responsible for deciding whether the appellant was a dangerous
inmate. He could not fulfil this obligation by relying blindly on
the verdict of a jury rendered in accordance with very special
rules of evidence. The Deputy Commissioner could base his
decision on what appeared most probable to him: the jury could
not base its verdict on mere probability. The verdict of acquittal
meant only that, as weighed by the jury, the evidence left a
reasonable doubt as to the guilt of the appellant: the decision at
issue meant that, in the Deputy Commissioner's opinion, the
appellant was probably guilty. The contradiction existing be
tween the verdict and the decision at issue was therefore more
apparent than real and is no more shocking than that which
may exist between the decisions of civil and criminal courts.
CASES JUDICIALLY CONSIDERED
FOLLOWED:
Ex p. Matticks (1973), 10 C.C.C. (2d) 438 (Que. C.A.),
[1973] S.C.R. vi sub nom. Pearson v. Lecorre.
APPLIED:
Padfield and Others v. Minister of Agriculture, Fisheries
and Food, [1968] A.C. 997 (H.L.).
DISTINGUISHED:
Helvering v. Mitchell, 303 U.S. 376 (1938); One Lot
Emerald Cut Stones v. United States, 409 U.S. 232
(1972).
CONSIDERED:
Coffey y United States, 116 U.S. 436 (1886); Ashe v.
Swenson, 397 U.S. 436 (1970); Barrows v. Hogan, 379 F.
Supp. 314 (D. Pa. 1974); People v. Grayson, 319 N.E. 2d
43 (I11. 1974); People v. Robart, 29 Cal. App. 3d 891;
106 Cal. Rptr. 51 (1973); Standlee v. Rhay, 557 F.2d
1303 (9th Cir. 1977), reversing 403 F. Supp. 1247 (E.D.
Wash. 1975); Bledsoe v. State of Wash. Bd. of Prison
Terms & Paroles (Mem.), 608 F.2d 396 (9th Cir. 1979).
REFERRED TO:
Industrial Acceptance Corp. v. Couture, [1954] S.C.R.
34; Re Miller and The Queen (1982), 141 D.L.R. (3d)
330 (Ont. C.A.); Minister of Manpower and Immigra
tion v. Hardayal, [1978] 1 S.C.R. 470; Martineau et al.
v. Matsqui Institution Inmate Disciplinary Board,
[1978] 1 S.C.R. 118; Roncarelli v. Duplessis, [1959]
S.C.R. 121; Re Chester (1984), 40 C.R. (3d) 146 (Ont.
H.C.); Bruce et al. v. Yeomans et al., [1980] 1 F.C. 583;
(1979), 49 C.C.C. (2d) 346 (T.D.); Re Anaskan and The
Queen (1977), 34 C.C.C. (2d) 361 (Ont. C.A.); R v
Secretary of State for the Home Dept, ex p McAvoy,
[1984] 3 All E.R. 417 (Q.B.D.); Connelly v. Director of
Public Prosecutions, [1964] A.C. 1254 (H.L.); Director
of Public Prosecutions v. Humphrys, [1977] A.C. 1
(H.L.); Rourke v. R., [1978] 1 S.C.R. 1021; Kienapple v.
The Queen, [1975] 1 S.C.R. 729; Benton v. Maryland,
395 U.S. 784 (1969); Avery v. State—Alaska, 616 P.2d
872 (Alaska 1980); U.S. v. Chambers, 429 F.2d 410 (3d
Cir. 1970); State ex rel. Flowers v. Department of
Health and Social Services, 260 N.W.2d 727 (Wis.
1978); R. v. Mingo et al. (1982), 2 C.C.C. (3d) 23
(B.C.S.C.); In re Prisons Act and in re Pollard et al.,
judgment dated February 20, 1980, Supreme Court of
Newfoundland, file no. 1355, not reported; R. v. Simon
(1982), 141 D.L.R. (3d) 380 (N.W.T.S.C.); R. v. Gus-
tayson (1982), 143 D.L.R. (3d) 491 (B.C.S.C.).
COUNSEL:
Nicole Daignault for appellant.
Stephen E. Barry for respondents.
SOLICITORS:
Daignault et Lemonde, Montreal, for appel
lant.
Deputy Attorney General of Canada for
respondents.
The , following is the English version of the
reasons for judgment rendered by
PRATTE J. (dissenting): The appellant was serv
ing a term of life imprisonment when he was
charged with the murder of another inmate. The
appellant was then placed in a special handling
unit, reserved for dangerous inmates. He was tried
and was acquitted. Citing this acquittal, he applied
to be transferred out of the special handling unit.
The respondent Sauvé, whose function it was to
decide which inmates were sufficiently dangerous
to warrant placement in a special handling unit,
rejected this application.' He felt that the appel
lant was dangerous because, in his opinion, it was
very likely that he had committed the murder with
which he was charged.
The appellant then appealed by way of certio-
rari and mandamus: he maintained that the
respondent Sauvé had acted illegally in refusing to
give effect to the verdict of acquittal, and asked
the Court to direct him to transfer the appellant
out of the special handling unit.
The Trial Judge dismissed this application, and
in my view correctly.
The respondent Sauvé was responsible for decid
ing whether the appellant was a dangerous inmate.
He could not fulfil this obligation by replying
blindly on the verdict of a jury rendered in accord
ance with very special rules of evidence. The
respondent could base his decision on what
appeared most probable to him: the jury could not
base its verdict on mere probability. The verdict of
acquittal meant only that, as weighed by the jury,
the evidence left a reasonable doubt as to the guilt
of the appellant: the decision at issue meant that,
in the respondent Sauvé's opinion, the appellant
was probably guilty. The contradiction existing
between the verdict and the decision at issue was
therefore more apparent than real, and in any case
1 The parties assumed that the Penitentiary Act [R.S.C.
1970, c. P-6] and the regulations and directives adopted under
it made the Deputy Commissioner responsible for deciding
which inmates should be placed in a special handling unit. In
fact, on reading these provisions closely it may be doubted that
the Deputy Commissioner has this power. However, it is not
necessary to express any opinion on this point, which was not
mentioned by the parties.
it does not seem any more shocking to me than
that which may exist between the decisions of civil
and criminal courts. 2
For the reasons given by the Trial Judge, I
would dismiss the appeal with costs.
* * *
The following are the reasons for judgment
rendered in English by
MACGUIGAN J.: This case of first impression
concerns the right of correctional authorities to
impose on a penitentiary inmate acquitted by a
jury of murdering a fellow prisoner subsequent
administrative sanctions predicated upon his
having in fact committed the murder.
I
The appellant, Réjean Morin, was sentenced on
March 18, 1970, to life imprisonment for non-
capital murder. He was incarcerated at the Leclerc
Institute, a medium security institution, on Sep-
tember 21, 1980, when a fellow inmate, Claude
Payeur, was killed following a quarrel with
another inmate, Serge Cousineau. On September
22, the appellant was transferred to the Centre for
Correctional Development ["CCD"] at Laval, a
maximum security institution, where he was put in
segregation.
On September 25 he testified at the Coroner's
Inquest, along with Serge Cousineau, and the
Coroner concluded that Payeur met a violent
death for which Cousineau alone was responsible.
Nevertheless, on October 2 the appellant was
charged with first-degree murder. On November
27, after his file was examined by the National
Special Handling Unit ("SHU") Review Commit
2 See Industrial Acceptance Corp. v. Couture, [1954] S.C.R.
34, at p. 43, where Fauteux J. [as he then was], after finding in
a civil matter that one Gagnon had stolen a truck, added:
[TRANSLATION] It may be that if charged with stealing
this truck in the criminal courts Gagnon would have a
defence or explanations to offer, and that on the foregoing
evidence a jury would be convinced of his guilt beyond all
doubt. However, in a civil case where the evidence of a crime
is material to success of the action, the applicable rule of
evidence is not that governing a criminal case, in which penal
sanctions are sought, but the rule governing the hearing of an
action at civil law.
tee, presided over by the Deputy Commissioner
Security (the respondent J. U. M. Sauvé), the
decision was taken by Mr. Sauvé to transfer the
appellant to an SHU, and on December 5 he was
transferred to the SHU at Laval.
The appellant stood trial for murder before Mr.
Justice Jean-Paul Bergeron on May 19, 1981, and
on May 30 the jury returned a verdict of acquittal.
The next day the appellant brought a grievance to
the Deputy, Commissioner Security requesting a
transfer to a medium security institution. On June
15 Mr. Sauvé replied that his case would be
considered by the National SHU Review Commit
tee. On July 8, during a hearing before the Review
Committee, Sauvé advised him that the decision
with respect to him would be delayed pending
police reports. On July 22 the appellant's counsel
asked the Commissioner of Corrections for infor
mation as to these reports. On August 11 the
Commissioner confirmed that the National Review
Committee was still awaiting these reports. Final
ly, on September 10 the appellant was informed by
a letter signed by Mr. Sauvé of the decision to
keep him in the SHU.
Subsequently the appellant sought a writ of
habeas corpus from the Superior Court of Mon-
treal challenging his continued detention in the
SHU. On November 18 Mr. Justice Jean-Paul
Bergeron refused to grant the writ on the ground
that, in the light of section 18 of the Federal Court
Act [R.S.C. 1970 (2nd Supp.), c. 10], he lacked
jurisdiction. (In Re Miller and The Queen (1982),
141 D.L.R. (3d) 330 (Ont. C.A.), at page 339,
now under appeal to the Supreme Court of
Canada, Cory J.A. for the Ontario Court of
Appeal, refused to follow Bergeron J., holding that
section 18 of the Federal Court Act does not oust
the jurisdiction of a provincial superior court to
grant habeas corpus, with certiorari in aid, in
relation to SHU inmates.) On December 8 the
appellant brought an originating notice of motion
in the Trial Division seeking a writ of certiorari to
strike down the decision of the respondents. On
February 4, 1982, the Trial Division rejected this
motion, and the appellant then appealed to this
Court against this judgment.
Although the appellant has long since been
transferred out of an SHU this Court exercised its
discretion to hear the matter on its merits, since a
final judicial determination while an inmate was
still in the SHU would always be difficult: Minis
ter of Manpower and Immigration v. Hardayal,
[1978] 1 S.C.R. 470.
II
It should be noted that all of the events herein
occurred before the coming into effect of the
Canadian Charter of Rights and Freedoms [being
Part I of the Constitution Act, 1982, Schedule B,
Canada Act 1982, 1982, c. 11 (U.K.)]. The
Canadian Bill of Rights [R.S.C. 1970, Appendix
III] was, of course, in effect, but it contains no
explicit rule against double jeopardy, though it
does in paragraph 1(a) recognize the concept of
"due process of law".
The statutory provision dealing with the transfer
of inmates in federal penitentiaries is found in
subsection 13(3) of the Penitentiary Act, which
reads as follows:
13....
(3) Where a person has been sentenced or committed to
penitentiary, the Commissioner or any officer directed by the
Commissioner may, by warrant under his hand, direct that the
person shall be committed or transferred to any penitentiary in
Canada, whether or not that person has been received in the
relevant penitentiary named in rules made under subsection
( 2 ).
Subsections 29(1) [as am. by S.C. 1976-77, c.
53, s. 44] and (3) of the same Act also have to be
taken into account:
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;
(c) generally, for carrying into effect the purposes and
provisions of this Act.
(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.
Section 13 of the Penitentiary Service Regula
tions, C.R.C., c. 1251, provides for the custody of
inmates as follows:
13. The inmate shall, in accordance with directives, be
confined in the institution that seems most appropriate having
regard to
(a) the degree and kind of custodial control considered
necessary or desirable for the protection of society, and
(b) the program of correctional training considered most
appropriate for the inmate.
Commissioner's Directive 274 ("CD 274") en
titled "Special Handling Units" was issued to deal
with the exceptional situation that particularly
dangerous inmates can pose for the discipline and
good order of penitentiaries. The relevant sections
are as follows:
3. To establish facilities and programs for inmates who have
been identified as particularly dangerous.
4. "Particularly dangerous inmate" is one whose documented
actions or demonstrated intentions while in custody in any
jurisdiction, or under sentence, constitute a persistent and
serious threat to staff, inmates or other persons. Such
conduct includes, but is not limited to, one or more of the
following:
a. abduction, hostage-taking, forcible confinement or
attempts;
b. serious incidents of violence;
c. escape or attempted or planned escape with violence;
d. conviction for the murder of a peace officer, inmate or
other person while under sentence;
e. the manufacture, possession, introduction, or attempted
introduction into an institution of firearms, ammunition,
high explosives or any offensive weapon, as defined in
the Criminal Code;
f. incitement or conspiracy to kill or riot; and
g. substantiated serious threats against the life of a staff
member, inmate or other person.
5. "Special Handling Unit" (SHU) is a facility established to
deal exclusively with inmates who, in addition to requiring
maximum security, have been identified as being particu
larly dangerous.
6. The "National SHU Review Committee" consists of the
Deputy Commissioner Security, as chairman, the Deputy
Commissioner Offender Programs, the Director General
Medical Services and senior regional representatives from
the receiving and sending regions as specified by the
Regional Director General. The Deputy Commissioner
Security is delegated the authority, pursuant to section
13(3) of the Penitentiary Act, to authorize the transfer of
inmates into and out of an SHU.
7. An SHU shall provide:
a. adequate protection for staff and inmates;
b. protection for the inmate from repercussions of his
inclination to dangerous and violent behaviour; and
c. opportunity for each inmate to earn, insofar as is practi
cable, his return to the general population of a max
imum security institution.
8. The prime consideration for transfer of an inmate to an
SHU shall be that he is assessed to be particularly danger
ous and, therefore, prejudicial to the maintenance of good
order in the institution. Inmates shall not be transferred to
an SHU on suspicion alone. Reasonable and probable
grounds for believing an inmate intends or is likely to
commit a violent or dangerous act must be supported by
documentation.
9. When the Warden is satisfied that an inmate should be
placed in an SHU because he is considered to be particu
larly dangerous, the inmate shall first be placed in
administrative segregation (section 40(1) of the Peniten
tiary Service Regulations) and be given written notifica
tion, before the end of the next working day, of the reasons
for that action.
12. Within the limits imposed by the physical resources avail
able, the program shall consist of four phases:
a. phase 1—initial assessment;
b. phase 2—a limited association;
c. phase 3—increased association; and
d. phase 4—conditional transfer to a maximum security
institution.
13. An inmate in phase 1 is in administrative segregation by
virtue of an order issued by the Warden, pursuant to
section 40(1)(a) of the Penitentiary Service Regulations.
The case of each such inmate will be reviewed, pursuant to
section 40 of the Penitentiary Service Regulations to deter
mine whether or not he should be permitted to associate
with other inmates.
15. The mere progression through phases 1, 2 and 3 does not
in itself justify a conditional transfer to a maximum
security institution, which will be authorized by the Na
tional SHU Review Committee when it considers the
inmate is no longer a threat to staff, inmates or others.
III
The most fundamental issue is as to the author
ity of the Deputy Commissioner Security to make
decisions either as to the continuance of inmates in
SHU's or as to their initial confinement there.
SHU's were brought into being in the late
1970's as a means of segregating particularly dan
gerous inmates. The criteria for application were
expanded and the policy and procedures set out in
CD 274, supra.
In the light of the majority decision in the
Supreme Court of Canada in Martineau et al. v.
Matsqui Institution Inmate Disciplinary Board,
[1978] 1 S.C.R. 118, at page 129, Commissioner's
Directives live at best in a kind of legal twilight,
"clearly of an administrative, not a legislative,
nature", "no more than directions as to the
manner of carrying out ... duties in the adminis
tration of the institution".
CD 274 is ambiguous with respect to the respec
tive authority of the Deputy Commissioner Secu
rity, the National SHU Review Committee and
the various institutional heads. The respondent
Sauvé's understanding is indicated in paragraph
16 of his affidavit in which he states that the
Committee is purely advisory to its chairman
(himself) "who is the only one who has the deci
sion making power to transfer an inmate to an
SHU". This seems to be in keeping with section 6
of the Directive (supra), which states that the
Deputy Commissioner Security is delegated the
authority, pursuant to subsection 13(3) of the Act,
to authorize the transfer of inmates into and out of
an SHU.
However, despite this provision in section 6,
section 9 provides that "When the Warden is
satisfied that an inmate should be placed in an
SHU ... the inmate shall first be placed in
administrative segregation (section 40(1) of the
Penitentiary Service Regulations)" (emphasis
added), and section 13 squarely states that "An
inmate in phase 1 [of the SHU] is in administra
tive segregation by virtue of an order issued by the
Warden, pursuant to section 40(1)(a) of the Peni
tentiary Service Regulations."
Subsection 40(1) of the Regulations provides in
paragraph (a) for so-called administrative dis-
sociation, whereas paragraph (b) authorizes
so-called protective dissociation or protective
custody:
40. (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 limita
tions of the dissociation area and the necessity for the
effective operation thereof.
Generally speaking, in agency the principal
retains concurrent powers, and as a general rule an
authority which delegates its powers does not
divest itself of them. However, the situation is
entirely different when legislation vests certain
powers in a particular body or officer. Hence in
Roncarelli v. Duplessis, [1959] S.C.R. 121 the
Supreme Court of Canada held inter alia that the
Quebec Liquor Commission could not cancel a
liquor licence at the instigation of the Premier of
the Province. As it was put by Martland J. (at
page 157), "The Commission cannot abdicate its
own functions and powers and act upon such direc
tion." There is thus a duty to exercise personal
judgment in every case unless it can be inferred
from what S. A. de Smith, Judicial Review of
Administrative Action, London, Stevens & Sons
Limited, 4th ed., 1980, page 310, calls "the
cumulative effect of the subject-matter and their
hierarchical subordination" that it is proper for
lower officials to receive instructions. This was
apparently the interpretation of Holland J. in Re
Chester (1984), 40 C.R. (3d) 146 (Onto H.C.),
169:
By s. 13(3) of the statute [the Penitentiary Act], The Deputy
Commissioner of Security is authorized to transfer an inmate
from one institution to another. That power, coupled with the
general power of the commissioner and his deputies to pass
rules, orders and directives binding upon their subordinates,
gives the deputy commissioner ample authority to direct the
warden of the receiving institution to place an inmate in a
section of the institution which is more severe than others.
However, the power to make regulations under
section 29 of the Penitentiary Act is vested in the
Governor in Council, not the Commissioner, and
the Commissioner's unlimited power to delegate
with respect to transfers must be understood to be
limited by subsection 40(1) of the Regulations, by
which the Governor in Council bestows the power
of administrative dissociation upon institutional
heads. "Institutional head" is defined in Regula
tion 2 to mean "the officer who has been appointed
under the Act or these Regulations to be in charge
of an institution and includes, during his absence
or inability to act, his lawful deputy". In other
words, there can be delegation "down", but not
"up". Moreover, section 14 of the Regulations
provides that:
14. The file of an inmate shall be carefully reviewed before
any decision is made concerning the classification, reclassifica-
tion or transfer of the inmate.
This is a clear requirement for personal consider
ation and decision by the institutional director or
his lawful deputy. An instruction from above could
not substitute for such personal consideration and
decision-making.
Not only was there no evidence of such personal
consideration in the instant case, but Mr. P.
Goulem, the director of the CCD and the SHU
Quebec during the whole of the relevant time,
evidently reflecting his understanding of the Com
missioner's Directives, replied in writing to the
appellant's complaint of December 11 that he
lacked any authority in the matter, whether in
relation to transfer in or transfer out of the SHU:
[TRANSLATION] MEMORANDUM
TO 5744—MORIN, Réjean
FROM Director,
CCD
December 15, 1980
SUBJECT YOUR REQUEST OF DECEMBER 11, 1980
I have considered your aforementioned request and my com
ments are as follows.
I have no authority to decide on inter-institution transfers, still
less transfers into or out of an SHU. The Commissioner's
Directive which you read is clear on this point.
Your transfer was recommended by a regional committee as
the result of your being charged with the murder of an inmate
at Leclerc, and this recommendation was accepted by the
National Committee on dangerous cases, which decided that
you would be transferred to the Quebec SHU.
(signed)
P. Goulem,
Director
c.c.: Case 5744—MORIN, Réjean.
Mr. Sauvé's understanding of the law as
revealed in his affidavit (paragraphs 10 and 11)
was that the institutional head makes a prelim
inary decision as to the inmate's suitability for the
SHU, orders him into administrative segregation,
and causes the matter to be submitted to a region
al SHU review committee and ultimately to the
National Review Committee for a final decision,
and this procedure appears to have been followed
in the instant case. This would make sense if CD
274 had legal status.
Nevertheless the only legal authority with
respect to transfers to SHU's appears to be found
in subsection 40(1), which puts the responsibility
squarely on the institutional director or his lawful
deputy. The Commissioner's Directives are valid
as internal directives binding penitentiary officials
in relation to the internal discipline of the Correc
tional Service but it would not appear how they
could confer any legal authority in relation to
inmates (or others outside the Service), least of all
where they conflict with the Regulations made
under the authority of the Governor in Council.
However, in the light of the fact that the parties
did not argue the legality of the Commissioner's
Directives and the further fact that the appellant
appeared to concede the lawfulness of the initial
SHU confinement, I believe I should refrain from
deciding the case on this ground.
IV
The attack which the appellant made in this
Court on the judgment of first instance was car
ried out with the accuracy of a blunderbuss. It
would therefore be useful to clarify the real issues
here.
First, ordinary prison transfers are purely
administrative acts: Bruce et al. v. Yeomans et al.,
[1980] 1 F.C. 583; (1979), 49 C.C.C. (2d) 346
(T.D.). As MacKinnon J.A. (as he then was) put it
for the Ontario Court of Appeal in Re Anaskan
and The Queen (1977), 34 C.C.C. (2d) 361, at
page 370, "It is ... a matter of policy and of
administrative concern where an individual serves
his or her sentence." The decision to maintain the
appellant in an SHU following his acquittal may
be conceptualized as a transfer decision of a nega
tive kind, although, as I have suggested, it may
have to receive its legal justification through the
medium of administrative dissociation, but in any
event it is administrative rather than quasi-judicial
in nature.
Second, the appellant was not able to identify
any issue of lack of fairness or natural justice on
the facts here. An administrative hearing was held
on the appellant's grievance, and there appear to
have been no relevant procedural irregularities,
such as those committed in Re Chester, supra.
Third, judicial review of purely administrative
action is limited, but clearly does exist. The land
mark case in this area of administrative law is
Padfield and Others v. Minister of Agriculture,
Fisheries and Food, [1968] A.C. 997 (H.L.). In
that case the House of Lords held that the Minis
ter's discretion as to whether to appoint a commit
tee to investigate complaints was not unfettered,
and that the reasons he had given for his refusal
showed that he had acted ultra vires, by taking
into account factors that were legally irrelevant
and by using his power in a way calculated to
frustrate the policy of the legislation in question.
Four of the five members of the House of Lords
went so far as to say that even if the Minister had
given no reasons for his decision, once a prima
fade case of misuse of power had been established,
it would have been open to the Court to infer in
any event that he had acted unlawfully.
Lord Upjohn, in the majority, perhaps most
clearly expressed the law with respect to judicial
review (at page 1058):
So it is clear that the Minister has a discretion and the real
question for this House to consider is how far that discretion is
subject to judicial control.
My Lords, upon the basic principles of law to be applied
there was no real difference of opinion, the great question being
how they should be applied to this case.
The Minister in exercising his powers and duties, conferred
upon him by statute, can only be controlled by a prerogative
writ which will only issue if he acts unlawfully. Unlawful
behaviour by the Minister may be stated with sufficient accura
cy for the purposes of the present appeal (and here I adopt the
classification of Lord Parker C.J., in the Divisional Court): (a)
by an outright refusal to consider the relevant matter, or (b) by
misdirecting himself in point of law, or (c) by taking into
account some wholly irrelevant or extraneous consideration, or
(d) by wholly omitting to take into account a relevant
consideration.
There is ample authority for these propositions which were
not challenged in argument. In practice they merge into one
another and ultimately it becomes a question whether for one
reason or another the Minister has acted unlawfully in the
sense of misdirecting himself in law, that is, not merely in
respect of some point of law but by failing to observe the other
headings I have mentioned.
In the recent case of R v Secretary of State for
the Home Dept, ex p McAvoy, [1984] 3 All E.R.
417 (Q.B.D.), at page 422, Webster J. held that a
Minister's decision to move a prisoner from one
prison to another was "reviewable in principle if it
is shown that he has misdirected himself in law".
However, on the facts in that case the Court held
the Minister had not misdirected himself in law in
that he had not failed to take into account the
applicant's rights to visits by his family and his
lawyers.
The principal question for decision in the instant
case is thus whether the respondent Sauvé may
have misdirected himself in law so as to be subject
to judicial intervention. What is therefore the law
with respect to correctional sanctions following an
acquittal in a criminal proceeding?
In his major study of the concept of double
jeopardy, Double Jeopardy, Oxford, Clarendon
Press, 1969, Professor Martin E. Friedland argues
(at page 117) that that aspect of res judicata
which prevents the Crown from calling into ques
tion issues determined in the accused's favour in
an earlier proceeding "is now accepted in most
English-speaking jurisdictions and is usually
referred to in Australia and England as `issue
estoppel'; in the United States as `collateral estop-
pel'; and in Canada as `res judicata' ".
Professor Friedland's conclusion with respect to
English law was based on Connelly v. Director of
Public Prosecutions, [ 1964] A.C. 1254 (H.L.), but
the House of Lords in Director of Public Prosecu
tions v. Humphrys, [1977] A.C. 1 subsequently
disowned his interpretation of Connelly in holding
that the doctrine of issue estoppel has no place in
English criminal law and that determination of an
issue in favour of the accused at a criminal trial is
no bar to evidence in a second trial directed to
establishing perjury at the first trial. Lord Hail-
sham (at page 31) went so far as to specifically
disapprove of Professor Friedland's views.
In Canada, the Connelly proposition of the
inherent jurisdiction of a court in criminal cases to
prevent abuse of process through oppressive or
vexatious proceedings was rejected by the
Supreme Court of Canada on a 5-4 split in Rourke
v. R., [1978] 1 S.C.R. 1021, but the traditional
doctrine of res judicata was strengthened in Kie-
napple v. The Queen, [1975] 1 S.C.R. 729 where
the Supreme Court of Canada held on a 5-4
division that an accused convicted of rape in a trial
could not be convicted in the same trial of unlaw
ful carnal knowledge of a female under 14, even
though it was not an included offence. Laskin J.,
as he then was, expressed the majority view (at
pages 748-752, passim):
In my view, the term res judicata best expresses the theory of
precluding multiple convictions for the same delict, although
the matter is the basis of two separate offences.
The relevant inquiry so far as res judicata is concerned is
whether the same cause or matter (rather than the same
offence) is comprehended by two or more offences.
In saying that res judicata (as an expression broader than
autrefois convict) would be a complete defence, I am applying
the bis vexari principle against successive prosecutions, a prin
ciple that ... is grounded on the Court's power to protect an
individual from an undue exercise by the Crown of its power to
prosecute and punish.
Pierre Béliveau and Diane Labrèche, "L'élar-
gissement du concept de `double jeopardy' en droit
pénal canadien: de bis puniri a bis vexari" (1977),
37 R. du B. 589, at page 645, see a major develop
ment in our law in this respect:
[TRANSLATION] The courts, then, applying the concept of
res judicata, recognized that an accused could rely on the
concept of double jeopardy when the offence charged is not the
same but is related. Accordingly, judicial decisions have recog
nized the defence of issue estoppel and the rule against multiple
convictions, the former being a complement to the plea of
autrefois acquit while the latter complements that of autrefois
convict. These two grounds for dismissal are in a way the two
branches of a general defence of res judicata.
These authors add (at page 646) that the courts
are more likely to take a strict view in relation to
issue estoppel:
[TRANSLATION] It is thus apparent that the courts have taken
a somewhat severe approach to issue estoppel, imposing several
requirements as to proof of this ground of exoneration and a
number of restrictions on its admissibility on the merits.
One way of putting the relevant question is as to
the meaning of an acquittal. Professor Friedland
states his position this way (at pages 129-130):
The theoretical problem as to the meaning of an acquittal
was put as follows by Lord Devlin in Connelly v. D.P.P.:
The defence rightly enjoys the privilege of not having to
prove anything; it has only to raise a reasonable doubt. Is it
also to have the right to say that a fact which it has raised a
reasonable doubt about is to be treated as conclusively
established in its favour?
It is submitted that the answer should be yes. As a matter of
fundamental policy in the administration of the criminal law it
must be accepted by the Crown in a subsequent criminal
proceeding that an acquittal is the equivalent to a finding of
innocence. The accused starts the trial under the mantle of the
presumption of innocence. If he is acquitted, he should not be in
a worse position than he was before his acquittal. Indeed, the
very words used by the jury, "not guilty", indicate that an
acquittal means more than a finding of a reasonable doubt.
Except in Scotland, a jury cannot bring in a verdict of "not
proven".
In most cases it would not be known whether the jury's
verdict was because of a reasonable doubt or a finding of
innocence. Fairness to the accused demands that it be assumed
to be the latter.
But even if an acquittal was because there was a reasonable
doubt (assume a jury or magistrate expressly so stated), this
should be sufficient for an estoppel in a later criminal case in
which the accused is to be acquitted if there is a reasonable
doubt.
Further, a comparable policy should apply when the Crown
attempts to call into question a previous acquittal by introduc
ing similar fact evidence or evidence directly connected with
the offence charged. The latter occurred in Sambasivam v.
Public Prosecutor, Federation of Malaya (1950) [[1950] A.C.
458] .... [Emphasis added.]
The Canadian and English authorities appear to
deal with res judicata only within the context of
successive criminal prosecutions, and it is therefore
helpful to turn to the broader experience in United
States law.
V
As one might expect, the double jeopardy clause
of the Fifth Amendment to the U.S. Constitution
and the due process clause of the Fourteenth
Amendment have been productive of a consider
able number of cases in the American courts. The
general approach has been described in Joseph A.
Colussi, "Notes: An application of Double Jeop
ardy and Collateral Estoppel Principles to Succes
sive Prison Disciplinary and Criminal Prosecu
tions", 55 Ind. L.J. 667 (1980), at pages 679-680,
as follows:
Although traditional double jeopardy theories have failed to
insulate imprisoned persons from multiple prosecutions and
punishments, the doctrine of collateral estoppel, as it inheres in
the double jeopardy clause, is an alternative remedy. Collateral
estoppel is derived from the broader common law principle of
res judicata. According to the doctrine, questions of fact and
law actually litigated are conclusive in subsequent actions in
which the same questions arise, even though the cause of action
might be different. The defense of double jeopardy requires
identity of offenses, but the doctrine of collateral estoppel does
not. The defense of double jeopardy, if successful, operates as a
complete bar to another prosecution, while the defense of
collateral estoppel might merely preclude the relitigation of
certain issues.
This approach originated with Coffey y United
States, 116 U.S. 436 (1886), where the U.S.
Supreme Court held that a prior judgment of
acquittal was conclusive on a subsequent suit for
forfeiture against the same person by the United
States, in the same Circuit Court, founded on the
same legislative provisions. Blatchford J. spoke for
the Court (at page 443):
It is urged ... that the acquittal in the criminal case may have
taken place because of the rule requiring guilt to be proved
beyond a reasonable doubt, and that, on the same evidence, on
the question of preponderance of proof, there might be a verdict
for the United States, in the suit in rem. Nevertheless, the fact
or act has been put in issue and determined against the United
States; and all that is imposed by the statute, as a consequence
of guilt, is a punishment therefor. There could be no new trial
of the criminal prosecution after the acquittal in it; and a
subsequent trial of the civil suit amounts to substantially the
same thing, with a difference only in the consequences follow
ing a judgment adverse to the claimant.
When an acquittal in a criminal prosecution in behalf of the
Government is pleaded, or offered in evidence, by the same
defendant, in an action against him by an individual, the rule
does not apply, for the reason that the parties are not the same;
and often for the additional reason, that a certain intent must
be proved to support the indictment, which need not be proved
to support the civil action. But upon this record, as we have
already seen, the parties and the matter in issue are the same.
The Supreme Court held in Benton v. Mary-
land, 395 U.S. 784 (1969) that the Fifth Amend
ment guarantee against double jeopardy is
enforceable against the States through the Four
teenth Amendment and in Ashe v. Swenson, 397
U.S. 436 (1970) that collateral estoppel is a part
of the Fifth Amendment's double jeopardy provi-
sion. Stewart J. said for the majority in Ashe (at
pages 443-444):
"Collateral estoppel" is an awkward phrase, but it stands for
an extremely important principle in our adversary system of
justice. It means simply that when an issue of ultimate fact has
once been determined by a valid and final judgment, that issue
cannot again be litigated between the same parties in any
future lawsuit. Although first developed in civil litigation,
collateral estoppel has been an established rule of federal
criminal law at least since this Court's decision more than 50
years ago in United States v. Oppenheimer, 242 U.S. 85. As
Mr. Justice Holmes put the matter in that case, "It cannot be
said that the safeguards of the person, so often and so rightly
mentioned with solemn reverence, are less than those that
protect from a liability in debt." 242 U.S., at 87. As a rule of
federal law, therefore, "[i]t is much too late to suggest that this
principle is not fully applicable to a former judgment in a
criminal case, either because of lack of `mutuality' or because
the judgment may reflect only a belief that the Government
had not met the higher burden of proof exacted in such cases
for the Government's evidence as a whole although not neces
sarily as to every link in the chain." United States v. Kramer,
289 F. 2d 909, 913.
The federal decisions have made clear that the rule of
collateral estoppel in criminal cases is not to be applied with the
hypertechnical and archaic approach of a 19th century plead
ing book, but with realism and rationality. Where a previous
judgment of acquittal was based upon a general verdict, as is
usually the case, this approach requires a court to "examine the
record of a prior proceeding, taking into account the pleadings,
evidence, charge, and other relevant matter, and conclude
whether a rational jury could have grounded its verdict upon an
issue other than that which the defendant seeks to foreclose
from consideration." The inquiry "must be set in a practical
frame and viewed with an eye to all the circumstances of the
proceedings." Sealjon v. United States, 332 U.S. 575, 579. Any
test more technically restrictive would, of course, simply
amount to a rejection of the rule of collateral estoppel in
criminal proceedings, at least in every case where the first
judgment was based upon a general verdict of acquittal.
In Ashe, where three or four men had robbed six
poker players, the petitioner was separately
charged with having robbed one of the players,
and the jury found him "not guilty due to insuffi
cient evidence". He was subsequently convicted of
having robbed another of the players and sought
habeas corpus. On the issue Stewart J. found (at
page 445):
The single rationally conceivable issue in dispute before the
jury was whether the petitioner had been one of the robbers.
And the jury by its verdict found that he had not. The federal
rule of law, therefore, would make a second prosecution for the
robbery of Roberts wholly impermissible.
Many side-issues are raised by the several opin
ions in Ashe. Colussi, supra, at footnote 60, page
680, comments:
Ashe raises several questions, not the least of which is why
collateral estoppel should be preferred to a more comprehensive
doctrine of double jeopardy. Justice Brennan recognized that a
broader definition of "same offense" would have precluded the
second prosecution in Ashe .... If applied to the prison disci
plinary process, it would preclude multiple prosecutions for the
same offense .... Collateral estoppel was adopted in Ashe to
compensate for the deficiencies of the double jeopardy protec
tion. It represents a compromise between those members of the
Court who would condemn multiple prosecutions and those who
apparently prefer to live with the archaic rules of double
jeopardy.
Interesting as they are in the American constitu
tional context, such questions should not detain us
here.
The Ashe decision has been given a broad inter
pretation by some other courts. In Barrows v.
Hogan, 379 F. Supp. 314 (D. Pa. 1974) a U.S.
District Court held that a prisoner who had been
acquitted by a jury on a charge of assault was
entitled to have restored all the good time days
forfeited by virtue of his alleged assault, notwith
standing the contention that the prison was en
titled to use a lesser standard of proof than the
court. Muir J. said (at page 316):
The holding of a jury of 12 men and women is a final
determination against the Government on the question of
whether Petitioner assaulted the officer. In view of the judicial
determination that this prisoner is not guilty of the offence
charged, it is impermissible for the prison administration to
determine otherwise and punish the prisoner for an offense as
to which he has been acquitted.
Similarly, in People v. Grayson, 319 N.E. 2d 43
(1974), the Supreme Court of Illinois held that a
finding of not guilty on a charge of armed robbery
precluded the State, under the doctrine of collater
al estoppel, from relitigating the issue of robbery
in subsequent proceedings to revoke probation.
Underwood C.J. wrote for the Court (at pages
45-46):
The reasoning of the appellate court was that while the identifi
cation testimony may not have been sufficient to convict of
armed robbery, it was sufficient to prove a probation violation
by the preponderance of the evidence. The State, in its brief,
distinguishes Ashe v. Swenson from this case on the basis that
in Ashe the defendant was placed in jeopardy in two separate
criminal trials for the same armed robbery, while here defend
ant was placed in jeopardy only once for the robbery ... and
then was subject to a civil proceeding where his probation was
revoked.
Although proceedings may be civil in form, they may be
criminal in nature (United States v. United States Coin and
Currency, 401 U.S. 715, 91 S.Ct. 1041, 28 L.Ed.2d 434), and
the individual facing probation revocation may lose his liberty
just as swiftly and surely as a defendant in a criminal case. We
accordingly hold the principle of collateral estoppel applies in
the circumstances present there. The acquittal of defendant on
the charge of armed robbery was, under the evidence in this
case, a determination that he was not one of the robbers. Once
the ultimate and only disputed fact of identity had been
determined by a final and valid judgment, the State could not
constitutionally hale defendant before a new court in a criminal
proceeding or a probation revocation proceeding and litigate
that issue again.
The same result was reached by the California
Court of Appeal in People v. Robart, 29 Cal.
App. 3d 891; 106 Cal. Rptr. 51 (1973). Brown J.
concluded for the Court (at page 52):
Here the petitioner was tried before a jury and acquitted.
There was substantial support in the evidence for the jury's
determination that he was not guilty of any offense. There was
no reason other than the charges of which he was acquitted
supporting the revocation of parole.
In Standlee v. Rhay, 403 F. Supp. 1247 (1975),
Chief Judge Neill of the U.S. District Court for
the Eastern District of Washington followed the
foregoing cases in coming to the conclusion that a
prior finding of innocence in a criminal proceeding
collaterally estopped a parole board from reaching
an inconsistent adjudication of fact. However, on
appeal the Ninth Circuit Court of Appeals took a
different view, 557 F.2d 1303 (1977), holding that
the doctrine of collateral estoppel did not prohibit
a parole board from finding the petitioner guilty of
violations following acquittal on the same charges
in a criminal trial, but to do so they had to
distinguish and to some extent discredit Coffey (at
page 1306, note 2):
Appellee relies heavily on the old case of Coffey v. United
States .... Broadly interpreted, it stands for the proposition
that a judgment of acquittal in a criminal proceeding is conclu
sive as to a particular fact in a subsequent civil proceeding.
However, the Court in Helvering v. Mitchell, 303 U.S. 391, 58
S.Ct. 630, 82 L.Ed. 917 (1938), distinguished Coffey on the
basis that the forfeiture proceeding in Coffey involved a crimi
nal punishment while Mitchell involved a civil sanction. More
over, Coffey has been severely criticized and its precedential
value doubted by this Court in United States v. Grainer, 191 F.
2d 741, 743 (9 Cir. 1951). We need not decide whether Coffey
retains any viability because we accept the Mitchell Court's
interpretation of it.
Standlee was followed by the Supreme Court of
Alaska in Avery v. State—Alaska, 616 P.2d 872
(1980), and similar results were reached in the
Third Circuit in U.S. v. Chambers, 429 F.2d 410
(1970) and in the Wisconsin case of State ex rel.
Flowers v. Department of Health and Social Ser
vices, 260 N.W.2d 727 (1978). Nevertheless, in
the same Ninth Circuit, while following Standlee
in Bledsoe v. State of Wash. Bd. of Prison Terms
& Paroles (Mem.), 608 F.2d 396 (1979), Ely J.,
for two members of the three-judge panel, made
the following observation (ibid.):
Under the compulsion of Standlee, Judge Ferguson and I
have no choice save to concur in the affirming disposition. We
hold the deep conviction, however, that Standlee was wrongly
decided, and we fervently hope the time will soon come when
the full court will turn away from its Standlee decision.
The Supreme Court decision in Helvering v.
Mitchell, 303 U.S. 376 (1938), which was relied
on by the Appeals Court in Standlee, is perhaps
distinguishable on its facts. In that case, where the
petitioner was acquitted on a charge of income tax
evasion, the Court held that the acquittal was not
a bar to a non-criminal action by the state, remedi
al in nature, arising out of the same facts. One Lot
Emerald Cut Stones v. United States, 409 U.S.
232 (1972), also relied on in Standlee, is probably
also distinguishable for similar reasons. The Court
there held that a forfeiture of undeclared imported
merchandise is not barred by a prior acquittal on a
charge which, unlike the civil forfeiture proceed
ing, requires proof of an intent to defraud.
The U.S. cases do not, in sum, produce a clear
result, particularly on the parole or probation
issues in relation to which they have most often
arisen. The principal conclusion which emerges is
that the elements of the two proceedings must be
subjected to careful scrutiny. This is put very
clearly by the U.S. Supreme Court in the One Lot
Emerald Cut Stones case, supra, at pages
234-235:
Collateral estoppel would bar a forfeiture under § 1497 [ 19
U.S.C.] if, in the earlier criminal proceeding, the elements of a
§ 1497 forfeiture had been resolved against the Government.
Ashe v. Swenson, 397 U.S. 436, 443 (1970). But in this case
acquittal on the criminal charge did not necessarily resolve the
issues in the forfeiture action. For the Government to secure a
conviction under § 545 [18 U.S.C.], it must prove the physical
act of unlawful importation as well as a knowing and willful
intent to defraud the United States. An acquittal on the
criminal charge may have involved a finding that the physical
act was not done with the requisite intent. Indeed, the court
that tried the criminal charge specifically found that the Gov
ernment had failed to establish intent. To succeed in a forfeit
ure action under § 1497, on the other hand, the Government
need only prove that the property was brought into the United
States without the required declaration; the Government bears
no burden with respect to intent. Thus, the criminal acquittal
may not be regarded as a determination that the property was
not unlawfully brought into the United States, and the forfeit
ure proceeding will not involve an issue previously litigated and
finally determined between these parties.
What is less clear is whether, even with identity
of matter, the difference in the burden of proof
must also be taken into account. The One Lot
Emerald Cut Stones decision treats this as a
second test of collateral estoppel, one required by
the Helvering v. Mitchell holding that Congress
may impose both a criminal and a civil sanction in
respect of the same act or omission.
It would be hard to disagree with the proposition
that a criminal acquittal cannot be a bar to a
subsequent civil action arising out of the same
facts. The real question is how to classify the
subsequent proceedings when it is not on all fours
with the usual characteristics of either criminal or
civil litigation. The Illinois Supreme Court in
Grayson, supra, held that probation revocation is a
proceeding that is criminal in nature, even if not in
form, because of the potential loss of liberty on the
part of the parolee. The Ninth Circuit Court of
Appeals in Standlee, supra, at page 1306, apply
ing a test worded slightly differently, held that
"Revocation of parole is remedial rather than
punitive, since it seeks to protect the welfare of
parolees and the safety of society."
In One Lot Emerald Cut Stones, supra, at page
237 the U.S. Supreme Court said that "The ques
tion of whether a given sanction is civil or criminal
is one of statutory construction", and in that case
its analysis of the statutory provision was as fol
lows (ibid.):
The § 1497 forfeiture is intended to aid in the enforcement of
tariff regulations. It prevents forbidden merchandise from cir
culating in the United States, and, by its monetary penalty, it
provides a reasonable form of liquidated damages for violation
of the inspection provisions and serves to reimburse the Govern
ment for investigation and enforcement expenses. In other
contexts we have recognized that such purposes characterize
remedial rather than punitive sanctions .... Moreover, it
cannot be said that the measure of recovery fixed by Congress
in § 1497 is so unreasonable or excessive that it transforms
what was clearly intended as a civil remedy into a criminal
penalty.
What may usefully be derived from the Ameri-
can experience, I think, are two tests of collateral
estoppel, viz., identity of matter and criminal sanc
tions. In the light of the acceptance of collateral or
issue estoppel in Canada through the doctrine of
res judicata, these would seem to be of persuasive
value as precedents in Canada, despite the absence
of a constitutional charter of rights at the relevant
time here.
I do not find of assistance either the views of
Toy J. in R. v. Mingo et al. (1982), 2 C.C.C. (3d)
23 (B.C.S.C.) or the contrary remarks of Good-
ridge J. in In re Prisons Act and in re Pollard et
al., February 20, 1980, unreported, file no. 1355,
Supreme Court, Newfoundland, on the status of
prison disciplinary hearings, because of the differ
ence in the issues under consideration.
VI
The respondent Sauvé's letter of September 10,
1981, to the appellant relies on two apparent rea
sons for his decision to keep the appellant in the
SHU, the police documentation and the forthcom
ing appeal:
[TRANSLATION] September 10, 1981
Mr. Réjean Morin
Centre for Correctional Development
Special Handling Unit
Quebec Region
At the review of your case in July 1981 the SHU Committee
informed you that your case would be re-examined on receipt of
a police report regarding your involvement in the murder of the
inmate Payeur.
The Committee has now received the documentation confirm
ing that the charge against you was based on a before-death
statement by the victim and another statement given to police
investigators by a witness. These information sources identified
you as taking part in the murder. The Committee was also told
that the Crown will appeal the judgment rendered in your case.
Accordingly, the decision to transfer you to a Special Handling
Unit was based on the criteria indicated in paragraph 4 of
Commissioner's Directive No. 274, and remains unchanged.
You will be seen again by the Committee at its next review in
December 1981.
(signed)
J.U.M. Sauvé
This letter has to be supplemented by Mr.
Sauvé's affidavit of January 12, 1982 recapitulat
ing the events and his reasons for his decision:
22° As indicated in paragraph 12 of Mr. Morin's affidavit, he
did submit to my attention a grievance concerning his presence
at the S.H.U. to which I replied on June 15, 1981;
25° The additional recommendations that I requested as
outlined in paragraph 25 were forwarded to me on or about
June 11, 1981 accompanied by a report prepared by Ginette
Breton, C.S.C. staff which was supported by the acting director
of the C.D.C. and said reports I file [as] exhibit I-3 en liasse;
26° In the next few days, I replied to the grievance and on June
16, 1981 I caused the 59th meeting of the S.H.U. review
committee to review the presence of Mr. Morin in S.H.U. and I
decided not to transfer him despite the fact that he had been
acquitted of the murder charge of inmate Claude Payeur in the
light of the additional documentation referred to in paragraph
25 of my affidavit;
27° Also during this June 16, 1981 meeting, I felt that a police
report or comment on the whole situation could be helpful in
casting new light on the issue;
29° As per section 17 of C.D. 274, the national S.H.U. review
committee conducted a review of Mr. Morin's presence at the
S.H.U. on or about July 8, 1981;
32° We then met Mr. Morin and told him that I continued to
have reasons to believe that he was involved in the Payeur
incident; that an acquittal before a criminal court did not
necessarily mean that my administrative decision was to be
automatically changed; I told him that we would try to obtain
further reports and that we were expecting police comments by
way of summary within 15 days but I added that this 15 day
period could not be guaranteed; lastly I pointed out that my
decision would not limit itself only to a consideration of the
police summary or notes;
36° The discussed police summary was never submitted to the
Quebec regional director general and after what I consider
reasonable administrative delay, I answered the question if
inmate Morin should be transfered under phase IV or released
from the program and I came to the conclusion that I would
not; the other respondents to the motion did not take that
decision or on about September 10, 1981;
37° I then relied on documents I-3 and from what I knew of the
facts when I decided to put Mr. Morin under the S.H.U.
program and I was personally satisfied and convinced that
these documents substantiated an incident and implication
which called for the continued application of C.D. 274 and Mr.
Morin's presence at the C.D.C.;
38° In relation to my September 10, 1981 letter to Mr. Morin
which is exhibit G of his affidavit, I will admit that it is poorly
written. It was prepared for me by members of my staff. When,
I use the expression "document maintenant reçu" it is mislead
ing; I should have said documents that we have on file because
between July 7 or 8 and September 10, 1981, I did not receive
new documents; the mention of an appeal was superfluous and
was presumably based on verbal information received from the
Quebec region but I can't recall by whom or when. That
mention is a slip up, appeal or not my decision would have been
the same and I did not consider this appeal question as
important;
54° As stated previously, I am aware of Mr. Morin's acquittal,
however notwithstanding this acquittal and the fact that some
of the documents filed as exhibit I-4 to I-8 of my affidavit
(especially I-7) may not have been admissible in a court of law
within its legal process of punishing a crime and accepting
evidence through the conditions set forth by the Canada Evi
dence Act, my decision was an administrative one following an
entirely different process and purpose and I do not feel that I
have to believe beyond any reasonable doubt that Mr. Morin is
guilty of the murder of Mr. Payeur which evidently he is not
before I consider him a dangerous inmate as per C.D. 274;
55° An example may clear-up what I am trying to say in
paragraph 54 of my affidavit. An inmate could during testimo
ny given at the coroner's inquest under the protection of
section 5 of the Canada Evidence Act, admit the murder of an
other inmate. That testimony could not be used in a court of
law and ultimately that inmate could be acquitted of a charge
of murder. For the purposes of my decision, that inadmissible
evidence in a court of law would constitute a relevant fact to
my decision;
59° In this particular case, documents I-4 to I-9 gave me a
reasonable and probable belief that Mr. Morin constitutes a
high security risk for our normal institutions based on docu
mented actions namely that the deceased Claude Payeur did
involve Mr. Morin in the incident of which he was the victim,
that Mr. Morin was on the scene of the incident, that inmate
Cousineau who ultimately pleaded guilty to the manslaughter
of Claude Payeur did make a statement involving Mr. Morin; I
have no reason to doubt the statements of staff members;
60° Now concerning paragraphs 53 and 59 of my affidavit,
inmate Cousineau's testimony at trial was entirely different
from his statement to police; document I-7 was ruled inadmissi
ble by the criminal court; Cousineau denied the statement but
recognized that the initials S.C. the document [sic] could have
been his but they were not; officer Savard did say that he had
received the statement I-7 from Cousineau; so did his fellow
officer Mr. Aubertin and Mr. Guerin C.S.C. staff;
64° My objectives are not to punish Mr. Morin for involvement
in this incident but to avoid further problems while carrying out
his sentence and to dissipate any doubts to security risks that he
may pose by seeing him carry on a good conduct within the
S.H.U. so that he may go back to a general population within a
maximum security institution in the near future.... [Emphasis
added.]
It is clear from this affidavit that the letter of
September 10 was entirely disingenuous. Neither
of the reasons the respondent Sauvé put forward
was in fact true: there was no police documenta
tion made available to him and he did not consider
the appeal question important. The real basis for
his continuing to confine the appellant in the SHU
were the documents he had in hand which convin
ced him that the appellant was guilty of the
murder.
But the various documents he refers to in this
prolix affidavit were, to the extent that they threw
any light on the Payeur murder, made available at
Morin's murder trial and were taken into account
at the trial. The fact that the major witness,
Cousineau, changed his story from his pre-trial
declaration, and told the jury that the appellant
was not involved in the murder is hardly sufficient
justification for Sauvé to continue to rely on the
pre-trial statement. Similarly, Sauvé continued to
rely on the before-death declaration of the victim,
another matter before the jury. In fact, he had no
evidence whatsoever of any misbehaviour meriting
super-maximal treatment by Morin other than
what was before the jury.
The best indication of the identity of the evi
dence and the issues in the two proceedings is to be
found in the reaction of the Trial Judge, Bergeron
J., on the habeas corpus application subsequently
brought before him. He minced no words in his
reaction to the continued super-maximal detention
of Morin for murder after his acquittal for the
same murder:
[TRANSLATION] The behaviour of the prison authorities
toward applicant must be a source of wonder, considering the
reasons on which they based their various decisions to continue
super-maximal detention because of a before-death statement
by the victim and a statement by a fellow inmate.
A brief review of the Montreal criminal assizes record for the
trial of applicant which resulted in a verdict of acquittal would
quickly have shown them, much more readily than a mere
police report would do, that both the before-death statement
and the statement by a fellow inmate witness were the subject
of lengthy evidence in the Court and were duly examined and
weighed by the jury hearing the case.
If they had taken the trouble to do this, they would quickly
have realized that the principal points which were the basis for
continued maximum-security detention were no longer valid in
relation to applicant.
I feel I must emphasize this aspect of the matter, resulting
not from an examination of the record and the exhibits per se
but from my judicial knowledge of the trial for murder at
which I presided. The only points mentioned to justify continu
ing the super-maximal detention are, in my humble opinion,
untenable.
In view of the circumstances known to the authorities on
September 21, 1980, this decision is not open to criticism and
cannot be regarded as unjustified.
The continuation of this detention after applicant was acquit
ted of the charge of murder against him appears to be in total
disregard of the rules of natural justice and fairness. [Emphasis
added.]
Sauvé's own affidavit negatives the existence of
any additional information in the hands of the
penitentiary authorities. The very issue which Mr.
Sauvé purported to decide, viz., whether Morin
had murdered Payeur, had already been decided
by a jury on the basis of the same facts. The
identity of matter test is more than adequately
satisfied.
VII
With respect to the criminal sanctions test, I
think it has to be admitted that correctional pro
ceedings such as these fall between the traditional
criminal and the civil spheres. But to which should
they be analogized? To which are they closer?
Let us revisit section 8 of CD 274:
8. The prime consideration for transfer of an inmate to an SHU
shall be that he is assessed to be particularly dangerous
and, therefore, prejudicial to the maintenance of good
order in the institution. Inmates shall not be transferred to
an SHU on suspicion alone. Reasonable and probable
grounds for believing ,an inmate intends or is likely to
commit a violent or dangerous act must be supported by
documentation.
This is the language of the criminal law: "par-
ticularly dangerous", "prejudicial to the mainte
nance of good order", "reasonable and probable
grounds", "intends or is likely to commit a violent
or dangerous act".
Its purpose is also similar to that of criminal
law, viz. to confine in a special way those whose
conduct is marked by hostage-taking, serious inci
dents of violence, conviction for the murder of an
inmate, substantiated serious threats against the
life of anyone, etc. (CD 274, section 4, supra).
It is worth noting, in passing, that "suspicion
alone" is not enough to trigger SHU confinement,
particularly with respect to murder, where what is
required is a conviction, which can only mean a
conviction in the criminal courts.
The effect of SHU confinement, viz. intensifica
tion of imprisonment in a prison within a prison, is
also highly analogous to a criminal sanction. In the
words of Cory J.A. in Re Miller and The Queen,
supra, at page 332:
Those confined in the special handling unit receive little, if any,
of the privileges accorded to other inmates in other sections of
the penitentiary and are subjected to a significantly more
restrictive confinement.
Granted, it is not punishment as such. It is
rather before the fact than after, rather preventive
than punitive. It has to be triggered by some event,
but it is also anticipatory. In this it is preventive
legislation like section 688 of the Criminal Code
[R.S.C. 1970, c. C-34] dealing with dangerous
offenders. I am not convinced that to be a "crimi-
nal" sanction for purposes of res judicata an
offence would have to be criminal within the sense
of subsection 91(27) of the Constitution Act, 1867
[30 & 31 Vict., c. 3 (U.K.) [R.S.C. 1970, Appen
dix II, No. 5] (as am. by Canada Act 1982, 1982,
c. 11 (U.K.), Schedule to the Constitution Act,
1982, Item 1)]. But the predecessor form of sec
tion 688 survived even that test before the full
Bench of the Supreme Court of Canada in Ex p.
Matticks (1973), 10 C.C.C. (2d) 438 (Que. C.A.),
[1973] S.C.R. vi (sub nom. Pearson v. Lecorre).
The Court also held in that case that section 688
was not rendered inoperative by the Canadian Bill
of Rights. That section has also been upheld
against Charter challenges on other grounds: R. v.
Simon (No. 3) (1982), 141 D.L.R. (3d) 380
(N.W.T.S.C.); R. v. Gustayson (1982), 143
D.L.R. (3d) 491 (B.C.S.C.).
Sauvé's statement that his objective was not to
punish Morin can certainly be taken at face value,
but his concurrent admission that his action was
taken "to avoid further problems" (affidavit, para
graph 64, supra) is itself an objective that is
characteristic of criminal law. This would also be
true if the continued SHU detention of Morin
were based, not on CD 274, but on the words "for
the maintenance of good order and discipline in
the institution" in paragraph 40(1)(a) of the
Regulations. One cannot avoid the conclusion that
the proper analogy is to criminal rather than to
civil law.
VIII
The respondents' argument that this is a discre
tionary decision, a "judgment call" with which a
court should not interfere, could be tenable only if
there were other facts for the decision which had
not been available in the criminal process, or other
situations independent entirely of the Payeur
murder which could justify the decision to contin
ue Morin's confinement in an SHU. In the circum
stances here, where the subsequent penitentiary
proceedings were not only identical in matter to
the criminal trial but also led to what were in
character, purpose and effect criminal sanctions,
the respondents clearly misdirected themselves as
to the law when they refused to give full effect to
the criminal acquittal.
I would therefore allow the appeal with costs,
and set aside the dismissal of the action for certio-
rari. As certiorari can no longer be effective, I
would grant a declaration that the respondents had
no legal justification for holding the appellant in a
Special Handling Unit after his acquittal on May
30, 1981.
HUGESSEN J.: I agree.
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.