T-1440-86
Régis Tremblay, an inmate currently confined in
the Special Handling Unit of the Regional Recep
tion Centre (Applicant)
v.
Presiding Officer of the Disciplinary Tribunal of
the Laval Institution,
and
Marc -André Lafleur, in his capacity as Director
of the Laval Institution,
and
Earned Remission Committee of the Laval
Institution,
and
Rhéal Leblanc, Correctional Service Commission
er (Respondents) *
INDEXED AS: TREMBLAY V. CANADA (PRESIDING OFFICER,
LAVAL INSTITUTION DISCIPLINARY TRIBUNAL)
Trial Division, Rouleau J.—Montréal, May 25;
Ottawa, June 2, 1987.
Penitentiaries — Earned remission and transfer to S.H.U.
— Inmate charged with possession of contraband in relation to
armed aggression against other inmate — Disciplinary Tribu
nal's decision sentencing applicant to thirty days' punitive
dissociation set aside for denying right to representation by
counsel — Application under R. 337(5) to complete previous
order and rule on 1) application to set aside Earned Remission
Committee's decision not to credit ten days' earned remission;
2) application to set aside Correctional Service Commission
er's decision to transfer applicant to S.H.U. — Earned Remis
sion Committee's decision invalid as resulting from Presiding
Officer's invalid decision — Transfer to S.H.U. valid as
procedure in no way defective — Transfer to be examined
independently of Disciplinary Tribunal's decision — Federal
Court Rules, C.R.C., c. 663, R. 337(5).
CASES JUDICIALLY CONSIDERED
APPLIED:
The Queen v. Miller, [1985] 2 S.C.R. 613.
* Editor's note: See also [1987] 3 F.C. 73
REFERRED TO:
Howard v. Stony Mountain Institution, [1984] 2 F.C.
642; (1985), 57 N.R. 380 (C.A.); Cardinal et al. v.
Director of Kent Institution, [ 1985] 2 S.C.R. 643.
COUNSEL:
Lucie Lemonde for applicant.
David Lucas for respondents.
SOLICITORS:
Daignault & Lemonde, Montréal, for appli
cant.
Deputy Attorney General of Canada for
respondents.
The following is the English version of the
reasons for order rendered by
ROULEAU J.: On April 9, 1987 I made the
following order:
The application for a writ of certiorari is
allowed with costs.
By an application made under Rule 337(5)
[Federal Court Rules, C.R.C., c. 663], counsel for
the respondents is asking me to rule on (1) the
application of the applicant to set aside the deci
sion of the Earned Remission Committee not to
credit the applicant with ten days' earned remis
sion; (2) the application of the applicant to set
aside the decision of the Correctional Service
Commissioner to transfer the applicant to an
S.H.U. In the submission of learned counsel, the
wording of the order of April 9, 1987 was incom
plete, in that it dealt finally only with the setting
aside of the decision of the Presiding Officer of the
Disciplinary Tribunal.
I have to recognize that the said wording of the
order in question is incomplete and I must now
complete it.
In the submission of the counsel of record, there
was an error in drafting the affidavit of Régis
Tremblay submitted in support of his application
for certiorari. An exhibit dealing with loss of
earned remission ("good time") joined to his
affidavit was inadvertently filed and entered in the
record instead of another monthly notice of earned
remission, which this time referred to the loss of
"good time" occasioned by an intermediary
offence report and dissociation to which the appli
cant was sentenced by the Disciplinary Tribunal
following the events that occurred on November
29, 1985. Counsel further submitted that it
appeared that this exhibit was filed at the hearing
by consent and escaped my notice when I was
preparing the above reasons for the order now
being challenged. Accordingly, I must now render
the decision I should have rendered on April 9,
1987.
(1) Setting aside of decision of Earned Remission Committee
not to grant applicant ten days' earned remission
It must be borne in mind that in Howard v.
Stony Mountain Institution, [1984] 2 F.C. 642;
(1985), 57 N.R. 380 (C.A.),' it was established
that the refusal by the Presiding Officer of the
Disciplinary Court to allow the presence of the
inmate's counsel amounted, in the circumstances
of that case, to a denial of the inmate's right to a
fair hearing. Unquestionably, the Supreme Court
concluded in Cardinal et al. v. Director of Kent
Institution, [1985] 2 S.C.R. 643 [at page 661],
that "the denial of a right to a fair hearing must
always render a decision invalid". Accordingly, as
the decision of the Presiding Officer of the Disci
plinary Tribunal in the case at bar was set aside
for failing to observe this right, characterized by
the Supreme Court as "independent, unqualified",
it follows that the decision of the Earned Remis
sion Committee is also invalid because, in the
present circumstances, it results from a decision by
the Presiding Officer of the Disciplinary Tribunal
which was itself void or invalid.
(2) Setting aside decision of Correctional Service Commis
sioner to transfer applicant to S.H.U.
From the evidence presented to me at the hear
ing of the case, and based on a close examination
of the record and the exhibits attached thereto, I
conclude that the applicant has not persuaded me
that the procedure associated with his transfer was
in any way defective.
It should be clearly understood here that the
transfer of the applicant to an S.H.U. did not
depend on the outcome of the proceeding before
the Presiding Officer of the Disciplinary Tribunal,
Currently before the Supreme Court of Canada.
but resulted from the events which occurred on
November 29, 1985. Under Commissioner's Direc
tive No 800-4-04.1, the authorities have the power
to transfer inmates to S.H.U.s as a means of
dealing with the type of exceptional situation in
which inmates who are thought to be particularly
dangerous may disrupt good order and discipline
in the institution. In The Queen v. Miller, [1985] 2
S.C.R. 613, the Supreme Court recognized that
confinement in an S.H.U. is a separate form of
detention purporting to rest on its own foundation
of legal authority. This means, therefore, that the
transfer to an S.H.U. has to be examined
independently of the decision of the Disciplinary
Tribunal (quashed on other grounds).
As in a proceeding involving administrative or
punitive dissociation, the inmate before being
transferred to an S.H.U. must be informed of the
reason or reasons for the decision regarding dis
sociation and given an opportunity to present his
side of the matter. These requirements were
observed in the case at bar and I accordingly
consider that I should not set aside the decision of
the Commissioner to transfer the applicant to an
S.H.U.
In conclusion, I would add that there is no basis
for suspending the effect of the order of April 9,
1987, as my brother Pinard J. ordered in the case
at bar, pending the decision of the Court of Appeal
herein.
The respondents' motion under Rule 337(5) is
allowed, but without costs.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.