Judgments

Decision Information

Decision Content

T-1505-90
Christopher Williams (Applicant) v.
Regional Transfer Board, Prairie Region (Correc- tional Service Canada) and Michael Gallagher, Warden of Edmonton Institution (Respondents)
T-1506-90
Harold Dubarry (Applicant) v.
Regional Transfer Board, Prairie Region (Correc- tional Service Canada) and Michael Gallagher, Warden of Edmonton Institution (Respondents)
T-1507-90
Ken McIntyre (Applicant) v.
Regional Transfer Board, Prairie Region (Correc- tional Service Canada) and Michael Gallagher, Warden of Edmonton Institution (Respondents)
T-1508-90
Arthur Winters (Applicant) v.
Regional Transfer Board, Prairie Region (Correc- tional Service Canada) and Michael Gallagher, Warden of Edmonton Institution (Respondents)
T-1509-90
Eugene Campbell (Applicant) v.
Regional Transfer Board, Prairie Region (Correc- tional Service Canada) and Michael Gallagher, Warden of Edmonton Institution (Respondents)
INDEXED AS: WILLIAMS V. CANADA (CORRECTIONAL SERVICE, REGIONAL TRANSFER BOARD, PRAIRIE REGION) (T.D.)
Trial Division, Rouleau J.—Calgary, August 28; Ottawa, September 24, 1990.
Penitentiaries — Emergency involuntary transfer of inmate to high maximum security institution after knife fight, refus ing to return to cell and holding officers in Unit — Warden's belief transfer required for proper administration of institution reasonable — No breach of Charter, s. 7 or duty of fairness in not providing inmate with progress summary report, contrary to Commissioner's Directive — Charter, s. 10(b) right to counsel relating to initial arrest or detention, not to penitentia ry convicts — No improper delegation of authority to make transfer decision.
Constitutional law — Charter of Rights — Life, liberty and security — Emergency involuntary transfer of inmate after knife fight, refusal to return to cell and holding of officers in Unit — Warden's belief transfer required for proper adminis tration of institution reasonable — Failure to provide progress summary report, contrary to Commissioner's Directive, not breach of Charter s. 7 — Notifications of transfer containing sufficient detail to allow applicant to respond in meaningful way.
Constitutional law — Charter of Rights — Criminal process — Convict denied opportunity to retain counsel prior to emer gency involuntary transfer to high maximum security institu tion — No breach of Charter, s. 10(b) — Right to counsel depending upon circumstances — "Arrest or detention" in s. 10(b) applying to initial arrest, not to penitentiary convicts — Absence of counsel not hindering applicant's presentation of case.
This was an application for certiorari to quash the decision to transfer the applicant from Edmonton Institution to the High Maximum Security Unit of Saskatchewan Penitentiary. The applicant and several other convicts refused to return to their cells after a knife fight and the recovery of only one of the weapons, and held two corrections officers in the Unit. The Warden felt applicant's activities posed a threat to the good order and discipline of the Institution and that he had demon strated such potential for violent behaviour that he posed a persistent and serious risk to the safety of others. The applicant was given a notification of recommendation for involuntary transfer with reasons therefor. He was not allowed to retain counsel. Two days later, the applicant received a supplementary notification, to which he submitted a written response. The Regional Transfer Board approved the transfer. The applicant alleged: (1) there was a lack of evidence to support the involun tary transfer; (2) the failure to provide a progress summary report, contrary to the procedural provisions set out in Commis sioner's Directive 540, constituted a breach of the principles of procedural fairness and Charter, section 7; (3) he had been denied his right under Charter, paragraph 10(b) to retain and instruct counsel; and (4) there was an improper delegation of
authority to the Board because the Board did not have the jurisdiction to make the decision to transfer.
Held, the application should be dismissed.
(1) A decision to transfer a convict must be supported by a reasonable belief that the prisoner should be moved for the sake of the orderly and proper administration of the institution. The facts indicate that the Warden's belief that the applicant should be transferred on an emergency basis was reasonable, as was his belief that the applicant had been involved, in a significant way, in a serious security matter.
(2) The absence of a progress summary report amounted to a breach of neither the duty to act fairly nor Charter, section 7. The duty to act fairly merely requires adequate notice and a fair opportunity to answer allegations. The notifications con tained sufficient detail to allow the applicant to know the case against him and to respond in a meaningful way. Although the requirement set out in the Commissioner's Directive that the progress summary report be attached to the notification was not met, procedural defects will not necessarily invalidate a transfer, if the general process was fair. The question is not whether there has been a breach of prison rules, but whether there has been a breach of the duty to act fairly in all the circumstances. There was no such breach here. Furthermore, as no progress summary report had been prepared, it was not a question of information being withheld.
(3) On the facts of the case, and in view of the emergency nature of the situation, the refusal to allow the applicant to retain counsel did not constitute a breach of the duty to act fairly nor of any of the applicant's Charter rights. An inmate who is subject to an involuntary transfer made on an emergen cy basis does not have an absolute right to retain counsel as provided for in Charter, section 10. Whether there is an inherent right to representation by counsel depends upon the circumstances of the case. Furthermore, "arrest or detention" in paragraph 10(b) has been held to refer to a restraint of liberty, either physical or by the demand or direction of a person in authority. The right to retain and instruct counsel has been held to apply only to initial arrest or detention, not to convicts in a penitentiary. The applicant was not hindered in the presentation of his case by the absence of counsel.
(4) There was no improper delegation of authority to the Regional Transfer Board to make the decision to transfer. Among those authorized by the Commissioner's Directives to approve intra-regional transfers, was the Assistant Deputy Commissioner, Operations. The applicant's transfer was approved by the person acting in that capacity.
STATUTES AND REGULATIONS JUDICIALLY CONSIDERED
Canadian Charter of Rights and Freedoms, being Part I of the Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44], ss. 7, 10(b).
Criminal Code, R.S.C., 1985, c. C-46, ss. 129, 279(2) (as am. by R.S.C., 1985 (1st Supp.), c. 27, s. 39).
CASES JUDICIALLY CONSIDERED
APPLIED:
Camphaug v. Canada (1990), 34 F.T.R. 165 (F.C.T.D.); Demaria v. Regional Classification Board, [1987] 1 F.C. 74; (1986), 21 Admin. L.R. 227; 30 C.C.C. (3d) 55; 53 C.R. (3d) 88; 5 F.T.R. 160; 69 N.R. 135 (C.A.); Mar- tineau v. Matsqui Institution Disciplinary Board, [1980] 1 S.C.R. 602; (1979), 106 D.L.R. (3d) 385; 50 C.C.C. (2d) 353; 13 C.R. (3d) 1; 15 C.R. (3d) 314; 30 N.R. 119; Howard v. Stony Mountain Institution, [1984] 2 F.C. 642; (1985), 19 D.L.R. (4th) 502; 11 Admin. L.R. 63; 19 C.C.C. (3d) 195; 45 C.R. (3d) 242; 17 C.R.R. 5; 57 N.R. 280 (C.A.); Latham v. Solicitor General of Canada, [1984] 2 F.C. 734; (1984), 9 D.L.R. (4th) 393; 5 Admin. L.R. 70; 12 C.C.C. (3d) 9; 39 C.R. (3d) 78 (T.D.).
CONSIDERED:
Hnatiuk v. Canada (1987), 12 F.T.R. 44 (F.C.T.D.).
REFERRED TO:
Gallant v. Canada (Deputy Commissioner, Correctional Service Canada), [1989] 3 F.C. 329; (1989), 36 Admin. L.R. 261; 68 C.R. (3d) 173; 25 F.T.R. 79; 92 N.R. 292 (C.A.); Jamieson v. Commr. of Corrections (1986), 51 C.R. (3d) 155; 2 F.T.R. 146 (F.C.T.D.); Mitchell v. Crozier, [1986] 1 F.C. 255; (1986), 1 F.T.R. 138 (T.D.).
COUNSEL:
Charalee F. Graydon for applicants. Larry M. Huculak for respondents.
SOLICITORS:
Bishop & McKenzie, Edmonton, for appli cants.
Deputy Attorney General of Canada for respondents.
The following are the reasons for order ren dered in English by
ROULEAU J.: The applicant, an inmate of the federal penitentiary known as Edmonton Institu-
tion, seeks an order in the nature of a writ of certiorari quashing the decision of the Warden to transfer him from "A" Unit of the Institution to the High Maximum Security Unit of Saskatche- wan Penitentiary and further, quashing the deci sion to place the applicant in administrative segre gation after his return to Edmonton Institution.
On November 5, 1989, a knife fight between two inmates occurred in the courtyard of the Edmonton Institution. Since only one of the weap ons used in the fight was recovered, the Assistant Warden, in charge of the Institution at the time, ordered a lock-down, a procedure whereby all inmates are required to return to their cells. The inmates of "A" Unit, including the applicant, refused to obey the order and further refused to allow two corrections officers to leave the Unit. As a result of these incidents, the Warden was of the view that the maintenance of good order and discipline of the Institution was threatened by the activities of the applicant and the other inmates involved. It was also the Warden's opinion that the applicant had demonstrated such potential for vio lent behaviour that he posed a persistent and serious risk to the safety of staff and inmates at the Edmonton Institution and accordingly, should be transferred, on an emergency basis, to the High Maximum Security Unit at the Saskatchewan Penitentiary. This decision was made on November 6, 1989.
On the same date, the applicant was provided with a notification of recommendation for involun tary transfer which alleged that on November 5, 1989, he had prevented completion of an institu tion emergency lock-up of inmates and it was considered that he should be transferred to high security on an emergency basis. The applicant requested that he be allowed to contact legal coun sel in respect of the recommended involuntary transfer but such request was denied. The appli cant was placed on an airplane and transferred to the High Maximum Security Unit at the Sas- katchewan Penitentiary.
On the airplane, the applicant received a copy of a notification of recommendation for involuntary transfer, dated November 6, 1989 and signed by the Warden. On or about November 8, 1989 the applicant received a further notification of recom-
mendation for involuntary transfer dated November 7, 1989 and signed by the Warden, which was supplementary to the first notification of recommendation for involuntary transfer. Both notifications provided to the applicant contained the reasons for the Warden's recommendation of transfer and further stated that the applicant had the right to provide a written response thereto. The applicant did in fact submit a written response to the notice stating his denial of the allegations made therein and setting out his version of events with respect to the incident in question.
On December 22, 1989, the applicant and four other inmates of the "A" Unit received letters advising them that the Regional Transfer Board had reviewed the information presented by the Edmonton Institution in support of their transfer as well as the inmates' written submissions. On the basis of this information, it was decided to approve the transfers of each of the inmates to the High Maximum Security Unit, Saskatchewan Peniten tiary. On May 10, 1990, the applicant was trans ferred back to Edmonton Institution, where he was maintained in administrative segregation pending a preliminary inquiry in relation to charges laid pursuant to sections 129 and 279(2) [as am. by R.S.C., 1985 (1st Supp.), c. 27, s. 39] of the Criminal Code [R.S.C., 1985, c. C-46] until his release from custody on May 26, 1990.
The applicant now seeks a writ of certiorari on the grounds that the Regional Transfer Board had no jurisdiction to approve the transfer; that it failed to exercise its jurisdiction in that it did not separately and independently inquire into the applicant's case; that the respondents acted con trary to the principles of procedural fairness and section 7 of the Charter [Canadian Charter of Rights and Freedoms, being Part I of the Consti tution Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44] ] in the recommendation and decision to transfer; that the respondents denied the applicant his right under paragraph 10(b) of the Charter to retain and instruct counsel; and that the Warden of Edmonton Institution acted unreasonably and contrary to procedural fairness and section 7 of the
Charter in placing the applicant in administrative segregation.
It is the applicant's contention that jurispru dence has established the duty of procedural fair ness and section 7 of the Charter requires an inmate subject to a recommendation for involun tary transfer be provided with adequate notice and reasons for the transfer, as well as an opportunity to make representations opposing such transfer. It is submitted by the applicant that the procedural provisions set out in Commissioner's Directive 540 define the conduct which must be observed by correction officials in respect of both an emergen cy transfer and an involuntary transfer to a high maximum security unit. One of the requirements of the Directive is that an inmate who is subject to an involuntary transfer be presented with a progress summary report. Such a report is to provide a detailed account of the incidents which prompted the transfer, excepting only security or informant information as well as any previous incidents or behaviour which contributed to the decision to recommend involuntary transfer. The applicant maintains that at no time was he pro vided with a progress summary report in support of his transfer nor was he provided with any confidential or security information which may have been considered in relation to his transfer.
The applicant further alleges the respondents breached their duty of procedural fairness and contravened section 7 of the Charter by failing to address their minds separately and independently in relation to the involuntary transfer of the appli cant to the High Maximum Security Unit of the Saskatchewan Penitentiary. In addition, the respondents contravened paragraph 10(b) of the Charter by denying the applicant an opportunity to contact legal counsel on November 6, 1989 when he was detained and transferred to the High Maximum Security Unit of the Saskatchewan Penitentiary.
According to the applicant, the decision-maker erred in approving the involuntary transfer in the absence of any evidence that the applicant had demonstrated such potential for violent behaviour
that he posed a persistent and serious risk to the safety of staff or inmates in any institution of a lower security level.
Finally, it is contended there has been an improper delegation of authority to the Regional Transfer Board because, according to the appli cant, that Board did not possess the jurisdiction to make a decision concerning the transfer of the applicant to the High Maximum Security Unit of the Saskatchewan Penitentiary.
In response to these allegations, the respondents submit the duty of procedural fairness and the duty contained in section 7 of the Charter were met. It is true the applicant did not receive a progress summary report, as required by the direc tives. However, the respondents argue, in an emer gency transfer of this nature, notice of the recom mendation for the transfer and the reasons therefor, can properly be served on an inmate at the time of transfer or shortly thereafter, provided the inmate has been given sufficient detail of the reason so that he is able to meaningfully respond to them in writing when the transfer is being reviewed. The issue is not, in the respondents' opinion, whether an inmate has received every document relating to the transfer, but whether he can meaningfully respond to the transfer notice and has been given a fair opportunity to answer the allegations in writing.
With regards to the alleged infringement of paragraph 10(b) of the Charter, the respondents submit that an involuntary transfer is an adminis trative act and therefore does not give rise to the applicant having an absolute right to obtain counsel.
Last, the respondents maintain there has been no improper delegation of authority to the Region al Transfer Board, which acts as an advisory Board. The decision to approve the transfer was made by the Acting Assistant Deputy Commis sioner, Operations, in accordance with Commis sioner's Directive 540, after reviewing the material before him, including the written submission of the applicant.
I intend to deal first with the applicant's allega tion of lack of evidence to support the involuntary
transfer. According to Commissioner's Directive (C.D.) 540, Article 13, the only reason an inmate may be transferred to high maximum security is that "the inmate has demonstrated such potential for violent behaviour that he poses a persistent and serious risk to the safety of staff or inmates" in the lower security institution. In Camphaug v. Canada (1990), 34 F.T.R. 165 (F.C.T.D.), Mr. Justice Strayer, referring to the decision of Marceau J.A. in Gallant v. Canada (Deputy Commissioner, Cor rectional Service Canada), [1989] 3 F.C. 329 (C.A.), stated that a decision to transfer is not like a conviction for an offence: what is required on the part of the decision-maker is a reasonable belief the prisoner should be moved for the sake of the orderly and proper administration of the institu tion.
It is trite law that the function of this Court in this type of application is not to substitute its own decision for that of a warden in recommending a transfer or for that of an Acting Assistant Deputy Commissioner, Operations, in approving such a transfer. The Court will not put itself in the place of the administrative authority in assessing facts and credibility.
The determination I must make is whether there was a reasonable belief on the part of the decision- maker that the inmate should be transferred. I am not hesitant to state, in my opinion, the Warden of the Edmonton Institution acted reasonably in making the decision which he did. He reasonably believed, on the basis of information provided to him, that the applicant had been involved in a significant way, in a serious security matter at the Edmonton Institution. As a result of these inci dents, the Warden also held a reasonable belief the applicant should be transferred on an emergency basis to a higher security institution. In my view, the facts support the Warden's belief: a knife fight from which only one weapon was recovered, refus al of the applicant to obey a lock-down, and the applicant's role in the detention of two corrections officers.
The next issue is the consequence of the respondents' failure to provide the applicant with a progress summary report. Article 7 of Annex A to Commissioner's Directive 540 details the informa tion required in the notification of recommenda tion for involuntary transfer. Basically, the notice is required to contain sufficiently detailed informa tion to allow the inmate to know the case against him and to be able to respond. Article 8, further requires, where the transfer is to high maximum security, the reasons why the inmate is considered a serious risk to the safety of staff or inmates.
In the present case, these requirements have been satisfied. The applicant received two notifica tions of recommendation for involuntary transfer. He was advised he had the right to make written representations on them, and he did so. The notifi cations contained sufficient detail to allow the applicant to know the case against him and to respond in a meaningful fashion. Indeed, having examined the notifications, I am satisfied the applicant was provided with as much information as he reasonably could have been without jeopard izing the security of the Institution.
Article 10 of Annex A to Commissioner's Direc tive 540 states that a copy of a progress summary report is to be attached to the notification of recommendation for involuntary transfer. The progress summary report is required to be either signed by the inmate or contain some indication that the inmate refused to sign it. There is no question in the present case that Article 10 has not been complied with. The question before me is whether the omission . of a progress summary report represents a fatal flaw to the procedure followed by the decision-maker so as to require the remedy of certiorari to correct any resulting injustice.
On one point the case law is consistent: the Court ought to exercise restraint in intervening in essentially administrative acts such as those in issue in this case. However, at the same time, the Court must be satisfied that the basic require ments of fairness have been observed.
An inmate does not possess a right to an oral hearing prior to being transferred. (See: Jamieson v. Commr. of Corrections (1986), 51 C.R. (3d) 155 (F.C.T.D.); Mitchell v. Crozier, [1986] 1 F.C. 255 (T.D.); Hnatiuk v. Canada (1987), 12 F.T.R. 44 (F.C.T.D.)). What the case law has established is that an inmate is entitled, under C.D. 540, to notice in writing of the reasons for transfer and of his right to submit written objections within 48 hours. He is also entitled to a written decision regarding whether the transfer is approved, includ ing some indication that his response was con sidered in reaching the decision.
In Demaria v. Regional Classification Board, [1987] 1 F.C. 74 (C.A.), the Court held the duty to act fairly in transferring a prisoner to increased security includes adequate notice and a fair oppor tunity to answer allegations. Where there is no intention of holding a hearing, it is important that the notice of the alleged conduct contain as much detail as possible to ensure the right to answer does not become illusory. The Court emphasized that the burden is always on the authorities to demon strate they have withheld only such information as is strictly necessary to protect the identity of an informant. As stated by Hugessen J.A., at page 78:
In the final analysis, the test must be not whether there exist good grounds for withholding information but rather whether enough information has been revealed to allow the person concerned to answer the case against him.
However, it does not follow that procedural defects will necessarily invalidate a transfer, if the general process was fair. In Hnatiuk, supra, it was held that failure to fully complete a required form did not amount to a breach by the institutional officers of their duty to act fairly. The Court relied on the oft-quoted statement of Dickson J., as he then was, in his decision in Martineau v. Matsqui Institution Disciplinary Board, [1980] 1 S.C.R. 602, at page 630:
5. It should be emphasized that it is not every breach of prison rules of procedure which will bring intervention by the courts. 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. Interference will not be justified in the case of trivial or merely technical incidents. 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. The rules are of some importance in determining this latter question, as an indication of the views of prison authorities as to the degree of procedural protection to be extended to inmates. [Emphasis added.]
In the case at bar, I am satisfied that, in all the circumstances, there has been no breach by the respondents of the duty to act fairly by reason of no progress summary report being served on the applicant. Fairness in the making of a decision to transfer an inmate does not require that the inmate be given all the particulars of all alleged wrongdoings. It will be sufficient if he can ade quately make representations to demonstrate that the recommendation he be moved is an unreason able one. It is clear the applicant was provided with sufficient detail to know the case he had to meet and to make his submissions on the reasons given for that recommendation. The facts show that the applicant was able to meaningfully respond to the transfer notice and he was given a fair opportunity to answer the allegations in writing.
I am further convinced in my finding that the lack of a progress summary report should not lead this Court to intervene in the decision-making process of the respondents by the fact that no such report was prepared. It is not a question of infor mation being withheld from the applicant; rather, the individuals responsible for preparation of progress summary reports were participating in a strike at the time in question.
In the final analysis, I am satisfied that the absence of a progress summary report, in the circumstances of this case, does not constitute a breach by the respondents of their duty to act fairly nor does it constitute a breach of section 7 of the Charter.
I turn now to the matter of the respondents' refusal to allow the applicant to obtain and instruct legal counsel after his request to do so on November 5, 1989. The question of whether an
inmate who is subject to disciplinary proceedings has a right to counsel was the subject of debate before the Federal Court of Appeal in Howard v. Stony Mountain Institution, [1984] 2 F.C. 642. In that case the inmate was charged with discipli nary offences under section 39 of the Penitentiary Service Regulations, C.R.C., c. 1251 and subject to a disciplinary hearing for which he requested representation by counsel and was denied. Thurlow C.J. formulated the following test as to whether an individual is to be considered as possessing an inherent right to counsel on page 663:
... it appears to me that whether or not the person has a right to representation by counsel will depend on the circumstances of the particular case, its nature, its gravity, its complexity, the capacity of the inmate himself to understand the case and present his defence. The list is not exhaustive. And from this, it seems to me, it follows that whether or not an inmate's request for representation by counsel can lawfully be refused is not properly referred to as a matter of discretion but is a matter of right where the circumstances are such that the opportunity to present the case adequately calls for representation by counsel.
Furthermore, "arrest or detention" in paragraph 10(b) of the Charter has been held to refer to a restraint of liberty, either physical or by the demand or direction of a person in authority.
In Latham v. Solicitor General of Canada, [1984] 2 F.C. 734 (T.D.), it was held a prisoner appearing before the Parole Board for a review of suspension of his parole is not entitled to an abso lute right to obtain and instruct counsel as set out in paragraph 10(b) of the Charter. Those rights, the Court held, apply only to initial arrest or detention, and any other application of paragraph 10(b), in a prison context, would result in a con tinuing duty on the part of prison officials to advise prisoners of their right to counsel on a day-by-day basis.
In my view, an inmate who is subject to an involuntary transfer made on an emergency basis does not have an absolute right to obtain counsel as provided for in section 10 of the Charter. That
is not to say that an inmate will never be able to invoke the protection of the rights enshrined in paragraph 10(b). However, I agree with Thurlow C.J.: it is the circumstances of each case which will determine whether that absolute right exists. In the case at bar, I am satisfied the applicant was well aware of the reasons for the transfer and was able to respond, in a meaningful way, to the case against him. He was provided with ample opportu nity to present his case adequately and indeed he did so. The applicant was not hindered in the presentation of his case by the absence of counsel. Considering the facts of this case, as well as the emergency nature of the situation, the refusal to allow the applicant to obtain counsel did not con stitute a breach of any duty on the part of prison officials to act fairly nor was it offensive to any of the applicant's rights under the Charter.
Finally, the evidence does not support the appli cant's allegation that there was an improper dele gation of authority to the Regional Transfer Board to make the decision to transfer. Under Commis sioner's Directive 540, it is the Regional Deputy Commissioner, the Assistant Deputy Commission er, Operations and the Regional Administrator Community and Institutional Operations who have the authority to approve intra-regional transfers. The approval of the applicant's transfer was made by Mr. Linklater in his capacity as Acting Assist ant Deputy Commissioner, Operations, after a review of the material before him, including the applicant's written submissions. There was, there fore, no improper delegation of authority to the Regional Transfer Board.
For all these reasons, I am unable to conclude the respondents failed to fulfil their duty to act fairly nor did their actions infringe any rights of the applicant under the Charter. The application is therefore dismissed with costs.
These reasons for order written in the case of applicant Christopher Williams, File No. T-1505-90, are also to apply to the following appli cants: Harold Dubarry, T-1506-90; Ken McIntyre, T-1507-90; Arthur Winters, T-1508-90; and
Eugene Campbell, T-1509-90. It should be noted that though there may be slight discrepancies in the facts in each file, the principles challenged were the same.
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