Date: 19980824
Docket: T-1668-97
OTTAWA, ONTARIO, AUGUST 24, 1998
PRESENT: THE HONOURABLE MR. JUSTICE NADON
Between:
RÉMY CARTIER
Applicant
- and -
ATTORNEY GENERAL OF CANADA
Respondent
ORDER
The application for judicial review is dismissed.
"MARC NADON"
Judge
Certified true translation
Bernard Olivier
Date: 19980824
Docket: T-2652-97
OTTAWA, ONTARIO, AUGUST 24, 1998
PRESENT: THE HONOURABLE MR. JUSTICE NADON
Between:
RÉMY CARTIER
Applicant
- and -
ATTORNEY GENERAL OF CANADA
Respondent
ORDER
The application for judicial review is dismissed.
"MARC NADON"
Judge
Certified true translation
Bernard Olivier
Date: 19980824
Docket: T-2652-97
T-1668-97
Between:
RÉMY CARTIER
Applicant
- and -
ATTORNEY GENERAL OF CANADA
Respondent
REASONS FOR ORDER
NADON J.:
[1] The applicant is seeking to have two decisions of the Correctional Service of Canada ("correctional service") dated July 9 and November 5, 1997, set aside.
[2] The relevant facts may be summarized as follows. Until July 1997, the applicant was an inmate at the Donnacona penitentiary, a maximum security institution, where he was serving a fifteen-year sentence that began in January 1990, for manslaughter, using a firearm, throwing an explosive substance, possession of weapons, robbery, conspiracy and disguising. After spending over a year at the Leclerc penitentiary, he returned to the Donnacona Institution on June 19, 1996.
[3] On June 23, 1997, the applicant received a notification of recommendation of involuntary transfer to the Special Handling Unit ("S.H.U.") at the Ste-Anne-des-Plaines penitentiary. The reasons given in support of the notification are as follows:
| [TRANSLATION] We have information indicating that you were involved in the very serious assault on the inmate LAURIE which occurred on June 4, 1997, at about 7:20 a.m. |
| A number of reports received by preventive security also indicate to us that you are involved in institutional drug trafficking involving a member of the staff (reference: PSR of 1997.06.23, heading "Continuation of criminal activities"). |
| This information also tells us that you, in company with a group of fellow inmates, have been involved in intimidation and influence peddling. |
| Under the circumstances, in accordance with C.D. 540-10A, your case management team has no choice but to recommend a transfer to the R.R.C. (in administrative segregation), as soon as possible, as your case can no longer be handled in a regular "MAXIMUM" inmate population such as Donnacona. |
| Your case will ultimately be assessed for consideration of placement in the special handling unit at the R.R.C. for assessment. |
[4] On June 23, 1997, in addition to the notification of recommendation of transfer, the applicant received a Progress Summary ("PSR"). That seven-page document recounts the applicant's history in the penitentiary and explains why the correctional service wishes to transfer him to the S.H.U. Under the heading "INSTITUTIONAL ADJUSTMENT FACTORS: HIGH" there are summaries of preventive security reports on which the correctional service relied in transferring the applicant. Those summaries read as follows:
| [translation] S.I.R. 3210297 (1997/06/05) |
| The subject is involved in a drug trafficking network in the institution and in pressuring fellow inmates. He is also involved in influence peddling and intimidating peers. The report notes that the Rock Machine controls all areas of activity in the unit, the canteen, the inmate committee, socio-cultural aspects, etc. |
| S.I.R. 3210397 (1997/06/05) |
| Information confirms that the Rock Machine group exercises total control of all activities on the unit. This group's connections, including Rémi Cartier, have caused a reign of terror and intimidation. They control institutional drug trafficking, and a staff member is apparently also involved in this trafficking. These individuals threaten to harm certain inmates and their families and have no hesitation in assaulting dissidents. |
| S.I.R. 3210597 (1997/06/16) |
| This information indicates the modus operandi of the assault on the inmate Laurie and the subject's participation. |
| S.I.R. 3210697 (1998/06/18) |
| The information set out in this report indicates that on June 3, 1997, a meeting was held between the leaders of the population, including Rémi Cartier, and that on that occasion it was decided that the inmate Peter Laurie had to be eliminated. The reason was that he was no longer following the group's orders and was a threat to them. |
| P.I.R. (1997-06-16) |
| Information on the identity of the assailants and Rémi Cartier's name appears in it. |
| P.I.R. 3215389 (1989/12/22) |
| This report indicates that the subject is involved in institutional trafficking and that he uses a member of the staff as an accomplice. |
| Disclosure of protected information |
[5] On June 24, 1997, the applicant filed a written objection to the transfer recommendation, complaining he had not received enough information from the correctional service. On June 27, 1997, the warden of the Donnacona Institution informed the applicant in writing that in his opinion all relevant information had been disclosed to him. The warden's letter read as follows, in part:
| [translation] The PSR of 97-06-23 provides detailed explanations of the reasons that led to recommending your involuntary transfer to the RRC (administrative segregation) for admission to the SHU for assessment. We therefore believe that you have been provided with all relevant information and that you are in a position to make full answer and defence. In terms of giving you the right to prepare your representations regarding the measure recommended in your case, we feel that this right was respected and that the procedure set out in CD 540 and the Correctional and Conditional Release Regulations was complied with fully. There are no new facts that would change the recommendation of involuntary transfer to the RRC (administrative segregation) for admission to the SHU for assessment. |
[6] On July 9, 1997, the applicant was transferred to the S.H.U. at Ste-Anne-des-Plaines for assessment as a result of a decision made on that date by the Regional Deputy Commissioner of the correctional service.
[7] At Ste-Anne-des-Plaines, a team was given the job of assessing the applicant's situation in connection with his admission to the S.H.U. On September 26, 1997, a decision was made not to recommend that the applicant be admitted to the S.H.U.
[8] On October 3, 1997, the applicant was informed that his case would be examined by the National Review Board ("N.R.B.") for S.H.U. cases on October 9, 1997. On October 6, 1997, the Ste-Anne-des-Plaines team responsible for assessing the applicant's case received some preventive security reports that were not available1 when the recommendation not to admit him to the S.H.U. was made on September 26, 1997. According to the applicant's case management officer, Linda Giordano, the content of these reports [translation] "clearly identifies inmate Cartier as having participated in the assault on inmate Laurie".
[9] After reading the content of the preventive security reports, Ms. Giordano informed the applicant that these preventive security reports had been received and that a summary had been disclosed to him in the PSR of June 23, 1997. In addition, Ms. Giordano informed the applicant that the information presented in the preventive security reports was sufficient to justify admitting him to the S.H.U. and that representations to that effect would be made orally to the N.R.B. on October 9, 1997. According to Ms. Giordano, the applicant informed her that he intended to appear before the N.R.B. in person to make representations.
[10] On October 9, 1997, the members of the N.R.B. met with the applicant and, having regard to the additional information received on October 6, 1997, postponed examination of has case to allow the team responsible for examining his case to review the file and submit their recommendation, and to provide it [translation] "to inmate Cartier at least five days before the date on which the case is considered by the national review board ...".
[11] On October 29, 1997, the applicant was informed that his case would be considered by the N.R.B. on November 5, 1997. On that date as well, after reviewing the applicant's file, Ms. Giordano signed a PSR recommending that he be admitted to the S.H.U. The case management team's recommendation was approved by the cell block committee of the Ste-Anne-des-Plaines Institution on October 29, 1997.
[12] After being informed of the recommendation that he be admitted to the S.H.U., the applicant told Ms. Giordano that he did not intend to make representations to the N.R.B. on November 5, 1997. On November 5, 1997, after examining the case, the N.R.B. concluded that the applicant should be admitted to the S.H.U. and that his case would be reviewed in four months. The decision under review reads as follows:
| [translation] The National Review Board for S.H.U. cases examined your case on November 5, 1997. Having regard to the information on your conduct in the institution, your involvement in the assault on a fellow inmate in June 1997 and your role in institutional drug trafficking, we decided that admission to the S.H.U. was required in order to contain the risk you present. Accordingly, the following decision was made: |
| -Admission to the S.H.U. |
| -Case to be reviewed in 4 months. |
[13] In file no. T-2652-97, the applicant is challenging the decision made by the N.R.B. on November 5, 1997. In file no. T-1668-97, the applicant is challenging the decision made on July 9, 1997 to transfer him from Donnacona to Ste-Anne-des-Plaines. The applicant is attacking the decision of November 5, 1997, on the following grounds:
[translation]
| 1. The National Review Board acted without jurisdiction in this instance since it was clear that the initial transfer from Donnacona was illegal, since information essential for contesting it was concealed from the applicant. |
| 2. The National Review Board for S.H.U. cases erred in law in approving the applicant's admission without disclosing sufficient information to enable him to prepare a relevant and intelligent defence as required by the principles of procedural fairness, thereby exceeding its jurisdiction. |
| 3. The National Review Board violated a principle of procedural fairness by failing to mechanically record the hearing to which the applicant was entitled. |
At the hearing, counsel for the applicant informed the Court that he was abandoning the third ground.
[14] The applicant objects to the decision of July 9, 1997, on the ground that the correctional service transferred him without disclosing enough information to him to enable him to prepare a relevant and intelligent defence, as required by the principles of procedural fairness.
[15] The grounds in support of the applications for judicial review are, to all intents and purposes, identical. The applicant submits that when the decision to transfer him from Donnacona to Ste-Anne-des-Plaines was made, he did not have the opportunity [translation] "to respond to the accusations made against him, as required by the Federal Court of Appeal in Demaria v. Regional Classification Board and Payne (1986), 30 C.C.C. (3d) 55". In order to better understand the applicant's argument, I reproduce the five submissions he made him in support of the second ground in file no. T-2652-97:
[translation]
| 1. Knowing that the applicant is presumed to have committed the assault he is accused of is merely an extension of the charge against him. Nonetheless, he is still unaware of the basic details such as the place and circumstances of the assault, without which information any form of defence is futile. |
| 2. The arguments based on Demaria and Lee are again applicable. The issue is always one of balancing the applicant's right to disclosure of information for the purpose of making a relevant and intelligent defence against the duty to preserve the identity of informers. |
| 3. A simple practical example will very clearly establish that the applicant could have received much more information essential to his defence, without any violation of the informers' identity being possible: if the applicant had simply known the place, time and duration and very summary circumstances of the assault, he could have presented a defence asserting, inter alia, an alibi, if he has one. |
| 4. That being said, how can this simple information, which is deemed to be known to the person of whose guilt we are supposedly convinced, be likely to endanger the safety of the informers? |
| 5. It has therefore been clearly proved that the Correctional Service, through the Review Board, has once again violated procedural fairness in this case, by failing to disclose all the relevant information available which is not likely to disclose the identity of an informer (Lee, supra). |
[16] Sections 27, 28 and 29 of the Corrections and Conditional Release Act, S.C. 1992, c. 20, (the "Act") are relevant; they provide as follows:
| 27. (1) Where an offender is entitled by this Part of the regulations to make representations in relation to a decision to be taken by the Service about the offender, the person or body that is to take the decision shall, subject to subsection (3), give the offender, a reasonable period before the decision is to be taken, all the information to be considered in the taking of the decision or a summary of that information. (2) Where an offender is entitled by this Part or the regulations to be given reasons for a decision taken by the Service about the offender, the person or body that takes the decision shall, subject to subsection (3), give the offender, forthwith after the decision is taken, all the information that was considered in the taking of the decision or a summary of that information. (3) Except in relation to decisions on disciplinary offences, where the Commissioner has reasonable grounds to believe that disclosure of information under subsection (1) or (2) would jeopardize (a) the safety of any person, (b) the security of a penitentiary, or (c) the conduct of any lawful investigation, the Commissioner may authorize the withholding from the offender of as much information as is strictly necessary in order to protect the interest identified in paragraph (a), (b) or (c). |
27.(1) Sous réserve du paragraphe (3), la personne ou l'organisme chargé de rendre, au nom du Service, une décision au sujet d'un délinquant doit, lorsque celui-ci a le droit en vertu de la présente partie ou des règlements de présenter des observations, lui communiquer, dans un délai raisonnable avant la prise de décision, tous les renseignements entrant en ligne de compte dans celle-ci, ou un sommaire de ceux-ci. (2) Sous réserve du paragraphe (3), cette personne ou cet organisme doit, dès que sa décision est rendue, faire connaître au délinquant qui y a droit au titre de la présente partie ou des règlements les renseignements pris en compte dans la décision, ou un sommaire de ceux-ci. (3) Sauf dans le cas des infractions disciplinaires, le commissaire peut autoriser, dans la mesure jugée strictement nécessaire toutefois, le refus de communiquer des renseignements au délinquant s'il a des motifs raisonnables de croire que cette communication mettrait en danger la sécurité d'une personne ou du pénitencier ou compromettrait la tenue d'une enquête licite. |
| (4) An offender who does not have an adequate understanding of at least one of Canada's official languages is entitled to the assistance of an interpreter (a) at any hearing provided for by this Part or the regulations; and (b) for the purposes of understanding materials provided to the offender pursuant to this section. |
(4) Le délinquant qui ne comprend de façon satisfaisante aucune des deux langues officielles du Canada a droit à l'assistance d'un interprète pour toute audition prévue à la présente partie ou par ses règlements d'application et pour la compréhension des documents qui lui sont communiqués en vertu du présent article. |
| 28. Where a person is, or is to be, confined in a penitentiary, the Service shall take all reasonable steps to ensure that the penitentiary in which the person is confined is one that provides the least restrictive environment for that person, taking into account |
28. Le Service doit s'assurer, dans la mesure du possible, que le pénitencier dans lequel est incarcéré le détenu constitue le milieu le moins restrictif possible, compte tenu des éléments suivants: |
| (a) the degree and kind of custody and control necessary for (i) the safety of the public, (ii) the safety of that person and other persons in the penitentiary, and (iii) the security of the penitentiary; |
a) le degré de garde et de surveillance nécessaire à la sécurité du public, à celle du pénitencier, des personnes qui s'y trouvent et du détenu; |
| (b) accessibility to (i) the person's home community and family, (ii) a compatible cultural environment, and (iii) a compatible linguistic environment; and |
b) la facilité d'accès à la collectivité à laquelle il appartient, à sa famille et à un milieu culturel et linguistique compatible; |
| (c) the availability of appropriate programs and services and the person's willingness to participate in those programs. |
c) l'existence de programmes et services qui lui conviennent et sa volonté d'y participer. |
| 29. The Commissioner may authorize the transfer of a person who is sentenced, transferred or committed to a penitentiary to (a) another penitentiary in accordance with the regulations made under paragraph 96(d), subject to section 28; or (b) a provincial correctional facility or hospital in accordance with an agreement entered into under paragraph 16(1)(a) and any applicable regulations. |
29. Le commissaire peut autoriser le transfèrement d'une personne condamnée ou transférée au pénitencier, soit à un autre pénitencier, conformément aux règlements pris en vertu de l'alinéa 96d), mais sous réserve de l'article 28, soit à un établissement correctionnel provincial ou un hôpital dans le cadre d'un accord conclu au titre du paragraphe 16(1), conformément aux règlements applicables. |
| [17] Subsection 27(1) of the Act provides that the applicant is entitled to be given, a reasonable period before the decision to transfer him is to be taken, all the relevant information that led to the decision or a summary of that information. |
| [18] Subsection (3) of that section, on the other hand, provides for certain information not to be disclosed where the Commissioner has reasonable grounds to believe that disclosure of the information would jeopardize the safety of any person or the security of the penitentiary. |
| [19] The applicant bases his argument, inter alia, on the decision of the Federal Court of Appeal in Demaria. That decision, which was rendered in August 1986, was discussed by the Court of Appeal in Gallant v. Canada (Deputy Commissioner, Correctional Service Canada), [1989] 3 F.C. 329. |
| [20] In Gallant, the inmate was serving four life sentences of imprisonment for murder. The correctional service, suspecting extortion, decided to transfer him from a maximum security to a high maximum security institution. The inmate contested the transfer on the ground that the information that had been provided to him was insufficient to enable him to answer properly. In response to the decision to transfer him, the inmate filed an application for judicial review which was granted by the Trial Judge. Relying on the decision of the Court of Appeal in Demaria, the Trial Judge concluded that the principles of natural justice had not been respected, since the inmate had not received sufficient disclosure of the relevant information. The decision was appealed and the Court of Appeal concluded, by majority decision, that the information provided to the inmate by the correctional service before the decision was taken was sufficient. |
| [21] Both of the majority judges, Mr. Justice Pratte and Mr. Justice Marceau, for different reasons, concluded that the principles of natural justice had been observed. I entirely agree with the reasons stated by Marceau J.A., which were also quoted with approval by Mr. Justice Strayer (as he then was) in Camphaug v. Canada (1990), 34 F.T.R. 165. In addition to distinguishing Demaria, Marceau J.A. explained the nature and scope of the audi alteram partem rule in the context of a decision to transfer an inmate. I therefore shall reproduce the reasons of Marceau J.A., found at pages 341 to 344 of the report: |
| I readily agree with Mr. Justice Pratte that the judgment appealed from here cannot be allowed to stand. I must say however, with respect, that I have some difficulty with the reasons he gives in support of this conclusion, and I wish to express my personal views in a few brief comments. |
| 1. I did not understand the appellant as having at any time acknowledged that he had somehow been compelled to breach the duty to act fairly to which he was normally bound. What the appellant said is simply that, in fulfilling his duty to act fairly, he had given the respondent all the information he could without, in effect, divulging the identity of his informers. So the question is not, I think, whether the rule of confidentiality respecting informers can relieve a decision-maker from his duty to act fairly, it is rather whether the rule of confidentiality can influence, as much as it did here, the content of that duty. And the difference, to me, is of the utmost importance, since I have the greatest difficulty in accepting that the audi alteram partem principle, which is what the duty to act fairly is all about, can ever be completely disregarded otherwise than in a case of an exceptional emergency and for quite a short period of time. (See: Cardinal et al. v. Director of Kent Institution, [1985] 2 S.C.R. 643). |
| The rationale behind the audi alteram partem principle, which simply requires the participation, in the making of a decision, of the individual whose rights or interests may be affected, is, of course, that the individual may always be in a position to bring forth information, in the form of facts or arguments, that could help the decision-maker reach a fair and prudent conclusion. It has long been recognized to be only rational as well as practical that the extent and character of such participation should depend on the circumstances of the case and the nature of the decision to be made. This view of the manner in which the principle must be given effect ought to be the same whether it comes into play through the jurisprudential duty to act fairly, or the common law requirement of natural justice, or as one of the prime constituents of the concept of fundamental justice referred to in section 7 of the Charter. The principle is obviously the same everywhere it applies. |
| As I see it, the problem here is whether the audi alteram partem principle, in the circumstances that prevailed, required that more information be given to the inmate before asking him for his representations. In my judgment, having regard to the nature of the problem the appellant was facing and his responsibility toward those entrusted to his care, it did not. |
| 2. It seems to me that, to appreciate the practical requirements of the audi alteram partem principle, it is wrong to put on the same level all administrative decisions involving inmates in penitentiaries, be they decisions of the National Parole Board respecting the revocation of parole, or decisions of disciplinary boards dealing with disciplinary offences for which various types of punishments, up to administrative segregation, can be imposed, or decisions, such as the one here involved, of prison authorities approving the transfer of inmates from one institution to another for administrative and good order reasons. Not only do these various decisions differ as to the individual's rights, privileges or interests they may affect, which may lead to different standards of procedural safeguards; they may also differ, and even more significantly, as to their purposes and justifications, something which cannot but influence the content of the information that the individual needs to be provided with, in order to render his participation, in the making of the decision, wholly meaningful. In the case of a decision aimed at imposing a sanction or a punishment for the commission of an offence, fairness dictates that the person charged be given all available particulars of the offence. Not so in the case of a decision to transfer made for the sake of the orderly and proper administration of the institution and based on a belief that the inmate should, because of concerns raised as to his behaviour, not remain where he is. In such a case, there would be no basis for requiring that the inmate be given as many particulars of all the wrong doings of which he may be suspected. Indeed, in the former case, what has to be verified is the very commission of the offence and the person involved should be given the fullest opportunity to convince of his innocence; in the latter case, it is merely the reasonableness and the seriousness of the belief on which the decision would be based and the participation of the person involved has to be rendered meaningful for that but nothing more. In the situation we are dealing with here, guilt was not what had to be confirmed, it was whether the information received from six different sources was sufficient to raise a valid concern and warrant the transfer. |
| 3. There are obvious essential differences between the situation considered by the Court in Demaria, on which the Trial Judge relied exclusively, and the one which is before us today: |
| a) In Demaria, the ground for transfer was the belief that the inmate had brought cyanide into the prison; it was then an act, an operation which had taken place and was not likely to be repeated. In our case, the ground is the belief that the inmate was involved in a system of extortion, which could very well be still going on or reactivated. |
| b) In Demaria, there was no direct reason to believe that the safety of fellow prisoners was involved; there were no obvious victims of the alleged misconduct. Here, on the contrary, extortion through threat of violence, by its very nature, implicates victims and spells danger for the safety of others. |
| c) In Demaria, there was independent evidence obtained by the police. Here, the entire body of evidence was obtained from informants who had obvious objective and realistic fears of reprisals at the hands of the alleged extortionists. |
| d) In Demaria, the withholding of information was complete and merely justified by a blanket claim, as characterized by Hugessen J. [at page 78], that ""all preventive security information" is confidential and (cannot) be released". Here, on the one hand, the information given is definitely more substantial"including the inmate's Progress Summary Report in its entirety, the extent of the concern of the Warden, and cogent reasons for non-disclosure of further particulars. On the other hand, we have the unequivocal sworn statement of the prison authorities that no further information could be safely released, notably the statement of the Warden who, as the Trial Judge so rightly proclaims [at pages 271 C.R.; 153 F.T.R.], "is more familiar with prison conditions than the court and is in a position to give a more realistic appraisal of what the inmate population is able to deduce from any given information." |
| I would dispose of the appeal as suggested by Mr. Justice Pratte. |
| [22] I would also like to note what Mr. Justice Strayer [as he then was] said in Camphaug. Strayer J.A. stated, at pages 166 and 167: |
| ... I respectfully accept the way in which the requirement was described by Marceau J.A. in the Trono case. He said that what is involved is the audi alteram partem principle. This principle requires some participation of the person in respect of whose rights or interests the decision is being taken, such participation allowing him to bring forth information that can help the decision-maker to reach a fair and prudent conclusion. The content of the fairness requirement will be the same whether it is ascribed to the common law or to the Charter. I also respectfully accept the view of Marceau J.A. in the same case 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 that the prisoner should be moved for the sake of the orderly and proper administration of the institution. This implies that fairness in the making of such a decision does not require that the inmate be given all of the particulars of all alleged wrong doings; it is sufficient if he can make representations to demonstrate that the recommendation that he be moved is an unreasonable one. |
| Later, at page 167, he concludes his reasons as follows: |
| Having regard to the criteria of fairness in these situations as outlined above, I am satisfied that the applicant had available all of the information made available to the Deputy Commissioner and that it was sufficient that he had 48 hours to submit his written comments. As stated earlier, it was not for the Deputy Commissioner to retry all the allegations against the inmate on the basis of detailed evidence; it was sufficient that he form a reasonable opinion that Camphaug should be removed after Camphaug had an adequate opportunity to comment on that issue. |
| [23] I would also like to refer to the decision of the Quebec Court of Appeal in Ghislain Gaudet v. Laval Marchand, dated May 6, 1994 (file no. 500-10-000030-948). The reasons for that decision, which were written by Mr. Justice Rothman, are similar to those stated by Marceau J.A. in Gallant. |
| [24] In Gaudet, the inmate was seeking to have the decision of the correctional service to transfer him from the Donnacona penitentiary to the S.H.U. at Ste-Anne-des-Plaines set aside. The inmate was opposed to the transfer on the ground that the correctional service had not provided him with enough information to enable him to confront his accusers. |
| [25] As in the instant case, the correctional service had provided the inmate with a PSR which set out the reasons why the correctional service intended to transfer him to the S.H.U. As is the case here, the PSR contained a summary of the various preventive security reports on which the correctional service relied in transferring the inmate to the S.H.U. at Ste-Anne-des-Plaines. |
| [26] The Trial Judge dismissed his application, and the inmate then appealed the case to the Court of Appeal. In dismissing the appeal, Rothman J.A., for the Court, stated: |
| Appellant"s counsel makes it equally plain, in his letter of November 10, 1993, that what appellant wished to have was an oral hearing at which he could cross-examine the witnesses, including the confidential sources, who had provided information to the prison authorities against him: |
| [TRANSLATION] Mr. Gaudet hereby informs you that he wishes to attend in person at the hearing of his case regarding his transfer, with his counsel, and also requests that he be able to confront the witnesses who have allegedly accused him of certain facts which form the basis of the transfer recommendation (see P.S.R. of October 28, 1993). |
| At the same time, Mr. Gaudet requests complete disclosure of the evidence used against him, including a copy of the witness statements on which the factual allegations against him are based, to enable him to make full answer and defence. |
| The identities and statements of police informers is, [sic] of course, protected by a well-established rule of confidentiality. (Bisaillon v. Keable et al [1983] 2 S.C.R. 60) In a prison context, the reasons for the rule are too obvious to need elaboration. Suffice it to say, there would be few prison informers if their identities were not protected. |
| Further, while the penitentiary authorities did have a duty to act fairly and to afford appellant an opportunity to know the reasons for the transfer and an opportunity to be heard or to make representations on his behalf, the prison context must be borne in mind. In Cardinal and Oswald (supra) the Supreme Court of Canada considered the duty of procedural fairness in the context of prison administration. Mr. Justice Le Dain observed (p. 654): |
| The question, of course, is what the duty of procedural fairness may reasonably require of an authority in the way of specific procedural rights in a particular legislative and administrative context and what should be considered to be a breach of fairness in particular circumstances. The caution with which this question must be approached in the context of prison administration was emphasized by this Court in Martineau (No. 2), supra. Pigeon J., with whom Martland, Ritchie, Beetz, Estey and Pratte JJ. concurred, said at p. 637: |
| I must, however, stress that the Order issued by Mahoney J. deals only with the jurisdiction of the Trial Division, not with the actual availability of the relief in the circumstances of the case. This is subject to the exercise of judicial discretion and in this respect it will be essential that the requirements of prison discipline be borne in mind, just as it is essential that the requirements of the effective administration of criminal justice be borne in mind when dealing with applications for certiorari before trial, as pointed out in Attorney General of Quebec v. Cohen ([1979] 2 S.C.R. 305). It is specially important that the remedy be granted only in cases of serious injustice and that proper care be taken to prevent such proceedings from being used to delay deserved punishment so long that it is made ineffective, if not altogether avoided. |
| Dickson J. (as he then was), with whom Laskin C.J. and McIntyre J. concurred, expressed a similar caution at p. 630 as follows: |
| 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. |
| The same caution was emphasized by the Court of Appeal in R. v. Hull prison Board of Visitors, ex parte St Germain, [1979] 1 All E.R. 701, which was referred to by Pigeon and Dickson JJ. in Martineau (No. 2), supra, and in which Megaw L.J. said p. 713 concerning the judicial review of prison disciplinary decisions: |
| It is certainly not any breach of any procedural rule which would justify or require interference by the courts. Such interference, in my judgment, would only be required, and would only be justified, if there were some failure to act fairly, having regard to all relevant circumstances, and such unfairness could reasonably be regarded as having caused a substantial, as distinct from a trivial or merely technical, injustice which was capable of remedy. |
| The standards by which procedural fairness is measured are not immutable. They vary according to the context in which they are invoked. (R. v. Lyons [1987] 2 S.C.R. 309, 361; R. v. Wholesale Travel Group Inc. [1991] 3 S.C.R. 154) A criminal trial to determine the guilt or innocence of an accused person is a different context from a hearing to determine the transfer of a prisoner from the general prison population to administrative segregation or a special handling unit and the hearing cannot be the same. |
| In this case, appellant was given the opportunity to consult counsel and to make representations in person and in writing as to the reasons for the transfer. |
| In my view, the authorities satisfied their obligation to act fairly, as indicated by the Supreme Court in Cardinal and Oswald (supra, p. 659): |
| The issue then is what did procedural fairness require of the Director in exercising his authority pursuant to s. 40 of the Penitentiary Service Regulations, to continue the administrative dissociation or segregation of the appellants, despite the recommendation of the Board, if he was satisfied that it was necessary or desirable for the maintenance of good order and discipline in the institution. I agree with McEachern C.J.S.C. and Anderson J.A. that because of the serious effect of the Director"s decision on the appellants, procedural fairness required that he inform them of the reasons for his intended decision and give them an opportunity, however informal, to make representations to him concerning these reasons and the general question whether it was necessary or desirable to continue their segregation for the maintenance of good order and discipline in the institution. |
| In my respectful opinion, the authorities had no duty to provide appellant with copies of the statements given by informers, nor to afford appellant an opportunity to cross-examine these witnesses or the penitentiary authorities themselves. In a prison context, such a hearing would go considerably beyond procedural fairness into the realm of an unreasonable intrusion into the administration and security of the penitentiary. |
| I am mindful that it is not always an easy matter to balance the need for procedural fairness to a prisoner with the contextual requirements of prison administration and safety, as well as the duty to protect the identities and safety of informers and other confidential sources. (See, for example, Demaria v. Regional Classification Board [1987] 30 C.C.C. (3d) 55, Fed. C.A.; Balian v. Regional Transfer Board [1988] 62 C.R. (3d) 258, Ont. H.C.; Gallant v. Canada (Deputy Commissioner, Correctional Service Canada) [1989] 3 F.C. 329, Fed. C.A.) |
| In this case, I believe the balance was struck and the requirement of procedural fairness was met. |
| [27] In this case, the applicant is not seeking to cross-examine the informers or the staff of the penitentiary. Nonetheless, I am of the opinion that what Rothman J.A. said, like what Marceau J.A. said in Gallant, is relevant to the facts of this case. |
| [28] The only issue here is whether the correctional service provided the applicant, as required by section 27 of the Act, with all information "to be considered in" the taking of the decision or a summary of that information. That provision is qualified by subsection 27(3), which provides that the Commissioner may authorize withholding certain information from the inmate "where the Commissioner has reasonable grounds to believe that disclosure of information under subsection (1) or (2) would jeopardize ... the safety of any person, ... the security of a penitentiary, or ... the conduct of any lawful investigation". |
| [29] In my opinion, the PSR of June 23, 1997, which includes the security report summaries, provided the applicant with enough information to enable him to understand why the correctional service wanted to transfer him. The information provided to the applicant enabled him to make the representations he considered appropriate with respect to the assault on the inmate Laurie, the drug trafficking and the intimidation and influence peddling within the penitentiary. |
| [30] In his written argument in file no. T-2652-97, counsel for the applicant explained that since the applicant did not have sufficient information, he was unable, for example, to present an alibi defence, if he had one. In my view, that argument cannot stand. As Marceau J.A. explained in Gallant, a decision to transfer an inmate cannot be confused with a finding of guilt. In the case of a decision to transfer an inmate, the question is not whether the inmate has an alibi, but rather whether the information available to the correctional service justifies a transfer. I would again quote Marceau J.A. in Gallant where he stated, at pages 342 and 343: |
| ... In the case of a decision aimed at imposing a sanction or a punishment for the commission of an offence, fairness dictates that the person charged be given all available particulars of the offence. Not so in the case of a decision to transfer made for the sake of the orderly and proper administration of the institution and based on a belief that the inmate should, because of concerns raised as to his behaviour, not remain where he is. In such a case, there would be no basis for requiring that the inmate be given as many particulars of all the wrong doings of which he may be suspected. Indeed, in the former case, what has to be verified is the very commission of the offence and the person involved should be given the fullest opportunity to convince of his innocence; in the latter case, it is merely the reasonableness and the seriousness of the belief on which the decision would be based and the participation of the person involved has to be rendered meaningful for that but nothing more. In the situation we are dealing with here, guilt was not what had to be confirmed, it was whether the information received from six different sources was sufficient to raise a valid concern and warrant the transfer. |
| [31] In my opinion, we need only read the PSR of June 23, 1997, to conclude that, having regard to the circumstances, the rules of procedural fairness were respected. For these reasons, the applications for judicial review will be dismissed. |
| Ottawa, Ontario "MARC NADON" |
| August 24, 1998 Judge |
| Certified true translation |
| Bernard Olivier |
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
COURT FILE NO: T-2652-97
STYLE OF CAUSE: RÉMY CARTIER v. AGC
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: June 30, 1998
REASONS FOR ORDER OF NADON J.
DATED: August 24, 1998
APPEARANCES:
Martin Latour
FOR THE APPLICANT
Éric Lafrenière
FOR THE RESPONDENT
SOLICITORS OF RECORD:
Labelle, Boudrault, Côté & Associés
Montréal, Quebec
FOR THE APPLICANT
Morris Rosenberg
Deputy Attorney General of Canada
FOR THE RESPONDENT
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
COURT FILE NO: T-1668-97
STYLE OF CAUSE: RÉMY CARTIER v. AGC
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: June 30, 1998
REASONS FOR ORDER OF NADON J.
DATED: August 24, 1998
APPEARANCES:
Martin Latour
FOR THE APPLICANT
Éric Lafrenière
FOR THE RESPONDENT
SOLICITORS OF RECORD:
Labelle, Boudrault, Côté & Associés
Montréal, Quebec
FOR THE APPLICANT
Morris Rosenberg
Deputy Attorney General of Canada
FOR THE RESPONDENT
__________________
11 S.I.R. 3210597 (1997/06/16) This information indicates the modus opérandi of the assault on the inmate Laurie and the subject's participation.
P.I.R. (1997-06 -16) Information on the identity of the assailants and Rémi Cartier's name appears in it.