Judgments

[1994] 3 F.C. 629

T-2318-93

Roy Lee and Allan Mathieson (Applicants)

v.

Deputy Commissioner Correctional Service Canada, Pacific Region (Respondent)

Indexed as: Lee v. Canada (Deputy Commissioner, Correctional Service, Pacific Region) (T.D.)

Trial Division, Reed J.—Vancouver, May 17; Ottawa, June 7, 1994.

Penitentiaries — Application to quash second decision to transfer convicts to high maximum security institution when prison breach plot suspected — Third level grievance decided by Commissioner while application for judicial review of transfer decision pending, although Corrections and Conditional Release Regulations, s. 81(1) requiring deferral of decision on grievance where offender pursuing alternate legal remedy — Federal Court Judge quashing initial transfer decision — Convicts re-served with notices of involuntary transfer — Deputy Commissioner again deciding to transfer — Affidavit not indicating reasons for withholding information specified in Corrections and Conditional Release Act, s. 27(3) considered — Transfer documentation package deficient as not containing progress summary required by Commissioner’s Directive — New decision to be made by Commissioner after giving applicants all information except that protected from disclosure by s. 27(3).

Judicial review — Application to quash decision to transfer convicts to high maximum security institution — Reasonable apprehension Deputy Commissioner biased as superior earlier denying grievance thus confirming decision to transfer — Possible additional information provided to another inmate allegedly involved in escape plot not provided to applicants — Applicants’ argument details of plot supplied by informant not guaranteeing veracity as could be composite of TV show, previous escape not completely answered — New decision to be made by Commissioner after giving applicants all information except that protected from disclosure by Corrections and Conditional Release Act, s. 27(3).

This was an application to quash decisions transferring the applicants from a maximum security to a high maximum security institution on the ground that they had been denied a fair hearing. The applicants had been transferred in September 1992 when prison officials received information as to a conspiracy to escape sometime in October 1992 using weapons and a helicopter. In November 1992 the applicants filed a third level grievance which was denied by the Commissioner in March 1993, but not before the applicants had filed applications to quash the transfer decisions. Although they were quashed by this Court in July 1993, the applicants were not transferred out of high maximum but rather re-served with notices of the Warden’s recommendation of involuntary transfer which were almost identical to the original notices but providing information which had been given to another inmate allegedly involved in the plot. The applicants responded, the Warden confirmed his recommendation, and the Deputy Commissioner again accepted the Warden’s recommendation and decided that the transfer of the applicants was appropriate. The applicants argued that the plot was a figment of an informant’s imagination, composed of details cobbled together from a successful helicopter escape that had occurred in 1990 and from an escape plot publicized on the television program “Top Cops,” the details of which were likely to be known to all inmates. The applicants submitted that insufficient information had been provided to enable them to answer the allegations. They also argued that there was a reasonable apprehension of bias on the part of the Deputy Commissioner as his superior had, by denying the grievance, confirmed the transfer decision.

Corrections and Conditional Release Act, subsection 27(3) provides that where the Commissioner has reasonable grounds to believe that disclosure of information would jeopardize the safety of any person, the security of a penitentiary, or the conduct of any lawful investigation, he may authorize the withholding from the offender of as much information as is strictly necessary in order to protect the interest identified. Corrections and Conditional Release Regulations, subsection 81(1) provides that where an offender decides to pursue a legal remedy in addition to the complaint and grievance procedure, the review of the complaint or grievance shall be deferred until a decision on the alternate remedy is rendered, or the offender decides to abandon the alternate remedy.

Held, the application should be allowed.

Additional information may have been provided to the other inmate which had not yet been provided to the applicants. The test is whether enough information has been revealed to allow the person concerned to answer the case against him. The affidavit filed with respect to the information which had been disclosed to the applicants did not purport to have applied the criteria set out in the Corrections and Conditional Release Act, subsection 27(3) when reviewing whether or not additional information could have been provided. It was particularly troublesome that the applicants’ argument, that the level of detail provided concerning the plot was no guarantee of its veracity because the details were a composite of the “Top Cops” program and the 1990 helicopter escape at Kent Institution, was never entirely answered.

The material which was provided to the Deputy Commissioner for the purpose of making the transfer decision did not include all the material which should have been put before him. The Commissioner’s Directive 540 provides that the transfer documentation package shall include a progress summary. No progress summary was provided herein.

As to bias, it is doubtful that a subordinate can approach the question of altering his superior’s prior decision with the objectivity and independence that is required for a fair decision.

Finally Corrections and Conditional Release Regulations, subsection 81(1) was not followed as the applicants’ third level grievance was dealt with after the application for judicial review had been filed.

The decisions should be quashed based on the non-compliance with the Regulations, subsection 81(1) and the existence of a reasonable apprehension of bias. If the question of an involuntary transfer of the applicants for reasons arising out of the information provided in August/September 1992 is to be re-decided, the decision should be made by the Commissioner and not by a subordinate. Full reasons for any such decision should be given and all information except that which fits into the categories described in subsection 27(3) should be provided to the applicants ahead of time so that adequate submissions can be made with respect thereto.

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], s. 7.

Corrections and Conditional Release Act, S.C. 1992, c. 20, s. 27(1),(3).

Corrections and Conditional Release Regulations, SOR/92-620, s. 81(1).

CASES JUDICIALLY CONSIDERED

APPLIED:

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.); Lee v. Canada (Deputy Commissioner, Correctional Service, Pacific Region), [1994] 1 F.C. 15; (1993), 67 F.T.R. 54 (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; 35 F.T.R. 79; 92 N.R. 292 (C.A.); Martineau 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) 315; 30 N.R. 119; Gough v. Canada (National Parole Board), [1991] 2 F.C. 117; (1990), 45 Admin. L.R. 304; 3 C.R. (4th) 325; 5 C.R.R. (2d) 145; 40 F.T.R. 91 (T.D.).

AUTHORS CITED

Correctional Service Canada. Commissioner’s Directive 540, “Standards for Inmate Transfers” dated November 1, 1992.

APPLICATION to quash second decision transferring the applicants from a maximum security to a high maximum security institution based on the denial of a fair hearing. Application allowed.

COUNSEL:

Peter Benning and Sasha P. A. Pawliuk for applicants.

David L. Fitzsimmons for respondent.

SOLICITORS:

Peter Benning, Abbotsford, British Columbia, for applicants

Sasha Pawliuk, Abbotsford, British Columbia, for applicants.

Deputy Attorney General of Canada for respondent.

The following are the reasons for order rendered in English by

Reed J.: The applicants seek an order quashing decisions transferring them from a maximum security institution, Kent Institution, near Agassiz, British Columbia, to a high maximum security institution, the Special Handling Unit in the Saskatchewan Penitentiary, Prince Albert, Saskatchewan. The applicants seek to quash those decisions on the ground that they were denied a fair hearing: (1) they were not given enough information concerning the reasons for the transfer in order to be able to adequately respond to those reasons; (2) the submissions they did make were not considered, in any meaningful way, by the Deputy Commissioner of the Correctional Service Canada for the Pacific Region (Deputy Commissioner);[1] (3) the decisions were made by a biased decision-maker or at least by one with respect to whom a reasonable apprehension of bias existed. It is argued that not only were the common law rules of natural justice breached but also the requirements of fundamental justice guaranteed by section 7 of the Canadian Charter of Rights and Freedoms.[2]

On September 2, 1992, the applicants were placed in segregation at Kent Institution because information had come to the attention of prison officials that the applicants, together with three other individuals, were planning a prison break. On September 8, 1992 the applicants were notified that recommendations were being made by the Warden of Kent Institution (the Warden)[3] that they should be transferred to a high maximum security institution. The applicants were told that these recommendations were being made because information existed that they were involved in a conspiracy to escape using weapons and a helicopter and that this escape was planned for sometime in October 1992.

The applicants sought an extension of the 48-hour time period they were given within which to respond to these allegations. That request was denied. On September 11, 1992 the applicants were transferred by decision of the Deputy Commissioner to the Special Handling Unit of the Saskatchewan Penitentiary, Prince Albert, Saskatchewan.

Submissions were subsequently sent, by counsel for the applicants to the Deputy Commissioner concerning the transfer. On October 6, 1992 counsel for the applicants wrote to the Assistant Deputy Commissioner complaining that more information had been provided to one of the other inmates allegedly involved in the plot, a Mr. Rocha, than had been provided to the applicants. A response was received on October 21, 1992. The Deputy Commissioner stated that he refused to alter the original decision, respecting the transfer of the applicants and enclosed information which had been provided to Mr. Rocha. This was a document entitled “Gist of Preventive Security Information” (gist). On November 23, 1992 the applicants filed what is known as a third level grievance to the Commissioner of the Correctional Service Canada (Commissioner). This grievance was not immediately dealt with for reasons which it is not necessary to describe. On February 10, 1993, the applicants filed applications in this Court (T-344-93 and T-345-93) seeking orders quashing the transfer decisions. On March 8, 1993 the Commissioner dealt with the third level grievances and denied them. On July 28, 1993 Mr. Justice Rothstein issued orders quashing the Deputy Commissioner’s transfer decisions.[4]

Subsequent to Mr. Justice Rothstein’s orders, the applicants were not transferred out of the Special Handling Unit in Prince Albert. On July 30, 1993, they were re-served with notices of the Warden’s recommendation of involuntary transfer from Kent Institution. These notices were almost identical to those which had been served on the applicants the preceding September but with the information which had been subsequently provided to them in October (the gist) attached. On August 17, 1993, counsel for the applicants responded to these notices and, on September 2, 1993 the Warden confirmed his July 30, 1993 recommendation that involuntary transfers be effected. On September 13, 1993 the Deputy Commissioner again accepted the Warden’s recommendation and decided that the transfer of the applicants to the Special Handling Unit in Prince Albert was appropriate. It is this second transfer decision which is now being challenged.

Sufficiency of Information

As noted, the information provided to the applicants in July of 1993 is the same as that which was provided to them on October 21, 1992. This information states:

The following information is a “gist” of Preventive Security information relating to a conspiracy to escape and breach prison by violence. The information is from a variety of sources, both primary and secondary and, where these can safely be revealed they have been noted.

1.   A group of General Population inmates were planning a violent escape by helicopter from Kent Institution some time during October, 1992. Three inmates were to escape. They were Roy LEE, Allan MATHIESON and a third inmate, who remains unknown to staff.

2.   LEE, serving a life sentence, is reputed to have connections with Asian gangs. His family, some of whom are also reputed to be gang connected, is originally from Singapore.

3.   MATHIESON has an SRD of 96-08-30. He was transferred to Kent in February of 1992 from the Special Handling Unit. He had been placed at the SHU in June of 1990 after his involvement in a conspiracy to Commit Prison Breach at Collins Bay Institution (Ontario). This conspiracy to escape involved the use of weapons, force, community contacts and other inmates. MATHIESON was convicted and sentenced 6 years imprisonment on a charge of Conspire to Commit Prison Breech [sic] in February of 1990 as a result of his involvement.

4.   Automatic weapons were already arranged and were being supplied by another inmate, Rajinder BENJI’s family. His brother was to assist in the plot and others associated to his group in New Westminster are also considered as resources.

5.   ROCHA, LEE’s close friend, was due for release on 1992-09-30. They had served time together in Millhaven and were both transferred to Kent on 27th of March 1992. ROCHA was to be the key organizer on the outside. He would coordinate with BENJI’S and LEE’S brothers to pull the plan together.

6.   The plan was for ROCHA, with assistance, to hijack the same helicopter and pilot that were used in the FORD escape. It was felt by the plotters that this pilot knows the area very well particularly the institution. In order to ensure the pilot’s cooperation, the plan was to hold his wife and family hostage during the event. If he failed to cooperate or the escape failed, the pilot’s family would be killed.

7.   The escape was to be timed for just after 1400 hours on a weekday afternoon. The escapes and accomplices, including David MACDONALD were to be in the main yard as they were all kitchen workers with the exception of MACDONALD. The towers are not normally manned at this time.

8.   Just before the helicopter was to arrive, the accomplices were to grab the two gym staff and take them to the yard. Their presence was to help ensure there was no weapons fire from correctional officers.

9.   The helicopter was to have made one pass over the main yard dropping two bundles with automatic weapons (Uzzis), ROCHA was to be in the helicopter and would be armed with an AK-47. In one bundle, the ammunition clip would be in place for immediate use. In the second bundle, the clip was to be separate in case the drop jammed the clip of the first weapon.

10. The helicopter was to bank and turn quickly, landing in the area between the tennis courts and the yard/living unit fence. This would force responding motor patrols to fire, if they fired at all, through four fences to hit the helicopter.

11. The helicopter was to take off over the institution in a south-east direction, allowing it to gain altitude and speed before flying over the perimeter road and becoming vulnerable to ground fire.

12. The helicopter was to proceed directly south over Mount Cheam into American territory and was to land in a “park” in Washington State. The exact site is unknown but it was estimated the helicopter could reach the park in 10-15 minutes.

13. Plans beyond this are unknown. However, it is noted that LEE through his Asian gang connections could arrange appropriate pick up and cover.

14. On 1992-09-03, following segregation of the conspirators. staff conducted specific searches of certain cells and other areas based on information provided. They found, as expected, several items of kitchen worker clothing in MACDONALD’s cell belonging to other inmates. MACDONALD, who is not a kitchen worker, would have required the “kitchen whites” to get the gymnasium for the afternoon exercise period.

15. On 1992-09-04, a staff member in discussion with an inmate source deliberately complained that management never told the staff anything. The inmate responded that the five in segregation were “conspiring to take a hostage and escape.” When asked to expand on the comment, the inmate refused to say anything further. The mention of a “hostage” is significant as this element was totally unknown to line staff at the time and indicates knowledge of the conspiracy among the inmate population.

16. Investigation by police agencies has confirmed that the associations alleged for LEE and BENJI do exist and that the associates have the resources to provide the assistance and weapons required for this plan. An independent assessment of the information by the RCMP has led them to the conclusion that it is a very real and credible threat to the community. As a result, they have undertaken considerable efforts to protect several persons in the community.

17. Further information shows that BENJI has passed instructions through his family to have his lawyer check for outstanding warrants in the U.S. for ROCHA, If ROCHA was released, he was to be provided with a place to stay, a car, and was to be put to work with BENJI’s associates. These arrangements continued even after they were placed in segregation.

As I understand the applicants’ argument, it is that the plot is a figment of an informant’s imagination, composed of details cobbled together from a successful (for a few days) helicopter escape that had occurred at Kent Institution in 1990 and from an escape plot at Collins Bay Institution in which the applicant Mathieson had been involved. This last had been publicized on the television program “Top Cops” and thus the details were likely to be known to all Kent Institution inmates.

The applicants assert that given the nature of what is alleged against them, insufficient information was provided to enable them to answer the allegations. Specifically the applicants allege that there was insufficient disclosure of information because the respondent when asked by the applicants: (1) did not provide any specifics of the time or places within Kent Institution where the meetings between the alleged co-conspirators had taken place; (2) would not disclose to them all the information which had been disclosed to Mr. Rocha at his detention hearing; (3) refused to disclose any details concerning allegations that the applicant had Asian gang connections; (4) refused to answer any questions concerning alleged characteristics of the informant relevant to that person’s credibility or motive for passing the information to the prison officials (the applicants assert that they know who the informant is).

With respect to the first, the respondent’s answer to the applicants’ enquiries concerning dates, times and places of meetings was:

These meetings were observed by CSC staff. We have no knowledge of the content of conversations that may have occurred during these meetings and this information was used only to further validate the informant(s) information that you, and the others identified, did know each other and were in contact with each other.

Implied in the answer is an acknowledgement that no dates, times and places were known but that the prison staff, from general observation, were aware that the five individuals knew each other. I would not be prepared to characterize the response given as a sufficient withholding of information to itself justify a quashing of the transfer order. It should rather be interpreted as an admission that no such dates, times and places of meetings are known.

With respect to the request for access to the information which had been made available to Rocha, the Deputy Commissioner stated by letter to counsel for the applicants in October 1992, that the gist which was provided at that time was:

… [the] same information provided to the National Parole Board and Mr. Rocha relating to the escape plan. I have reviewed the information provided to Mr. Rocha and find that although the gist of information was presented differently the substance of the information is not inconsistent with that provided to Mr. Lee for the purpose of responding to the recommendations for transfer.

After that letter was sent and the gist provided, Mr. Rocha signed an affidavit, on January 28, 1993, stating that more information had been provided to him for the purpose of his detention hearing than had been provided to the applicants, Lee and Mathieson, and that only “a portion of [the] information” which had been provided to him was contained in the gist. On August 17, 1993, after the second notices of recommendation for involuntary transfer had been served, counsel for the applicants wrote to the Warden:

… in my letters of October 6 I stated that it was my understanding that further information had been revealed during the course of Mr. Rocha’s hearing, and we have yet to be provided in writing with any further information which arose and which may affect the plot as alleged against Mr. Lee and Mr. Mathieson

…

With the greatest of respect, the permission of Martinho Rocha detention “gist”, if I may refer to the 30th of July Annex “A” in that manner, as the sum total of information to which my clients are expected to reply is of no assistance in answering the allegations. At this point in the proceedings at least, no attempt has been made to respond to the earlier answers and questions raised on the previous submissions and the ensuing litigation.

It appears as though additional information may have been provided to Rocha which has not yet been provided to the applicants. Certainly there has not been a clear answer given by the Warden or the Deputy Commissioner to the assertion that this is the case.

With respect to the requests that information concerning the source of the allegation that Mr. Lee’s family had connections with the Asian gangs and that information be provided concerning certain activities and characteristics of the informant(s) who disclosed the alleged plot to the prison officials, it is trite law that the identity of informers need not be disclosed. This is particularly so in a prison situation where the safety of individuals may be at stake. It is also trite law that safeguards which pertain, for example, to a prosecution for a criminal offence, do not pertain to prison management decisions. For example, the Warden did not need to be satisfied beyond a reasonable doubt that the plot existed. He is entitled to act on far less stringent grounds than that in order to ensure the security of the prison.

The applicants’ main argument in this case is that given the nature of the allegations, a plot to undertake certain actions in the future, a greater amount of information should be disclosed about the informant(s) than might be disclosed in another type of case. Given the nature of the allegations, there is no concrete evidence available to either support or refute the allegations, thus the applicants state that additional information, for example, concerning the informant(s) must be disclosed. Otherwise, it is argued, the applicants can be the victims of any inmate who concocts a credible sounding story.

What is particularly troubling about the facts in this case is the nature of the affidavit evidence which has been filed. David Dick, an employee of Correctional Service Canada, filed an affidavit with respect to the information which had been disclosed to the applicants. It states:

3. Now produced and shown to me and marked as Exhibit “A” to this my affidavit are the contents of the security file regarding the transfer of Roy Kenshin Lee, F.P.S. 843482B, and Allan Mathieson, F.P.S. 852290A, from Kent Institution to Saskatchewan Penitentiary, Special Handling Unit, which transfer gives rise to this litigation; save and except, those documents which by their disclosure could reveal the identity of confidential informants.

4. Documents which, by their disclosure could reveal the identity of confidential informants, have been summarized in the document attached hereto as a part of Exhibit “A” entitled “Gist of Preventive Security Information”.

Mr. Justice Hugessen in speaking for the Federal Court of Appeal in Demaria v. Regional Classification Board, [1987] 1 F.C. 74, at pages 77-78, wrote:

The burden is always on the authorities to demonstrate that they have withheld only such information as is strictly necessary for that purpose [to protect the safety of the informer] …. 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. [Underlining added.]

The Corrections and Conditional Release Act, S.C. 1992, c. 20 provides:

27. (1) Where an offender is entitled by this Part or 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.

…

(3) … 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). [Underlining added.]

The affidavit filed does not purport to have applied these criteria when reviewing whether or not additional information could have been provided. What is also troublesome is the fact that while counsel for the applicants, as early as September, 1992 argued to the Warden that the level of detail concerning the plot which had been provided was no guarantee of its veracity, because the details were a composite of the “Top Cops” program and the helicopter escape at Kent which was known to everyone, this submission was never entirely answered. The Deputy Commissioner, in responding to counsel, in fact, relied on the details concerning the helicopter escape as refutation for the argument that the open availability of the information coming from the “Top Cops” program made the credibility of the information suspect.

Adequacy of Review

The applicants argue that the Deputy Commissioner did not adequately review the submissions which were made on their behalf. Certainly, there appears to be a considerable degree of carelessness in his responses to those submissions. As noted above, the answer to the question concerning dates, times and places of meetings is at best ambiguous and at worst would indicate that he did not focus on the question being asked. The answer to the request for disclosure of the information given to Mr. Rocha indicates a lack of awareness that after the gist was provided, in October 1992, Mr. Rocha had still stated that additional information had been given to him, and counsel for the applicants had requested access to that additional information. Also, as noted above, the argument that the information which had been provided to prison officials lacked reliability because it was openly available to everyone in the institution, while admitted as far as information gleaned from the program “Top Cops” is concerned, was ignored in so far as the helicopter escape is concerned.

There is another factor which seems to indicate that a proper review was not done. The material which was provided to the Deputy Commissioner for the purpose of making the transfer decision did not include all the material which should have been put before him. The Commissioner’s Directive, 540, 1992-11-01 (Standards for Inmate Transfers), paragraph 3 states:

3.   The decision-maker shall be provided with certain mandatory documents for review when an involuntary or inter-regional transfer is proposed, in cases where a recommendation for denial of an intra-regional transfer occurs, or after an emergency transfer has been effected. This requirement does not apply to transfers which occur in relation to the initial placement of offenders. The transfer documentation package shall include, but is not limited to, the following:

a.    inmate transfer application (required for voluntary transfers only);

b.   notice of involuntary transfer recommendation, if applicable; and

c.    inmate’s written response, or a summary of the inmate’s oral response;

d.   preventive security memoranda;

e.   progress summary;

f.    criminal profile report;

g.   transfer referral decision sheet;

h.   medical and health care services administrative summary. [Underlining added.]

Counsel for the applicants argues that in this case no progress summary was provided. In addition counsel argues that the progress summary which should have been provided should include reference to the applicants’ behaviour from September 11, 1992 to the present, during which time the applicants were incarcerated in the Saskatchewan Penitentiary. This information would be relevant to any risk assessment. I am not convinced that this latter is so. The decision to transfer the inmates in September 1992 is the decision which is being remade, a progress report as of that date, is I think the relevant document.

Reasonable Apprehension of Bias

Lastly, the applicants’ argument that there was a reasonable apprehension that the Deputy Commissioner would be biased in his decision-making is based upon the fact that the Deputy Commissioner’s superior, the Commissioner, had earlier made a decision to transfer the applicants. That decision was made when the Commissioner dealt with the third level grievance on March 8, 1993.

Mr. Justice Rothstein in his decision of July 28, 1993, stated, at pages 27-28:

… with respect to the October 21, 1992 decisions, I would observe that it was the Acting Deputy Commissioner who was deciding not to alter the September 10, 1992 decisions of his superior, the Deputy Commissioner. My decision that the October 21, 1992 decisions of the Acting Deputy Commissioner did not conform with normal standards of procedural fairness is not based on this point. However, I must say that I have serious doubt that a subordinate can approach the question of altering his superior’s prior decision with the objectivity and independence that is required for a fair decision. [Underlining added.]

Subsection 81(1) of the Corrections and Conditional Release Regulations[5] provides:

81. (1) Where an offender decides to pursue a legal remedy for the offender’s complaint or grievance in addition to the complaint and grievance procedure referred to in these Regulations, the review of the complaint or grievance pursuant to these Regulations shall be deferred until a decision on the alternate remedy is rendered or the offender decides to abandon the alternate remedy. [Underlining added.]

These Regulations were not followed in this case and the applicants’ third level grievance filed on November 23, 1992 was dealt with by the Commissioner on March 8, 1993 after the application for judicial review had been filed in this Court on February 10, 1993. It is argued that subsection 81(1) was designed to prevent what happened in this case occurring. The question arises, then, what consequence should follow from this failure to comply with the Regulations.

In some situations, even though bias or a reasonable apprehension of bias may be said to exist, a decision will still be upheld on the grounds of necessity. Some decisions have to be made and made by a person in the position of the impugned decision-maker. It is argued that such a rule applies in this case.

Counsel for the applicants argues that the doctrine of necessity should not apply in a case where the decision-makers voluntarily put themselves in the position which gave rise to the bias and indeed in doing so acted contrary to regulations which if complied with would have prevented that situation arising. At the very least it is argued that the matter in question should have been forwarded to the Commissioner for decision and not made by the Deputy Commissioner. I should note that I am not convinced that the Commissioner purposely acted in contravention of the Regulation. I am of the view that the action taken was probably merely an oversight. Either the Commissioner did not know that judicial review applications had been filed or the portent of the particular Regulation in question was not brought to his attention. At the same time, a situation of apprehension of bias clearly exists.

Conclusions

Given the many difficulties with this case, it is clear that the decision taken cannot stand without further review. I agree that if the decision were not to be quashed outright that it would be an appropriate case for the Court to require the respondent to provide his justification for not disclosing more information to the inmates, a justification which would include disclosure to the Court (in camera and without disclosure to the applicants or their counsel) of the information which formed the basis of the decision, its sources and why more information could not have been provided to the applicants.[6] I emphasize that the Court’s job is not to second guess the decision of the Deputy Commissioner or Commissioner. The Court is entitled however to require the Deputy Commissioner or Commissioner to persuade it that the information which has not been disclosed falls within the categories described by Mr. Justice Hugessen in the Demaria case (supra) and subsection 27(3) of the Act.

I have however decided to quash the decisions outright. My decision, in this regard, is based on the non-compliance with subsection 81(1) of the Corrections and Conditional Release Regulations and the arguments respecting the existence of a reasonable apprehension of bias. In the circumstances the most appropriate course of action is to quash the decisions and direct that if the question of an involuntary transfer of the applicants for reasons arising out of the information provided in August — September, 1992, is to be re-decided, that the decision be made by the Commissioner and not by someone subordinate to him. The Commissioner would of course be expected to give full reasons for any such decision and to ensure that all information except that which fits into the categories described in subsection 27(3) of the Act is provided to the applicants ahead of time so that adequate submissions can be made with respect thereto.

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