T-9227-82
Robert Collin (Applicant)
v.
Raymond Lussier (Respondent)
Trial Division, Decary J.—Montreal, February 7;
Ottawa, February 24, 1983.
Judicial review — Prerogative writs — Certiorari — Inmate
transferred from medium to maximum security penitentiary
— Seeking certiorari to set aside transfer on following
grounds: (1) transfer ultra vires as disguised punishment; (2)
contravention of ss. 13 and 14, Penitentiary Service Regula
tions and s. 22 of Commissioner's Directive No. 260 in that
transfer to institution of greater security than necessary; and
(3) contravention of s. 7 of Charter as inmate's security
endangered — Inmate not convicted of disciplinary offences —
Serving as inmate legal affairs clerk and preparing files which
dealt with prison administration — Inmate having heart con
dition — Whether emergency medical care available at max
imum security institution — Reasons for transfer given by
Regional Transfer Co-ordinator in vague and imprecise lan
guage Court concluding that inmate's activities as legal
affairs clerk reason for transfer — Transfer disguised punish
ment and ultra vires in view of "prison within a prison"
concept — Ss. 13 and 14 of Penitentiary Service Regulations
breached in transfer of inmate to institution of higher security
level than necessary — Security of inmate's person impaired
by incarceration in place where conditions causing high anxiety
levels Requirements for fundamental justice where action
of administrative body may impair person's security — Where
inmate's transfer will impair his personal security, decision not
merely administrative but involving constitutional law —
Transfer quashed by certiorari and inmate's return to medium
security institution directed — Federal Court having jurisdic
tion to grant relief in form of damages under s. 24(1), Consti
tution Act, 1982 — Inmate awarded damages of $18,136 for:
pecuniary loss, psychological damage, deprivation of medical
care and denial of security of person (reduction of life
expectancy and exemplary damages) — Canadian Charter of
Rights and Freedoms, being Part I of the Constitution Act,
1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.), ss. 7,
24(1) — Canadian Human Rights Act, S.C. 1976-77, c. 33, s.
54 — Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10, ss. 2,
17, 18, 28 — Penitentiary Act, R.S.C. 1970, c. P-6, ss. 13(3),
29(1)(b),(3) — Penitentiary Service Regulations, C.R.C., c.
1251, ss. 13, 14, 38(2) — Federal Court Rule 600.
Applicant seeks a writ of certiorari to set aside the decision
of respondent, the Warden of a Regional Reception Centre, to
transfer applicant from the Leclerc Institution, a medium
security penitentiary, to the Laval Institution, a maximum
security penitentiary. Applicant also seeks, under subsection
24(1) of the Constitution Act, 1982, an order for such remedy
as the Court considers appropriate and just. Applicant argues,
in support of his motion, (1) that respondent's decision is ultra
vires as constituting a disguised punishment; (2) that the
decision contravened sections 13 and 14 of the Penitentiary
Service Regulations and section 22 of the Commissioner of
Corrections' Directive No. 260 in that applicant was trans
ferred to an institution where the degree of security was higher
than required by his case; and (3) that the decision contravened
section 7 of the Charter in that it endangered applicant's
security and constituted a denial of the guarantees provided for
in the Charter. Applicant was employed, at the Leclerc Institu
tion, as an inmate legal affairs clerk. Prior to his transfer, he
had been active in preparing files which concerned the adminis
tration and the staff of the Institution. One of these files
resulted in an action before this Court; the other files dealt with
the disappearance, from the Institution's kitchens, of consider
able quantities of meat, which disappearance the inmates
directly attributed to the prison staff, and with the use, by
prison officials, of large sums of money invested by the inmates
in the social development fund. Applicant was never convicted
of disciplinary offences. According to the Regional Transfer
Co-ordinator, applicant's inadmissible behaviour, and the
necessity to maintain order in the Institution, justified his
transfer. Applicant requested a review of his case, without
success. He argues that his detention at the Laval Institution
causes him extremely serious injury: it endangers his life in that
he has no immediate access to the medical care which he
requires—he suffers from a heart condition—and that the
stress level to which he is subjected could be fatal.
Held, applicant's transfer is quashed by certiorari and his
return to a medium security institution is directed. In the
absence of precise facts showing that applicant had become a
security risk, it seems evident that he was transferred because
of his activities as legal affairs clerk. The grounds for appli
cant's transfer were stated by the Regional Transfer Co-ordina-
tor in vague and imprecise terms. Respondent's decision con
stituted a punishment; it was ultra vires in view of the concept
of "prison within a prison" established by the Supreme Court
of Canada in the Martineau v. Matsqui Institution Discipli
nary Board case, whereby a transfer to a higher level security
institution constitutes a punishment, since it is a reduction of
the inmate's freedom.
Respondent's decision contravened sections 13 and 14 of the
Penitentiary Service Regulations and section 22 of Commis
sioner's Directive No. 260 in that applicant was transferred to
an institution where the degree of security was higher than
required by his case. Section 13 provides that an inmate, in
accordance with the Commissioner of Corrections' Directives,
is to be confined in the institution that seems most appropriate
having regard to the protection of society and the program of
correctional training. Section 22 of Directive No. 260 provides
that inmates are not normally kept in a more secure condition
than necessary. Considering that applicant continued to be a
member of the general inmate population of the Institution
until just before his transfer, and that he was, at all times,
authorized to move about in the Institution, it cannot be said
that applicant had become a sufficiently high security risk for
him to be placed in a maximum security institution. Applicant's
arrogance and lack of politeness cannot justify such a transfer.
Since section 13 of the Regulations refers specifically to the
Commissioner's Directives, it follows that the Directives are
more than mere guidelines; they have the force of law and an
inmate is justified in requiring that the rules laid down in them
be observed in everything concerning the institution where he is
held and the level of security of the institution to which he is
transferred. Furthermore, under section 14 of the Regulations,
the file of an inmate is to be carefully reviewed before a
decision to transfer is made. Directive No. 257, which provides
for periodic progress reporting, was issued to meet the require
ments set out in section 14. However, the evidence indicates
that applicant was never shown the "Progress Summary", a
non-confidential document upon which the decision to transfer
was allegedly based.
Respondent's decision also contravened section 7 of the
Canadian Charter of Rights and Freedoms. That section guar
antees the right to life, liberty and security of the person. The
right of access to medical care is a part of the right to security
of the person. The evidence shows that the emergency proce
dure for medical care at night, at the Laval Institution, is
inadequate. The courts have recognized that a person who has
suffered a coronary attack, such as applicant, is subject to
special anxiety. It follows from the record as a whole that
applicant's detention at the Laval Institution constitutes an
impairment of the security of his person. Under section 7 of the
Charter, no one is to be deprived of the rights guaranteed
therein except in accordance with the principles of fundamental
justice. To make a distinction in the content of fundamental
justice in terms of the person who infringes this right would be
to deprive the guarantee given by the Charter of any meaning.
Section 7 of the Charter confers special status on the three
rights mentioned therein. Accordingly, when the security of a
person is to be impaired, fundamental justice requires an
administrative body to act fairly, i.e. to inform the person of the
offence he has allegedly committed and to give him full oppor
tunity to defend himself. The administrative body also has the
duty to decide the case with complete impartiality, on all the
evidence. The transfer of a prisoner to a more secure institution
is not a mere administrative decision, but one involving consti
tutional law and fundamental justice must, accordingly, be
observed. If the Penitentiary Act and its Regulations, in view of
their silence as to transfers, were to be interpreted as prevent
ing the application of those principles, then they would have to
be regarded as unconstitutional.
Respondent's decision also breached the duty to act fairly
imposed on administrators by the courts since the Martineau
case, and respondent cannot justify his failure to produce the
preventive security reports upon which the decision to transfer
was allegedly based, by relying on section 54 of the Canadian
Human Rights Act which creates an exception to the right of
individuals to have access to their records. Although reasons for
transfers are often related to security, some indication must
nevertheless be given as to the nature of those reasons. None
was given in this case.
This Court has jurisdiction to grant relief in the form of
damages under subsection 24(1) of the Constitution Act, 1982.
Applicant is an inmate in a federal penitentiary and respondent
is a `-`federal board, commission or other tribunal" as defined in
section 2 of the Federal Court Act. Furthermore, sections 17
and 18 of that Act give the Trial Division jurisdiction to hear
any claim for relief in the form of damages and to issue
certiorari or mandamus. Applicant is awarded damages of
$18,136 for pecuniary loss, psychological damage, deprivation
of medical care and denial of the security of his person (reduc-
tion of life expectancy and exemplary damages).
CASES JUDICIALLY CONSIDERED
FOLLOWED:
Martineau v. Matsqui Institution Disciplinary Board,
[1980] 1 S.C.R. 602; Nicholson v. Haldimand-Norfolk
Regional Board of Commissioners of Police, [1979] 1
S.C.R. 311.
APPLIED:
Re Abrahams and Attorney-General of Canada (1983),
142 D.L.R. (3d) 1 (S.C.C.); Landman et al. v. Royster et
al. (1971), 333 F.Supp. 621 (U.S.D.C.); Cardinal et al.
v. Director of Kent Institution, [1982] 3 W.W.R. 593
(B.C.C.A.); Regina v. Gaming Board for Great Britain,
Ex parte Benaim et al., [ 1970] 2 Q.B. 417; Re Rowling v.
The Queen (1980), 57 C.C.C. (2d) 169 (Ont. H.C.);
Wolff et al. v. McDonnell (1974), 94 S.Ct. 2963.
CONSIDERED:
Re Anaskan v. The Queen (1977), 76 D.L.R. (3d) 351
(Ont. C.A.).
REFERRED TO:
Commission des droits de la personne du Québec c.
Anglsberger, [1982] C.P. 82; Curr v. The Queen, [1972]
S.C.R. 889; Dodge v. Bridger et al. (1978), 4 C.C.L.T. 83
(Ont. H.C.); Mercier c. Smith, Superior Court, Mon-
treal, 500-05-021 261-753, judgment dated November
29, 1979.
MOTION.
COUNSEL:
Nicole Daignault for applicant.
Stephen Barry for respondent.
SOLICITORS:
Nicole Daignault, Montreal, for applicant.
Deputy Attorney General of Canada for
respondent.
The following is the English version of the
reasons for judgment rendered by
DECARY J.: The applicant is seeking a writ of
certiorari or an order having the effect of such a
writ, setting aside the decision of the respondent to
transfer the applicant from the Leclerc Institution,
a medium security penitentiary, to the Laval Insti
tution, a maximum security penitentiary.
The applicant alleged in support of his motion
that:
(1) the decision is unlawful and ultra vires the
respondent, in that the transfer is actually a
disguised punishment;
(2) the decision contravenes sections 13 and 14
of the Penitentiary Service Regulations, C.R.C.,
c. 1251, and section 22 of Commissioner's
Directive No. 260, in that the applicant was
transferred to an institution where the degree of
security is greater than required in his case:
section 22 replaced section 8 of Directive No.
260, at the suggestion and with the consent of
counsel for the respondent in the motion;
(3) the decision contravenes section 7 of the
Constitution Act, 1982, Schedule B, Canada
Act 1982, 1982, c. 11 (U.K.), in that it endan
gers the security of the applicant and constitutes
a denial of the guarantees made to him by the
said Act;
(4) for any other reason which counsel for the
applicant may raise with leave of the Court.
The applicant further asked that a writ of man-
damus be issued, directing that the constitutional,
statutory, regulatory and legal rights of the appli
cant be observed and that he be transferred to a
medium security institution.
Finally, the applicant asked that the Court
make an order pursuant to subsection 24(1) of the
Constitution Act, 1982, granting the applicant
such remedy as the Court considers appropriate
and just in the circumstances.
In support of his motion, the applicant, Robert
Collin, alleged by affidavit, with Exhibits A to I
inclusive, that while he was imprisoned at Leclerc
he was employed as an inmate legal affairs clerk.
In the summer of 1982, he was especially active in
preparing three collective files which concerned
the administration of the Leclerc Institution: (1)
the double occupancy file, which resulted in an
action in the Trial Division of the Federal Court,
No. T-6575-82; the judgment rendered on Septem-
ber 23, 1982 is currently on appeal in the Federal
Court of Appeal, as No. A-1102-82; (2) the kitch
en file, which is the subject of an investigation into
causes and remedies for the meal situation at the
Leclerc Institution; (3) the file on involvement of
the inmates' committee in the social development
budget: an attempt to obtain documentation for
certain expenses, 66% of which are paid by
inmates.
While he was imprisoned, the applicant was the
subject of very few offence reports for infringing
the Institution's regulations; he was acquitted at
the hearing before the disciplinary court on one of
these reports, and no action was taken on the other
reports.
He feels certain that his transfer to the max
imum security institution was due to his work on
these collective files.
He considered that this transfer was unwarrant
ed and caused him extremely serious injury: (1) it
endangered the applicant's life, as he said he had
suffered a blood clot in September 1978 and had
subsequently suffered two further heart attacks.
He said it was impossible for him to have immedi
ate access to the medical care required by his
condition. He would also be unable to have the
vegetarian diet he had at the Leclerc Institution.
The atmosphere in the Laval Institution would
increase the stress level, and could be fatal; (2) his
pay would be reduced, from $36 a fortnight to $18
for the same period; (3) he would be deprived of
any family contact and visiting. On the first visit
made to him by his mother, who is 69 years old,
she was subjected to a strip search for which there
could be no justification. He refused to have her
undergo such a humiliation again.
In reply, the respondent filed two affidavits. The
first was that of Dr. Jean-Yves Balthazard, who is
in charge of medical services at the Laval Institu
tion, and he described a hospital consisting of two
departments, which he said was well equipped to
provide the emergency care which the applicant's
case might require.
The respondent then filed the affidavit of Mr.
François Alarie, a Regional Transfer Co-ordinator
with the Department of the Solicitor General of
Canada, who alleged that the applicant was trans
ferred for reasons relating to security at the
Leclerc Institution, and who relied on a document
known as a "Progress Summary": this report was
filed as Exhibit P-1 in support of the said affidavit.
The two deponents were examined on affidavit
on January 28, 1983. The transcript of the steno
graphic record of these examinations was filed in
the record of the Court.
The evidence overall established the following:
The applicant, Robert Collin, is 47 years old. He
was sentenced to death for murder in 1964, and his
sentence was commuted to life imprisonment in
1968. He has been in prison for 19 years. He has
become involved over the years with the rights of
inmates and has become quite an expert on prison
law: he is what may be referred to as a "jailhouse
lawyer".
In October 1981, after being released for some
time, Robert Collin was again committed to the
Leclerc Institution, a medium security penitentiary
with a security rating of S-5, and remained there
until October 26, 1982, the date on which he was
transferred to the Laval Institution, a maximum
security penitentiary with a security rating of S-6.
While he was imprisoned at the Leclerc Institu
tion, Robert Collin held the position of legal
affairs clerk until he resigned on September 28,
1982; he was then assigned to the metal shop.
Although an application for transfer dated
October 18, 1980, was made in his case, according
to Exhibit P-1 of the affidavit of François Alarie,
he remained in the general population at the
Leclerc Institution until 8:05 p.m. on October 24,
1982, when he was placed in administrative segre
gation, as appears from Exhibit I of the applicant's
affidavit, a report of October 24, 1982: however,
no action was taken on this report in view of the
transfer.
As a result of his position as inmate legal affairs
clerk, the applicant was given a permanent pass to
move about in the Leclerc Institution, and this was
never withdrawn, even after his resignation on
September 28, 1982, as he continued to be con
cerned with the double occupancy case, and his
counsel entered the original of the pass in the
record of the Court at the hearing.
On October 26, 1982, immediately after his
arrival at the Laval penitentiary, Robert Collin
asked in writing for the reasons for this transfer,
and it was not until the following November 4 that
he received a reply from Mr. François Alarie,
Transfer Co-ordinator; this letter is Exhibit H of
the affidavit of Robert Collin and reads as follows:
[TRANSLATION] We acknowledge receipt of your letter of
October 26, 1982 regarding your transfer from Leclerc to
Laval.
This transfer was made in accordance with a recommendation
by the authorities of the Leclerc Institution based on your
attitude and behaviour, which were considered unacceptable in
a medium security institution. These facts are clearly estab
lished in the case management report and in the preventive
security reports. Your tense and verbally aggressive relations
with personnel in the living units, and the example given by
them to the remainder of the prison population, justified such a
measure in order to maintain order in the Institution.
We hope you will reconsider the situation, become positively
involved in the programs offered at Laval and earn an eventual
return to medium security.
As can be seen, the reasons for the transfer are
given in vague and imprecise language. A refer
ence is made to a case management report and to
preventive security reports, but there is no clear
indication of the facts which were the basis for the
transfer decision. They are not supported by any
adverse finding by the disciplinary court while the
applicant was imprisoned at Leclerc.
The applicant wrote to regional management
asking that this decision be reviewed, since his
health and personal safety were or might be seri
ously affected by being imprisoned at the Laval
maximum security institution. He received a reply,
dated November 9, 1982, signed by Guy Ville -
mure, Regional Administrator, Offenders Pro
gram, which disposed of his application for review
in a single sentence:
[TRANSLATION] I understand that you have already written to
the Regional Transfer Co-ordinator regarding your transfer, in
a memorandum questioning the reasons in support of this
transfer.
I think there is no need to discuss this particular point further.
The remainder of the letter is a commentary,
one paragraph of which is especially revealing:
[TRANSLATION] No one could deny that Robert Collin is
articulate and tends to view things in a broad perspective;
however, if he were to make a real effort and take himself in
hand, leaving other inmates to deal with their own problems, he
would undoubtedly avoid disagreements and a great many little
hardships.
It is reasonable to conclude that Robert Collin's
involvement as legal affairs clerk at the Leclerc
Institution constituted the reason for the transfer.
On December 2, 1982 the originating writ of the
applicant was filed in the Registry of the Federal
Court, and it was not until January 19, 1983, when
the affidavit of François Alarie for the respondent
was served on counsel for the applicant, that the
applicant had any knowledge of the Progress Sum
mary which was the basis for the transfer men
tioned in the letter of November 4, 1982.
Mr. Alarie's examination on affidavit took place
on January 26, 1983. At the end of the lengthy
examination Mr. Alarie, at pages 68 and 69 of the
transcript, admitted that the real reasons why Mr.
Collin was transferred had to do with these oft-cit
ed preventive security reports mentioned in the
letter of the previous November 4, and, in particu
lar, with a security incident which occurred at
Leclerc and was mentioned in a preventive security
report.
Earlier in the examination Mr. Alarie admitted
that he had had occasion to examine Mr. Collin's
record when Mr. Collin made an application for
transfer to a lower security level in June 1982, and
the reasons for the present transfer were in fact
based on events which occurred between June
1982 and October of the same year.
At the end of this same examination, specifically
at page 75, Mr. Alarie admitted that a reference
was made in the preventive security reports to Mr.
Collin's function at the Leclerc Institution, namely
as legal affairs clerk, but he maintained that the
reason for the transfer was not directly connected
with the collective files on which Mr. Collin had
worked during the summer. However, he never
disclosed the exact nature of the alleged incidents
affecting security in the Institution which, he said,
were the cause of the transfer.
Considering the evidence submitted as a whole,
the Court concludes that the transfer of Mr. Collin
was the result of his activity as a legal affairs
clerk, especially as before last summer he had
never, in the course of his duties, been involved in
cases which affected the administration of the
penitentiary or the staff of the Institution.
However, the cases prepared by Mr. Collin at
that time involved the actions of the penitentiary
staff. An analysis of the exhibits submitted in
support of the applicant's affidavit, especially
Exhibits D and E, indicates that inmates held the
living unit officers and other members of the staff
directly responsible for the disappearance from the
penitentiary kitchens of 1,000 to 1,500 pounds of
meat a month.
Moreover, in the record of the involvement of
the inmates' committee in the social development
budget, it appears that the inmates questioned the
use of funds amounting to $44,450, of which they
had themselves contributed $29,450.
On July 14, 1982, the social development chief
replied to the request of the inmates' committee
for documentation justifying these expenses:
[TRANSLATION] I think that these purchases were made and
authorized by the A.-D. Soc.*, and that unless there is some
suggestion of dishonesty in one of my departments, I think
these purchases and those made in future are a matter for
management.
(*Acting Director, Socialization)
Finally, on August 10, 1982 the Director of the
Institution informed the inmates' committee of the
limits of their function as follows:
[TRANSLATION] Your involvement in the social development
budget consists of indicating your priorities on forthcoming
expenditures on the discussion committees for such purposes
(sports, cultural activities and so on).
Expenditures made in the past have been incurred in good faith
and it is management's prerogative to manage.
In the absence of any specific facts to indicate
that the applicant became a security risk in the
Leclerc Institution, and in light of my analysis of
the exhibits filed in support of the applicant's
affidavit, it seems clear that the applicant was
transferred because his activities in connection
with his duties as legal affairs clerk became a
nuisance.
Mr. Collin's state of health, as alleged in his
affidavit, is not in any way contradicted by the
affidavit of Dr.,Balthazard. On the contrary, Dr.
Balthazard's examination indicates that in fact it
is extremely difficult for a person being held in the
Laval maximum security institution to obtain
medical attention quickly, especially at night.
As the applicant has established that his trans
fer constitutes a disguised punishment, the ques
tion which the Court must answer is as follows:
was the decision legal or was it ultra vires the
respondent?
The source of the respondent's powers is, first,
the Penitentiary Act, R.S.C. 1970, c. P-6. Subsec
tion 13(3) provides that the Commissioner or any
officer directed by the Commissioner may direct
that a person shall be transferred from one peni
tentiary to another. In addition, subsection 29(3)
of the same Act authorizes the Commissioner of
Corrections to make rules for the administration of
penitentiaries, subject to the Act and any regula
tions made by the Governor in Council.
Commissioner's Directive No. 260, titled
"TRANSFERS WITHIN CANADA", in paragraph 5b
authorizes Wardens of Regional Reception Cen-
tres—the position held by the respondent Ray-
mond Lussier—to direct that an inmate be trans
ferred by warrant:
5....
b. ... from a federal institution within their region to
another federal institution within their region ...
The same Directive provides in section 21 that
21. Transfers may be effected for reasons of custodial
requirements; program assignments, including medical;
and administrative exigencies of the Service.
However, section 22 further provides that an
inmate shall only be transferred to an institution
which meets the requirements of the inmate's secu
rity classification.
In addition, the Penitentiary Act in paragraph
29(1)(b) gives the Governor in Council power to
make regulations for the discipline of inmates.
Section 38 of the Penitentiary Service Regula
tions provides for inmate discipline.
Subsection 38(2) provides:
38....
(2) No inmate shall be punished except pursuant to
(a) an order of the institutional head or an officer designated
by the institutional head; or
(b) an order of a disciplinary court.
The fact of transferring an inmate from an
institution with a lower security level to one with a
higher level in fact constitutes a punishment, for it
is a reduction in his freedom. This fact has been
recognized by the courts.
In Oswald v. The Attorney General of British
Columbia, an unreported case, having No. C.C.
801304 of the Supreme Court of British Columbia,
McEachern C.J., in his judgment of December 30,
1980, stated at page 7:
Kent institution is a maximum security institution. Matsqui
institution is a medium security institution and transfers from
Matsqui to Kent involve, to some extent, a reduction in free
dom or liberty to an individual prisoner.
He went on:
The liberty and freedom of a prisoner placed in segregation is
further reduced, and solitary confinement (a term the director
does not accept) is a phrase used by prisoners to describe
segregation.
And on page 17 of the same judgment, the
Court stated:
I have no doubt that there may be imprisonment within a
prison that could be lawful or unlawful depending upon the
particular circumstances of each case.
This decision rests on the concept of a "prison
within a prison", as established by the Supreme
Court of Canada in Martineau v. Matsqui Institu
tion Disciplinary Board' [hereinafter referred to
as Martineau (No. 2)].
The Oswald case was appealed [Cardinal et al.
v. Director of Kent Institution]. 2 On this specific
point, of the "prison within a prison" idea, the
Court of Appeal once again confirmed the view of
McEachern C.J. At page 604 MacDonald J.A.,
one of the two majority Judges, said the following:
What is involved in dissociation .... Clearly it is a major
deprivation which can have detrimental physical and mental
consequences. That is why, under the law, there must be
procedural fairness.
In the case at bar, as the respondent has failed
to provide clear reasons to justify the transfer to a
maximum security institution, and this transfer
also in the circumstances constitutes a punishment
for the applicant, the decision is unlawful and
ultra vires the respondent.
The applicant alleged, as his second ground for
asking the Court to issue a writ of certiorari
against the respondent's decision, that the transfer
was made to an institution where the degree of
security is greater than required by his case.
Section 13 of the Penitentiary Service Regula
tions reads as follows:
13. The inmate shall, in accordance with directives, be
confined in the institution that seems most appropriate having
regard to
(a) the degree and kind of custodial control considered
necessary or desirable for the protection of society, and
(b) the program of correctional training considered most
appropriate for the inmate.
Section 14 of the same Regulations, which deals
with classification, reads as follows:
14. The file of an inmate shall be carefully reviewed before
any decision is made concerning the classification, reclassifica-
tion or transfer of the inmate.
The Directive concerning transfers within
Canada, No. 260 of the Directives of the Commis
sioner of Corrections, provides in section 22:
22. Inmates shall only be transferred to institutions which
meet the requirements of the inmate's security classifica-
' [1980] 1 S.C.R. 602.
2 [1982] 3 W.W.R. 593 (B.C.C.A.).
tion. Inmates shall not normally be kept in a more secure
condition or status than necessary.
Finally, Commissioner's Directive No. 250,
"CASE MANAGEMENT", provides in section 5:
5. Administration and management of sentences shall be
carried out in accordance with procedures and instructions
approved by the Senior Management Committee and pub
lished in the Case Management Policy and Procedures
Manual.
Chapter 2 of this Manual gives the criteria that
must be used by the Canadian Penitentiary Service
in deciding on the classification of an inmate. It
appears that this classification is made in accord
ance with a security rating given to various institu
tions. This procedure is described in "Introduction
to Canadian Prison Law and Administration",
written by Professor Fergus O'Connor with the
assistance of Peter Wardell and Charlene Zeag-
man, and published by Queen's University, Kings-
ton. All the points which are used in determining,
on his arrival, the penitentiary in which an inmate
will be kept must be compared, according to the
Case Management Manual, with the criteria titled
"Benchmark Criteria", and with a guide used in
interpreting the Benchmarks, under which it
appears that the classification of Mr. Collin is at
the S-5 level, namely the security level of an
individual who, never having participated in a
hostage taking and having no history of escapes,
has nonetheless been imprisoned as the result of a
conviction for a major offence under the Criminal
Code, R.S.C. 1970, c. C-34, in his case murder,
and who is in addition serving a term of more than
10 years in prison.
Commissioner's Directive No. 257, titled
"RECORDING AND REPORTING", provides in
section 4:
4. There shall be a clearly defined system of recording and
reporting for each inmate to ensure that adequate and
reliable information is available for decision-making on the
progress of each individual's program plan.
And in section 5:
5. Within institutions there shall be, for each inmate, daily
activity recording and periodic progress reporting. Copies
of reports shall be placed on the inmate's file.
This Directive was issued to meet the require
ments of section 14 of the Penitentiary Service
Regulations.
One of these various reports is the "Progress
Summary". This is the report which was submitted
by Mr. Alarie as Exhibit P-1 of his affidavit.
As Mr. O'Connor says in the text cited above:
From the inmate's perspective the progress summary is the
most important document generated by the Canadian Correc
tional Service of Canada during the sentence. It is prepared by
the case management team for submission to the appropriate
decision-making authority for decision concerning institutional
transfer, Prior to completion of the progress summary, the
case management team is to conduct an in-depth case review
session including discussion with the inmate.
He goes on:
The progress summary is not intended as a confidential docu
ment and the information contained in the report may be
shared with the inmate.
In the case at bar, not only was there no inter
view with Mr. Collin, but it appears that he was
never shown the report in question. On the last
page of this report it can be seen that a place is
specifically provided for the inmate's signature,
and the Case Management Manual states that if
the inmate refuses to sign this report his refusal
must be noted in the space reserved for his
signature.
Not only was there no consultation with Mr.
Collin, but in his examination on affidavit Mr.
Alarie stated that the case review prior to trans-
fer—in this case as in others, apparently—involved
only a review of the documents submitted by the
penitentiary. The signature which appears on this
document is not that of the persons in charge of
Mr. Collin, namely Mrs. Latour, his case manage
ment officer, and Mr. Boulerice, the case manage
ment team leader, but of Mr. Germain, another
case management officer, who has never had any
responsibility for Mr. Collin. Mr. Alarie stated
that he assumed this was only a matter of the
signatures and that the report was in fact prepared
by Mrs. Latour. However, he also stated that there
was no request for further information regarding
this report, or any interview with the staff respon
sible for Mr. Collin.
Section 13 of the Penitentiary Service Regula
tions refers directly to the Commissioner's Direc
tives. As a consequence, these Directives become
more than mere guidelines, and an inmate is justi
fied in requiring that the rules laid down in these
Directives be observed in everything concerning`
the place where he is held and the level of security
of the institution to which he is transferred.
It should be noted that although, in the Mar-
tineau (No. 2) case, the Supreme Court held that
the Commissioner's Directives do not have the
force of law, the Directives then in question were
not specifically referred to either in the Act or in
the Penitentiary Service Regulations.
In light of the fact that Mr. Collin continued to
be a member of the general inmate population of
the institution until just before he was transferred,
and that his permanent pass was never withdrawn,
there is nothing to indicate that Mr. Collin became
a sufficiently high security risk for him to be
placed in an S-6 institution.
The decision of the respondent Lussier contra
venes the duty to act with fairness imposed on
administrators by the courts since Martineau
(No. 2). In that case, the Supreme Court based its
decision largely on the American and British judg
ments. Several of these judgments are relevant to
an analysis of the nature of the transfer in the case
at bar.
In Landman et al. v. Royster et al.,' Merhige J.
described the transfer conditions and procedures
inside the prison known as the Virginia State
Farm, a transfer from the general population to
the segregation unit known as C-cell. At page 627,
the Judge said:
Criteria determining the decision to place a man in C-cell or
remove him were extremely hazy. A man's attitude, his disrup-
tiveness, tendency to challenge authority, or nonconforming
behavior, as reflected in written or oral guards' reports, may
condemn him to maximum security for many years.
3 (1971), 333 F.Supp. 621 (U.S.D.C.).
In that case the Court held that the applicant
was entitled to procedural protection, and it con
cluded [at page 634]:
The Court is satisfied that Landman's exercise of his right to
file petitions with the courts, and his assisting other prisoners in
so doing, were the primary reasons for the punishment put upon
him.
In the case at bar, the respondent referred to the
applicant's character and personality, mentioning
his arrogance and his lack of politeness towards
penitentiary staff. These points, which might at
most justify a transfer to another institution with
the same security rating, are insufficient for a
transfer to a maximum security penitentiary.
Counsel for the respondent cited the consistent
rulings of the Trial Division of this Court, and
relied on the wide powers given to the Canadian
Penitentiary Service by the Act and the Regula
tions as a basis for suggesting that the courts
should not intervene in transfer matters. This line
of authority is based entirely on Re Anaskan v.
The Queen. 4 In that case the Ontario Court of
Appeal held that as prisoners had no right to be
inmates of any particular institution, transfers
were a purely administrative decision, and the
Court therefore found that it had no jurisdiction.
These decisions were completely overruled by
Martineau (No. 2).
As a justification for not producing the preven
tive security reports on which the decision to trans
fer Mr. Collin was allegedly based, Mr. Alarie
referred to section 54 of Part IV, "Protection of
Personal Information", of the Canadian Human
Rights Act, S.C. 1976-77, c. 33, which creates an
exception to the right of individuals to have access
to their records. Section 54 reads [in part] as
follows:
54. The appropriate Minister in relation to a government
institution that has control of a federal information bank may
provide that subsection 52(1) or any provision thereof specified
by him does not apply in respect of a record or part thereof
concerning an individual in the information bank where, in the
opinion of the Minister, knowledge of the existence of the
record or of information contained therein
4 (1977), 76 D.L.R. (3d) 351 (Ont. C.A.).
(d) might, in respect of any individual under sentence for an
offence against any Act of Parliament
(i) lead to a serious disruption of that individual's institu
tional, parole or mandatory supervision program,
(ii) reveal information originally obtained on a promise of
confidentiality, express or implied, or
(iii) result in physical or other harm to that individual or
any other person;
(e) might reveal personal information concerning another
individual;
In Martineau (No. 2), Dickson J. in particular
relied on the U.S. case of Wolff et al. v.
McDonnell. 5 In that case, the Supreme Court of
the United States examined disciplinary proce
dures in the Nebraska State Prison System. The
Court recognized that prison authorities have a
legitimate interest in protecting anonymous infor
mants inside prisons. However, that interest should
not extend to overturning a prisoner's right to
know the nature of what he is being charged with,
something which is different from the identity of
the informant.
In Regina v. Gaming Board for Great Britain,
Ex parte Benaim et al. 6 , at page 431, Lord Den-
ning M.R. said:
If the Gaming Board were bound to disclose their sources of
information, no one would "tell" on those clubs, for fear of
reprisals .... If the board were bound to disclose every detail,
that might itself give the informer away and put him in peril.
But, without disclosing every detail, I should have thought that
the board ought in every case to be able to give to the applicant
sufficient indication of the objections raised against him such as
to enable him to answer them. That is only fair. And the board
must at all costs be fair. If they are not, these courts will not
hesitate to interfere.
It often happens that transfers are made and
that the reasons given in support of such transfers
are related to security. However, there is generally
also some indication as to the nature of these
reasons, as for example, suspicion of an attempted
escape, suspicion of an intent to take hostages and
so on. In the case at bar, no indication was given of
the nature of the security reasons on which the
decision to transfer the applicant was based.
5 (1974), 94 S.Ct. 2963.
6 [1970] 2 Q.B. 417, at p. 431.
In Re Rowling v. The Queen,' the facts are as
follows: an inmate in a prison was transferred to
another, less "pleasant" prison. He was not given
the reasons for the transfer until after he had
applied for a review, and he was then told of a
"suspicion of a hostage taking". Although the
Court declined to intervene in that particular case,
Cory J. of the High Court of Justice of Ontario,
referring to Martineau (No. 2), nonetheless
observed that there is a duty to act fairly imposed
on the authority who decides to make the transfer,
and he went on, at page 176:
The Minister is as well empowered to transfer a prisoner from
one institution to another. In spite of that there is no doubt a
duty to treat the prisoner fairly and to act fairly with regard to
the prisoner whenever his basic rights are dealt with. One of the
important principles of sentencing is the rehabilitation of the
prisoner. No doubt the greatest protection that society can
receive would be the rehabilitation of all prisoners. If complete
rehabilitation was effected of each prisoner then society would
receive from the institution an individual who would serve his
community well and properly as a useful citizen. The aspect of
rehabilitation can be achieved in part by the example of
fairness displayed in the dealings with the prisoners by the
prison authorities.
In Re Abrahams and Attorney-General of
Canada [(1983), 142 D.L.R. (3d) 1 (S.C.C.)], a
unanimous judgment rendered on January 25,
1983 by the Supreme Court of Canada, Wilson J.
says the following at pages 7-8:
Since the overall purpose of the Act is to make benefits
available to the unemployed, I would favour a liberal interpre
tation of the re-entitlement provisions. I think any doubt arising
from the difficulties of the language should be resolved in
favour of the claimant.
Like the law of unemployment insurance, prison
law is social law. The aim of such law, once the
protection of society is ensured, is to encourage
rehabilitation of the inmate. Accordingly, despite
the wide powers conferred on the Canadian Peni
tentiary Service, any language difficulty must be
interpreted in favour of the inmate. The duties
imposed on an administrator by sections 13 and 14
of the Penitentiary Service Regulations must be
observed. The Court finds that in the case at bar
the respondent Lussier, in transferring the appli
cant to an institution where the security level was
higher than required by his case, failed in his duty
to act fairly.
7 (1980), 57 C.C.C. (2d) 169 (Ont. H.C.).
As the third ground in support of his application
for a review of the decision, the applicant alleged
that it contravenes section 7 of the Constitution
Act, 1982, in that it endangers his personal safety
and constitutes a denial of the guarantees made to
him by the said Act.
Section 7 is the first of the legal guarantees
entrenched in the Canadian Constitution, and
reads as follows:
7. Everyone has the right to life, liberty and security of the
person and the right not to be deprived thereof except in
accordance with the principles of fundamental justice.
This section incorporates, first, a part of the
stated purposes of the Canadian Bill of Rights,
S.C. 1960, c. 44 [R.S.C. 1970, Appendix III]
which itself incorporates the guarantee given by
the U.S. Constitution in its Fifth and Fourteenth
Amendments.
The fourth right, that of property, was deleted
from the Canadian Constitution. However, the
right to security of the person remains, and it is for
the courts to define the content of this right.
The Constitution Act, 1982 having been in force
only since April 1982, counsel for the applicant
was only able to refer to two relatively recent texts:
Hogg, P. W., Canada Act 1982 annotated, The
Carswell Company Limited, Toronto, 1982, and
Beaudoin, G. A., and Tarnopolsky, W. S., Charte
canadienne des droits et libertés, Wilson &
Lafleur/Sorej, Montreal, 1982*. These two texts,
which analyse the new Constitution, are useful in
defining this concept of security of the person.
Beaudoin and Tarnopolsky cite [at page 336] the
Law Reform Commission, which gives the follow
ing definition:
Security of the person means not only protection of one's
physical integrity, but the provision of necessaries for its
support.**
At page 339 of this text, it is recognized that the
right of access to medical care is a part of the right
to security of the person.***
* Also published in English under the title Canadian Charter
of Rights and Freedoms: Commentary, The Carswell Company
Limited, Toronto, 1982—Ed.
** Op. cit., p. 264—Ed.
*** Op. cit., p. 266—Ed.
Robert Collin's affidavit describes his physical
health and his cardiac condition. In connection
with the injury caused him by his transfer to
Laval, it raises the fact that in order to obtain
medical care, he must now proceed by an applica
tion, while at the Leclerc Institution he had much
easier access to the infirmary. Nonetheless, the
affidavit of Dr. Balthazard, the institutional physi
cian responsible for medical care at the Laval
Institution, refers to the existence of a [TRANSLA-
TION] "well-organized" hospital at Laval. How
ever, in his examination on affidavit, Dr. Balthaz-
ard admitted in describing the emergency
procedure for medical care that at nights, in cells
which are locked with a key, there is no alarm bell
for inmates. He further admitted that, in order to
attract attention in an emergency situation, an
inmate must either shout or bang on the bars of his
cell. Although he is responsible for medical care,
he admitted that he did not know how inmates
could obtain immediate care if necessary. He
acknowledged that the guards, who have no special
training in determining whether illness symptoms
are urgent, would probably be intermediaries be
tween the inmate and the staff of the hospital,
which consists of a single nurse at night, and she
decides whether to intervene based on her interpre
tation of the symptoms verbally transmitted by
guards, rather than on the symptoms themselves.
He further states that he is only present at the
penitentiary in the mornings, and has continued to
have a private practice in addition to his respon
sibilities at the Laval Institution.
As heart disease is one of the most frequent
causes of death in this country, the steps that must
be taken by a layman who is confronted by some
one apparently suffering from a heart attack have
become commonplace. The basic recommendations
are as follows: keep the person affected from any
violent exercise and take him as quickly as possible
to a hospital emergency department. In these cir
cumstances, it is astonishing to read what is stated
by Dr. Balthazard in his examination:
[TRANSLATION] The pain is very intense, but it does not
prevent him from rapping on the bars, from shouting.
Dr. Balthazard does not believe that the stress
resulting from detention at Laval could be a spe
cial cause of distress for a person suffering from a
heart complaint. However, he admitted that anxie-
ty leads to stress and that stress can cause a heart
attack.
The courts, for their part, have recognized that
someone who has already suffered a coronary
attack is subject to special anxiety. In Mercier c.
Smith, 8 Forest J. stated:
[TRANSLATION] The fact remains that the plaintiff is still
seriously disabled and cannot risk activities requiring greater
than normal effort; he daily undergoes the inconvenience, anx
iety and torment of any person who has already had a heart
attack, and he has a permanent partial disability which results
from this accident.
It follows from the record as a whole that
detention in Laval—where in one month of deten
tion the applicant had already heard gunshots on
eight different occasions, where Dr. Balthazard
admitted having found that two of his patients had
died in their cells during the night, in the space of
one month only, January 1983—such detention, by
increasing the applicant's anxiety as to his state of
health, is likely to make his illness worse and, by
depriving him of access to adequate medical care,
it is in fact an impairment of the security of his
person.
Section 7 of the Constitution Act, 1982 states
that:
7. ... not to be deprived thereof [of these rights] except in
accordance with the principles of fundamental justice.
The words "the principles of fundamental jus
tice" are not the same as those which were used in
the 1960 Canadian Bill of Rights, which referred
to "due process of law" as in the U.S.
Constitution.
It should be noted that in Curr, 9 Laskin C.J.
interpreted this clause of "due process of law"
restrictively, that is by limiting it to procedural
protection.
This restrictive interpretation has been gradual
ly diluted until it has come to mean simply
"according to law". However, the decisions in
Nicholson [Nicholson v. Haldimand-Norfolk
Regional Board of Commissioners of Police,
[1979] 1 S.C.R. 311] and Martineau (No. 2)
introduced into the law the concept of a duty of
8 Superior Court, Montreal, 500-05-021 261-753, judgment
dated November 29, 1979 (Annuaire de jurisprudence du
Québec 1980, No. 2435).
9 [1972] S.C.R. 889.
fairness, and until the Constitution Act, 1982 was
adopted it was this concept, which the writers
referred to as [TRANSLATION] "the new natural
justice", which the courts applied in administrative
matters.
What then are the scope and meaning of the
principles of fundamental justice clause in the
Constitution Act, 1982? In British law, the words
[TRANSLATION] "fundamental justice", [TRANS-
LATION] "natural justice" and "British justice"
have always been regarded as synonyms. Their
content rests on two fundamental legal principles:
the audi alteram partem rule, on the one hand,
and the nemo judex in sua causa rule, on the
other.
The protection provided by section 7 of the
Canadian Charter of Rights and Freedoms is
attached to the person and the right itself. Making
a distinction in the content of fundamental justice
in terms of the person who infringes this right
would be to deprive the guarantee given by the
Constitution Act, 1982 of any meaning.
In Nicholson and Martineau (No. 2) it was
necessary to decide on the respective jurisdictions
of the Federal Court of Appeal and the Trial
Division of that Court, conferred by sections 18
and 28 of the Federal Court Act, R.S.C. 1970
(2nd Supp.), c. 10. Quite apart from this jurisdic
tion, section 7 of the Charter confers special status
on the three rights mentioned in that section.
Accordingly, when there is a possibility that secu
rity of the person may be impaired, fundamental
justice imposes on any administrative body a duty
to inform the person subject to its authority that a
decision is being considered and that he will be
informed of the offence he has allegedly commit
ted. The individual must also be given an opportu
nity to defend himself and make the necessary
representations. The administrative body further
has a duty to decide the case with complete impar
tiality and to arrive at its decision on the basis of
all the evidence presented to it.
In a question involving a transfer of an inmate
to a penitentiary with a greater level of security
than that in which he is being held, when the effect
of such a transfer is to impair security of the
person, this is no longer merely an administrative
decision, but is a decision involving constitutional
law, and fundamental justice must accordingly be
observed.
If, because they make no provision regarding
transfers, the Act and the Penitentiary Service
Regulations had to be interpreted as preventing
the application of the principles of fundamental
justice in this case, they would have to be regarded
as unconstitutional.
For the reasons stated above, the Court author
izes the writ of certiorari to be issued and it
vacates and quashes the decision of the respondent,
Raymond Lussier, to transfer the applicant,
Robert Collin, from the Leclerc Institution to the
Laval Institution.
For the same reasons, the Court directs the
respondent to immediately transfer the applicant,
Robert Collin, to a medium security institution
and to observe the applicant's constitutional, statu
tory and regulatory rights.
In his originating notice, the applicant asked the
Court to make an order granting him such remedy
as the Court considers appropriate and just in the
circumstances, in accordance with subsection
24(1) of the Constitution Act, 1982.
That subsection creates a remedy in the event
that the rights and freedoms guaranteed by the
Constitution Act, 1982 are denied, and reads as
follows:
24. (1) Anyone whose rights or freedoms, as guaranteed by
this Charter, have been infringed or denied may apply to a
court of competent jurisdiction to obtain such remedy as the
court considers appropriate and just in the circumstances.
The first question raised by this subsection is
that of the capacity to act. As the applicant is the
victim in the present circumstances, he clearly has
the capacity to act.
The second question that arises is as to the
jurisdiction of the Court. In the case at bar, the
applicant is an inmate in a federal penitentiary
and the respondent is a "federal board, commis
sion or other tribunal" as defined in section 2 of
the Federal Court Act. Additionally, sections 17
and 18 of the same Act give the Trial Division
jurisdiction both to hear any claim for relief in the
form of damages and to issue certiorari or
mandamus.
The Act gives the Court absolute discretion as
to the remedy which it considers appropriate and
just in the circumstances.
The applicant presented evidence of the injury
suffered by him, and the Court assesses it as
follows:
[TRANSLATION]
1. Pecuniary loss $ 136.00
2. Psychological damage:
For being deprived of visits by his
mother for 4 months while he was
detained at the Laval Institution 500.00
3. Medical care:
For being deprived both of his vege
tarian diet, which he was refused by
Dr. Balthazard, and of access to
adequate medical care: 2,500.00
4. Denial of security of his person:
(a) reduced life expectancy:
in view of the applicant's age, his
life imprisonment term and the
progress of medical science: 7,500.00
(b) exemplary damages: 7,500.00
Total: $18,136.00
In determining the quantum of these damages,
the Court relies on the following decisions: psycho
logical damage: Commission des droits de la per-
sonne du Québec c. Anglsberger; 10 medical care:
Mercier c. Smith [supra]; denial of security of the
person, exemplary damages: Dodge v. Bridger et
al. 11
During the hearing counsel for the respondent
made no representation to challenge the quantum
suggested by the applicant. He limited himself to
saying that the applicant should have sought
damages by an action under Federal Court Rule
600. The purpose of the Federal Court Rules of
Practice is to facilitate the normal progress of
proceedings, not to delay or terminate them pre
maturely. They are also intended to make the law
clear and ensure that penalties are imposed. As the
applicant has presented evidence both of the res
pondent's liability and of the loss he has sustained,
10 [1982] C.P. 82, at p. 85.
11 (1978), 4 C.C.L.T. 83 (Ont. H.C.).
it would diminish the remedy provided for in sub
section 24(1) of the Constitution Act, 1982 to
require him to bring another proceeding in the
Federal Court in order to obtain the redress he is
entitled to have.
The Court accordingly directs the respondent,
Raymond Lussier, to pay the applicant, Robert
Collin, the sum of $18,136 (EIGHTEEN THOU
SAND, ONE HUNDRED AND THIRTY-SIX DOLLARS)
with interest from the date of service.
The Court dismisses the oral motion of the
respondent for a stay in execution of this
judgment.
The Court directs the respondent to pay costs.
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