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Cardinal v. Director of Kent Institution, [1985] 2 S.C.R. 643

 

Real Cardinal and Eric Oswald     Appellants;

 

and

 

Director of Kent Institution     Respondent.

 

File No.: 17364.

 

1984: October 11, 12; 1985: December 19.

 

Present: Dickson C.J. and Beetz, Estey, McIntyre, Lamer, Wilson and Le Dain JJ.

 

 

on appeal from the court of appeal for british columbia

 

                   Prisons ‑‑ Administrative dissociation or segregation ‑‑ Segregation imposed following alleged involvement in hostage‑taking incident ‑‑ Segregation continued by Director despite recommendation of Segregation Review Board ‑‑ Prisoners not informed by Director of his reasons for refusing to follow recommendation and not given a hearing by the Director on the question ‑‑ Whether or not Director in breach of duty to act fairly rendering continued segregation of prisoners unlawful ‑‑ Penitentiary Service Regulations, C.R.C. 1978, c. 1251, s. 40.

 

                   Judicial review ‑‑ Prerogative writs ‑‑ Habeas corpus with certiorari in aid ‑‑ Segregation imposed following alleged involvement in hostage‑taking incident ‑‑ Segregation continued by Director despite recommendation of the Segregation Review Board ‑‑ Prisoners not informed by Director of his reasons for refusing to follow recommendation and not given a hearing by the Director on the question ‑‑ Whether or not Director in breach of duty to act fairly rendering continued segregation of prisoners unlawful ‑‑ Whether provincial superior court has jurisdiction to issue certiorari in aid of habeas corpus ‑‑ Whether affidavits admissible on habeas corpus alone to show jurisdictional error ‑‑ Whether habeas corpus lies to challenge the validity of a particular form of confinement in a penitentiary ‑‑ Judicial review jurisdiction of Federal Court of Canada ‑‑ Penitentiary Service Regulations, C.R.C. 1978, c. 1251, s. 40 ‑‑ Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10, s. 18.


 

                   Appellants were prisoners who were allegedly involved in a hostage‑taking incident in Matsqui Institution. Criminal charges of forcible seizure and attempted escape were laid against them. They were transferred to Kent Institution where they were placed, on the Director's oral instructions, in administrative dissociation or segregation, pursuant to s. 40 of the Penitentiary Service Regulations, on the ground that it was necessary for the maintenance of good order and discipline in the institution. The Director did not make an independent inquiry into the alleged involvement of the appellants in the hostage‑taking incident but relied on what he had heard from the warden of Matsqui Institution and personnel at regional headquarters. The Segregation Review Board, which reviewed the appellants' segregation monthly in accordance with s. 40 of the Regulations, recommended that they be released from administrative segregation into the general prison population. The Director refused to follow the Board's recommendation on the ground that the appellants' release from segregation before the disposition of the criminal charges pending against them would "probably" or "possibly" introduce an unsettling element into the prison population. The Director did not inform the appellants of his reasons for refusing to follow the Board's recommendation and did not give them an opportunity to be heard as to whether he should act in accordance with the recommendation.

 

                   Appellants challenged their continued confinement in administrative dissociation or segregation by applications for habeas corpus with certiorari in aid. McEachern C.J.S.C. in the Supreme Court of British Columbia held that the Court had jurisdiction to issue certiorari in aid of habeas corpus, despite the exclusive jurisdiction by way of certiorari of the Federal Court of Canada under s. 18  of the Federal Court Act , and that habeas corpus would lie to determine the validity of confinement in administrative segregation. On the merits of the applications, he held that the continued segregation of the appellants, despite the recommendation of the Segregation Review Board, had become unlawful because of a breach of the duty of procedural fairness, and he ordered the release of the appellants into the general population of the penitentiary. The British Columbia Court of Appeal held that the Supreme Court had jurisdiction to issue certiorari in aid of habeas corpus, that the Court could on habeas corpus alone consider affidavit evidence to determine whether there had been an absence or excess of jurisdiction, and that habeas corpus would lie to determine the validity of confinement in administrative segregation, but a majority of the Court of Appeal held that the continued segregation of the appellants had not been rendered unlawful by a breach of the duty of procedural fairness. The appeal was accordingly allowed.

 

                   Held: The appeal should be allowed.

 

                   For the reasons given in R. v. Miller, [1985] 2 S.C.R. 613, the Court of Appeal correctly concluded (a) that the British Columbia Supreme Court had jurisdiction to issue certiorari in aid of habeas corpus; (b) that the Court could on an application for habeas corpus alone consider affidavit evidence to determine whether there had been an absence or excess of jurisdiction; and (c) that habeas corpus would lie to determine the validity of the confinement of an inmate in administrative dissociation or segregation, and if such confinement be found to be unlawful to order his release into the general population of the institution.

 

                   The Director was under a duty of procedural fairness in exercising the authority conferred by s. 40 of the Regulations with respect to administrative dissociation or segregation. At common law, a duty of procedural fairness lies on every public authority making an administrative decision which is not of a legislative nature and which affects the rights, privileges or interests of an individual. The duty of procedural fairness has been held to apply in principle to disciplinary proceedings within a penitentiary, and although administrative segregation is distinguished from punitive or disciplinary segregation in the Regulations, the effect on the prisoner is the same and gives rise to the duty to act fairly. The extent to which procedural requirements are imposed in the prison setting must, however, be approached with caution.

 

                   The original imposition of administrative dissociation or segregation on the appellants was a lawful exercise of the Director's discretionary authority and was not carried out unfairly. In view of the urgent or emergency nature of the decision there could be no requirement of prior notice and hearing. In the case of the Director's decision to continue the appellants' segregation, despite the recommendation of the Segregation Review Board that they be released into the general population of the penitentiary, procedural fairness required that the Director inform the appellants of the reasons for his intended decision and give them an opportunity before him, however informal, to state their case for release. These minimal requirements of procedural fairness were fully compatible with the concern that the process of prison administration, because of its special nature and exigencies, should not be unduly burdened or obstructed by the imposition of unreasonable or inappropriate procedural requirements.

 

                   As to the possible suggestion in the decision of the majority of the Court of Appeal that the breach of the duty of procedural fairness, if any, was not of sufficient consequence to render the continued segregation of the appellants unlawful, the denial of a right to a fair hearing must always render a decision invalid, whether or not it may appear to a reviewing court that the hearing would likely have resulted in a different decision. The right to a fair hearing must be regarded as an independent, unqualified right which finds its essential justification in the sense of procedural justice which any person affected by an administrative decision is entitled to have. It is not for a court to deny that right and sense of justice on the basis of speculation as to what the result might have been had there been a hearing.

 

                   By his failure to afford the appellants a fair hearing on the question whether he should act in accordance with the recommendation of the Segregation Review Board the Director rendered the continued segregation of the appellants unlawful. They, therefore, had a right on habeas corpus to be released from administrative dissociation or segregation into the general population of the penitentiary.

 

Cases Cited

 

                   R. v. Miller, [1985] 2 S.C.R. 613, followed; Nicholson v. Haldimand‑Norfolk Regional Board of Commissioners of Police, [1979] 1 S.C.R. 311; Martineau v. Matsqui Institution Disciplinary Board (No. 2), [1980] 1 S.C.R. 602; Attorney General of Canada v. Inuit Tapirisat of Canada, [1980] 2 S.C.R. 735; R. v. Hull Prison Board of Visitors, ex parte St Germain, [1979] 1 All E.R. 701, referred to.

 

Statutes and Regulations Cited

 

Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10, s. 18.

 

Penitentiary Act, R.S.C. 1970, c. P‑6.

 

Penitentiary Service Regulations, C.R.C. 1978, c. 1251, s. 40(1), (2).

 

 

                   APPEAL from a judgment of the British Columbia Court of Appeal, [1982] 3 W.W.R. 593, 137 D.L.R. (3d) 145, 67 C.C.C. (2d) 252, 35 B.C.L.R. 201, allowing an appeal from orders of McEachern C.J.S.C. granting relief upon applications for habeas corpus with certiorari in aid and ordering appellants' release from administrative dissociation into the general prison population. Appeal allowed.

 

                   B. A. Crane, Q.C., for the appellants.

 

                   W. B. Scarth, Q.C., and Mary Humphries, for the respondent.

 

                   The judgment of the Court was delivered by

 

1.                Le Dain J.‑‑The general question in this appeal is whether relief by way of habeas corpus with certiorari in aid is available in a provincial superior court to obtain the release of a prisoner in a federal penitentiary from administrative dissociation or segregation into normal association with the general population of the penitentiary on the ground that the segregation was imposed or continued in breach of the requirements of procedural fairness.

 

2.                The appeal is by leave of this Court from the judgment of the British Columbia Court of Appeal on March 31, 1982, [1982] 3 W.W.R. 593, 67 C.C.C. (2d) 252, allowing an appeal from the judgment of McEachern C.J. of the Supreme Court of British Columbia on December 30, 1980 granting relief upon applications for habeas corpus with certiorari in aid and ordering that the appellants be released from administrative dissociation or segregation in Kent Institution into the general population of the penitentiary, subject to all the jurisdiction of the Director as set forth in the Penitentiary Act, R.S.C. 1970, c. P‑6, and regulations thereunder.

 

3.                The appellants were imprisoned in Matsqui Institution when, on July 27, 1980, they became involved in a hostage‑taking incident in which they allegedly held a guard at knifepoint and unlawfully confined him for five hours. Criminal charges of forcible seizure and attempted escape were laid against the appellants, and on July 28, 1980 they were transferred to Kent Institution, a maximum security penitentiary, where they were placed in administrative dissociation or segregation on the oral instructions of the warden (hereinafter referred to as the "Director") of the institution, pursuant to s. 40(1)(a) of the Penitentiary Service Regulations, C.R.C. 1978, c. 1251. Section 40 reads as follows:

 

                   40. (1) Where the institutional head is satisfied that

 

(a) for the maintenance of good order and discipline in the institution, or

 

(b) in the best interests of an inmate

 

it is necessary or desirable that the inmate should be kept from associating with other inmates, he may order the inmate to be dissociated accordingly, but the case of every inmate so dissociated shall be considered, not less than once each month, by the Classification Board for the purpose of recommending to the institutional head whether or not the inmate should return to association with other inmates.

 

                   (2) An inmate who has been dissociated is not considered under punishment unless he has been sentenced as such and he shall not be deprived of any of his privileges and amenities by reason thereof, except those privileges and amenities that

 

(a) can only be enjoyed in association with other inmates, or

 

(b) cannot reasonably be granted having regard to the limitations of the dissociation area and the necessity for the effective operation thereof.

 

4.                Administrative dissociation or segregation, as it was called by the Director of Kent Institution in his evidence, and as it will for convenience be referred to hereinafter, is a form of confinement involving severe restrictions on mobility, activity and association. It is described in the reasons for judgment of McEachern C.J.S.C. as follows:

 

                   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.

 

                   The cells used to house prisoners in segregation are 6 feet wide, 10 feet long and 8 feet high. Access is gained through a solid door containing a small window. There is a window on the outside wall. The cell contains a radio, a bed, and a combination basin/toilet.

 

                   The regular routine for these prisoners in the absence of outside visitors or consultation with lawyers, et cetera, is to be locked in their cells for 23 hours per day, with one hour for exercise. Visitors are permitted to visit every day Monday through Friday. Lawyers are permitted to visit as a general rule on Tuesdays and Wednesdays. Prisoners in segregation have access to a canteen, but there are limits on what they can purchase. They are paid an allowance (the amount was not specified) at the same grade they were paid before being segregated. I mention these matters, because the Director makes a point that administrative dissociation is not the same thing as what is often called solitary confinement.

 

5.                The segregation of the appellants was reviewed once a month, in accordance with s. 40 of the Regulations, by a classification board called the Segregation Review Board, which was composed of members of the penitentiary staff. The appellants appeared before the Board. On October 7, 1980 the Board recommended to the Director that the appellants be returned to normal association with the general prison population. The Director declined to follow this recommendation. In its subsequent reviews of the appellants' case the Board maintained its favourable recommendation, but the Director continued to hold them in segregation. At the time their applications for habeas corpus with certiorari in aid were heard in November 1980, they had been in segregation for some four months, and the indication was that the Director would likely continue the segregation until disposition of the criminal charges against them.

 

6.                In his affidavits filed in response to the appellants' applications for habeas corpus with certiorari in aid and in his testimony on cross‑examination the Director indicated that he had ordered the segregation of the appellants because of what he had heard from the warden of Matsqui Institution and personnel at regional headquarters concerning the hostage‑taking incident, and that apart from these conversations he had not made, and he did not intend to make, an independent inquiry into the appellants' alleged involvement in the incident. He had decided not to follow the recommendation of the Segregation Review Board because, while he accepted its favourable opinion of the appellants' conduct in Kent Institution, he believed that their release from segregation before the disposition of the criminal charges against them would result in the "probable" or "possible" introduction of an unsettling element into the general population of the institution and was therefore not in the interests of the maintenance of good order and discipline in the institution. He could not point to a specific reason for holding this belief but based it on his personal assessment of the "dynamics" of the institution, a judgment which he referred to at one point as an "instinctive reaction" and con­ceded at another point could be described as a "gut reaction". He indicated that the primary consideration underlying his decision was the seriousness of the hostage‑taking incident in which the appellants were alleged to have been involved, and he could not point to any factor that would be likely to change his decision before the question of their involvement had been clarified by disposition of the criminal charges. It was not for him to determine that question when it was before the courts.

 

7.                Although the Director talked to the appellants he did not inform them of his reasons for refusing to follow the recommendation of the Segregation Review Board that they be released from segregation into the general population of the institution or afford them the opportunity of a hearing before him as to whether they should be released.

 

                                                                    II

 

8.                In their applications for habeas corpus with certiorari in aid and their supporting affidavits the appellants attacked the original imposition and continuation of their administrative segregation, despite the recommendation of the Segregation Review Board, on the ground that it was not necessary for the maintenance of good order and discipline in the institution. At the hearing of their applications, however, the jurisdictional issue that emerged was whether they had been denied procedural fairness in the imposition and continuation of their segregation. There also emerged two issues concerning the jurisdiction of the Court to entertain an application for habeas corpus with certiorari in aid to obtain the release of an inmate of a federal penitentiary from administrative segregation into normal association with the general population of the institution: (a) whether, in view of the exclusive jurisdiction of the Federal Court of Canada under s. 18 of the Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10, to issue certiorari against any federal board, commission or other tribunal, the Supreme Court of British Columbia had jurisdiction to issue certiorari in aid of habeas corpus; and (b) whether habeas corpus will lie to challenge the validity of the confinement of an inmate in administrative segregation and, if such confinement be found to be unlawful, to order his release into the general population of the institution.

 

9.                In the Supreme Court of British Columbia, McEachern C.J. held that the Court had jurisdiction to issue certiorari in aid of habeas corpus against a federal board, commission or other tribunal and that habeas corpus would lie to release an inmate from administrative segregation into the general population of a penitentiary. On the merits, he held that while the original imposition of segregation was not carried out with unfairness, its continuation despite the recommendation of the Segregation Review Board that the appellants be released into the general population of the institution was unlawful by reason of a denial of procedural fairness.

 

10.              The British Columbia Court of Appeal (Nemetz C.J. and Macdonald and Anderson JJ.A.) were unanimously of the view, for reasons given by Anderson J.A., that the Supreme Court of British Columbia had jurisdiction to issue certiorari in aid of habeas corpus; that in any event a court could, on an application for habeas corpus alone, consider affidavit evidence in determining whether there had been an absence or excess of jurisdiction in ordering a detention; and that habeas corpus would lie to challenge the validity of confinement in administrative segregation and to order the release of an inmate from such segregation, if found unlawful, into the general population of the penitentiary. They were further agreed that in exercising the authority conferred by s. 40 of the regulations with respect to administrative segregation the Director had a duty of procedural fairness, but a majority of the Court (Nemetz C.J.B.C. and Macdonald J.A.), Anderson J.A. dissenting, held that there had not been a breach of that duty. Nemetz C.J.B.C. held that if there had been a breach of the duty of procedural fairness it was not of sufficient substance to amount to an excess of jurisdiction. On this ground the appeal was allowed and the judgment of McEachern C.J.S.C. ordering the release of the appellants into the general population of the penitentiary set aside.

 

11.              The appellants appeal from the judgment of the Court of Appeal on the question whether there was a breach of the duty of procedural fairness in the continuation of their segregation despite the recommendation of the Segregation Review Board. While supporting the conclusion of the majority of the Court of Appeal on this issue, the respondent contends that the Supreme Court of British Columbia did not have jurisdiction to issue certiorari in aid of habeas corpus and that habeas corpus will not lie to obtain the release of an inmate of a penitentiary from administrative segregation into the general population of the institution.

 

12.              It should be noted that at the time the appeal was heard by the British Columbia Court of Appeal the appellants had been released from Kent Institution. The court was of the view, however, that the appeal should be heard because of the general importance of the issues raised. This Court has proceeded on the same basis.

 

                                                                   III

 

13.              For the reasons given in R. v. Miller, [1985] 2 S.C.R. 613, which was heard at the same time as this appeal, I agree with the conclusions of the British Columbia Court of Appeal expressed in the reasons of Anderson J.A., with whom Nemetz C.J. and Macdonald J.A. concurred, on the three issues concerning the jurisdiction of the British Columbia Supreme Court: (a) that the Court had jurisdiction to issue certiorari in aid of habeas corpus; (b) that the Court could on an application for habeas corpus alone consider affidavit evidence to determine whether there had been an absence or excess of jurisdiction; and (c) that habeas corpus will lie to determine the validity of the confinement of an inmate in administrative segregation, and if such confinement be found to be unlawful, to order his release into the general inmate population of the institution. There is no significant difference, in so far as the last question is concerned, between confinement in administrative dissociation or segregation, pursuant to s. 40(1) of the Penitentiary Service Regulations, and confinement in a special handling unit, as in Miller, supra. Both are significantly more restrictive and severe forms of detention than that experienced by the general inmate population. Indeed, as indi­cated in the reasons for judgment in Miller, supra, Commissioner's Directive 274 of December 1, 1980 provides that phase 1 of confinement in a special handling unit shall consist of a period of assessment in administrative segregation.

 

                                                                   IV

 

14.              There can be no doubt, as was held by McEachern C.J.S.C. and the Court of Appeal, that the Director was under a duty of procedural fairness in exercising the authority conferred by s. 40 of the Regulations with respect to administrative dissociation or segregation. This Court has affirmed that there is, as a general common law principle, a duty of procedural fairness lying on every public authority making an administrative decision which is not of a legislative nature and which affects the rights, privileges or interests of an individual: Nicholson v. Haldimand‑Norfolk Regional Board of Commissioners of Police, [1979] 1 S.C.R. 311; Martineau v. Matsqui Institution Disciplinary Board (No. 2), [1980] 1 S.C.R. 602; Attorney General of Canada v. Inuit Tapirisat of Canada, [1980] 2 S.C.R. 735. In Martineau (No. 2), supra, the Court held that the duty of procedural fairness applied in principle to disciplinary proceedings within a penitentiary. Although administrative segregation is distinguished from punitive or disciplinary segregation under s. 40 of the Penitentiary Service Regulations, its effect on the inmate in either case is the same and is such as to give rise to a duty to act fairly.

 

15.              The question, of course, is what the duty of procedural fairness may reasonably require of an authority in the way of specific procedural rights in a particular legislative and administrative context and what should be considered to be a breach of fairness in particular circumstances. The caution with which this question must be approached in the context of prison administration was emphasized by this Court in Martineau (No. 2), supra. Pigeon J., with whom Martland, Ritchie, Beetz, Estey and Pratte JJ. concurred, said at p. 637:

 

                   I must, however, stress that the Order issued by Mahoney J. deals only with the jurisdiction of the Trial Division, not with the actual availability of the relief in the circumstances of the case. This is subject to the exercise of judicial discretion and in this respect it will be essential that the requirements of prison discipline be borne in mind, just as it is essential that the requirements of the effective administration of criminal justice be borne in mind when dealing with applications for certiorari before trial, as pointed out in Attorney General of Quebec v. Cohen ([1979] 2 S.C.R. 305). It is specially important that the remedy be granted only in cases of serious injustice and that proper care be taken to prevent such proceedings from being used to delay deserved punishment so long that it is made ineffective, if not altogether avoided.

 

Dickson J. (as he then was), with whom Laskin C.J. and McIntyre J. concurred, expressed a similar caution at p. 630 as follows:

 

                   It should be emphasized that it is not every breach of prison rules of procedure which will bring intervention by the courts. The very nature of a prison institution requires officers to make "on the spot" disciplinary decisions and the power of judicial review must be exercised with restraint. Interference will not be justified in the case of trivial or merely technical incidents. The question is not whether there has been a breach of the prison rules, but whether there has been a breach of the duty to act fairly in all the circumstances. The rules are of some importance in determining this latter question, as an indication of the views of prison authorities as to the degree of procedural protection to be extended to inmates.

 

The same caution was emphasized by the Court of Appeal in R. v. Hull Prison Board of Visitors, ex parte St Germain, [1979] 1 All E.R. 701, which was referred to by Pigeon and Dickson JJ. in Martineau (No. 2), supra, and in which Megaw L.J. said at p. 713 concerning the judicial review of prison disciplinary decisions:

 

It is certainly not any breach of any procedural rule which would justify or require interference by the courts. Such interference, in my judgment, would only be required, and would only be justified, if there were some failure to act fairly, having regard to all relevant circumstances, and such unfairness could reasonably be regarded as having caused a substantial, as distinct from a trivial or merely technical, injustice which was capable of remedy.

 

                                                                    V

 

16.              Although McEachern C.J.S.C. severely criticized the imposition of administrative segregation by oral instructions that are not followed as soon as possible by written notice with reasons for the decision, he held, as I have indicated, that the original imposition of administrative segregation in this case was a lawful exercise of the Director's discretionary authority under s. 40(1) of Penitentiary Service Regulations, and that it was not carried out unfairly. That conclusion was not seriously challenged on the appeal, and, indeed, it would not appear to be open to challenge. Because of the apparently urgent or emergency nature of the decision to impose segregation in the particular circumstances of the case, there could be no requirement of prior notice and an opportunity to be heard before the decision.

 

17.              The procedural unfairness found by McEachern C.J.S.C. was in continuing the administrative segregation of the appellants, despite the recommendation of the Segregation Review Board that they be released into the general population of the penitentiary, without giving them notice of the reasons for refusing to follow that recommendation and an opportunity to be heard, including a chance to present their side of the hostage‑taking incident. McEachern C.J.S.C. also held that there was an appearance of unfairness in the apparently closed mind of the Director on the question of whether the segregation should be continued despite the favourable recommendation of the Board, and even a suggestion that the segregation was being continued in an attempt to force the appellants to plead guilty to the criminal charges pending against them. He said that the Director was required to make an independent inquiry into the circumstances of the hostage‑taking incident, to examine the appellants' files and to ascertain whether the continuation of the segregation was impairing their ability to instruct counsel, as they claimed. The heart of his conclusion on the issue of procedural fairness is contained in the following statement:

 

The Director had jurisdiction to disregard the recommendation of the Review Board, but to do so with fairness, it seems to me, the Petitioners ought to have been informed of the reasons of the Director for continued segregation, and they should have been given a fair opportunity to answer the case against them.

 

18.              In the Court of Appeal Nemetz C.J. said that he disagreed with the opinion of McEachern C.J.S.C. that the Director had a duty to make further inquiry into the hostage‑taking incident and to allow the prisoners an opportunity to be heard on their alleged involvement in the incident. After referring to the necessity, emphasized in the decision of this Court in Inuit Tapirisat, supra, of considering the legislative scheme as a whole, he said:

 

                   This decision assists me in analyzing the case at bar. Although the director's function is essentially administrative in nature, he is given broad powers under s. 40 of the regulations. He is not burdened with any standards or guidelines in the exercise of his power to order that inmate be dissociated. Procedural standards have not been imposed or implied. He must have enough latitude to respond to the requirements of prison security as he sees fit. This is especially so in cases of violence such as hostage‑taking.

 

After quoting the passages from the judgments of Pigeon and Dickson JJ. in Martineau (No. 2), supra, which have been quoted above, concerning the caution which must be adopted towards the imposition of procedural requirements in the prison setting, Nemetz C.J.B.C. concluded on the issue of fairness as follows:

 

                   Section 40(1) gives the director a broad discretionary power. In arriving at his decision as to whether a prisoner is to be dissociated from the others in the prison, he must be satisfied that it is for the maintenance of good order and discipline or in the best interests of an inmate.

 

                   It is my view that his testimony shows that it was the former concern that caused him to disregard the classification board's recommendation for the month of October. Was he justified in doing so? I think he was. The seriousness of the incident and the circumstances surrounding it, as well as the situation in his prison generally, played an important part in his determination. The classification board's view related primarily to the assessment of the behaviour of the two prisoners while in dissociation. However, the director had to also consider his responsibilities in regard to the proper operation and security of the whole institution. In my view, unless mala fides or unfairness can be shown, his assessment should prevail. No mala fides has been shown. Any procedural unfairness, if it exists, is not of sufficient substance to cause me to conclude that the director acted outside of his jurisdiction.

 

19.              Macdonald J.A. was of the view that there had not been a denial of procedural fairness because the appellants knew the considerations underlying the imposition and continuation of administrative segregation in their case. He said:

 

                   With great respect, I cannot find procedural unfairness in the circumstances here. The petitioners would know that they were in dissociation at Kent because of the incident at the Matsqui Institution in which they were alleged to have taken a guard hostage at knifepoint. When they first appeared before the Classification Board in July, they were expressly informed that they had been placed in dissociation because of that incident. Now, there are many factors favourable to the petitioners. They weighed with the Classification Board and resulted in the recommendation in October that they be returned to the general prison population. But they did not prevail with the director. He did not decide in accordance with the recommendation. It was not a case of a decision made under the influence, or possible influence, of material unknown to the two inmates. The director was extensively cross‑examined as to his reasons. He pointed out that the Classification Board was concerned with the two individuals, whereas his responsibility was the operation of the whole institution. He said that he was concerned about the seriousness of the incident in which the two men had been involved; the effect of the unresolved allegations and the situation generally on the inmate population, including the violent element; and the factor of deterrence. Weighing the factors, the director decided upon continued dissociation. I can find no procedural unfairness. I think the essence of the complaints here is with respect to the decision itself rather than the circumstances in which it was made. I am of the opinion that the director acted within his jurisdiction.

 

20.              Anderson J.A., dissenting on the question of procedural fairness, expressed himself as in agreement with the reasons of McEachern C.J.S.C. After referring to the cautions expressed in Martineau (No. 2), supra, concerning the application of procedural requirements in a prison setting, he said:

 

... while the procedural protection available to the respondent was limited in the way described by all members of the Supreme Court in Martineau, supra, I have concluded that McEachern C.J.S.C. was correct in holding that the director did not observe even the most minimal standards of procedural fairness. While the respondent was not entitled to a full hearing or to confront witnesses or to counsel, at the very least he ought to have been given an opportunity to make representations as to why he should no longer be kept in solitary confinement. I cannot do better than repeat what McEachern C.J.S.C. said in his reasons for judgment in respect of this issue:

 

                   "The director had jurisdiction to disregard the recommendation of the review board, but to do so with fairness, it seems to me, the petitioners ought to have been informed of the reasons of the director for continued segregation, and they should have been given a fair opportunity to answer the case against them. They should not have had to make out their case to a mind that was closed or almost closed against them. To continue their segregation in the face of the recommendation of the review board in the particular circumstances of this case raises a reasonable apprehension that they should plead guilty which, by itself is enough to cast a pervasive appearance of unfairness over these cases. In addition, although a decision based upon a policy (such as one for prisoners who are awaiting trial or for prisoners who have taken a hostage) may be perfectly lawful, fairness requires timely reconsideration of the particular circumstances of each prisoner and individual whose residual rights and privileges are adversely being affected."

 

                                                                   VI

 

21.              The issue then is what did procedural fairness require of the Director in exercising his authority, pursuant to s. 40 of the Penitentiary Service Regulations, to continue the administrative dissociation or segregation of the appellants, despite the recommendation of the Board, if he was satisfied that it was necessary or desirable for the maintenance of good order and discipline in the institution. I agree with McEachern C.J.S.C. and Anderson J.A. that because of the serious effect of the Director's decision on the appellants, procedural fairness required that he inform them of the reasons for his intended decision and give them an opportunity, however informal, to make representations to him concerning these reasons and the general question whether it was necessary or desirable to continue their segregation for the maintenance of good order and discipline in the institution. With great respect, I do not think it is an answer to the requirement of notice and hearing by the Director, as suggested by Macdonald J.A., that the appellants knew as a result of their appearance before the Segregation Review Board why they had been placed in segregation. They were entitled to know why the Director did not intend to act in accordance with the recommendation of the Board and to have an opportunity before him to state their case for release into the general population of the institution. I do not think the Director was required to make an independent inquiry into the alleged involvement of the appellants in the hostage‑taking incident. He could rely on the information he had received concerning the incident from the warden of Matsqui Institution and the personnel at regional headquarters. At the same time, he had a duty to hear and consider what the appellants had to say concerning their alleged involvement in the incident, as well as anything else that could be relevant to the question whether their release from segregation might introduce an unsettling element into the general inmate population and thus have an adverse effect on the maintenance of good order and discipline in the institution.

 

22.              These were in my opinion the minimal or essential requirements of procedural fairness in the circumstances, and they are fully compatible with the concern that the process of prison administration, because of its special nature and exigencies, should not be unduly burdened or obstructed by the imposition of unreasonable or inappropriate procedural requirements. There is nothing to suggest that the requirement of notice and hearing by the Director, where he does not intend to act in accordance with a recommendation by the Segregation Review Board for the release of an inmate from segregation, would impose an undue burden on prison administration or create a risk to security.

 

23.              There is the question, suggested by the reasons for judgment of Nemetz C.J.B.C., whether the breach of the duty to act fairly in this case should be held not to have resulted in an excess or loss of jurisdiction and to have made the continuing segregation of the appellants unlawful because, having regard to the merits of the substantive issue, it did not result in a substantial injustice, or to use the words of Nemetz C.J.B.C., was not of "sufficient substance". Both Nemetz C.J.B.C. and Macdonald J.A. considered the substantive issue of whether the appellants should be released from segregation and appeared to conclude that the Director's reasons for refusing to follow the recommendation of the Segregation Review Board were reasonable and fair. It is a possible implication of their approach that they were of the view that given the Director's reasons for refusing to follow the recommendation of the Board a hearing by him of the appellants would not serve any useful purpose. Certainly a failure to afford a fair hearing, which is the very essence of the duty to act fairly, can never of itself be regarded as not of "sufficient substance" unless it be because of its perceived effect on the result or, in other words, the actual prejudice caused by it. If this be a correct view of the implications of the approach of the majority of the British Columbia Court of Appeal to the issue of procedural fairness in this case, I find it necessary to affirm that the denial of a right to a fair hearing must always render a decision invalid, whether or not it may appear to a reviewing court that the hearing would likely have resulted in a different decision. The right to a fair hearing must be regarded as an independent, unqualified right which finds its essential justification in the sense of procedural justice which any person affected by an administrative decision is entitled to have. It is not for a court to deny that right and sense of justice on the basis of speculation as to what the result might have been had there been a hearing.

 

24.              For these reasons I am of the opinion that by his failure to afford the appellants a fair hearing on the question whether he should act in accordance with the recommendation of the Segregation Review Board that they be released from administrative segregation into the general population of the institution, the Director rendered the continued segregation of the appellants unlawful. They, therefore, had a right on habeas corpus to be released from administrative dissociation or segregation into the general population of the penitentiary. I would accordingly allow the appeal, set aside the judgment of the Court of Appeal and restore the judgment of McEachern C.J.S.C.

 

                   Appeal allowed.

 

                   Solicitor for the appellants: John W. Conroy, Abbotsford.

 

                   Solicitor for the respondent: Roger Tassé, Ottawa.

 

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