T-1787-81
Wilbert George Minott (Applicant)
v.
Presiding Officer of the Inmate Disciplinary
Court of Stony Mountain Penitentiary and the
Director of Stony Mountain Penitentiary
(Respondents)
Trial Division, Nitikman D.J.—Winnipeg, April 1,
3 and 27, 1981.
Prerogative writs — Prohibition — Motion for order of
prohibition to prevent continuation of hearing of charges
against applicant by Inmate Disciplinary Court in the absence
of counsel — Punishment for offences included loss of earned
remission — Refusal of request for permission to have counsel
present was based on a Commissioner's Directive — Whether
Presiding Officer erred in law in his consideration of and
failure to direct his mind to legal principles and requirements
in the exercise of his discretion — Motion allowed — Peniten
tiary Act, R.S.C. 1970, c. P-6, as amended, ss. 24.1(1), 29(1)
— Penitentiary Service Regulations, C.R.C. 1978, Vol. XIII, c.
1251, ss. 38(1),(2), 38.1(1),(2), 39.
This is a motion by the applicant for an order of prohibition
to prevent the continuation of the hearing of certain charges
against the applicant by the Inmate Disciplinary Court in the
absence of counsel. The applicant pleaded not guilty to charges
of serious offences, the punishment for which included forfeit
ure of earned remission credited or standing to his credit. A
request for permission to have counsel represent him was
denied on the basis of section 12a of the Commissioner's
Directive 213. The applicant alleges that the Presiding Officer
erred in his consideration of and failed to direct his mind to
legal principles and requirements in the exercise of his discre
tion when he refused the applicant's request for legal counsel.
Held, the motion is allowed. In arriving at his decision to
deny counsel to the applicant, the Presiding Officer relied on,
and placed undue emphasis on the Commissioner's Directive
without giving proper consideration to the effect of sections
38(1) and (2)(b) and 38.1(1) and (2) of the Penitentiary
Service Regulations. The Presiding Officer appears to have
failed to address himself to the distinction between the Peniten
tiary Service Regulations, which are "law" and the Commis
sioner's Directive, which is not "law". Furthermore, there is
nothing to suggest that the Presiding Officer gave any thought
to the principle of fairness.
Martineau v. Matsqui Institution Disciplinary Board
[1980] 1 S.C.R. 602, applied. Martineau v. Matsqui Insti
tution Disciplinary Board -[1978] 1 S.C.R. 118, applied.
Fraser v. Mudge [1975] 3 All E.R. 78, referred to. R. v.
Visiting Justice at Her Majesty's Prison, Pentridge; Ex
parte Walker [1975] V.R. 883, referred to. Dubeau v.
National Parole Board [1981] 2 F.C. 37, referred to. In re
the R.C.M.P. Act and in re Husted [1981] 2 F.C. 791,
referred to.
MOTION.
COUNSEL:
Arne Peltz for applicant.
C. Henderson for respondents.
SOLICITORS:
Arne Peltz, Winnipeg, for applicant.
Deputy Attorney General of Canada for
respondents.
The following are the reasons for order ren
dered in English by
NITIKMAN D.J.: This is a motion by the appli
cant for an order of prohibition against the
respondent Presiding Officer of the Inmate Disci
plinary Court of Stony Mountain Penitentiary
(hereinafter referred to as the Presiding Officer)
and the Director of Stony Mountain Penitentiary
from continuing or concluding the hearing of cer
tain charges against the applicant (an inmate of
Stony Mountain Penitentiary) under section 39 of
the Penitentiary Service Regulations, C.R.C.
1978, Vol. XIII, c. 1251, as amended, in the
absence of counsel, as requested by the applicant,
or for such order as may be just.
The affidavit of the applicant sets out in part:
2. THAT I am an inmate in the Stony Mountain Penitentiary,
presently serving a term of four years, one month and three
days incarceration. At the present time I have remission stand
ing to my credit in the total amount of 498 days, consisting of
the following: 329 days of statutory remission, 4 days of earned
remission, and 165 days of new earned remission. My mandato
ry supervision release date is September 4th, 1981, according to
calculations provided to me by the Stony Mountain Sentence
Administrator.
3. THAT on March 18th, 1981, I was involved in certain
incidents with living-unit officers, or guards, of the Stony
Mountain Penitentiary. As a result, charges were laid against
me under section 39 of the Penitentiary Service Regulations. I
was charged with two counts of using threatening language to a
guard, and one count of failing to obey a lawful order of a
penitentiary officer.
4. THAT immediately after the said incidents, an administrative
decision was made under section 40 of the Penitentiary Service
Regulations placing me in solitary confinement pending the
hearing of the charges against me.
5. THAT on March 20th, 1981, I appeared before the Presiding
Officer of the Disciplinary Court. I entered pleas of not guilty.
The case was remanded for one week so that the living-unit
officers involved could be present to give evidence against me.
In addition, I indicated to the Disciplinary Court that I had two
witnesses that I wished to call on my own behalf, although one
of the witnesses was an inmate due for release very shortly.
6. THAT following my appearance in Disciplinary Court, I was
returned to solitary confinement. I then made a request to see
the Legal Aid Manitoba duty counsel who attends at the
Penitentiary.
7. THAT on March 24th, 1981, the duty counsel arrived at the
Penitentiary and interviewed me about the charges. I signed an
application for legal aid representation before the Disciplinary
Court.
8. THAT on Thursday, March 26th, 1981, I met with Arne
Peltz, who advised me that he had been appointed the previous
day by the Area Director of Legal Aid Manitoba to represent
me with respect to the charges. My counsel advised me that he
had made a request to the Presiding Officer of the Disciplinary
Court for permission to appear and make representations in
support of my right to have counsel present at the actual
hearing and determination of the charges, but that this request
had been denied.
9. THAT in the afternoon of March 26th, 1981, I appeared
again in the Disciplinary Court. I presented to the Presiding
Officer a written request that my counsel be permitted to
appear with me at the hearing. Attached hereto and marked as
Exhibit 'A' to this my Affidavit is a true copy of the document
I presented. The original copy was signed by me and is in the
hands of the Disciplinary Court.
10. THAT I also presented to the Court a letter, a copy of which
is attached hereto and marked as Exhibit 'B' to this my
Affidavit, which stated as follows:
I am pleading not guilty to the charge of threatening a
guard.
I have been held in segregation since March 18, 1981. I
request permission to be released pending the full hearing of
my charge, for these reasons:
(1) I am not a danger to anyone in the Institution.
(2) I have at least one witness for my defence, I need to
prepare with him.
(3) I have already served 8 days in custody. Maximum
punishment is only 30 days.
(4) I wish to have my lawyer present. I understand it will
take several days to arrange for a decision on the right to
counsel.
(5) Even if my lawyer cannot be present, I wish to review the
charge sheets with him before the hearing. When I received
these, I was upset and threw them away. My lawyer says he
wishes to discuss them with me, and I have no copy of the
charge sheets.
Thank you for considering my request.
My lawyer is Arne Peltz, Legal Aid Manitoba, 943-0491.
11. THAT the Presiding Officer read to me an excerpt from the
Commissioner's Directives dealing with an inmate's right to
have counsel present at such hearings, and stated that as a
result of this Directive, my request must be refused.
13. THAT the hearing is scheduled to resume on the afternoon
of April 3rd, 1981, at which time evidence is to be taken. I wish
to have my legal counsel present at that time to advise, assist
and represent me. This case will involve oral testimony from a
number of witnesses and I expect that there will be serious
conflicts in the evidence. I have no experience in representing
myself in legal or similar proceedings, and I therefore believe
that in the circumstances of my case, I require legal counsel in
order to test the evidence against me and present evidence on
my own behalf. I further believe that I will not be capable of
making a proper argument on the evidence after the conclusion
of the testimony. In the event that I should be found guilty of
the charges, I further believe that I require legal counsel to
speak on my behalf on the question of what sentence should be
imposed.
14. THAT the particulars of the offences, as provided to me by
officers of the Institution, indicate that the charges against me
are not merely minor or trivial matters. It is alleged that I used
obscene and threatening language to Penitentiary officers. It is
further alleged that I made a threat to take some type of action
against one of the officers after my release from prison. It is
further alleged that I refused a direct order and had to be
forcibly restrained. Finally, it is alleged that I am "non-produc
tive" in the Institution, a classification which results in loss of a
number of privileges.
Exhibit "A", referred to in paragraph 9 of the
applicant's affidavit, reads:
Mr. C. Lorenc
Chairman
Inmate Disciplinary Court
Stony Mountain Penitentiary,
Municipality of Rockwood,
Manitoba
Dear Sir:
This is to request that my legal counsel be permitted to be
present in order to advise and assist me at the hearing of the
institutional charge against me.
DATED March 26th, 1981.
W. G. MINOTT
The grounds relied on in the notice of motion
are:
1. THAT the PRESIDING OFFICER of the said Inmate Discipli
nary Board, in refusing or neglecting to allow the presence of
the Applicant's legal counsel at the hearing of the charges
against the Applicant, acted in excess of jurisdiction and con
trary to law, and further, that the said PRESIDING OFFICER
proposes to continue acting in excess of jurisdiction and con
trary to law by resuming the said hearing on April 3rd, 1981 in
the absence of the Applicant's legal counsel.
2. THAT the PRESIDING OFFICER Of the said Inmate Discipli
nary Board, in refusing the Applicant's request to have legal
counsel present, relied on a standing policy of the Commission
er of Corrections, as set forth in Commissioner's Directive 213,
and did not direct his mind to the particular circumstances of
the case at hand, thereby neglecting or refusing to exercise his
discretion according to law and fettering his discretion.
3. THAT in the circumstances of this case, the said PRESIDING
OFFICER has denied and, will deny to the Applicant a fair
hearing of the charges against him in accordance with the
principles of fundamental justice as set forth in section 2(e) of
the Canadian Bill of Rights, R.S.C. 1970, or in the alternative,
the said Respondent has denied and will deny to the Applicant
his right to a determination of the charges against him in
accordance with the common law duty of fairness.
A further application in the notice of motion is
for:
... an order of mandamus, directing the Respondent DIRECTOR
OF STONY MOUNTAIN PENITENTIARY to permit the presence
of the Applicant's legal counsel at the said hearing ...
but this portion of the notice of motion, while not
abandoned, was not pressed for at the hearing, the
applicant relying instead on the argument that the
Presiding Officer erred in his consideration of and
failed to direct his mind to legal principles and
requirements in the exercise of his discretion when
he refused applicant's request for legal counsel.
The affidavit of Christopher Walter Lorenc, of
the City of Winnipeg, in Manitoba, Barrister-at-
law, reads in part:
1. I am the person appointed by the Solicitor General pursuant
to Penitentiary Service Regulation No. 2.28, paragraph
[38.1](1), to be the Presiding Officer of the Inmate Discipli
nary Court of Stony Mountain Penitentiary, and as such have
personal knowledge of the matters hereinafter deposed to by
me.
2. In answer to paragraph 8 of the Affidavit of the Applicant,
thé request of Arne Peltz, as counsel for the Applicant, to
appear was not denied by me as I do not have the authority to
admit persons to the Stony Mountain Penitentiary.
3. In further answer to paragraph 8 aforementioned I (sic) was
agreed by me and Arne Peitz that the matter would be
adjourned for one week to allow him time to make whatever
application he deemed appropriate in the circumstances.
4. In answer to paragraph 11 of the Affidavit of the Applicant,
I based as a source for my decision the Penitentiary Act, its
regulations thereunder, Commissioner's Directive No. 213 and
Annex 'A' to the aforementioned Commissioner's Directive.
The Penitentiary Act, R.S.C. 1970, c. P-6, as
amended, under section 24.1(1) provides for for
feiture, in whole or in part, of earned remission
credited or standing to his credit, on conviction by
a disciplinary court of any disciplinary offence (of
an inmate).
Dealing with Rules and Regulations under the
Penitentiary Act (Regulations), section 29(1) of
the Act reads in part:
29. (1) The Governor in Council may make regulations
(b) for the custody, treatment, training, employment and
discipline of inmates;
(3) Subject to this Act and any regulations made under
subsection (1), the Commissioner may make rules, to be known
as Commissioner's directives, for the organization, training,
discipline, efficiency, administration and good government of
the Service, and for the custody, treatment, training, employ
ment and discipline of inmates and the good government of
penitentiaries. [Emphasis added.]
Section 38(1) and (2), of the Regulations
headed Inmate Discipline, reads in part:
38. (1) The institutional head of each institution is respon
sible for the disciplinary control of inmates confined therein.
(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. [Emphasis added.]
Section 38.1(1) and (2) reads:
38.1 (1) The Minister may appoint a person to preside over a
disciplinary court.
(2) A person appointed pursuant to subsection (1) shall
(a) conduct the hearing;
(b) consult, in the presence of the accused inmate, with two
officers designated by the institutional head;
(c) determine the guilt or innocence of an accused inmate
appearing before him; and
(d) on finding an accused inmate guilty, order such punish
ment authorized by these Regulations as he deems suitable.
Section 39, headed Inmate Offences, reads in
part:
39. Every inmate commits a disciplinary offence who
(a) disobeys or fails to obey a lawful order of a penitentiary
officer,
(g) is indecent, disrespectful or threatening in his actions,
language or writing toward any other person,
I move next to Commissioner's Directive No.
213, "Guidelines for Inmate Discipline".
Section 7 of the Directive, dealing with "Deter-
mination of Category of Offence", while providing
in paragraph "a":
7....
a. The guidelines defining an offence as either serious/flagrant
or minor are not intended to restrict the discretion of the
institutional director or the officer designated by him, in
determining the category of offence. Each case shall be
assessed according to its own merits depending on the cir
cumstances surrounding the incident.
provides in paragraph "b" that serious or flagrant
offences shall normally include the case of an
inmate who (and I list only those pertinent here):
b....
(1) assaults or threatens to assault another person;
(9) disobeys or fails to obey a lawful order of a penitentia
ry officer;
(11) is indecent, disrespectful, or threatening in his
actions, language, or writing, towards any other person;
Paragraph "c" provides that minor offences
shall normally include the case of an inmate who:
c....
(1) leaves his work without the permission of a penitentia
ry officer;
(2) fails to work to the best of his ability;
(3) wilfully disobeys or fails to obey any regulation or rule
governing the conduct of inmates.
Section 8, headed "Types of Punishment", pro
vides that if an inmate is found guilty of a serious
or flagrant offence, punishments shall consist of
one or more of the following (and again I list only
those punishments I consider pertinent here), these
being:
8....
(1) forfeiture of statutory remission;
(2) dissociation for a period not exceeding thirty days, with
the normal diet;
(3) loss of privileges;
(4) forfeiture of earned remission;
In Annex "A" to Commissioner's Directive No.
213, 1979-05-17, headed "Administrative Proce-
dures at Hearings for Serious or Flagrant
Offences", section 12, headed "Miscellaneous",
provides in part:
12....
a. Occasions have arisen where an accused has made formal or
informal demands that he be represented by counsel. Such
demands shall be met with the response that he is not entitled
to counsel, and that the hearing will proceed without the
accused person being represented.
It is clear from the material filed that the
offences which the inmate is charged with, are
categorized as serious and flagrant, and it would
follow that by reason of the seriousness and fla-
grancy of the alleged offences, that the provisions
of sections 38(1) and (2)(b) and 38.1(1) and (2)
were invoked and a hearing by a disciplinary court
was directed.
Annex "A" to Commissioner's Directive No.
213 sets out administrative procedures at hearings
for serious or flagrant offences, making provision
inter alia for taking pleas, calling witnesses, both
for prosecution and defence, and further sets out
that technical rules of evidence in criminal matters
do not apply in such disciplinary hearings.
I have already referred to section 12 of Directive
No. 213. Counsel for applicant argued that this
Directive, which, in effect, is no more than an
administrative decision, is ineffective as being
overridden by sections 38(2)(b) of the Regula
tions, which refers to punishment by a disciplinary
court, as was ordered in this case, and 38.1(1) and
(2) of said Regulations, which provide for the
appointment by the Minister of a person to preside
over a disciplinary court and how the hearings
shall proceed. I believe this argument to be well
founded, and I agree with it.
In Martineau v. Matsqui Institution Discipli
nary Board [ 1980] 1 S.C.R. 602, (commonly
referred to as Martineau No. 2), Pigeon J., dealing
with the dismissal of the appeal to the Supreme
Court of Canada in Martineau v. Matsqui Institu
tion Inmate Disciplinary Board [1978] 1 S.C.R.
118 (commonly referred to as Martineau No. 1),
which was an appeal to the Supreme Court of
Canada, while Martineau No. 2 dealt with the
right to certiorari, at pages 631-632 said:
In view of the wording of s. 28, the affirmation of the denial
of judicial review means that it was determined that the
disciplinary sentence in question was "a decision or order of an
administrative nature not required by law to be made on a
judicial or quasi-judicial' basis". The reasons of the majority,
except one judge who agreed with the reasons of the Court of
Appeal, show that, in their view, the "Directives" governing the
procedure for dealing with disciplinary offences were con
sidered to be administrative directions rather than "law",
although the Regulations defining disciplinary offences and
specifying the penalties that may be inflicted by the penitentia
ry authorities were in the nature of law.
and in Martineau No. 2, Dickson J., as well as
dealing with the dismissal of the appeal to the
Supreme Court of Canada, reported in Martineau
No. 1, said at page 609:
This Court, by a majority, dismissed the further appeal: Mar-
tineau and Butters v. The Matsqui Institution Inmate Discipli
nary Board ([1978] 1 S.C.R. 118) (hereinafter referred to as
Martineau (No. 1)). The Court held that the impugned order
was not within the scope of the opening words of s. 28 of the
Federal Court Act and that the Directive of the Commissioner
of Penitentiaries - was not "law" within the meaning of the
phrase "by law" in s. 28. [Emphasis added.]
As well, in Martineau No. 1, after quoting the
provisions of section 13 of Directive No. 213,
dealing with the hearing of charges for serious or
flagrant offences, Pigeon J., at page 128, said:
There remains, however, the question whether the directive is
to be considered as "law" within the wording of s. 28. In this
connection, it is necessary to consider the effect of s. 29 of the
Penitentiary Act, R.S.C. 1970, c. P-6:
29. (1) The Governor in Council may make regulations
(a) for the organization, training, discipline, efficiency,
administration and good government of the Service;
(b) for the custody, treatment, training, employment and
discipline of inmates; and
(c) generally, for carrying into effect the purposes and
provisions of this Act.
(2) The Governor in Council may, in any regulations made
under subsection (1) other than paragraph (b) thereof, pro
vide for a fine not exceeding five hundred dollars or impris
onment for a term not exceeding six months, or both, to be
imposed upon summary conviction for the violation of any
such regulation.
(3) Subject to this Act and any regulations made under
subsection (1), the. Commissioner may make rules, to be
known as Commissioner's directives, for the organization,
training, discipline, efficiency, administration and good gov
ernment of the Service, and for the custody, treatment,
training, employment and discipline of inmates and the good
government of penitentiaries.
I have no doubt that the regulations are law. [Emphasis
added.]
I do not think the same could be said of the
Directives. They are clearly of an administrative
and not a legislative nature.
I have not overlooked the decisions in Fraser v.
Mudge [1975] 3 All E.R. 78, and R. v. Visiting
Justice at Her Majesty's Prison, Pentridge; Ex
parte Walker [ 1975] V.R. 883 (Supreme Court of
Victoria), in both of which cases the refusal to
legal representation was upheld.
And while the decision in Mudge, supra, was
accepted by Pigeon J. in Martineau No. 2, he did
say, at page 637:
However, this does not mean that the duty of fairness may not
be enforced by the Trial Division through the exercise of the
discretionary remedies mentioned in s. 18 of the Federal Court
Act. [Emphasis added.]
In Mudge, one of the guiding considerations
appeared to be that the case be decided quickly. At
page 79 Lord Denning M.R. put it thusly:
We all know that, when a man is brought up before his
commanding officer for a breach of discipline, whether in the
armed forces or in ships at sea, it never has been the practice to
allow legal representation. It is of the first importance that the
cases should be decided quickly. If legal representation were
allowed, it would mean considerable delay. So also with
breaches of prison discipline. Those who hear the cases must, of
course, act fairly. They must let the man know the charge and
give him a proper opportunity of presenting his case. But that
can be done and is done without the matter being held up for
legal representation. I do not think we ought to alter the
existing practice. We ought not to create a precedent such as to
suggest that an individual is entitled to legal representation.
There is no real arguable case in support of this application and
I would reject it. [Emphasis added.]
In the within case, section 38.1(1) of the Peni
tentiary Service Regulations provided for a hear
ing before a person appointed to preside over a
disciplinary court and to conduct the hearing in
the manner earlier set out.
In his affidavit, Bill Merrett, of the City of
Winnipeg, in the Province. of Manitoba, Barrister
and Solicitor, deposes that he is the Assistant to
the Area Director of Legal Aid Manitoba, so
employed since 1977, with duties involving, inter
alia, administration of duty counsel services of
Legal Aid Manitoba.
He further deposes:
3. THAT I am advised that the Disciplinary Court at Stony
Mountain Institution sits approximately once per week to hear
charges against inmates. I am further advised that where an
inmate pleads not guilty, the case is often remanded to enable
prosecution and defence witnesses to attend, or to allow other
preparations for the case.
4. THAT in my opinion, given the staff resources of Legal Aid
Manitoba and our procedures with respect to the duty counsel
program, Legal Aid Manitoba could meet requests for inmate
representation at Disciplinary Court without disrupting the
existing operations of that Court.
It is my understanding that Mr. Arne Peltz, who
requested to appear as counsel for the applicant,
was ready to proceed with his defence of the
charges against the applicant and his acting as
counsel of aforesaid applicant should not have
entailed any appreciable delay in the hearing.
At this time I should mention that the hearing
has been adjourned to April 30th next to permit
time for an order herein to be made.
It is my considered opinion that section 12a of
Annex "A" of Commissioner's Directive No. 213
cannot, as Pigeon J. said in Martineau No. 1, be
considered as "law", and since the Penitentiary
Service Regulations are "law", section 38.1(1)
and (2), which sets out the manner of hearing of
the disciplinary court, must govern and override
the provisions of section 12a, Annex "A" of Com
missioner's Directive No. 213. Accordingly I hold
that said provision 12a is ultra vires in so far as a
hearing before a disciplinary court is concerned.
I turn next to the question of fairness in the
exercise of discretion by the Presiding Officer in
deciding whether or not counsel should be permit
ted to represent the applicant.
In Martineau No. 2, Dickson J. considered the
question of fairness and dealt with it at some
length and, if I may say with respect, in a most
cogent, rational and compelling manner. At pages
629 and 630 he put it thusly:
4. An inmate disciplinary board is not a court. It is a tribunal
which has to decide rights after hearing evidence. Even though
the board is not obliged, in discharging what is essentially an
administrative task, to conduct a judicial proceeding, observing
the procedural and evidential rules of a court of law, it is,
nonetheless, subject to a duty of fairness and a person
aggrieved through breach of that duty is entitled to seek relief
from the Federal Court, Trial Division, on an application for
certiorari. [Emphasis added.]
and continuing on pages 630 and 631, he said:
7. It is wrong, in my view, to regard natural justice and
fairness as distinct and separate standards and to seek to define
the procedural content of each. In Nicholson, the Chief Justice
spoke of a "... notion of fairness involving something less than
the procedural protection of the traditional natural justice".
Fairness involves compliance with only some of the principles of
natural justice. Professor de Smith, (Judicial Review of
Administrative Action, 3rd ed. 1973, p. 208) expressed lucidly
the concept of a duty to act fairly:
In general it means a duty to observe the rudiments of
natural justice for a limited purpose in the exercise of
functions that are not analytically judicial but administra
tive.
The content of the principles of natural justice and fairness
in application to the individual cases will vary according to the
circumstances of each case, as recognized by Tucker L.J. in
Russell v. Duke of Norfolk ([1949] 1 All E.R. 109), at p. 118.
8. In the final analysis, the simple question to be answered is
this: Did the tribunal on the facts of the particular case act
fairly toward the person claiming to be aggrieved? It seems to
me that this is the underlying question which the courts have
sought to answer in all the cases dealing with natural justice
and with fairness.
In a decision of Addy J. [In re the Royal
Canadian Mounted Police Act and in re Husted
[1981] 2 F.C. 791] delivered February 5, 1981, the
learned Trial Judge set out the facts and issue as
follows [at page 793]:
The applicant, Husted, a special constable, is charged under
paragraph (a) of section 25 of the Royal Canadian Mounted
Police Act, R.S.C. 1970, c. R-9, of the major service offence of
refusing to obey a lawful command to hand over a firearm. The
applicant, Ridley, who holds the rank of corporal, stands
charged at the same time of another major service offence
under section 25(o) of disgraceful conduct in pointing a revolv
er at or toward a constable.
Both offences were allegedly committed on the same day,
namely 5 January 1980, that is some eleven months before
formal charges were laid on 7 November 1980.
After referring to arguments of counsel and
setting out the sections under which the applicants
were respectively charged, he continued [at pages
793-794]:
The facts are uncontradicted. When the accused appeared
for their trials before Superintendent J. M. Roy they had both
retained and instructed the same counsel who was not a
member of the Force but who was present outside of the room
where the trial was scheduled to be held. They both requested
that they be tried together and that he be allowed to represent
them. Neither of the applicants had any formal legal training.
Their request was denied by the service court and an adjourn
ment was granted the accused on the grounds that they were
not prepared to proceed at that time. Before the date of
resumption of the proceedings the present applications were
launched.
The controversy arises over the application or, more precise
ly, over the validity of section 33 of the Royal Canadian
Mounted Police Regulations, C.R.C. 1978, Vol. XV, c. 1391,
issued pursuant to section 21 of the Act. Section 33 of the
Regulations reads as follows:
33. No member whose conduct is being investigated under
section 31 of the Act or who is charged with any offence
described in section 25 or 26 of the Act is entitled to have
professional counsel appear on his behalf at that investigation
or trial.
Section 21(1) of the Act reads as follows:
21. (1) The Governor in Council may make regulations
for the organization, training, discipline, efficiency, adminis
tration and good government of the force and generally for
carrying the purposes and provisions of this Act into effect.
Further in his judgment [at page 795], he stated:
There is no absolute common law right to counsel in all cases
where an individual is subject to some penalty. The courts have
consistently refused to intervene on the grounds that represen
tation by counsel was denied in certain service disciplinary
matters where the hearing is, by nature of the subject-matter or
the alleged offence, of an internal administrative nature and
concerns a disciplinary matter within a special body such as a
branch of the armed services or a police organization.
And further in his judgment, after pointing out
that the hearing is usually held in a very informal
manner without a court stenographer recording
the proceedings and without regard to the strict
rules of evidence, he said that in some cases the
law specifically prohibits the employment of out
side agencies or counsel since the exigencies of the
service require this degree of informality to pre
vent day-to-day administration of the Force and
the maintenance of discipline becoming so cumber
some and time-consuming as to be ineffective.
But then he added:
On the other hand, the common law recognizes that wherever a
person's liberty or livelihood is at stake in a legal trial, he
should not unreasonably be deprived of the services of the duly
qualified legal counsel of his choice unless the employment of
any particular counsel would unduly delay or impede the
administration of justice. It is a natural corollary of the princi
ple that an accused is entitled to a full and fair defence.
[Emphasis added.]
And later in his judgment, he said this [at page
797]:
It would be nothing short of ludicrous to expect an ordinary
layman, without the benefit of legal counsel, to either under
stand, abide by or, more importantly, benefit by the rules of
evidence in criminal matters such as the rules regarding state
ments and admissions made to persons in authority.
In Dubeau v. National Parole Board [ 1980] 6
W.W.R. 271 [[1981] 2 F.C. 37], a case heard by
Smith D.J. (Federal Court of Canada, Trial Divi
sion), the headnote reads:
The accused breached a condition of his parole by applying
for credit without the permission of his parole officer. He had a
disciplinary interview with his parole officer and as a result
signed an undertaking not to apply for credit without permis
sion. On that same day he was arrested and charged with
several criminal offences, to which he pleaded not guilty. The
offences were unrelated to the credit applications. Two weeks
later his parole was suspended. He applied for a post-suspen
sion hearing, and at the hearing the board questioned him
about the pending criminal charges and refused to allow his
counsel to attend. The board's reasons for revocation were
based on the breach of conditions, not the pending charges. The
accused applied for certiorari claiming that the board had erred
by considering the criminal charges and had acted unfairly by
not allowing his counsel to be present.
Held—Application for certiorari granted; revocation of parole
quashed.
The court had jurisdiction to review the hearing as the board
was under a duty to act fairly.
While the board had very wide powers and could consider all
the circumstances, it was arguable that the board should not
have questioned the accused about the criminal charges.
Further, to refuse to allow the accused to have counsel
present at the hearing was unfair.
The judgment is lengthy and I propose to quote
only two paragraphs at page 288 [pages 55-56 of
the Federal Court Reports], which read:
My conclusion is that in view of all the circumstances
outlined supra, and notwithstanding the Board's absolute dis
cretion to revoke or not revoke the applicant's parole, it is at
least arguable that its members should not have questioned him
about the criminal charges. If that argument is not maintain
able, it is nevertheless my view that to refuse to allow him to
have legal counsel present during the hearing was unfair treat
ment of the applicant.
I am mindful also of the fact that the primary purpose of
certiorari is to see that minor tribunals conduct their hearings
correctly and fairly. This purpose has been stated to be even
more important than that of protecting individual rights.
I have already referred to the affidavit of the
respondent Presiding Officer. I refer again to para
graph 4 thereof, where he states that in answer to
paragraph 11 of the applicant's affidavit (which
reads "That the Presiding Officer read to me an
excerpt from the Commissioner's Directives deal
ing with an inmate's right to have counsel present
at such hearings, and stated that as a result of this
Directive, my request must be refused."), ". .. I
based, as a source for my decision, the Penitentia
ry Act, its Regulations thereunder, Commission
er's Directive No. 213, and Annex 'A' to the
aforementioned Commissioner's Directive."
Reading paragraph 4 of the Presiding Officer's
affidavit and paragraph 11 of the applicant's
affidavit, I have the distinct feeling that in arriving
at his decision to deny counsel to the applicant, the
Presiding Officer relied on, and placed undue
emphasis on the Commissioner's Directive Annex
"A", section 12, without giving proper consider
ation to the effect of section 38(1) and (2)(b) and
section 38.1(1) and (2) of the Penitentiary Service
Regulations and Rules on said Commissioner's
Directive, Annex "A", section 12.
I have not overlooked the Presiding Officer's
statement in his affidavit that he based his deci
sion, as well, on the Penitentiary Act and its
Regulations thereunder, but I am still of the opin
ion that he appears to have failed to address
himself to the distinction between the Penitentiary
Service Regulations, which are "law" and the
Commissioner's Directive, section 12, already
referred to, which is not "law".
Furthermore, there is nothing in the material to
suggest that in arriving at his decision, the Presid
ing Officer gave any thought to the principle of
fairness, a principle which was strongly empha
sized by Pigeon J., in Martineau No. 1 and by
Dickson J., in Martineau No. 2 and, as well, by
Addy J., in Ridley and Smith D.J., in Dubeau, all
supra.
It is my opinion that the decision of the Presid
ing Officer is a discretionary one, and I recognize
this discretion should not be interfered with unless
it was not judicially exercised. With respect, I
believe such was the case here, and I, accordingly,
remit the matter to the Presiding Officer for
reconsideration of his decision, giving due thought
and attention to the effect of sections 38(1) and
(2)(b) and 38.1(1) and (2) and their legal effect
on Commissioner's Directive No. 213, Annex "A",
section 12; and what I consider of marked impor
tance, the question of fairness to the applicant.
After review and consideration of the facts and
giving effect to the law, as set out in these reasons,
the Presiding Officer is entitled to exercise his
discretion in whatever way he decides is legally
correct.
There will be no costs.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.