A-1041-83
Glen Howard (Applicant) (Appellant)
v.
Presiding Officer of the Inmate Disciplinary
Court of Stony Mountain Institution (Respond-
ent)
Court of Appeal, Thurlow C.J., Pratte and Mac-
Guigan JJ.—Winnipeg, January 10; Ottawa,
March 1, 1985.
Penitentiaries — Disciplinary offences — Presiding Officer
at Inmate Disciplinary Court denying request by inmate for
representation by legal counsel — Procedural changes re
disciplinary hearings not transforming disciplinary board into
court — Procedure lacking fully adversarial character —
Directives not having status of law — Amendments leading
only to fairer version of model considered by Supreme Court
of Canada in Martineau cases — Request for representation
not matter of discretion but of right where circumstances
indicate need — Presiding Officer's functions strictly limited
— No authority as master of own procedure — Denial of
request subject to supervisory jurisdiction of superior court —
Appeal allowed — Penitentiary Act, R.S.C. 1970, c. P-6, ss.
24 (rep. and sub. S.C. 1976-77, c. 53, s. 41), 24.1 (as added
idem), 29 (as am. idem, s. 44) — Penitentiary Service Regula
tions, C.R.C., c. 1251, ss. 2, 38 (as am. by SOR/80-209),
38.1(1),1(2)(asladded�idem), 391-1Federal Court Act, R.S.C.
1970 (2nd Supp.), c. 10, ss. 18, 28.
Constitutional law — Charter of Rights — Fundamental
justice — Whether s. 7 Charter affording inmate right to
representation by legal counsel in prison disciplinary hearings
— Right to counsel arising from necessity to afford inmate
opportunity to adequately present case — S. 7 requiring
fundamentally just procedure — Unnecessary to fulfil s. 7
requirement that right be recognized in all circumstances —
Request for representation not matter of discretion but of right
when circumstances indicate need — Seriousness of charges,
points of law, capacity of inmate to present case, procedural
difficulties, need for reasonable speed in adjudication and for
fairness determining right to counsel — In instant case, risk of
losing earned remission, lack of particulars re disciplinary
offences, vagueness and complexity of charges suggesting need
for counsel — Appeal allowed — 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. 1, 7 —
Canadian Bill of Rights, R.S.C. 1970, Appendix III, ss. 1(a),
2(e) — U.S. Const., Amends. XIV, XV.
The appellant, an inmate of Stony Mountain Institution, was
charged with disciplinary offences under section 39 of the
Penitentiary Service Regulations. The charges were all classi
fied as "serious or flagrant" offences pursuant to Commission
er's Directive No. 213. The appellant obtained Legal Aid
counsel and applied to have counsel represent him at the
disciplinary hearing. That request was denied by the Presiding
Officer of the Inmate Disciplinary Court who held that section
7 of the Charter had not created a "new wave of rights" and
that the circumstances of the case did not preclude a fair
hearing in the absence of counsel. The Trial Division dismissed
the appellant's application for prohibition on the grounds that
at common law there existed no right to counsel and that
section 7 had not conferred on the appellant a new right to such
representation. The issue is whether section 7 of the Charter
guarantees inmates the right to be represented by counsel at
disciplinary hearings. The case also raises the issue whether
procedural amendments (such as the appointment of presiding
officers from outside the Correctional Service and the formality
of the new procedure) changed the nature of the disciplinary
proceedings as hitherto stated by the Supreme Court of Canada
and transformed the disciplinary board into a court within the
traditional sense.
Held, the appeal should be allowed.
Per Thurlow C.J. (Pratte J. concurring): The enactment of
section 7 of the Charter has not created any absolute right to
counsel. The standard to satisfy the procedural requirement of
section 7 is that of a procedure that is fundamentally just. In
that context, any right a person has to the assistance of counsel
arises from the requirement to afford the person an opportunity
to adequately present his case. It is not necessary in order to
afford an inmate such an opportunity and thus to fulfil the
requirement of section 7 to recognize in all circumstances his
right to be represented by counsel in a disciplinary court.
Whether or not a person has such a right depends on the
circumstances of the particular case, its nature, its gravity, its
complexity, the capacity of the inmate himself to understand
the case and present his defence. The list is not exhaustive.
From this it follows that an inmate's request for representation
is not a matter of discretion, but a matter of right guaranteed
by section 7 where the circumstances are such that the opportu
nity to present his case adequately calls for representation by
counsel. Where the circumstances do not point to that conclu
sion a residual authority to permit counsel may nevertheless be
exercisable by the appropriate official but that area is not
within the purview of section 7.
Where the circumstances indicate the necessity for represen
tation, not only is there no discretion to refuse the request for
representation, but the authority to decide whether it is a case
in which counsel must be allowed is not vested in the presiding
officer of the disciplinary court. The latter's functions are
strictly limited by subsections 24.1(2) of the Penitentiary Act
and 38.1(2) of the Regulations. Commissioner's Directive No.
213, which is an administrative directive, instructs the presiding
officer as to how his duties, including that of conducting the
hearing, are to be carried out, and Annex "A" to the Directive
contains a provision that forbids him to permit counsel. It
cannot be said therefore that the presiding officer has authority
as master of his own procedure to permit counsel or to adjudi
cate on the right of an inmate to counsel. His denial of a
request for representation cannot prevent a superior court in
the exercise of its supervisory jurisdiction from determining the
question on its own.
In the instant case, the appellant's request could not have
been lawfully refused. The fact that his 267 days of earned
remission were in jeopardy, that there existed a lack of particu
lars with respect to the disciplinary offences, and that one of
the charges, i.e. conduct calculated to prejudice discipline and
good order, is a notoriously vague and difficult charge to
defend, suggest the need for counsel. Moreover, in a social
system which recognizes the right of anyone to counsel in any
of the ordinary courts of law for the defence of any charge, it
would be incongruous to deny such a right to a person who,
though not suffering from any physical or mental incapacity to
defend himself, is faced with charges having such grave
consequences.
Per MacGuigan J.: It would be excessive to view the proce
dural changes affecting disciplinary hearings as having created
a court. There is no prosecution in the strict sense and no
prosecuting officer. The whole procedure lacks a fully adver
sarial character. Moreover, the new procedural structure is still
incomplete in its legality: the use of presiding officers remains
optional and the Commissioner's Directives, which are the only
provisions dealing with the conduct of hearings, do not have the
status of law. Legally speaking, the amendments have led only
to a fairer version of the same basic model considered by the
Supreme Court of Canada in the two Martineau cases.
The standard enunciated in section 7 is the right not to be
deprived of the right to liberty "except in accordance with the
principles of fundamental justice". Fundamental justice
requires that an accused be given "the opportunity adequately
to state his case" as stated by Fauteùx C.J.C. in the case of
Duke v. The Queen. While the Charter has not created a new
right (representation by legal counsel) it has nevertheless
enhanced the requirement of an adequate opportunity of
answering a charge. Whether this necessitates representation
by counsel in any set of circumstances can be determined only
by a full analysis of the circumstances. Webster J. in the
English case of Tarrant enumerated six considerations to be
taken into account in relation to the right to counsel: (1) the
seriousness of the charge; (2) whether any points of law are
likely to arise; (3) the capacity of a particular prisoner to
present his own case; (4) procedural difficulties; (5) the need
for reasonable speed in adjudication; (6) the need for fairness
as between prisoners and as between prisoners and prison
officers. (The third consideration, however, meets with disap
proval: no presiding officer could be in a position, at the outset
of the disciplinary proceedings, to make a summary judgment
of the capacity of an inmate to present his case before having
heard the inmate.) The need for counsel in a case of a possible
forfeiture of earned remission is so strong that it amounts
effectively to a presumption in favour of counsel, a departure
from which a presiding officer would have to justify.
What section 7 requires is that an inmate be allowed counsel
when to deny his request would infringe his right to fundamen
tal justice. The existence of the right admittedly depends on the
facts. The presiding officer's authority cannot prevent a review
ing court from substituting its own view if it is clearly satisfied
that the exercise of the presiding officer's discretion was wrong.
In this case, the presiding officer in expressing the opinion that
section 7 "[did] not create a new wave of rights nor [did] it
elevate any greater degree of responsibility by an administra
tive tribunal such as the Inmate Disciplinary Board" has
misunderstood the effect of the Charter. The Charter does
modify the previous understanding of the law and in so doing it
does affect even purely administrative proceedings. The appel
lant was thus clearly deprived of the protection of a fundamen
tal principle of justice in violation of section 7.
CASES JUDICIALLY CONSIDERED
APPLIED:
R. v. Mingo et al. (1982), 2 C.C.C. (3d) 23 (B.C.S.C.).
CONSIDERED:
Duke v. The Queen, [1972] S.C.R. 917; Martineau et al.
v. Matsqui Institution Inmate Disciplinary Board (No.
1), [1978] 1 S.C.R. 118; Martineau v. Matsqui Institu
tion Disciplinary Board (No. 2), [1980] 1 S.C.R. 602;
Fraser v. Mudge, [1975] 1 W.L.R. 1132 (Eng. C.A.);
Reg. v. Secretary of State for the Home Department, Ex
parte Tarrant, [1984] 2 W.L.R. 613 (Eng. Q.B.D.);
Wolff v. McDonnell, 418 U.S. 539 (1974); Re Davidson
and Disciplinary Board of Prison for Women et al.
(1981), 61 C.C.C. (2d) 520 (F.C.T.D.); Blanchard v.
Disciplinary Board of Millhaven Institution et al.,
[1983] I F.C. 309; 69 C.C.C. (2d) 171 (T.D.); Joplin v.
Chief Constable of Vancouver Police Dept., [1983] 2
W.W.R. 52 (B.C.S.C.); R. v. Cadeddu (1982), 3 C.R.R.
312 (Ont. H.C.); Law Society of Upper Canada v. Ska-
pinker, [1984] 1 S.C.R. 357; 8 C.R.R. 193; Morrissey v.
Brewer, 408 U.S. 471 (1972); Gagnon v. Scarpelli, 411
U.S. 778 (1973); Pett v. Greyhound Racing Association,
Ltd., [1968] 2 All E.R. 545 (C.A.); Selvarajan v. Race
Relations Board, [1976] 1 All E.R. 12 (C.A.); In re
Prisons Act and in re Pollard et al., judgment dated
February 20, 1980, Supreme Court of Newfoundland, file
no. 1355, not reported.
REFERRED TO:
Minou v. Presiding Officer of the Inmate Disciplinary
Court of Stony Mountain Penitentiary et al., [1982] 1
F.C. 322 (T.D.); The Queen, et al. v. Operation Disman
tle, Inc., et al., [1983] 1 F.C. 745 (C.A.); In re Husted
and in re the Royal Canadian Mounted Police Act,
[1981] 2 F.C. 791; 58 C.C.C. (2d) 156 (T.D.); Re Swan
and The Queen (1983), 7 C.C.C. (3d) 130 (B.C.S.C.); R.
v. Nunery (1983), 5 C.R.R. 69 (Ont. H.C.); Collin v.
Lus- sier, [1983] 1 F.C. 218; 6 C.R.R. 89 (T.D.); R. v.
Sibley (1982), 4 C.R.R. 166 (N.S. Co. Ct.); Re Jamieson
and The Queen (1982), 70 C.C.C. (2d) 430 (Que. S.C.);
R. v. Holman (1982), 28 C.R. (3d) 378 (B.C. Prov. Ct.);
Re Balderston et al. and The Queen (1982), 2 C.C.C.
(3d) 37 (Man. Q.B.); Baxter v. Palmigiano, 425 U.S. 308
(1976); General Medical Council v. Spackman, [1943]
A.C. 627 (H.L.); Nicholson v. Haldimand-Norfolk
Regional Board of Commissioners of Police, [1979] 1
S.C.R. 311; Evans v. Bartlam, [1937] A.C. 473 (H.L.);
Charles Osenton & Co. v. Johnston, [ 1942] A.C. 130
(H.L.); Quebec Association of Protestant School Boards
et al. v. Attorney General of Quebec et al. (No. 2)
(1982), 140 D.L.R. (3d) 33 (Que. S.C.), affirmed (1983)
1 D.L.R. (4th) 573 (Que. C.A.).
COUNSEL:
Judy Elliott and Arne Peitz for applicant
(appellant).
Brian H. Hay for respondent.
SOLICITORS:
Legal Aid Manitoba, Ellen Street Commu
nity Legal Services, Winnipeg, for applicant
(appellant).
Deputy Attorney General of Canada for
respondent.
The following are the reasons for judgment
rendered in English by
THURLOW C.J.: This is an appeal from a judg
ment of the Trial Division [(1983), 8 C.C.C. (3d)
557] which dismissed the appellant's application
for an order prohibiting the respondent from con
tinuing or concluding the hearing of certain
charges against the appellant under section 39 of
the Penitentiary Service Regulations [C.R.C., c.
1251] in the absence of legal counsel as requested
by the appellant. The issue in the appeal is wheth
er the request of the appellant was unlawfully
refused.
As presented it is a narrow issue.
The appellant does not claim a right to have
counsel provided for him. Indeed, having had
counsel available, he did not even seek a postpone
ment to obtain counsel. On the other hand, it was
not disputed by counsel for the respondent that the
Disciplinary Court has authority and indeed a
duty to permit counsel to conduct the defence of
an accused inmate where to deny it would breach
the obligation to deal fairly with him. This was
referred to as a "discretion" vested in the Presid
ing Officer. In so far as the appellant's entitlement
to representation by counsel is subject to denial by
the exercise of a discretion there was no attack by
the appellant either before the Trial Division or on
the appeal on the exercise by the Disciplinary
Court of such discretion by denying the appellant's
request. What is in issue is thus solely whether the
appellant had an undeniable right to counsel and
more particularly whether section 7' of the
Canadian Charter of Rights and Freedoms [being
Part I of the Constitution Act, 1982, Schedule B,
Canada Act 1982, 1982, c. 11 (U.K.)] guaranteed
him that right.
At the material time the appellant was an
inmate of Stony Mountain Institution serving a
sentence of two years and four months. On
December 31, 1982, he was involved in incidents
with officers of the institution as a result of which
five charges were laid against him under section 39
of the Penitentiary Service Regulations. These
were, possessing contraband, using indecent or dis
respectful language to another person, an act cal
culated to prejudice discipline or good order of the
institution, disobeying a lawful order of a peniten
tiary officer, and threatening to assault another
person. The record does not disclose particulars of
the charges other than that the first three occurred
at 08.40 hours, the fourth at 09.00 hours, and the
fifth at 09.20 hours, all on December 31, 1982. On
January 6, 1983, the appellant appeared before a
presiding officer and entered pleas of guilty to the
charges of possessing contraband and disobeying a
' 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.
lawful order and pleas of not guilty on the remain
ing three charges.
Editor's Note: The affidavit of Glen Howard, the
appellant herein, dated May 10, 1983 and filed in
the Trial Division of the Federal Court on May 12,
1983, contains the following paragraphs:
3. THAT on December 31st, 1982 I was involved in certain
incidents with officers employed at the Stony Mountain Institu
tion. As a result, the following charges were laid against me
under Section 39 of the Penitentiary Service Regulations:
(i) threatens to assault another person;
(ii) is indecent or disrespectful in his language or writing
towards another person;
(iii) does any act that is calculated to prejudice the disci
pline or good order of the institution;
(iv) has contraband in his possession;
(v) disobeys the lawful order of a penitentiary officer.
5. THAT on January 6th, 1983, I appeared before the Presid
ing Officer of the Inmate Disciplinary Court. I entered pleas of
not guilty to the first three charges referred to in paragraph 3
herein and guilty pleas to the latter two charges referred to in
paragraph 3 herein.
The reasons for judgment of the Trial Judge,
Nitikman D.J., reported at (1983), 8 C.C.C. (3d)
557, read in part as follows (at pages 559-560):
Applicant is an inmate of Stony Mountain Institution whose
mandatory release date is June 9, 1983, according to his
affidavit. On December 31, 1982, he was involved in certain
incidents with officers employed at the institution. As a result,
the following charges were laid against him under s. 39 of the
Penitentiary Service Regulations:
39(i) has contraband in his possession, allegedly having
occurred at 0840 hours on December 31, 1982;
39(g) is indecent, disrespectful or threatening in his actions,
language or writing toward any other person, allegedly
having occurred at 0840 hours on December 31, 1982;
39(k) does any act that is calculated to prejudice the
discipline or good order of the Institution, allegedly having
occurred at 0840 hours on December 31, 1982;
39(a) disobeys or fails to obey a lawful order of a penitentia
ry officer, allegedly having occurred at 0900 hours on
December 31, 1982;
39(b) assaults or threatens to assault another person,
allegedly having occurred at 0920 hours on December 31,
1982;
The above offences were allegedly committed on December
31, 1982, the first three at the same time, and the last two,
some short while later. He was subsequently charged under
said s. 39 of the Penitentiary Service Regulations with one
count of having contraband in his possession on January 4,
1983, and was also subsequently charged under said section
with one count of failure to obey a lawful order of a penitentia
ry officer on January 18, 1983.
On January 6, 1983, applicant appeared before the presid
ing officer of the inmate disciplinary court and entered not
guilty pleas on the first three charges above referred to and
guilty pleas to the latter two charges. Disposition of the
charges applicant pleaded guilty to was held in abeyance
pending the determination of the balance of the charges. He
later appeared before the presiding officer of the inmate
disciplinary court and entered pleas of not guilty to the last two
charges.
Disposition of the charges to which he pleaded
guilty was held in abeyance pending determination
of the remaining three charges. Subsequently,
charges of having contraband on January 4, 1983,
and failing to obey a lawful order on January 20,
1983, were laid. To these the appellant pleaded not
guilty. All the charges were categorized under the
Commissioner's Directive No. 213 as "serious" or
"flagrant" offences. On February 3, 1983, by
which time he had secured counsel, the appellant
appeared before the Presiding Officer of the
Inmate Disciplinary Court who thereupon
adjourned the hearing in order to obtain written
submissions from counsel for the appellant and for
the Department of Justice on the request of the
appellant to have counsel represent him at the
hearing. The request was denied on April 11, 1983.
The Presiding Officer held that section 7 of the
Charter does not create "a new wave of rights"
and, as he was not persuaded that there were
circumstances in the particular case which pre
cluded the possibility of a fair hearing in the
absence of counsel, he exercised his discretion and
denied the request.
The appellant's application for prohibition was
then brought. It was refused on June 7, 1983, the
learned Trial Judge holding that at common law
the appellant did not have a right to be represented
by counsel in such proceedings and that section 7
of the Charter had not conferred on the appellant
any new right to such representation. He found no
basis for disagreeing with the Presiding Officer's
decision. The appellant thereupon brought this
appeal.
On May 10, 1983, when the affidavit in support
of the application for prohibition was sworn, the
appellant had 267 days of earned remission stand
ing to his credit and was due for release on manda
tory supervision on June 9, 1983. The earned
remission was subject to forfeiture in whole or in
part as a result of the Disciplinary Court proceed
ings. Among other permissible punishments for
serious or flagrant offences was solitary confine
ment, also referred to as punitive dissociation.
We were informed by counsel for the appellant
that the hearing in the Inmate Disciplinary Court
proceeded on June 9, 1983, when the appellant
was found guilty on six of the seven counts and
was sentenced to forfeiture of 70 days of his
earned remission. As a prohibition can no longer
be effective and as the sentence which the appel
lant was serving has long since expired, the matter
has become academic and would ordinarily not be
entertained. But, as counsel for the respondent, as
well as for the appellant, urged upon the Court the
importance, to both inmates and the penitentiary
administration, of having a decision of this Court
as to the right of inmates to counsel in such
disciplinary proceedings and in particular as to the
effect of section 7 of the Charter, the Court exer
cised its discretion to hear the matter on its merits.
At the material time the relevant provisions of
the Penitentiary Act [R.S.C. 1970, c. P-6 (as am.
by S.C. 1976-77, c. 53)] included:
EARNED REMISSION
24. (1) Subject to section 24.2, every inmate may be credited
with fifteen days of remission of his sentence in respect of each
month and with a number of days calculated on a pro rata basis
in respect of each incomplete month during which he has
applied himself industriously, as determined in accordance with
any rules made by the Commissioner in that behalf, to the
program of the penitentiary in which he is imprisoned.
(2) The first credit of remission pursuant to subsection (1)
shall be made not later than the end of the month next
following the month the inmate is received into a penitentiary,
or, if he had been so received before the coming into force of
this subsection, not later than the end of the month next
following the month in which this subsection comes into force
and thereafter a credit of remission shall be made at intervals
of not more than three months.
24.1 (1) Every inmate who, having been credited with earned
remission, is convicted in disciplinary court of any disciplinary
offence is liable to forfeit, in whole or in part, the earned
remission that stands to his credit and that accrued after the
coming into force of this section, but no such forfeiture of more
than thirty days shall be valid without the concurrence of the
Commissioner or an officer of the Service designated by him, or
more than ninety days without the concurrence of the Minister.
(2) The Governor in Council may make regulations provid
ing for the appointment by him or by the Minister of a person
to preside over a disciplinary court, prescribing the duties to be
performed by such a person and fixing his remuneration.
REGULATIONS AND RULES
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;
(2) The Governor in Council may, in any regulations made
under subsection (1) other than paragraph (b) thereof, provide
for a fine not exceeding five hundred dollars or imprisonment
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 government of
the Service, and for the custody, treatment, training, employ
ment and discipline of inmates and the good government of
penitentiaries.
Under the heading CUSTODY AND TRAINING OF
INMATES the Penitentiary Service Regulations [as
am. by SOR/80-209] included:
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.
(3) Where an inmate is convicted of a disciplinary offence
the punishment shall, except where the offence is flagrant or
serious, consist of loss of privileges.
(4) The punishment that may be ordered for a flagrant or
serious disciplinary offence shall consist of one or more of the
following:
(a) forfeiture of statutory remission or earned remission or
both;
(b) dissociation for a period not exceeding thirty days;
(c) loss of privileges.
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.
39. Every inmate commits a disciplinary offence who
(a) disobeys or fails to obey a lawful order of a penitentiary
officer,
(b) assaults or threatens to assault another person,
(g) is indecent, disrespectful or threatening in his actions,
language or writing toward any other person,
(i) has contraband in his possession,
(k) does any act that is calculated to prejudice the discipline
or good order of the institution,
Commissioner's Directive No. 213 included:
5. OFFICERS DESIGNATED TO HEAR CHARGES AND AWARD
PUNISHMENT
c. Where an independent chairperson has been appointed,
that chairperson shall be assigned by the institutional
director to hear charges and award punishment in all
cases of serious or flagrant offences.
d. Where an independent chairperson has not been
appointed, the persons designated to award punishment
for serious or flagrant offences shall not be below the
level of assistant director.
12. HEARING OF CHARGES FOR SERIOUS OR FLAGRANT
OFFENCES
a. A person designated by the institutional director shall
hear all charges for serious or flagrant offences and, if
the inmate is found guilty, shall decide the appropriate
punishment. Two staff members shall be appointed to
attend a hearing, but their role shall be as advisers only.
b. The hearing of a charge shall commence, as far as is
practicable, within seven working days from the date the
charge was laid, unless a justifiable reason warrants
delay, but may, when circumstances require, be
adjourned from time to time.
c. No finding shall be made against an inmate charged
under section 2.29 of the PSR for a serious or flagrant
offence unless the inmate:
(1) has received written notice of the charge in suffi
cient detail so that he may direct his mind to the
occasion and events upon which the charge is made,
and a summary of the evidence alleged against him;
(2) has received the written notice and summary
referred to in paragraph (1) at least 24 hours prior
to the beginning of the hearing, so that he has
reasonable time to prepare his defence;
(3) has appeared personally at the hearing so that the
evidence against him was given in his presence;
(4) has been given an opportunity to make his full
answer and defence to the charge, including the
introduction of relevant documents, and the ques
tioning and cross-examination of the witnesses
which shall be done through the presiding person.
The inmate is entitled to call witnesses on his own
behalf, except that, where the request for the
attendance of any such witness is believed to be
frivolous or vexatious, the presiding person may
refuse to have such witness called and shall advise
the inmate of the reason for the refusal in writing.
d. The decision as to the guilt or innocence shall be based
solely on the evidence produced at the hearing and, if a
conviction is to be registered, it can only be on the basis
that, after a fair and impartial weighing of the evidence,
there is no reasonable doubt as to the guilt of the
accused.
13. AWARDING PUNISHMENT
(5) When the award of punishment is one of forfeiture
of statutory or earned remission, under no circum
stances shall this punishment be suspended.
And Annex "A" to Directive No. 213 included:
12. MISCELLANEOUS
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.
These statutory provisions, regulations and
directives have not changed materially from what
they were when the Martineau cases 2 arose. The
enactment of subsection 24.1(2) of the Penitentia
ry Act by chapter 53 of the Statutes of Canada
1976-77 provided for a new or additional class of
persons who might preside at inmate disciplinary
court proceedings but the nature of such proceed
ings as being essentially administrative rather than
judicial or quasi-judicial, as held by the majority
of the Supreme Court in the first Martineau case,
remains unchanged. On the other hand, as no
question as to the division of jurisdiction in super
visory proceedings effected by sections 18 and 28
of the Federal Court Act [R.S.C. 1970 (2nd
Supp.), c. 10] between the Trial Division of this
Court and the Court of Appeal or as to an applica
tion for prohibition as an appropriate means of
raising the issue of the appellant's right to counsel
arose it appears to me to make no difference
whether the appellant as an inmate was entitled to
be dealt with in the Disciplinary Court in accord
ance with what are referred to as principles of
natural justice or with some lesser standard
referred to by the term "fairly". In neither case,
apart from section 7 of the Charter, would the
appellant on the basis of existing jurisprudence
have been in a position to demand as of right to be
represented by counsel at the disciplinary hearing.
The utmost he might have achieved was to have a
discretion to permit him to be represented by
counsel exercised in his favour. Even then it would
have been permitted in the face of Directive No.
213 which, however, has been held by the Trial
Division to be ultra vires and inoperative to
deprive the Disciplinary Court of a discretion to
permit counsel. See Minott v. Presiding Officer of
the Inmate Disciplinary Court of Stony Mountain
Penitentiary et al. 3 and Re Davidson and Discipli
nary Board of Prison for Women et al.'s So far as I
am aware no appeal was taken from either of those
decisions.
2 Martineau et al. v. Matsqui Institution Inmate Discipli
nary Board, [1978] 1 S.C.R. 118; Martineau v. Matsqui
Institution Disciplinary Board, [1980] 1 S.C.R. 602.
3 [1982] 1 F.C. 322 (T.D.).
(1981), 61 C.C.C. (2d) 520 (F.C.T.D.).
Both in England, where no constitutional provi
sion comparable to section 7 of the Charter is
involved, and in the United States, where there is a
constitutional right to due process, the existence
and extend of the right of a prison inmate to
counsel in disciplinary proceedings does not appear
to be finally settled.
In England Fraser v. Mudge 5 is taken as au
thority that the inmate has no absolute right to
counsel. In the course of his reasons, Lord Denning
M.R. said [at pages 1133-1134]:
If legal representation were allowed, it would mean consider
able delay. So also with breaches of prison discipline. They
must be heard and decided speedily. 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.
Roskill L.J. wrote [at page 1134]:
One looks to see what are the broad principles underlying these
rules. They are to main [sic] discipline in prison by proper,
swift and speedy decisions, whether by the governor or the
visitors; and it seems to me that the requirements of natural
justice do not make it necessary that a person against whom
disciplinary proceedings are pending should as of right be
entitled to be represented by solicitors or counsel or both.
Ormrod L.J. said [at page 1134]:
I agree. In my view it is for Parliament to make rules as they
think fit. I agree that this application should be refused.
The effect of this case, which was begun, heard
at trial and appeal levels and decided, all on the
same day, has been moderated by the decision of
the Queen's Bench Division of the High Court of
5 [1975] 1 W.L.R. 1132 (Eng. C.A.).
Justice in Reg. v. Secretary of State for the Home
Department, Ex parte Tarrant, 6 in which the
Court held that while Fraser v. Mudge stands for
the proposition that the inmate has no absolute
right to counsel, the disciplinary court has author
ity to exercise a discretion to allow counsel. The
reasoning is founded on the power of a tribunal, in
the absence of statutory provision to the contrary,
to establish its own procedure. At pages 646-647
Kerr L.J. wrote:
A right to the exercise of a discretion
I therefore turn to the second question, whether there is an
absolute bar to the grant of legal representation or whether
there is a discretion in boards of visitors to grant such requests.
As it seems to me, under our law, including the principles of
natural justice, there cannot be any answer to this question
other than that boards of visitors have a discretion to grant
requests for legal representation in appropriate cases. This must
be so for at least two reasons. First, since there is no statutory
provision to the contrary, boards of visitors are masters of their
own procedures and entitled to decide for themselves whether
or not to grant such requests. In the same way as any other
tribunal or body inquiring into any charges against anyone,
they have an unfettered right to decide whom they will hear on
behalf of the persons charged.
Secondly, the grant of legal representation, when this is
requested, must in some cases necessarily follow from section
47(2) of the Prison Act 1952 and rule 49(2) of the Prison Rules
1964. Both of these provide, in effect, that a prisoner charged
with any offence under the Rules must be given a proper and
full opportunity of presenting his case. Suppose then that in a
particular instance a board of visitors is of the view that this
requirement can only be complied with if the prisoner is legally
represented, or even that the board is doubtful whether this
objective can be attained without legal representation. How,
then, could the board refuse such a request? Such situations are
by no means necessarily fanciful. The evidence before us shows
that such views may well be held by the members of boards in a
number of cases who are at present constrained by the "rule"
that legal representation is simply out of the question. More
over, while the principles of natural justice are of course
primarily designed for the protection of persons against whom
charges of some kind are made, they must also operate for the
benefit of tribunals or bodies who have the task of investigating
the charges and deciding upon the consequences for the persons
charged. They must be entitled to conduct their proceedings on
the basis of what they consider to be appropriate, according to
justice as they see it.
6 [1984] 2 W.L.R. 613 (Eng. Q.B.D.)
Given that there is a discretion to grant requests of legal
representation when boards of visitors consider it appropriate to
do so, what then are the rights of prisoners who make such
requests? The answer, in my view, is that they have the right to
a proper consideration of such requests on their merits by each
board to whom such a request is made.
It does not follow, however, that such requests will necessari
ly be granted, except that they must always be granted if, in the
view of the board, the circumstances are such that legal
representation is or may be required in order to comply with
the prisoner's rights under rule 49(2). In order to reach a
conclusion as to whether or not to grant any such request, I
agree that boards should take account of the considerations
which have been listed by Webster J. in his judgment, together
with any other circumstances which they may regard as ma
terial in any individual case. [Emphasis added.]
In the course of his reasons, Webster J., at pages
636-637, gave a list of six matters of consideration
in exercising such a discretion. They included:
(1) The seriousness of the charge and the potential penalty.
(2) Whether any points of law are likely to arise.
(3) The capacity of [the] particular [person] to present his own
case.
(4) Procedural difficulties.
(5) The need for reasonable speed in making the adjudica
tion....
(6) The need for fairness as between prisoners and as between
prisoners and prison officers.
It appears to me that the effect of this decision
is that in the English system a prisoner has the
right to require of the disciplinary court that it
exercise on sound judicial grounds a discretion to
allow representation by counsel and to require that
the request be granted if in the view of the board
of visitors the circumstances are such that legal
representation is or may be required in order to
comply with the prisoner's rights under the Prison
Rules to be given a proper and full opportunity of
presenting his case. This appears to me to amount
in substance to a right to have counsel when the
facts indicate the need for it and to a discretion to
allow it in other cases as well. It is of interest to
note as well the view of Webster J. as to when
counsel might be required. When dealing with the
cases of individual prisoners, he said at pages
637-638:
It seems to me that in most, if not all, charges of mutiny, and
certainly in these two cases, questions are bound to arise as to
whether collective action was intended to be collective, i.e.
whether it was concerted or not, and as to the distinction
between mere disobedience of a particular order on the one
hand and disregard or defiance of authority on the other.
In my judgment, where such questions arise or are likely to
arise, no board of visitors, properly directing itself, could
reasonably decide not to allow the prisoner legal representation.
If this decision is to have the result that charges of mutiny will
more frequently be referred to the criminal courts in some
other form, I, personally, would not regard that result as a
matter of regret.
The charges against Tangney and Anderson each included
one charge of an assault on a prison officer under rule 51. Each
of them was, therefore, exposed to the risk of "an award" of
forfeiture of remission for a period not exceeding 180 days—
more, if, as Mr. Simon Brown contends but which is challenged
on behalf of the applicants, a board has power to make
consecutive awards, a point upon which I need express no view.
For my part, I do not think that it can possibly be said that any
reasonable board properly directing itself would be bound to
grant legal representation or, in the case of Tangney and
Anderson who applied for it, would be bound to have allowed
the presence of an adviser. I would, therefore, leave the matter
to be decided by any board before which it may come, if it does
so.
In the United States, the Supreme Court dealt
with a similar problem in Wolff v. McDonnell.'
The Court held that an inmate's right to good-time
credits under a Nebraska statute was protected by
the Constitution and that to deprive him of them
the minimum requirements of procedural due pro
cess must be observed. At pages 560-561 the Court
points to what may be a significant difference
between the effect of loss of good time under the
Nebraska statute and that under the statutory
provisions applicable to the present case. The court
said:
For the prison inmate, the deprivation of good time is not the
same immediate disaster that the revocation of parole is for the
parolee. The deprivation, very likely, does not then and there
work any change in the conditions of his liberty. It can post
pone the date of eligibility for parole and extend the maximum
term to be served, but it is not certain to do so, for good time
may be restored. Even if not restored, it cannot be said with
certainty that the actual date of parole will be affected; and if
parole occurs, the extension of the maximum term resulting
from loss of good time may affect only the termination of
7 418 U.S. 539 (1974).
parole, and it may not even do that. The deprivation of good
time is unquestionably a matter of considerable importance.
The State reserves it as a sanction for serious misconduct, and
we should not unrealistically discount its significance ....
[Emphasis added.]
The fact that under the Canadian provisions
earned remission, once forfeited, cannot be re
stored makes the forfeiture of it by the disciplinary
court a final and irrevocable deprivation of the
right to liberty, conditional or qualified as it might
be, to which the inmate would otherwise become
entitled.
On the right of the inmate to counsel, the Court
held [at page 570]:
The insertion of counsel into the disciplinary process would
inevitably give the proceedings a more adversary cast and tend
to reduce their utility as a means to further correctional goals.
There would also be delay and very practical problems in
providing counsel in sufficient numbers at the time and place
where hearings are to be held. At this stage of the development
of these procedures we are not prepared to hold that inmates
have a right to either retained or appointed counsel in discipli
nary proceedings.
Where an illiterate inmate is involved, however, or where the
complexity of the issue makes it unlikely that the inmate will be
able to collect and present the evidence necessary for an
adequate comprehension of the case, he should be free to seek
the aid of a fellow inmate, or if that is forbidden, to have
adequate substitute aid in the form of help from the staff or
from a sufficiently competent inmate designated by the staff.
We need not pursue the matter further here, however, for there
is no claim that respondent, McDonnell, is within the class of
inmates entitled to advice or help from others in the course of a
prison disciplinary hearing. [Emphasis added.]
This seems to me to leave it open to establish a
different rule in the future.
I come then to section 7 of the Charter and
whether it has the effect of affording an inmate in
a disciplinary proceeding a right to counsel that is
not subject to denial by the presiding officer on
discretionary grounds.
What was said to be at stake in the disciplinary
proceedings is the liberty and security of the
inmate and his right not to be deprived of them
except in accordance with the principles of funda
mental justice. The inmate's liberty was said to be
at stake because his earned remission was in jeop
ardy as was also the security of his person since
solitary confinement—also referred to as dissocia-
tion—was one of the punishments to which he
might be subjected. I accept this analysis so far as
the appellant's liberty is involved and that, as I
view it, is sufficient for present purposes. At the
same time it is to be noted that earned remission,
which is a creation of the Penitentiary Act, has at
all times been conditional in the sense that it has
been subject to forfeiture in disciplinary proceed
ings of an administrative nature and thus has
never had the quality of an absolute right to be set
free on the completion of the unremitted portion of
a sentence. To hold that an inmate's procedural
rights have been increased by the enactment of
section 7 is accordingly to hold that its enactment
has also enhanced the quality of the less than
absolute right conferred by the Penitentiary Act.
In the course of their reasons both the Presiding
Officer and the learned Trial Judge referred to
expressions of judicial opinion in a number of
reported cases supporting the view that at common
law a prison inmate had no absolute right to have
counsel represent him in proceedings before a dis
ciplinary tribunal, that the legal procedures estab
lished by law before the enactment of the Charter
are procedures in accordance with the principles of
fundamental justice and that section 7 of the
Charter did not add to the rights of a person in the
appellant's position. That may be a legitimate
approach to the question. But it appears to me that
in interpreting section 7, and its meaning in the
Charter, it is desirable to consider the wording of
the provisions in an effort to determine its ordinary
meaning in its context.
The section is cast in broad terms. Its context is
that of a constitutional charter. The Charter itself
is part of the Constitution of Canada. These fea
tures suggest a broad interpretation. The extent of
the Charter's guarantee of the rights set out in
section 7 may be limited by section 1 but that does
not, as it seems to me, bear on how section 7 itself
should be interpreted or on the breadth of what it
embraces. In the present case no argument was
presented on the effect of section 1 on any right to
counsel that may arise under section 7.
Next, the subject-matter of section 7 is the right
to life, liberty and security of the person. These are
matters of prime importance to everyone More
over, the fact that liberty and the security of the
person are lumped together with life itself shows
that the importance of the right to them is in the
same class with that of the right to life itself. The
enjoyment of property is not included in the class
as it is in paragraphs 1(a) and 2(e) of the Canadi-
an Bill of Rights [R.S.C. 1970, Appendix III].
Further, while the argument in the present case
focussed on the meaning and effect of the wording
"in accordance with the principles of fundamental
justice" as a guarantee of procedural standards, I
would not rule out the possibility that the wording
may also refer to or embrace substantive standards
as well.
A further observation is that the standard' of
what is required to satisfy the section in its proce
dural sense, as it seems to me, is not necessarily
the most sophisticated or elaborate or perfect
procedure imaginable but only that of a procedure
that is fundamentally just. What that may require
will no doubt vary with the particular situation
and the nature of the particular case. An unbiased
tribunal, knowledge by the person whose life, liber
ty or security is in jeopardy of the case to be
answered, a fair opportunity to answer and a
decision reached on the basis of the material in
support of the case and the answer made to it are
features of such a procedure.
In Duke v. The Queens, Fauteux C.J., speaking
of the similar wording in paragraph 2(e) of the
Canadian Bill of Rights, said:
8 [1972] S.C.R. 917, at p. 923.
Under s. 2(e) of the Bill of Rights no law of Canada shall be
construed or applied so as to deprive him of "a fair hearing in
accordance with the principles of fundamental justice." With
out attempting to formulate any final definition of those words,
I would take them to mean, generally, that the tribunal which
adjudicates upon his rights must act fairly, in good faith,
without bias and in a judicial temper, and must give to him the
opportunity adequately to state his case.
In this context, any right a person may have to
the assistance of counsel arises from the require
ment to afford the person an opportunity to ade
quately present his case. This particular point was
observed by Goodridge J. in In re Prisons Act and
in re Pollard et al. 9 when he noted in parenthesis:
"Jeopardy, of course, is not the full test, in a
broader sense one is really talking about a person
having the right to be heard by a tribunal."
Has it then become necessary, in order to afford
an inmate an opportunity to be adequately heard
and thus to fulfil the requirement of section 7 to
recognize his right to be represented by counsel in
a disciplinary court? I hesitate to refer to pre-
Charter cases on the right to counsel because to do
so seems to me to beg the question whether a new
right has been created. On the other hand, to hold
that whenever life, liberty or security of the person
are in jeopardy in administering prison discipline
an absolute right to counsel arises from the
requirement of section 7 is to hold that the system
before its enactment in which it was said to be
within the discretion of the court to allow or deny
representation by counsel was not necessarily up to
that standard.
I am of the opinion that the enactment of sec
tion 7 has not created any absolute right to counsel
in all such proceedings. It is undoubtedly of the
greatest importance to a person whose life, liberty
or security of the person are at stake to have the
opportunity to present his case as fully and ade
quately as possible. The advantages of having the
assistance of counsel for that purpose are not in
9 Supreme Court of Newfoundland, February 20, 1980,
unreported.
doubt. But what is required is an opportunity to
present the case adequately and I do not think it
can be affirmed that in no case can such an
opportunity be afforded without also as part of it
affording the right to representation by counsel at
the hearing.
Once that position is reached it appears to me
that whether or not the person has a right to
representation by counsel will depend on the cir
cumstances of the particular case, its nature, its
gravity, its complexity, the capacity of the inmate
himself to understand the case and present his
defence. The list is not exhaustive. And from this,
it seems to me, it follows that whether or not an
inmate's request for representation by counsel can
lawfully be refused is not properly referred to as a
matter of discretion but is a matter of right where
the circumstances are such that the opportunity to
present the case adequately calls for representation
by counsel. It may be that where the circum
stances do not point to that conclusion a residual
authority to permit counsel nevertheless is exercis-
able by the appropriate official but that area is not
I think within the purview of section 7.
It appears to me that the right of an inmate to
counsel in a case in which under the English and
United States' systems it could not be denied is
guaranteed in Canada by section 7. It is guaran
teed because ex hypothesi it is a case in which an
opportunity to adequately present his case cannot
be accorded without the inmate being allowed to
have counsel.
In Canada the system thus differs in that in
such a case not only is there no discretion, properly
described, to refuse the request but the authority
to decide whether it is a case in which counsel
must be allowed is not vested in the presiding
officer of the disciplinary court. That officer is, in
my view, strictly limited in his functions. Under
subsection 24.1(2) of the Penitentiary Act the
duties of a presiding officer appointed under that
subsection, as the Presiding Officer in the present
instance, are to be those prescribed by regulation.
Under subsection 38.1(2) of the Regulations he
has authority to conduct the hearing, to consult
with two officers, to determine guilt and to order
punishment. The procedure to be followed is, how
ever, not left to him. The Commissioner's Direc
tive No. 213, made under the authority of subsec
tion 29(3) of the Act, has been held 10 not to have
the force of law, but it appears to me nevertheless
to be an administrative directive to the presiding
officer as to how his duties, including that of
conducting the hearing, are to be carried out and
included in the Annex to it is a provision that
forbids him to permit counsel. In this situation I do
not think any authority as master of his own
procedure exists from which authority to permit
counsel or to adjudicate on the right of an inmate
to counsel might be regarded as vested in the
presiding officer.
He will no doubt have to consider and take a
position on whether the case is one in which the
request for counsel can be denied. And he must be
prepared to act on his view. But, in my opinion, his
denial of such a request cannot be regarded as an
adjudication of the right and cannot prevent a
superior court in the exercise of supervisory juris
diction from determining the question on its own. I
may note as well that for a presiding officer to
decide that he can accord the inmate a fair hearing
in accordance with the principles of fundamental
justice without permitting counsel would seem to
me to indicate that he already has preconceived
ideas about the case and the defence and that the
need to decide would put him in the embarrassing
position of determining his own capacity to accord
the inmate his rights without knowing what they
are. That, in my view, makes him an unsuitable
person to decide such a question.
1 0 Martineau et al. v. Matsqui Institution Inmate Discipli
nary Board, [1978] 1 S.C.R. 118 per Pigeon J., at p. 129; see
also Martineau v. Matsqui Institution Disciplinary Board,
[1980] 1 S.C.R. 602.
This brings me to the question whether the
present was a case in which the appellant's request
could lawfully be refused. Its principal feature was
that the whole of the appellant's 267 days of
earned remission were in jeopardy. In my view
that alone suggests his need of counsel. Next there
is the lack of particulars of offences of which three
are alleged to have occurred at the same instant.
Conviction on the two of the charges to which he
pleaded not guilty might result in consecutive
losses of 30 days' remission without reference to
the Commissioner for what not inconceivably may
have been the same act. Moreover, one of the three
charges is that of an act calculated to prejudice
discipline and good order, a notoriously vague and
difficult charge for anyone to defend. These fea
tures, as well, suggest the need for counsel to
protect the inmate.
There is not in the record anything that would
indicate that the appellant suffered from physical
or mental incapacity which would disable him
from conducting his own defence as well as might
be expected of any ordinary person without legal
training. But he obviously felt the need for counsel
because he obtained Legal Aid assistance prompt
ly. He must also have been able to persuade those
who administer the legal aid system of his need.
Moreover, in a social system which recognizes the
right of anyone to counsel in any of the ordinary
courts of law for the defence of any charge, no
matter how trivial the possible consequences may
be, it seems to me to be incongruous to deny such a
right to a person who, though not suffering from
any physical or mental incapacity to defend him
self, is faced with charges that may result in loss of
his liberty, qualified and fragile though it, may
have been, for some 267 days.
On the whole, I am of the opinion that the
refusal of the appellant's request for counsel was a
refusal of the opportunity to which he was entitled
to adequately present his defence and that prohibi
tion should have issued.
I would allow the appeal with costs, and set
aside the dismissal of the application for prohibi
tion. As prohibition can no longer be effective, I
would grant a declaration that the appellant was
entitled to counsel for the defence of the charges
against him with costs of the application.
PRArrE J.: I agree.
* * *
The following are the reasons for judgment
rendered in English by
MACGUIGAN J.: This case raises the question of
the right to representation by legal counsel in
prison disciplinary hearings in the light of section
7 of the Canadian Charter of Rights and
Freedoms.
The appellant was an inmate of the Stony
Mountain Institution in Manitoba when he was
involved in December 1982 and January 1983 in
incidents which led to the laying of seven charges
against him under section 39 of the Penitentiary
Service Regulations as follows:
39(a) disobeys or fails to obey a lawful order of a penitentiary
officer, allegedly having occurred twice, on December 31, 1982,
and on January 20, 1983;
39(b) assaults or threatens to assault another person, allegedly
having occurred on December 31, 1982;
39(g) is indecent, disrespectful or threatening in his actions,
language or writing toward any other person, allegedly having
occurred on December 31, 1982;
39(i) has contraband in his possession, allegedly having
occurred twice, on December 31, 1982, and on January 4, 1983;
39(k) does any act that is calculated to prejudice the discipline
or good order of the institution, allegedly having occurred on
December 31, 1982;
He pleaded guilty to the earlier charges under
both paragraphs 39(a) and 39(i), and not guilty to
all of the others.
All of the charges against him were laid as
"flagrant or serious", for which the punishment is
defined by section 38 of the Regulations as
follows:
38....
(4) The punishment that may be ordered for a flagrant or
serious disciplinary offence shall consist of one or more of the
following:
(a) forfeiture of statutory remission or earned remission or
both;
(b) dissociation for a period not exceeding thirty days;
(c) loss of privileges.
The appellant was not eligible for statutory remis
sion but he was subject to loss of all of the earned
remission that stood to his credit, viz. 267 days.
The appellant obtained Legal Aid counsel and
applied to have counsel represent him at the hear
ing of the charges. The Presiding Officer of the
Inmate Disciplinary Court of the institution (the
respondent herein), who was a practising barrister
and solicitor, denied the appellant's request for
counsel on April 11, 1983. The appellant then
sought an order from the Trial Division prohibit
ing the respondent from continuing or concluding
the hearing of the charges in the absence of legal
counsel. That order was refused by the Trial Divi
sion on June 7, 1983.
A peculiarity of this case is that because the
appellant was due to be released from prison on
mandatory supervision two days later and in the
absence of any statutory authorization to try him
for disciplinary offences committed in prison after
his release, the Presiding Officer presumed to pro
ceed immediately to hearing, conviction and sen
tence, despite having notice of appeal to this
Court. We were informed by counsel for the appel
lant that his client was found guilty on six of the
seven counts (including the two on which he plead
ed guilty) and was sentenced to forfeiture of 70
days of his earned remission.
Given that this action by the Disciplinary Court
rendered ineffective the order of prohibition
sought and that the appellant's sentence has since
expired (although he is in prison again on a convic
tion for a subsequent offence), the Court exercised
its discretion to hear the matter on its merits only
because both parties urged upon us the importance
of a decision on the matter by this Court, especial
ly in the light of the new exigencies of the Charter.
The case law applicable for the most part ante
dates the Charter. After holding in Martineau
(No. 1) (Martineau et al. v. Matsqui Institution
Inmate Disciplinary Board, [1978] 1 S.C.R. 118)
that prison disciplinary proceedings could not be
reviewed under section 28 of the Federal Court
Act since they are administrative in character and
so not required by law to be determined on a
judicial or quasi-judicial basis, the Supreme Court
of Canada established in Martineau (No. 2)
(Martineau v. Matsqui Institution Disciplinary
Board, [ 1980] 1 S.C.R. 602), an action under
section 18 of the same Act, that an inmate discipli
nary board is nevertheless subject to a duty of
fairness. It did not have reason, on the facts of
Martineau (No. 2), to decide on the implications
of this duty for legal representation.
The earlier attitude of the English courts to this
issue was put forth by Lord Denning M.R. in
Fraser v. Mudge, [1975] 1 W.L.R. 1132 (Eng.
C.A.), at pages 1133-1134:
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. They must be heard and decided
speedily. 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.
A similar attitude was expressed in this country
by Cattanach J. in Re Davidson and Disciplinary
Board of Prison for Women et al. (1981), 61
C.C.C. (2d) 520 (F.C.T.D.), at page 534:
The very nature of a prison is such prison officers must make
immediate decisions, the disobedience of which by inmates will
necessarily result in charges being laid and restrictions and
penalties imposed. This is essential and must be made as part of
the routine process. Disobedience to legitimate orders in this
regard must be followed by swift and certain punishment. If the
powers and authority of the prison officers are curbed and the
deterrent of speedy and sure punishment removed the conse
quences will be chaotic.
For my part I find it difficult to envision circumstances
where, upon a trial for breach of military or prison discipline,
the presence of counsel is essential to ensure that the duty of
fairness is observed.
However, Cattanach J. held that the presiding
officer of a disciplinary tribunal has the discretion
to allow an inmate representation by legal counsel,
and that his failure actually to exercise that discre
tion, under the influence of Correctional Service
guidelines refusing legal representation at all such
hearings, amounted to a denial of natural justice.
In the result, this coincided with the approach
taken by Nitikman D.J. in Minott v. Presiding
Officer of the Inmate Disciplinary Court of Stony
Mountain Penitentiary et al., [1982] 1 F.C. 322
(T.D.). Subsequently, Addy J. reiterated in
Blanchard v. Disciplinary Board of Millhaven
Institution et al., [1983] 1 F.C. 309, at pages
311-312; 69 C.C.C. (2d) 171 (T.D.), at page 174,
that counsel may be present only at the discretion
of the presiding officer:
There is no right to counsel; whether counsel representing the
prisoner is to be allowed to be present is a matter for the
discretion of the chairman conducting the enquiry. Occasions
might possibly arise where matters are so complicated from a
legal standpoint that the duty to act fairly might require the
presence of counsel, but I cannot at the moment envisage such
a situation, especially where the person conducting the enquiry
is a legally qualified barrister and solicitor, as in the present
case. Furthermore, the questions arising in these disciplinary
proceedings are, generally, of a factual nature.
These Canadian cases take the position that at
common law a presiding officer's duty to act fairly
may on particular facts require representation by
legal counsel but does not necessarily do so, and
they describe the decision as to such representation
as being within the discretion of the presiding
officer. That this is where the law in England has
now arrived is indicated by Reg. v. Secretary of
State for the Home Department, Ex parte Tar-
rant, [1984] 2 W.L.R. 613 (Eng. Q.B.D.). It was
on the basis of the same understanding of the law
that the Trial Judge here found no basis for disa
greeing with the Presiding Officer's decision to
deny applicant's request to be represented by coun
sel at the hearing.
However, the appellant contends that two new
elements must be deemed to change the law as
hitherto applied: changes in the Penitentiary Act
and Regulations and the effect of section 7 of the
Charter.
On the first point the appellant argues that
when the Supreme Court of Canada rendered its
decisions in the two Martineau cases the discipli
nary system was a different one from that which
now exists. The then system had a disciplinary
board presided over by the institutional director or
his nominee, and it was only such a system, it is
contended, that Dickson J. (as he then was) had in
mind when he said in Martineau (No. 2), at page
629, that "An inmate disciplinary board is not a
court." The present provision for a presiding offi
cer drawn from outside the Correctional Service
and the formality of the procedure required are
sufficient to constitute a court. The procedural
guidelines in Commissioner's Directive No. 213
and Annex "A" to the Directive propose: a formal
charge similar in form to a criminal information;
24 hours written notice of the charge; a formal
plea; an opportunity for the inmate to make full
answer and defence to the charge, including the
introduction of relevant documents, the question
ing and cross-examination of witnesses through the
presiding officer, and the calling of witnesses; a
right on the inmate's part not to incriminate him
self; a decision based solely on the evidence
addressed at the hearing; the criminal-law stand
ard of guilt beyond a reasonable doubt; the record
ing of proceedings; and, upon a finding or admis
sion of guilt, the imposition of a sentence. The
appellant argues that the restrictions contained in
the Commissioner's Directives on cross-examina
tion and the calling of defence witnesses, which
might appear to point in the other direction, may
be legally impeachable.
It is true that the Report to Parliament by the
Sub-Committee on the Penitentiary System in
Canada, Minister of Supply and Services Canada,
1977, sparked a major re-examination from mid
1977 of justice within prison walls. Recommenda
tion 30 (ibid., at page 91) is particularly apposite:
Independent chairpersons are required immediately in all insti
tutions to preside over disciplinary hearings. Cases should be
proceeded with within 48 hours unless there is reasonable cause
for delay.
By early 1978 independent chairpersons were pre
siding over all disciplinary hearings in maximum
security institutions, and by the end of 1980 the
new system had also been extended to medium
security institutions.
In R. v. Mingo et al. (1982), 2 C.C.C. (3d) 23
(B.C.S.C.) where several accused who had been
convicted of offences in disciplinary proceedings
were subsequently charged with closely-related
offences under the Criminal Code [R.S.C. 1970, c.
C-34], a British Columbia Court held that since
the disciplinary proceedings were administrative
acts, there was no Charter violation by the subse
quent criminal proceedings. Toy J. rejected (at
page 34) the same argument made by the appel
lant here, viz. that changes in the Regulations
since Martineau (No. 2) created a court in the
traditional sense:
Other than the change in name the function performed by the
disciplinary court is precisely what the institutional head his
torically could do and still is entitled to do, namely, adjudicate
and order punishment for disciplinary offences. It is still a
private or domestic court exclusively maintained to adjudicate
upon inmates' disciplinary offences and to order the restricted
punishments of loss of earned remission and punitive
segregation.
To the contrary on the status of a disciplinary
court is In re Prisons Act and in re Pollard et al.,
February 20, 1980, unreported, file no. 1355, 1979
(S.C. Nfld.), where the conviction of two warders
for breach of prison regulations was quashed
because, inter alia, they were denied representa
tion at their trial. Goodridge J. held that the forum
in question was a statutory tribunal exercising a
judicial function (at pages 19-20):
Unlike a domestic tribunal to whose jurisdiction the parties
appearing before it have submitted by being members of the
association creating it, a statutory tribunal exercising a judicial
function is established by law and without the consent of the
parties whom it may concern.
Before such tribunals the right to representation is essential.
Goodridge J. indicated in obiter dicta (at page 30)
that the same result would also apply to the disci
plining of prisoners.
Although in my opinion an interpretation of the
procedural changes as merely nominal is a less
than adequate one, it would on the other hand be
excessive to view them as having already created a
court. There is no prosecution in the strict sense
and no prosecuting officer. The presiding officer,
who is assisted by two correctional officers whose
unusual function was rationalized by Cattanach J.
in Re Davidson et al., supra, at page 535, as being
like that of "assessors in an Admiralty action
before the Federal Court of Canada", has some
thing of an inquisitorial role. Certainly, the whole
procedure lacks a fully adversarial character.
Even more, the new procedural structure is still
incomplete in its legality. Regulation 38.1, sup
ported by subsection 24.1(2) of the Penitentiary
Act, authorizes the appointment of presiding offi
cers for disciplinary courts, but their use remains
optional. The procedures at hearings and even the
requirement that serious or flagrant offences
should be tried by independent chairpersons are
found only in Commissioner's Directives, which
were held in Martineau (No. 1) not to have the
status of law. In the result, while a new legal
system in prison disciplinary hearings may be in
the process of evolution, it has not yet emerged.
Legally speaking, the only advance has been to a
fairer version of the same basic model considered
by the Supreme Court in the two Martineau cases.
The Canadian Charter of Rights and Freedoms
does, however, introduce a distinctly new perspec
tive: where it does not create new rights, it may
nevertheless enhance existing ones.
The appellant abandoned before this Court his
argument based on paragraph 11(d) of the Chart
er and relied solely on section 7, which 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.
As this Court established in The Queen, et al. v.
Operation Dismantle Inc., et al., [1983] 1 F.C.
745 (C.A.) only a deprivation of life, liberty or
security of the person that results from a breach of
the principles of fundamental justice is contrary to
this section. The only right which is in question
here is that to liberty; "security of the person"
does not appear to add anything to "liberty" in the
present context.
What are the principles of fundamental justice
which protect the right to liberty? In Joplin v.
Chief Constable of Vancouver Police Dept.,
[1983] 2 W.W.R. 52 (B.C.S.C.), at page 58
McEachern C.J.S.C. said "fundamental justice is
justice and fairness, nothing more and nothing
less." On this basis he held that a police officer
who was denied counsel at a disciplinary hearing
under the B.C. Police (Discipline) Regulations was
denied fundamental justice, but he felt that the
result would be the same under the general law as
under the Charter—and as to the general law he
cited the decision by Addy J. in a similar case
involving the R.C.M.P. before the coming into
effect of the Charter (In re Husted and in re the
Royal Canadian Mounted Police Act, [1981] 2
F.C. 791; 58 C.C.C. (2d) 156 (T.D.)).
Section 7 was recently applied in two cases
involving parole proceedings. In R. v. Cadeddu
(1982), 3 C.R.R. 312 (Ont. H.C.) Potts J. held
that section 7 required an in-person hearing for a
revocation of parole and in Re Swan and The
Queen (1983), 7 C.C.C. (3d) 130 (B.C.S.C.),
McEachern C.J.S.C. followed Cadeddu. Com
menting on section 7 (as well as section 9) of the
Charter some months after his earlier reflection in
Joplin, McEachern C.J.S.C. stated (at page 141):
These provisions impatiently await analysis by appellate
authority, but they seem to me to tilt the scales strongly
towards the requirements of natural justice rather than just
procedural fairness in the post-revocation process.
Cadeddu was also followed by Smith J. in R. v.
Nunery (1983), 5 C.R.R. 69 (Ont. H.C.) on
almost identical facts. In addition, Decary J. in
Collin v. Lussier, [1983] 1 F.C. 218; 6 C.R.R. 89
(T.D.) applied section 7 to an inmate transfer
within the penitentiary system.
Other judicial statements besides those of
McEachern C.J.S.C. in Re Swan also support
natural justice as the standard under section 7:
McLellan N.S. Co. Ct. J. in R. v. Sibley (1982), 4
C.R.R. 166, at page 168 ("I see little difference
between the principles of `fundamental justice' and
the principles of `natural justice' "); Durand J. in
Re Jamieson and The Queen (1982), 70 C.C.C.
(2d) 430 (Que. S.C.), at page 438 ("It is also
established that the words `fundamental justice—
justice fondamentale' are synonymous with 'natu-
ral justice—justice naturelle' "); McCarthy, Prov.
J. in R. v. Holman (1982), 28 C.R. (3d) 378 (B.C.
Prov. Ct.), at page 388. ("If `fundamental justice'
means `natural justice' (as I believe it to mean) ...").
The standard applied by the majority of the
Supreme Court of Canada in both Martineau
cases to prison disciplinary proceedings before the
Charter was the lesser standard of procedural
fairness. However, Dickson J. for the three concur
ring Judges in Martineau (No. 2) at pages 630-
631, urged a broader approach:
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 (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.
The surest footing on which to stand in the
instant case would appear to be this common
ground between natural justice as applied to quasi-
judicial proceedings and fairness as applied to
administrative action that Dickson J. draws atten
tion to in the passage just quoted. The underlying
question in both cases thus becomes whether the
tribunal acted fairly. On this approach, the content
of the principles of fundamental justice may vary
somewhat according to circumstances.
Section 7 in fact makes no distinction between
administrative and quasi-judicial proceedings. The
only standard it enunciates is the right not to be
deprived of the right to liberty "except in accord
ance with the principles of fundamental justice".
While one can agree with Scollin J. in Re Balder-
stone et al. and The Queen (1982), 2 C.C.C. (3d)
37 (Man. Q.B.), at page 46 that "The Charter did
not repeal yesterday and did not abolish reality",
one may not conclude from this that the Charter
merely affirms the legal status quo in any particu
lar area. There is no a priori presumption as to
which legal doctrines are to be preserved, which to
be modified, and which to be abrogated. The only
guide to judicial interpretation is the Charter
itself. Estey J. put it this way for the Supreme
Court in Law Society of Upper Canada v. Ska-
pinker, [1984] 1 S.C.R. 357, at pages 366-367; 8
C.R.R. 193, at pages 200-201:
There are some simple but important considerations which
guide a Court in construing the Charter, and which are more
sharply focussed and discernible than in the case of the federal
Bill of Rights. The Charter comes from neither level of the
legislative branches of government but from the Constitution
itself. It is part of the fabric of Canadian law. Indeed, it "is the
supreme law of Canada": Constitution Act, 1982, s. 52. It
cannot be readily amended. The fine and constant adjustment
process of these constitutional provisions is left by a tradition of
necessity to the judicial branch. Flexibility must be balanced
with certainty. The future must, to the extent foreseeably
possible, be accommodated in the present. The Charter is
designed and adopted to guide and serve the Canadian commu
nity for a long time. Narrow and technical interpretation, if not
modulated by a sense of the unknowns of the future, can stunt
the growth of the law and hence the community it serves. All
this has long been with us in the process of developing the
institutions of government under the B.N.A. Act, 1867 (now the
Constitution Act, 1867). With the Constitution Act, 1982
comes a new dimension, a new yardstick of reconciliation
between the individual and the community and their respective
rights, a dimension which, like the balance of the Constitution,
remains to be interpreted and applied by the Court. [Emphasis
added.]
The respondent maintains that distinctions
should be drawn among cases involving the loss of
one's absolute liberty, those involving the loss of
conditional liberty as in parole revocation, and
those like the one at bar involving the potential
loss of anticipated conditional liberty, where the
expected remission is subject to good conduct.
The respondent did not argue that there was no
liberty interest at stake in the instant case, but
only that there was none such as to attract the
application of section 7 of the Charter in reference
to the right to counsel: even after an inmate's
release from penitentiary on mandatory supervi
sion the original sentence still survives and his
conditional liberty is always liable to be lost; in
this respect earned remission differs from the now
abolished status of statutory remission, and does
not, if lost, involve a loss of absolute liberty.
The appellant nevertheless replies that, since an
inmate's earned remission is computed on a
monthly basis, it cannot, once computed, be
revoked except for cause. It is a firm right subject
to a condition subsequent, as it were, and could be
lost only on the happening of the condition. In all
other circumstances it is a matured right.
Admittedly, the liberty interest of an inmate in
relation to revocation of earned remission is not
unconditional. However, the question this Court
has to decide is whether it is sufficiently analogous
to full liberty that it ought to be protected by
section 7.
In R. v. Cadeddu, supra, at page 323, where a
parolee had not been allowed an in-person hearing
before revocation, Potts J. found that section 7 had
been violated:
I turn now to consider whether the applicant's rights under s.
7 of the Charter have been violated. It appears to me that there
are two questions that must be addressed: was the applicant at
liberty while on parole, and if so, was he deprived of liberty
except in accordance with the principles of fundamental
justice?
My answer to the first question is: yes, the applicant was at
liberty during his parole. Although it is clear law that parole is
a privilege which an inmate cannot claim as of right; that while
on parole he is serving his sentence of imprisonment; and that a
decision to grant or revoke parole is a decision as to where an
inmate shall serve his sentence none of these considerations, in
my view, are helpful in assessing what was the applicant's
condition during his parole. His condition, obviously, was that
he had a conditional or qualified liberty to be at large during
the term of his imprisonment. Although it was a qualified
liberty which might be revoked, that, in my view, is sufficient to
attract the constitutionally mandated protections of s. 7 of the
Charter. Accordingly, the Board, if it was not to violate the
applicant's rights, could revoke the applicant's parole only in
accordance with the principles of fundamental justice.
In Duke v. The Queen, [1972] S.C.R. 917, 28 D.L.R. (3d)
129, 7 C.C.C. (2d) 474, Fauteux C.J.C. considered the words
"principles of fundamental justice" in the context of s. 2(e) of
the Canadian Bill of Rights. At p. 479 C.C.C. he said:
Without attempting to formulate any final definition of those
words, I would take them to mean, generally, that the
tribunal which adjudicates upon his right must act fairly in
good faith, without bias and in a judicial temper, and must
give to him the opportunity to adequately state his case.
This, to me, looks very much like a definition of natural justice.
Considering that the rights protected by s. 7 are the most
important of all those enumerated in the Charter, that depriva
tion of those rights has the most severe consequences upon an
individual, and that the Charter establishes a constitutionally
mandated enclave for protection of rights, into which govern
ment intrudes at its peril, I am of the view that the applicant
could not be lawfully deprived of his liberty without being given
the opportunity for an in-person hearing before his parole was
revoked.
The words quoted from Fauteux C.J.C. in the
Duke case are of particular importance because
they indicate that the underlying principle is the
necessity of giving an accused "the opportunity to
adequately state his case".
The interpretation by the U.S. Supreme Court
of the requirement of procedural due process
under the Fifth Amendment to the U.S. Constitu
tion, made applicable to the States by the Four
teenth Amendment, is, I believe, of some assist
ance. In Wolff v. McDonnell, 418 U.S. 539
(1974), at pages 556-557 (subsequently reaffirmed
in Baxter v. Palmigiano, 425 U.S. 308 (1976)) the
Court (per White J.) found for a constitutional
protection for personal liberty, even when as, in
the case of remission of punishment, the liberty
itself is a statutory creation:
We also reject the assertion of the State that whatever may
be true of the Due Process Clause in general or of other rights
protected by that Clause against state infringement, the inter
est of prisoners in disciplinary procedures is not included in that
"liberty" protected by the Fourteenth Amendment. It is true
that the Constitution itself does not guarantee good-time credit
for satisfactory behavior while in prison. But here the State
itself has not only provided a statutory right to good time but
also specifies that it is to be forfeited only for serious misbehav
ior. Nebraska may have the authority to create, or not, a right
to a shortened prison sentence through the accumulation of
credits for good behavior, and it is true that the Due Process
Clause does not require a hearing "in every conceivable case of
government impairment of private interest." Cafeteria Workers
v. McElroy, 367 U.S. 886, 894 (1961). But the State having
created the right to good time and itself recognizing that its
deprivation is a sanction authorized for major misconduct, the
prisoner's interest has real substance and is sufficiently
embraced within Fourteenth Amendment "liberty" to entitle
him to those minimum procedures appropriate under the cir
cumstances and required by the Due Process Clause to ensure
that the state-created right is not arbitrarily abrogated.
It is true that the Court came to the conclusion
that "At this stage of the development of these
procedures we are not prepared to hold that
inmates have a right to either retained or appoint
ed counsel in disciplinary proceedings" (page 570),
but it did so on the basis of material facts which
have no parallel in Canada (pages 560-561):
For the prison inmate, the deprivation of good time is not the
same immediate disaster that the revocation of parole is for the
parolee. The deprivation, very likely, does not then and there
work any change in the conditions of his liberty. It can post
pone the date of eligibility for parole and extend the maximum
term to be served, but it is not certain to do so, for good time
may be restored. Even if not restored, it cannot be said with
certainty that the actual date of parole will be affected; and if
parole occurs, the extension of the maximum term resulting
from loss of good time may affect only the termination of
parole, and it may not even do that.
Unlike good time credits which can be restored,
earned remission under the Canadian system, if
forfeited, cannot be re-earned. Equally important,
under our system of mandatory supervision there
are precise release dates, nowhere more strikingly
apparent than in the instant case, where the immi
nence of the release date led the Presiding Officer
to precipitous action.
The passage just quoted would suggest that a
more exact parallel to the Canadian situation
might be found in American case law on parole
revocation, but unfortunately the leading case,
Morrissey v. Brewer, 408 U.S. 471 (1972), is
ambiguous on the right to counsel. Burger C.J. for
the majority leaves the question open (page 489):
We do not reach or decide the question whether the parolee
is entitled to the assistance of retained counsel or to appointed
counsel if he is indigent.
But Brennan J., for the concurring minority, quali
fied that reservation (page 491):
The Court, however, states that it does not now decide
whether the parolee is also entitled at each hearing to the
assistance of retained counsel or of appointed counsel if he is
indigent. Goldberg v. Kelly, 397 U.S. 254 (1970), nonetheless
plainly dictates that he at least "must be allowed to retain an
attorney if he so desires." Id., at 270. As the Court said there,
"Counsel can help delineate the issues, present the factual
contentions in an orderly manner, conduct cross-examination,
and generally safeguard the interests of" his client. Id., at
270-271. The only question open under our precedents is
whether counsel must be furnished the parolee if he is indigent.
The subsequent case of Gagnon v. Scarpelli, 411
U.S. 778 (1973), focussed on the obligation to
provide counsel. The Court held that although the
State is not constitutionally obliged to provide
counsel in all cases, it should do so where the
indigent probationer or parolee may have difficul
ty in presenting his version of disputed facts with
out the examination or cross-examination of wit
nesses or the presentation of complicated
documentary evidence. However, the Court went
as far as to prescribe when counsel should be
provided (per Powell J. at page 790):
Presumptively, it may be said that counsel should be provided
in cases where, after being informed of his right to request
counsel, the probationer or parolee makes such a request, based
on a timely and colorable claim (i) that he has not committed
the alleged violation of the conditions upon which he is at
liberty; or (ii) that, even if the violation is a matter of public
record or is uncontested, there are substantial reasons which
justified or mitigated the violation and make revocation inap
propriate, and that the reasons are complex or otherwise dif
ficult to develop or present.
On balance, I believe the American precedents
are helpful, particularly in that they clearly affirm
that the liberty of prison inmates is protected by
the constitutional guarantee of due process, and in
that they appear to suggest that an absolute depri
vation of remission of punishment could take place
only in a proceeding characterized by the right to
retain counsel.
What both the Canadian and the American
cases indicate is that there are degrees of liberty,
all protected in some way by a rule of due process
or natural justice or fundamental justice, but not
in the same way. What there must always be is an
opportunity to state a case which is adequate for
fundamental justice in the circumstances. In other
words, there is a sliding standard of adequacy
which can be defined only in reference to the
particular degree of liberty at stake and the par
ticular procedural safeguard in question. The reso
lution may involve the balancing of competing
interests. Here the penitentiary setting is of capital
importance in sorting out the interests in
competition.
Penitentiaries are not nice places for nice people.
They are rather institutions of incarceration for
the confinement of for the most part crime-hard
ened and anti-social men and women, serving sen
tences of more than two years. Reformation fortu
nately remains an aspiration of the prison system,
but the prevalent environment is sadly reminiscent
of Hobbes' primitive state of nature before the
advent of the Leviathan, where human life was
said to be solitary, poor, nasty, brutish and short.
In such an atmosphere of discord and hatred,
minor sparks can set off major conflagrations of
the most incendiary sort. Order is both more
necessary and more fragile than in even military
and police contexts, and its restoration, when dis
turbed, becomes a matter of frightening
immediacy.
It would be an ill-informed court that was not
aware of the necessity for immediate response by
prison authorities to breaches of prison order and
it would be a rash one that would deny them the
means to react effectively.
But not every feature of present disciplinary
practice is objectively necessary for immediate
disciplinary purposes. The mere convenience of the
authorities will serve as no justification; as Lord
Atkin put it in General Medical Council v. Spack-
man, [1943] A.C. 627 (H.L.), at page 638, "Con-
venience and justice are often not on speaking
terms." Even what may be necessary but neverthe
less delayable cannot be given priority. All that is
not immediately necessary must certainly yield to
the fullest exigencies of liberty.
On the basis of these criteria of necessity and
immediacy, on-the-spot administrative dissociation
may arguably be required to segregate inmates
involved, e.g., in hostage-taking, but punitive dis
sociation as a consequence of a disciplinary court
has much less immediate necessity, and revocation
of earned remission seems not to be immediately
necessary at all.
It is apparent that the demands of liberty
inversely coincide with those of the institution. It is
not necessary for the disposition of the present
case to decide on the application of section 7 to
punitive dissociation. It is sufficient for the present
that revocation of earned remission was a possible
punishment—although in fact here it was also the
actual punishment and not merely a possible one.
In such circumstances penitentiary inmates are
entitled not to be deprived of their right to liberty
except in accordance with the principles of funda
mental justice.
What is there in the right to counsel which
should make it required by fundamental justice?
Lord Denning described its rationale in Pett v.
Greyhound Racing Association, Ltd., [1968] 2 All
E.R. 545 (C.A.), at page 549, in a licence revoca
tion hearing:
It is not every man who has the ability to defend himself on his
own. He cannot bring out the points in his own favour or the
weaknesses in the other side. He may be tongue-tied or nervous,
confused or wanting intelligence. He cannot examine or cross-
examine witnesses .... I should have thought, therefore, that
when a man's reputation or livelihood is at stake, he not only
has a right to speak by his own mouth. He has also a right to
speak by counsel or solicitor.
McEachern C.J.S.C. goes even further in Joplin v.
Chief Constable of Vancouver Police Dept., supra,
at pages 67-68, in describing the right to counsel
as "the most important safeguard in the legal
process" and adds that "justice and fairness
cannot tolerate a procedure where a layman is
expected to deal with legal concepts which are
strange to him, and at the same time advise him
self objectively".
In Nicholson v. Haldimand-Norfolk Regional
Board of Commissioners of Police, [1979] 1
S.C.R. 311, at pages 327-328, in holding that a
police constable on probation was entitled to fair
treatment on dismissal, Laskin C.J.C., for the
majority, accepted a statement of Lord Denning
with respect to the fairness required of an adminis
trative agency with no judicial functions in Sel-
varajan v. Race Relations Board, [1976] 1 All
E.R. 12 (C.A.), at page 19:
The fundamental rule is that, if a person may be subjected to
pains or penalties, or be exposed to prosecution or proceedings,
or deprived of remedies or redress, or in some such way
adversely affected by the investigation and report, then he
should be told the case made against him and be afforded a fair
opportunity of answering it.
It is this guarantee of being given the case against
him and being afforded a fair opportunity to
answer it that, borrowing the language of Fauteux
C.J.C., I have already referred to as an adequate
opportunity to state a case. Before the Charter,
this was not considered to embrace representation
by counsel. The question that must now be asked is
whether the implications of an "adequate oppor
tunity" to answer a charge have been enhanced by
the Charter.
The American courts have been specific as to
the requirements of due process. In Morrissey v.
Brewer, supra, at page 489, Burger C.J. enumer
ated the minimum requirements of due process on
parole hearings as follows: (a) written notice of the
claimed violations; (b) disclosure of evidence
against him; (c) opportunity to be heard in person
and to present witnesses and documentary evi
dence; (d) confrontation and cross-examination of
adverse witnesses, unless the hearing officer finds
good cause to the contrary; (e) a neutral and
detached hearing body; and (f) a written statement
by the factfinders as to the evidence relied on and
the reasons for their decision. As I have noted
above, the majority in Morrissey declared that it
made no decision about counsel, and it also speci
fied that the process should be flexible enough to
consider evidence that would not be admissible in
an adversary criminal trial.
The right to counsel would, a fortiori, include
the right to confront and cross-examine adverse
witnesses, and so presents the greatest challenge to
institutional interests, particularly that of quick
punishment for infractions. It also bespeaks the
fulness of the adversary process, subject to a
broader rule of admissibility of evidence than in
the criminal courts. It is also the only right in
question, not only because it is the subject of the
challenge here but also because it is the only
significant adversarial element that is not already
available to inmates.
It may be that a recognition of the right to
counsel would lead inevitably to the introduction
of a prosecuting officer, the complete disappear
ance of any inquisitorial aspect to the process and
the full acceptance of an adversarial system. I
accept this as an accurate estimate of the likely
consequences, but not as an argument in terrorem.
If it is what fundamental justice requires, it is a
step forward rather than a limitation.
As I see it, section 7 enhances the previous
requirement of an adequate opportunity of answer
ing a charge, but whether it necessitates represen
tation by counsel in any set of circumstances can
be determined only by a full analysis of the
circumstances.
Webster J. in the Tarrant case, supra, at pages
635-637, enumerated six considerations to be
taken into account in relation to the right to
counsel: (1) the seriousness of the charge and of
the potential penalty; (2) whether any points of
law are likely to arise; (3) the capacity of a
particular prisoner to present his own case; (4)
procedural difficulties; (5) the need for reasonable
speed in adjudication; (6) the need for fairness as
between prisoners and as between prisoners and
prison officers.
In the Tarrant case, although the Court was
prepared to hold that no board of visitors, properly
directing itself, could have reasonably decided not
to allow the prisoners in question legal representa
tion in some of the circumstances reviewed there,
it nevertheless asserted that there is a discretion in
boards of visitors as to whether to grant requests
for counsel. If this means, as applied to a Canadi-
an context, that a presiding officer has the author
ity to make up his mind as to whether to allow
counsel, I can accept it as far as it goes. But if it is
understood to mean that his decision on the
matter, presumably as one made on the facts, is an
adjudication free from subsequent judicial review,
then it does not in my opinion meet the require
ments of section 7. Nor incidentally does it square
with the action of the Court in Tarrant itself,
where in the result five of the board of visitors'
awards were quashed.
What section 7 requires is that an inmate be
allowed counsel when to deny his request would
infringe his right to fundamental justice. The
existence of the right admittedly depends on the
facts. But the right, when it exists, is not discre
tionary, in the sense that the presiding officer has
a discretion to disallow it. The presiding officer's
authority cannot, in my view, prevent a reviewing
court from looking at the facts and substituting its
own view if it is persuaded by them that the case is
one in which counsel should be allowed in order to
afford the inmate the rights guaranteed by section
7. The threshold of appellate intervention is that
the appellate court must be clearly satisfied that
the exercise of the discretion was wrong, as Lord
Wright insisted in both Evans v. Bartlam, [1937]
A.C. 473 (H.L.), at page 486, and Charles Osen-
ton & Co. v. Johnston, [1942] A.C. 130 (H.L.), at
page 148.
In the present case, the reasons for decision of
the Presiding Officer on the issue of counsel were
expressed as follows [(1983), 8 C.C.C. (3d) 557, at
pages 560-562]:
The submission of Diane Dzydz, counsel for Howard, basi
cally presents three (3) arguments on his behalf, namely:
1. That Section 7 of the Canadian Charter of Rights and
Freedoms, hereinafter referred to as the Charter, guarantees
the right to be represented by counsel;
2. That in the alternative, S. 11(d) of the Charter provides for
such a right because Howard has been "charged with an
offence", and;
3. That in the event that the first two (2) arguments fail, this is
an appropriate case to exercise discretion in favour of entitle
ment to counsel representation.
Counsel for the Department of Justice, Brian H. Hay,
argues:
1. That Section 7 does not add to the rights specifically
provided for in Section 11 of the Charter;
2. That even if Section 7 does add rights and if "principles of
fundamental justice" are equated with "natural justice" the
latter "do not guarantee the right to legal counsel", and;
3. That S. 11(d) does not alter Canadian law with respect to an
inmate's right to counsel at Inmate Disciplinary Board
hearings.
The Department of Justice does not express opinion as to
whether any facts exist in the instant case which should sway
my exercise of discretion to grant Howard's application for
counsel representation.
In dealing with the Section 7 argument submitted by Diane
Dzydz, I express the opinion that Section 7 does not create a
new wave of rights nor does it elevate any greater degree of
responsibility by an administrative tribunal such as the Inmate
Disciplinary Board is.
In Re Jamieson and The Queen, an unreported decision
dated September 24, 1982 of the Quebec Supreme [sic] Court,
it was held that "fundamental justice" is to be equated with
natural justice. The unreported decision of R vs Holman ema
nating from the British Columbia Provincial Judges Court held
that the phrase in question deals only with due process and
incorporates therein the principles of natural justice.
Ms. Dzydz suggests that because habeas corpus in Re Cardi
nal and Oswald and The Queen (1982), 67 C.C.C. (2d) 252
(BCCA), is available to release an inmate from solitary con-
finement to the general inmate population, combined with
statements of Fauteux, C. J. in Duke v. R. (1972), 28 D.L.R.
(3d) 129 (S.C.C.), that these developments have elevated the
rights of an inmate to include the right to counsel.
With respect I disagree, In the absence of decisions to the
contrary; I am bound by Jamieson and Holman, supra, and
have to accept that "fundamental principles of justice" is to be
equated with natural justice, and in the present context, natural
justice rules have not provided a right to counsel. In this
connection see also the case of Davidson and Disciplinary
Board of Prison for Women et al (1981), 61 C.C.C. (2d) 520
(F.C.T.D.), a decision of Justice Cattanach which in my opin
ion sets forth the principles by which Inmate Disciplinary
Board hearings are to be conducted.
Several American cases were cited by Ms. Dzydz in support
of equating "principles of fundamental justice" with the Ameri-
can concept of "due process". However, these cases do not
establish the right to be represented by counsel. Indeed, the
United States Supreme Court in Baxter v. Palmigiaro, 425
U.S. 308 (1976), stated that inmates do not have the right to
counsel at disciplinary hearings.
The last matter therefore to be dealt with is whether or not
representation by counsel ought to be allowed in order to ensure
a fair hearing.
With respect I have not been persuaded that there exist any
circumstances in this particular case which preclude the possi
bility of a fair hearing in the absence of counsel. Therefore I
exercise my discretion in denying the application of Howard to
be represented by counsel at the hearing. [Emphasis added.]
I must respectfully conclude that the Presiding
Officer, in the words I emphasize, has misunder
stood the effect of the Charter. The Charter does
modify the previous understanding of the law by
an enhancement of the fundamental principle of
justice relating to an adequate opportunity to
answer, and in doing so it does affect even purely
administrative proceedings.
One of the charges against the appellant here,
that of conduct "calculated to prejudice the disci
pline or good order of the institution" is a catch-all
charge of such vagueness that the need for counsel
to clarify the facts and to challenge the arguments
is strikingly apparent, but counsel is hardly less
necessary to deal with charges such as being "inde-
cent, disrespectful or threatening" in "actions, lan
guage or writing", or possessing "contraband",
which is defined as anything that an inmate is not
permitted to have in his possession [Penitentiary
Service Regulations, s. 2]. Even the charges of
disobeying a lawful order or threatening to assault
another person can easily give rise to legal issues of
some complexity. On the two guilty pleas counsel
may have been necessary to plead exonerating
factors.
I disapprove particularly of the suggestion in the
Tarrant case that one of the relevant consider
ations should be the capacity of a particular pris
oner to present his own case. With respect, no
presiding officer could be in a position, at the
outset of disciplinary proceedings, to make a sum
mary judgment of such a kind before a prisoner
had been heard by him.
In sum, other than, perhaps, in fact situations of
unique simplicity, I cannot imagine cases where a
possible forfeiture of earned remission would not
bring into play the necessity for counsel. Indeed, in
my view the probability that counsel will be
required for an adequate hearing on charges with
such consequences is so strong as to amount effec
tively to a presumption in favour of counsel, a
departure from which a presiding officer would
have to justify. The right-enhancing effect of the
Charter thus greatly increases the ambit of protec
tion afforded.
Here the decision in question reveals both a
faulty understanding of the law and an insufficient
explanation of how in this situation there could be
an adequate hearing without counsel. I therefore
have no difficulty in concluding that the appellant
was deprived of the protection of a fundamental
principle of justice, in violation of section 7 of the
Charter.
Since the inmate's counsel was ready and wait
ing to be recognized, there was no need here to
insist on the necessity of reasonable and timely
arrangements, as McEachern C.J.S.C. found
necessary in Joplin.
It is also unnecessary for the present case to
determine what limits on section 7 rights, if any,
may be justified under the provisions of section 1
of the Charter. The appellant having established at
least a prima facie violation of his right to liberty
under section 7, the onus then lies on the Crown
under section 1 to demonstrate the existence of
reasonable limits prescribed by law that can be
demonstrably justified in a free and democratic
society: Quebec Association of Protestant School
Boards et al. v. Attorney General of Quebec et al.
(No. 2) (1982), 140 D.L.R. (3d) 33 (Que. S.C.),
affirmed (1983), 1 D.L.R. (4th) 573 (Que. C.A.).
The respondent here did not attempt to meet this
onus.
I would therefore dispose of the case as proposed
by the Chief Justice.
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.