A-405-88
Arthur Trono, in his capacity as Deputy Commis
sioner, Pacific Region, Correctional Service
Canada (Appellant) (Respondent)
v.
Maya Singh Gill (Respondent) (Applicant)
A-406-88
Arthur Trono, in his capacity as Deputy Commis
sioner, Pacific Region, Correctional Service
Canada (Appellant) (Respondent)
v.
Jason Gallant (Respondent) (Applicant)
INDEXED AS: GALLANT V. CANADA (DEPUTY COMMISSIONER,
CORRECTIONAL SERVICE CANADA) (C.A.)
Court of Appeal, Pratte, Marceau and Desjardins
JJ.A.—Vancouver, October 24, 1988; Ottawa,
January 16, 1989.
Penitentiaries — Transfers — Appeal from trial judgment
quashing transfer of respondent from maximum security to
high maximum security institution on ground notice of reasons
for transfer too vague to allow respondent to answer —
Appellant refusing to disclose details of extortion scheme in
which respondent allegedly involved, to protect identities and
lives of informants — Whether rules of procedural fairness
complied with — Appeal allowed.
Constitutional law — Charter of Rights — Life, liberty and
security — Appellant transferring inmate to higher security
penitentiary based on information implicating him in extortion
scheme involving threats of violence and drugs — Refusing to
disclose details of information to protect informants — Trans
fer to institution where freedom more restricted constituting
deprivation of liberty — Whether breach of fundamental
justice as respondent not given opportunity to answer allega
tions against him.
Constitutional law — Charter of Rights — Limitation
clause — As result of confidential information implicating
inmate in extortion scheme involving threats of violence and
drug smuggling, appellant deciding to transfer him to higher
security institution — Details of information not divulged to
protect informants — Whether discretionary power to transfer
inmates given by Penitentiary Act justified in free and demo
cratic society.
Judicial review — Prerogative writs — Certiorari — Appeal
from trial judgment quashing transfer of inmate to higher
security institution on ground notice of transfer too vague to
allow inmate to refute allegations concerning involvement in
extortion scheme and drug smuggling — Particulars of alle
gations not disclosed to protect informants — Whether princi
ples of procedural fairness and fundamental justice complied
with — Appeal allowed.
This was an appeal from an order quashing the appellant's
decision to transfer the respondent from a maximum security to
a high maximum security penitentiary. The reason given in the
written notification of recommendation for transfer was that he
had been implicated in an extortion scheme, involving threats
of violence, and procuring and smuggling drugs into the institu
tion. Specific details of the scheme were not provided in order
to protect the identity of the informants, and to avoid exposing
them to death or physical harm. The Trial Division quashed the
decision to transfer the respondent on the basis that it violated
the principles of procedural fairness, in that the notice was too
vague to enable the respondent to answer the allegations
against him.
Held (Desjardins J.A. dissenting), the appeal should be
allowed.
Per Pratte J.A.: The requirements of procedural fairness vary
with the circumstances. Although the notice was inadequate to
allow the respondent to refute the case against him, as the
Warden felt that further information could endanger the infor
mants, the circumstances were sufficient to relieve the appel
lant from the obligation to give more detailed notice. Parlia
ment cannot have intended the Commissioner and his delegates
to be bound by the rules of procedural fairness even when the
application of those rules would endanger the lives of other
inmates.
The right to an opportunity to be heard is also guaranteed by
the principles of fundamental justice, which do not have the
same flexibility as the rules of natural justice and of fairness.
The decision to transfer the respondent was not made in
accordance with the principles of fundamental justice, since the
respondent was not given a real opportunity to answer the
allegation made against him. However, it was authorized by a
law that met the requirements of the Charter, section 1. The
Penitentiary Act gives the Commissioner and his delegates the
discretionary power to transfer an inmate from one institution
to another. In a free and democratic society, it is reasonable
and perhaps even necessary to confer such a wide discretion on
penitentiary authorities.
Per Marceau J.A. (concurring in the result): The question is
not whether the rule of confidentiality respecting informers can
relieve a decision-maker from his duty to act fairly, but wheth
er the rule can influence the content of that duty. The audi
alteram partem principle cannot be completely disregarded
except in a case of exceptional emergency and for a short
period of time. The extent and character of the participation of
the person whose rights may be affected should depend on the
circumstances of the case and the nature of the decision to be
made. The audi alteram partem principle did not require,
having regard to the nature of the problem the appellant was
facing and his responsibility toward those entrusted to his care,
that more information be given to the inmate before asking for
his representations.
It is wrong to put on the same level all administrative
decisions involving inmates in penitentiaries as such decisions
may affect different rights, privileges or interests, which may
lead to different standards of procedural safeguards. Such
decisions also differ as to their purposes and justifications. In
the case of a transfer decision made to ensure the orderly
administration of the institution, there is no justification for
requiring that the inmate be given as many particulars as in the
case of a decision imposing punishment for an offence. It is
merely the reasonableness and seriousness of the belief on
which the decision would be based which must be confirmed
and the participation of the person concerned must be meaning
ful for that purpose only.
Per Desjardins J.A. (dissenting): The transfer of an inmate
from one institution to another is a disciplinary measure, which
attracts the protection of procedural fairness under the Chart
er, section 7 and at common law. When a disciplinary measure
is taken, the burden is on the prison authorities to demonstrate
that the circumstances are such that they cannot inform the
respondent of the facts on which the charge is based. It was not
clear that the authorities had taken necessary measures to
minimize errors. Confidential information was used and the
notification claimed that the information was reliable without
explaining why it was so. When confidential information is
relied on by prison authorities so as to justify a disciplinary
measure, the record must contain some underlying factual
information from which the authorities can reasonably con
clude that the informer was credible or the information reliable.
Where cross-examination, confrontation or adequate informa
tion are not available, some measures must exist to ensure that
the investigation is a genuine fact-finding procedure verifying
the truth of wrongdoing and that the informers are not engaged
in a private vendetta. Reliability may be demonstrated, for
example, by an independent investigation or by corroborating
information from independent sources, neither of which were
shown to have been present here.
STATUTES AND REGULATIONS JUDICIALLY
CONSIDERED
Canada Evidence Act, R.S.C. 1970, c. E-10, s. 36.1 (as
enacted by S.C. 1980-8I-82-83, c. 111, s. 4, Schedule
III).
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.
Penitentiary Act, R.S.C. 1970, c. P-6.
CASES JUDICIALLY CONSIDERED
APPLIED:
Martineau v. Matsqui Institution Disciplinary Board,
[1980] 1 S.C.R. 602; Cardinal et al. v. Director of Kent
Institution, [1985] 2 S.C.R. 643; Bell Canada v. Com
munications Workers of Canada, [ 1976] I F.C. 459
(C.A.); Inuit Tapirisat of Canada v. The Right Honour-
able Jules Léger, [ 1979] I F.C. 710 (C.A.); The Queen v.
Randolph et al., [1966] S.C.R. 260; Howard v. Stony
Mountain Institution, [ 1984] 2 F.C. 642 (C.A.); R. v.
Lyons, [1987] 2 S.C.R 309.
DISTINGUISHED:
Demaria v. Regional Classification Board, [1987] I F.C.
74; (1986), 30 C.C.C. (3d) 55 (C.A.).
CONSIDERED:
Wolff v. McDonnell, 418 U.S. 539 (1974); Bell v. Wol
fish, 441 U.S. 520; 99 S Ct 1861; 60 L Ed 2d 447 (1979);
Solosky v. The Queen, [1980] 1 S.C.R. 821.
REFERRED TO:
Morin v. National Special Handling Unit Review Com
mittee et al., [1985] 2 S.C.R. 662; Re B.C. Motor
Vehicle Act, [1985] 2 S.C.R. 486; The Queen v. Miller,
[1985] 2 S.C.R. 613; Bisaillon v. Keable, [ 1983] 2
S.C.R. 60; 7 C.C.C. (3d) 385; Cadieux v. Director of
Mountain Institution, [1985] 1 F.C. 378; (1984), 13
C.C.C. (3d) 330 (T.D.); Dawson v. Smith, 719 F.2d 896
(C.A. III. 1983); certiorari denied 104 S Ct 1714; 80 L
Ed 2d 186 (1984); Lamoureux v. Superintendent, Mas-
sachusetts Correctional Inst., Walpole, 456 N.E.2d 1117
(Mass. 1983); Goble v. Wilson, 577 F.Supp 219 (Dist Ct.
Ky. 1983); Homer v. Morris, 684 P.2d 64 (Utah 1984);
State ex rel. Staples v. Department of Health and Social
Services, Div. of Corrections, 340 N.W.2d 194 (Wis.
1983).
COUNSEL:
George C. Carruthers for appellant (respond-
ent).
J. Peter Benning for respondent (applicant).
SOLICITORS:
Deputy Attorney General of Canada for
appellant (respondent).
Legal Services Society of British Columbia,
Abbotsford, B.C., for respondent (applicant).
The following are the reasons for judgment
rendered in English by
PRATTE J.A.: This is an appeal from an order of
the Trial Division [(1988), 62 C.R. (3d) 267;
(1988), 19 F.T.R. 150] (Dubé J.) quashing the
decision of the appellant transferring the respon
dent from a maximum security penal institution to
the high maximum security facility at Saskatche-
wan Penitentiary.
The respondent was serving four life sentences
of imprisonment for murder at the Kent Institu
tion. On December 11, 1987, he was placed in
administrative segregation and was advised orally
that he was suspected of involvement in extortion.
He was informed that more information would be
provided after an internal investigation into the
matter was completed. On January 19, 1988, he
received a document addressed to him and entitled
"Notification of Recommendation for Transfer to
a High Maximum Security Facility". That docu
ment was signed by the Warden, Pieter H.
DeVink; it read as follows:
To: Inmate J. GALLANT J- FPS 416430A
You are hereby notified that I intend to recommend your
involuntary transfer to Saskatchewan Penitentiary a High
Maximum security facility.
You may make any comments, in writing, within forty-eight
(48) hours and these shall be considered with my recommenda
tion.
REASONS: Information has been received that reliably indicates
that between January 1987 and December 1987, you were
involved in the extortion of money and personal property from
inmates, money from members of the community, threats of
violence to other persons, and the procuring of and importation
of drugs into Kent Institution. Specific detailed information
cannot be provided as it may jeopardize the safety of the
victims of your actions.
On January 20, 1988, the respondent was given
a copy of a lengthy report, entitled "Progress
Summary", recommending that he be transferred
to a high maximum security institution. On the
last page of that report, under the heading
"Appraisal", appeared the following paragraph:
On the surface, GALLANT has made considerable progress in
terms of improving his inter-personal skills through program
involvement and interaction with staff. However, behind the
scene it appears that he has chosen to be involved in conjunc
tion with inmate Meva [sic] Gill, FPS 700167A in an attempt
to extort funds from other inmates and community members
through threats of physical violence. Funds procured were then
used to purchase drugs which were smuggled into the
institution.
In response to the notice that he had received on
January 19, and to the allegations contained in the
progress report, the respondent sent two letters to
the Warden who, nevertheless, maintained his
recommendation. On January 27, 1988, that
recommendation was upheld by the appellant, as
Deputy Commissioner for the Pacific Region.
On February 1, 1988, the respondent filed a
notice of motion in the Trial Division [[1988] 3
F.C. 3611 seeking an order quashing the appel
lant's decision transferring him from Kent to Sas-
katchewan Penitentiary. According to the respon
dent, that decision had been made in violation of
the principles of procedural fairness since the
notice that had been given to him of the reasons
for his transfer was too vague to enable him to
answer the allegations against him. In opposition
to that motion, two affidavits were filed. One was
sworn by the appellant; its last two paragraphs
read as follows:
4. I also received a recommendation from Mr. De Vink that
Jason Gallant be transferred to a maximum high security
institution in Saskatchewan, due to his participation in a
scheme of extortion and procuring of drugs with Maya Singh
Gill. At the same time I received handwritten representation
from Jason Gallant which I read and took into consideration
when making my decision. I further took into consideration the
Progress Summary of Jason Gallant, including its favourable
comment with respect to Mr. Gallant's personal development. I
further read and took into consideration the sixteen page
handwritten submissions by Mr. Gallant, as well as letters
written on Jason Gallant's behalf by Frank Wise, Heather
Stewart, and Vicki Renner. In addition, I read and took into
consideration confidential information which I received from
Mr. De Vink that Jason Gallant was involved in a scheme to
extort money from fellow inmates with which to procure drugs
in Kent Institution.
5. On or about January 27, 1988, I decided, on the basis of all
information before me, to uphold Mr. De Vink's recommenda
tion.
The other affidavit was that of Mr. DeVink, the
Warden of Kent Institution. It read in part as
follows:
2. That based on information given to me in confidence by
inmates of Kent Institution, I verily believe that Jason Gallant
and Maya Singh Gill have been involved in a scheme to extort
money from inmates and convert that money into drugs which
were imported into Kent Institution.
3. The information leading me to this conclusion was exclusive
ly obtained by informants under an assurance that their identi
ty would be kept confidential.
4. The information upon which I base my opinion consists of
confidential statements taken from six informants. Four of
these informants were members of the inmate population who
were victims of Maya Singh Gill and Jason Gallant's extortion
attemps. The amount of money demanded, the threats used and
the machinery employed to collect the money differ in all of the
four cases. In my opinion, to provide the names of the victims,
the amounts of money extorted, the threats used or the ma
chinery employed to collect the money would likely lead to the
identity of the victim becoming known.
5. One of the informants was a member of a small group of
inmates who were party to a conspiracy to perform a particular
act with relation to the extortion scheme. To be best of my
knowledge, this scheme was not common knowledge among the
inmate population. In my opinion, to reveal the particulars of
this scheme would lead to the knowledge that one of the small
groups of persons involved was the informant and thus endan
ger the informant's anonymity.
6. The sixth statement was taken from an informant who is not
an inmate, but who is a relative of an inmate who had been
threatened by Maya Singh Gill and Jason Gallant. As a result
of this, this informant was required to perform various func
tions to further the extortion scheme. These functions are, to
the best of my knowledge, not identical to functions that are
performed by other outside members of the inmate population.
In my opinion, giving further particulars of the amount extort
ed, the services extorted, or the person involved would lead to
an increased likelihood that the identity of the informant would
become known.
7. I am of the opinion that if the identity of any of the
informants becomes known, they will be in danger of death or
serious bodily injury by other members of the inmate
population.
8. I provided Jason Gallant and Maya Singh Gill with such
particulars of these incidents as in my opinion could be safely
released to them, and invited written representations regarding
their proposed transfer to a high maximum security facility in
Saskatchewan. I received written representations from both
Jason Gallant and Maya Singh Gill. I read and took those
representations into consideration before confirming my recom
mendation for the transfer of Jason Gallant and Maya Singh
Gill to the high maximum facility in Saskatchewan.
Mr. Justice Dubé heard that application. He
granted it and made the order against which this
appeal is directed. He held that, in view of the
insufficiency of the notice given to the respondent,
the decision transferring him to the Saskatchewan
Penitentiary had been made in violation of the
principles of procedural fairness. The judge saw no
difference between the circumstances of this case
and those of Demaria v. Regional Classification
Board' where this Court quashed a decision trans
ferring an inmate to a maximum security
institution.
The appellant acknowledges that he was under a
duty of procedural fairness in deciding whether to
transfer the respondent to another institution
where his freedom would be more severely restrict
ed; he acknowledges, also, that this duty in normal
circumstances would have required that the
respondent be sufficiently informed of the allega
tions against him so as to be able to answer them.
The argument of the appellant is that the circum
stances of this case are different from those in
Demaria and that, if those special circumstances
1 [1987] I F.C. 74; (1986), 30 C.C.C. (3d) 55 (C.A.).
are taken into account, the only possible conclu
sion is that he did everything that procedural
fairness required of him.
The requirements of procedural fairness, like
those of natural justice, vary with the
circumstances. 2 Thus, the Director of a penal insti
tution is normally obliged, before imposing
administrative segregation on an inmate, to give
him a fair opportunity to be heard. However, the
Director is relieved of that obligation when the
decision to impose administrative segregation must
be made quickly in an emergency.'
In the present case, notice was given to the
respondent, but that notice was drafted in so gen
eral terms that it probably did not really enable
the respondent, assuming his innocence, to refute
the case against him. But the uncontradicted evi
dence given by the Warden establishes that, in his
opinion, he could not give more particulars with
out, in effect, disclosing the identity of his six
informants who would then "be in danger of death
or serious bodily injury by other members of the
inmate population". I do not see any reason to
contest the correctness of that opinion. The ques
tion, therefore, is whether these circumstances
were sufficient to relieve the appellant from the
obligation to give a more detailed notice. In my
view, they were. Parliament cannot have intended,
when it gave the Commissioner and his delegates
the power to transfer inmates from one penitentia
ry to another, that they should be bound by the
rules of procedural fairness even when the applica
tion of those rules would endanger the lives of
other inmates.
This conclusion does not conflict with the deci
sion rendered by this Court in Demaria v. Region
2 Martineau v. Matsqui Institution Disciplinary Board,
[1980] 1 S.C.R. 602, at p. 630.
Per Dickson J.:
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 ....
3 Cardinal et al. v. Director of Kent Institution, [1985] 2
S.C.R. 643, at p. 655.
Per Le Dain J., speaking for the Court:
Because of the apparently urgent or emergency nature of the
decision to impose segregation in the particular circum
stances of the case, there could be no requirement of prior
notice and an opportunity to be heard before the decision.
al Classification Board 4 unless it is read as hold
ing that an inmate is always entitled to proper
notice whatever be the circumstances, a reading
that could not be reconciled with that part of the
decision of the Supreme Court in the Cardinal
case to which I have already referred. In the
Demaria case, the failure to give proper notice to
the inmate was not justified by any valid reason.
That is not the situation here.
I am, therefore, of opinion that the appellant's
decision to transfer the respondent should not have
been quashed on the ground that it had been made
in disregard of the requirements of procedural
fairness.
This conclusion, however, does not dispose of the
case since the respondent argued that the appel
lant's decision violated not only the rules of proce
dural fairness but, also, 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.)]. 5
Since the judgments of the Supreme Court of
Canada in Martineau v. Matsqui Institution Dis
ciplinary Board, [ 1980] 1 S.C.R. 602; The Queen
v. Miller, [1985] 2 S.C.R. 613; Cardinal et al. v.
Director of Kent Institution, [1985] 2 S.C.R. 643;
and Morin v. National Special Handling Unit
Review Committee et al., [1985] 2 S.C.R. 662, it
can no longer be doubted that the decision to
transfer an inmate to a penal institution where his
freedom will be more severely restricted is, in
effect, a committal to a "prison within a prison"
which deprives the inmate of his liberty. Such a
decision must therefore, according to section 7 of
the Charter, be made "in accordance with the
principles of fundamental justice."
° [1987] 1 F.C. 74; (1986), 30 C.C.C. (3d) 55 (C.A.).
5 Section 7 of the Charter 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.
It is now established that' "the principles of
fundamental justice are to be found in the basic
tenets and principles of our legal system" and that
they are not "limited solely to procedural guaran
tees". Here, the only attack made on the appel
lant's decision was that it was procedurally bad.
But it can be said, without any risk of error, that
the basic procedural rules that are part of the
principles of fundamental justice do not differ, in
substance, from the rules of natural justice and of
procedural fairness. The "right to a fair opportu
nity to be heard" is, therefore, guaranteed by the
principles of fundamental justice as well as by the
principles of natural justice and procedural fair
ness. The question in this respect, however, is
whether the rules of fundamental justice have the
same flexibility as the rules of natural justice and
procedural fairness.
Before answering that question, it is necessary
to observe that when it is said that the rules of
natural justice and of fairness are flexible and vary
from case to case, two very different things may be
meant. First, that assertion may merely mean that
the same general rule will produce different results
if it is applied to different factual contexts. In that
sense, it can be said that natural justice may or
may not, according to the circumstances, require
an oral hearing; this is so because, in certain
circumstances, it may be impossible for a person to
answer adequately the case made against him,
unless he is heard orally. The requirement of
natural justice always remains the same: that the
person concerned be given a fair opportunity to be
heard. The consequences of the application of this
basic requirement vary, however, with the circum
stances.
The rules of natural justice and procedural fair
ness may also be said to be "flexible" and "vari-
able" in a very different sense which is related to
the very nature of those rules. In Bell Canada v.
Communications Workers of Canada,' Chief Jus
tice Jackett commented as follows on the nature of
the rules of natural justice:
6 Re B.C. Motor Vehicle Act, [ 1985] 2 S.C.R. 486, at pp.
512-513, per Lamer J.
7 [ 1976] 1 F.C. 459 (C.A.), at p. 477.
It is not unimportant to keep in mind in a case such as this
that the so-called rules of natural justice are a means devised
by the courts to interpret and apply statutory law in such a way
as to avoid unjust results in particular cases. They are not rigid
but flexible. They must be applied according to the exigencies
of the particular case and they are not to be used as an
instrumentality to defeat the achievement of the objectives of
the particular statute.
In Inuit Tapirisat of Canada v. The Right
Honourable Jules Leger,' Mr. Justice Le Dain
said more or less the same thing with respect to the
rules of procedural fairness:
Procedural fairness, like natural justice, is a common law
requirement that is applied as a matter of statutory interpreta
tion. In the absence of express procedural provisions it must be
found to be impliedly required by the statute. It is necessary to
consider the legislative context of the power as a whole. What is
really in issue is what it is appropriate to require of a particular
authority in the way of procedure, given the nature of the
authority, the nature of the power exercised by it, and the
consequences of the power for the individuals affected. The
requirements of fairness must be balanced by the needs of the
administrative process in question.
The rules of natural justice and of fairness are
common law rules which Parliament has full
power to repeal or modify 9 and which, for that
reason, cannot be used "to defeat the objectives of
a particular statute". They are, therefore, flexible
in the sense that in each case they will have to be
applied so as not to frustrate the intention of
Parliament.
I have no difficulty with the proposition that the
procedural rules of fundamental justice have, in
the first sense that I have just explained, the same
flexibility as the rules of natural justice and fair
ness. This is why Chief Justice Thurlow could say
in Howard v. Stony Mountain Institution 10 that,
whether or not the principles of fundamental jus
tice guarantee the right to be represented by coun
sel depends "on the circumstances of the particular
case, its nature, its gravity, its complexity".
$ [1979] 1 F.C. 710 (C.A.), at p. 717.
9 The Queen v. Randolph et al., [1966] S.C.R. 260, at p.
265.
Per Cartwright J.:
There is no doubt that Parliament has the power to abrogate
or modify the application of the maxim audi alteram part em.
10 [1984] 2 F.C. 642 (C.A.), at p. 663.
On the other hand, it is equally clear, in my
view, that the rules of substantial justice which
must be applied by virtue of section 7 of the
Charter are not "variable or flexible" within the
second meaning of those expressions. Indeed, those
rules can only be modified by Parliament in
accordance with section 1 of the Charter; other
wise, Parliament would have the unfettered power
to reduce to nothing the protection afforded by
section 7.
The principles of fundamental justice do not
have, therefore, the same flexibility as the rules of
natural justice and of fairness. For that reason, I
cannot escape the conclusion that, in this case, the
decision to transfer the respondent to Saskatche-
wan Penitentiary was not made in accordance with
the principles of fundamental justice since the
respondent was not given a real opportunity to
answer the allegation made against him.
There remains to be decided whether that
breach of section 7 of the Charter was authorized
by a law that met the requirements of section 1.
The Penitentiary Act [R.S.C. 1970, c. P-6] gives
the Commissioner and his delegates the discretion
ary power to transfer an inmate from one institu
tion to another, a discretion that is tempered only
by the principles of procedural fairness that apply
in so far as circumstances permit. It is pursuant to
that "law" that the decision to transfer the
respondent was made and the question is whether
a "law" giving such a wide discretion to the
authorities of the Correctional Service meets the
requirements of section 1.
We have not had the benefit of any argument or
of any evidence on the subject. Counsel for the
appellant chose to ignore the respondent's argu
ment based on the Charter. However, the answer
to the question appears to me to be so obvious that
I do not need any evidence or argument to con
clude that, in a free and democratic society, it is
reasonable, perhaps even necessary, to confer such
a wide discretion on penitentiary authorities.
I would, for these reasons, allow the appeal, set
aside the order of the Trial Division and dismiss
the application for certiorari made by the respon
dent, the whole with costs in this Court as well as
in first instance.
The following are the reasons for judgment
rendered in English by
MARCEAU J.A. (concurring in the result): I
readily agree with Mr. Justice Pratte that the
judgment appealed from here cannot be allowed to
stand. I must say however, with respect, that I
have some difficulty with the reasons he gives in
support of this conclusion, and I wish to express
my personal views in a few brief comments.
1. I did not understand the appellant as having
at any time acknowledged that he had somehow
been compelled to breach the duty to act fairly to
which he was normally bound. What the appellant
said is simply that, in fulfilling his duty to act
fairly, he had given the respondent all the informa
tion he could without, in effect, divulging the
identity of his informers. So the question is not, I
think, whether the rule of confidentiality respect
ing informers can relieve a decision-maker from
his duty to act fairly, it is rather whether the rule
of confidentiality can influence, as much as it did
here, the content of that duty. And the difference,
to me, is of the utmost importance, since I have the
greatest difficulty in accepting that the audi
alteram partem principle, which is what the duty
to act fairly is all about, can ever be completely
disregarded otherwise than in a case of an excep
tional emergency and for quite a short period of
time. (See: Cardinal et al. v. Director of Kent
Institution, [1985] 2 S.C.R. 643.)
The rationale behind the audi alteram partem
principle, which simply requires the participation,
in the making of a decision, of the individual
whose rights or interests may be affected, is, of
course, that the individual may always be in a
position to bring forth information, in the form of
facts or arguments, that could help the decision-
maker reach a fair and prudent conclusion. It has
long been recognized to be only rational as well as
practical that the extent and character of such a
participation should depend on the circumstances
of the case and the nature of the decision to be
made. This view of the manner in which the
principle must be given effect in practice ought to
be the same whether it comes into play through
the jurisprudential duty to act fairly, or the
common law requirements of natural justice, or as
one of the prime constituents of the concept of
fudamental justice referred to in section 7 of the
Charter." The principle is obviously the same
everywhere it applies.
As I see it, the problem here is whether the audi
alteram partem principle, in the circumstances
that prevailed, required that more information be
given to the inmate before asking for his represen
tations. In my judgment, having regard to the
nature of the problem the appellant was facing and
his responsibility toward those entrusted to his
care, it did not.
2. It seems to me that, to appreciate the practi
cal requirements of the audi alteram partem prin
ciple, it is wrong to put on the same level all
administrative decisions involving inmates in peni
tentiaries, be they decisions of the National Parole
Board respecting the revocation of parole, or deci
sions of disciplinary boards dealing with discipli
nary offences for which various types. of punish
ments, up to administrative segregation, can be
imposed, or decisions, such as the one here
involved, of prison authorities approving the trans
fer of inmates from one institution to another for
administrative and good order reasons. Not only
do these various decisions differ as to the invidivu-
al's rights, privileges or interests they may affect,
which may lead to different standards of proce
dural safeguards; they also differ, and even more
significantly, as to their purposes and justifica
tions, something which cannot but influence the
content of the information that the individual
needs to be provided with, in order to render his
participation, in the making of the decision, wholly
meaningful. In the case of a decision aimed at
imposing a sanction or a punishment for the com
mission of an offence, fairness dictates that the
person charged be given all available particulars of
the offence. Not so in the case of a decision to
transfer made for the sake of the orderly and
proper administration of the institution and based
" "It is also clear that the requirements of fundamental
justice are not immutable; rather they vary according to the
context in which they are invoked," per La Forest J. in R. v.
Lyons, [1987] 2 S.C.R. 309, at p. 361.
on a belief that the inmate should, because of
concerns raised as to his behaviour, not remain
where he is. In such a case, there would be no basis
for requiring that the inmate be given as many
particulars of all the wrong doings of which he
may be suspected. Indeed, in the former case, what
has to be verified is the very commission of the
offence and the person involved should be given
the fullest opportunity to convince of his inno
cence; in the latter case, it is merely the reason
ableness and the seriousness of the belief on which
the decision would be based and the participation
of the person involved has to be rendered meaning
ful for that but nothing more. In the situation we
are dealing with here, guilt was not what had to be
confirmed, it was whether the information received
from six different sources was sufficient to raise a
valid concern and warrant the transfer.
3. There are obvious essential differences be
tween the situation considered by the Court in
Demaria, 12 on which the Trial Judge relied exclu
sively, and the one which is before us today:
a) In Demaria, the ground for transfer was the
belief that the inmate had brought cyanide into the
prison; it was then an act, an operation which had
taken place and was not likely to be repeated. In
our case, the ground is the belief that the inmate
was involved in a system of extortion, which could
very well be still going on or reactivated.
b) In Demaria, there was no direct reason to
believe that the safety of fellow prisoners was
involved; there were no obvious victims of the
alleged misconduct. Here, on the contrary, extor
tion through threat of violence, by its very nature,
implicates victims and spells danger for the safety
of others.
c) In Demaria, there was independent evidence
obtained by the police. Here, the entire body of
evidence was obtained from informants who had
obvious objective and realistic fears of reprisals at
the hands of the alleged extortionists.
d) In Demaria, the withholding of information
was almost complete and merely justified by a
12 Demaria v. Regional Classification Board, [1987] 1 F.C.
74; (1986), 30 C.C.C. (3d) 55 (C.A.).
blanket claim, as characterized by Hugessen J. [at
page 78], that " `all preventive security informa
tion' is confidential and (cannot) be released".
Here, on the one hand, the information given is
definitely more substantial—including the
inmate's Progress Summary Report in its entirety,
the extent of the concern of the Warden, and
cogent reasons for non-disclosure of further
particulars." On the other hand, we have the
unequivocal sworn statement of the prison authori
ties that no further information could be safely
released, notably the statement of the Warden
who, as the Trial Judge so rightly proclaims [at
pages 271 C.R.; 153 F.T.R.], "is more familiar
with prison conditions than the court and is in a
position to give a more realistic appraisal of what
the inmate population is able to deduce from any
given information." 14
I would dispose of the appeal as suggested by
Mr. Justice Pratte.
* * *
The following are the reasons for judgment
rendered in English by
DESJARDINS J.A. (dissenting): I have had the
advantage of reading in draft the reasons for judg
ment of both Pratte J.A. and Marceau J.A.
Pratte J.A. has set the facts of this case. I adopt
them for the purpose of my reasons for judgment.
13 The relevant extract from the notification reads as follows:
Information has been received that reliably indicates that
between January 1987 and December 1987, you were
involved in the extortion of money and personal property
from inmates, money from members of the community,
threats of violence to other persons, and the procuring of and
importation of drugs into Kent Institution. Specific detailed
information cannot be provided as it may jeopardize the
safety of the victims of your actions.
14 In fact there was more than a general statement in the
Warden's affidavit. The Warden deposed that the information
on which he acted had come exclusively from six informants
whose identity he had undertaken to keep confidential. Since
the amounts of money demanded and the threats employed
differed in four cases reported by the alleged victims, the
Warden held that by revealing particulars of the incidents, he
would have opened the door to their identification. Likewise,
revealing the information provided by an alleged co-conspirator
to the extortion scheme, and by a relative of a threatened
inmate, would have increased the likelihood of their identifica
tion by the respondents.
The issue raised in this appeal concerns the
degree to which a prisoner is to be informed of the
reasons for his transfer from a maximum security
penal institution to a high maximum security penal
institution so as to satisfy the standards of proce
dural fairness at common law and under section 7
of the Canadian Charter of Rights and Freedoms
in circumstances where it is alleged that the life
and security of others, both inside and outside the
institution, may be threatened if adequate infor
mation is given.
The protection of the identity of the informers is
not at stake. The matter is well settled since
Bisaillon v. Keable, [1983] 2 S.C.R. 60; 7 C.C.C.
(3d) 385. Neither of the parties have attempted to
question what is now regarded as trite law.
The appellant claims that the rules of fairness
do not require a disclosure of complete detailed
information in the possession of the decision-mak
ing body and that, for security reasons, informa
tion or communication by an informer may be
withheld. He recognizes however that the rules of
procedural fairness require that an inmate be
informed of the gist of the information against him
(Cadieux v. Director of Mountain Institution,
[1985] 1 F.C. 378 at page 397; (1984), 13 C.C.C.
(3d) 330 (T.D.), at page 345; Demaria v. Regional
Classification Board, [ 1987] 1 F.C. 74; (1986), 30
C.C.C. (3d) 55 (C.A.)). He submits that by virtue
of the January 19, 1988 Notification of Recom
mendation for Transfer (Exhibit A, Appeal Book,
at page 14) and the January 20, 1988 Progress
Summary Report (Exhibit B, Appeal Book, at
page 16) the respondent was made aware of a
number of reasons for his transfer, namely that
between January 1987 and December 1987, it was
reliably alleged that the respondent was involved
in the extortion of money and personal property
from inmates and from members of the commu
nity; that there were threats of violence to other
persons and the procuring of drugs into Kent
Institution; that the threats used to obtain the
money, personal property and drugs were threats
of physical violence against other inmates; that the
money obtained through the threats of violence
was used to purchase drugs; that the evidence
against the respondent was obtained from inform
ers; and finally, that to provide the names of the
victims, the amount of the money extorted, the
threats used or the machinery employed to collect
the money would likely lead to the identity of the
informers. The appellant concludes that the
respondent was sufficiently made aware of the
reasons for his transfer, in that he was aware of
the time period, the location, the acts carried out,
the types of individuals involved and the purpose
of the acts; and also, that the respondent was made
aware of the reasons for the non-disclosure of any
other information.
The Trial Judge issued a writ of certiorari
against the appellant on the ground that the stand
ards set in the case of Demaria v. Regional Clas
sification Board [supra] had not been met. The
appellant appeals the decision on the ground that
the notice given to the respondent was far more
detailed than the notice given to the inmate in
Demaria and that this case should be distinguished
from Demaria.
In Demaria, the prisoner, who was serving a life
term of imprisonment for murder, had been trans
ferred to a medium security institution when, less
than a week later, he came under suspicision of
having brought cyanide into the prison. He was
placed in segregation pending an investigation and
later on transferred to a maximum security institu
tion. The only reasons given to him were set out in
a "48-hour notice" which simply said that the
prison authorities had reasonable and probable
grounds to believe that the prisoner was respon
sible for bringing cyanide into the institution.
Hugessen J.A. for the Court said at pages 77-78:
The appellant is told that there are reasonable grounds for
believing him to have brought in cyanide. He is given no hint of
what those grounds are. The allegations against him are devoid
of every significant detail. When? Where? How? Whence came
the poison? How was it obtained? For what purpose? How
much? The allegation is said to be based on information
obtained by the Millhaven staff and the Ontario Provincial
Police. What information comes from which source? Is there
an informer involved? If so, how much of the substance of his
statement can be revealed while protecting his identity? Have
the police pursued their enquiries? Have they made any
arrests? The list of questions is almost endless.
In the absence of anything more than the bald allegation that
there were grounds to believe that he had brought in cyanide,
the appellant was reduced to a simple denial, by itself almost
always less convincing than a positive affirmation, and futile
speculation as to what the case against him really was.
There is, of course, no doubt that the authorities were
entitled to protect confidential sources of information. A peni
tentiary is not a choir school and, if informers were involved
(the record here does not reveal whether they were or not), it is
important that they not be put at risk. But even if that were the
case it should always be possible to give the substance of the
information while protecting the identity of the informant. The
burden is always on the authorities to demonstrate that they
have withheld only such information as is strictly necessary for
that purpose ... In the final analysis, the test must be not
whether there exist good grounds for withholding information
but rather whether enough information has been revealed to
allow the person concerned to answer the case against him.
In Demaria, the Court was not faced with the
issue before us which is, on one hand, the informa
tion a prisoner, if innocent, requires in order to
defend himself and at the same time a claim by
prison authorities that more information given to
the prisoner will likely jeopardize the lives of
others, most of them living in the closed environ
ment of a prison.
In the case at bar, the prison authorities are
claiming, through their affidavits, much more than
the simple confidentiality of the identity of their
informers under the rule of Bisaillon v. Keable,
supra. They are claiming that they cannot give
more details to the respondent than those given to
him because to do so would, in all likelihood,
endanger the lives or safety of the informers.
Although not in those words, they are in fact
claiming the right of other inmates and of a
member of the community to the security of the
person, a right also entrusted in section 7 of the
Canadian Charter of Rights and Freedoms.
The transfer of a prisoner from one institution to
another is a disciplinary measure. The test to be
applied is one of administrative law, not criminal
law. At this stage, the prisoner is not deprived of
the absolute liberty to which every citizen is en-
titled. He has already lost it by virtue of a lawful
incarceration. The full panoply of rights due an
accused in a criminal proceeding does not apply to
him. A transfer involves changes in the conditions
of his detention. This type of loss of liberty is of
consequence and attracts the protection of proce
dural fairness both at common law and under
section 7 of the Charter.
Procedural fairness varies according to the cir
cumstances. The American courts have been care
ful while elaborating the standards of due process
to examine the nature of the Government decision
involved and the degree of the loss to the prisoner.
I would think our law on this matter would be no
different from what was said in Wolff v. McDon-
nell, 418 U.S. 539 (1974), at page 560 by the
United States Supreme Court:
"[t]he very nature of due process negates any concept of
inflexible procedures universally applicable to every imaginable
situation." Cafeteria Workers v. McElroy, 367 U.S., at 895.
"[C]onsideration of what procedures due process may require
under any given set of circumstances must begin with a deter
mination of the precise nature of the government function
involved as well as of the private interest that has been affected
by governmental action."/bid.;; Morrissey, 408 U.S., at 481.
Viewed in this light it is immediately apparent that one cannot
automatically apply procedural rules designed for free citizens
in an open society, or for parolees or probationers under only
limited restraints, to the very different situation presented by a
disciplinary proceeding in a state prison. [Emphasis added.]
That same Court in Bell v. Wolfish, 441 U.S.
520, at page 547; 99 S Ct 1861, at page 1877; 60
L Ed 2d 447 (1979), at page 473 said:
Prison administrators ... should be accorded wide-ranging
deference in the adoption and executions of policies and prac
tices that in their judgment are needed to preserve internal
order and discipline and to maintain institutional security.
I am reminded that in Solosky v. The Queen,
[1980] 1 S.C.R. 821, at pages 839-840, Dickson J.
[as he then was] said for the Court:
As a general rule, I do not think it is open to the courts to
question the judgment of the institutional head as to what may,
or may not, be necessary in order to maintain security within a
penitentiary.
Indeed, in Wolff v. McDonnell, supra, at page
566, the United States Supreme Court recognized
that It] he operation of a correctional institution
is at best an extraordinarily difficult undertaking."
The substantial risks that informers in prisons run
when they cooperate with prison officials should
not be understimated and it is possible that in such
situation, prison authorities might lean on the
prudent side rather than the risky side. But at the
same time, the burden is on these authorities,
when a disciplinary measure is taken, to demon
strate that the circumstances are such that they
cannot inform the respondent of the facts on which
the charge is based. This burden is not a light one
since the protection of the law and of the Constitu
tion does not stop at the prison gate.
The respondent probably did not have enough
information to adequately defend himself. He
claims that while the notice given to him was
undeniably more voluminous than the one given in
the case of Demaria, supra, it provided no greater
detail of the allegations than the notice that was
found wanting in Demaria. For instance, he says
the notice in the case at bar fails to state what
types of drugs were allegedly involved and in what
quantity, with what frequency they were brought
into the institution over the year period in which it
is alleged that they were brought into the institu
tion, how much money and what kind of property
was extorted and which community outside the
prison was targeted by this scheme. In addition, no
information is given as to whether the police have
conducted an investigation and if so, what are the
results of their enquiries.
Before a claim, such as the one made here by
the prison authorities, can succeed, measures
ought to be taken so as to minimize errors. And I
am not satisfied that they have all been taken in
the present case.
I have noted that in the case of Cadieux v.
Director of Mountain Institution, [1985] 1 F.C.
378, at page 402; (1984), 13 C.C.C. (3d) 330
(T.D.), Madame Justice Barbara Reed, who was
dealing with an application for a writ of certiorari
to quash a decision of the National Parole Board
which had cancelled the applicant's unescorted
temporary absence programme, considered (at
pages 402 F.C.; 349 C.C.C.) the possiblity that
courts of law might require in certain circum
stances the production of affidavits in a sealed
envelope together with a specific explanation as to
why non-disclosure would be justified, a procedure
she noted is similar to that developed at common
law in privileged cases and to that existing under
section 36.1 [as enacted by S.C. 1980-81-82-83, c.
111, s. 4, Schedule III] of the Canada Evidence
Act, R.S.C. 1970, c. E-10. Measures of such a
nature might however not be practical with regard
to prison authorities and I agree with Marceau
J.A. (at page 342 paragraph 2 of his reasons for
judgment) that "it is wrong to put on the same
level all administrative decisions involving inmates
in penitentiaries, be they decisions of the National
Parole Board ... or decisions of disciplinary
boards ... or decisions, ... of prison authorities."
This point was also made in Wolff v. McDonnell,
supra.
I do not understand this case as being one where
emergency was claimed by the prison authorities
to justify the transfer of the respondent, although
there might have been one when the respondent
was segregated pending the outcome of the investi
gation. No complaint was however made by him
about the first phase of the disciplinary measure.
Confidential information was used and the
notification given to the respondent claims that
"Information has been received that reliably indi
cates" (emphasis added). The affidavits however
do not explain why the prison authorities thought
the information obtained was reliable.
I retain from the American decisions in Dawson
v. Smith, 719 F.2d 896 (C.A. Ill. 1983), certiorari
denied 104 S Ct 1714; 80 L Ed 2d 186 (1984);
Lamoureux v. Superintendent, Massachusetts
Correctional Inst., Walpole, 456 N.E.2d 1117
(Mass. 1983); Goble v. Wilson, 577 F.Supp. 219
(Dist. Ct. Ky. 1983); Homer v. Morris, 684 P.2d
64 (Utah 1984); State ex rel. Staples v. Depart
ment of Health and Social Services, Div. of Cor
rections, 340 N.W.2d 194 (Wis. 1983), which all
have some similarities with the present case, that
when confidential information is relied on by
prison authorities so as to justify a disciplinary
measure, the record must contain some underlying
factual information from which the authorities can
reasonably conclude that the informer was credible
or the information reliable. Where cross-examina
tion, confrontation or adequate information are
not available to sift out the truth, some measures
must exist so as to ensure that the investigation is
a genuine fact-finding procedure verifying the
truth of wrongdoing and that the informers are not
engaged in a private vendetta. None of the courts
in the cases cited have examined in camera the
confidential information except in Dawson v.
Smith, supra, at pages 898-899 where it was done
pursuant to an agreement by the parties and not
proprio motu by the Court. In many of these
cases, there are indications that administrative
rules had been designed to assist and guide prison
authorities in accommodating the need for fairness
in disciplinary proceedings with prison security.
None are present in this case.
Reliability may be demonstrated in a number of
ways, as for instance, by an independent investiga
tion or by corroborating information from
independent sources. The affidavits produced by
the appellant indicate that no independent investi
gation was carried on. Why then did the prison
authorities feel they had the assurance of the
reliability of the information received? Were the
statements made under oath? Were there elements
in the information gathered from the six informers
that corroborated essential facts? Why was the
respondent not put under a tight surveillance so as
to allow the possible gathering of evidence against
him? Was there anything that prevented the
taking of this measure? Were the police informed
particularly with regard to the activity outside the
prison?
I would have dismissed the appeal for lack of
satisfying affidavits.
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.