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FORUM on Corrections Research
Recent Decisions
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In Gill and Gallant v. Trono the Federal Court of Appeal held that the duty to act fairly does
not require that details be given to inmates in a transfer notification if such details could place the
safety of an informer in jeopardy. Mr. Justice Pratte also held that although the limited notice
provided the inmates did not satisfy the requirement of fundamental justice in section 7 of the Charter
(which protects an individual's right to life, liberty and security of the person), the action could be
justified under section 1 of the Charter because the ability of prison administrators to transfer
inmates is a reasonable limitation on section 7. Counsel for the inmates is seeking leave to appeal this
decision to the Supreme Court of Canada. The leave application should be decided upon in the fall. This case is not entirely in line with most of the other judicial decisions on transfers and there is a possibility that for this reason it will be distinguished from future cases involving transfers. It is therefore not recommended that this decision be used to justify providing minimal information to inmates. The duty to act fairly still requires that the maximum number of details be provided and that the information be reasonable and reliable. The new Commissioner's Directive on transfers provides guidance on how to adhere to these criteria. In Ambrose v. Timms an inmate was excluded from the hearing room during deliberations between the Independent Chairperson (ICP) and penitentiary staff about punishment. The inmate was not given a summary of what transpired during the deliberations, nor the opportunity to respond. The Federal Court held that the inmate's right to fairness was violated because he was not given the opportunity to respond to the information that was exchanged during the deliberations. It was not sufficient that he was permitted to make representations on punishment prior to the consultation between the ICP and the penitentiary staff. In Grazdonowski v. The Queen an inmate was placed in administrative segregation for his own protection as a result of a stabbing incident. He remained there for eight months. He refused to divulge the name of his assailant and therefore his requests for release and transfer were denied by the Institutional Authorities. The Supreme Court of Ontario in granting his application for a Writ of Habeas Corpus held that solitary confinement in these circumstances was punishment and that it was abhorrent that an inmate who was the victim of a serious assault should be punished beyond a short initial period of investigation by reason only of a refusal to name an aggressor. In Pearce v. Gallager the Federal Court quashed an inmate's application for Mandamus to compel the Warden to provide access to specified programs such as substance abuse treatment and counselling for inmates voluntarily in segregation. Mr. Justice Jerome held that there was nothing in the statutes or regulations which spells out the type or kind of program which must be available in an institution. He further held that the Court should not interfere with the day-to-day operations of the institution except upon the clearest ground, and that it is up to the Institution's head to balance the effects of dissociation and access to programs in order to achieve the best compromise between total dissociation from any of the programs and dissociation for the protection of the inmate. In Piche v. The Solicitor General of Canada, some inmates of Stony Mountain Institution appealed the decision of the Federal Court, Trial Division, which held that no constitutional right was infringed by the practice of double-bunking and that the decision to double-bunk was a policy decision not subject to the duty to act fairly. The inmates argued that the practice of double-bunking violated their right to privacy and dignity encompassed in section 7 of the Charter. Furthermore, they argued that the decision to double-bunk had not been taken in conformity with the duty to act fairly. The Federal Court of Appeal dismissed the inmates' appeal. The Court found that there was no evidence of any invasion of the right to privacy by the practice of double-bunking. It confirmed the fact that the decision to double-bunk was purely a policy decision not subject to review for fairness. |
