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Martineau and the Duty to Act Fairly

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The 1980 decision of the Supreme Court of Canada in Martineau v. Matsqui Institutional Disciplinary Board (No.2) is of significant importance to the development of human rights in corrections. Prior to this benchmark case, Canadian courts exhibited a marked reluctance to interfere with the activities and decisions of prison administrators. As a result of this judicial reticence, offenders had few legally defined rights to due process and natural justice. Offenders could, as the courts found, lose earned remission time without knowing the evidence used against them, be transferred to a higher-security institution across the country without knowing why and be subject to long periods of dissociation at the warden's discretion. In Martineau, the Supreme Court reversed this "hands off" approach, and for the first time in correctional law, declared that prison authorities had a duty to act fairly when making decisions concerning the rights of offenders. In R. v. Solosky, decided a year after Martineau, the Supreme Court further illustrated its willingness to interfere with correctional decisions when it stated that persons confined to prison retains all of their civil rights, except those necessarily limited by the nature of incarceration or those expressly or implicitly taken away by law.

The duty to act fairly was first officially recognized in Canada in 1979 in the case of Re Nicholson and Haldiman-Norfolk Regional Board of Commissioners of Police. Nicholson was a probationary police officer who was discharged after fifteen months of service without being provided reasons and without any opportunity to respond or make submissions to the Board of Commissioners. On appeal to the courts, he argued that the Board did not act fairly. In a decision that changed the landscape of administrative law, the Supreme Court of Canada proclaimed that the Board of Commissioners had a duty to inform Nicholson of the reasons for his dismissal and to provide him with an opportunity to respond. It was this decision that formed the basis for the Court's decision in Martineau a year later.

Martineau involved a challenge by two offenders against their conviction for a disciplinary offence in which they were sentenced to fifteen days in dissociation on a restricted diet. Relying on Nicholson, the Supreme Court determined that prison administrators have a general duty to act fairly when making decisions affecting the rights of offenders. In this case, it was found that the Institution breached its duty to provide a fair hearing.

Canadian courts have had many opportunities to further define and expand upon the duty to act fairly since it was initially recognized in Nicholson and Martineau. In essence, fairness can now be described as a flexible concept that comprises various rights and obligations which, to varying degrees, must be upheld. As it was stated in Martineau, "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". In the field of corrections, the duty to act fairly applies to all administrative decisions that affect an offender's liberty, including determinations regarding administrative segregation, involuntary transfers, parole decisions and discipline. The Supreme Court of Canada has also made it clear in Cardinal v. Dir. of Kent Institution, that the duty to act fairly exists whenever the "rights, privileges and interests" of offenders are at stake. Substantially, the duty of fairness has been found to include the right to be given notice of the allegations, an account of the information being considered by the decision-maker, sufficient time and opportunity to respond to the allegations, the right to be heard, the right to a hearing free of bias, and the right to be given reasons for the final decision. Depending upon the nature of rights, privileges and interests at issue, the duty of fairness may also include the right to legal assistance and the right to a full hearing.

New legislation governing corrections and conditional release, the Corrections and Conditions Release Act (CCRA), was passed in 1992. For the most part, the CCRA incorporated the common law duty to act fairly as it had developed up to that point. For example, in most instances, the CCRA and the Corrections and Conditions Release Regulations clearly state the rights of the offender and specifically outline the appropriate procedural safeguards and degree of fairness to be applied. It is also of significance to note that the general duty imposed on administrative bodies to act fairly is now supplemented by Section 7 of the Canadian Charter of Rights and Freedoms which guarantees 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".