The Duty to Act Fairly
At the time the House of Commons Sub-Committee report was published,
Canadian prisoners who sought redress in the courts faced a Catch-22.
The only decisions subject to judicial review under prevailing principles
of administrative law were those the courts classified as "judicial" or
"quasi-judicial," as opposed to "administrative." Broadly speaking, the
decisions of bodies given the authority to administer institutions or
agencies, with a broad discretion as to how the statutory mandate should
be exercised, were classified as administrative. Decisions affecting privileges
or interests, as opposed to rights, were also classified as administrative
and not subject to judicial review. Within this scheme of classification,
with very limited exceptions, decisions made by correctional officials
were deemed administrative and non-reviewable.
Any expectation that the creation in 1970 of the new Federal Court would
open a wider window of redress for prisoners in federal penitentiaries
was confounded. Jurisdictional interpretation of the provisions of the
1970 Federal Court Act (R.S.C. 1970 c.10
(2d Supp.))charted new depths of obscurantism, even for a profession used
to such excesses. (For a review of the tortured jurisprudence of this
era, see Jackson, Prisoners of Isolation
at 125-33, and David P. Cole and Allan Manson, Release
from Imprisonment: The Law of Sentencing, Parole and Judicial Review
[Toronto: Carswell, 1990] at 46ff.).
It was not until 1979 that a historic breakthrough in expanding the
scope of judicial review for prisoners came to pass. That year, the Supreme
Court of Canada, in Martineau v. Matsqui
Institution Inmate Disciplinary Board, provided relief from the
conceptual impasse created by the dichotomy between "judicial" and "administrative"
and the interpretative confusion surrounding the Federal
Court Act. The Martineau case was
first before the courts in 1975, following the conviction of Mr. Martineau
and Mr. Butters, both prisoners at Matsqui Institution, of two disciplinary
offences for which they were sentenced to fifteen days in solitary confinement.
The prisoners' case was based upon alleged violations of the requirements
of the Commissioner's Directive dealing with disciplinary hearings. It
was a measure of the jurisdictional confusion surrounding the Federal
Court Act that the prisoners' lawyer, John Conroy, in the first
of his many legal forays on behalf of prisoners, filed proceedings challenging
the convictions under both section 28 and section 18 of the Act.
The section 28 application before the Federal Court of Appeal was denied,
and this denial was affirmed by the Supreme Court of Canada in a 5:4 decision..
The decision was a narrow, technical one based upon the wording of section
28. It involved a finding that, because the Commissioner's Directives
did not have the force of law, a prison disciplinary board's decision
was not "required by law to be made on a judicial or quasi-judicial basis"
( Martineau v. Matsqui
Institution Inmate Disciplinary Board,  1 S.C.R. 118 ).
While successful in his application before the Federal Court Trial Division
under section 18 of the Federal Court Act,
Mr. Martineau was again stymied by the Federal Court of Appeal, which
ruled that a section 18 remedy was no more available than the section
28 one, in the case of a decision not required to be made on a judicial
or quasi-judicial basis. In an appendix to the court's judgement, Chief
Justice Jackett, while acknowledging that correctional officials should
act on a fair and just basis, stated that any remedy for their failure
to do so lay not with the judiciary but in the political arena. As I observed
in Prisoners of Isolation, for federal prisoners,
who at the time of the decision did not have the right to vote in federal
elections, Chief Justice Jackett's decision "appeared as a mockery of
their asserted legal rights" (at 130).
When the Martineau case returned to the
Supreme Court of Canada for the second time, the jurisprudential ground
proved more fertile. In 1979, in a decision involving the dismissal of
a probationary police officer ( Nicholson
v. Haldimand-Norfolk Regional Board of Police Commissioners,
 1 S.C.R. 311 ), the Supreme Court had held that judicial review
through certiorari was not limited to decisions classified as judicial
or quasi-judicial. The court ruled that there was a general administrative
law duty to act fairly, and that police disciplinary decisions were subject
to that duty and therefore subject to the superintendency of the courts
to ensure compliance with it. In its decision in the second Martineau
case, The Supreme Court applied these principles to prison disciplinary
decisions. After tracing the development of a parallel line of jurisprudence
in the English courts, in which a general duty of fairness had been acknowledged,
Mr. Justice Dickson rendered this critique of the legalistic doctrine
in which only decisions affecting "rights" could trigger judicial review:
There has been an unfortunate tendency to treat "rights"
in the narrow sense of rights to which correlative legal duties are attached.
In this sense, "rights" are frequently contrasted with "privileges," in
a mistaken belief that only the former can ground judicial review of decision-maker's
actions . . . When concerned with individual cases and aggrieved persons,
there is a tendency to forget that one is dealing with public law remedies
which, when granted by the courts, not only set aright individual injustice
but also ensure the public bodyies exercising powers affecting citizens
heed the jurisdiction granted them. Certiorari stems from the assumption
by the courts of supervisory powers over certain tribunals in order to
ensure the proper functioning of the machinery of government. To give
a narrow or technical interpretation to "rights" in an individual sense
is to misconceive the broader purpose of judicial review of administrative
action. ( Martineau v. Matsqui
Institution Inmate Disciplinary Board,  1 S.C.R. 602 [hereafter
referred to as Martineau (No. 2) ])
In the particular context of prison disciplinary decisions, Mr. Justice
Dickson unequivocally laid the groundwork for the modern theory and practice
of judicial review of correctional decisions.
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