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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, [1978] 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, [1979] 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, [1980] 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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Justice, later Chief Justice Brian Dickson