In the case at bar, the Disciplinary Board was not under either an express or implied duty to follow a judicial type of procedure, but the Board was obliged to find the facts affecting the subject and exercise a form of discretion in pronouncing judgement and penalty. Moreover, the Board's decision had the effect of depriving an individual of his liberty by committing him to a "prison within a prison." In these circumstances, elementary justice requires some procedural protection. The Rule of Law must run within penitentiary walls.

In my opinion, certiorari avails us a remedy wherever a public body has power to decide any matter affecting the rights, interest, property, privileges or liberties of any person. ( Martineau (No. 2), at 622)

The judgement of Mr. Justice Pigeon, while affirming a disciplinary board's duty to act fairly, amenable to review by the Federal Court, emphasized that such judicial review should be exercised with regard to "the requirements of prison discipline." He added the caveat that "it is specially important that the remedy be granted only in cases of serious injustice and the proper care be taken to prevent such proceedings from being used to delay deserved punishment so long that it is made ineffective, if not altogether avoided" ( Martineau (No. 2), at 636-37). Mr. Justice Dickson also emphasized that "interference would not be justified in the case of trivial or merely technical incidents. The question is not whether there has been a breach of the prison rules, but whether there has been a breach of the duty to act fairly in all the circumstances" ( Martineau (No. 2) ), at 630).

As to what exactly fairness requires in the prison context, Mr. Justice Dickson described the concept of fairness as a flexible one, fully capable of responding the spectrum of administrative decisions which ranged from those of a policy-oriented nature to those approaching a judicial function. In the case of a decision approaching the latter end of the spectrum, "substantial pricedural safeguards" may be required.

In the wake of Martineau (No. 2), David Cole and Allan Manson, both legal pioneers in the era of prisoners' rights, have offered this definition of the requirements of fairness:

At a minimum, the duty to act fairly means an obligation to provide notice of allegations and an opportunity to respond . . . Notice of allegations must be sufficiently clear and precise to enable the prisoner to know the case he has to meet . . . One can conceive of a variety of techniques by which an opportunity to respond can be provided. The least sophisticated may involve a response in writing or an oral response to an official who reports to the decision-maker. No matter how skeletal, the essential question will always be, in light of the circumstances, whether the prisoner has had an adequate opportunity to respond. As one progresses along the spectrum, some processes will require hearings perhaps even approximating the procedural trappings usually associated with the judicial model. (at 61)

The judgement of the Supreme Court in Martineau (No. 2) marks the beginning of a coherent and principled body of correctional law in Canada. Cole and Manson have described the significance of the case:

Martineau (No.2) opened the modern era of prison law in Canada and exposed internal parole and prison processes to judicial scrutiny. As a result, some procedures have been found wanting and decision-makers have been compelled to revise their processes to conform with the notion of fairness. But the impact of Martineau (No. 2) transcends questions of procedure. The opportunity for judicial scrutiny now compels judges to begin to examine the dynamics of internal decision-making with due regard to the competing tensions of liberty, self-interest and administrative exigency . . . A related product of expanded judicial review flows from the ability to challenge decisions on non-procedural grounds. For example, an application raising excess of jurisdiction as the ground for review requires the court to consider the appropriate scope of decision-making, including questions of acceptable criteria and extraneous considerations. Thus, the new era of judicial scrutiny represents not only the development of fair procedures but has also enhanced the evolution of substantive prison and parole law. (at 63-64)

Subsequent decisions of the Supreme Court of Canada contributed to that evolution. A year after Martineau (No. 2), the Supreme Court took a significant step in the Solosky case, by expressly endorsing the proposition that "a person confined to prison retains all of his civil rights, other than those expressly or impliedly taken away from him by law" ( Solosky v. The Queen, [1980] 1 S.C.R. 821 at 823). In the same case, the court stated that the courts had a balancing role to play in ensuring that any interference with the rights of prisoners by institutional authorities is for a valid correctional goal; it must also be the least restrictive means available and no greater than is essential to the maintenance of security and the rehabilitation of the prisoner.

The Supreme Court of Canada laid another important milestone in correctional law in a trilogy of cases decided in 1985. In Cardinal and Oswald, Miller, and Morin, which involved challenges by prisoners to their confinement in administrative segregation and their transfer to the Special Handling Units, the highest level of security in the federal penitentiary system, the court ruled that prisoners have a right not to be deprived, unlawfully or unfairly, of the relative or "residual" liberty they retain as members of the general prison population; and that any significant deprivation of that liberty -- such as being placed in administrative segregation or a Special Handling Unit -- could be challenged through habeas corpus. Mr. Justice LeDain, mirroring the caution first expressed in Martineau (No. 2), observed that habeas corpus should not be invoked to question "all conditions of confinement," but does lie in respect of any "distinct form of confinement or detention in which the actual physical constraint or deprivation of liberty . . . is more restrictive or severe than the normal one in an institution," something different from simply the loss of privileges ( Morin v. National Special Handling Unit Review Committee, [1985] 2 S.C.R. 662 at 641. See also Cardinal and Oswald v. Director of Kent Institution, [1985] 2 S.C.R. 643 and R. v. Miller, [1985] 2 S.C.R. 613 ). In subsequent cases, the courts have held that habeas corpus is available to review not only placement in segregation or transfer to a Special Handling Unit, but any involuntary transfer to higher security where the regime of confinement is significantly more onerous and restrictive of liberty. (See Balian v. Regional Transfer Board and Warden of Joyceville Institution (1988) 62 C.R. (3d) 258 (Ont. S.C.) ; Ericson v. Canada (Deputy Director of Correctional Services) (1992) 10 C.R. (4th) 235 (B.C.S.C.) ; Fitzgerald v. Trono [1994] B.C.J. No. 1534 (B.C.S.C.) ).

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