Prior to his appointment to the Federal Court, Mr. Justice MacGuigan had, as a member of Parliament, chaired the House of Commons Sub-Committee on the Penitentiary System in Canada. His judgement in Howard also addressed the nature of the judicial inquiry in determining what fundamental justice required in the context of penitentiaries.

What both the Canadian and the American cases indicate is that there are degrees of liberty, all protected in some way by a rule of due process of natural justice or fundamental justice, but not in the same ways. What there must always be is an opportunity to state a case which is adequate for fundamental justice in the circumstances. In other words, there is a sliding standard of adequacy which can be defined only in reference to the particular degree of liberty at stake and the particular procedural safeguard in question. The resolution may involve the balancing of competing interests. Here, the penitentiary setting is of capital importance in sorting out the interests in competition.

In such an atmosphere of discord and hatred, minor spats can set off major conflagrations of the most incendiary sort. Order is both more necessary and more fragile than in even military and police contexts, and its restoration when disturbed, becomes a matter of frightening immediacy. It would be an ill-informed court that was not aware of the necessity for immediate response by prison authorities to breaches of prison order and it would be a rash one that would deny them the means to react effectively. But not every feature of present disciplinary practice is objectively necessary for immediate disciplinary purposes. The mere convenience of the authorities will serve as no justification; as Lord Atkin put it in General Medical Consulate Council v. Spackman, "Convenience and justice are often not on speaking terms . . . " All that is not immediately necessary must certainly yield to the fullest exigencies of liberty. ( Howard, at 681-82)

In their insightful study, Cole and Manson had suggested that one of the other enhancing effects of the Charter has been to add greater legitimacy to the need for judicial intervention:

Prior to the entrenchment of the Charter, many courts found themselves unable or unwilling to transcend the era of deference to internal decision-makers in order to give proper consideration to the relationship between fairness and liberty interests. The Charter, however, focuses the judicial mandate when liberty is in issue. It is not so much that the content of fundamental justice is different from fairness, but rather that constitutional entrenchment has impressed the need for careful scrutiny and non-deferential application when a liberty interest is involved. The guarantee of fundamental justice does not require a reviewing court to jump higher; it may require it to jump sooner. (Cole and Manson, pp. 130-131)

Although the right-enhancing nature of the Charter has indeed resulted in a number of court judgements in which careful scrutiny and a non-deferential approach has been demonstrated, there are just as many judgements impressed with the attitudes and indeed the language of pre- Charter cases. One of the most litigated issues under section 7 of the Charter has involved challenges to the process by which prisoners are involuntarily transferred to higher security. These challenges have involved both the extent of the institution's obligation to provide sufficient details of the allegations to enable the prisoner to make an effective response and the further obligation of the institutional authorities to consider the prisoner's response before formulating a final decision whether the transfer should be approved.

As to the first issue -- the scope of the obligation to provide a prisoner with adequate notice of allegations -- consider the following two judgements of the Federal Court of Appeal. In Demaria a prisoner was transferred from a medium to a maximum security institution on the basis of an allegation that it was believed that he was responsible for bringing cyanide into the institution. His request for further details for the allegation was met with a blanket claim of confidentiality for all preventive security information. The Federal Court of Appeal in concluding that the prisoner had not been treated fairly, stated:

The purpose of requiring that notice be given to a person against whose interest it is proposed to act is to allow him to respond to it intelligently. Where, as here, it is not intended to hold a hearing or otherwise give the person concerned a right to confront the evidence against him directly, it is particularly important that the notice contain as much detail as possible, else the right to answer becomes wholly illusory. Indeed, the present case is an excellent example of the right to answer being frustrated and denied by the inadequacy of the notice. In the absence of anything more than the broad allegation that there were grounds to believe that he had brought in cyanide, the appellant was reduced to a simple denial, by itself almost always less convincing than a positive affirmation and futile speculation as to what the case against him really was.

There is, of course, no doubt that the authorities were entitled to protect confidential sources of information. A penitentiary is not a choir school and, if informers were involved (the record here does not reveal whether they were or not), it is important that they not be put at risk. But even if that were the case it should always be possible to give the substance of the information while protecting the identity of the informant. ( Demaria v. The Regional Classification Board and Payne [1987] 1 F.C. 74 at 77)

In Gill and Gallant v. Trono, two prisoners were transferred from Kent maximum security institution to the Special Handling Unit on the basis of a notice that they "were involved in the extortion of money and personal property from inmates, money from members of the community, threats of violence to other persons, and the procuring of and importation of drugs into Kent Institution. Specific detailed information cannot be provided as it may jeopardize the safety of the victims of your actions." The prisoners' challenge to their transfer was successful in the Federal Court Trial Division where the court, relying upon the previous decision in DeMaria, concluded that the notice was drafted in so general terms that it did not enable the prisoners, assuming their innocence, to refute the case against them. ((1988) 19 F.T.R. 150 ) The Federal Court of Appeal, however, reversed this judgement. ( [1989] 3 F.C. 329 ) Mr. Justice Pratte, in concluding that there had not been a breach of the duty to act fairly, stated "Parliament cannot have intended, when it gave the Commissioner and his delegates the power to transfer inmates from one penitentiary to another, that they should be bound by the rules of procedural fairness even when the application of those rules would endanger the lives of other inmates". (at 336) He then went on to consider whether there had been a breach of section 7 of the Charter. While concluding that "the transfer was not made in accordance with the principles of fundamental justice, since the respondent was not given a real opportunity to answer the allegation made against him," (at 340) Mr. Justice Pratte ruled that the violation of section 7 was justified by section 1 of the Charter. His reasoning was that the Penitentiary Act conferred on the Commissioner and his delegates wide discretion to transfer prisoners from one institution to another and that this was a reasonable limit prescribed by law within s.1. The court's enquiry on the section 1 analysis was contained in the following sentences.

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