We have not had the benefit of any argument or of any evidence on the subject . . . However, the answer to the question appears to me to be so obvious that I do not need any evidence or argument to conclude that, in a free and democratic society, it is reasonable, perhaps even necessary, to confer such a wide discretion on penitentiary authorities. (at 340)

As Cole and Manson point out, the logical extension of this view is that penal authorities can, in the context of deciding to transfer a prisoner, ignore and violate any constitutionally protected interest, since the power to transfer is its own justification. This approach does not conform with the "stringent standards of justification" which ought to be applied whenever governmental action fails to meet constitutional standards. (Cole and Manson, p. 140)

Mr. Justice Pratte in justifying the breach of section 7 relied solely upon the affidavit of the Warden of Kent Institution that, in his opinion, disclosure of further facts relating to the extortion would endanger the lives and safety of the victims. Madame Justice Desjardins, in her dissenting opinion, argued for a more rigorous judicial enquiry before overriding a constitutionally protected right. Although the Warden claimed that the information received from some six informants was credible and reliable, the affidavit did not explain the reasons for that conclusion. Her Ladyship observed:

Where cross examination, confrontation or adequate information are not available to sift out the truth, some measures must exist so as to ensure that the investigation is a genuine fact-finding procedure verifying the truth of wrong-doing and that the informers are not engaged in a private vendetta . . . Reliability may be demonstrated in a number of ways, for instance, by an independent investigation or by corroborating information from independent sources. The affidavits produced by the appellant indicate that no independent investigation was carried out. Why then did the prison authorities feel they had the assurance of the reliability of the information received? Were the statements made under oath? Were there elements in the information gathered from the six informants that corroborated essential facts? Why was the respondent not put under a tight surveillance so as to allow the possible gathering of evidence against him? Was there anything that prevented the taking of this measure? Were the police informed particularly with regard to the activity outside the prison? (at 351)

The dissenting judgement of Madam Justice Desjardins seeks to ensure that liberty is denied only on a rational and consistent basis, particularly in areas of statutory discretion which are inherently open to abuse in the face of administrative appeals to security and expediency.

Courts have shown just as much divergence in the degrees of scrutiny they deem appropriate in reviewing the sufficiency of institutional responses to submissions of prisoners regarding allegations made against them. In Lee and Mathieson the issue involved the transfer of a prisoner from Kent Institution to the Special Handling Unit on the grounds that the prisoners were conspiring to escape from the institution by helicopter, Mr. Justice Rothstein of the Trial Division of the Federal Court stated,

It is not sufficient for inmates to be given the right to make submissions. The submissions must be considered by the decision-maker. The requirement that the decision-maker shall indicate that consideration been given to inmates' responses is not one that is satisfied by lip service. It is not sufficient for a decision to simply state, as was the case here, that consideration was given to an inmate's response. Such a statement does not go far enough in satisfying the requirement that the response was, in fact, considered. Decisions dealing with the liberty of persons, even within the confines of a prison, must come to grips with the principal elements of relevant submissions . . . If statements of the applicants in their submissions are not believed, then some explanation of why they are not believed must be given. ( Lee and Mathieson v. Deputy Commissioner, [1994] 1 F.C. 15 at 26-28)

Compare this standard of scrutiny with the judgement of Mr. Justice Bouck of the BC Supreme Court in a case decided two years after Lee. In rejecting a challenge by a prisoner to his transfer to higher security from William Head Institution, his Lordship, in commenting on Mr. Justice Rothstein's standard of enquiry, concluded,

There may be situations where the facts of a particular incident cry out for a detailed explanation from penitentiary officials, but as a general principle this imposes too onerous a standard. First and foremost the respondents are busy administrators. They are not trained lawyers or judges with little else to do but spend their days writing decisions. They are not administering the criminal law . . . prison authorities must act on the best information available. Sometimes it is unreliable and an individual inmate is wrongly charged or wrongly transferred. But given the nature of the inmate population and the necessity of preserving order there is often no other alternative. If a dangerous person is allowed to remain in the general prison population of a medium security institution, it is the other prisoners and staff who suffer the consequences because they have no place else to go.

Perhaps the petitioner was not dealt with perfectly. But the law does not demand perfection. This is because the system is run by human beings. Very rarely to any of us perform anything perfectly. Courts must always be vigilant in protecting the individual rights of an inmate who is dealt with in an unreasonable manner. On the other hand, we should realize the difficult situations that confront prison officials. ( Bachynski v. Warden of William Head Institution, 1995 B.C.J. No. 1715 B.C.S.C. at paras. 33-36)

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