The three prisoners initiated legal action challenging the legality of their initial transfers, on the basis that the institutional authorities had violated both the common law duty to act fairly and s. 7 of the Canadian Charter of Rights and Freedoms . In their affidavits, the prisoners set out the impact of the transfers on their institutional liberty and on their opportunities for rehabilitation and eventual reintegration into society. They described the differences in the institutional regimes of a medium and a maximum security institution, particularly regarding freedom of movement, visiting programs, work, and recreational opportunities. Mr. Schiere also identified more pervasive differences.

A prisoner is under considerably greater stress when dealing with every day situations in a maximum security setting. The potential for violence is much higher at Kent than at Matsqui. Whether or not an individual prisoner is directly involved in violence, it is very difficult for him not to be touched by this more violent atmosphere in which he exists. Prisoners at maximum security institutions are eventually shaped by such an experience and are more likely to become aggressive in reacting to particular situations. The stress of life in maximum security was, in my particular case, aggravated by the fact that I am required to live under a cloud of presumptive guilt for the killing of another prisoner. It has become a common assumption among prisoners and staff alike that if I were not guilty of this crime, I would not have been transferred from Matsqui. My protestations of innocence fall on ears which have already predetermined my criminal involvement in this incident. This affects in a very negative way my relationship with both staff and other prisoners and renders it much less likely that I will be given favourable consideration in any decisions affecting my institutional program.

The Schiere case never went to trial. A few days prior to the hearing date, the Department of Justice agreed to a consent order setting aside the transfers and returning the three prisoners to their medium security status.

In seeking to construct a fair transfer process, it is important to understand how far the standards of justice that prevail inside prison depart from those outside. Had Mr. Schiere, Mr. Pelletier, and Mr. Angus been free men, their liberty could not have been curtailed on the basis of an ongoing criminal investigation. The limits on police powers of investigatory arrest were set out by Mr. Justice Martin in R. v. Dedman :

A peace officer has no right to detain a person for questioning or for further investigation. No one is entitled to impose any physical restraint upon the citizen except as authorized by law, and this principle applies as much to peace officers as to anyone else. Although a peace officer may approach a person on the street and ask him questions, if the person refuses to answer the police officer must allow him to proceed on his way, unless of course, the officer arrests him on a specific charge or arrests him pursuant to section 450 of the Code where the officer has reasonable and probable grounds to believe that he is about to commit an indictable offence. ( R. v. Dedman (1981), 23 C.R. (3d) 228 at 242-43)

In R. v. Duguay, Chief Justice Mackinnon identified the fundamental principle involved here:

It is repugnant to our concept of the administration of criminal justice and to the rights of citizens in the free and democratic society to make them subject to arbitrary arrest for investigative purposes. ( R. v. Duguay (1985), 45 C.R. (3d) 140 at 150)

Had Mr. Schiere, Mr. Pelletier and Mr. Angus been arrested, they would have been told the reasons for their arrest and have had the right to be brought before a judge within twenty-four hours; at that point, these charges would have to be brought forward and the men would have the right to seek bail. They would have the right to test the cases against them at a preliminary inquiry, and ultimately the Crown would bear the burden of proving its case beyond a reasonable doubt at a trial with the full protection of criminal due process.

But Mr. Schiere, Mr. Pelletier, and Mr. Angus were not free men. As prisoners, their institutional liberty could be severely curtailed by a transfer from medium to maximum security without a charge and without any procedure for testing the case against them. The existence of a police investigation was deemed sufficient to maintain their maximum security status, even though police acknowledged that the investigation was open ended and would be concluded only when a charge was laid. Mr. Schiere and Mr. Pelletier were both serving life sentences. If the power to transfer them to maximum security pending the completion of an investigation of a criminal offence was subject to no substantive limits, they could be kept in maximum security for many years, In fact, Mr. Schiere spent nineteen months in maximum security, Mr. Angus and Mr. Pelletier twenty-two months. Had legal action not been initiated, their maximum security confinement would likely have been much longer.

The prisoners in the Schiere case, in their grievances and affidavits, clearly set out their sense of injustice in being transferred without the laying of specific charges or the benefit of a hearing at which they could defend themselves. What interests of correctional authorities could be presented as a counterpoint?

It is no doubt important that wardens have the authority to remove prisoners they see as serious threats to the stability of the institution, whether those threats take the form of violence, intimidation of other prisoners, introduction of or trafficking in contraband (particularly drugs), undermining of staff authority, or breaches of physical security. Some of these threats take the form of overt action that is witnessed by staff members and can be dealt with through a formal charge, either under the prison disciplinary code or in outside court. Following conviction on such a charge, a transfer to higher security can be justified as flowing from the clearly adjudicated finding of guilt.

In some cases, the threat is not witnessed by staff but comes to their attention in the form of a prisoner victim. The victim may not be able, as in the case of the murdered Belliveau, to give information on the attack, or he may be unwilling to provide it because of the prisoner code's prohibition on "ratting." Other prisoners who have witnessed the events or have information about them may be prepared to breach the prohibition on ratting under a promise of informant confidentiality, coupled with the expectation (whether express or implicit) of consideration for institutional benefits such as transfer to lesser security or recommendation for parole. There is a constant flow of information in a prison, and prison authorities develop a sense of the reliability of different sources.

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