A Model Transfer Code

Gary Fitzgerald was fortunate in finding John Conroy, one of the few lawyers who specialize in correctional law, to challenge his transfer. Most transfers go unchallenged in the courts, not because there are no meritorious grounds for the challenge but because of the woeful inadequacy of legal aid for prisoners and the low priority given to such litigation by the legal profession. There is the additional problem, reflected in the Reasons for Judgement in the Fitzgerald case, that the courts have extended a significant degree of judicial deference to correctional administrators and will usually interfere only where the decision is patently unreasonable. To look to the courts as the ultimate vindicator of fairness in transfer decisions is to cast prisoners' rights to the winds of litigation. As with administrative segregation, the achievement of a fair transfer process requires a transfer code designed specifically to legislate the appropriate balance between the interests of prison administrators in exercising correctional authority to ensure safety and security and the interests of prisoners in being free from the arbitrary exercise of that authority.

The first component of such a code would be the substantive criteria for transfer. As outlined earlier in this Sector, some essential contours of these criteria are already set out in s. 28 of the CCRA and s. 18 of the CCR Regulations. Section 28 articulates the least restrictive environment concept and sets out the factors for determining the least restrictive environment for any particular prisoner. Section 18, which sets out the criteria for the tripartite classification of maximum, medium, and minimum security, focusses on the escape-risk potential, the associated potential degree of danger to public safety, and the degree of supervision required for the prisoner. Thus, placement in or transfer to maximum security requires that the prisoner presents "a high probability of escape and a high risk to the safety of the public in the event of escape" or "[requires] a high degree of supervision and control within the penitentiary." Under these criteria, the involvement of a medium security prisoner in offences such as hostage-taking, violence against other prisoners or staff, escape or attempted escape, or trafficking of drugs or other contraband would prima facie be grounds for transfer to higher security. A transfer code would also authorize transfer where a prisoner's disciplinary offences form a pattern of behaviour that demonstrate his unwillingness or inability to abide by the rules of the institution.

Transfer criteria, like those for administrative segregation, must deal with other situations. One, where the prisoner has been charged but not yet convicted of the offence which would qualify him for transfer to maximum security, illustrated by the Heide case; a second, where the prisoner is under investigation for such an offence, such as in the Schiere case, and a third, where there are reasonable grounds to believe that a prisoner is implicated in an offence but where, after investigation, no charge can be proved (for example, because the information is based upon confidential informants) illustrated by the Fitzgerald case.

In the first situation, the pre-charge transfer might be necessitated by the limited segregation facilities available in some medium security institutions or by the likelihood of a repetition of the offence, incitement to other prisoners or intimidation of potential witnesses. Similar considerations would apply in a case where there was an on-going criminal or disciplinary investigation. It should be remembered that under the Model Segregation Code I proposed, segregation pending the hearing of charges or on-going investigation would be subject to time constraints to ensure that the correctional and law enforcement authorities exercise all due diligence in bringing the case to trial or complete their investigations. Barring exceptional circumstances, the normal time limit is one month and under the Segregation Code, an overall 90 day limit for segregation would be imposed for all and any purposes including investigations. In my 1988 report for the Canadian Bar Association addressing the proposed CCRA, I argued that the same regime should apply to transfers to higher security. As in the case of segregation, these time constraints provide an important framework within which the correctional and law enforcement agencies have to complete their investigatory work and also provide the prisoner with the assurance that there are finite limits on the amount of time for which an investigation can justify restrictions on institutional liberty. If at the end of the three month period no charges have been laid, the prisoner would be entitled to be returned to his medium security status. This would not preclude further investigation by law enforcement but, at this point, the interests of law enforcement must give way to the presumption of innocence.

In any consideration of the principles of fundamental justice, the presumption of innocence can be viewed as a lodestar. As the Supreme Court has made clear, although it is a principle specifically protected by section 11(d) of the Charter of Rights and Freedoms, the presumption of innocence in penal law is also a fundamental principle of justice within s. 7, in the sense of being one of the "basic bedrock principles that underpin the criminal justice system" ( Reference Re Section 94(2) Motor Vehicle Act, [1986], 23 C.C.C. (3d) 289 , at 322 [1985] 1 S.C.R. 486 at ). To continue the segregation or transfer of prisoners after the expiry of a reasonable period to complete investigations, where no criminal or disciplinary charges are forthcoming, deprives those prisoners of the presumption of innocence. They are being treated, in effect, as if the allegations against them were well founded and therefore segregation or transfer to higher security was justified. Although section 11(d) of the Charter attaches the presumption of innocence to the point at which a person is "charged with an offence", this should not be read as precluding the operation of the presumption of innocence at an earlier stage for the purposes of s. 7 of the Charter. Section 11(d) is framed in this way to reflect the normal way in which the criminal process operates. Until a person has been charged with a criminal offence, the powers of the state to intrude into his life are very limited. Without such intrusion, there is no basis upon which the presumption of innocence can operate, nor is it necessary to protect the individual in terms of his liberty or security of the person. The realities of correctional life are different. In prison the authorities can and do intrude into prisoners' residual liberty. The transfer to maximum security is a paradigmatic case of such intrusion. Where that intrusion is based upon suspicion of involvement in a criminal or disciplinary offence, there is room for the presumption of innocence to operate before any charges are laid.

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