A case which sheds some light on the application of the presumption of innocence in the prison context is Morin v. National SHU Review Committee [1985], 1 F.C. 3 , a decision of the Federal Court of Appeal. The prisoner, Mr. Morin, was charged with the first-degree murder of another prisoner. Subsequently he was transferred from medium security to the Special Handling Unit. Mr. Morin subsequently stood trial on the murder charge and was acquitted. Notwithstanding his acquittal, the authorities refused to transfer Morin back to medium security. The Federal Court of Appeal held that the authorities misdirected themselves in law in refusing to give full effect to the criminal acquittal.

Another way of conceptualizing this result is that a prisoner charged with an offence starts the trial under the mantle of the presumption of innocence. If he is acquitted at the trial that presumption becomes incontrovertible so far as any further administrative sanctions of a penal nature are concerned. It is submitted that a prisoner who has never been charged with an offence in the first place is in exactly the same position. In the absence of any charge he is to be conclusively presumed innocent of any offence. Administrative sanctions of a penal nature such as a transfer to higher security can no more be predicated upon an offence for which the prisoner has never been charged than they can upon an offence in respect of which he has been acquitted.

As in the case of administrative segregation, the involuntary transfer decision process raises the issue of whether the decision making should remain with correctional administrators or be allocated to an independent decision maker. In the case of administrative segregation, I have argued that the involvement of an independent decision maker is a pre-requisite to a fair process, although the relationship between such an independent decision maker and the correctional authorities would be different in cases of involuntary as opposed to voluntary segregation. In the case of involuntary transfers, the same kind of careful analysis is required to design a process which builds upon the strengths of independent adjudication while recognising the expertise of correctional administrators. The case for an independent hearing officer is most clearly demonstrated when an adjudicatory process is involved in which judgements are to be made regarding disputed factual allegations or between competing interests (for example, due process as against correctional control values). The case for in-house decision making by correctional authorities is strongest in cases where discretionary judgements are required in the application of correctional policy. This division of function is easily identified at either end of the spectrum. The hearing of a disciplinary charge is a clear example of the former type of judgement; decisions as to how a particular correctional program is delivered in a particular institution is an example of the latter. The transfer decision cannot be located exclusively in one or other of these categories. However, in different situations, the decision to transfer moves closer to one or the other end of the spectrum and this is helpful in shaping an appropriate procedure which locates the decision-making power in a principled way.

Let us take the situation of a prisoner who has been convicted in a medium security institution of a disciplinary offence which is a qualifying offence for return to maximum security. Even though the critical determination as to the commission of the offence has been made, this does not mean that the prisoner will automatically be transferred. Under the present policies the authorities consider other factors such as the prisoner's prior institutional record, his involvement with ongoing programmes which may not be available in another institution, and the proximity of his release back into the community on statutory release. In addition, there are other factors which are not specific to the particular prisoner. These have to do with the extent to which the maximum security institution is overcrowded and whether other prisoners have higher priorities for transfer. The weighing of these considerations and the judgement as to whether they are sufficiently compelling to counterbalance the fact that the prisoner has committed an offence qualifying him for transfer, is appropriately one for the correctional authorities to make.

Where transfer to maximum security is authorized upon conviction of a designated offence, the issue becomes whether or not the convicted prisoner should be permitted to remain in medium security. This judgement is best left to correctional authorities because of the many considerations to be taken into account. Under a transfer code, warden's application for transfer would be reviewed by a Regional Transfer Board, who would make their decision after a hearing at which the prisoner had a right to appear with a representative of his choosing. This representative would help the prisoner marshal facts and arguments supportive of his case to remain in medium security. The role could be filled by a lawyer or by someone else -- a prisoner's wife, for example, upon whom a transfer might fall most harshly. The Board would also assess the impact of a transfer on the prisoner's institutional programs and release plans and consider whether a less restrictive alternative would be appropriate -- for example, a suspension of the transfer under specific conditions. The Board's decision, and the reasons for it, would be supplied in writing.

In cases where a Warden seeks to transfer a prisoner to higher security pending investigation of a disciplinary or criminal charge, the decision-making function shifts to the adjudicatory end of the spectrum, where competing interests become more acute. In the instance of transfer pending an investigation, such as in the Schiere case, the decision-maker must determine whether there are reasonable and probable grounds for implicating the prisoner in an offence qualifying for transfer and must ensure compliance with the time line on the conclusion of that investigation. Since this is a situation in which factual allegations are likely to be in conflict, and also one in which there are competing interests -- warden's in acting upon information he feels reliably implicates the prisoner, and the prisoner's in relying upon the presumption of innocence -- the decision-maker should be independent of the correctional administration and the procedure should parallel that set out in my Model Segregation Code for pre-trial and investigatory segregation.

The case for an independent adjudicator is even more compelling where the institution seeks to justify an involuntary transfer on the basis of serious allegations which, because of the need to protect prisoner informants, are not the subject of disciplinary or criminal charges. The Fitzgerald case fits into this category. In this situation, the institution judges the prisoner to be guilty even though that cannot be proved in either a court of law or disciplinary court. In these cases, the process of notice, rebuttal and review represents little more than a formality where the end result is never in doubt. That result is not just that the transfer is affirmed but that the allegations are presumed to be true so that the prisoner thereafter is judged as if he were found guilty. Dick Schiere, in his grievance documents, spoke of the depth of prejudice this caused in his interactions with correctional staff and other prisoners. Judicial review of transfer decisions is problematic not only because of the limitations of legal aid and the judicial deference extended to correctional administrators but because even a successful challenge takes an inordinate amount of time, particularly when measured from a segregation cell or a maximum security institution. In Fitzgerald, Mr. Justice Thackray's judgement came down almost two years after Mr. Fitzgerald had been transferred from William Head to Kent. What is required, as in the case of segregation reviews, is a front-end review process in which the institution's case and the prisoner's answer can be assessed, in which claims to maintain confidentiality of information can be weighed and measures taken to ensure that deprivations of liberty are not founded on the quicksand of secret information.

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