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In applying these statements to the correctional context, there are a number of distinguishing factors. While, as in labour legislation, the CCRA represents a comprehensive statute, in this case governing the administration of penitentiaries, neither the Segregation Review Board nor the warden is allocated the responsibilities of a labour relations board; neither is "called upon not only to find facts and decide questions of law, but also to exercise its understanding of the body of jurisprudence" relevant to the field of expertise. Indeed, the major finding of the Arbour Report was that correctional administrators lacked even a basic understanding of the law governing their actions. Only recently has the CSC developed a rudimentary form of legal training for correctional administrators, and as evidenced in the facts in Gary Weaver's case, the Segregation Board at William Head had a woeful lack of understanding of the legal functions of the Board under the CCRA. The Task Force on Segregation's recommendation that specialized training be given to the chairpersons of Segregation Review Boards and that a process of certification be introduced to test their legal and administrative competence has not been implemented, and Segregation Review Boards can make no claim to the kind of expertise that characterizes specialized boards such as labour boards.

One of the other factors identified in the Supreme Court jurisprudence is the purpose of the legislation constituting the administrative tribunal.

The purpose of the statute is often indicated by the specialized nature of the legislative structure and dispute-settlement mechanism, and the need for expertise is often manifested as much by the requirements of the statute as by the specific qualifications of its members. Where the purposes of the statute and of the decision-maker are conceived not primarily in terms of establishing rights as between parties, or as entitlements, but rather as a delicate balancing between different constituencies, then the appropriateness of court supervision diminishes . . . In Southam, the Court found (at para. 48) that the "aims of the Act are more 'economic' than they are strictly 'legal'" because the broad goals of the Act "are matters that business women and men and economists are better able to understand than is a typical judge" . . . While judicial procedure is premised on a bipolar opposition of parties, interests, and factual discovery, some problems require the consideration of numerous interests simultaneously, and the promulgation of solutions which concurrently balance benefits and costs for many different parties. ( Pushpanathan at para. 36)

While the general management of a penitentiary may be viewed as "a delicate balancing between different constituencies" -- in terms of protecting public safety, maintaining good staff relations, and providing for the rehabilitation of prisoners -- the particular provisions of the CCRA governing administrative segregation and involuntary transfers have everything to do with "establishing rights as between parties" and setting out "entitlements," in terms of providing for a right to notice, a sharing of information and written reasons for the decision. There are many instances in which a person trained and experienced in "corrections" has a better understanding of the issues than a "typical judge" -- for example, in deciding whether a particular offender could benefit from a specialized program. However, the decision to segregate a prisoner or transfer him to higher security is "correctional" only in the sense that the activity takes place inside a correctional facility. In all other respects, the decision, involving as it does the deprivation of residual liberty, and attracting as it does s. 7 of the Charter, is quintessentially "legal." While many decisions made by correctional administrators require the consideration of numerous interests simultaneously, the decision to segregate a prisoner or to transfer him to higher security based on alleged wrongdoing, as in Gary Weaver's case, is very much premised on a "bipolar opposition of parties," with the institutional authorities seeking to deprive the prisoner of his residual liberty and the prisoner resisting that deprivation. Factual discovery, far from being peripheral to the issue, lies at the heart of the inquiry.

A further relevant factor identified in the Supreme Court jurisprudence is the nature of the problem, particularly whether it is a question of law or of fact.

In general, deference is given on questions of fact because of the "signal advantage" enjoyed by the primary finder of fact. Less deference is warranted on questions of law, in part because the finder of fact may not have developed any particular familiarity with issues of law. ( Canada (Attorney General) v. Mossop, [1993] 1 S.C.R. 554 , at 599-600)

The "signal advantage" referred to here is the privileged position of the tribunal with respect to the assessment of evidence, in that it sees and hears witnesses. In the correctional context, while this is true for the decisions of Independent Chairpersons of disciplinary boards, it is not the case for decisions regarding administrative segregation and involuntary transfers. Consider again the facts in Gary Weaver's case. In none of the hearings of the Segregation Review Board were any witnesses called, and at Mr. Weaver's second thirty-day review the chairman of the Segregation Review Board acknowledged he was not aware of the underlying facts, nor had he read any of the written documentation relevant to lawful justification for continued segregation. In the case of the warden of William Head Institution, the situation was even further removed from the "signal advantage" of a fact-finding tribunal. The warden did not meet with Gary Weaver at any time during the eighty days he was confined in segregation.

There is a final factor which must be considered in determining where to locate correctional decision-making on the spectrum of standards of judicial review. The continuing pattern within the CSC of disregard for the law and the absence of a culture of respect for individual rights demonstrates a need -- highlighted in the Arbour Report -- for the intervention of the judiciary. Locating the standard of review at the most deferential point of the spectrum, that of patent unreasonableness, militates against the ability of the judiciary to maintain a high degree of vigilance in ensuring that the Rule of Law prevails in prison. Shifting the standard to either reasonableness or correctness, depending upon the nature of the particular decision, would enable the judiciary to take a vital place in the remedial tool box. (A recent example of applying the spectrum of standards approach to correctional decision-making is Tehrankari v. Canada, [2000] F.C.J. No. 495 F.C.T.D. ).

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