In 1985 the issue of a prisoner's right to be represented by a counsel was again before the courts in the case of Howard. The difference this time was that the prisoner's argument was based not upon the common law duty to act fairly but section 7 of the Canadian Charter of Rights and Freedoms . Section 7 provides that:
Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.
Mr. Howard, who had been charged with five serious disciplinary offences at Stoney Mountain Institution, had requested that he be represented by counsel and had that request denied. He applied to the Federal Court for an order prohibiting the Independent Chairperson from continuing the hearing in the absence of a legal counsel, on the grounds that section 7 of the Charter had given constitutional force to the common law duty to act fairly and that he had a constitutional right to be represented at a disciplinary hearing at which his liberty was at stake, because he could be sentenced to either a loss of remission or punitive segregation. That argument was rejected by the trial division of the Federal Court. As result Mr. Howard's disciplinary hearing proceeded and he was found guilty and sentenced to forfeit 70 days of his remission.
The case was then appealed to the Federal Court of Appeal which held that Mr. Howard was entitled to counsel for defence of the charges against him. Chief Justice Thurlow held that the case attracted section 7 of the Charter in that Howard's liberty was at stake because his earned remission was in jeopardy in the disciplinary hearing of a serious charge. Howard had also argued that his security of the person was in jeopardy in that solitary confinement was also one of the possible sanctions for serious offences. The Chief Justice, without rejecting this argument, felt it sufficient to deal with the case solely on the basis of the liberty interest involved in the loss of remission. As to the effect of section 7, the Chief Justice had this to say:
I am of the opinion that the enactment of s.7 has not created any absolute right to counsel in all such proceedings. It is undoubtedly of the greatest importance to a person whose life, liberty or security of the person are at stake to have the opportunity to present his case as fully and adequately as possible. The advantages of having the assistance of counsel for that purpose are not in doubt. But what is required is an opportunity to present the case adequately and I do not think it can be affirmed that in no case can such an opportunity be afforded without also as part of it affording the right to representation by counsel at the hearing.
Once that position is reached it appears to me that whether or not the person has a right to representation by counsel will depend on the circumstances of the particular case, its nature, its gravity, its complexity and the capacity of the inmate himself to understand the case and present his defence. The list is not exhaustive. And from this, it seems to me, it follows that whether or not an inmate's request for representation by counsel can lawfully be refused is not properly referred to as a matter of discretion but is a matter of right where the circumstances are such that the opportunity to present the case adequately calls for representation by counsel". (  2 F.C. 642 at 662-63).
As to whether the particular circumstances in the Howard case required representation by counsel, the Chief Justice concluded that they did.
[T]he whole of the appellant's 267 days of earned remission were in jeopardy. In my view that alone suggests his need of counsel. Next there is the lack of particulars of offences of which three are alleged to have occurred at the same instant. Convictions on the two of the charges to which he pleaded not guilty might result in consecutive losses of 30 days' remission without reference to the Commissioner for what not inconceivably may have been the same act. Moreover, one of the three charges is that of an act calculated to prejudice discipline and good order, a notoriously vague and difficult charge for anyone to defend. These features, as well, suggest the need for counsel to protect the inmate. (at 665)
Mr. Justice MacGuigan, in a separate concurring judgment held that section 7 had the legal effect of enhancing the previous requirement stressed in the fairness cases of an adequate opportunity of answering the charge. Whether it necessitated representation by counsel in any set of circumstances was dependent upon a full analysis of the circumstances. In response to the question which naturally springs to mind from reading the Howard case as to what circumstances would not necessitate counsel, Mr. Justice MacGuigan in his judgment gave this answer:
In sum, other than, perhaps, in fact situations of
unique simplicity, I cannot imagine cases where a possible penalty of
earned remission would not bring into play the necessity for counsel.
Indeed, in my view the probability that counsel will be required for an
adequate hearing on charges with such consequences is so strong as to
amount effectively to a presumption in favour of counsel, a departure
from which a presiding officer would have to justify.
The right-enhancing effect of the Charter thus greatly increases the ambit
of protection afforded. (at 688) (emphasis added)
Based upon the Federal Court of Appeal's judicial pronouncement in Howard prisoners facing disciplinary offences before the Independent Chairperson could legitimately expect that henceforth there would be a significant change in the response to their requests for legal counsel. Those expectations of change would in very short order be dashed. The manner in which this occurred permits us to understand not only some of the limitations of litigation as a strategy of reform, but also the limited vision which the Correctional Service of Canada itself has of the Rule of Law.
The Federal Court of Appeal decision in Howard was handed down on 1 March 1985. Four months later, amendments to the Penitentiary Service Regulations were passed introducing, in place of the dual classification of serious and minor offences, a tripartite one of serious, intermediary and minor offences. Although both serious and intermediary offences were required to be adjudicated by an Independent Chairperson, there was a distinction between the two categories in that a prisoner could be sentenced to loss of remission only following conviction of a serious offence. In the case of intermediary offences, the most severe sanction was a term of solitary confinement.
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