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The second of the plaintiffs' primary claims was that confinement in SCU without notice of charges. without a hearing before an impartial decision- maker, without a right to make full answer and defence. and without a right to present and cross-examine witnesses deprived the plaintiffs of the right to a fair hearing in accordance with the principles of fundamental justice and contrary to the provisions of section 2(e) of the Canadian Bill of Rights, and of the right not to be deprived of the security of the person except by due process of law. as guaranteed by section l(a) of the Bill of Rights.

The conceptual thread which linked this part of the plaintiffs' case was procedural fairness. Whereas the 'cruel and unusual punishment or treatment' argument sought to place substantive limits on the conditions under which the state could confine those prisoners who, for legitimate penal purposes, were required to be segregated from the main prison population, the procedural-fairness argument sought to gird the legitimate exercise of state authority with sufficient procedural protection to ensure that power was exercised in a fair and just manner to prevent its abuse. The concern underlying both these arguments is the need to place limits on carceral power at the point of its most draconian exercise.101

The plaintiffs' claims to procedural fairness were conceived within the tradition of Howard's and Moylan's insistence on public and visible superintendency of the prisons and of an amply developed administrative-law framework which has at its centre 'the assumption by the courts of supervisory powers over certain tribunals in order to assure the proper functioning of the machinery of government.'102 Yet at the time of the McCann trial there was a remarkable dearth of Canadian judicial authority dealing with the rights of prisoners to procedural fairness in disciplinary decisions within the prison walls. In contrast with the well- developed jurisprudence on prisoners' rights in the United States, the Canadian courts had followed the traditional hands-off approach to prison cases. Only in the case of R. v. Institutional Head of Beaver Creek Correctional Camp, ex parte McCaud103 had an appellate court countenanced the possibility of judicial review of a prison decision on the basis of lack of procedural fairness. In that case a prisoner in a federal penitentiary applied by way of a writ of certiorari to review a disciplinary decision made by the superintendent of the institution. The sole issue before the court was whether an institutional head acting in his disciplinary capacity was amenable to a writ of certiorari if he acted without jurisdiction. The applicant alleged that he was denied a hearing, was denied the right to give evidence, and was not told the charges against him, and that the punishment imposed was not authorized by law. Although the court did not have before it sufficient particulars of the acts of the superintendent that were objected to, the Ontario Court of Appeal felt it desirable to consider generally 'the implications of an institutional head acting with respect to discipline imposing sanctions for infractions of discipline.104

The court held that although the major commitment of an institutional head is to make administrative decisions not amenable to judicial review, there were circumstances where the scope of his office required him to act in a judicial manner because his decision may affect the civil rights of the prisoner.105 In such cases his decisions were reviewable. The court, in distinguishing between decisions that were purely administrative in character (and hence non-reviewable) and those that were required to be exercised judicially (and hence reviewable), stated that the proper test to apply was 'whether the proceedings sought to be reviewed have deprived the inmate wholly or in part of his civil rights in that they affect his status as a person as distinguished from his status as an inmate.'106

The court enumerated the civil rights to which a prisoner is entitled that may be affected by the acts of the institutional head. The court stated that since the prisoner's right to liberty was nonexistent during the period of his lawful confinement, all decisions of the officers of the penitentiary service with respect to the place and manner of confinement were exercises of authority which were purely administrative. Also, the withdrawal of or restrictive interference with privileges, the normal punishment for minor disciplinary offences, and the crediting or abstaining from crediting of earned remission were not regarded by the court as acts affecting any civil rights of the prisoner as a person, and hence were administrative and non-reviewable. The court held that forfeiture of statutory remission, since it extended the length of imprisonment, affected a prisoner's right to liberty, and hence the decision to forfeit must be exercised judicially. The court also held that the ordering of corporal punishment was a punishment that affected the civil rights of a prisoner to personal security and was therefore the exercise of a power that was by its nature judicial.

The Beaver Creek court went on to find that a prisoner became entitled to certain statutory rights that were contained in the Penitentiary Act and the regulations made thereunder. Non-observance of provisions in the act of its regulations would have a debilitating effect on the institutional head's jurisdiction and would be reviewable. However, commissioner's directives made pursuant to the act and regulations (and which contain the substance of the procedural code governing the conduct of disciplinary hearings in the penitentiary) did not confer any rights on prisoners, being in the realm of administrative policy. Non-observance of these directives would not give rise to a denial of prisoners' rights sufficient to support judicial review.

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