Where an institutional head is required to act judicially he must observe the principles of fundamental justice. The court held these principles to mean

that the inmate affected must be fully informed of the disciplinary offence he is alleged to have committed, that he be given a fair opportunity to present his CaSt and the evidence relevant to matters he is called upon to face, and that the decision of the institutional head be arrived at judicially upon material properly before him and not capriciously or in reliance upon some consideration not relevant to the charge.107

In Beaver Creek the prisoner's lawyer had argued that the superintendent's action infringed the provisions of section 2(e) of the Bill of Rights which requires a fair hearing in accordance with the principles of fundamental justice for the determination of a prisoner's rights and obligations. In response to this argument the Ontario Court of Appeal held that, on its interpretation of the Penitentiary Act, where the civil rights of a prisoner may be affected by the decision of an institutional head, there must be a fair hearing in accordance with the principles of fundamental justice, and thus there was no conflict with the Bill of Rights. In other words, the interpretation placed on the Penitentiary Act by the court in relation to decisions affecting the civil rights of a prisoner were as restrictive on the actions of an institutional head as the provisions of the Canadian Bill of Rights. By necessary implication the court held that section 2(e) of the Bill of Rights was inapplicable to administrative decisions not affecting a prisoner's civil rights.

On its face, the Beaver Creek case seemed to create substantial impediments to the plaintiff's arguments in McCann that confinement in SCU must be preceded by a hearing in accordance with the principles of fundamental, justice. Was not such a decision an administrative one affecting merely the 'place and manner of confinement' and hence non-reviewable? The plaintiffs in McCann demurred to this implication of Beaver Creek by pointing out to Mr. Justice Heald that in defining which prison decisions affected a prisoner's civil rights (thus requiring a fair hearing) and which did not, the Ontario Court of Appeal did not have before it any detailed evidence of the nature of those prison decisions and their impact on prisoners' lives. Mr. Justice Heald had had the benefit of over three weeks of extensive evidence on these matters and, the plaintiffs submitted, was in a better position than the Ontario Court of Appeal to draw conclusions as to whether, in light of the prison reality, a particular decision affected the civil rights of a prisoner.

Given this premise, the plaintiffs in McCann went on to point out several problematic features of the Ontario Court of Appeal's classification of prison decisions in light of the reality of the federal penitentiary system. In Beaver Creek, the court was quite prepared to consider a decision involving corporal punishment as judicial because of its impact on the prisoner's right to personal security. The court saw it as punishment upon the person as compared to punishment of the person such as, in its view, would be involved in the alteration of locale or nature of confinement. However, the plaintiffs submitted that the evidence of the effects of solitary confinement which had been presented to Mr. Justice Heald left no doubt that dissociation of the kind the plaintiffs had endured had a massive impact on a prisoner's right to personal security. The difference between a strapping and confinement in SCU is the difference between a physical impact and a psychological impact on personal security. The plaintiffs contended that in terms of its enduring quality, confinement in SCU left a far more indelible imprint on them than the purely physical imprint of the strap. The plaintiffs reminded Mr. Justice Heald of the evidence of Dr. Korn and Dr. Fox: 'The evidence simply is that if you keep people long enough, they will engage in self-torture, simply to focus the pain ...Physical pain which is definite, which they can control, is much more bearable than the torment they can neither understand nor control.'108

A second functional limitation of the Beaver Creek classification concerned the approach of the Ontario Court of Appeal to the concept of liberty. That approach was that upon the passing of sentence, the prisoner, for the period of his lawful confinement, loses all his rights to liberty. Liberty was seen here as an all-or-nothing proposition; one is either 'free' by being out of prison or 'unfree' by being in prison. The plaintiffs submitted that this is not in accord with the realities of prison life. That reality is that even after the fact of imprisonment, ~ prisoner retains a certain freedom of mobility and communication while in the general population of the prison. As one commentator put it, 'there is a significant quantum of institutional and traditional liberty to which every inmate remains entitled while incarcerated.'109 The plaintiffs called Mr. Justice Heald's attention to the qualitative change from confinement in the general population to confinement in the SCU and to Dr. Korn's evidence that the prisoner's placement in administrative segregation 'is the most fateful decision in his prison life.'110 The plaintiffs contended that the decision to place a man in SCU so dramatically affected the nature of his imprisonment, so dramatically curtailed his institutional freedom, that it is required to be made on a judicial basis.

In the absence of any other Canadian decision on the issue of when procedural fairness must be accorded in prison decision-making, the plaintiffs submitted that it was relevant to look at the case law that had been developing in the United States. A comparative inquiry, they argued, was particularly valid because many of the cases had been preceded by extensive trials in which the details of prison life and prison decision-making had been laid before the court, and because the legal issue before the American courts had been essentially the same as the one urged on Mr. Justice Heald: which prison decisions have such an important impact on a prisoner's life that they must be preceded by a fair hearing?

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