The court found that 'as a practical matter ...administrative segregation is utilized in many instances as a disciplinary measure for an inmate's violation of a specific prison rule.'127 The court also stated that it did not matter whether a measure is characterized as 'punishment' or 'for the welfare of the institution'; rather, the relevant inquiry was 'what effect the measure has on the liberty of the prisoner involved. Regardless of how labelled, if commitment to administrative segregation constitutes a grievous loss, the minimum procedural safeguards are called into play.128

After setting out an extensive analysis of the conditions and regimes in punitive and administrative dissociation, the court held that 'commitment to administrative segregation constitutes a substantial loss of prisoner liberty, and that this loss may, in some instances, exceed the grievous loss resulting from punitive segregation confinement.'129

The court, in considering the minimum requirements of due process, looked not only at the need for a hearing prior to placing a man in solitary, but also at the nature of the review process. It concluded that 'an inmate facing administrative segregation should know not only the reasons for his segregation, but also that his situation and adjustment will be reviewed regularly with the goal being his return to the general prison population.'130

The issue of the application of due process protection in the prison came before the Supreme Court of the United States for the first time in 1974 in the case of Wolff v. McDonnell.131 In that case it was alleged that disciplinary proceedings in the Nebraska State Prison System violated the due process guarantee of the Fourteenth Amendment. The disciplinary procedures under review were similar to those in operation in the Canadian federal penitentiary system in 1975. The Nebraska legislation classified disciplinary offences and provided that, except in flagrant or serious cases, misconduct was to be punished by withdrawal of privileges. For flagrant or serious misconduct the legislation authorized the loss of statutory remission and confinement in a disciplinary cell. The legislation also authorized the use of segregation for administrative purposes not associated with punishment. The court, in reviewing the legislation, noted that forfeiture of statutory remission affected the term of confinement; placement in a disciplinary cell involved alteration of the conditions of confinement. Dealing with the matter of statutory remission (which was the specific matter before the court) Mr. Justice White, in the majority opinion, held that the prisoner's interest in remission 'has real substance and is sufficiently embraced within the Fourteenth Amendment liberty to entitle him to those minimum procedures appropriate under the circumstances and required by the due process clause to ensure that the state created right is not arbitrarily abrogated. This is the thrust of recent cases in the prison disciplinary context.'132

The court held that in the circumstances due process required written notice of charges, a hearing, the right to call witnesses and present documentary evidence in defence when this would not be unduly hazardous to institutional safety or correctional goals, and a written statement of fact-finding as to the evidence relied upon and the reasons for the disciplinary action taken.133 The Supreme Court rejected the idea that confrontation and cross-examination of witnesses were constitutionally required under the due process clause for prison disciplinary proceedings, and similarly rejected the argument that there was a right to counsel at such hearings.134

Although the complaint in Wolff was confined to the issue of remission Mr. Justice White did deal with the question of solitary confinement:

It would be difficult for the purposes of procedural due process to distinguish between the procedures that are required where good time is forfeited and those that must be extended where solitary confinement is at issue. The latter represents a major change in the conditions of confinement and is normally imposed only when it is claimed and proved that there has been a major act of misconduct. Here, as in the case of good time, there should be minimum procedural safeguards as a hedge against arbitrary determination of the factual predicate for imposition of the sanction.135

Thus, on the question of loss of remission, the Supreme Court of the United States had come to essentially the same conclusion as the Ontario Court of Appeal in the Beaver Creek case: such a decision must be preceded by a hearing in accordance with rules that ensure procedural fairness to the prisoner. The Beaver Creek case, however, would seem to lead to a different conclusion from that of Wolff and the other American decisions on the issue of solitary confinement. The difference flows from the very narrow approach taken in Beaver Creek to the concepts of 'liberty' and 'security of person' and the more expansive view taken by the American courts. The American approach represented an understanding of the realities of the prison experience and the impact of decisions made inside the prison on a prisoner's life. In McCann, the plaintiffs submitted that, given the evidence presented to the court, it was open to Mr. Justice Heald to find that a decision made under section 2.30(I)(a) did substantially affect a prisoner's civil rights to liberty and security of the person so as to require the decision to be exercised in accordance with the rules of fundamental justice and fairness.

The plaintiffs' argument up to this point was conceived within the traditional jurisprudence of administrative law as exemplified by the Beaver Creek case, in which the applicability of the rules of fundamental fairness was determined on the basis of a distinction between judicial and administrative decisions. However, the plaintiffs in McCann offered an alternative analytical framework which avoided the somewhat sterile task of labelling proceedings 'judicial' or 'administrative' and which would permit the court to address squarely the central issue of ensuring justice in prison administrative decision-making.

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