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As I have indicated, the McCann plaintiffs' claims to due process were based on alternative arguments: that the decision to segregate was quasi- judicial rather than administrative, or that independent of its classification and even if it were deemed to be an administrative decision, it was required to be made fairly. On either basis a hearing and other procedural safeguards were required. Mr. Justice Heald, in the few pages of his judgment devoted to this issue, does not deal at all with the plaintiffs' arguments on the duty to act fairly. Given that the plaintiffs advanced the view that the fairness concept, because of its inherent flexibility, was particularly appropriate to the resolution of the issues before the court, this omission is extraordinary. The judgment of the court was concerned solely with the question of whether the decision to segregate is of a quasi-judicial or an administrative nature. Mr. Justice Heald, after citing the trilogy of Supreme Court parole decisions in McCaud, Howarth, and Mitchell for the proposition that the parole board in the discharge of its functions must have a broad untrammelled discretion not open to question on appeal, then proceeded to consider the nature of the function entrusted to the institutional head of a penitentiary under section 2.30(1Xa). The whole of his analysis of this issue is contained in one paragraph.

When it is considered that the inmate population of the BC Penitentiary was 530 in January of 1974... and that most of the other federal penal institutions have populations of several hundreds each, that almost inevitably such an institution wil1 be housing dangerous unpredictable inmates, with a long history of crimes of violence, that many of the inmates had a record of escapes, hostage taking, and a tendency to create disturbances or riots within the institution, it becomes clear that the institutional head must have the power to act decisively and expeditiously to quel1 disturbances and isolate the offenders, for the protection of other inmates, the staff of the institution, the property of the institution, and the public at large. An example of this kind of situation occurred in October of 1973 at the BC Penitentiary when a serious inmate disturbance, described by some of the inmates as a 'riot' took place. Immediately thereafter it was necessary to incarcerate some 89 inmates in the SCU. To say that in these circumstances Regulation 2.30 requires due process before administrative dissociation would render the administration powerless and a chaotic situation would result. The same comment could be made with regard to a mass escape attempt. I am satisfied, from a consideration of the plain words of Regulation 2.30(1)(a)), when considered in the context of the scope of the functions of the institutional head, that the decision to dissociate under Regulation 2.30(1) is purely administrative and neither section l(a) nor 2(e) of the Bill of Rights apply so as to entitle the Plaintiffs to the declaration they seek.159

Mr. Justice Heald's rejection of the plaintiffs' argument that the decision to segregate should be circumscribed by the procedural due process is premised entirely on the assertion that because emergencies (such as riots or mass escape attempts) may give rise to the need to segregate, it would render the penitentiary authorities impotent if they were required to hold hearings in these circumstances. The plaintiffs acknowledged that in an emergency the administration must be able to act summarily and take remedial action which could include segregation of prisoners. But to acknowledge this does not in any way preclude the possibility of a hearing process when the emergency has receded or in the more common situation where the decision to segregate is made in the absence of an emergency. Mr. Justice Heald's analysis, which uses mass escapes or riots as the paradigms that necessarily preclude a claim to procedural due process for the prisoner placed in segregation, is far from compelling.

Underlying Mr. Justice Heald's decision on the procedural due process arguments in the McCann case is a clear judicial reluctance to become involved in the ongoing review of prison decision-making, a reluctance made manifest in subsequent decisions rendered by the Federal Court of Appeal, and particularly through the judgments of Chief Justice Jackett. I intend to conclude this review of the legal arguments surrounding McCann with an analysis of the subsequent decisions concerning tQe reviewability of prison decision-making because, while they make pat clear the Federal Court of Appeal's rationale for maintaining a hands-off approach, they ultimately provide vindication for the plaintiffs' arguments in the McCann case.

In the same month that Mr. Justice Heald rendered his decision in McCann, another judge in the Trial Division of the Federal Court of Canada entered a parallel ruling in the case of Kosobook and Aeilick v. The Solicitor-General of Canada et al. 160 In that case the plaintiffs had been placed in administrative segregation at Millhaven Institution from January to September 1975; they were confined to segregation cells for twenty- three hours a day with restricted privileges. The initial segregation had followed the stabbing death of another prisoner, and the plaintiffs had been advised that they had been segregated for the good order and discipline of the institution. They were told that this decision was based on an investigation into the stabbing incident in which they were the suspects. They had learned that no charges would be laid but that they would be kept in segregation under section 2.30(I)(a). The Segregation Review Board reviewed their cases monthly, but they were given no prior notice of these hearings and were not allowed to attend. Requests by their counsel for a hearing, the reasons for the decisions, and copies of the material on which the board relied were all denied. The plaintiffs claimed that their segregation under these circumstances was a denial of natural justice; a denial of their right to an unbiased tribunal; a decision made in an arbitrary manner; and an infringement of the Canadian Bill of Rights in that they were not afforded due process of law and were being held in arbitrary detention.

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