The action was brought by way of statement of claim under section 18 in the trial division. A motion was made to strike the statement of claim on the grounds that it disclosed no cause of action and that the court had no jurisdiction to grant the relief sought. Gibson J granted the motion, holding that under the classification of Beaver Creek, the Segregation Review Board did not have any judicial or quasi-judicial functions; the board exercised purely administrative duties and therefore had no duty either to inform the plaintiffs at any time of any factual allegations or to afford them an opportunity to be present or to give evidence in reply. Furthermore, relying upon the Supreme Court decision in Mitchell, Gibson J held that any order pursuant to section 2.30, being purely administrative, cannot in any way contravene the Canadian Bill of Rights.

Within one month of the McCann judgment, the Federal Court of Appeal handed down its ruling in the case that was destined to replace Beaver Creek as the fulcrum of the jurisprudence of judicial review of decisions made behind prison walls. In Martineau and Butters v. Matsqui Institution Inmate Disciplinary Board (No. 1)161 two prisoners at Matsqui Institution were charged under Penitentiary Service Regulations 2.29(g) and (h) with the commission of an indecent act and with being two to a cell. As I have indicated earlier, comnmissioner's directives, made pursuant to the Penitentiary Act and the Penitentiary Service Regulations, establish a detailed procedural code which requires in cases of serious or flagrant offences written notice of charges, a summary of the evidence, a personal hearing, the right to make full answer and defence including cross-examination, a decision based on the evidence, and proof of guilt beyond a reason- able doubt. The charges here were classified as serious or flagrant ones and were referred to the Matsqui Disciplinary Board for a hearing. The prisoners pleaded guilty to the charge of being two to a cell, and not guilty to the charge of committing an indecent act. Both prisoners were found guilty, not of committing an indecent act but of being in an indecent position, and were sentenced to fifteen days' punitive dissociation. The prisoners alleged violations of the requirements of the commissioner's directive, stating in particular that they were not provided with a summary of the evidence against them; that the evidence of each was taken in the absence of the other; that the conviction was for an offence unknown to law; and that Martineau was never given an opportunity to give evidence with respect to the charge. A section 28 application for judicial review was commenced in the Federal Court of Appeal.

In a majority decision the court ruled that it had no jurisdiction to review the decision. Chief Justice Jackett stated:

In my view, disciplinary decisions in the course of managing organized units of people such as armies or police forces or in the course of managing institutions such as penal institutions are, whether or not such decisions are of a routine or penal nature, an integral part of the management operation. As a matter of sound administration, as such decisions touch in an intimate way the life and dignity of the individuals concerned, they must be. and must appear to be as fair and just as possible. For that reason, as I conceive it, there has grown up, where such decisions are of a penal nature, a practice of surrounding them with the phraseology and trappings of criminal law procedure. Nevertheless, in my view. disciplinary decisions are essentially different in kind from the class of administrative decisions that are impliedly required. in the absence of express indication to the contrary, to be made on a judicial or quasi-judicial basis in such a way that they can be supervised by judicial process. In my view. that is the principle underlying Howarth v. National Parole Board ...For that reason, I conclude that the disciplinary decisions here in question. even though of a penal nature, and even though they are required by administrative rules to be made fairly and justly, are not decisions that are required to be made on a judicial or quasi-judicial basis within the meaning of those words in section 28 of the Federal Court Act. In my view, the fact that statutory remission ...is made subject to reduction by such disciplinary decisions does not change the essential nature of such decisions. 162

In this last sentence Chief Justice Jackett disagreed with the view expressed in the Beaver Creek case that where a disciplinary decision affects statutory remission, because it has the effect of extending the period of imprisonment which the prisoner would otherwise serve, it is a decision that affects the civil rights of the prisoner as a person, and is therefore judicial and reviewable.

Chief Justice Jackett concluded his judgment with the statement that clearly signals the policy basis for his judgment and that of Mr. Justice Heald in McCann:

I should add that, while I came to the above conclusion on the analysis that I could make of the statute in the light of the best relevant jurisprudence, in my view the result accords with the realities of the situation. Assuming, without expressing any opinion on the matter, that there should be some improvement in the present arrangements for review of decisions of penitentiary disciplinary tribunals, it does not seem to me that a judicial review by an ordinary court can provide a review of a character that would improve matters.163

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