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December 24, 2005


On December 22, 2005 the Supreme Court of Canada handed down its judgment in May v. Ferndale et al. In an earlier News item dated May 18, 2005, I explained the judicial history of these cases and the important issues at stake in terms of prisoners access to timely judicial review. The Supreme Court rejected the restrictive interpretation placed on the availability of habeas corpus by both the B.C. and Ontario Courts of Appeal and re-affirmed its own 1985 rulings in the Miller, Cardinal and Oswald, and Morin trilogy of cases under which the Provincial Superior Courts and the Federal Court of Canada have concurrent jurisdiction to review decisions that affect a prisoner’s residual liberty rights. Justices LeBel and Fish wrote:

Our review of the relevant factors favours the concurrent jurisdiction approach. This approach properly recognizes the importance of affording prisoners a meaningful and significant access to justice in order to protect their liberty rights, a Charter value. Timely judicial oversight, in which provincial superior courts must play a concurrent if not predominant role, is still necessary to safeguard the human rights and civil liberties of prisoners, and to ensure that the rule of law applies within penitentiary walls.

The Court also quashed the prisoners transfers from minimum to medium security because CSC failed to disclose to the prisoners the scoring matrix for the computerized security classification rating tool that CSC now uses in determining security classification. The Court re-affirmed that procedural fairness generally requires that the decision-maker disclose the information relied upon. The individual must know the case he has to meet. If the decision-maker fails to provide sufficient information, his decision is void for lack of jurisdiction. In order to assure the fairness of decisions concerning prisoners, s. 27(1) of the CCRA requires that CSC give the prisoner, at a reasonable period before the decision is to be taken, “all the information to be considered in the taking of the decision or a summary of that information”. Here, CSC’s failure to disclose the scoring matrix which was available at the relevant time, despite several requests by the prisoners, was a clear breach of procedural fairness and of its statutory duty of disclosure. Without the scoring matrix which provides information on the numerical values to be assigned to each factor and to the manner in which a final score is generated by the computerized tool, the prisoners were deprived of information essential to understanding the computerized system which generated their scores and were prevented from formulating a meaningful response to the reclassification decisions. The prisoners knew what the factors were, but did not know how values were assigned to them or how those values factored into the generation of the final score. Since CSC concealed crucial information and violated in doing so its statutory duty of disclosure, the transfer decisions were made improperly.

In light of the Supreme Court’s welcome ruling on what constitutes necessary disclosure, CSC will now be required to provide prisoners with copies of the security classification rating tool and their individualized scoring matrix.

Read the full judgments.

Michael Jackson