The commissioner appealed from an order quashing his decision to transfer the respondent from a maximum security to a high maximum security penitentiary. The reason given in the written notification of recommendation for transfer was that he had been implicated in an extortion scheme, involving threats of violence, and procuring and smuggling drugs into the institution. Specific details of the scheme were not provided in order to protect the identity of the informants, and to avoid exposing them to death or physical harm. The Trial Division quashed the decision to transfer the respondent on the basis that it violated the principles of procedural fairness, in that the notice was too vague to enable the respondent to answer the allegations against him.
- Can information around the allegations be withheld from the respondent?
Pratte held that the requirements of procedural fairness vary with the circumstances. Although the notice was inadequate to allow the respondent to refute the case against him, because the Warden felt that further information could endanger the informants, the circumstances were sufficient to relieve the appellant from the obligation to give more detailed notice. Parliament could not have intended the Commissioner and his delegates to be bound by the rules of procedural fairness even when the application of those rules would endanger the lives of other inmates.
This did not end the analysis, as Gallant had also argued on the basis of s. 7 of the Charter and his right to fundamental justice. The right to an opportunity to be heard is also guaranteed by the principles of fundamental justice, which do not have the same flexibility as the rules of natural justice and of fairness. The decision to transfer Gallant was not made in accordance with the principles of fundamental justice, since he was not given a real opportunity to answer the allegation made against him. However, the violation of his s. 7 rights were justified under s. 1; the Penitentiary Act gave the Commissioner and his delegates the discretionary power to transfer an inmate from one institution to another (see s. 29 of the Corrections and Conditional Release Act]). In a free and democratic society, it was reasonable and perhaps even necessary to confer such a wide discretion on penitentiary authorities.
Marceau, concurring in the result, held that the audi alteram partem principle did not, in this circumstance, require that any additional information be provided to Gallant. While he agreed that in some circumstances surrounding correctional facilities this would be true, say in regard to a parole hearing, but as this was merely an administrative transfer for the orderly and proper administration of an institution, it did not attract the same level of procedural fairness. However, he disagreed with the application of Demaria to these facts as done by the trial judge, and thus agreed with the result of Pratte.
Desjardins, in the dissent, reviewed some American caselaw on prison transfers, and concluded that when confidential information is relied on by prison authorities so as to justify a disciplinary measure (including an administrative transfer), the record must contain some underlying factual information which can allow an assessment of the credibility of the informer or the reliability of the information. If cross-examination or confrontation are not available due to the need to protect the informer, there must be some kind of protection available to prevent private vendetta. The affidavits presented to the court gave no indication of any independent investigation, and thus he would have dismissed the appeal
- An administrative transfer of a prisoner affect the liberty of the prisoner and thus attracts s. 7 scrutiny.
- The rules of fundamental justice under s. 7 are not "variable and flexible" and thus any violation of them must be saved by s. 1.
- The audi alteram partem principle can change depending on the circumstances of the case.