The appellant was an inmate of Stony Mountain Institution serving a sentence of two years and four months. On December 31, 1982, he was involved in incidents with correctional officers and charges of possessing contraband, using indecent or disrespectful language to another person, an act calculated to prejudice discipline or good order of the institution, disobeying a lawful order of a penitentiary officer, and threatening to assault another person were laid against him under s. 39 of the Penitentiary Service Regulations (now replaced with the Corrections and Conditional Release Regulations). On January 6, 1983, the appellant appeared before a presiding officer and entered pleas of guilty to the charges of possessing contraband and disobeying a lawful order and pleas of not guilty on the remaining three charges.
Disposition of the charges to which he pleaded guilty was held in abeyance pending determination of the remaining three charges. Subsequently, charges of having contraband on January 4, 1983, and failing to obey a lawful order on January 20, 1983, were laid. To these the appellant pleaded not guilty. On February 3, 1983, by which time he had secured counsel, the appellant appeared before the Presiding Officer of the Inmate Disciplinary Court who thereupon adjourned the hearing in order to obtain written submissions from counsel for the appellant and for the Department of Justice on the request of the appellant to have counsel represent him at the hearing. The request was denied on April 11, 1983. The Presiding Officer held that s. 7 of the Charter does not create "a new wave of rights" and, as he was not persuaded that there were circumstances in the particular case which precluded the possibility of a fair hearing in the absence of counsel, he exercised his discretion and denied the request.
Howard brought an application to the Federal Court for review. It was refused on June 7, 1983, the trial judge holding that at common law he did not have a right to be represented by counsel in such proceedings and that section 7 of the Charter had not conferred on the appellant any new right to such representation. He found no basis for disagreeing with the Presiding Officer's decision. Howard appealed to the Federal Court of Appeal.
- Does the appellant have a right to counsel under s. 7?
- If so, is it a matter of discretion?
Chief Justice Thurlow, after reviewing the caselaw, concluded that the consensus of the common law was that there is a right to have counsel when the facts indicate the need for it, and to a discretion to allow it in other cases. Turning to s. 7, he concluded that what was at stake in the disciplinary hearing was Howard's liberty and security and his right not to be deprived of them other than in accordance with fundamental justice; liberty was at stake due to earned remission, and security of person as solitary confinement was one of the potential punishments he could face.
Then, did the risk of Howard's s. 7 rights reach the level of requiring him to be represented by counsel? Thurlow concluded that s. 7 had not created an absolute right to counsel in such proceedings, but the question would turn on a consideration of the case; its nature, gravity, complexity, capacity of the inmate, etc. In such a circumstance, the correct framing would not be one of discretion, but one of right. Applying this to the facts at bar, and noting that all of Howard's earned remission was at risk, he concluded that alone would reach the level of requiring counsel. Combined with the lack of particulars in some charges, and the vagueness of the charge of prejudicing discipline and good order, there was no doubt counsel was required.
- When considering the right to counsel under s. 7, one should consider, inter alia:
- the circumstances of the case;
- Need for reasonable speed in making their adjudication.
- Need for fairness between the parties.
- Seriousness of the charge and of the potential penalty.
- the nature of the case;
- Is it a question of law (greater right to counsel) or of fact?
- the complexity of the case; and
- the capacity of the affected party to understand the case and present their own defence.
- the circumstances of the case;
- When the case calls for the right to counsel under s. 7, it is not a matter of discretion, as under the common law, but a matter of right.
- Even where the circumstances do not point to a breach of fundamental justice, the effect of the law may may still affect residual liberty and therefore require greater procedural fairness.