I take the view that citizens themselves are often in the best position to deal with their own problems (including legal problems) if they possess the right tools. **
With this in mind my website will provide information on how the individual can approach problems and make the best case in disputes with prison (and other government) authorities.
My first attempt will deal with fairness in government staff decisions.
In essence what we are talking about here is future decisions. Especially in a prison environment, where there is a substantial imbalance of power between staff and residents, decisions can have a real adverse effect on your rights. The Courts have long since established rules that require government decision-makers to provide fairness to individuals about whom they intend to make “adverse” decisions (decisions that restrict rights and entitlements).
There are a number of “levels” of fairness that government agencies and employees must observe when they intend to make decisions that might adversely affect citizens, including prisoners and people on conditional release. Accordingly, a decision to deny day parole usually attracts more of a duty to ensure fairness than a decision to deny a visit to the library. The legal reasoning behind this distinction is that:
The more a person’s rights could be affected by a decision, and the more complex the facts and issues that could bear upon the decision, the higher the level of fairness that is imposed on the government and its agents.
The most complex decisions, those that affect relatively crucial rights are usually reached after a hearing, where the prisoner has the chance to face the decision-maker and to make verbal arguments and present evidence in various ways. This “high end” type of procedure will be the subject of a future blog.
At the “low” end of the fairness spectrum we find “administrative fairness”, which normally applies to individual administrative decisions made without benefit of a hearing.
Administrative fairness is a concept developed by Mr. Justice Pigeon in the Supreme Court decision in Nicholson v. Haldimond-Norfolk (Regional Municipality)[1.] In that case, a probation officer in his initial period of services was dismissed without any opportunity to dispute the decision before it was made. The Court held that he was entitled to a basic level of fairness. He should have been informed of the pending decision and the information that the authorities intended consider. Then he should have been given the opportunity to make representations, which the authorities should consider in making the decision. There is no guarantee in this common law test that the information will be provided to the person in writing or that he will have the opportunity to make his representations in writing. Nevertheless the right is there. Moreover, the cases point out that the decision-maker has a duty to consider the representations in the making of the decision and to produce reasons for the decision that demonstrably indicate that it has done so.
This test has prevailed over the years and is reflected in many statutes and Regulations. In the federal prison system the prime provision in this respect is s. 27 of the Corrections and Conditional Release Act, which sets out very clear rules for administrative fairness and permits authorities to refuse to disclose information to prisoners only when strictly necessary:
27. (1) Where an offender is entitled by this Part or the regulations to make representations in relation to a decision to be taken by the Service about the offender, the person or body that is to take the decision shall, subject to subsection (3), give the offender, 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.
(2) Where an offender is entitled by this Part or the regulations to be given reasons for a decision taken by the Service about the offender, the person or body that takes the decision shall, subject to subsection (3), give the offender, forthwith after the decision is taken, all the information that was considered in the taking of the decision or a summary of that information.
(3) Except in relation to decisions on disciplinary offences, where the Commissioner has reasonable grounds to believe that disclosure of information under subsection (1) or (2) would jeopardize
(a) the safety of any person,
(b) the security of a penitentiary, or
(c) the conduct of any lawful investigation,
the Commissioner may authorize the withholding from the offender of as much information as is strictly necessary in order to protect the interest identified in paragraph (a), (b) or (c).
The Section specifies that the rules apply to provisions of the CCRA or the Corrections and Conditional Release Regulations (“CCRR’s”) where the “right to make representations” is specifically stated . I would argue that this limitation is not strictly true. As long as a decision might adversely affect the rights of a prisoner, the common law principles apply, as in the Nicholson decision, above. In any event, there are several provisions in the CCRA and the CCRR’s that do set out a right to the protections of s.27. These include, for example (for decision not involving hearings):
- proposed decisions affecting the population as a whole or groups within it (s.74 CCRA)
- penitentiary placement (s.11 CCRR’s)
- involuntary transfers (s.12 CCRR’s)
- “emergency” involuntary transfers (s.13 CCRR’s) [note that the administrative fairness occurs after the transfer in this case]
- decision to maintain a prisoner in an institution to which he was transferred for assessment purposes (s.14 CCRR’s)
- return of a seized item to the owner of the item (s.59 CCRR’s)
- where required to submit to non-random urinalysis ( s.57 CCRA and s.62 CCRR’s)
- where required to submit to urinalysis at regular intervals (s.57 CCRA and s.65 CCRR’s)
- suspension of visits (s.92 CCRR’s)
- suspension of visits by a Judge or a Member of Parliament (s.93 CCRR’s)
- interception of communications (correspondence, phone calls, communications during a visit (s.94 CCRR’s [note: stricter rules apply for “privileged” correspondents, e.g. lawyers, see ss. 94(2)]
- prohibition of an inmate assembly (s.98 CCRR’s)
- denying an inmate the right to attend an assembly (s.99 CCRR’s)
Other entitlements to administrative fairness are set out in policy, for example:
- CD 022 – media relations, recourse where institution plans to deny a press interview with a prisoner
- CD 041 – incident investigations, all persons being interviewed to be informed of the duty to act fairly
- CD 083- inmate committees, right to make representations where institutional head intends to remove an inmate committee member
- CD 085 – interception of phone calls and correspondence
- CD 700 – Correctional Interventions
- CD 705-7 – Placement and Security Classification decisions
In all of these situations, prisoners and person on community release should expect to:
a) be informed of the information that will be considered in making a decision
b) have a reasonable opportunity (sufficient time and access to appropriate rules) to make representations about the proposed decision
c) be provided evidence that the representations were considered and how they were considered
This means that the information provided to the prisoner must be the only information that is relied upon [apart from safety or security information that MUST be kept confidential] If the reasons for the decision show that other information was used, the duty of fairness has been breached and the prisoner should have the opportunity to make representations about the information that was not communicated before the decision.
With respect to the reasons provided for the decision, a statement such as “we have considered your representations” without some kind of explanation of why the representations were rejected is also a breach of the duty.
It is important that prisoners keep a careful record of all information related to the decisions – from staff and from the prisoner. If information is provided in verbal form, without a written record, the prisoner should make a point of recording this in a timely fashion, so that it can be used to argue the decision, if necessary.
If a decision is made without proper administrative fairness, the normal course of action is to grieve the decision under the Offender Complaints and Grievance system (CD 085). Refusing to comply with a wrongful decision is not recommended and can itself be considered insubordination, bringing consequences beyond those that flow from the decision. The remedy sought in the grievance can be either that the decision be reversed or (more often) that the matter be reconsidered, affording the prisoner the fairness that was omitted.
As I said above, even where administrative fairness is not expressedly granted under the CCRA and s.27, my view is that it should be granted where there is sufficient time to do so before an adverse decision is made that affects the prisoner’s rights. Thus, for example, before changing an assessment of progress under a Correctional Plan and “locking the information in” the prisoner concerned should be permitted to review the proposed amendments before they are made.
** NOTE: This does not mean that you should try to tackle legal issues or matters before tribunals or the Courts without advice or representation from a lawyer. Always feel free to contact legal help (see my page on this topic) if you have questions or concerns about how the law affects you and your rights.
1.  1 S.C.R. 311 [Nicholson]