Howarth and Mitchell, not surprisingly, were heavily relied upon by the defendants in McCann in their rejection of the plaintiffs' claim to procedural fairness. The defendants argued that the same discretion conferred on the parole board was conferred on the institutional head under section 2.30(1)(a), and that this unfettered discretion was essential to the proper discharge of the prison administrator's responsibilities for the control and management of the penitentiary. Moreover, the defendants argued that the decision to revoke parole was more severe in its consequences than the decision to place a prisoner in solitary confinement. Parole revocation took the parolee from his position of conditional liberty in the free world and returned him to prison; it resulted in the loss of whatever statutory remission had been credited to the prisoner at the time of his parole and in the loss of credit for time served on parole. If these consequences did not give rise to a determination that the decision to revoke parole was required to be made on a judicial basis, then how could it be argued that the decision to place a prisoner into more restrictive confinement within a prison called for that characterization?

From the perspective of the first part of the plaintiffs' argument that section 2.30(I)(a) decisions should be classified as judicial, Howarth and Mitchell clearly had to be distinguished. The plaintiffs sought to do this by pointing out that under the Parole Act the parole board was given the widest discretion, and the legislation specifically contemplated the granting and revocation of parole without the necessity of a hearing153 In contrast, the Penitentiary Act and its regulations had not legislatively excluded the need for a hearing process. In fact, in the commissioner's directives, the Penitentiary Service itself had seen fit to promulgate a procedural code setting out the nature of the hearing required prior to the imposition of certain punishments. The plaintiffs further sought to distinguish Howarth on the basis of the evidence they had presented as to the effects of solitary confinement in SCU; although conceptually it might appear to be a lesser deprivation of liberty than that involved in parole revocation, functionally it was more severe.

But if the ruling in Howarth was a major link in the defendants' argument that the decision to segregate was an administrative one, there were other elements of the Howarth decision that buttressed the plaintiffs' alternative argument that, however classified, the decision to segregate had to be exercised in accordance with the duty to act fairly.

Howarth, it will be recalled, involved an application under section 28 of the Federal Court Act. At the time there was still considerable confusion as to the interrelationship between the jurisdiction of the Trial Division of the Federal Court of Canada under section 18 of the Federal Court Act and that of the Federal Court of Appeal under section 28. Mr. Justice Pigeon, in his majority judgment, noted that counsel for the appellant prisoner had relied on cases dealing with the duty to act fairly, tending to show that an argument could be made for some common-law remedy. While these cases were irrelevant to a section 28 application because of the specific wording requiring the decision to be made on a judicial or quasi-judicial basis, Pigeon J recognized that under section 18 there were preserved intact all the common-law remedies for cases not coming within section 28. He expressly left open the issue of whether decisions of the National Parole Board could be questioned (on the basis of fairness) in proceedings before the trial division under section 18. 154

The plaintiffs in McCann contended that the Howarth decision specifically acknowledged the possibility that the trial division in an appropriately framed action could impose .a duty to act fairly upon a federal decision-maker notwithstanding that the decision in question was administrative rather than judicial in nature. The plaintiffs urged that theirs was a case in which the federal court should find that there was a duty to act fairly; that in a decision to segregate a prisoner such a duty required that the prisoner be given an opportunity to present his case at a hearing and to challenge the facts on which his segregation was sought. The plaintiffs conceded that a hearing could be delayed for a short period to permit the institutional authority to respond to emergency situations, and that the prisoner's right to know the case against him could be tempered in appropriate cases in the interests of preserving the confidentiality of information which, if released, would be detrimental to the safety of other prisoners or the security of the institution. 155

At the time of the McCann trial, I had developed elsewhere156 a procedural model designed to accommodate the interests both of prisoners and institutional authorities. This model was offered to Mr. Justice Heald as an example of what fairness should entail in the context of a decision to segregate. The model had as its centre-piece a hearing presided over by an independent chairperson who could evaluate all of the institution's information, including confidential material, and consider the validity of any claim that the material should be kept from the prisoner. Where the claim to maintain confidentiality was justified, the chairperson could summarize the information for the prisoner, withholding only that material which would prejudice the legitimate interests of the institution or of other prisoners. Such a model would ensure case-by-case scrutiny of the claim to confidentiality, and would guarantee that all information, including that which was withheld from the prisoner, was subjected to evaluation by an independent authority. 157

It should be pointed out that in suggesting this model to Mr. Justice Heald, the plaintiffs were not asking him to rewrite the regulations or draft new commissioner's directives dealing with administrative segregation. Rather, they sought to demonstrate that a judicially imposed requirement of fairness on the prison administration would not nullify the administration's ability to manage the penitentiary.158

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