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Mr. Justice Ryan dissented.

The Penitentiary Service Regulations. insofar as they relate to inmate discipline. and the Commissioners' Directive No. 213. both infused with legality by their enactment pursuant to section 1.29 of the Penitentiary Act. establish a structure for the administration of inmate discipline imposing a legal requirement that disciplinary decisions, in relation to serious or flagrant offences, must be made on a quasi-judicial basis. 164

On appeal the Supreme Court of Canada affirmed the majority ruling of the Federal Court of Appeal in a 5-4 decision. The issue before the Supreme Court of Canada was an extremely narrow one and was expressed by Chief Justice Laskin in this way: 'The nub of the matter is ...whether the directives prescribing what I may compendiously call natural justice for the appellants were made pursuant to "law" and were, therefore, to be observed by the penitentiary authorities.'165 (It will be recalled that section 28 of the Federal Court Act exempts from the Federal Court of Appeal's review jurisdiction cases of 'an administrative nature not required by law to be made on a judicial or quasi-judicial basis.')

Pigeon J, delivering the judgment of four members of the court (Judson J, in a separate judgment, simply concurred with Jackett CJ), held that the commissioner's directives cannot be considered 'law' within the wording of section 28. 'There is no provision for penalty, and while they are authorized by statute, they are clearly of an administrative, not legislative, nature. It is not in any legislative capacity that the Commissioner is authorized to issue directives but in his administrative capacity.'166 Pigeon J also stated that he was of the view that Jackett CJ correctly disagreed with the Beaver Creek decision to the extent that Beaver Creek would imply a duty to act judicially from the fact that a decision might result in the loss of statutory remission. 167

For Chief Justice Laskin and three other members of the court it was clear that the commissioner's directives containing the disciplinary code were clearly 'law' within the wording of section 28. Responding to the view of the majority that the rules of procedure laid out in the commissioner's directives had no external force and that the appellants had no right to the benefit of the procedure because the penitentiary authorities are under no legal duty to follow them, the chief justice stated:

This is much too nihilistic a view of law for me to accept ...The absence of a penal sanction for the rules or directives can be no more compelling on whether law is involved (with a corresponding duty of obedience) than is the absence of a penal sanction in respect of rules of procedure governing the orders of other tribunals which are found by the courts to be quasi-judicial bodies and whose decisions are reviewable under section 28(1) of the Federal Court Act. The reviewing court imposes a sanction by the very fact of review. 168

The Martineau case was soon back before the courts. Because of the uncertainty concerning the interrelationship between sections 18 and 28, proceedings had been commenced concurrently under both sections. The section 18 proceedings had been adjourned sine die pending the disposition of the question whether the court had jurisdiction under section 28. With the resolution of that matter by the Supreme Court of Canada in Martineau (No.1), the section 18 proceedings were resumed, this time on behalf of Martineau alone. Martineau sought an order in the nature of certiorari for the purpose of quashing the decision of the disciplinary board. The matter came before Mahoney J for a preliminary determination of the issue of whether, in the circumstances, the trial division had jurisdiction to grant the relief sought. Mahoney J, after citing the judgment of Mr. Justice Pigeon in Howarth (which, it will be recalled, was relied upon by the McCann plaintiffs as supporting the jurisdiction of the trial division to review administrative decisions in light of the fairness doctrine), concluded:

I take it that in Canada, in 1975, a public body, such as the respondent, authorized by law to impose a punishment that was more than a mere denial of privileges, had a duty to act fairly in arriving at its decision to impose the punishment. Any other conclusion would be repugnant. The circumstances disclosed in this application would appear to be appropriate to the remedy sought. 169

In a terse three-page judgment, again written by Chief Justice Jackett and concurred in by Kelly J and Heald J (who had been elevated to the Federal Court of Appeal after the McCann case), the Federal Court of Appeal reversed the trial judge's ruling. The court held that the remedy of certiorari was only available for decisions that were required to be made on a judicial or quasi-judicial basis and that, since Martineau (No.1) had determined that disciplinary decisions were not of such a nature, the relief was not available in the trial division. 170

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