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Chief Justice Jackett 's judgment also contained an appendix wherein he stated:

In a probably futile attempt to avoid misunderstanding as to the effect of our decision, we deem it advisable to say that, in our view, it does not mean that there is an area where there is a legal grievance for which there is no legal remedy... Fundamentally, what is meant by deciding something on a quasi-judicial basis, is that it be decided on a fair and just basis ...There are, however, Ministers and officials who have purely administrative powers that are not subject to judicial review. Such persons must also exercise their powers on a fair and just basis because they are acting on behalf of the public; but they are answerable, not to the courts, but to their superiors or to the appropriate legislature. They are not required to act on a quasi-judicial basis ...Where a person is aggrieved by a decision that should have been made on a quasi-judicial basis he may attack it by way of a certiorari proceeding or section 28 proceedings but where he has a grievance in respect of other decisions that are required to be made on a fair or just basis ...his remedy is political [emphasis in original] 171

Clearly the chief justice was saying that the grievances of federal prisoners flowing from unfair and unjust treatment at disciplinary hearings are not legal grievances but political ones and that the route for their redress is not through judicial review but through the political process. For federal prisoners, who do not have the right to vote in federal elections,172 the appendix to Chief Justice Jackett's decision in Martineau (No.2), however well-intentioned, appeared as a mockery of their asserted legal rights.

If the confidence that some prisoners and their lawyers placed in the courts was severely undermined by the Federal Court of Appeal decision, it was, for the time being at least, restored by the decision of the Supreme Court of Canada in Martineau (No. 2) 173 The Supreme Court, reversing the decision of the Federal Court of Appeal, held that there was jurisdiction to grant certiorari under section 18 in the case of a violation of the duty to act fairly in an administrative decision that was not required by law to be made on a judicial or quasi-judicial basis. 174 Two concurring judgments were rendered, one written by Pigeon J (concurred in by five other members of the court), the other by Dickson J (in which four members concurred). The issue facing the Supreme Court, as characterized by Mr. Justice Dickson, was 'the question of the supervisory role, if any, of the Trial Division in respect of disciplinary boards within Canadian penitentiaries.'175 Mr. Justice Pigeon, in concluding that there was jurisdiction to review under section 18, cited with approval the judgment of the English Court of Appeal in R. v. Board of Visitors of Hull Prison, ex parte St Germain,176 and quoted from the headnote to that decision, summarizing the views of the English Court of Appeal.

The courts were the ultimate custodians of the rights and liberties of the subject whatever this status and however attenuated those rights and liberties were as a result of some punitive or other process, unless Parliament by statute decreed otherwise. There was no rule of law that the courts were to abdicate jurisdiction merely because the proceedings under review were of an internal disciplinary character and, having regard to the fact that under the Prison Act of 1952 the prisoners remained invested with residuary rights regarding the nature and conduct of his incarcerations, despite the deprivation of his general liberty, the Divisional Court had been in error in refusing to accept jurisdiction.177

Mr. Justice Dickson, referring to the same case, stated:

The court rejected the submission that prisoners have no legally enforceable rights. Megaw U concluded that the observance of procedural fairness in the prison is properly a subject for review. Shaw L.J. held that despite deprivation of his general liberty a prisoner remains invested with residuary rights pertaining to the nature and conduct of his incarceration. Waller J accepted the proposition of Lord Reid in Ridge v. Baldwin that deprivation of rights or privileges are equally important and applied that proposition to the context of prison discipline.178

The judgment of Pigeon J, while affirming the existence of a duty to act fairly on the part of a disciplinary board amenable to review by the federal court, indicated that such review was discretionary and should be exercised having regard to 'the requirements of prison discipline.' He added that 'it is specially important that the remedy be granted only in cases of serious injustice and that proper care be taken to prevent such proceedings from being used to delay deserved punishment so long that it is made ineffective, if not altogether avoided.'179

The judgment of Dickson J contains a detailed review of the developments in English administrative law characterized by the expanded role of judicial review made possible through the emergence of the duty to act fairly. Of particular importance, Dickson J sees judicial review of an administrative decision as not being dependent upon whether that decision affects the rights of the subject in any narrow sense.

There has been an unfortunate tendency to treat 'rights' in the narrow sense of rights to which correlative legal duties attach. In this sense, 'rights' are frequently contrasted with 'privileges,' in the mistaken belief that only the former can ground judicial review of the decision-maker's actions ...When concerned with individual cases and aggrieved persons, there is the tendency to forget that one is dealing with public law remedies which, when granted by the courts, not only set aright individual injustice, but also ensure that public bodies exercising powers affecting citizens heed the jurisdiction granted them. Certiorari stems from the assumption by the courts of supervisory powers over certain tribunals in order to assure the proper functioning of the machinery of government. To give a narrow or technical interpretation to 'rights' in an individual sense is to misconceive the broader purpose of judicial review of administrative action.180

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