After reviewing the English authorities, Mr. Justice Dickson concluded:

The authorities to which I have referred indicate that the application of a duty of fairness with procedural content does Rot depend upon proof of a judicial or quasi-judicial function. Even though the function is analytically administrative, courts may intervene in a suitable case.

In the case at bar, the disciplinary board was not under either an express or implied duty to follow a judicial type of procedure, but the board was obliged to find the facts affecting a subject and exercise a form of discretion in pronouncing judgment and penalty. Moreover, the board's decision had the effect of depriving an individual of his liberty by committing him to a 'prison within a prison.' In these circumstances, elementary justice requires some procedural protection. The rule of law must run within penitentiary walls.

In my opinion, certiorari avails as a remedy wherever a public body has power to decide any matter affecting the rights, interests, property, privileges or liberties of any person [emphasis added] 181

Dickson J also cited with approval Lord Denning's statement in Selvaragan v. Race Relations Board,182 in which the master of the rolls sought to formulate the 'fundamental rule' underlying the English fairness cases: 'If a person may be subjected to pains or penalties, or be exposed to prosecution or proceedings, or deprived of remedies or redress, or in some such way adversely affected by the investigation and report, then he should be told the case made against him and be afforded a fair opportunity of answering it.'183

Dickson J specifically rejected the existence of the 'disciplinary exception' to certiorari, the notion that judicial review was precluded in cases of members of the armed forces, police, or prisoners when there was a private disciplinary system and a code of rules. The Ontario Court of Appeal in Beaver Creek had ten years previously rejected the existence of this exception, but it had re-emerged and had been endorsed by the Federal Court of Appeal in Martineau (No.1). Mr. Justice Dickson's judgment in Martineau (No.2), coupled with the previous decision of the Supreme Court in Nicholson,184 should have laid this ghost to rest once and for all.

Echoing the views of Mr. Justice Pigeon, Dickson J, while concluding that the disciplinary board of a federal penitentiary was under a duty to act fairly, cautioned that this jurisdiction must be exercised carefully.

It should be emphasized that it is not every breach of prison rules or procedure which will bring intervention by the courts. The very nature of a prison institution requires officers to make 'on the spot' disciplinary decisions and the power of judicial review must be exercised with restraint. Interference will not be justified in the case of trivial or merely technical incidents. The question is not whether there has been a breach of the prison rules, but whether there has been a breach of the duty to act fairly in all the circumstances. The rules are of some importance in determining this latter question, as an indication of the views of the prison authorities as to the degree of procedural protection to be extended to inmates. 185

Dickson J indicated that the duty to act fairly is a flexible one, fully capable of responding to the spectrum of administrative decisions which range from those of a policy-oriented nature to those approaching the judicial. In the case of a decision approaching the latter end of the spectrum, 'substantial procedural safeguards' may be required. These safe- guards, however, import 'something less than the full panoply of conventional natural justice rules.'186

The Supreme Court decision in Martineau (No.2) does not go beyond this in providing guidance as to what 'fairness' requires in hearings before a prison disciplinary board. This was left to be worked out by the trial judge when considering the application of Martineau on the merits. In fact, when that application came to be heard, a consent order was entered that the decision of the disciplinary board be set aside. The federal court was therefore not called upon to deliver reasons for judgment on the merits.187

The decision of the Supreme Court of Canada in Martineau (No.2) that penitentiary authorities are under a duty to act fairly in making decisions of a disciplinary nature clearly vindicates the arguments presented by the plaintiffs in McCann some four years earlier. It is ironic, however, that recognition of this principle was wrung from the courts in the sterility of a jurisdictional dispute. Had Mr. Justice Heald been prepared in 1975 to recognize the role of the courts in ensuring that the rule of law prevailed in the prison, and had he been prepared to consider in an imaginative way the submissions presented by the plaintiffs in McCann, he would have had a unique opportunity - having heard evidence which no other judge before or since has heard - of delineating the duty to act fairly in the particular circumstances of the penitentiary's most severe sanction. 188

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