The prisoners’ case was that the director’s decision to continue their segregation was not made in accordance with the duty to act fairly and that their continued detention in segregation under the circumstances was unlawful. McEachern CJ, dealing with this central issue, directed himself to the caveat of Pigeon and Dickson 11 in Martineau (No.2): courts should only interfere with prison discipline in cases of serious injustice. Although the chief justice found that the initial decision by the director to segregate the petitioners was lawful, he had some harsh words to say for verbally ordered segregation.

I cannot express my disapproval of verbally directed detentions (except in emegencies) in strong enough terms; even lettres de cachet required two signatures, and I would hope that the potential mischief inherent in such a procedure, that is, detention on oral instructions, would ensure that it will not continue. Prolonged verbally directed segregation must be severely condemned. I do not say, however, that a decision and written reasons for segregation must in every case be contemporaneous, there may not always be time for that. But a written record of such a decision, with reasons, should never be long delayed. 155

In fact, the commissioner’s directives do provide for written reasons to be given to the prisoner within twenty-four hours of his segregation. However, such notification was not given to Oswald and Cardinal, and the non-compliance with the commissioner’s directives seems not to have been exceptional at Kent in 1980. 156

The chief justice considered next whether the initial lawful segregation had become unlawful, the legal possibility of which he affirmed; otherwise a prisoner ‘might be segregated for a particular reason and thereafter remain in segregation for the full term of his imprisonment, however long that may be, without recourse to the courts or any other tribunal after the reason for segregation has disappeared.’157 McEachern CJ found that the power given a director by the regulations to impose administrative segregation on a prisoner must be subject to some legal limits. As to what those limits were, he concluded:

Ideally, there should be a better review procedure -one with teeth in it - but Parliament has not seen fit to provide such a review. I am persuaded, therefore, to conclude ...that the proper limit to impose upon the apparent absolute power of the Director is a continuing obligation of fairness which, in my view, controls the exercise of this kind of public power.158

Applying the law to the circumstances of Oswald and Cardinal, his lordship held that, while the initial decision to segregate was not coloured with unfairness, the process by which the two men were kept in segregation slipped into unfairness at some stage. Citing 7 October 1980, the day the review board recommended release to normal association, as a useful commencement date for when that stage was reached, his lordship held that while the director had jurisdiction to disregard the recommendation of the review board,

To do so with fairness ...the petitioners ought to have been informed of the reasons of the Director for continuing segregation, and they should have been giver a fair opportunity to answer the case against them. They should not have had to make out their case to a mind that was closed or almost closed against them. To continue their segregation in the face of the recommendation of the Review Board in the particular circumstances of this case raises a reasonable apprehension that they should plead guilty which, by itself, is enough to cast a pervasive appearance of unfairness over these cases. In addition, although a decision based upon a policy (such as one for prisoners who are awaiting trial or for prisoners who have taken a hostage) may be perfectly lawful, fairness requires timely reconsideration of the particular circumstances of each prisoner and individual whose residual rights and privileges are adversely being affected. 159

There were other matters which the chief justice felt were relevant to the issue of fairness.

The continuing physical effect of segregation upon the petitioners whose assertion of impaired ability to instruct counsel is not answered by the Director. This raises further questions of unfairness, particularly when the institutional psychologist has probably -but not necessarily -joined in the recommendation to release into the general population. That fact should have been ascertained with certainty. Lastly, in the face of five months of segregation, the Director had made no real investigation into these matters. He had chosen, understandably in the first instances, to rely upon what he was told by the Director of Matsqui Institution. But the Director may not even know the reasons why these petitioners say they took a hostage. I agree that no circumstances justify the taking of a hostage -especially at knifepoint -but there may be circumstances, unknown to the Director, that motivated these petitioners at the time of the incident which might make it unlikely that they would do it again, or, more importantly, which might affect an open mind in deciding whether the continued segregation of these petitioners is necessary or desirable. Their explanation for the incident should be given consideration.160

The chief justice stressed in his judgment that, notwithstanding his conclusion that the continued segregation of the petitioners was unlawful, the director could continue to segregate them on proper grounds if he was satisfied that their administrative segregation was necessary for the maintenance of good order and discipline at Kent Institution. In the words of the chief justice, ‘such a determination, however, must be made fairly and not arbitrarily in the circumstances of these petitioners at this time.’161 The chief justice accordingly issued an order that Oswald and Cardinal be released into the general population at Kent Institution.

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