Exam Season

I am currently knee-deep in exam scripts, having taught Administrative Law twice in the Winter Term (once in English, once in French). I thought readers might be interested in taking a look at the final exam I set (70%, with a mid-term accounting for the other 30%).

A is an inmate in a federal penitentiary. Some years ago, A received a long sentence for a serious criminal offence. A has been a consistent advocate for the rights of inmates, particularly since the onset of the COVID-19 pandemic. From the minimum-security federal penitentiary in which A has been incarcerated, A has been able to send emails to journalists and has gained significant notoriety.

Since the onset of the pandemic, A has regularly written about correctional officers’ failure to respect sanitation rules which, in A’s view, are vital to providing a safe environment, in particular handwashing and mask-wearing. A has gained significant attention. Advocates for inmates’ rights have taken to gathering in socially distanced fashion outside the penitentiary. Their protests are peaceful, but they boo and hiss from behind their masks as correctional officers arrive and leave, much to the irritation of the officers.

One evening, A is set upon by a group of correctional officers and removed to solitary confinement. The officers give no reasons to A. The following day, the Warden of the penitentiary visits A. The Warden explains:

There was an imminent threat to your personal security because the correctional officers are upset by the booing and hissing protesters.  I felt it was necessary as an emergency measure to place you in solitary confinement for your own protection. I am also transferring you to a medium-security penitentiary, where you will not have access to the Internet. Again, this is for your own safety. You will remain in detention for five days until the transfer. You can appeal my decisions to the Appeals Board of the penitentiary if you lodge a $25 fee. I chair the Board and two correctional officers are also members. There is a right of appeal from the Board to the Federal Court, if you are unhappy with the outcome.

Question 1

Did the Warden of the penitentiary breach the principles of procedural fairness by sending A to solitary confinement? Would your answer be different if an internal operational manual provided that “inmates will always be notified of the reasons for their confinement before being sent to solitary confinement”?

Question 2

A does not have $25 to lodge an appeal. Does the requirement to pay a $25 fee in order to exercise the right of appeal violate s. 96 of the Constitution Act, 1867?

Question 3

Can A apply for judicial review of the detention and transfer decisions without first exercising the right of appeal to the Appeals Board of the penitentiary? If A were able to apply for judicial review, what remedies should A seek and in which court?

A manages to find the $25 to lodge an appeal.  By federal statute, the Appeals Board of the penitentiary is chaired by the Warden of the penitentiary, who is required to nominate two correctional officers to the Board. The statute provides that the Board must consider whether detention and transfer decisions are correct, having regard to “safety in the penitentiary and the physical integrity of inmates”. Procedures before the Board are to be determined “in the absolute discretion of the Board”.

The Board only hears appeals on one day every month. Normally there are about 30 appeals to address.  In order to manage the volume of appeals, the Board only permits representations in writing. A asks for an oral hearing, but is refused. When A receives the Warden’s representations, A asks to submit written questions for the Warden. Again, A’s request is refused.

A argues in writing that the decisions were designed to punish A for exercising the Charter right to freedom of expression and that alternative measures should be considered, including a transfer to another minimum-security penitentiary. The Board’s decision is as follows:

We accept the Warden’s representation that there was a danger to A and that the only means of responding to the danger was to immediately send A to solitary confinement. We recognize that this will prevent A from communicating with the media, but this is for A’s own good, as the correctional officers have become frustrated, which is likely to lead to A being in danger. The situation in other minimum-security penitentiaries would be the same. We do not see any error in the Warden’s decisions.

Question 4

Was the appeal hearing procedurally fair?

Question 5

On appeal to the Federal Court, what would the standard of review be of the Board’s decision, including the procedural fairness issues?

Question 6

If the Board’s decision were reviewed on the reasonableness standard, what would be the relevant contextual considerations?

Question 7

In light of the contextual considerations you have identified, is the decision justified in view of the facts and the law?

This content has been updated on May 8, 2021 at 14:58.