Mercredi v Saskatoon Provincial Correctional Centre, 2019 SKCA 86

Court of Appeal for Saskatchewan Docket: CACR3095 Citation: Mercredi v Saskatoon Provincial Correctional Centre , 2019 SKCA 86 Date: 2019-09-09 Between: Jamie Myles Mercredi Appellant And Saskatoon Provincial Correctional Centre and The Government of Saskatchewan, Attorney General for Saskatchewan Respondents Before: Ottenbreit, Whitmore and Barrington-Foote JJ.A. Disposition: Appeal allowed Written reasons by: The Honourable Mr. Justice Barrington-Foote In concurrence: The Honourable Mr. Justice Ottenbreit The Honourable Mr.

Justice Whitmore On Appeal From: CRM 430 of 2017, Saskatoon Appeal Heard: January 8, 2019 Counsel: Nicholas Blenkinsop for the Appellant Johnna Van Parys for the Respondents Barrington-Foote J.A. I. Introduction [ 1 ] In January 2018, Jamie Mercredi was an inmate at the Saskatoon Provincial Correctional Centre [SPCC]. On January 10, 2018, corrections officials decided he should be assigned a low-security designation. They also decided that he should be moved to Unit A [unit placement decision], one of the living units at the SPCC. Mr.

Mercredi objected to being placed in Unit A, as inmates in Unit A spend far more time in their cells than those in some other low-security units. [ 2 ] On February 20, 2018, a Court of Queen’s Bench judge [application judge] dismissed Mr. Mercredi’s application for a writ of habeas corpus relating to his incarceration in Unit A [ QB Decision ]. Mr. Mercredi has now appealed the QB Decision to this Court.

He submits that the application judge erred in law in finding the unit placement decision was made in a manner that complied with the duty of procedural fairness and was accordingly lawful. [ 3 ] For the following reasons, I would allow Mr. Mercredi’s appeal. II. Legislation [ 4 ] Corrections officials deal with security assessments and unit placements pursuant to The Correctional Services Act, 2012 , SS 2012, c C-39.2 [ Act ], and The Correctional Services Regulations, 2013 , RRS c C-39.2 Reg 1 [ Regulations ].

The relevant provisions of the Act are as follows: Principles 3 This Act and the regulations made pursuant to this Act must be interpreted and administered in accordance with the following guiding principles: … (

d) that offenders … will be subject to the least restrictive measures consistent with the protection of the public, staff members and other offenders; (

e) that offenders are entitled to fair treatment and to have access to a timely and efficient complaint procedure; … Directors of correctional facilities 16

(1) The head of corrections may appoint a director for each correctional facility.

(2) Each director is responsible, under the supervision of the head of corrections and within the correctional facility for which he or she has been appointed, for: (

a) the safe, secure and efficient operation of that correctional facility through the overall management and administration of the correctional facility; (

b) the provision of programs and services to assist in the rehabilitation and reintegration of offenders in that correctional facility; and (

c) the administration of this Act and the regulations within that correctional facility.

… Directors to establish rules for correctional facilities 23

(1) Subject to the approval of the head of corrections, the director of a correctional facility shall establish rules that are not inconsistent with this Act and the regulations with respect to matters mentioned in subsection 16(2). [ 5 ] Security assessments are specifically addressed in s. 26 of the Act : Security assessment program 26

(1) The head of corrections may establish a security assessment program for the purposes of determining the level of security required for an inmate.

(2) Subject to the regulations, the director of a correctional facility may conduct and administer security assessments of inmates for the purposes of the program mentioned in subsection (1).

(3) Without limiting the generality of subsection (2), the director of a correctional facility may require an inmate to participate in: (

a) verbal and written security assessment procedures; and (

b) verbal interviews.

(4) The director of a correctional facility may assign an inmate to a specific level of security based on the results of the security assessments mentioned in this section. [ 6 ] The Lieutenant Governor in Council is authorized by s. 115(1)(

d) to make regulations respecting the assessment of offenders, and by s. 115(1)(h) “for the purposes of

section 26, respecting the security assessment procedures used for the purposes of determining the level of security required for an inmate”.

Section 7 of the Regulations deals with the procedure for security assessments: Security assessment program 7

(1) If the director assigns an inmate to a specific level of security based on the results of a security assessment conducted and administered pursuant to

section 26 of the Act , the director shall: (

a) as soon as is reasonably practicable, give the inmate written reasons for assigning a specific level of security, unless the inmate is assigned the lowest level of security; and (

b) give the inmate an opportunity to make representations either in writing or by oral recording about why the assignment of that specific level of security should be changed to a different level of security.

(2) After considering any representations made by the inmate pursuant to clause (1)(b), the director shall: (

a) confirm his or her decision; or (

b) vary his or her decision.

(3) The director shall give the inmate written notice of the decision, including reasons for the decision, within five business days after the representations are received. [ 7 ] Neither the Act nor the Regulations deal expressly with unit placements in any way. III. Background [ 8 ] Mr. Mercredi was sentenced to 198 days in custody on October 17, 2017. He served that sentence at the SPCC, where, as is usual, he underwent security assessments approximately every 21 days, and was placed in different living units based on those assessments. The application judge found that his unit placements included the following ( QB Decision at 2):

a) from approximately November 24, 2017 to December 15, 2017, he was in Overflow Unit Four – a low security unit;

b) from December 15, 2017, to January 9, 2018, he was in secure 3/4 unit; and

c) from January 9, 2018, to the present time he was in Alpha 1 – Unit A – a low security unit. [ 9 ] The last of these unit placements was the result of the unit placement decision. That decision was made by two corrections managers, exercising authority delegated by the Director of the SPCC. The evidence on which the decision was based included security level recommendations, assessment decisions and observation/incident reports by corrections staff, and four unidentified documents that were not disclosed due to concerns for the safety of informants. [ 10 ] Mr. Mercredi was not provided with this evidence.

He was provided with the security level decision, which downgraded his security level from medium to low – the lowest of the three levels – despite the fact the Regulations did not require that he receive written reasons in those circumstances. That decision summarily listed reports about Mr. Mercredi, including “a number of negative reports” about swearing at staff, undermining institutional operations by telling inmates they did not have to stand for a stand count, manipulation of lower functioning inmates, breaking into a broom closet, having another inmate assaulted, and alleged gang membership. It did not

refer to or give reasons for the unit placement decision. It said this as to the right to be heard: IF YOU DISAGREE WITH THE SECURITY LEVEL ASSIGNED TO YOU, YOU CAN MAKE REPRESENTATIONS TO THEDIRECTOR WHY YOU BELIEVE THE LEVEL OF SECURITY SHOULD BE CHANGED. [11] Mr. Mercredi argued in the Court of Queen’s Bench that his placement in Unit A represented a deprivation of his residualliberty interests, as imprisonment in Unit A was more onerous than it would have been in Overflow Unit Four. The respondentsacknowledged that deprivation in the Court of Queen’s Bench. The reason they did so is readily apparent.

Although both Overflow UnitFour and Unit A are low security units, they are substantially different. As noted by the application judge (QB Decision at 3–4) thosedifferences included those listed in the following paragraphs of the affidavit of the Director of the SPCC: Overflow Unit Four 25. Overflow Four is a repurposed classroom with twenty beds. It is an open space with shared bathroom facilities and common area. 26. Inmates in this unit are generally permitted to move about the units between the hours of 7:30 am to 10:30 pm.

Generally, during thistime inmates may watch television, socialize with other inmates, and make phone calls. Inmates are locked in the unit between the hoursof 10:30 pm and 7:30 am, and may in exceptional circumstances be locked in the unit at other times (e.g. where there is a lockdown afteran assault). 27. … Inmates are permitted to daily exercise periods; one being 45 minutes (outside) and the other being 40 minutes (in the gymnasium). Unit A 28. Unit A has 13 cells on each of the two sides of the unit. Six of the cells are double- bunked. Mr. Mercredi [was] in a single cell.

Eachcell is approximately 12 feet by 12 feet with a metal door (that can be electronically locked) with a glass panel. Each cell has a window. 29. Unit A is equipped with shared bathrooms and kitchens. Only one cell on each side of the unit has a toilet and sink in the cell itself(Mr. Mercredi’s unit [did] not have a toilet or sink). … 30. Inmates in Unit A are allowed time out of their cells for at least eight hours each day between the hours of 7:00 am and 11:00 pmunless exceptional circumstances exist (e.g. where there is a lockdown after an assault).

Inmates are generally locked in their cells asidefrom these eight hours; … 31. In Unit A, generally, during the times inmates are allowed out of their cells, they have access to common areas, educational, culturaland spiritual programming, and time to watch television, make phone calls and interact with other inmates, among other activities. Inmatesare provided two 50 minute exercise periods each day (one outside and one in the gymnasium). [12] Mr.

Mercredi deposed that his experience in Unit A was that he had eight hours out of his cell only about 60% of the time andhad less time outside than the Director deposed. The QB Decision did not refer to that evidence. [13] The application judge found that the Director or his designate is authorized to determine unit placements pursuant to ss. 16 and26 of the Act.

She noted the first consideration for officials is the availability of bed space and that other factors include inmate behaviour,incompatible relationships, risk of injury by other offenders, escape risk, availability of programming and supports, and overallmanagement and administration of the institution. [14] As to the procedure for unit placements, the application judge held as follows (QB Decision at 7): As there are no specific process provisions within the Act or Regulations regarding the unit placement the Respondent was not required toprovide written reasons or provide an opportunity to the Applicant to make representations with regard to the decision to place him in UnitA.

Again, the legislation is purposeful in not providing for the participation of an inmate regarding unit placement as it would create onceagain an administrative nightmare. There is, however, a requirement for reasonableness and fairness. [15] The application judge found there was no procedural unfairness as to Mr. Mercredi’s security assessment and unit placementbecause there was compliance with the Regulations and policy. She also found that the decisions fell within the range of possible,acceptable outcomes that are defensible in respect of the facts and law.

She then commented as follows: Lastly, the Court has kept in mind there is a requirement in considering this habeas corpus application for deference.

As stated inparagraph 75 of Khela [Mission Institution v Khela, 2014 SCC 24, [2014] 1 SCR 502], “a review to determine whether a decision wasreasonable, and therefore lawful, necessarily requires deference”. [16] The application judge held that deference was required when considering the Director’s mandate and the fact the Director is“responsible for the safe, secure and efficient operation of the institution through the overall management and administration of theinstitution” (at 8). IV. Mootness [17] Mr. Mercredi was released from the SPCC on February 25, 2018.

Accordingly, the detention that was the subject of this habeascorpus application has ended. As such, the sole remedy available on a habeas corpus application – the release from the custody at issue –is no longer available. For that reason, the respondents submit this appeal is moot and, based on the three-part test specified in Borowski vCanada (Attorney General), (SCC), [1989] 1 SCR 342 [Borowski], that the Court should not exercise its discretion tohear the appeal on its merits. [18] In Dearborn v Saskatchewan (Financial and Consumer Affairs Authority), 2017 SKCA 63, Richards C.J.S. summarized the

doctrine of mootness and the Borowski test: [15] Before turning to the merits of Mr. Dearborn’s submissions, it is useful to briefly review the doctrine of mootness. The leadingcase in this area is Borowski v Canada (Attorney General), (SCC), [1989] 1 SCR 342 [Borowski]. There, the SupremeCourt explained as follows at page 353: The doctrine of mootness is an aspect of a general policy or practice that a court may decline to decide a case which raises merely ahypothetical or abstract question.

The general principle applies when the decision of the court will not have the effect of resolving somecontroversy which affects or may affect the rights of the parties. If the decision of the court will have no practical effect on such rights, thecourt will decline to decide the case. ... [16] The consideration of an arguably moot appeal involves two steps. The first is to determine if the appeal is moot, i.e., to determineif it involves a live and concrete controversy between the parties.

The second step is to determine whether, notwithstanding that the appealis moot, the court should nonetheless exercise its discretion to hear the case. That exercise of discretion, according to Borowski, should beundertaken with reference to the underlying basis of the mootness doctrine itself: (

a) the presence of an ongoing adversarial context,perhaps because of the collateral consequences of the outcome of the appeal, (

b) the importance of conserving judicial resources, and (c)the need for a court to be sensitive to its proper law-making function, i.e., its role as an adjudicator of disputes affecting the rights ofparties. [19] Borowski does not require that each of these three factors favour a hearing on the merits. As Sopinka J. noted (at 363): In exercising its discretion in an appeal which is moot, the court should consider the extent to which each of the three basic rationalia forenforcement of the mootness doctrine is present. This is not to suggest that it is a mechanical process.

The principles identified above maynot all support the same conclusion.

The presence of one or two of the factors may be overborne by the absence of the third, and viceversa. [20] Further, the requirement for an adversarial context may be largely or wholly satisfied if the matter has been fully and zealouslyargued: Borowski at 363; Radiology Associates of Regina Medical PC Inc. v Sun Country Regional Health Authority, 2016 SKCA 57 atpara 23, [2016] 10 WWR 662; Peepeetch v Regina Provincial Correctional Centre, 2017 SKQB 348 at para 31. [21] Although I am aware of no case law dealing with mootness in relation to unit placements in correctional institutions, there isample authority relating to the application of the mootness doctrine to decisions by corrections officials as to segregation and transfersbetween institutions.

Mission Institution v Khela, 2014 SCC 24, [2014] 1 SCR 502 [Khela], was concerned with a decision by correctionalauthorities to transfer a federal inmate from a medium security to a maximum security institution. The lawfulness of Mr. Khela’sincarceration was no longer before the Court when the matter was heard by the Supreme Court of Canada, as he had been transferred toanother institution and a habeas corpus application relating to that transfer had been dismissed. [22] The Court nonetheless heard the appeal.

Justice LeBel summarized its reasons for doing so, as follows: [14] Despite being moot, this appeal merits a decision in the circumstances of this case. The nature of habeas corpus applicationsinvolving the transfer and segregation of inmates is such that the factual circumstances of a given application can change quickly, beforean appellate court can review the application judge’s decision. This means that such cases will often be moot before making it to theappellate level, and are therefore “capable of repetition, yet evasive of review” (Borowski v.

Canada (Attorney General), (SCC), [1989] 1 S.C.R. 342, at p. 364). As was true in May v. Ferndale Institution, 2005 SCC 82, [2005] 3 S.C.R. 809, at para. 14,and Cardinal v.

Kent Institution, (SCC), [1985] 2 S.C.R. 643, at p. 652, the points in issue here are sufficiently important,and they come before appellate courts as “live” issues so rarely, that the law needs to be clarified in the instant case. [23] This emphasis on the importance of reviewability has been repeatedly applied in prison and similar contexts: see, for example,Springhill Institution v Richards, 2015 NSCA 40 at para 56, 359 NSR (2d) 59, which related to habeas corpus applications by twoinmates who were to be transferred from the Springhill Institution in Nova Scotia to the maximum security Atlantic Institution in NewBrunswick as a result of changes in their security classification; Abbass v Western Health Care Corp, 2017 NLCA 24 at paras 4–5, 409DLR (4th) 670, where the issue was whether habeas corpus was available to challenge a detention under the Mental Health Care andTreatment Act, SN 2006, c M-9.1; Director of Child and Family Services v A.C., 2007 MBCA 9, [2007] 4 WWR 62; and Mazzei v BritishColumbia (Director of Adult Forensic Psychiatric Services), 2006 SCC 7, [2006] 1 SCR 326.

There was also no live controversy when theCourt heard Cardinal v Director of Kent Institution, (SCC), [1985] 2 SCR 643 [Cardinal], a leading case relating to theavailability of habeas corpus and the right to procedural fairness for inmates placed in segregation. Similarly, in May v FerndaleInstitution, 2005 SCC 82, [2005] 3 SCR 809 [May], the Court heard five habeas corpus appeals relating to institutional transfers despitethe lack of a live controversy as to four of the appellants. [24] In this case, the appeal was zealously argued on Mr.

Mercredi’s behalf by counsel employed by the Community LegalAssistance Services for Saskatoon Inner City Inc. The central issue – whether corrections officials have a duty of procedural fairness toinmates in the context of unit placement decisions – is a matter of public interest. Every provincial inmate is subject to unit placementdecisions which have the potential to significantly impact their residual liberty interests and would often be moot before making it to theappellate level.

Indeed, as noted, I am aware of no trial-level or appellate-level decisions relating to procedural fairness in relation to unitplacements. Further, the application of the duty of fairness to administrative decision-makers is an issue squarely within the wheelhouse ofthe courts. [25] For these reasons, I conclude the Court should exercise its discretion to decide the merits of this application. V. Standard of Review and Procedural Fairness [26] This appeal is based on the allegation that the application judge erred in law when she decided the unit placement decision wasmade in a manner that was procedurally fair.

The standard of review relating to that alleged error of law is correctness: Risseeuw v

Saskatchewan College of Psychologists, 2019 SKCA 9 at paras 63–64, [2019] 2 WWR 452 [Risseeuw]; Eagle’s Nest Youth Ranch Inc. vCorman Park (Rural Municipality), 2016 SKCA 20 at paras 21–26, [2016] 7 WWR 35; Saskatoon (City) v Amalgamated Transit Union,Local 615, 2017 SKCA 96 at paras 24–32, [2018] 4 WWR 822; Canada (Citizenship and Immigration) v Khosa, 2009 SCC 12 at para 43,[2009] 1 SCR 339; Khela at para 79.

The same standard should have been applied by the application judge in relation to this issue. [27] The fact correctness applies does not mean the procedure followed by the decision-maker is measured against a singular set ofprocedural steps dictated by the duty of fairness. The duty of fairness is not a detailed road map. As L’Heureux-Dube J. said in the seminaldecision in Baker v Canada (Minister of Citizenship and Immigration), (SCC), [1999] 2 SCR 817 [Baker]: [21] The existence of a duty of fairness, however, does not determine what requirements will be applicable in a given set ofcircumstances.

As I wrote in Knight v. Indian Head School Division No. 19, (SCC), [1990] 1 S.C.R. 653, at p. 682, “theconcept of procedural fairness is eminently variable, and its content is to be decided in the specific context of each case”. All of thecircumstances must be considered in order to determine the content of the duty of procedural fairness: Knight, at pp. 682-83; Cardinal,supra, at p. 654; Old St. Boniface Residents Assn. Inc. v.

Winnipeg (City), (SCC), [1990] 3 S.C.R. 1170, per Sopinka J. [28] Further, the fact correctness applies does not mean the court cannot take account of why the decision-maker adopted aprocedure or made a procedural decision. The court engages in a fresh inquiry to determine what fairness required in the circumstancesand whether those requirements were met. In Baker, L’Heureux-Dube J. specified a list of five factors courts should consider whendetermining what procedural fairness requires in a given circumstance.

The fifth factor is as follows: [27] Fifth, the analysis of what procedures the duty of fairness requires should also take into account and respect the choices ofprocedure made by the agency itself, particularly when the statute leaves to the decision-maker the ability to choose its own procedures, orwhen the agency has an expertise in determining what procedures are appropriate in the circumstances: Brown and Evans, supra, at pp. 7-66 to 7-70. While this, of course, is not determinative, important weight must be given to the choice of procedures made by the agencyitself and its institutional constraints: I.W.A.

Local 2-69 v. Consolidated Bathurst Packaging Ltd., (SCC), [1990] 1 S.C.R.282, per Gonthier J. [29] This attentiveness to the decision-maker’s choice has sometimes been characterized as a measure of deference: see, forexample, Re: Sound v Fitness Industry Council of Canada, 2014 FCA 48 at para 42, 72 Admin LR (5th) 1. However, as this Court noted inRisseeuw at paragraphs 63–64, that is not the law in Saskatchewan.

Given that the standard of review is correctness, attentiveness to thedecision-maker’s choices is better characterized as a recognition of the fact that the demands facing the decision-maker are relevant in thecontextual analysis, that the decision-maker may have insight about the circumstances that should inform the procedural choice, and thatparticipatory fairness can often be achieved in more than one way. The ultimate issue is always whether the process accords with theunderlying values reflected by the duty of fairness.

As L’Heureux-Dube J. said, referring to the five factors listed in in Baker: [28] I should note that this list of factors is not exhaustive. These principles all help a court determine whether the procedures that werefollowed respected the duty of fairness. Other factors may also be important, particularly when considering aspects of the duty of fairnessunrelated to participatory rights.

The values underlying the duty of procedural fairness relate to the principle that the individual orindividuals affected should have the opportunity to present their case fully and fairly, and have decisions affecting their rights, interests, orprivileges made using a fair, impartial, and open process, appropriate to the statutory, institutional, and social context of the decision. VI. Analysis A.

Inmates, the duty of fairness and habeas corpus [30] The Supreme Court of Canada has repeatedly recognized that inmates have residual rights that must be protected by the courts.As Lebel and Fish JJ. noted in May (at para 23): “At common law … a person convicted of a felony and sentenced to prison was regardedas being devoid of rights” and, for that reason, “courts had traditionally refused to review the internal decision-making process of prisonofficials”.

As they then explained: [24] It was this view that provided the original rationale for Canadian courts’ refusal to review the internal decisions of prison officials.The “effect of this hands-off approach was to immunize the prison from public scrutiny through the judicial process and to place prisonofficials in a position of virtual invulnerability and absolute power over the persons committed to their institutions”: Jackson, Prisoners ofIsolation, at p. 82. [25] Shortly after certain serious incidents in federal penitentiaries occurred in the 1970s and reviews of their management took place,this Court abandoned the “hands-off” doctrine and extended judicial review to the decision-making process of prison officials by whichprisoners were deprived of their residual liberty.

In Martineau v. Matsqui Institution Disciplinary Board, (SCC), [1980]1 S.C.R. 602, Dickson J. (as he then was) laid the cornerstone for the modern theory and practice of judicial review of correctionaldecisions: 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 theboard was obliged to find facts affecting a subject and to exercise a form of discretion in pronouncing judgment and penalty. Moreover, theboard’s decision had the effect of depriving an individual of his liberty by committing him to a “prison within a prison”.

In thesecircumstances, elementary justice requires some procedural protection.

The rule of law must run within penitentiary walls. [Emphasisadded, at p. 622.] [31] Justices Lebel and Fish echoed these comments in May, noting that “[t]imely judicial oversight, in which provincial superiorcourts must play a concurrent if not predominant role, is still necessary to safeguard human rights and civil liberties of prisoners, and toensure that the rule of law applies within penitentiary walls” (at para 72). [32] In this case, we are concerned with the relative deprivation of liberty as a result of the unit placement decision. That issue was

addressed in R v Miller, (SCC), [1985] 2 SCR 613 at 637, where Le Dain J. confirmed as follows: ... In effect, a prisoner has the right not to be deprived unlawfully of the relative or residual liberty permitted to the general inmatepopulation of an institution.

Any significant deprivation of that liberty, such as that effected by confinement in a special handling unitmeets the first of the traditional requirements for habeas corpus, that it must be directed against a deprivation of liberty. [33] The Supreme Court has also affirmed that the availability of habeas corpus – which, unlike a writ of certiorari, is a non-discretionary remedy – is important to ensure the protection of prisoners’ rights.

As Lebel J. said in Khela: [29] Through both the Charter and the common law, Canada has attempted to maintain and uphold many of the goals of the HabeasCorpus Act, which embodied the evolving purposes and principles of the writ. Habeas corpus has become an essential remedy inCanadian law.

In May, this Court emphasized the importance of habeas corpus in the protection of two of our fundamental rights: (1) the right to liberty of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice(s. 7 of the Charter); and (2) the right not to be arbitrarily detained or imprisoned (s. 9 of the Charter). [para. 22] These rights belong to everyone in Canada, including those serving prison sentences (May, at paras. 23-25). Habeas corpus is in fact thestrongest tool a prisoner has to ensure that the deprivation of his or her liberty is not unlawful.

In articulating the scope of the writ both inthe Miller trilogy and in May, the Court has ensured that the rule of law continues to run within penitentiary walls (Martineau v. MatsquiInstitution Disciplinary Board, (SCC), [1980] 1 S.C.R. 602, at p. 622) and that any deprivation of a prisoner’s liberty isjustified. [34] If an applicant for habeas corpus establishes they have been deprived of liberty and raises a legitimate ground to question thelegality of that deprivation, the onus shifts to the authorities to show the deprivation was lawful (Khela at para 30).

The basic question onan application for habeas corpus is whether the decision resulting in the detention was lawful. It is not lawful if there has been a breach ofprocedural fairness (Khela at para 52). B. Was the unit placement decision procedurally fair? [35] Turning now to the application of this legal framework to Mr. Mercredi’s appeal, it is my view he established a deprivation ofhis residual liberty as a result of his placement in Unit A. The respondents discount the importance of that deprivation.

However, whilenot every difference between units would be sufficient to constitute a deprivation of liberty sufficient to engage procedural fairnessobligations, the differences between Unit A and Overflow Unit Four are more than adequate to do so. From the inmate’s perspective, morethan double the time locked alone in a separate cell is a significantly more serious denial of liberty. [36] Mr. Mercredi has also raised a legitimate ground to question the legality of that deprivation: that is, the failure to comply withthe duty of procedural fairness.

Accordingly, the respondents had the onus to demonstrate to the application judge was correct in decidingthat corrections officials complied with that duty. [37] The respondents submit they met that onus. They emphasize that the duty of fairness is flexible and variable. They note that inCardinal at paragraph 22, Le Dain J. held that “the process of prison administration, because of its special nature and exigencies, shouldnot be unduly burdened or obstructed by the imposition of unreasonable or inappropriate procedure requirements”.

They describe unitplacement as an administrative decision which relates to the Director’s responsibility for and depends on the Director’s expertise relatingto the safe, secure and efficient operation of the institution, requiring a delicate balancing of factors. The respondents note the need forquick decisions to manage an ever-changing prison population.

They submit the Court should be reluctant to interfere with the currentprocess to assign security levels and place inmates in units. [38] The respondents also argue that the Act and Regulations provide the content of the duty of fairness in relation to securityassessments and unit placements.

It is their position the security level assessment rather than the unit placement is the important decision.They note the legislation provides for written reasons or an opportunity to make representations in relation to security assessments,institutional transfers, administrative segregation and disciplinary charges, but not unit placements. They say that omission means theLegislature recognized those situations are more important to the inmate, calling for a higher degree of procedural fairness.

This echoesthe QB Decision, where the application judge found “[t]he legislation is purposeful [in] the way it is drafted and the Respondent hascomplied with the provisions of the legislation” (at 6). [39] The respondents also submit the frequency of security assessments and unit placements suggest that to afford a high level ofprocedural fairness to inmates would “grind the administration of the facility to a halt and could threaten the director’s mandate of keepingboth staff and inmates safe”. This, too, echoes a statement in the QB Decision (at 6): ...

The security assessments are undertaken approximately every 21 days on each inmate within the institution. If each inmate were to begiven advance notice of that security assessments and the opportunity to be heard it would create an administrative nightmare. ... [40] With the greatest respect, I am of a different view than the respondents and the application judge. The Director’s affidavitconfirms that security assessments and unit placements, while connected, are two different decisions.

Indeed, it confirms that inmates aresometimes moved to a different living unit before a security assessment is conducted, if there are immediate safety or behaviouralconcerns. Mr. Mercredi received reasons, such as they were, and an invitation to make representations, brief and uninformative as it was,relating to his security assessment. He did not receive reasons for, or an invitation to make, representations about the unit placementdecision.

That is the decision at issue. [41] The application judge found there was “a requirement for reasonableness and fairness” when deciding unit placements (at 7).She also found there was no requirement to provide reasons or an opportunity for the inmate to make representations, as there were nospecific process provisions in the Act or Regulations. In my respectful opinion, those two conclusions cannot reasonably be reconciled. A

duty of procedural fairness calls for a process consistent with the underlying values reflected in the duty: that is, as the Court said in Baker(at para 28): “individuals affected should have the opportunity to present their case fully and fairly, and have decisions affecting theirrights, interests, or privileges made using a fair, impartial, and open process, appropriate to the statutory, institutional, and social context ofthe decision”. [42] Mr. Mercredi did not have the benefit of such a process. He was not provided with the evidence or a

summary of the evidence.He was not told why he might be or was assigned to Unit A in any way. He was not given an opportunity to make representations beforeor after the unit placement decision. The decision was made by corrections officials, acting on the basis of reports and recommendationsby other corrections officials and other undisclosed evidence.

The decision-making process had none of the usual participatory features ofa fair process. [43] The respondents submit, and the application judge found, that there would be dire consequences if inmates were accorded ahigh degree of procedural fairness or if every inmate was given advance notice of unit assessments and the right to make representations. Ihave two comments about this submission.

First, while there is evidence that security assessments are undertaken every 21 days, and thatthere were 1,480 security level assessments at the SPCC in 2017, there is no evidence as to the number of unit placement decisions or as tohow many inmates have their unit placements changed.

Nor is there evidence that could support the inference that providing anappropriate level of the procedural fairness to inmates would result in an administrative catastrophe. [44] Second, advance notice of unit assessments and the right to make representations before a decision is made, or a “high degreeof procedural fairness”, are not the only procedural options. For example, neither the application judge nor the respondents suggested thata process similar to that used for security assessments would be unmanageable.

A court may find such a process acceptable, if it wassatisfied the reasons adequately disclosed the basis for the decision and that the opportunity to make representations was fair. While someresources would have to be allocated to implement such a process, that is the inevitable price of complying with the duty of fairness. [45] The central point here is that the content of the right to procedural fairness is variable. Mr. Mercredi was given no participatoryrights in relation to a unit placement decision that had a significant negative impact on his residual liberty interests.

The Director, the headof corrections, if rules are passed, or the government, if regulations are passed, must now make a different choice in relation to theprocedure for unit placement decisions of that kind. That choice can take account of the administrative realities faced by correctionsofficials, but in a manner that accords with the duty of fairness. [46] I will deal finally with the respondents’ argument that the fact the Act provides procedural protections in relation to specifieddecisions means inmates have no right to procedural fairness in relation to unit placement decisions.

The respondents cited no authorityfor this argument. I conclude it is based on the doctrine of implied exclusion, which Savage J.A. succinctly described in Li v Rao, 2019BCCA 265: [74] The doctrine of implied exclusion, or expressio unius est exclusio alterius, is a maxim of statutory

interpretation that provides thatthe explicit expression of one thing in a statute suggests the exclusion of another. It arises where express reference to a thing is expectedbut is ultimately absent. The Legislature’s failure to include the expected thing leads to the inference that it was deliberately excluded:Ruth Sullivan, Sullivan on the Construction of Statutes, 6th ed. (Markham, Ont.: LexisNexis Canada, 2014) at 248. [47] As he also noted, the maxim must be applied with caution: [76] Although courts often rely on implied exclusion reasoning, they also often reject it.

The force of the implication depends on thestrength and legitimacy of the expectation of express reference. As noted by the Saskatchewan Court of Appeal, its application calls for “aconsiderable measure of caution lest too much be made of it”: Dorval v.

Dorval, 2006 SKCA 21 at paras. 13-14. [48] Ruth Sullivan in Sullivan on the Construction of Statutes, 6th ed (Markham: LexisNexis, 2014), offers the following usefulcomments as to the application of the maxim (at 248): §8.90 … As Laskin J.A. succinctly put it, “legislative exclusion can be implied when an express reference is expected but absent”(University Health Network v. Ontario (Minister of Finance, (ON CA), [2001] O.J. No. 4485, at para. 31 (Ont. C.A.)).The force of the implication depends on the strength and legitimacy of the expectation of express reference.

The better the reason foranticipating express reference to a thing, the more telling the silence of the legislature. §8.91 An expectation of express reference can arise in a number of ways. It may arise from the conventions of ordinary language use orfrom presumptions relating to the way legislation is drafted. It is often grounded in presumptions about the policies or values thelegislature is likely to express in its statutes. [Footnote omitted] ... [49] The latter point relating to values the Legislature is likely to express is particularly important in this case.

The respondentsargue that implied exclusion should be applied to exclude procedural fairness, which reflects fundamental values. It is for that reason that,as Dickson J. (as he then was) said in Kane v B.D. of Governors of U.B.C., (SCC), [1980] 1 SCR 1105 at 1113: “Toabrogate the rules of natural justice, express language or necessary implication must be found in the statutory instrument”.

Similarly, asMcLachlin C.J.C. said in Ocean Port Hotel Ltd. v British Columbia (General Manager, Liquor Control and Licensing Branch), 2001 SCC52 at para 21, [2001] 2 SCR 781: Confronted with silent or ambiguous legislation, courts generally infer that Parliament or the legislature intended the tribunal’s process tocomport with principles of natural justice: Minister of National Revenue v. Coopers & Lybrand, (SCC), [1979] 1 S.C.R.495, at p. 503, Law Society of Upper Canada v. French, (SCC), [1975] 2 S.C.R. 767, at pp. 783-784. ...

See also, for example, Rosen v Saskatoon (District Health Board), 2001 SKCA 83 at para 47, [2001] 10 WWR 19; Craft v City ofToronto, 2019 ONSC 3636 (Sup Ct) (Div Ct) at para 46; Martin v Vancouver (City), 2008 BCCA 197, [2008] 8 WWR 387; Irwin vAlberta Veterinary Medical Association, 2015 ABCA 396 at paras 32–33, 609 AR 299; and Waterman v Waterman, 2014 NSCA 110 atpara 70, 379 DLR (4th) 64, which apply these principles. [50] In this case, there is no express language in the Act excluding procedural fairness relating to unit placement decisions. Nor is

the exclusion of procedural fairness a necessary implication. The right to procedural fairness reflects important values and the right to liberty is a fundamental right.

Section 3 of the Act expressly provides that the Act must be interpreted and administered in accordance with certain guiding principles, including that offenders are entitled to “fair treatment”. The expectation of an express reference to procedural fairness in every case it might arise in the course of administering the institution is weak.

In these circumstances, it is my opinion that the fact the Act does not deal expressly with the process for unit placement decisions does not mean procedural fairness does not apply. [ 51 ] For these reasons, the respondents failed to comply with the duty of procedural fairness that it owed to Mr. Mercredi in relation to the unit placement decision. VII. Conclusion [ 52 ] In the result, the unit placement decision concerning Mr. Mercredi and his incarceration in Unit A was unlawful. As Mr.

Mercredi is no longer incarcerated in Unit A as a result of the unit placement decision, there is no further action required in relation to his detention. “Barrington-Foote J.A.” Barrington-Foote J.A. I concur. “Ottenbreit J.A.” Ottenbreit J.A. I concur. “Whitmore J.A.” Whitmore J.A.