T-186-88
Maya Singh Gill (Applicant) (Respondent)
v.
Arthur Trono, in his capacity as Deputy Commis
sioner, Pacific Region, Correctional Service of
Canada (Respondent) (Appellant)
T-187-88
Jason Gallant (Applicant) (Respondent)
v.
Arthur Trono, in his capacity as Deputy Commis
sioner, Pacific Region, Correctional Service of
Canada (Respondent) (Appellant)
INDEXED AS: GILL V. CANADA (DEPUTY COMMISSIONER,
PACIFIC REGION, CORRECTIONAL SERVICE)
Trial Division, Muldoon J.—Vancouver, March 7
and 17, 1988.
Penitentiaries — Application to stay order quashing deci
sion to transfer two convicts to another maximum security
institution — Judge quashing transfer for failure to identify
details of alleged extortion schemes, including names of vic
tims — Duty to keep prisoners in safe custody — Common law
rule of non-disclosure of identities of police informers para
mount federal law — Applies to informers in prison —
Judicial notice of "convict code" and high risk of retaliation
against informers — Murder convictions and numerous insti
tutional offences grounds to suspect violent reprisals from
convicts — Conflicting rights to safety of life and security of
person of inmates at Kent weighed against liberty of two
convicts.
Practice — Judgments and orders — Stay of execution —
Judge quashing transfer of convicts from one penitentiary to
another for failure to disclose informers' names and details of
allegations — Order under appeal — Deputy Commissioner
seeking stay for fear convicts, who have prior murder convic
tions, causing death or injury to other inmates — Motion
granted to obviate risk pending judgment of Appeal Division.
Practice — Parties — Standing — Deputy Commissioner,
Pacific Region, Correctional Services, applying to stay execu
tion of order quashing decision to transfer inmates — Duty to
keep prisoners in safe custody — Apprehension of danger
sufficient to accord status to bring application.
This was an application to stay an order quashing a decision
to transfer two convicts from Kent Institution to the Saskatche-
wan Penitentiary pending the disposition of the appeal of that
order. The Warden of Kent Institution had received informa
tion from six inmates that these convicts were extorting money
from other inmates and converting that money into drugs. The
information was obtained under an assurance that the inform
ers' identities would be kept confidential. The decision to
transfer the convicts was set aside on the ground that they were
perhaps "expected to fight six shadows". (The Warden had
refused to give details of the extortion schemes, which could
possibly identify the informers, thus endangering their lives.)
The two convicts have murdered a total of seven people, both
outside and inside prison. Each has numerous convictions for
institutional offences.
Held, the application should be allowed.
The Deputy Commissioner had standing to apply for a stay
of the previous orders. It is a gaoler's duty to keep a prisoner in
safe custody. Apprehension of risk or danger to the safety of
prisoners was sufficient to accord the Deputy Commissioner
status in these proceedings. It would have been counter-produc
tive for the informers to bring such an application in their own
names as that would identify the inmates at risk.
The secrecy rule regarding police informers' identity,
articulated in Bisaillon v. Keable, applies to informers in
prison. The rule of non-disclosure is paramount federal law,
even though it is federal common law. The Deputy Commis
sioner and the Warden of Kent Institution were bound to
enforce the secrecy rule. Although the Bisaillon case was heard
before the Charter came into force, the decision would be the
same today. The reason for the secrecy rule is the fear of
retaliation. The Courts take judicial notice of the "convict
code" which makes it an offence to seek protection from, or
co-operate with the prison administration, and the high risk of
retaliation against the identified informers.
In light of the common law rule of secrecy of the identity of
informers, the well-known "convict code", and the duty to keep
prisoners in safe custody, only the most cogent and compelling
evidence should ever persuade the Court that a deputy commis
sioner or warden was taking an alarmist, frivolous or careless
view of the risks. There was no evidence that such was the case
here. That the two convicts had convictions for murder demon
strated that they could not be trusted to behave peaceably
towards the informers. In any event, the burdens of proof and
persuasion were not on the Deputy Commissioner. Whether the
allegations were true or false did not affect the risk of retalia
tion against the informers. Indeed, if they were false—the
possibility underlying the order to quash the decision to trans-
fer—the two convicts would have been more aggrieved than if
they were true. The Court gave credence to the high probability
of risk asserted by the Deputy Commissioner. If the order is
stayed until the Appeal Division makes its judgment, the risk
will be postponed or even obviated, and the Warden will have
time to make protective arrangements.
The Court had to weigh the conflicting rights to safety of life
and security of the person of inmates at Kent Institution,
against the liberty of the two convicts incarcerated at the
Saskatchewan Penitentiary. To have to endure the time for the
appeal process within the already restricted liberty of one high
security institution instead of another, pales to insignificance
when compared with the high probability of menace to the lives
or security of the persons who expect and fear violent reprisal
in Kent Institution. The ancient right to be kept in safe custody
is really the right to life and security of the person, even if
liberty be drastically diminished.
STATUTES AND REGULATIONS JUDICIALLY
CONSIDERED
Federal Court Rules, C.R.C., c. 663, RR. 341A (as
added by SOR/79-57, s. 8), 1909.
CASES JUDICIALLY CONSIDERED
APPLIED:
Bisaillon v. Keable, [1983] 2 S.C.R. 60.
DISTINGUISHED:
Communications Workers of Canada v. Bell Canada,
[1976] 1 F.C. 282; (1975), 64 D.L.R. (3d) 171 (T.D.);
Rose et al. v. International Brotherhood of Electrical
Workers (1985), 7 C.P.R. (3d) 141 (F.C.T.D.).
COUNSEL:
Bruce H. Ralston for applicant (respondent)
Gill.
J. P. Benning for applicant (respondent)
Gallant.
F. D. Banning for respondent (appellant).
SOLICITORS:
B. H. Ralston, Vancouver, for applicant
(respondent) Gill.
J. P. Benning, Legal Services Society, Prison
Legal Services, Abbotsford, British
Columbia, for applicant (respondent) Gallant.
Deputy Attorney General of Canada for
respondent.
The following are the reasons for order ren
dered in English by
MULDOON J.: Arthur Trono, in his official
capacity is styled "appellant" by his solicitors,
because he is such in proceedings in the Appeal
Division of this Court in which he appeals to
reverse the orders made and pronounced on March
2, 1988, in the Trial Division, by the Honourable
Mr. Justice Dubé [T-187-88, not yet reported]. By
means of those orders, Dubé J. quashed the deci
sions of the said respondent (appellant) to transfer
the two applicants (respondents) from Kent Insti
tution to the Saskatchewan Penitentiary.
The affidavit of Pieter H. DeVink, Warden of
Kent Institution, filed February 18, 1988, reveals:
2. That based on information given to me in confidence by
inmates of Kent Institution, I verily believe that Jason Gallant
and Maya Singh Gill have been involved in a scheme to extort
money from inmates and convert that money into drugs which
were imported into Kent Institution.
3. The information leading me to this conclusion was exclusive
ly obtained by informants under an assurance that their identi
ty would be kept confidential.
4. The information upon which I base my opinion consists of
confidential statements taken from six informants. [Certain
information follows.] In my opinion, to provide the name of the
victims, the amounts of money extorted, the threats used or the
machinery employed to collect the money would likely lead to
the identity of the victim becoming known.
5. One of the informants was a member of .... [Here follows
more information.] In my opinion, to reveal the particulars of
this scheme would lead to the knowledge that one of the small
groups of persons involved was the informant and thus endan
ger the informant's anonimity [sic].
6. The sixth statement was taken from an informant who is not
an inmate, but who is a relative of an inmate who had been
threatened by Maya Singh Gill and Jason Gallant .... [Here
follows more cogent information.] In my opinion, giving further
particulars of the amount extorted, the services extorted, or the
person involved would lead to an increased likelihood that the
identity of the informant would become known.
7. I am of the opinion that if the identity of any of the
informants becomes known, they will be in danger of death or
serious bodily injury by other members of the inmate
population.
8. I provided Jason Gallant and Maya Singh Gill with such
particulars of these incidents as in my opinion could be safely
released to them, and invited written representations regarding
their proposed transfer to a high maximum security facility in
Saskatchewan. I received written representations from both
Jason Gallant and Maya Singh Gill. I read and took those
representations into consideration before confirming my recom
mendation for the transfer of Jason Gallant and Maya Singh
Gill to the high maximum facility in Saskatchewan.
Mr. Justice Dubé quashed the decision to trans
fer the prisoners, noting [at page 6] that the
prisoners were perhaps "expected to fight six
shadows".
The appellant filed no affidavit in the present
proceedings, in which he seeks an order pursuant
to Rules [Federal Court Rules, C.R.C., c. 663]
341A [as added by SOR/79-57, s. 8] and 1909, to
stay Mr. Justice Dubé's order, pending the Appeal
Division's disposition of the appellant's appeal. His
counsel did tender, however, a memorandum of
argument. Counsel also relied on the affidavits
already filed in the proceedings before Dubé J.
The appellant, apparently sensing some doubt
about his standing to apply for a stay of the
previous orders of the Court, expresses the follow
ing justification in paragraph 3 of the memoran
dum of argument.
3. The grounds upon which this application is based are some
what unusual in that the Correctional Service of Canada per se
has no interests at stake in the appeal. Aside from some
administrative inconvenience and expense to the taxpayer in
retransfering the applicants from Saskatchewan to Kent Insti
tution and possibly back, the Correctional Service of Canada
does not stand to be prejudiced by the execution of the Order
pending appeal. This application is brought by the Correctional
Service of Canada on behalf of members of the population of
Kent Institution who are under its charge and who may suffer
irreparable harm of the most extreme order should the Learned
Chambers Judge's Order be implemented and subsequently be
found incorrect.
In fact and in law the appellant's status is utterly
secure. From time immemorial the duty of every
constable, gaoler, or warder into whose care the
custody of any prisoner or other person is commit
ted, has been to keep that prisoner in safe custody.
Indeed, the highest and most trenchant expression
of that duty exacts that the constable, gaoler or
other warder must risk his or her own life and limb
to ensure the safety of the person kept in custody.
That safety must be maintained against mobs
outside the prison walls as well as against the
dangers of conditions of work and the dangers
presented by the prisoner's fellow inmates, within
the walls. It may also be noted that negligent or
wilful dereliction of such duty is actionable,
although this is not the occasion for discussion of
either liability or quantum of compensation in that
regard.
Apprehension of risk or danger to the safety of
prisoners (of which the warder is the best judge) is
sufficient to accord the appellant ample status in
these proceedings. The Court will not gainsay the
Deputy Commissioner, Pacific Region, Correction
al Service of Canada in his judgment of his role in
what he perceives as an emergent situation, at
least in so far as his status to bring this application
on behalf of inmates under his charge, is con
cerned. In the alternative, it would be highly coun-
ter-productive for any such inmate or inmates to
bring such an application in their own names, for
the danger apprehended by the Deputy Commis
sioner is precisely that of identifying the inmates
whom he perceives to be at risk.
It would be difficult to imagine a stronger state
ment of the real nature and scope at common law
of the secrecy rule regarding police informers'
identity than that which was articulated by Mr.
Justice Beetz for the Supreme Court of Canada in
Bisaillon v. Keable, [1983] 2 S.C.R. 60, beginning
at page 88 and following. That nature and scope,
the fundamental reason for the rule and its hardi
ness of emplacement are neither displaced nor
diluted by its application to and in the present
situation of a prison community. Indeed, to the
extent that the nature of a prison community
differs from that of the civilian community at
large, to that extent is the rule of more urgent
import for informants in prisons.
Although all of reasoning of Beetz J. is lucidly
instructive, and ought to be read in full, it is too
extensive to recite here. Counsel for the respond
ents acknowledged the expression of the rule, they
seemed not to appreciate one of its important
operative effects. Here are some passages drawn
from the text of that Bisaillon case [at pages 94,
95-96 and 102]:
The exclusionary rule was not recognized in the interests of
police informers, but it in fact protects each of them.
The secrecy rule regarding police informers has chiefly taken
the form of rules of evidence in criminal and civil proceedings,
but it can be said that the rule gives rise to rules of another
kind, which impose duties on a peace officer. If the law
prohibits a peace officer from disclosing an informer's identity
in judicial proceedings based on the public interest which it
considers to be superior to that of the administration of justice
by the Court, a fortiori it does place on him a duty to maintain
confidentiality outside of any judicial proceedings, when the
administration of justice by the courts is not in issue. I would
accordingly have no difficulty in finding, although I know of no
precedent on the point, that a peace officer who for example
gave the media a list of his informers would be liable to severe
disciplinary action and could be made to pay damages. The
question might even arise whether such a peace officer was not,
depending on the circumstances, committing the indictable
offence of obstructing justice under s. 127(2) of the Criminal
Code.
The law itself decided that it is always contrary to the public
interest for a peace officer to be required to disclose the identity
of a police informer, and that this aspect of the public interest
must always take precedence over the need to do more complete
justice, subject to a single exception in criminal law. [i.e. if
upon the trial of a defendant for a criminal offence disclosure
of the identity of the informer could help to show that the
defendant was innocent of the offence—in that case only, the
balance falls upon the side of disclosure: cited by Martland J.
in the Health Records case [Solicitor General of Canada et al.
v. Royal Commission of Inquiry (Health Records in Ontario)
et al.], [1981] 2 S.C.R. 494, at page 533.]
Perhaps, for the case at bar, the most pertinent of
Mr. Justice Beetz' passages in Bisaillon is this [at
pages 105-106]:
The common law did not give a peace officer this right
simply because it would be useful to him, but because it
concluded empirically that the right was necessary. It is cer
tainly not possible to go so far as to say that, without this right,
a peace officer would be entirely powerless and the criminal
laws would be totally ineffective. However, the inability of the
one to act and the ineffectiveness of the other would reach a
point where they could no longer be tolerable. This is what
Lord Simon of Glaisdale is referring to when he writes in
N.S.P.C.C., at p. 232:
Another facet is effective policing. But the police can func
tion effectively only if they receive a flow of intelligence
about planned crime or its perpetrators. Such intelligence
will not be forthcoming unless informants are assured that
their identity will not be divulged ..
Haines J. of the Supreme Court of Ontario also properly
recognized this in R. v. Lalonde (1971), 15 C.R.N.S. 1, at p.
13:
Over and above all of this is the recognition that without our
citizens giving information to the police the investigation of a
crime would be seriously impaired or even defeated. Without
witnesses our courts could not function. Those who know of
material facts should be able to disclose them to the police
with the assurance that they will be treated in confidence. In
an aggressive community fear of retaliation can be very real.
In the next and last quotation [at page 108]
from the Bisaillon case, Beetz J. leaves no doubt
that the rule of non-disclosure is paramount feder
al law, even although it is federal common law.
It is true that the federal Parliament has not given legislative
form to the secrecy rule regarding police informers' identity.
Section 41 of the Federal Court Act, in force at the relevant
time, in my view, has no bearing on this rule. To the best of my
recollection, I recall no case where the non-legislative "federal
law" has been given paramountcy over provincial laws. How
ever, I do not see why the federal Parliament is under an
obligation to codify legal rules if it wishes to ensure that they
have paramountcy over provincial laws, at least when some of
those legal rules fall under its exclusive jurisdiction, as for
example do rules of evidence in criminal proceedings.
Beetz J. wrote the above passage within his expla
nation of the rule's necessary and paramount oper
ation in civil proceedings and in proceedings
undertaken wholly pursuant to provincial laws.
Clearly, the Deputy Commissioner, Pacific
Region, Correctional Service of Canada is obliged
to respect and enforce the secrecy rule, as is the
warden of the Kent Institution.
The Bisaillon case was heard by the Supreme
Court of Canada early in March, 1982, before the
coming into force of the Canadian Charter of
Rights and Freedoms [being Part I of the Consti
tution Act, 1982, Schedule B, Canada Act 1982,
1982, c. 11 (U.K.)]. Consideration of both the
decision and of the Charter leads to the conclusion
that such decision would of necessity be the same
if the case were adjudicated today, as it was in
1982.
The reason for the secrecy rule is abundantly
clear, and it operates in any civilized society, be it
a free and democratic society like Canada, or a
totalitarian one like many other countries in the
world. It resides in the very real, and realistic, fear
of retaliation in an aggressive society, which, in
this instance, is the population of a maximum
security penitentiary. That apprehension of likely
retaliation, wherever and whenever possible, is well
known and commonly known from long ago and
unto these days by lawyers, judges, prison social
workers and teachers, custodial personnel and even
among the public at large.
That fear of retaliation is so well known and its
realistic, factual basis is such that the Court would
be wilfully blind not to take judicial notice of that
savage, unwritten "code" of conduct which is kept
alive by the dominant inmates in those "aggressive
[inmate] communities" in Canadian prisons. The
so-called "convict code" was in no way ameliorat
ed by the State's adoption of either the Canadian
Bill of Rights [R.S.C. 1970, Appendix III] or of
the Canadian Charter of Rights and Freedoms.
That abominable "code" makes an offence of seek
ing protection from, or co-operating with, the
prison administration; and even though Parliament
has eschewed capital punishment, the supporters
and enforcers of the "convict code" do not flinch
at murder, maiming, wounding, beating, or some
times sexual indignities according to "culpability"
in the administration of their brand of rotten
injustice.
Needless to say, prison administrators justifi
ably do everything within their power and wiles to
suppress, detect, discourage, dilute and thwart the
operations of those perversions of justice in such
an effective way that some inmates come through
their terms of imprisonment virtually unscathed,
although hardly unaware of that callous "code".
It is primarily a "code" of retribution and ven
geance for the "offences" of co-operation with,
and the reporting of objectively genuine offences
and other misbehaviour to, the prison authorities.
It is surrounded by prudent, fearful silence which
serves only to protect the perpetrators of domi
nance, extortion, threats and violence. Every free
and democratic society, Canada included, is a
civilized society. However, conceived and operat
ing in necessary isolation from society in general,
in the "aggressive society" of prisons, the "convict
code" is an attempt to establish, to honor and to
exact fearing tribute, and obedience, to the savage
ry of the barbarian princes among the inmate
population. How often in courts of criminal juris
diction does an inmate choose an additional term
of imprisonment, rather than give incriminating
testimony about a fellow inmate!
So, for this reason, ultimately the probability of
retribution, have Courts defined, developed and
upheld the rule of non-disclosure of the identity of
informants. In so doing, the judiciary, including
the Supreme Court of Canada, have taken, and do
take, judicial notice of the so-called "code" and
the high risk of the infliction of savage vengeance
upon the identified, or purportedly identified,
informer. It is that risk of vengeance which could
be inflicted on the informers or on the merely
rumoured informers among Kent's inmate popula
tion which motivates the appellant Deputy Com
missioner to move for a stay of Mr. Justice Dubé's
order pending appeal.
Is it justifiable to accord such weight to the
Deputy Commissioner's concern for the probable
risk to the informers' rights of security of their
persons, or is he being an alarmist? Apart from the
Correctional Service's general duty to keep
inmates in safe custody, there is much pertinent
information in, and appended to, the affidavits
filed for the hearing before Mr. Justice Dubé,
upon which the Deputy Commissioner relies for
support on his present application. Before proceed
ing to turn to that information the Court observes
that given the common law rule of secrecy of the
identity of informers, given the reality of that
well-known abomination—the "convict code", and
given the historic and subsisting duty of a custodi
al authority to keep those prisoners committed into
his, her or its charge in safe custody, only the most
cogent and compelling evidence should ever per
suade the Court that a deputy commissioner or
warden would be taking an alarmist, frivolous or
careless view of the risks. No such evidence was
led here and the Court will not reject the Deputy
Commissioner's present application.
Now the Court turns to the pertinent evidence
about the two inmates who are the subject of the
Deputy Commissioner's concern. They are still
lodged in Saskatchewan Penitentiary and will be
promptly restored to residence at Kent Institution
if Mr. Justice Dubé's order be not stayed pending
the disposition of the Deputy Commissioner's
appeal against that order.
The applicant (respondent) Maya Singh Gill, in
his affidavit filed on February 2, 1988, deposed as
follows:
2. On December 11th, 1987, I was a prisoner at Kent Institu
tion where I was serving three sentences of life imprisonment
for murder. Two of these sentences were imposed on the 10th of
June 1977, one for first and one for second degree murder. The
third sentence was imposed on the 27th of January 1983, for
first degree murder.
The deposition is rather curt and sparse when
related to the contents of exhibit "D" to the
affidavit, a "Progress Summary Report" which the
applicant (respondent) refused to sign on January
20, 1988. It notes that his case management team
recommended that he "be placed in a High Max
imum Security Facility". The murder of Gill's
aunt and uncle, at which his father's hired assassin
flinched, was carried out by this inmate, in a
particularly brutal merciless manner, not to say
that any murder is in the least bit civilized con
duct. Approximately four and a half years after
the first murder convictions he was once more
convicted of the first degree murder, by stabbing,
of a fellow inmate of Kent Institution. His previ
ous history reveals no violence toward people, only
property, but his long institutional record reveals
threatening to assault, and again later actually
assaulting, prison staff members, an attempt to
incite fellow inmates and fighting with another
inmate. There are 37 institutional offence convic
tions noted. There is much more to that six-page
foolscap exhibit "D" than needs to be recited here.
The applicant (respondent) Jason Gallant, in his
affidavit filed on February 2, 1988 deposed as
follows:
2. On December 11th, 1987, I was a prisoner at Kent
Institution where I was serving four life sentences for first
degree murder. The first of these was imposed on the 4th of
June, 1977, the other three were imposed on the 22nd of
February, 1983 following upon my plea of guilty.
The deposition is rather curt and sparse when
related to the contents of exhibit "B" to the affida
vit, a "Progress Summary Report", which is not
signed by the applicant (respondent). Dated in
January, 1988, it bears the recommendation that
he "be transferred to Higher Maximum Security"
because he "presents a risk to the safety and
security of Kent Institution and potentially to
members of the community". The first of his
convictions for first degree murder appears to
relate to a murder committed out of prison. The
other three convictions for first degree murder
relate to the deaths of three corrections officers
during a disturbance in Archambault Institution
on July 25, 1982. His previous criminal history
begins in 1970. In 1975 Jason Gallant was convict
ed of assault causing bodily harm; and in 1976 he
was convicted of possession of a weapon and break
and enter with intent to commit an offence. Also,
he was re-committed to Saskatchewan Penitentia
ry for violation of mandatory supervision. There
are 65 institutional offence convictions noted, of
which 7 occurred at Kent Institution.
The progress summary is not bereft of positive
assessments. For example, it is noted that Jason
Gallant has improved his inter-personal skills with
various levels of staff and contract workers. It is
further stated that he "has taken three life skills
courses and has participated in a constructive and
committed manner in each one". Gallant has also
just completed an alcohol and drug self-awareness
program and according to the director "he par
ticipated in the meetings in a very real and produc
tive manner". There is much more to that five-
page foolscap exhibit "B" than needs to be recited
here.
Exhibit "D" to the applicant (respondent) Gal
lant's affidavit is a photocopy of an eleven-page,
letter-size, handwritten submission by him, appar
ently intended for the warden. In it Jason Gallant
denies most of the unfavourable reports and obser
vations expressed in the progress report, exhibit
"B". He pleads his own good influence in his own
words, thus:
I was often involved in a "mediative capacity" between warring
factions in the institution. Sometimes the problems involved
drugs disputes (who owed who what). Sometimes the disputes
involved money. Others were centered around someone accus
ing another of being no good, another a rat etc. One was
accused of screwing some one else's girl friend. So on and so
forth.
In every case where a weapon was threatened as the only
alternative I was able to use my influence if not in every
occasion to stop the altercation then at least to leave out the
weapons.
While on the committee on more than one occasion punching
a less moderate inmate seemed to be the only way to stop the
spread of more serious situations. Both myself and [another
inmate] openly discussed these incidents with staff (where
necessary)—excluding the names of parties where the individu
als involved were not known by staff members.
In Dec. of 1976 1 killed a man in an alcoholic blackout. I do
not remember doing this. I thought I could beat the system and
lied at the trial believing an acquittal was possible. I gambled it
all on this and lost. I further acknowledge my guilt. And for
most part have come to terms with this.
On July 25, 1982, three guards were killed in Archambault. I
never killed these men. I did however plead guilty to these
charges as a plan to get [another inmate] taken off an attempt
ed murder charge I knew he was not guilty of. Another inmate
had promised then to help me escape. So I pled guilty for this.
Although the 'new wave' coming into prison with guys who
haven't done time before allows that one can 'rip' another
inmate for his things & still be solid—it to me amounts
paramount to nothing less than a cell-thief to one who is
suppose to hold to the old "con-code". Whatever that is ...
Much of the perspective of me by staff is that I hold to the
old way which is why I am told I have difficulty with the L.U.
system. [This sentence difficult to understand] ... Always
(whether misguided or no) I have tried to fight for prisoners
rights, create a sense of unity in the population.
I've held to a view of myself whatever my failures in this life
that I have never intentionally "fucked over" a fellow con. Now
at 34 being known by staff as being somewhat less hostile
towards them—for I've never talked to them until I came to
Kent—I stand to be accused by my fellow-con as "burnt-out",
can't fight the system any more, but now with these accusations
of extortion I've turned against the prisoner in the process??
The submission is too long to recite in full here. It
is no doubt self-serving, but what else can the
applicant (respondent) Gallant have done to
respond to the warden's investigation? The above
passages are selected for the insights they provide
not only into this prisoner, but also into that
aggressive prison community.
Also noted are exhibit "G", a copy of a suppor
tive letter from a life skills instructor at Fraser
Valley College, and exhibit "I", a copy of a further
supportive letter from the director of Set Free
Ministries, which express favourable reports about
Jason Gallant.
The total of six first degree and one second
degree murder convictions against the two appli
cants (respondents) Gill and Gallant hardly make
it incumbent on the Deputy Commissioner to
demonstrate why he will not trust the two inmates
to behave peaceably towards the informers, or
those who may be reputed to be the informers. The
burdens of proof and persuasion are not on him.
While it must be acknowledged that no one is so
clairvoyant as to be able with absolute certainty to
predict that one or both of them will definitely
attempt to molest the actual or suspected inform
ers, the Deputy Commissioner, in pursuance of his
legal duty to provide safe custody (in so far as
possible), has no reason to trust the applicants
(respondents) not to harbour, nor once again to
give vent to murderous impulses against those who
have informed against them.
The Deputy Commissioner and the warden face
the same dilemma whether the accusations upon
which they have acted be true or false. Indeed, if
they be false, the applicants (respondents) can be
expected to be even more aggrieved than if they be
true. That possibility of false accusation by "six
shadows" underlies the reasons for which Mr.
Justice Dubé quashed the decisions to transfer the
two applicants (respondents) from Kent to the
Saskatchewan Penitentiary.
Thus, whether the informers' complaints be true
or false, and only they and the applicants
(respondents) can know for certain, it is eminently
reasonable to apprehend the real and substantial
risk of the tatters' attempts at violent vengeance.
The risk would be proximate if the applicants
(respondents) were at large in the Kent Institu
tion's inmate population with the informers. Even
if a Court or other adjudicator were to conclude
and declare that the informers' complaints have no
basis, it realistically seems highly unlikely, in that
aggressive prison society, that the applicants
(respondents) would feel civilly satisfied and
peacefully but fully vindicated by a mere adjudica
tion. They may have made some psycho-social
progress in prison, but if one or both of them were
again to murder someone they believe deserves
their brand of capital punishment, the risk taken
by the warden or this Court would be demonstrat
ed to have been unwarranted.
A warden's lot is clearly not a happy one, but
this Court cannot purport to ameliorate it by
sitting in appeal on the decision of Dubé J. This
Court should, however, give credence to the high
probability of risk asserted by the Deputy Com
missioner. If action on the existing order be stayed
until the Appeal Division's judgment be made
known the risk will be postponed or even obviated,
and the warden will have time and opportunity,
should the Deputy Commissioner's appeal be dis
missed, to make protective arrangements.
Counsel for the applicants (respondents) argued
that because of the warden's dilemma, the balance
of convenience lies with their clients. The (appli-
cants) respondents might be returned to Kent in
any event, as a result of the Appeal Division's
dismissal of the appeal. Why, it is asked, should
they have to wait in Saskatchewan during the
appeal process? Conflicting rights to safety of life
and security of the person, and liberty, arise here
as between inmates of Kent Institution and the
applicants (respondents) lodged now in the Sas-
katchewan Penitentiary. The conflict must be
resolved. To have to endure the time for the appeal
process within the already restricted liberty of one
high security institution instead of the other, pales
to insignificance when compared with the high
probability of menace to the lives or security of the
persons who expect and fear violent vengeance in
Kent Institution. That is what the ancient right to
be kept in safe custody really is in such circum
stances. It is the right to life and security of the
person, even if liberty be drastically diminished. It
logically and lawfully transcends the inconvenience
and chagrin of applicants (respondents) now
lodged in the Saskatchewan Penitentiary.
Counsel for the applicants (respondents) cited
two cases in opposing a stay of Mr. Justice Dubé's
order. The cited decisions are: Communications
Workers of Canada v. Bell Canada, [1976] 1 F.C.
282; (1975), 64 D.L.R. (3d) 171 (T.D.), and Rose
et al. v. International Brotherhood of Electrical
Workers (1985), 7 C.P.R. (3d) 141 (F.C.T.D.).
These are civil cases in which stays of previous
orders were refused and the pertinent principles
appear to be correctly stated. They involve nothing
so gravely important as real risk to the lives and
security of the persons of several people. In the
earlier case Mr. Justice Dubé declined to stay the
execution of an order of the Canada Labour Rela
tions Board pending appeal to the Appeal Division
of this Court. In the later case, the Court declined
to stay execution of a judgment prohibiting the use
of an infringing trade mark on office stationery
also pending the outcome of an appeal. As above
noted, the balance tips sharply in favour of pro
tecting those at risk of extreme prejudice to life
and security of the person, when this value con
flicts with what amounts to little more than the
inconvenience of parties who have as recently as
earlier in this decade, finally "achieved" the total
of seven murder convictions between them. The
principles expressed in those two judgments favour
the Deputy Commissioner's contentions in these
circumstances.
For the above reasons the Court accedes to the
Deputy Commissioner's motion. Pursuant to Rules
341A and 1909, the Court orders that the order
pronounced by Mr. Justice Dubé on March 2,
1988, be stayed pending the disposition of the
Deputy Commissioner's appeal therefrom by the
Appeal Division of this Court, without costs for or
against any party hereto. The Court considers that
an award of costs against the applicants (respond-
ents) for failing to maintain the benefit of the
previous order pending appeal, would not be
appropriate. The denial of costs in the Court's
discretion reflects no criticism whatever of the
Deputy Commissioner or his counsel.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.