By Rayanna Hamadi
Two recent decisions effecting Terri-Lynne McClintic’s return to prison from a Section 81 Healing Lodge (“Healing Lodge”) highlight how pressure propagated by the media appears to affect the administrative decision-making process. The focus of this post is on the process followed to reach those decisions and not the correctness of those decisions. The Commissioner’s Directive to implement new Guidelines for the Transfer of Inmates was the first decision that effected McClintic’s return to prison. This decision was followed immediately by the decision to return McClintic back to prison.
McClintic was a party to the kidnapping and murder of eight-year-old Victoria Elizabeth Stafford in 2009. In April 2010, McClintic plead guilty and was convicted of first-degree murder. McClintic is currently serving a life sentence at a medium security facility in Ontario. She is not eligible for parole until 2031.
In late September 2018, Stafford’s family publicly denounced McClintic’s transfer into a Healing Lodge. Shortly after, political pressure to return McClintic to prison came from the Leader of the Official Opposition, Andrew Scheer, and this pressure was widely circulated in the media. It did not take long for members of the public to demand McClintic’s return by protesting in front of a Woodstock courthouse and on Parliament Hill.
Seemingly in response to this pressure, the Commissioner of the Correctional Service of Canada, Anne Kelly, issued a new Directive on the transfer of inmates which was followed by new Guidelines. The Guidelines do not seem to address all of the findings noted in a 2008 Internal Audit of Section 81 of the Corrections and Conditional Release Act. The Audit found that “the process for returning residents from Section 81 Healing Lodges is not clearly defined…there is no process in place to document that CSC fulfills the Duty to Act Fairly as it relates to the sharing of all information used to make a decision in a timely manner and providing an opportunity to the offender to make representations about the decision.” Little is done to meet the corresponding recommendation that more direction be provided “on the process of returning a resident to CSC custody and ensur[ing] the principles of the Duty to Act Fairly are respected,” other than adopting the requirement that reasons be provided for transfers.
Administrative decisions that have broad and general application generally do not require procedural fairness. Implementing the guidelines is a broad policy decision; however, Justice Dickson dissenting in Homex states that a policy decision “aimed deliberately at limiting the rights of one individual” requires some procedural fairness. The decision to issue this Directive and the subsequent Guidelines seems to be the type of multi-faceted decision Dickson J was considering. Issuing the Directive is a decision that appears to have been made more in response to pressure from the public than in response to the Audit conducted in 2008. It follows that McClintic’s transfer back to prison may have been unduly influenced by pressure from the public. The goal of satisfying the public is evident given that McClintic’s return to prison took place the same day the new Guidelines took effect.
Dickinson J finds that interference with Homex’s property rights gives rise to a requirement to provide Homex with procedural fairness. Specifically, he finds a requirement to provide notice of the proposed by-law changes as well as the right to be heard. Justice Estey, writing for the Majority, does not take the view that Homex was owed such procedural fairness; however, it bears remembering that Homex was a case of pure economic interest. Homex’s rights protected by the Canadian Charter of Rights and Freedoms were not engaged.
McClintic is serving a life sentence for murdering a child; however, she is still entitled to some residual right to liberty afforded by section 7 of the Charter. When broad policy decisions also target an individual’s Charter rights the argument in favor of requiring procedural fairness is stronger. Section 7 of the Charter supports such a requirement. The protections afforded by section 7, including a prisoner’s residual liberty rights, are only to be deprived in accordance with the principles of fundamental justice. One of these principles is procedural fairness. Requiring procedural fairness for multi-faceted decisions counters the appearance that the media has undue control and influence over administrative decision making and individuals’ access to rights. This is important to maintain the faith Canadians have in the value of their Charter rights. Of course, the argument can be made that transferring McClintic back to prison without procedural fairness is a trivial interference with her rights and is permissible under section 1 of the Charter.
I turn now to the decision to move McClintic back to prison. Assuming the decision to move McClintic back to prison was made under the new Guidelines, a concern about retroactive law making arises. Governance is in keeping with the rule of law when laws are predictable so that individuals can determine how to act. The decision to return McClintic to prison was made the same day that the Guidelines took effect. This may be closer to simultaneous law making than to retroactive law making, but does simultaneous law-making offer enough predictability to be in keeping with the rule of law? McClintic had no opportunity to adjust her behaviour in light of the new Guidelines before they were used as the basis for her transfer back to prison.
Notice is a minimal level of procedural fairness afforded to individuals. Given that the decision to transfer McClintic back to prison was made the same day the Guidelines took effect it is hard to imagine that she had any notice. If McClintic’s transfer back to prison engages her section 7 Charter rights she should have at least received notice that a decision was being made concerning her rights.
The media was quick to report the outrage sparked by McClintic’s transfer to the Healing Lodge. The media was also quick to report the general sense that justice had been achieved by McClintic’s return to prison. When a desirable outcome is reached that is certainly something to celebrate and broadcast, but a good outcome based on principled decisions is even better. The lack of attention from the media towards the process surrounding the decision to return McClintic to prison leads to questions about whether her Charter rights were considered and whether she was granted any procedural fairness. In a high-profile case like this, where the media’s coverage propagates pressure to generate a certain outcome, it is especially important that justice is not only done but is seen to be done. Greater transparency into the administrative decision-making process for high profile cases can further the goals that those decisions aim to achieve. Public Safety Minister, Ralph Goodale, expresses that returning McClintic to prison will promote safety in the community by ensuring the “public's confidence that our correctional system is holding guilty parties accountable for breaking the law, while fostering their rehabilitation.” However, when an outcome demanded by the public seems to be accomplished through retroactive law making and without procedural fairness there is a risk that the admirable goals are subverted by undermining faith in the justice system.
 Correctional Service of Canada, Commissioner’s Directive on Transfer of Inmates, by Anne Kelly, No 710-2 (07 November 2018); online <www.csc-scc.gc> [perma.cc/3AGG-Y9GE] [Directive].
 Correctional Service of Canada, CCRA Section 81: Transfers, (Guidelines), by Alain Tousignant, No 710-2-1 (07 November 2018); online <www.csc-scc.gc> [perma.cc/3PA6-BUW6] [Guidelines].
 Randy Richmond “After Public Outcry, Terri-Lynne McClintic Transferred Back to Prison from Healing Lodge”, National Post (8 November 2018), online: <www.nationalpost.com> [perma.cc/K8RC-WADJ].
 “Child Killer Terri-Lynne McClintic Back in Ontario Prison, Victim’s Father Says”, CBC (22 November 2018), online: <www.CBC.ca> [perma.cc/T2SV-HNQQ] [Child Killer].
 R v McClintic, 2010 ONSC 2944 at para 1.
 Child Killer, supra note 3.
 Jacquelyn LeBel “Tori Stafford’s Family Says Woman Convicted in Her Murder Moved from Prison to Healing Lodge”, Global News (25 September 2018), online: <www.globalnews.ca> [perma.cc/4D2V-LWHD].
 Teresa Wright “Scheer says Trudeau is Abandoning Responsibilities by Not Putting Tori Stafford’s Killer Back in Prison”, Toronto Star (27 September 2018), online: <www.thestar.com> [perma.cc/79HH-X4M3].
 Rebecca Joseph “‘Send Her Back’ Tori Stafford’s Father Leads Ottawa Protest against McClintic’s Healing Lodge Transfer”, Global News (2 November 2018), online: <www.globalnews.ca> [perma.cc/6VWV-PDB5].
 Internal Audit Branch of the Correctional Service Canada, Audit of Management of Section 81 Agreements, approved by the Audit Committee, No 378-1-241 (21 October 2008), online: <www.csc-gscc.gc.ca> [perma.cc/TK9K-3ZRW] [Audit].
 Correctional and Conditional Release Act, SC 1992, c 20 s 81. Section 81 allows for the transfer of inmates to the care and custody of an aboriginal community, including to healing lodges.
 Audit, supra note 10 at 4.2.4.
 Guidelines, supra note 2 at No 18 – 40.
 Canadian Assn of Regulated Importers v Canada (Attorney General),  2 FC 247 at para 18 (FCA).
 Homex Realty & Development Co v Wyoming (Village),  2 SCR 1011, Dickson J, dissenting [Homex].
 Richmond, supra note 3; Guidelines, supra note 2.
 Homex, supra note 16.
 Homex Realty & Development Co v Wyoming (Village),  2 SCR 1011, Estey J.
Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c11 [Charter].
 Dumas v Leclerc Inst of Laval,  2 SCR 459 at para 12.
 Charter, supra see note 20 at s 7.
 Suresh v Canada (Minister of Citizenship & Immigration), 2002 SCC 1 at para 113.
 Section 1 of the Charter sets out that the protections afforded by the Charter are “subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.” If transferring McClintic back to prison is a trivial interference with her rights, then doing so without procedural fairness may be demonstrably justified.
 Reference re Secession of Quebec,  2 SCR 217 at para 70.
 Richmond, supra note 3; Guidelines, supra note 2.
 Homex, supra note 16.
 Kathleen Harris “Goodale Orders Tougher Rules on Prisoner Transfers to Indigenous Lodges Following McClintic Uproar”, CBC (07 November 2018), online: <www.cbc.ca> [perma.cc/ZRK5-KWNM].