By now, Vavilov—the case in which the Supreme Court re-jigged Canada’s standard of review framework—has received sustained attention, including from yours truly. Over at Administrative Law Matters, Professor Daly has a running post outlining how Vavilov has been applied in some particular interesting cases. And on SSRN, Jamie Chai Yun Liew has an excellent article on the implications of Vavilov for marginalized persons. Vavilov has had and will continue to have implications for particular areas of law.
My concern in this post is the way Vavilov is being applied, at least in a few cases, in an important area of administrative decision-making: the carceral state. Indeed, it is not often that prisons are mentioned as distinct areas of administrative decision-making. This is, perhaps, because the administrative state is often identified closely with the “welfare state”—a benevolent set of tribunals and decision-makers maximizing benefits for vulnerable people. This is best represented in the deification of labour tribunals as the quintessential administrative decision-maker: expert, oriented towards the public good, efficient, and cheap.
But the prisons are not some separate and apart actor in terms of administrative law. Prison decision-makers operate on delegated power, just as labour and human rights tribunals do. Prisons have become increasingly bureaucratized over time (see Malcolm Feeley and Edward Rubin’s classic text here), and with that bureaucratization has come the potential for the traditional pitfalls associated with administrative decision-making. Indeed, as I will point out in the context of a particular case, “expertise” in the prison context means something very different—it often means expertise in using punitive measures to “manage” “difficult” prisoners. Coupled with the intersecting disadvantages of prisoners, and the level of control prison administrators—presumably without legal training—hold over those same prisoners, the risk of unlawful or unconstitutional decisions affecting the statutory or constitutional rights of prisoners multiplies. Indeed, prisons were once referred to as “lawless agencies” for good reason—they form, like immigration decision-makers, an intimate part of the administrative state as we know it.
Hence it is important to study the way in which judicial review doctrine works in the carceral state. Indeed, one would expect that Vavilov’s focus on justification might actually make a difference in the prisons, where decisions have historically been made without the close scrutiny of courts. The following two cases illustrate the divergent ways in which, at least in these two cases, Vavilov is faring against the behemothic carceral state. In one of the cases, the court takes a deferential posture based on “expertise,” arguably undermining the justificatory promise of Vavilov. In the other, the court subjects the prison decision to the scrutiny required by Vavilov’s justificatory standard.
Bromby v Warden of William Head Institution, 2020 BCSC 1119
Bromby is serving an indeterminate life sentence for first-degree murder. He was involuntarily transferred from a minimum security institution to a medium security institution in 2019. He objected to this transfer, “[r]aising concerns about the sufficiency of disclosure” in relation to the transfer . Despite this objection, the transfer was approved by the Warden of the minimum security facility. However, Bromby raised a habeas corpus claim, and was successful on that claim. He was transferred back to the minimum security institution.
However, immediately following this decision, the minimum security facility initiated an “emergency involuntary transfer” based on an increase of his security classification score. The final decision to transfer Bromby from minimum to medium security was eventually made by the warden, and was delivered orally to Bromby—but he was not provided written reasons for this decision in a timely manner, contrary to the Corrections and Conditional Release Regulations . Bromby argued that “the transfer on an emergency basis was unreasonable as he did not pose a threat to the security of the penitentiary or the safety of the inmates or any other person” .
In response to this claim, the Warden trotted out an old standard of prison decision-making: the rather specious appeal to “micromanagement” and “expertise.” As the respondent submitted:
- It is not the role of reviewing courts to micromanage prisons even where they feel that intervention measures other than a transfer might have been taken in addressing inmate behaviour. While the applicant may have preferred for other actions to be taken to attempt to manage his risk, deference is owed to the Warden’s assessment that the applicant was unmanageable within Mission (Minimum) Institution.
. . .
- The Decision was . . . reasonable . . . based on the facts and legal constraints before the Warden. The decision of the Warden, a prison administrator familiar with the complexities of Mission (Minimum) Institution and the security classification of inmates, should be provided with deference to decide that the applicant was presently incapable of management within an open perimeter environment. The thorough explanations provided and thoughtful insight as to the specific interventions that the applicant can work towards in becoming a minimum security inmate reflect the Warden’s significant expertise in identifying and managing offender risk. Accordingly, a high degree of deference is owed to the Warden in his decision.
The Court largely accepted this line of thinking:
However, it is the January 2020 Decision that I must assess for reasonableness and determine whether it falls within the range of possible acceptable outcomes which are defensible on the facts and the law. I find that the decision does. That is because the warden is entitled to deference in the decision‑making process. The decision of the warden, a prison administrator familiar with the complexities of Mission Institution and the security classification of inmates, set out the basis for why it was that Mr. Bromby presented as being incapable of management within an open‑perimeter environment .
There are two general problems with this line of thinking.
First, I confess that I don’t understand how this line of thinking is at all consistent with Vavilov. Vavilov did away the presumption of expertise for administrative decision-making, instead focusing on “demonstrated expertise” (Vavilov, at para 93). It is true that this demonstrated expertise “may reveal to a reviewing court that an outcome that might be puzzling or counterintuitive on its face nevertheless accords with the purposes and practical realities of the relevant administrative regime…” (Vavilov, at para 93). This does, fairly, give some latitude for prison decision-makers such as the Warden in this case to apply their knowledge of a particular situation to a dispute. But in this case there is no interrogation of the demonstrated expertise of the Warden. That is, the court does not determine whether the supposed expertise of the Warden was actually demonstrated in the reasons. The fact that, in the court’s view, “[t]he record establishes that the warden turned his mind to all of the relevant considerations…”  is not enough to warrant an acceptance of pre-Vavilov law on expertise. This has particular resonance in the prison context, where expertise has often been assumed without demonstration (see Lisa Kerr’s wonderful article here).
I acknowledge that it is genuinely difficult to demonstrate, in the prison context, what actually constitutes “expertise.” Vavilov opens the door to the operational realities of prisons—including issues of security—factoring into a decision. But there is no critical assessment here by the court of how the Warden’s expertise featured into this decision. This seems to be what Vavilov prescribes, and it arguably should factor into any assessment of reasonableness, particularly where the consequences are dire for the individual (Vavilov, at para 133).
Moreover, it is important to recognize that “expertise,” as a general proposition, and especially in the carceral state, can refer to many different things. Simply stating, as the court does in Bromby, that wardens have expertise masks the real question: in what? As Lisa Kerr notes in another outstanding article, at 259, expertise can cut both ways, especially where constitutional rights are at stake. Expertise could be a veneer for stereotyping or discrimination, as I note below. This is an important normative reason to deny administrative decision-makers a presumption of expertise, which Vavilov explicitly rejects—but which has, based on Bromby, perhaps not filtered down to the carceral state.
Finally, I must acknowledge the old trope about “micromanagement” of prisons, trotted out by the respondent in Bromby. Judicial review is, it is true, not about micromanagement of administrative decision-making. It is about policing the boundaries of statutory schemes designed to cabin administrative activity; it is a traditionally legal and doctrinal activity. As Kerr again aptly acknowledges:
The organization dynamics of prisons tend to resist constitutional constraints, due to the political powerlessness of inmates and the structural isolation of corrections from the community. The status of the inmate is defined in relation to managerial goals, rather than in relation to an externally defined moral norm, and prison managers tend to focus on their vision of scientific management rather than the larger legal order. Amid these institutional tendencies, only the judiciary has the inclination and ability to impose a regular and comprehensive legal framework. The judiciary is a necessary play in prison legality, rather than a necessarily amateur outsider at risk of “micromanagement.” The spirit of habeas corpus, with its strict emphasis on legality and access to justice, so as to challenge deprivations imposed on the physical body, has always had this in mind.
This is fundamentally important. Judicial review is a check against the seductive force of administrative exigency, in which people might be assimilated based on stereotypes or useful organizing tools rather than as individuals. Yet prisons, at the same time, must acknowledge the rights (statutory and constitutional) of prisoners—this is acknowledged in CSC’s enabling legislation. Ensuring that these rights are upheld is the function of judicial review, which should not be reduced to some afterthought when evaluating the panoply of control mechanisms at the hands of prison decision-makers.
Contrast the previous case with Johnston out of the Federal Court. Johnston involved an inmate at Kent Institution. As a federal inmate, Johnston received payments from Correctional Service Canada “at a modest daily rate” . However, CSC began withholding 100% of Johnston’s modest pay. This is because he had not paid a costs order in favour of the Attorney General. As such, Johnston filed a judicial review of the decision to make the a 100% reduction in his inmate payments.
The Court concluded that, though the relevant statutory scheme gave the CSC the legal authority to make deductions, “it was unreasonable for the CSC to withhold all of the applicant’s income without considering the purpose and principles that govern CSC and without considering the impact the deductions would have on the applicant” .
The problem in this case was marred by issues with the record. As the Court noted, the only record of decision was an email chain originating in the CSC. That email chain revealed that there was no “explanation or justification for making deductions from the applicant’s inmate income” apart from the obvious costs order . Specifically, the record did not say “anything about…why the amount of the deduction was set at 100 percent of the applicant’s inmate income” .
While Vavilov does note that reasons are not required in every case (Vavilov, at para 77), reflecting well-known law, the case does note that “where reasons are provided but they fail to provide a transparent and intelligible justification…the decision will be unreasonable” (Vavilov, at para 136). This is precisely what happened here. In addition to failing to disclose why the 100% figure was chosen, the CSC failed to consider the vulnerability of the person who had has income reduced. This is directly contrary to Vavilov (see Vavilov, at paras 133 et seq). The Vavilov majority puts the point eloquently at para 135:
 Many administrative decision makers are entrusted with an extraordinary degree of power over the lives of ordinary people, including the most vulnerable among us. The corollary to that power is a heightened responsibility on the part of administrative decision makers to ensure that their reasons demonstrate that they have considered the consequences of a decision and that those consequences are justified in light of the facts and law.
The CSC’s conduct in this regard was sorely lacking in terms of the justificatory standard set out in Vavilov—probably more so than Bromby. When a court cannot glean a reasonable justification from the record and reasons—in this case, a generally worded email—the risk increases that the administrative action was arbitrary. The risk increases that, in this particular case, the number of 100% was plucked from the air, without any discernible reason. When we multiply this arbitrariness with the existing vulnerability of prisoners, we have a recipe for administrative disaster.
The point is not that prisoners, because of their vulnerability, must win every judicial review. Doctrine must be applied without fear or favour. But the doctrine includes the consideration of the circumstances of vulnerable persons, and the importance of a decision to those persons, raising the justificatory bar in those cases (see, for this point, Sharif, at para 9). Again, this is not a trump card, but it is an important consideration for administrative decision-makers. It is not something to discard in favour of administrative exigency.
Justification plays a useful role here. It forces the prison, which is by design isolated from the rest of the community, to articulate the reasons for decisions in a way that is understandable to the people within prisons, as well as to the external legal system. Justification is the window by which we can look into the morass of prison decisions, policies, and directives that bear on the actual lives of real people within the carceral state. The tendency in prisons is, likely, to reject these external checks.
That makes those checks all the more important.