Court File No. 34609
IN THE SUPREME COURT OF CANADA
(ON APPEAL FROM THE BRITISH COLUMBIA COURT OF APPEAL)
BETWEEN:
DIANE KNOPF, WARDEN OF MISSION INSITUTION
AND HAROLD MASSEY, WARDEN OF KENT INSITUTION
APPELLANTS
(Appellants)
- andGurkirpal Singh KHELA
RESPONDENT
(Respondent)
- andCanadian Association of Elizabeth Fry Societies and John Howard Society of Canada,
Canadian Civil Liberties Association and British Columbia Civil Liberties Association
INTERVENERS
RESPONDENT'S FACTUM
Counsel for the Respondent
Agent for the Respondent' .
Bibhas D. Vaze
Michael S. Fox
Eric Purtzki
The Law Office of Bibhas D. Vaze
606 - 815 Hornby
Vancouver BC V6Z 2E6
Tel: (778) 855-2879
Fax: (604) 608-2922
Email: [email protected]
Brian A. Crane, Q.C.
Gowling Lafleur Henderson LLP
160 Elgin Street
Suite 2600
Ottawa ON
KIP lC3
Tel: (613)786-0212
Fax: (613) 563-9869
Email: [email protected]
Counsel for the Appellants
Attorney General of Canada
Department of Justice
234 Wellington Street, room 1148, East Tower
Ottawa ON KIA OH8
Agent for the Appellants
Attorney General of Canada
234 Wellington Street
Ottawa ON KIA OH8
Anne Turley
Jan Brongers
Tel:(613) 941-2347
Fax: (613) 954-1920
Email: [email protected]
Christopher M. Rupar
Tel: (613) 941-2351
Fax: (613) 954-1920
Email: [email protected]
Counsel for Canadian Association of
Elizabeth Fry Societies and John
Howard Society of Canada
Agents for Canadian Association of
Elizabeth Fry Societies and John
Howard Society of Canada
Allan Manson
Queen's University
128 Union Street
Kingston, Ontario
K7L 3N6
Telephone: (613) 533-6000 Ext: 74255
FAX: (613) 533-6509
E-mail: [email protected]
Brian A. Crane, Q.C.
Gowling Lafleur Henderson LLP
2600 - 160 Elgin St
Box 466 Station D
ottawa, Ontario
K1P 1C3
Telephone: (613) 233-1781
FAX: (613) 563-9869
E-mail: [email protected]
Counsel for Canadian Civil Liberties
Association
D. Lynne Watt
Matthew S. Eastbrooks
Gowling Lafleur Henderson LLP
160 Elgin Street
Suite 2600
Ottawa, Ontario
K1P 1C3
Telephone: (613) 786-8695
FAX: (613) 788-3509
E-mail: [email protected]
Counsel of British Columbia Civil
Liberties Association
Agents of British Columbia Civil
Liberties Association
Michael Jackson, Q.c.
Joana G. Thackeray
Jennifer Anne Klinck
University of British Columbia
Faculty of Law
1822 East Mall
Vancouver, British Columbia
V6T 1Zl
Telephone: (604) 822-4565
FAX: (604) 822-8108
E-mail: [email protected]
Heenan Blaikie LLP
300 - 55 Metca Ife Street
Ottawa, Ontario
K1P 6L5
Telephone: (613) 236-1668
FAX: (613) 236-9632
INDEX
page
PART I - STATEMENT OF FACTS .................................................................. 1
PART II - QUESTIONS IN ISSUE •.••.............•••••.•.................•...•.•••.............••• 16
PART III - ARGUMENT ...........•.•...............•••••...................••••••...............••.. 16
PART IV - SUBMISSION ON COSTS .........•••.••...............•.••••••••.................•....38
PART V - NATURE OF THE ORDER SOUGHT ...........••••.................••.••••......... 39
PART VI - TABLE OF AUTHORITIES ......••••...............•.••.•.....................•.•.... .40
1
PART I - OVERVIEW, FACTS, AND JUDGMENTS BELOW
A. OVERVIEW
1. Habeas Corpus traces its origins and development to virtually the same place as the
very concept of the rule of law, and it is no mistake that the two ideas have been
coextensive. Before the establishment of polities based on law, or in contemporary
situations where law is suspended and rulers rule by executive fiat and force, individuals
detained by the State had and have no recourse against detention, whether proper or not,
except by hoping for the very-suspect goodwill of those jailing them.! In the presence of
such lawlessness, individuals could face the extreme situations of being summarily
executed or simply disappearing, to the less egregious but no less lawless scenarios of
being deprived of liberty without any evidentiary basis or otherwise lawful, reasonable,
or generally proper grounds for such. Within the development of law, habeas corpus
(also referred to herein as simply habeas) has taken on added saliency as the rights of
liberty of the person continue to be developed and affirmed in constitutional democracies.
And in situations where individual liberty calls out against imprisonment, the well-worn
phrase "justice delayed is justice denied" has added significance.
Recourse against
unlawful detention, whatever the grounds upon which such lawlessness is based, must be
timely to be effective. Our system does not take lightly any degree of improper prison
time faced by any individual.
2. Over the past several hundred years, the common law has seen the spirit of habeas
corpus reflected in various statutory provisions which otherwise allow for review of the
propriety of the grounds of imprisonment. While much statutory review is comprehensive
and meets the spirit of habeas corpus, there have been gaps. In Canada, the law has
recognized that such a gap exists in the area of prison law and administration and habeas
corpus therefore continues to comprehensively apply and to be sought when improper
! See Judith Farbey and RJ. Sharpe (with Simon Attrill) The Law of Habeas Corpus
(third edition of Sharpe), (2011, Oxford University Press) at note and preface; Paul D.
Halladay, Habeas Corpus: From England to Empire (2010 Belknap Press) at pps. 11-17;
and Boumediene v. Bush 553 U.S. 723, pps. 561-567.
2
imprisonment exists within prisons themselves. This has been part of the recognition that
prisons exist within prisons and "the rule of law must run within penitentiary walls.,,2
3. When Gurkirpal Singh Khela was deprived of his liberty in February of 2010 by way
of transfer from medium-security Mission Institution to maximum-security Kent
Institution, he sought a writ of habeas corpus against such transfer. He alleged that his
detention was unlawful in that, primarily, it had occurred without his being afforded
procedural fairness as information that should have been provided to him to rebut his
transfer was not shared with him while, more generally, his detention was improper as
there was no proper evidentiary foundation supporting the allegations triggering his
transfer; in his words, the transfer decision was therefore unreasonable. In the Chambers
of the British Columbia Supreme Court, Bruce J. granted the writ of habeas corpus on the
basis that Mr. Khela had not been afforded procedural fairness. The Court therefore did
not make a further inquiry as to whether there were otherwise proper grounds for the
transfer, indeed, whether, in all the circumstances, the transfer was reasonable. The
learned Chambers Judge did, however, opine that a review of the substantive merits or
reasonableness of a transfer decision was within the scope of a habeas corpus application
in a Provincial Superior Court. On matters relevant to the herein proceeding, she was
affirmed in her Judgment by the British Columbia Court of Appea1.
3
4. The Warden of Mission Institution has appealed the Judgments of the BC Courts. On
one level, she says that disclosure obligations within correctional decisions should be
limited and that the BC Courts went beyond those limitations in their judgment of Mr.
Khela's situation. More widely, however, she questions the scope ofreview, and grounds
for review, of the lawfulness of detention that can be undertaken by provincial superior
courts on habeas corpus applications, essentially arguing that these grounds should be so
limited as to make habeas corpus ineffective.
At the very heart of the Warden's
argument is the assertion that on habeas corpus review, a Court may not even touch the
2 See May v. Ferndale [2005] 3 S.C.R. 809 at para. 27, quoting Martineau v. Matsqui
Institution Disciplinary Board [1980]1 S.C.R. 602 at p. 622.
3 Khela v. Mission Institution 2010 BCSC 721; 2011 BCCA 450.
3
merits of a decision depriving an inmate ofliberty. On tbe one hand, tbe Warden appears
to agree tbat habeas corpus review should lie to determine tbe lawfulness of detention,
and agrees tbat procedural fairness and arbitrariness are proper grounds for such review.
By tbe same token, she further appears to agree that ultimately tbere should be otber
grounds for review of such lawfulness, but tbat tbese grounds should be severely
restricted on habeas corpus and instead open for review only on Judicial Review in
Federal Court.
In doing so, the Warden furtber makes the ironic and ultimately
misleading assertion that this will enhance access to justice for prisoners.
As tbe
Respondents herein submit, tbese arguments are made witbout jurisprudential foundation
and in a self-created vacuum towards tbis Honourable Court's pronouncements in a
number of instances, including the most recent watershed habeas corpus decision of May
v. Ferndale [2005] 3 S.C.R. 809, which details the extensive problems associated with
tbe federal court in impeding access to justice for federal prisoners facing unlawful
conditions of confinement.
5. The Respondent submits tbat in Khela the BC Courts have properly affirmed tbe
disclosure obligations incumbent on correctional autborities towards inmates facing a
deprivation of liberty.
Furtbermore, tbe long-standing jurisprudence of this Court
demonstrates that habeas corpus review of federal correctional decisions before
provincial superior courts shall lie to determine tbe validity or lawfulness of detention or
deprivation of liberty witbout restrictions on review of whether there were proper
grounds for such deprivation. In otber words on habeas corpus review Courts are not to
be restricted in cutting through the issues on tbeir merits towards determining whether
detention is simply proper or improper, in assessing whether there is a proper evidentiary
foundation for a decision, and therefore whetber a decision on deprivation of liberty was
reasonable, irrespective of tbe linguistic label tbat may be attached to this process. This
is consistent witb and invokes tbe tenor of May, in which this Honourable Court affirmed
that remedies available to prisoners on habeas corpus should be readily available witbout
concerns over conflicting jurisdiction between federal and provincial superior courts.
4
Indeed, as the Respondents submits, this long-standing and continued state of the law
shall not only enhance true, effective access to justice for prisoners, but shall ensure it. 4
B. FACTS
1.
Legislative Framework ofPrisoner Transfers
6. The Appellants have, in their submissions, cited the applicable statutory authority
governing the transfer of prisoners in the federal correctional system. The Respondent
only wishes to highlight one particular section at the stage, this being sections 27(1) and
27(3) of the Corrections and Conditional Release Act (CCRA), R.S.C. 1992, c.20:
27. (1) Where an offender is entitled by this Part or the regulations to make
representations in relation to a decision to be taken by the Service about the
offender, the person or body that is to take the decision shall, subject to subsection
(3), give the offender, a reasonable period before the decision is to be taken, all
the information to be considered in the taking of the decision or a summary ofthat
information.
(3) Except in relation to decisions on disciplinary offences, where the
Commissioner has reasonable grounds to believe that disclosure of information
under subsection (1) or (2) would jeopardize
(a) the safety of any person,
(b) the security of a penitentiary, or
(c) the conduct of any lawful investigation,
the Commissioner may authorize the withholding from the offender of as much
information as is strictly necessary in order to protect the interest identified in
paragraph (a), (b) or (c).
7. Further within the herein provisions, the Respondent shall have occasion to outline the
legislative framework governing the filing of grievances within the federal correctional
service, as well as the provisions of the Federal Courts Act governing the procedures of
judicial review.
4
See May, supra at para. 32.
5
ii. Events Surrounding the Transfer of Mr. Khela, Through to Proceedings at the BCSC
and BCCA
Ca) The Transfer and Institutional Process
8. The Respondent began serving a life sentence in 2004. He was initially housed at
Kent Institution, a maximum security facility, but in 2007 was transferred to Mission
Institution, a medium security facility. The Respondent remained at Mission Institution
until February 2, 2010, when he was involuntarily transferred back to Kent Institution. s
9.
On or about February 4, 2010, the Respondent was provided with a "Notice of
Emergency Involuntary Transfer Recommendation" document and an "Assessment for
Decision" document, each of which provided some information regarding his alleged
involvement in the stabbing of an inmate on September 23, 2009, and which
recommended his involuntary transfer to Kent Institution. 6
10. On or about February 26, 2010, the Respondent submitted a written rebuttal in
response to his recommended involuntary transfer. In the rebuttal, the Respondent sought
disclosure of several items, including the "scoring matrix" that would have enabled him
to determine how his security score was calculated, the Security Intelligence Report of
February 2, 2010, and the methodology upon which source reliability was determined.
Following this, on or about March 15, 2010, the Respondent received a "Referral
Decision Sheet" which affirmed the Respondent's transfer to Kent.
The document
summarized the information against the Respondent, and noted that in his rebuttal he had
questioned the credibility of much of that information. The document provided a general
description of how internal investigations are done and how conclusions are reached. 7
Affidavit of Gurkipal Singh Khela, paras. 2 and 3
6 Transfer Notice and Assessment, Appellants' Record, Tab 10, pp. 83-94
7 Referral Decision Sheet for Institutional Transfer, Affidavit of Gurkipal Singh Khela,
Exhibit G, Appellants' Record, Tab 10, pp. 100-109
5
6
11. Notably, while the information disclosed to the Respondent prior to the Referral
Decision Sheet contained no information regarding the reliability of the source
information against the Respondent, the final decision stated that the source information
was "believed reliable." The final decision did not provide the Respondent with the
security classification sheet guidelines or Directives that counsel had requested in the
rebuttal. s
(b) The Chambers Hearing
12. On or about April 27, 2010, the Respondent (Applicant in Chambers) filed a habeas
corpus application in the Supreme Court of British Columbia. On May 11, 2010, the
matter came for hearing before Bruce J.
As of the time of hearing, the Appellants
(Respondents in Chambers) had not filed a sealed, confidential affidavit to supplement
the record. At the Chambers hearing, counsel for the Respondents took the position that
the record before the Chambers Judge was "complete" and that "the only information not
provided to [the Respondent] were the names ofthe confidential sources,,9.
13. Counsel for the Appellants went on to state that if the Chambers judge could not
"decide this case without seeing the names of the sources as contained in the security
information report, then [the Appellants would] disclose that on a confidential basis to the
court alone"lO. Bruce J. noted in Chambers that notwithstanding counsel's claim that the
only information not disclosed were the names of the confidential sources, "that's not
before me ... I don't know that ... I don't have that in an affidavit"ll.
14. Counsel for the Appellants offered that "if that's going to be determinative on this
case then I will go back to my client to provide you with that sealed affidavit"12.
Referral Decision Sheet for Institutional Transfer, Affidavit of Gurkipal Singh Khela,
Exhibit G, Appellants' Record, Tab 10, pp. 100-109
9 Transcript, page 53, lines 2-18.
10 Transcript, page 53, lines 35-40.
II Transcript, page 77, lines 31-35.
12 Transcript, page 78, lines 8-10.
S
7
(c) Proceedings before the British Columbia Court of Appeal
15. On appeal, the Court of Appeal noted that at "the chambers hearing, the Warden
sought an adjournment to file affidavit evidence in the event the judge concluded that she
had not met the obligation to prove the detention was lawful. The judge declined to do so
on the grounds that this would have delayed the proceeding unduly,,13.
16. The Court of Appeal further noted that "the Warden [did] not challenge the judge'S
exercise of her discretion not to adjoum, although she [did] seek to tender the information
as fresh evidence,,14.
17. The Court of Appeal,per Chiasson lA., found that "in the circumstances of this case
it would not be appropriate to admit this fresh evidence. To do so would be to overturn
the chambers judge's exercise of discretion not to allow the Warden to adduce the
evidence at the hearing of the application. Although that exercise of discretion is not
challenged in this Court, I observe that the judge gave good reasons for her decision. I see
no error of principle in her exercise of discretion,,15.
111.
18.
The Judgments Below
The Appellants' submissions appear to state as a truism that the Courts below
fundamentally altered the common law with respect to the scope of review that may
occur in a habeas corpus proceeding before a provincial superior court. Respectfully, the
Respondent submits that the lower Courts made no changes to the common law,
incremental or otherwise, and merely applied well-established and long-standing law set
down by this Honourable Court. The bold assertion is also made by the Appellants that
in effecting change to the common law, the Courts below (and in particular the BCCA)
Khela v. Mission Institution (Warden), 2011 BCCA 450, at para. 21.
Khela BCCA, supra at para. 51.
15 Khela BCCA, supra at para. 90.
13
14
8
did so without relying on proper authority, resting their foundation on mere academic
authority which happens to favor an expanded scope of habeas corpus review. The
Respondents submit, with respect, that this is also an assertion made without foundation.
Towards making these submissions, some care is required in setting out the findings and
reasons of the Courts below.
(a) The Chambers Judgment
19. Bruce 1., in chambers, held that Mr. Khela had been deprived of his liberty in being
transferred from a medium- to a maximum-security Institution and that the decision on
such transfer was unlawful in that it had been effected in a procedurally unfair manner.
The learned Chambers Judge declared the transfer null and void for want of jurisdiction
and ordered that Mr. Khela be transferred to the general popUlation of Mission Institution
under the medium-security classification. While Bruce 1. did not consider the substantive
merits or reasonableness of the decision to transfer Mr. Khela, in obiter the Court
positively established that it was open to the Court on a habeas corpus application to
consider on some level the substantive merits of correctional decisions affecting inmates,
and in a manner concurrent with that which may otherwise occur in Federal Court.
20. Turning first to procedural fairness and the applicable duty of disclosure to Mr.
Khela while facing transfer, the learned Chambers Judge indicated that the Applicant's
primary objection to his transfer decision was that he had not been provided sufficient
information to know the case against him and rebut the allegations triggering his transfer.
In this regard he relied on the general duty to act fairly and upon section 27(1) of the
CCRA, which, as indicated earlier and as pointed out by Bruce 1., states that the
Institution must provide to the prisoner "all the information to be considered in the taking
of the decision or a summary of that information." The Court went on to point out that
while the level of disclosure required in such situations was not the equivalent of that
required in a criminal prosecution, it was nevertheless "onerous, substantial and
extensive" and that the statutory obligation required a decision-maker to disclose all the
information relied upon so that an applicant would "know the case to be met and have a
9
real opportunity to rebut prejudicial evidence." The Court went on to note that
Commissioner's Directive (CD) 710-2 on the transfer of offenders also pointed out the
kinds of details that should be provided to prisoners facing transfer. Bruce J. also noted
that section 27(3) of the CCRA further gave insight into the nature of the statutory duties
of disclosure insofar as it allowed infonnation relied upon to only be withheld from the
inmate under largely public safety exceptions and was further restricted to "'as much
infonnation as is strictly necessary in order to protect the interest' involved". In this
light, the Court concluded that the respondents on the application were required to furnish
to the prisoner "to the greatest extent possible" the substance and various details of the
event which triggered the decision on transfer. 16
21. Bruce J. considered the nature of infonnation provided to Mr. Khela with respect to
source infonnation, noting he was not provided infonnation regarding what the sources
said nor why such infonnation could be considered reliable. While more infonnation was
later disclosed in the transfer decision, this was after-the-fact and therefore contrary to the
disclosure obligations enunciated under s. 27(1) of the CCRA. The Court went on to
effectively state that while the decision-maker had come to the conclusion that the source
infonnation could be relied upon, no details -and therefore no rebuttable details- as to
why such infonnation could be relied upon was provided to Mr. Khela. In this respect,
the Court concluded that on what was ultimately disclosed to Mr. Khela, the Respondents
on the application had failed to satisfy both their common law and statutory requirements
in that they had not provided infonnation concerning the reliability of sources nor the
specific statements by the sources. Furthennore, the Institution had put nothing before
the Court to justify withholding such disclosure or infonnation from Mr. Khe1a, and
"having failed to supplement the record with affidavit evidence to support their argument
that Mr. Khela was provided with sufficient infonnation to pennit him a meaningful
opportunity to rebut the allegations, I am unable to conclude that the respondents have
satisfied their onus of proof in this regard.,,17
16
17
Khela BCSC, supra, at paras. 26-31, 44-50
Khela BCSC, supra at paras. 44-53.
10
22.
Further on, the Court also concluded that the Institution had failed to meet its
disclosure obligations in not providing the scoring "matrix" which would have allowed
Mr. Khela to understand, and possibly rebut, the scores he had received on his security
reclassification scale (SRS). While the respondents had attempted to state to the Court
that the SRS was no longer a determinative factor in security classification, and that
another decision of the British Columbia Supreme Court had indicated as much, Bruce J.
found that there was no evidence before her to come to the same conclusion, and that,
indeed, the earlier decision was over three years 01d.
I8
23. The Court noted the attempts by the respondents to adjoum the case so that they
could attempt to meet the onus that they had failed to do and stated the following:
60 During the hearing the respondents asked the court to adjourn its judgment to
permit them to file new affidavit evidence in the event that I concluded they had
failed to satisfy their obligation to prove that the transfer was procedurally fair or
unreasonable on its merits [emphasis of the Respondents] ...
61 In my view, the court should not permit the respondents to essentially re-open
their case without the consent of the applicant. The onus resting with the
respondents and the evidence necessary to satisfy this onus was well known to the
respondents at the outset of the proceedings. In particular, the respondents were
aware of the procedure adopted by this Court in the past cases to facilitate the
filing of confidential affidavit evidence. The respondents were also fully apprised
of the grounds raised by Mr. Khela in his application for habeas corpus and did
not argue that they had insufficient time to prepare a rebuttal to Mr. Khela's
· ... 19
app I·
lcatlOn
24. As stated, the Court found that the remedy of habeas corpus issues "as ofright once
the court is satisfied there is cause to doubt the legality of the applicant's detention: May
at para. 71" and that the respondents had failed to satisfy their procedural fairness and
disclosure requirements, thereby making the transfer decision unlawful. "The writ of
habeas corpus is granted and the transfer decision is declared nun and void for want of
jurisdiction. Mr. Khela must be returned to the general population at Mission Institution
under the medium security classification." 20
Khela BCSC, supra at paras. 53-58
Khela BCSC, supra at paras. 60-61
20 Khela BCSC, supra at paras. 63-64
18
19
11
25. Also as stated earlier, while the Court did not grant Mr. Khela's application on
review of the merits or reasonableness of the transfer decision, it affirmed that such an
inquiry was open to a Court on a habeas corpus application as follows:
37 I am satisfied that the superior courts of each province have jurisdiction that is
concurrent to the jurisdiction exercised by the Federal Court in the case of an
inmate who seeks to challenge a decision made by prison authorities pursuant to
the remedy of habeas corpus. The choice of forum is up to the inmate and does
not depend on the nature of the challenge to the decision or, in particular, whether
the application raises procedural fairness or unreasonableness on the merits as a
ground for review. The judgment of the Supreme Court of Canada in May
clarified the expanded jurisdiction of the provincial superior courts with respect to
habeas corpus applications without any express or implicit limitations concerning
the challenge of an administrative decision on its merits .. .[Emphasis of the
Respondent]
[32] .. .In our view, the trilogy supports two distinct propositions. First and
foremost, provincial superior courts have jurisdiction to issue certiorari in
aid of habeas corpus in respect of detention in federal penitentiaries in
order to protect residual liberty interests. This principle is crucial in these
cases. In the prison context, the applicant is thus entitled to choose the
forum in which to challenge an allegedly unlawful restriction of liberty.
Under Miller, if the applicant chooses habeas corpus, his or her claim
should be dealt with on its merits, without regard to other potential
remedies in the Federal Court. The second proposition, which does not
arise in these cases, is that habeas corpus will lie to determine the validity
of the confinement of an inmate in administrative segregation. 21
26. In this respect, the Court also reviewed other post-May authority indicating it was
open to a Court on a habeas corpus application to review the merits or reasonableness of
decisions made by correctional authorities.z2
(b) The Decision of the British Colnmbia Court of Appeal
27.
On the Appellants' appeal to the BCCA the Court noted that the Warden's
contention, on appeal, was that the disclosure obligation to Mr. Khe1a should be "limited
Khela BCSC, supra at para. 37.
22 Khela BCSC, supra at paras. 38-39.
21
12
to disclosing sufficient information to allow Mr. Khela to know the case he had to meet.
She relies on the following comments in May ... ,,23 Chiasson lA. went on to review the
relevant passages from May in this regard while also re-stating the entirety of section 27
ofthe CCRA and concluded as follows:
42 In my view, the Warden's position gives too narrow a scope to her disclosure
obligation. She also was obliged to provide to Mr. Khela all of the information
which she considered [Emphasis of Respondent] when making her decision or a
summary of that information. 24
28. The Court did note, however, that the learned Chambers Judge's statement that the
Warden was obliged to provide substance and details "to the greatest extent possible"
overstated the Warden's obligation (though the Court did note that the Judge's statement
appeared to flow from a consideration of CD 710-2 which indicates various details that
should be provided to a prisoner subject to transfer). However, the Court did add that:
43 ... The common law requirement was that she provide only sufficient
information to allow Mr. Khela to know the case he had to meet, but I do not
think the judge erred in concluding that the Warden was obliged to provide to the
greatest extent possible the information that she considered in reaching her
decision. 25 [Emphasis of the Respondent]26
29. In these respects, Chiasson J .A. noted, once again, that section 27(3) of the CCRA
required the Warden to establish grounds upon which to withhold information that was
being considered in coming to a decision, and that no evidence had been adduced to
establish such grounds. The Court also noted that on the appeal, the Warden was not
challenging the Judge's exercise of discretion not to adjourn. Nor was the Court of the
view that the judge, in the absence of evidence before her, erred in her findings with
respect to the failure to provide Mr. Khe1a with the SRS scoring matrix, as "In her
decision, the Warden referred to Mr. Khela's score on the SRS, which was overridden.
She clearly considered this information." All in all, in the Court's view the lower Court
Khela BCCA, supra at para. 40.
24 Khela BCCA, supra at para. 42.
25 Khela BCCA, supra at paras. 43-46.
26 Khela BCCA, supra at para. 43.
23
13
finding that Mr. Khela was not provided with disclosure as required "at common law and
by s. 27 of the CCRA" was not in error. 27
30. Chiasson J.A. went on to consider the scope of the Court's review on habeas corpus,
requoting from paragraph 32 of May which was focused upon by the Chambers Judge,
particularly that "Under Miller, if the applicant chooses habeas corpus, his or her claim
should be dealt with on its merits, without regard to other potential remedies in the
Federal Court. ,,28
31. As the Court further noted, the Warden was urging that habeas corpus should not be
treated like judicial review and pointed to a number of cases standing for that proposition.
There were difficulties arising from these cases in that "the analysis in these cases is
grounded on the notion that habeas corpus will issue only ifthere is a loss of jurisdiction,
that is, only if the unlawfulness of the confmement is based on an absence of
jurisdiction."
Chiasson J.A. noted that while historically that may have been the
approach of the courts, as RJ. (now Justice) Sharpe observed in the 1989 edition of The
Law of Habeas Corpus, the Courts have for some time begun their movement away from
"the strict application of jurisdiction as a basis for the issuance of habeas corpus" and
that habeas corpus relief "may issue on the grounds of patent error", stating further from
Sharpe that
It is sometimes supposed that habeas corpus is merely a form of collateral attack,
but equally, it is often recognized that collateral attack does not adequately
describe the powers of review which the court has. While the attack is collateral
in form, there are quite clearly reviewing powers akin to those available on direct
review, and the basis for the exercise of these powers is not excess of jurisdiction
but is closer to 'error on the face of the record' .29
32. Chiasson J.A. went on to consider the Dunsmuir v. New BrunswicR!° comments on
true jurisdiction issues and ultimately concluded that
Khela BCCA, supra at paras. 50-55.
28 Khela BCCA, supra at para. 58.
29 Khela BCCA, supra at paras. 63-64.
30 Dunsmuir v. New Brunswick [2008]1 S.C.R. 190.
27
14
66 In my view, the question of whether a decision to reclassify a prisoner is
reasonable is not jurisdictional (in the Dunsmuir sense) and need not be for
habeas corpus to be ordered (see: Northstar Lumber v. United Steelworkers of
America, Local No. 1-424,2009 BCCA 173 at para. 37). The question is whether
the deprivation of liberty was lawful. I do not think an unreasonable decision
is lawful. [Emphasis of the Respondent]31
33. In the Court's words, "as a matter of policy the approach of the Warden to the scope
of review is not sustainable", in seeking to limit habeas corpus to outside the boundaries
of other forms of judicial review in a manner not in line with the historical application of
the writ. In this respect the BCCA further quoted Sharpe's 1976 edition of The Law of
Habeas Corpus in which it is stated that courts, in determining the scope of habeas
corpus review "have shown themselves ready to mould concepts and definitions so as to
achieve the power to give a remedy where a remedy seems to be needed. The current
trend in administrative law is very much in this same direction, and perhaps in some
respects, was foreshadowed by the law of habeas corpus. ,,32
34. In affirming the common law's recognition of the extensive scope of habeas corpus,
the Court further noted that in Canada the law in relation to judicial review has developed
to expand it beyond the "strict bounds of jurisdiction" to include errors of law or fact on
the record, and these facts were, in turn, replaced by reasonableness consideration. May,
in a habeas corpus context, was in line with this direction, as "the Supreme Court refused
to limit certiorari to the Federal Court and, referring to Miller, made it clear that an
applicant seeking redress from a deprivation of liberty is not constrained by choice of
forum.,,33
35. The Judgment then very carefully refers to 3 secondary sources which review the
development of the law and see habeas corpus review as "coextensive" with that which
exists for judicial review proceedings. In referring the most recent third edition of The
Law of Habeas Corpus, Chiasson J.A. noted that the authors (including now Mr. Justice
Khela BCCA, supra at paras. 65-66.
32 Khela BCCA supra at para. 71.
33 Khela BCCA supra at para. 74.
31
15
Sharpe) were critical of English decisions that had held the scope of habeas corpus lay
"only in relation to 'jurisdictional error', noting that "the scope of review on habeas
corpus ought to be coextensive with the scope of judicial review proceedings". The same
authors, as quoted by the BCCA, express agreement with the view of Professor Wade as
stated in Habeas Corpus and Judicial Review, (1997) L.Q.R. 55 at p. 62 that:
Whether there is an 'underlying administrative decision' is quite irrelevant. The
question is whether the prisoner's detention is lawful or unlawful. The prisoner
ought to be able to rely on any ground, which, if made good, would entitle him to
his release. To this he is entitled as of right, as has been clear law for centuries.
36. Finally Chiasson JA cited the authors of the third edition of The Law of Habeas
Corpus, in language "fully consistent with the words of the Supreme Court of Canada in
May" that
Habeas Corpus nonetheless retains an important constitutional function above and
beyond judicial review. It enables anyone in detention to have a case brought
speedily to court and to seek release as of right whereas the law and procedures of
judicial review are in their very essence discretionary. The liberty of the
individual, and the principle that govermnents must be able to justify each and
every detention of an individual, are core elements of constitutional democracies.
It is to be hoped and expected that judges in democracies will protect liberty
irrespective of the procedural route by which a case comes to court. But habeas
corpus is a bulwark against arbitrary decision-making and, to this extent, it is a
right too precious to remove from the constitutional framework in which it is
embedded.
37. The Court concluded that it agreed "with these observations and see no basis for
excluding a consideration of reasonableness from the scope of review of superior courts
on an application for habeas corpus. In Canada, a person deprived of liberty should not
be limited in the scope of review by his or her choice of forum. ,,34
34
Khela BCCA, supra at paras. 75-80
16
PART II - QUESTIONS IN ISSUE
38. The Respondent shall address the two questions which the Appellants raise on this
appeal in reverse order:
(a) On an application for habeas corpus, what is the scope of review by a
provincial superior court of the sufficiency of CSC disclosure to an inmate,
and does it differ from that of the Federal Court on an application for judicial
review under the Federal Courts Act?
(b) On an application for habeas corpus, what is the scope of review by a
provincial superior court of a CSC decision that adversely affects an inmate's
liberty, and does it differ from that of the Federal Court on an application for
judicial review under the Federal Courts Act?
PART III - ARGUMENT
A.
THE APPLICABLE DUTY OF DISCLOSURE IN FEDERAL
CORRECTIONAL DECISIONS AND REVIEW BY WAY OF HABEAS CORPUS
39.
The Appellants effectively agree that on a habeas corpus application before
Provincial Superior Courts, in consideration of the lawfulness of any decision that
deprives a prisoner of their liberty, a Court may consider whether procedural fairness was
afforded to such individuals throughout the applicable process.
On this question,
however, the Appellants question the lawful extent of disclosure that must be afforded to
prisoners in such situations. The Appellants further question whether or not, in such
circumstances, a reviewing Court in a habeas corpus proceeding can even consider a key
element of disclosure and procedural fairness, this being whether or not information not
disclosed by a decision-maker was indeed properly withheld.
40. The Respondent submits that the BCCA engaged in a properly tight analysis of the
Warden's disclosure obligations in his case. As also engaged in by the Chambers Judge,
the authority for disclosure obligations in this context is borne out by May. May does
17
indeed state that sufficient detail must be provided in order for the prisoner to know the
case that must be met, but goes much further than that:
In order to assure the fairness of decisions concerning prison inmates, s. 27(1)of
the CCRA imposes an onerous disclosure obligation on CSc. It requires that
CSC give the offender, at a reasonable period before the decision is to be taken,
"all of the information to be considered in the taking of the decision or a summary
of that information".
The extensive scope of disclosure which is required under s. 27(1) is confirmed
by the fact that Parliament has specifically identified the circumstances in which
CSC can refuse to disclose information ...
41. May then cites section 27(3) verbatim. 35 In this respect, and as canvassed above, the
BCCA in Khela did nothing more than very tightly apply the statutory provision to the
facts, finding that it was required of the Warden to share all information that was
considered in the taking of the decision and, in such instances where information was
withheld, fulfill the Institutional onus in demonstrating that such information was
properly withheld under section 27(3). The Warden provided no evidentiary basis notwithstanding the knowledge respecting the evidentiary onus and awareness of the
necessity and possibility of providing confidential, sealed affidavits- to indicate she had
shared all the information considered in the making of the decision, and all other
appearances indicated that she had not. The Appellants failed to abide by their common
law and statutory disclosure duties.
42. The Appellants nevertheless take the position that s. 27(3) of the CCRA is distinct
from s. 27(1) in that the sections refer to two different, distinct decisions, and that
compliance with s. 27(3) is unavailable for review under habeas corpus because it is not a
decision that results in a deprivation of liberty. This is incorrect. Firstly, it is contrary to
May's explicit elucidation of disclosure obligations under habeas corpus. On that level,
it is aIso certain that decisions on disclosure under s. 27(1) automatically invoke
obligations under 27(3); the latter is not a separate obligation or decision to be made but
is an invocation of the statutory disclosure obligation. Indeed, the Appellant's contention
35
May, supra at paras. 92-96
18
would provide results, respectfully, of absurdly bizarre proportions. It would result in
habeas corpus proceedings limited to the Appellant simply stating that they are in
compliance with s. 27(1) when in fact they may not be in compliance with s. 27(3) and
would be not then be required to fulfill their onus in that regard. To take the pageant of
the bizarre further, if s. 27(3) were not to be for consideration under habeas corpus, but
for consideration under judicial review, it would potentially result in a situation where a
prisoner's habeas corpus petition would be dismissed on the ground that s. 27(1)
disclosure obligations were complied with, while refusing to consider s. 27(3); the
prisoner could then pursue the 27(3) issue through a grievance process and ultimately,
perhaps after a year of unlawful detention or confinement, receive a decision from the
federal court indicating 27(3) had not been complied with which, by inference, indicates
27(1) had not been complied with in the first place.
43. The Appellant's contention that "there is therefore no legal basis for a provincial
superior court to review a s. 27(3) decision on a habeas corpus application, or to require
the CSC to demonstrate, through confidential affidavits or otherwise, that it had
reasonable grounds to withhold information" is, with respect, a plainly false premise. In
actuality there is no legal or practical basis to do otherwise. This is undergirded by the
practical reality, frequently engaged in without any objection by the Appellants
(including in the initial related cases to the herein case of Foster v. Mission Institution
and Zuria v. Mission Institutioni 6 of fulfilling their disclosure obligation onus through
the filing of a sealed affidavit before the Court that can demonstrate compliance with
disclosure obligations. 37 While aware of their obligations, the Appellants simply chose
not to comply with their onus in Mr. Khela's case.
44. In sum, the disclosure obligation incumbent upon CSC in effecting a prisoner's
deprivation of liberty is to provide enough detail for the prisoner to "know the case they
Foster v. Mission Institution 2010 BCSC 781 at para. 38; Zuria v. Mission Institution
2010 BCSC 970 at para. 38.
37 See, for example, the cases of Fitzgerald v. Trona [1994] B.C.J. 1534, Athwal and
Zakis v. Warden of Ferndale Institution et aI, 2006 BCSC 1386, and Lising v. Warden of
Kent Institution, 2007 BCSC 248
36
19
have to meet" while also complying with the statutory disclosure requirements under s.
27 of the CCRA as a whole. This takes on added salience given that a failure to abide by
these obligations, and not the merits of the decision to transfer, was the basis upon which
Mr. Khela's habeas corpus application was decided.
B. THE AMBIT AND SCOPE OF HABEAS CORPUS REVIEW BEFORE
PROVINCIAL SUPERIOR COURTS
45. The Courts below decided Khela on procedural fairness grounds, which are not being
contested by the Appellants as proper grounds for habeas corpus review. The Appellants
nevertheless wish to challenge the lower court pronouncements which affirm the open
and extensive scope of review that provincial superior courts may engage in in habeas
corpus proceedings, including with respect to the reasonableness of decisions made by
correctional officials. In the Respondents' submission, the state of law and policy in
Canada supports the view that on habeas corpus proceedings, a provincial superior court
may examine the substantive merits or reasonableness -indeed, as with anything else on
habeas corpus, the lawfolness- of a correctional decision which results in a deprivation of
liberty for a federal prisoner.
i. Canadian Jurisprudential Foundations for Access to Justice Against Unlawful
Deprivations of Liberty by way of Habeas Corpus
Ca) The 1985 trilogy and Subsequent Decisions Prior to May
46. 1985 saw this Court produce a watershed trilogy of habeas cases, these being R. v.
Miller [1985] 2 S.C.R. 613, Cardinal v. Kent [1985] 2 S.C.R. 643 and Morin v. Canada
(SHU) [1985]2 S.C.R. 662 which, it is submitted, ultimately paved the way for effective
access to justice for prisoners by way of habeas corpus. The trilogy both affirmed and
pointed the way towards the concept of a broad scope of review within habeas as against
the decisions of correctional authorities, and without a concern for the presence of
overlapping or alternative remedies in federal court. On another point, and procedurally,
20
the trilogy also indicated that while there should be quick and timely resort to habeas
corpus, it was not a "limited" or necessarily "simple" proceeding, indeed, it would be
used to fit the circumstances as would be required.
47. Miller put the question before the Court as follows:
2 The appeal is by leave of this Court from the judgment of the Ontario Court of
Appeal on August 25, 1982 allowing the appeal from the judgment of Steele J.,
which dismissed the respondent's application for habeas corpus with certiorari in
aid to determine the validity of his confinement in the Special Handling Unit of
Millhaven Institution, a federal penitentiary, on the ground the Court lacked
jurisdiction to issue certiorari in aid of habeas corpus because of the exclusive
jurisdiction of the Federal Court in respect of certiorari against a federal board,
commission or other tribunal and on the further ground that on habeas corpus
alone the Court was precluded by the jurisdiction of the Federal Court from
considering anything but the warrants of committal, which were regular on their
face and had not been challenged. 38
48. The applicant in the case had been moved to the Special Handling Unit (the "SHU")
in Ontario as a result of a "disturbance" that occurred at Matsqui Institution in 1982, in
which he was vaguely suspected as having played a role in. As the Applicant put it, he
was never informed of nor given an opportunity to meet or rebut the evidence against him
in this respect, and stated there was no basis for his being placed in the SHU. He
contended that his confinement was not authorized by statute or regulation and was
unlawful, and that his confinement was effected in a procedurally unfair manner.39
49. Le Dain J. reached the conclusion that on a habeas corpus application, a provincial
superior court did have jurisdiction to issue certiorari in aid of habeas corpus -which
would allow them to bring forth the record and examine it for jurisdictional errornotwithstanding that s. 18 of the Federal Court Act bestowed exclusive powers of
certiorari upon the federal court. As the Court put it:
13 On the question of jurisdiction to issue certiorari in aid of habeas corpus I am
in respectful agreement with the conclusion of Laskin C.J. in Mitchell, essentially
for the reasons given by him, which I understand to be the importance of making
the habeas corpus jurisdiction of the provincial superior courts an effective one
Miller, supra at para. 2.
39 Miller, supra at paras. 3-5
38
21
and the distinction between certiorari to quash and certiorari in aid, regarded as a
procedural or evidentiary device to make habeas corpus more effective.4o
50. Le Dain J. went on to note that
14 ... While s. 18 of the Federal Court Act confers an exclusive and very general
review jurisdiction over federal authorities by the prerogative and extraordinary
remedies, to which specific reference is made, it deliberately omits reference to
habeas corpus. That this was not an oversight but a well considered decision is
indicated by s. 17(5) of the Act, which expressly confers exclusive jurisdiction on
the Federal Court with respect to an application for habeas corpus by a member of
the Canadian Forces serving outside Canada. I agree with Laskin C.J. that
because of its importance as a safeguard of the liberty of the subject habeas
corpus jurisdiction can only be affected by express words.41
51. Respectfully, and to be fair, in the Respondent's reading of Miller the Court was not
completely clear on whether a Court, on habeas corpus, could touch on the merits of a
substantive correctional decision, as on the one hand Le Dain J. appears to state that
certiorari in aid cannot transform the proceeding into an appeal on its merits, but at the
same time, while certiorari in aid does allow the Court to have the record examined
towards establishing jurisdictional error, other extrinsic and affidavit evidence could be
considered. In its conclusion
36 After giving consideration to the two approaches to this issue, I am of the
.opinion that the better view is that habeas corpus should lie to determine the
validity of a particular form of confinement in [page641] a penitentiary
notwithstanding that the same issue may be determined upon certiorari in the
Federal Court. The proper scope of the availability of habeas corpus must be
considered first on its own merits, apart from possible problems arising from
concurrent or overlapping jurisdiction. The general importance of this remedy as
the traditional means of challenging deprivations of liberty is such that its proper
development and adaptation to the modem realities of confinement in a prison
setting should not be compromised by concerns about conflicting jurisdiction.42
52. Following the trilogy, this Court thereafter further developed the scope of review of
the Courts on habeas corpus jurisdiction while also giving teeth to habeas as a Charter
right, complete with Charter remedies that lay outside of any trJrncations emanating from
Miller, supra at para. 13
41 Miller, supra at para. 14
42 Miller, supra at para. 36
40
22
Federal Court jurisdiction. In R. v Gamble [1988]2 S.C.R. 595, the applicant had sought
habeas as a Charter right and in conjunction with existing Charter rights and remedies
towards being permitted to appear before the Parole Board prior to what the Court
ultimately determined was an improper period of parole ineligibility. Speaking of the
scope of review on habeas corpus, particularly in the context of it as a Charter claim,
Wilson J. noted that the Respondents once again were stating that the appropriate forum
for the Appellant was federal court:
53 Although the respondent is quite right in pointing out that the Charter does not
create a "parallel system for the administration of Charter rights over and above
the machinery already available for the administration of justice" and that the
court's new responsibilities under s. 24(1) can "be fitted into the existing scheme
of Canadian legal procedure" (Mills, at pp. 971 and 953), he does no credit to that
existing system by attempting to place procedural roadblocks in the way of
someone like the appellant who is seeking to vindicate one of the citizens' most
fundamental rights in the traditional and appropriate forum. 43
53. Gamble saw much discussion about the 'Jurisdictional" bases of review in habeas
corpus proceedings. Perhaps presaging this Court's more recent jurisprudence reflecting
the difficulties inherent in a jurisdictional approach to the review of administrative action,
including in Dunsmuir and in the leamed Court of Appeal's analysis of a slow death of
the jurisdictional approach within habeas corpus cases, the Court noted as follows:
64 There is no doubt that considerable uncertainty has clouded the scope of
review open to a court on an application for habeas corpus (see Sharpe, op.
[page640] cit., c. 3; Letourneau, op. cit., cc. 2 and 6) and it is understandable that
courts have, in general, not bound themselves to limited categories or definitions
of jurisdictional review when the liberty of the subject was at stake. I think that
this trend should be affirmed where habeas corpus is sought as a Charter remedy
and that distinctions which have become uncertain, technical, artificial and, most
importantly, non-purposive should be rejected.44
54. In the result, Gamble saw the Court grant habeas corpus relief in conjunction with or
under section 24(1) of the Charter. Having assumed jurisdiction over the subject matter
of the application and the person on the previous "denial of habeas corpus", and
recognizing its broad ability to fashion remedies under section 24(1) of the Charter, the
43
44
Gamble, supra at para. 53
Gamble, supra at para. 64
23
Court declared that Ms Gamble be considered for parole forthwith by the (then) National
Parole Board. 45
55. The jurisprudence ofthe Courts on habeas corpus review appeared to have continued
apace in subsequent years. As an example, in the 1994 case of Fitzgerald v. Trona,
referred to by the Chambers Judge in the herein case, Thackray J. (as he then was) had
the following to state about the standard of review:
16 The petitioner submits as follows:
The petitioner says that his incarceration at Kent Institution is unlawful
and that the decision to transfer him from William Head Institution was
made in violation of the common law duty to act fairly and the principles
of fundamental justice and was in violation of his constitutional rights
pursuant to section 7 of the Canadian Charter of Rights and Freedoms and
in violation of the respondents' own rules of procedure and further, that in
all of the circumstances, the decision was patently unreasonable.
17 The "patently unreasonable test" is commonly applied in applications asking
for judicial review .... both counsel treated the matter as such a review.
18 The petitioner submitted that in judicial reviews "an unreasonable error of fact
is an error of law." He cited Blanchard v. Control Data Canada Ltd. [1984] 2
S.c.R. 476 (S.C.C.) which establishes the proposition that an unreasonable
46
finding, whatever its origin, affects the jurisdiction of the tribunal.
56. The Court went on to note that
20 Counsel for the respondents paraphrased the words of Mr. Justice Seaton who,
in a paper suggesting a definition for "patently unreasonable", said:
I do not think it can now be said that patently unreasonable errors are
errors of a particular type as opposed to errors of a particular magnitude. I
think the test is rather, is this a decision that we can let stand?
21 Counsel for the respondents worded it this way: "Can the Court live with this
decision, i.e. is it patently unreasonable?,,47
Gamble, supra at para. 81
46 Fitzgerald 1994, supra at paras. 16-18
47 Fitzgerald 1994, supra at paras. 20-21
45
24
57. In the result, the Court examined the evidence justifying the transfer of the applicant,
which included an examination of the reliability of the informant by way of a sealed
affidavit. The Court concluded there was nothing about the informant that would indicate
reliability and the decision was one that could not stand, unfair and "patently
unreasonable. ,,48
58. Bearing in mind that prior to Dunsmuir the "patent unreasonableness" standard
remained very much in use, Fitzgerald 1994 is yet another indication that Courts, on
some level, continued to undertake some substantive review of the merits of correctional
decisions within habeas corpus applications.
(b) May v. Ferndale
59.
The May decision resulted from the emergence of what the Court termed as a
movement by provincial superior courts to decline their habeas corpus jurisdiction in
deference to judicial review in federal Court. May sought to right that improper
movement.
60. The case began by affirming habeas corpus as the "Great Writ of Liberty" and went
on to note the present and historical need for the affirmation of habeas corpus:
22 Habeas corpus is a crucial remedy in the pursuit of two fundamental rights
protected by the Canadian Charter ofRights and Freedoms ..
23 ... However, the right to seek relief in the nature of habeas corpus has not
always been given to prisoners challenging internal disciplinary decisions ... At
common law, for a long time, a person convicted of [page825] a felony and
sentenced to prison was regarded as being devoid of rights. Convicts lost all civil
and proprietary rights. The law regarded them as dead. On that basis, courts had
traditionally refused to review the internal decision-making process of prison
officials: M. Jackson, Justice Behind the Walls: Human Rights in Canadian
Prisons (2002), at pp. 47-50 ...
48
Fitzgerald 1994, supra at paras. 66-68
25
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 prison officials in a position of virtual invulnerability
and absolute power over the persons committed to their institutions": Jackson,
Prisoners ofIsolation, at p. 82. 49
61. The 1985 trilogy loomed large in May, with the Court concluding (at para. 32) that
prisoners had a broad right to choose the appropriate forum for redress, as summarized
earlier and cited by the BCSC and BCCA in the herein case. Upon such review and a
further review of Sharpe, the Court stated that "as a matter of general principle, habeas
corpus jurisdiction should not be declined merely because of the existence of an
alternative remedy." 50
62. In the Respondent's submission, the important conclusion to draw from the Court's
jurisprudence in this regard is that on habeas corpus in provincial superior courts, the
aggrieved should have as many tools available to them to address the lawfulness of their
detention, irrespective of what tools or remedies are available in an alternate forum. Thus
while the Court does not specifically state that this includes scope of review of the
lawfulness of decisions regarding detention, this reflects the statement that there is
nothing express or implied in May that limits such scope, and this is further reflected in
the Court's ongoing analysis of the problems with alternative remedies that would
otherwise be available.
63. May further reviewed legal developments which called on Courts to decline their
habeas corpus jurisdiction where the law has developed appropriate alternative forums
for redress to review the lawfulness of detention. May did not see this premise as being
applicable -either on the Court's jurisdiction to hear an application or on scope of
review- to a serving prisoner being able to seek redress against unlawful detention by
way of habeas corpus proceedings vis-a-vis an alternatively available proceeding in
federal court. In the Court's view, as a general premise, provincial superior courts should
49
50
May, supra at paras. 19-24
May, supra at paras. 32-34
26
not decline their habeas corpus jurisdiction merely because of the existence of an
alternative remedy. "The option belongs to the applicant" and
50 .. .in accordance with this Court's decisions, provincial superior courts should
decline habeas corpus jurisdiction only where 1) a statute such as the Criminal
Code, R.S.C. 1985, c. C-46, confers jurisdiction on a court of appeal to correct the
errors of a lower court and release the applicant if need be or 2) the legislator has
put in place complete, comprehensive and expert procedure for review of an
administrative decision. [Emphasis of the Respondent]']
64. This takes on added salience in tenus of reviewing the lawfulness of decisions made
by prison administrators, as the process that would then be employed to arrive at Federal
Court would fly in the face of the timely and efficient prerogatives at the heart of habeas
corpus. The Court noted that outside of habeas corpus, and prior to seeking redress
before the federal court, an inmate subject to transfer would be able to avail themselves
of a grievance procedure. The question for the Court was whether such a procedure was
a complete, comprehensive and expert procedure for review of an inmate's security
classification.
The Court found that "in view of the structural weaknesses of the
grievance procedure", in the prison context "Parliament has not yet enacted a
comprehensive scheme of review and appeal". The Court then considered the expertise
of the federal court within the following rubric:
65 .. .The respondents submit that this Court should assess the habeas corpus
jurisdiction of the superior courts purposively by acknowledging that the statutory
scheme provides for effective and comparable remedies. A purposive approach,
however, also requires that we look at the entire context. In our view, the
following five factors militate in favour of concurrent jurisdiction and provide for
additional support for the position that a provincial superior court should hear
habeas corpus applications from federal prisoners: 1) the choice of remedies and
forum; 2) the expertise of provincial superior courts; 3) the timeliness of the
remedy; 4) local access to the remedy; and 5) the nature of the remedy and the
burden of proof. 52
65. The Court held that in the prison context the applicant could choose relief in either
the provincial superior courts or in the federal court but noted that the "greater expertise"
of the federal court in correctional matters had not been conclusively established on a
51
52
May, supra at paras. 44 and 50
May, supra at paras. 54-65
27
number of grounds. At the same time, a habeas corpus hearing could be obtained much
more rapidly than a hearing for judicial review in federal Court, as a federal court judicial
review hearing involves filing a request for a hearing at day 160 following an impugned
decision, if all time limits have run; this is all the more salient in light of the knowledge
(as detailed below) that one may not even begin to commence the judicial review process
until existing remedies -in this case, the grievance procedure- have been exhausted.
May also found that habeas corpus relief is "locally accessible" to prisoners in provincial
superior courts and that access to justice is indeed "closely linked" to timeliness of relief,
while it would be unfair if federal prisoners did not have the same access to habeas
corpus that provincial prisoners do. Finally, as the Court points out, a writ of habeas
corpus is issued as of right where the prisoner shows cause to doubt the legality of
detention, in contrast to the federal court where the onus would be on an applicant to
demonstrate an error on the part of the federal decision-maker. All of which led the
Court to conclude:
72 Our review of the relevant factors favours the concurrent jurisdiction approach.
This approach properly recognizes the importance of affording prisoners a
meaningful and significant access to justice in order to protect their liberty rights,
a Charter value. Timely judicial oversight, in which provincial superior courts
must playa concurrent if not predominant role, is still necessary to safeguard the
human rights and civil liberties of prisoners, and to ensure that the rule of law
applies within penitentiary walls. 53
66. The Court then made the following statement relevant to the matters at hand:
77 A deprivation of liberty will only be lawful where it is within the jurisdiction
of the decision-maker. Absent express provision to the contrary, administrative
decisions must be made in accordance with the Charter. Administrative decisions
that violate the Charter are null and void for lack of jurisdiction: Slaight
Communications Inc. v. Davidson, [1989]1 S.C.R. 1038, at p. 1078. Section 7 of
the Charter provides that an individual's liberty cannot be impinged upon except
in accordance with the principles of fundamental justice. Administrative
decisions must also be made in accordance with the common law duty of
procedural fairness and requisite statutory duties. Transfer decisions engaging
inmates' liberty interest must therefore respect those requirements. 54
53
54
May, supra at paras. 65-72
May, supra at para. 77
28
67. In the result, the Court reviewed the two grounds of unlawfulness raised by the
applicants, these being that the transfer decisions at issue were both arbitrary and
procedurally unfair. While the Court held that the decisions were not in fact arbitrary,
they were procedurally unfair and the appeal was therefore allowed. The writ of habeas
corpus issued and the Applicants' retum to minimum-security Institutions was ordered.
68. To sununarize the importance of the above with respect to the herein case: the
Appellants state that the scope of habeas corpus review in provincial superior courts
should be limited so as to not even touch on the merits, or reasonableness, of an
impugned decision in favour of a more complete review of the lawfulness detention
decisions in federal court. While May does not explicitly state that there shall be no
limitations on the scope of habeas corpus review, or explicitly state that the merits or
reasonableness of an impugned decision may be at issue, it impliedly states as much and
does not explicitly state otherwise. In the Respondents' respectful submission, May
constitutes as close to a complete answer as may be possible to the Appellants'
contention on the limits of the scope of habeas review.
Habeas corpus powers of
provincial superior courts should be concurrent with that of judicial review powers in
federal court.
In matters respecting review of the lawfulness of federal prisoners'
deprivation of liberty, the same tools -which is equally applicable to the scope of reviewshall be on hand as that available in federal court. Effective review of the lawfulness of
imprisomnent within a prison, and access to justice, can only be achieved in this marmer.
ii. The Ongoing Problems Associated With Internal Redress Procedures, Including
Federal Court
69. The Appellants attempt to argue that access to justice for imnates will be enhanced
by forcing them into federal court while otherwise introducing no evidence or authority
to suggest that there have been any changes since May towards effectively seeking
redress in federal court against unlawful deprivations of liberty. The reality is that
prisoners who seek to challenge involuntary transfers through the judicial review process
in Federal Court will face significant delay in receiving access to the Court.
29
70. First, prior to even commencing a judicial review action in Federal Court, an inmate
facing involuntary transfer or segregation must first exhaust the internal administrative
grievance process, "notwithstanding that the impugned decision [affects1 the [inmate's1
residual liberty" 55 •
And while this court found in May found that the "structural
weaknesses" of the internal grievance process meant that it could not be considered to be
a "comprehensive scheme of review", the internal grievance process is also problematic
due to the significant time required to go through the process.
71. Once an offender files a grievance, decision-makers are required to render a response
within 15 days for high priority grievances at the first and second level, or 25 days for
routine priority grievances at the first and second level. At the third level, decisionmakers will respond to high-priority grievances within 60 days and to routine-priority
grievances within 80 days 56 •
Assuming that a grievance regarding an institutional
transfer is considered "high-priority", then it will take 15 days to pass through the first
level, 15 days for the second, and 60 days to go through the third level, this totaling 90
days. The 90-day timeframe assumes that the inmate submits grievances without delay at
the earliest possible opportunity (i.e. that he submits a first-level grievance on the date of
his transfer, that he submits a second-level grievance on the day of receiving a response
to his first-level grievance, etc.). It is only after receiving a response to a third-level
grievance that the inmate may then commence an application for judicial review in
Federal Court.
72. It should be noted that, moreover, the 90-day timeframe for resolving grievances
suffers from compliance problems:
... grievance policy is overly bureaucratic resulting in continuing unacceptable
delays in response to offender grievances. The system has been ineffective in
dealing with the chronic backlog of cases. There is a lack of commitment by
senior management to the grievance process and as a result, the process is
Reda v. Canada (Attorney General), 2012 FC 79, at paras 29 and 32.
56 Canada, Correctional Service, Commissioners Directive 081, "Offender Complaints
and Grievances", November 29, 2011, section 17.
55
30
dysfunctional in tenns of "expeditiously resolving offender grievances," most
notably at the national level. 57
73. In a 2008 report on the death of Ashley Smith, the Correctional Investigator of
Canada further noted that despite CSC's problems of responding to grievances in a timely
fashion:
... little has changed regarding the CSC's Offender Complaints and Grievance
System. On the contrary, the Correctional Service of Canada has recently
amended its Commissioner's Directive 081 - Offender Complaints and
Grievances to extend timeframes for response at the Commissioner's level from
25 days to 80 days for routine grievances, and from 15 days to 60 days for high
priority grievances. This amendment raises serious concerns in tenns of the
Correctional Service's commitment to meet its legislative responsibility to
provide "a procedure for fairly and expeditiously resolving offenders'
grievances".58
74. In any event, it is generally only once an inmate has exhausted the internal grievance
process that he or she may then commence a judicial review application in Federal Court.
As described above, in May this court reviewed the process that inmates are required to
go through when seeking to have institutional transfers reviewed by the federal court, the
mere request for a hearing possibly occurring only at day 160 following an impugned
decision.
The time1ines do not appear to have changed since May.
Pursuant to the
Federal Courts Act, an application for judicial review must be made within 30 days of the
impugned decision. 59 Within 30 days of the issuance of a notice of application, the
applicant must serve all supporting affidavits and documentary exhibits.
60
The
respondents have 30 days to file their own supporting affidavits and documentary
57 See both the 2004-2005 and 2005-2006 Annual Reports of the Correctional
Investigator of Canada, pps 19 and 5, respectively.
58 Office of the Correctional Investigator of Canada, A Preventable Death, June 20, 2008
~aragraph 99, page 22.
9 Federal Courts Act, section 18.1 (2).
60 Federal Court Rules, Rule 306.
31
exhibits 61 and 20 days are then allowed for cross-examination of affiants after the filing
62
of the respondents' affidavits.
Within 20 days of the completion of cross-examination (or the expiration of time for
63
cross-examination), the applicant must serve and file the applicant's record and then
within 20 days of the serving and filing of the applicant's record, the respondents must
serve and file their own record. 64 The applicant must then file a requisition requesting a
65
date within 10 days of the respondents serving and filing their record .
75. While the federal court may extend or abridge a time period provided for by the
Rules on a motion to do SO,66 it is not clear when a date for the hearing of the motion will
be set once the motion has been filed. 67 However, even on the hearing of the motion the
test for allowing an abridgment of the timelines provided for in the rules is that the
applicant seeking to abridge the timelines must show "a great urgency" justifying the
abridgment68 . Further, any departure from the timelines "especially an abridgement" has
been held to be "exceptional".69 Indeed, on review there do not appear to be any reported
decisions in which inmates seeking judicial relief have sought an abridgment oftimelines
on the basis of a continuing deprivation of liberty. Whether, and to what extent, an
inmate seeking redress for a transfer decision might successfully seek an abridgment of
the timelines is unclear. The only real conclusion that can be reached on this is that once
a requisition has been filed seeking a date, it is unclear how long it will take before a date
is set. In 2002-2003, the average time required to resolve judicial review cases, from
commencement to judgment, was 14.8 months. 7o
Federal Court Rules, Rule 307.
62 Federal Court Rules, Rule 308.
63 Federal Court Rules, Rule 309.
64 Federal Court Rules, Rule 310.
65 Federal Court Rules, Rule 314.
66 Federal Court Rules, Rule 8.
67 Federal Court Rules, Rule 362.
68 Potato Board (P.E.!) v. Canada (Minister 0/Agriculture), 56 FTR 150.
69 Gordon v. Canada (Minister of National Defence), 2004 Fe 1642, at paragraph 17.
702002-2003 Annual Report o/the Federal Court o/Canada (the most recent report for
which statistics are available).
61
32
76. A brief examination of several judicial review applications challenging involuntary
transfers of inmates reveals that the timeframes involved tend to be lengthy.
For
example, an inmate who was involuntarily transferred on February 27, 2001 did not
receive a decision until November 19,2002, nearly 21 months later. 71 In another case, the
involuntary transfer was effected on May 22, 2003, his third-level grievance was denied
five months later on October 23, 2003, and the inmate received a decision on his judicial
review application on October IS, 2004, some 17 months after the transfer. 72 In another
case, the inmate was placed in segregation on August 5, 2004, and involuntarily
transferred six weeks later, on September 22, 2004. His third-level grievance was denied
on January 26, 2005 (nearly six months after his initial segregation) and a decision on his
judicial review application was given on September 29, 2005, nearly 14 months after the
initial segregation. 73
77. It should also be noted that in many judicial review applications in Federal Court, the
case is moot by the time it reaches the court. In one case, an inmate was involuntarily
transferred on February 5, 2010. A decision denying his third-level grievance was given
on July 14, 2010 (over five months later). Subsequent to the filing of a judicial review
application, the inmate was transferred back down to a medium security level institution.
By the time the matter came before the court, on June 13,2011 (some 17 months after the
initial transfer) it was found to be moot. 74 A similar outcome occurred in another case, in
which the inmate's third-level grievance was denied on July 10,2002. On June 27, 2003,
nearly a year later, the inmate was transferred back down to a medium security facility.
When the matter came before the Federal Court on July 2, 2003, it was found to be
moot. 75
78. In sum, in order to access the Federal Court, an inmate challenging an involuntary
transfer must spend 90 days (or more) going through the internal grievance process, and
Hutton v. Fenbrook Institution, 2002 FCT 1198.
Doherty v. Canada (Attorney General), 2004 FC 1425.
73 Macdonald v. Canada (Attorney General), 2005 FC 1326.
74 Bowden v. Canada (Attorney General), 2011 FC 688.
75 Tremblay v. Canada (Attorney General), 2003 FC 1251.
71
72
33
then a possible 160 days prior to filing a requisition for a hearing date in Federal Court.
That is a total of 250 days before even filing a requisition for a hearing date. Further time
will pass after 250 days while the inmate waits for a hearing date.
79. Moreover, despite the lengthy timeframes involved in getting before the court, once
an judicial review finally does come on for a hearing, the hearing itself is not "thorough
and probing", as the process characterized by the Appellants at paragraph 92 of their
factum.
Judicial Review applications in Federal Court, like Habeas Corpus cases in
provincial superior courts, are decided mostly on the basis of affidavit evidence which is
filed in advance. Most such hearings take a day or less of court time, and most of the
time is dealt with questions of procedural fairness. For example, one recent case was
heard on a single court date (December I, 20 II) and was decided on the basis of
procedural faimess. 76 Similarly, another recent case was heard on a single day (July 7,
20 II) and was decided primarily on the basis of procedural fairness (eight paragraphs of
44 paragraphs were devoted to considerations involving reasonableness). 77 Another
recent case was heard on a single day (January 19, 2010) and the bulk of the decision
dealt with considerations of procedural fairness (five out of 43 paragraphs involved
reasonableness issues).78 A 2010 case was heard on a single day (January 20,2010) and
was decided solely on the basis of procedural fairness. 79
80. Although the Appellants suggest in their factum that the judicial review process in
Federal Court is "thorough and probing", this does not appear to be borne out on a review
of the cases. Indeed, the Appellants do not cite any cases in support of their proposition
in this regard.
81. In consideration of what is available in the federal court to federal prisoners seeking
timely redress as against unlawful deprivations of liberty, the authorities do not suggest,
respectfully, that there will be any meaningful access to justice in the federal courts.
Paul v. Canada (Attorney General), 2012 FC 64.
Chow v. Canada (Attorney General), 2011 FC 914.
78 Williams v. Canada (Attorney General), 2010 FC 704.
79 McCauley v. Canada (Attorney General), 2010 FC 294.
76
77
34
Ill. No Legal or Practical Authority for Restrictions on the Scope of Habeas Corpus
Review in Deference to Judicial Review in Federal Court
82. The Appellants agree, and this is based on long-standing jurisprudence of the Courts,
that habeas corpus lies to review the lawfulness of the detention of a prisoner. As stated
at the outset, the Appellants also appear to submit that while prisoners subject to unlawful
conditions of confinement may ultimately comprehensively and without limitation review
the lawfulness of such situation, this cannot and should not occur by way of habeas
corpus review but instead should take place by way of probing review in federal court.
In short, it is being submitted by the appellants that habeas corpus cannot even touch the
evidentiary basis or other merits of a decision to deprive a prisoner of their liberty.
83. Respectfully, the Appellants make these submission on the basis of virtually no
practical or legal authority, relying primarily on artificially-constructed linguistic edifices
that themselves rest on false foundations.
existing jurisprudence, particularly May.
Further, the argument flies in the face of
In considering this, it is submitted that the
Court should also pay heed to the statement of Chiasson lA. in the herein case that "I do
not think an unreasonable decision is a lawful one." If the Appellants argument on scope
of review in habeas corpus matters were to be accepted, the result would be that a
prisoner could be subject to an unlawful deprivation of liberty in that the deprivation
would be without an evidentiary basis, improper, and generally unreasonable, but have no
timely recourse against this unlawfulness by way of habeas corpus review.
84. May and the available authorities are conclusive that habeas corpus, indeed, the
determination of the lawfulness of a deprivation of liberty, must be timely to be effective.
The review by the May court, coupled with a review of the grievance and federal court
procedures reviewed above, indicate that there is simply no comparison between the
timeliness of relief that may be achieved by habeas corpus proceedings or remedies coupled with Charter remedies- available in provincial superior court.
By forcing
prisoners to review unlawful grounds for detention only in federal court, truly, "justice
delayed will be justice denied." Those unlawfully deprived of their liberty could be
forced to wait for several months before being put back to the proper place. This would
35
be particularly egregious in the case of those who have been unlawfully placed in
segregation or isolation.
85. Furthermore, the limitations suggested by the Appellants, if accepted, would result in
veritably and bizarrely unjust results if coupled with the existing legal framework. There
are two such scenarios in which this could occur. Let us consider a situation in which an
applicant subject to deprivation of liberty, either by way of segregation or transfer, pleads
that they have both been denied procedural fairness and that the decision to deprive the
prisoner of liberty was also without merit, evidentiary foundation, or otherwise
unreasonable. That individual could begin a grievance process against the transfer or
segregation.
At the same time, if they commence habeas corpus proceedings, the
grievance process would be deferred for the period of adjudication of the habeas
proceedings. 8o It may then be possible for a Court to dismiss the application on the
grounds that there has been no breach of procedural fairness, and also refuse to review a
decision to segregate or transfer whatsoever on its merits. The prisoner could then
proceed through the grievance process by challenging the merits of the decision, only to
have that Court -likely more than a year after unlawful detention began- declare that
indeed there was an error in the decision made and it was unlawful. In the meantime, the
prisoner will have been subject to a prolonged period of unlawful detention, with a
federal court result which is possibly at odds with an earlier decision of a provincial
superior court. This process would also involve the use of two separate Courts for
adjudication of essentially the same issue. This would not, by any means, result in a
saving of scarce judicial resources and in fact would create a greater burden on the Courts
and the justice system as a whole.
86. Cases from provincial superior courts have borne out the importance of being able to
review the evidentiary merits or ultimate reasonableness of prison transfers. In the case of
Nguyen v. Mission Institution (2012), for example, an Applicant had been also been
moved from Mission to Kent. The Chambers Judge reviewing the matter found that
"stripped of the avalanche of verbiage" with which the Institution sought to justifY its
80
See Corrections and Conditional Release Regulations, s. 81
36
transfer, there was essentially one single piece of evidence which raised questions about
Mr. Nguyen's alleged involvement in the Institutional drug subculture, for which the
applicant had a valid exculpatory explanation. McEwan J. found that there simply was
not a valid evidentiary basis to support Mr. Nguyen's transfer, the Institution having
sought to simply shroud the situation in large swathes of justification. Mr. Nguyen was
moved back to Mission Institution, where he has remained. His transfer was effected in
August of 2011 with his matter coming up for hearing on October 25, 2011. The Court
used approximately 2 months to issue Judgment, with the writ being granted on January
24,2012. One wonders what the situation would have been for Mr. Nguyen had he been
forced to make his way through the grievance procedure on to federal court. 81
87. In this light, access to justice by way of federal court judicial review, as suggested by
the Appellants, will hardly be effective. The Appellants have referred to a number of
cases, including Skulsh v. Katz and Woodhouse v. Canada,82 as standing for the
proposition that habeas corpus cases with a wider scope of review will result in a
burdening of scarce judicial resources due to lengthy proceedings. Respectfully, the
Appellants miss the overall point regarding access to justice for prisoners. Many cases,
including Skulsh and Woodhouse, were the result of unique sets of circumstances that
required extra time and resources, while the applicants had further unique circumstances
that would have made addressing their cases difficult on the whole within federal court.
Further, whatever the use of judicial resources may have been, the point is that the
applicants were able to seek quick, timely relief by way of habeas corpus as opposed to
what the case may have been had they been forced into federal court.
88. The Appellants have also sought to adduce fresh evidence, which, broadly speaking,
speaks to the time that shall be wasted should prisoners be permitted to make habeas
corpus applications based on the merits or reasonableness more generally. Some points
can be made at this stage questioning the use of such evidence at all. The evidence
Nguyen v. Mission Institution 2012 BCSC 103 at paras. 40-55
82 Skulsh v. Katz, 2012 BCSC 350, and Woodhouse v. Canada (Correctional Service),
2010 BCSC 754
81
37
purports to indicate that many more hours will be required to address habeas corpus
claims on their merits, as this has already been borne out. The purported evidence does
not, by itself, indicate as much. First, as stated, the point of access to justice on habeas
corpus is with respect to the timeliness of remedies more generally.
Secondly, the
evidence does not break down the number of hours spent by applicants addressing issues
of reasonableness as opposed to other grounds of review, whether applicants are selfrepresented, whether they spend inordinate amounts of time responding to Wardens'
arguments questioning scope of review, or, more particularly, whether the provinces
which see more habeas corpus applications have structures in place that allow for greater
funding or access to justice for prisoners more generally. Nor does the evidence speak to
the amount oftime used in federal court to review institutional transfers.
iv. What's in a Name?
89. As stated previously, as the Appellants have little or no legal or practical authority
upon which to state that there should be severe limitations on the grounds of review on
habeas corpus in favour of judicial review in federal court, attempts are made to create
faulty, artificially-constructed linguistic edifices to prevent Courts from merely touching
the merits of decisions by correctional authorities in habeas corpus. In this respect, the
Appellants have parsed out three terms towards attempting to create chasms in the habeas
landscape: arbitrariness, lawfulness, and jurisdiction.
90. Addressing the former of these three words, the Appellants have not so much used
the term against the Respondent as failed to see its applicability. While the Appellants
argue that the reasonableness of a decision is not an appropriate ground for review on
habeas, they implicitly accept that arbitrariness can be, which is consistent with May.
However, arbitrariness and reasonableness, it is submitted, are simply two sides of the
same concept. An arbitrary or decision is a decision "founded on prejudice or preference
rather than on reason or fact ... often termed arbitrary and capricious". Likewise, an
38
unreasonable decision is "not guided by reason; irrational or capricious". 83 If a decision
is being reviewed on the grounds that it is arbitrary, it can simply be inferred that the
decision is, and may, be reviewed insofar as it is unreasonable.
91. The Appellants have also attempted to state that the "reasonableness" of a decision
cannot be at issue on habeas corpus because habeas review considers whether a
deprivation of liberty has been lawful, and such decision will only be lawful when it is
"within the jurisdiction of a decision-maker." A number of related points must be made
on this front to demonstrate that this does not in any sense preclude an examination of a
decision on its merits or reasonableness.
First, while May did speak in terms of
jurisdictional error and "an excess or absence of jurisdiction", by that time this Court had
already begun to move away from the employment of the concept of "jurisdictional"
error in administrative review, towards the post-Dunsmuir period of the present day,
where the Courts are inclined to only look at jurisdiction in a "true" manner or vires
sense. 84 This is reflected in the Chiasson J.Ao's application of these concepts to habeas
corpus, as stated above. Furthermore, even in the event that Courts see fit to continue to
employ the concept of jurisdiction outside of a vires sense towards administrative review,
the law is well-established that to act unreasonably results in a loss of jurisdiction.
Simply put, to engage in an unreasonable decision is to act without or otherwise in
absence of jurisdiction.
85
PART IV - COSTS
92. The Respondent seeks costs as against the Appellants.
83 Black's Law Dictionary, Ninth Edition, Bryan A. Gamer, Editor in Chief, Thompson
Reuters, 2009, St. Paul, MN
84 See Dr. Q. v. College ofPhysicians and Surgeons of British Columbia [2003] 1 S.C.R.
226 at paras. 20-28
85 See Blanchard v. Control Data Canada Ltd. [1984]2 S.C.R. 476
39
PART V - NATURE OF THE ORDER SOUGHT
94. The Respondent requests the following relief:
(a) that the appeal be dismissed;
(b) that the judgments of the BCCA and the BCSC below be affirmed; and
(c) that the Respondent's application for habeas corpus be allowed.
ALL OF WHICH IS RESPECTFULLY SUBMITTED
Dated this 28th day of May, 2013.
Bibhas D. Vaze
Michael S. A. Fox
Counsel for the Respondent
40
PART VI - TABLE OF AUTHORITIES
Authority
Cases
Athwal and Zalds v. Warden ofFerndale Institution et aI, 2006 BCSC
Cited at Paras.
43
1386
Blanchardv. Control Data Canada Ltd. [1984]2 S.C.R. 476
Boumediene v. Bush 553 U.S. 723, pps. 561-567
91
1
Bowden v. Canada (Attorney General), 2011 FC 688
77
Cardinal v. Kent [1985]2 S.C.R. 643
46
Chow v. Canada (Attorney General), 2011 FC 914
79
Doherty v. Canada (Attorney General), 2004 FC 1425
76
Dr. Q. v. College ofPhysicians and Surgeons ofBritish Columbia
91
[2003]1 S.C.R. 226
Dunsmuir v. New Brunswick [2008]1 S.CR 190
Fitzgeraldv. Trono [1994] B.C.J. 1534
32
43,55,56,57
Foster v. Mission Institution 2010 BCSC 781
43
Gordon v. Canada (Minister of National Defence), 2004 FC 1642
75
Hutton v. Fenbrook Institution, 2002 FCT 1198
76
Khela v. Mission Institution 2010 BCSC 721
Khela v. Mission Institution 2011 BCCA 450
3,20,21,22,
23,24,25,26
3,15,16,17,
27,28,29,30,
31,32,33,34,
37
Lising v. Warden ofKent Institution, 2007 BCSC 248
43
Macdonaldv. Canada (Attorney General), 2005 FC 1326
76
Martineau v. Matsqui Institution Disciplinary Board [1980]1 S.C.R.
602
2
41
May v. Ferndale [2005]3 S.C.R. 809
2,5,41,60,61,
63, 64, 65, 66
McCauley v. Canada (Attorney General), 2010 FC 294
79
Morin v. Canada (SHU) [1985]2 S.C.R. 662
46
Nguyen v. Mission Institution 2012 BCSC 103
86
Paul v. Canada (Attorney General), 2012 FC 64
79
Potato Board (P.E.l) v. Canada (Minister ofAgriculture), 56 FTR
75
150
R. v Gamble [1988]2 S.C.R. 595
R. v. Miller [1985]2 S.C.R. 613
52,53,54
46,47,48,49,
50,51
Reda v. Canada (Attorney General), 2012 FC 79
70
Skulsh v. Katz, 2012 BCSC 350
87
Tremblay v. Canada (Attorney General), 2003 FC 1251
77
Williams v. Canada (Attorney General), 2010 FC 704
79
Woodhouse v. Canada (Correctional Service), 2010 BCSC 754
87
Zuria v. Mission Institution 2010 BCSC 970
43
Secondary Materials
2002-2003 Annual Report of the Federal Court of Canada
75
Black's Law Dictionary, Ninth Edition, Bryan A. Garner, Editor in
Chief, Thompson Reuters, 2009, St. Paul, MN
90
Canada, Correctional Service, Commissioners Directive 081,
"Offender Complaints and Grievances", November 29, 2011
71
Judith Farbey and RJ. Sharpe (with Simon Attrill) The Law ofHabeas
Corpus (third edition of Sharpe), (2011, Oxford University Press)
Office of the Correctional Investigator of Canada, A Preventable
Death, June 20, 2008
1
73
42
Office of the Correctional Investigator of Canada, Annual Report
72
2004-2005
Office of the Correctional Investigator of Canada, Annual Report
72
2005-2006
Paul D. Halladay, Habeas Corpus: From England to Empire (2010
Belknap Press)
1