May v. Ferndale Institution

May v. Ferndale Institution
Collection
Supreme Court Judgments
Date
2005-12-22
Neutral citation
2005 SCC 82
Report
[2005] 3 SCR 809
Case number
30083
Judges
McLachlin, Beverley; Major, John C.; Bastarache, Michel; Binnie, William Ian Corneil; LeBel, Louis; Deschamps, Marie; Fish, Morris J.; Abella, Rosalie Silberman; Charron, Louise
On appeal from
British Columbia
Subjects
Administrative law
Courts
Criminal law
Evidence
Notes
SCC Case Information: 30083
Decision Content
SUPREME COURT OF CANADA
Citation: May v. Ferndale Institution, [2005] 3 S.C.R. 809, 2005 SCC 82
Date: 20051222
Docket: 30083
Between:
Terry Lee May
Appellant
and
Warden of Ferndale Institution, Warden of Mission Institution,
Deputy Commissioner, Pacific Region, Correctional Service
of Canada and Attorney General of Canada
Respondents
And between:
David Edward Owen
Appellant
and
Warden of Ferndale Institution, Warden of Matsqui Institution,
Deputy Commissioner, Pacific Region, Correctional Service
of Canada and Attorney General of Canada
Respondents
And between:
Maurice Yvon Roy, Gareth Wayne Robinson and
Segen Uther Speer‑Senner
Appellants
and
Warden of Ferndale Institution, Warden of Mission Institution,
Deputy Commissioner, Pacific Region, Correctional Service
of Canada and Attorney General of Canada
Respondents
and
Canadian Association of Elizabeth Fry Societies,
John Howard Society of Canada and
British Columbia Civil Liberties Association
Interveners
Coram: McLachlin C.J. and Major, Bastarache, Binnie, LeBel, Deschamps, Fish, Abella and Charron JJ.
Reasons for Judgment:
(paras. 1 to 121)
Dissenting reasons:(paras. 122 to 140)
LeBel and Fish JJ. (McLachlin C.J. and Binnie, Deschamps and Abella JJ. concurring)
Charron J. (Major and Bastarache JJ. concurring)
______________________________
May v. Ferndale Institution, [2005] 3 S.C.R. 809, 2005 SCC 82
Terry Lee May Appellant
v.
Warden of Ferndale Institution, Warden of Mission Institution,
Deputy Commissioner, Pacific Region, Correctional Service
of Canada and Attorney General of Canada Respondents
- and -
David Edward Owen Appellant
v.
Warden of Ferndale Institution, Warden of Matsqui Institution,
Deputy Commissioner, Pacific Region, Correctional Service
of Canada and Attorney General of Canada Respondents
- and -
Maurice Yvon Roy, Gareth Wayne Robinson and
Segen Uther Speer‑Senner Appellants
v.
Warden of Ferndale Institution, Warden of Mission Institution,
Deputy Commissioner, Pacific Region, Correctional Service
of Canada and Attorney General of Canada Respondents
- and -
Canadian Association of Elizabeth Fry Societies,
John Howard Society of Canada and
British Columbia Civil Liberties Association Interveners
Indexed as: May v. Ferndale Institution
Neutral citation: 2005 SCC 82.
File No.: 30083.
2005: May 17; 2005: December 22.
Present: McLachlin C.J. and Major, Bastarache, Binnie, LeBel, Deschamps, Fish, Abella and Charron JJ.
on appeal from the court of appeal for british columbia
Courts — Jurisdiction — Habeas corpus — Transfer of federal inmates from minimum‑ to medium‑security institution — Whether provincial superior court had jurisdiction to review inmates’ transfer on application for habeas corpus with certiorari in aid — If so, whether it should have declined habeas corpus jurisdiction in favour of Federal Court jurisdiction on judicial review.
Prisons — Transfer of inmates — Deprivation of residual liberty — Habeas corpus — Transfer of federal inmates from minimum‑ to medium‑security institution — Whether inmates unlawfully deprived of their residual liberty — Whether inmates’ habeas corpus applications should be granted.
Evidence — New evidence — Motion to submit new evidence filed before Supreme Court of Canada — Whether new evidence should be admitted.
Administrative law — Arbitrary decisions — Correctional Service of Canada — Transfer of inmates to higher security institution — Whether transfer decisions initiated by change in policy arbitrary — Whether inmates unlawfully deprived of their liberty.
Administrative law — Procedural fairness — Duty to disclose — Correctional Service of Canada — Transfer of inmates to higher security institution — Correctional Service not making full disclosure of information relied upon in its reclassification of inmates — Whether inmates unlawfully deprived of their liberty — Whether Stinchcombe principles applicable to administrative context — Whether Correctional Service complied with its statutory duty to disclose — Corrections and Conditional Release Act, S.C. 1992, c. 20, s. 27(1) .
The appellant inmates are prisoners serving life sentences. Based on a computerized reclassification scale which yielded a medium‑security rating, they were each involuntarily transferred from a minimum‑ to a medium‑security institution. There were no allegations of fault or misconduct on the part of these inmates. The transfers were the result of a direction from the Correctional Service of Canada (“CSC”) to review the security classifications of all inmates serving life sentences in minimum‑security institutions who had not completed their violent offender programming. CSC used a computer application to assist the classification review process. This application, the Security Reclassification Scale (“SRS”), was developed to help caseworkers determine the most appropriate level of security at key points throughout an offender’s sentence. It provides a security rating based on data entered with respect to various factors related to the assessment of risk.
The inmates applied to the provincial superior court for habeas corpus with certiorari in aid directing correction officials to transfer them back to the minimum‑security facility. From the outset, they requested the scoring matrix for the SRS, but were told it was not available. The chambers judge found that a provincial superior court had jurisdiction to review a federal inmate’s involuntary transfer on an application for habeas corpus with certiorari in aid, but that the applications should be dismissed because the inmates’ transfers had not been arbitrary and had not been made in the absence of jurisdiction. The Court of Appeal dismissed the inmates’ appeal, holding that the chambers judge ought to have declined to exercise habeas corpus jurisdiction because no reasonable explanation was given for the inmates’ failure to pursue judicial review in Federal Court. Before the hearing in this Court, the inmates filed a motion to submit the cover page of a scored copy of an assessment and a current version of the scoring matrix as new evidence.
Held (Major, Bastarache and Charron JJ. dissenting): The appeal should be allowed. The applications for habeas corpus and the motion to adduce new evidence should be granted. The transfer decisions are declared null and void for want of jurisdiction.
Per McLachlin C.J. and Binnie, LeBel, Deschamps, Fish and Abella JJ.: Inmates may choose to challenge the legality of a decision affecting their residual liberty either in a provincial superior court by way of habeas corpus or in the Federal Court by way of judicial review. As a matter of principle, a provincial superior court should exercise its jurisdiction when it is requested to do so. Habeas corpus jurisdiction should not be declined merely because an alternative remedy exists and seems more convenient to the court. Provincial superior courts should decline habeas corpus jurisdiction only where (1) a statute, such as the Criminal Code , 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, such as the scheme created by Parliament for immigration matters. [44‑50]
Here, the Court of Appeal erred in barring access to habeas corpus as neither of the two recognized exceptions are applicable. First, these cases involve administrative decisions in the prison context, not criminal convictions. Second, Parliament has not enacted a complete, comprehensive and expert procedure for review of a decision affecting inmates’ confinements. The language of the Corrections and Conditional Release Act (“CCRA ”) and its regulations make it clear that Parliament did not intend to bar federal inmates’ access to habeas corpus. The scheme of review and appeal which militates against the exercise of habeas corpus jurisdiction in the immigration context is substantially different from the grievance procedure provided in the CCRA . Moreover, when the habeas corpus jurisdiction of provincial superior courts is assessed purposively, the relevant factors favour the concurrent jurisdiction approach. This approach properly recognizes the importance of affording inmates a meaningful and significant access to justice in order to protect their liberty rights. Timely judicial oversight, in which provincial superior courts must play a concurrent if not predominant role, is still necessary to safeguard the human rights and civil liberties of inmates, and to ensure that the rule of law applies within penitentiary walls. [51‑72]
Habeas corpus should not be granted in these cases on the basis of arbitrariness. A transfer decision initiated by a mere change in policy is not, in and of itself, arbitrary. The new policy applied here strikes a proper balance between the interests of inmates deprived of their residual liberty and the state’s interest in the protection of the public. It also required that inmates be transferred to higher security institutions only after individual assessment. In each case, there was a concern that the inmate had failed to complete a violent offender program, thereby ensuring that the inmates’ liberty interest was limited only to the extent necessary to protect the public. [83‑86]
However, habeas corpus should be granted because CSC’s failure to disclose the scoring matrix for the computerized security classification rating tool unlawfully deprived the inmates of their residual liberty. While the Stinchcombe disclosure standard is inapplicable to an administrative context, in that context procedural fairness generally requires that the decision‑maker disclose the information relied upon. The individual must know the case he has to meet. If the decision‑maker fails to provide sufficient information, his decision is void for lack of jurisdiction. In order to assure the fairness of decisions concerning inmates, s. 27(1) of the CCRA requires that CSC give the inmate, at 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 of that information”. Here, CSC’s failure to disclose the scoring matrix which was available at the relevant time, despite several requests by the inmates, was a clear breach of procedural fairness and of its statutory duty of disclosure. This information was not a duplication of information already disclosed. Without the scoring matrix which provides information on the numerical values to be assigned to each factor and to the manner in which a final score is generated by the computerized tool, the inmates were deprived of information essential to understanding the computerized system which generated their scores and were prevented from formulating a meaningful response to the reclassification decisions. The inmates knew what the factors were, but did not know how values were assigned to them or how those values factored into the generation of the final score. Since CSC concealed crucial information and violated in doing so its statutory duty of disclosure, the transfer decisions were made improperly. They are, therefore, null and void for want of jurisdiction. The inmates’ motion to adduce the “scoring matrix” as new evidence should be granted because the evidence satisfies all the requirements of the Palmer test. [91‑120]
Per Major, Bastarache and Charron JJ. (dissenting): The provincial superior court properly exercised its habeas corpus jurisdiction, and its dismissal of the habeas corpus applications must be upheld because the inmates were not unlawfully deprived of their liberty. First, the transfer decisions were not arbitrary. Each decision was based on an individualized assessment of the merits of each case. Second, although the inmates should have been provided with the scoring matrix, which they had specifically requested so that they could check the accuracy of the total SRS score, not every instance of non‑disclosure results in a breach of procedural fairness and deprives the decision‑maker of jurisdiction. In these cases, the statutory requirement to provide a “summary of the information” in s. 27(1) of the CCRA was met. Further, procedural fairness was achieved, because each inmate was provided with sufficient information to know the case he had to meet. The inmates were advised that the SRS formed part of the basis for the transfer recommendation, and they were provided with a list of the relevant factors considered in computing the score, the personal information relied upon in assessing each factor, and the reclassification score assigned to them. [122‑125] [138]
The fresh evidence fails to satisfy the requirements of the Palmer test. Although it is clear that instructions on how to compute the SRS existed at the time of the reclassification, the scoring matrix would not have shown that the reclassification was arbitrary or that the total score was inaccurate. Moreover, the SRS score only partially prompted the review of the inmates’ classifications; the actual transfer decisions were based on the individual assessments of their respective situations. There was no basis for granting the habeas corpus applications with or without this additional information. [133‑139]
Cases Cited
By LeBel and Fish JJ.
Applied: R. v. Miller, [1985] 2 S.C.R. 613; Cardinal v. Director of Kent Institution, [1985] 2 S.C.R. 643; Morin v. National Special Handling Unit Review Committee, [1985] 2 S.C.R. 662; disapproved: Spindler v. Millhaven Institution (2003), 15 C.R. (6th) 183; Hickey v. Kent Institution (Director) (2003), 176 B.C.A.C. 272, 2003 BCCA 23; distinguished: Pringle v. Fraser, [1972] S.C.R. 821; Peiroo v. Canada (Minister of Employment and Immigration) (1989), 69 O.R. (2d) 253, leave to appeal denied, [1989] 2 S.C.R. x; R. v. Stinchcombe, [1991] 3 S.C.R. 326; referred to: Jones v. Cunningham, 371 U.S. 236 (1962); Martineau v. Matsqui Institution Disciplinary Board, [1980] 1 S.C.R. 602; Re Trepanier (1885), 12 S.C.R. 111; Re Sproule (1886), 12 S.C.R. 140; Goldhar v. The Queen, [1960] S.C.R. 431; Morrison v. The Queen, [1966] S.C.R. 356; Karchesky v. The Queen, [1967] S.C.R. 547; Korponay v. Kulik, [1980] 2 S.C.R. 265; R. v. Gamble, [1988] 2 S.C.R. 595; Reza v. Canada, [1994] 2 S.C.R. 394; Steele v. Mountain Institution, [1990] 2 S.C.R. 1385; Idziak v. Canada (Minister of Justice), [1992] 3 S.C.R. 631; Bernard v. Kent Institution, [2003] B.C.J. No. 62 (QL), 2003 BCCA 24; Dumas v. Leclerc Institute, [1986] 2 S.C.R. 459; Slaight Communications Inc. v. Davidson, [1989] 1 S.C.R. 1038; Re Hay and National Parole Board (1985), 21 C.C.C. (3d) 408; Cunningham v. Canada, [1993] 2 S.C.R. 143; Ruby v. Canada (Solicitor General), [2002] 4 S.C.R. 3, 2002 SCC 75; Knight v. Indian Head School Division No. 19, [1990] 1 S.C.R. 653; Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817; Chiarelli v. Canada (Minister of Employment and Immigration), [1992] 1 S.C.R. 711; Therrien (Re), [2001] 2 S.C.R. 3, 2001 SCC 35; Nicholson v. Haldimand‑Norfolk Regional Board of Commissioners of Police, [1979] 1 S.C.R. 311; Palmer v. The Queen, [1980] 1 S.C.R. 759; United States of America v. Shulman, [2001] 1 S.C.R. 616, 2001 SCC 21; Public School Boards’ Assn. of Alberta v. Alberta (Attorney General), [2000] 1 S.C.R. 44, 2000 SCC 2.
By Charron J. (dissenting)
R. v. Stinchcombe, [1991] 3 S.C.R. 326; Palmer v. The Queen, [1980] 1 S.C.R. 759.
Statutes and Regulations Cited
Canadian Charter of Rights and Freedoms, ss. 7 , 9 , 10 (c).
Constitution Act, 1867, s. 96 .
Corrections and Conditional Release Act, S.C. 1992, c. 20, ss. 4 (d), (g), 27(1) , (3) , 28 , 30(1) , (2) , 90 , 91 , 96 (u), 97 , 98 .
Corrections and Conditional Release Regulations, SOR/92‑620, ss. 13, 17, 18, 74 to 82, 74(1), (3), (5), 75, 77(3), 79(3), 80, 81.
Criminal Code, R.S.C. 1985, c. C‑46 .
Criminal Rules of the Supreme Court of British Columbia, SI/97‑140, r. 4.
Federal Court Act, R.S.C. 1985, c. F‑7 [formerly R.S.C. 1970, c. 10 (2nd Supp.)], ss. 2, 18, 18.1(2), (4).
Federal Court Rules, 1998, SOR/98‑106, rr. 301 to 314.
Habeas Corpus Act, 1679 (Engl.), 31 Cha. 2, c. 2.
Immigration Act, 1976, S.C. 1976-77, c. 52 [later Immigration Act, R.S.C. 1985, c. I‑2], ss. 63 [ad. 1988, c. 35, s. 18], 64 [idem], 71.4 to 78 [idem], 83.1 to 85.2 [idem, s. 19].
Magna Carta (1215).
Authors Cited
Canada. Correctional Service. Commissioner’s Directive 081, “Offender Complaints and Grievances”, 2002.
Canada. Correctional Service. Security Classification of Offenders: Standard Operating Practices, 700‑14, 2001.
Canada. Correctional Service. Transfer of Offenders: Standard Operating Practices, 700‑15, 1999.
Duker, William F. A Constitutional History of Habeas Corpus. Westport, Conn.: Greenwood Press, 1980.
Jackson, Michael. Justice Behind the Walls: Human Rights in Canadian Prisons. Vancouver: Douglas & McIntyre, 2002.
Jackson, Michael. Prisoners of Isolation: Solitary Confinement in Canada. Toronto: University of Toronto Press, 1983.
Mullan, David J. Administrative Law. Toronto: Irwin Law, 2001.
Sharpe, Robert J. The Law of Habeas Corpus, 2nd ed. Oxford: Clarendon Press, 1989.
APPEAL from a judgment of the British Columbia Court of Appeal (Ryan, Mackenzie and Saunders JJ.A.) (2003), 188 B.C.A.C. 23, 308 W.A.C. 23, [2003] B.C.J. No. 2294 (QL), 2003 BCCA 536, affirming a decision of Bauman J., [2001] B.C.J. No. 1939 (QL), 2001 BCSC 1335. Appeal allowed, Major, Bastarache and Charron JJ. dissenting.
Ann H. Pollak, for the appellants Terry Lee May and David Edward Owen.
Donna M. Turko, for the appellants Maurice Yvon Roy, Gareth Wayne Robinson and Segen Uther Speer‑Senner.
Roslyn J. Levine, Q.C., and Donald A. MacIntosh, for the respondents.
Elizabeth Thomas and Allan Manson, for the interveners the Canadian Association of Elizabeth Fry Societies and the John Howard Society of Canada.
Michael Jackson, Q.C., for the intervener the British Columbia Civil Liberties Association.
The judgment of McLachlin C.J. and Binnie, LeBel, Deschamps, Fish and Abella JJ. was delivered by
LeBel and Fish JJ. —
I. Introduction
1 These cases involve the overlap and potential conflict of jurisdiction between provincial superior courts and the Federal Court. At stake is the right of federal prisoners to challenge the legality of their detention by way of habeas corpus in provincial superior courts. The question to be resolved in these cases is whether the Supreme Court of British Columbia should have declined habeas corpus jurisdiction in favour of Federal Court jurisdiction on judicial review. If the court properly exercised its jurisdiction, we will also have to assess whether the appellants have been unlawfully deprived of their liberty.
2 In our view, the Supreme Court of British Columbia has properly exercised its habeas corpus jurisdiction. This is not one of the limited circumstances pursuant to which a superior court should decline to exercise its jurisdiction: first, these cases do not involve a statute that confers jurisdiction on a court of appeal to correct the errors of a lower court and release the applicant if need be; and second, Parliament has not put in place a complete, comprehensive and expert procedure for review of an administrative decision.
3 Moreover, we believe that the appellants have been unlawfully deprived of their liberty. The respondents did not comply with their statutory duty to provide all the information or a summary of the information considered in making the transfer decisions. The appeal should therefore be allowed.
II. Facts and Judicial History
4 Each of the appellants are prisoners serving life sentences for murder and/or manslaughter. Terry Lee May was convicted of first-degree murder for killing one adolescent boy so that he could sexually assault another without interference. David Edward Owen was convicted of second-degree murder for beating his ex-wife to death. Maurice Yvon Roy was convicted of second-degree murder for killing his common law wife. Gareth Wayne Robinson was convicted on two counts of manslaughter after he stabbed his girlfriend and then, three years later, struck his wife on the head with a hammer. Segen Uther Speer-Senner was convicted of second-degree murder in circumstances unspecified in the record before us. After varying periods of incarceration, the appellants became residents of Ferndale Institution, a minimum security federal penitentiary located in British Columbia.
5 Between November 2000 and February 2001, all five appellants were involuntarily transferred from Ferndale Institution to medium-security institutions. Mr. May, Mr. Roy, Mr. Robinson and Mr. Speer-Senner were transferred to Mission Institution and Mr. Owen, to Matsqui Institution. It is not in issue that a transfer from a minimum- to a medium-security institution involves a significant deprivation of liberty for inmates. Consequently, the appellants filed grievances and also applied for habeas corpus relief with certiorari in aid directing the responsible correction officials to transfer them back to Ferndale Institution. Their applications were not joined, but the arguments before the British Columbia Court of Appeal were adopted by all five appellants.
6 The transfers were the result of a direction from the Correctional Service of Canada (“CSC”) to review the security classifications of all inmates serving life sentences in minimum-security institutions who had not completed their violent offender programming in the aftermath of a sensational crime committed by a former inmate in another province. CSC used computer applications to assist the classification review process. Mr. Roy, Mr. Robinson, Mr. Speer-Senner and Mr. Owen were advised that their transfers were based on a computerized reclassification scale which yielded a medium‑security rating. Mr. May was told that his security rating had been adjusted because the security classification tool could not rate him as minimum-security because he had not completed violent offender programming. There were no allegations of fault or misconduct.
7 The appellants attacked the decision‑making process leading to their transfers. They submitted that a change in general policy, embodied in a direction to review the security classification of offenders serving a life sentence at Ferndale Institution using certain classification tools, was the sole factor prompting their transfers. They said that the transfers were arbitrary, made without any “fresh” misconduct on their parts, and made without considering the merits of each case. The appellants also claimed that their right to procedural fairness was breached by the failure to disclose the scoring matrix for one of the classification tools, leaving them unable to challenge the usefulness of that tool in the decision‑making process.
8 The Supreme Court of British Columbia dismissed the habeas corpus application: [2001] B.C.J. No. 1939 (QL), 2001 BCSC 1335. Bauman J. first considered whether a provincial superior court had jurisdiction to review a federal prisoner’s involuntary transfer on an application for habeas corpus (with certiorari in aid) and, in the affirmative, whether it should decline to exercise it. The issue arose because the Federal Court is granted exclusive jurisdiction in respect of certiorari proceedings involving the decisions of federal tribunals by its constituent statute.
9 Bauman J. found that he had jurisdiction to hear the application. He relied on R. v. Miller, [1985] 2 S.C.R. 613, which held that provincial superior courts have retained concurrent jurisdiction with the Federal Court to issue certiorari in aid of habeas corpus to review the validity of a detention authorized or imposed by a federal board, commission or other tribunal as defined by s. 2 of the Federal Court Act, R.S.C. 1985, c. F-7 (formerly R.S.C. 1970, c. 10 (2nd Supp.)) (“FCA”).
10 Bauman J. then dealt with the substantive issues, which he agreed to examine under his habeas corpus jurisdiction. He found against the appellants. He held that they had not made out their allegations of failure to disclose relevant information, the computer matrix not being available, and that the transfers had not been arbitrary. In his opinion, although the transfers had been prompted by a general instruction issued to CSC, the decisions had been made after an individualized assessment of all relevant factors. He concluded that they had not been made in the absence or in excess of jurisdiction. The applications for habeas corpus and certiorari in aid were then dismissed.
11 The British Columbia Court of Appeal dismissed the appeal: (2003), 188 B.C.A.C. 23, 2003 BCCA 536. On the jurisdiction issue, the Court of Appeal had asked for and received written submissions from counsel on the issue raised in Spindler v. Millhaven Institution (2003), 15 C.R. (6th) 183 (Ont. C.A.).
12 In Spindler, prisoners had been placed in a maximum‑security prison as a result of a new policy applicable to convicted murderers. They raised arguments which were similar to the submissions of the appellants in the present appeals. The Ontario Court of Appeal had held that, where a remedy is available in the Federal Court on the exercise of a statutory power granted under a federal statute to a federally appointed individual or tribunal, the provincial superior court should decline to hear an application for habeas corpus if no reasonable explanation for the failure to pursue judicial review in the Federal Court was offered by the petitioner. In doing so, the Ontario Court of Appeal agreed with the British Columbia Court of Appeal’s decision in Hickey v. Kent Institution (Director) (2003), 176 B.C.A.C. 272, 2003 BCCA 23.
13 Ryan J.A. felt that those comments were particularly apt in the case at bar. Although the issues raised in these cases were not identical to those raised in Spindler, they all involved policies and procedures adopted by the Commissioner of Corrections in determining the security classifications of the appellants. In her view, these cases should have been heard by the “specialized” Federal Court. The appellants had offered no reasonable explanation for failing to pursue judicial review in the Federal Court, so Ryan J.A. was of the opinion that Bauman J. ought to have declined to hear the applications in these cases, though it is implicit from her reasons that he had jurisdiction to do so. Nevertheless, Ryan J.A. decided to examine the substantive issue, but she found no error in Bauman J.’s conclusion that there were no procedural flaws which would entitle the appellants to an order for habeas corpus.
14 Since the Supreme Court of British Columbia heard the application, the record indicates that the situation of most of the appellants has changed. On June 30, 2002, Mr. May was transferred from medium- to minimum-security confinement at Ferndale Institution. On February 6, 2003, Mr. Speer-Senner was also transferred back to Ferndale Institution. On January 30, 2005, Mr. Owen was released on full parole. The record is silent with respect to the updated situation of Mr. Roy, however, at the hearing, Ms. Pollack, one of the counsel for the appellants, informed us that only Mr. Robinson is still incarcerated in a medium-security institution.
III. Issues and Position of the Parties
15 These cases revolve around two core issues. First, whether the Supreme Court of British Columbia should have declined habeas corpus jurisdiction and, second, whether the appellants have been unlawfully deprived of their liberty.
16 The appellants argue that the jurisdiction of provincial superior courts to grant habeas corpus is not affected by the fact that the unlawful detention results from a breach of relevant statutory and regulatory rules and of principles of natural justice by a federal authority. The applicant is entitled to choose the forum in which to challenge unlawful restrictions of liberty in the prison context. In addition, the appellants contend that the decisions to transfer them from a minimum‑security institution to medium‑security institutions were arbitrary and unfair.
17 On the other hand, the respondents submit that the Court of Appeal did not err in holding that the lower court should have declined habeas corpus jurisdiction in the instant case. Habeas corpus jurisdiction should be assessed purposively, in view of the comprehensive statutory schemes that provide effective comparable remedies. In any event, the respondents contend that the transfer decisions were lawfully made.
IV. Analysis
A. Did the Superior Court of British Columbia Properly Exercise Its Habeas Corpus Jurisdiction?
18 Should the Supreme Court of British Columbia have declined habeas corpus jurisdiction in favour of Federal Court jurisdiction on judicial review? This issue is particularly important in the context of recent jurisprudential and legal developments and to ensure that the rule of law applies inside Canadian prisons. The continuing relevance of habeas corpus is also at stake in a changing social and legal environment. In the case of prisons, access to relief in the nature of habeas corpus is critical in order to ensure that prisoners’ rights are respected. Accordingly, we will review and discuss five subjects: (1) the nature of habeas corpus; (2) the Miller, Cardinal and Morin trilogy (R. v. Miller, [1985] 2 S.C.R. 613; Cardinal v. Director of Kent Institution, [1985] 2 S.C.R. 643; Morin v. National Special Handling Unit Review Committee, [1985] 2 S.C.R. 662) and the concurrent jurisdiction of the superior courts and of the Federal Court; (3) the rise of a limited discretion of superior courts to decline to exercise their habeas corpus jurisdiction; (4) the expansion of the limited discretion to decline habeas corpus jurisdiction in the prison context by provincial courts of appeal; and (5) the need for and protection of federal prisoners’ access to habeas corpus.
(1) The Nature of Habeas Corpus
19 The writ of habeas corpus is also known as the “Great Writ of Liberty”. As early as 1215, the Magna Carta entrenched the principle that “[n]o free man shall be seized or imprisoned . . . except by the lawful judgement of his equals or by the law of the land.” In the 14th century, the writ of habeas corpus was used to compel the production of a prisoner and the cause of his or her detention: W. F. Duker, A Constitutional History of Habeas Corpus (1980), at p. 25.
20 From the 17th to the 20th century, the writ was codified in various habeas corpus acts in order to bring clarity and uniformity to its principles and application. The first codification is found in the Habeas Corpus Act, 1679 (Engl.), 31 Cha. 2, c. 2. Essentially, the Act ensured that prisoners entitled to relief “would not be thwarted by procedural inadequacy”: R. J. Sharpe, The Law of Habeas Corpus (2nd ed. 1989), at p. 19.
21 According to Black J. of the United States Supreme Court, habeas corpus is “not now and never has been a static, narrow, formalistic remedy; its scope has grown to achieve its grand purpose — the protection of individuals against erosion of their right to be free from wrongful restraints upon their liberty”: Jones v. Cunningham, 371 U.S. 236 (1962), at p. 243. In his book, Sharpe, at p. 23, describes the traditional form of review available on habeas corpus as follows:
The writ is directed to the gaoler or person having custody or control of the applicant. It requires that person to return to the court, on the day specified, the body of the applicant and the cause of his detention. The process focuses upon the cause returned. If the return discloses a lawful cause, the prisoner is remanded; if the cause returned is insufficient or unlawful, the prisoner is released. The matter directly at issue is simply the excuse or reason given by the party who is exercising restraint over the applicant. [Emphasis added.]
22 Habeas corpus is a crucial remedy in the pursuit of two fundamental rights protected by the Canadian Charter of Rights and Freedoms : (1) the right to liberty of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice (s. 7 of the Charter ); and (2) the right not to be arbitrarily detained or imprisoned (s. 9 of the Charter ). Accordingly, the Charter guarantees the right to habeas corpus:
10. Everyone has the right on arrest or detention
. . .
(c) to have the validity of the detention determined by way of habeas corpus and to be released if the detention is not lawful.
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 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. By the end of the 19th century, although the concept of civil death had largely disappeared, the prisoner continued to be viewed in law as a person without rights: M. Jackson, Prisoners of Isolation: Solitary Confinement in Canada (1983), at p. 82.
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 of Isolation, at p. 82.
25 Shortly after certain serious incidents in federal penitentiaries occurred in the 1970s and reviews of their management took place, this Court abandoned the “hands‑off” doctrine and extended judicial review to the decision-making process of prison officials by which prisoners were deprived of their residual liberty. In Martineau v. Matsqui Institution Disciplinary Board, [1980] 1 S.C.R. 602, Dickson J. (as he then was) laid the cornerstone for the modern theory and practice of judicial review of correctional decisions:
In the case at bar, the disciplinary board was not under either an express or implied duty to follow a judicial type of procedure, but the board was obliged to find facts affecting a subject and to exercise a form of discretion in pronouncing judgment and penalty. Moreover, the board’s decision had the effect of depriving an individual of his liberty by committing him to a “prison within a prison”. In these circumstances, elementary justice requires some procedural protection. The rule of law must run within penitentiary walls. [Emphasis added; p. 622.]
26 Dickson J. made it clear that “certiorari avails as a remedy wherever a public body has power to decide any matter affecting the rights, interest, property, privileges, or liberties of any person”, including prisoners (pp. 622-23 (emphasis added)). However, he did not specifically examine whether provincial superior courts have jurisdiction to issue certiorari in aid of habeas corpus to review the validity of a detention imposed by federal authority. The question would certainly arise in the present case because s. 18 of the FCA confers on the Federal Court exclusive jurisdiction to issue certiorari against any “federal board, commission or other tribunal”. A few years later, a trilogy of cases dealt with this important issue.
(2) The Miller, Cardinal and Morin Trilogy and the Concurrent Jurisdiction of the Superior Courts and the Federal Court
27 In 1985, in the trilogy of Miller, Cardinal, and Morin, the Court expanded the scope of habeas corpus by making the writ available to free inmates from restrictive forms of custody within an institution, without releasing the inmate. Habeas corpus could thus free inmates from a “prison within a prison”. Each case involved challenges by prisoners of their confinement in administrative segregation and their transfer to a special handling unit. This unit was reserved for particularly dangerous inmates and was characterized by more restrictive confinement.
28 In Miller, Le Dain J., writing for the Court, recognized that confinement in a special handling unit or in administrative segregation is a form of detention that is distinct and separate from that imposed on the general inmate population because it involves a significant reduction in the residual liberty of the inmate. In his view, habeas corpus should lie “to challenge the validity of a distinct form of confinement or detention in which the actual physical constraint or deprivation of liberty, as distinct from the mere loss of certain privileges, is more restrictive or severe than the normal one in an institution” (p. 641).
29 The issue remained, however, whether the remedy should be sought in a provincial superior court or the Federal Court. Le Dain J. pointed out that Parliament had made a conscious decision not to include habeas corpus in the list of prerogative remedies over which the Federal Court has exclusive jurisdiction. Habeas corpus jurisdiction, as an essential safeguard of the liberty interest, could only be affected by express words, which were not present in s. 18(1) of the FCA (pp. 624-25). Therefore, habeas corpus remained within the long standing inherent jurisdiction conferred to provincial superior court judges appointed under s. 96 of the Constitution Act, 1867 . To remove that jurisdiction from the provincial superior courts would require clear and direct statutory language such as that used in s. 18(2) of the FCA referring to members of the Canadian Forces stationed overseas.
30 Le Dain J. specifically addressed the issue, which arises in these cases, of whether jurisdiction for judicial review of federal boards by the Federal Court under s. 18 of the FCA trumped the provincial superior courts’ habeas corpus jurisdiction. He concluded, without any ambiguity, “that a provincial superior court has jurisdiction to issue certiorari in aid of habeas corpus to review the validity of a detention authorized or imposed by a federal board, commission or other tribunal as defined by s. 2 of the Federal Court Act ” (p. 626 (emphasis added)).
31 Throughout his analysis, Le Dain J. carefully examined which forum was the most appropriate to review the legality of federal prisoners’ detention, with reference to s. 18 of the FCA, the importance of local accessibility of the habeas corpus remedy, and the problems arising out of concurrent jurisdiction. Dealing with the issue of concurrent jurisdiction, he stated:
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 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 modern realities o