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This was an application for habeas corpus with certiorari in aid challenging a decision made by the CSC whereby B was involuntarily transferred from a medium security penitentiary to a maximum-security penitentiary. The precipitating event leading to the impugned transfer was a sit-down strike at Joyceville, which was brought on by the involuntary transfer to Millhaven of another inmate named Demaria. B and two others out of a total of possibly 500 inmates were singled out and directed to return to work. They refused, and were sent to Millhaven as a result of their refusal. B received a transfer notice setting out the reasons for the transfer as follows: 1) B's refusal to go to work when ordered during a 4-day sit-down at Joyceville jeopardized the possibility of the institution returning to normal routine; 2) There was confidential security information indicating that B was playing a supporting role in extending the work stoppage; 3) There was confidential information indicating that B was involved in illegal drug usage. At the hearing before court, it was conceded that there was no information in support of the third reason. Two central issues were before the court. First, did a provincial superior court have jurisdiction to issue certiorari in aid of habeas corpus to review and determine the validity of confinement in a maximum-security institution following an allegedly unlawful transfer form a medium security penitentiary. Secondly, if the answer to the first issue was "yes," was procedural fairness violated in this case?
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| In allowing the application and quashing the transfer, Smith J. cited past authorities and concluded that a provincial superior court has jurisdiction to issue certiorari in aid of habeas corpus so as to review the validity of a detention imposed by a federal board, commission or tribunal. Smith J. asserted that Le Dain J., in Miller, cautioned against the use of habeas corpus "to challenge any and all conditions of confinement in a penitentiary or prison." Indeed, habeas corpus was conceived as a method of obtaining a prisoner's release either from confinement simpliciter, or, on the basis of Miller and other cases, from a new and different detention that rests on its own foundation within a larger context of confinement. It becomes more difficult, therefore, but not inconceivable, that the remedy should be extended to a mere loss of a privilege or privileges. Each case will be decided on its facts. In the instant case the concept of "releasing" creates no difficulty. It was simply, in Smith J's view, a logical extension of Miller to place with the reach of habeas corpus a release from one institution to another within the same system, as long as the deprivation of an inmate's residual liberty is significant. In this case, the deprivation of liberty was significant. Moving on to the question of procedural fairness, Smith J. held that B was not provided with sufficient information to enable him to effectively defend himself against possible arbitrariness. The use of informer evidence does not act as a justification for dispensing with fairness. Experience has shown that a great deal can be disclosed while protecting the identity of the fellow inmates who inform.
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