| B
was involuntarily transferred from a medium security penitentiary in Alberta
to another medium security penitentiary in Saskatchewan. In the past,
B had unsuccessfully petitioned for a transfer to William Head Institution
on Vancouver Island so that he could be closer to his home community of
Victoria. This application to the Saskatchewan Court of Queen’s Bench
was for habeas corpus with certiorari in aid. B sought an order directing
the CSC to transfer him from the Saskatchewan Penitentiary to a minimum-security
institution in British Columbia. B argued that the CSC unlawfully classified
him as a medium security risk when he should have been classified as a
minimum security risk. He further submitted that s28 of the CCRA and the
Regulations require the CSC to ensure that the penitentiary in which a
person is confined provides the least restrictive environment for that
person, including accessibility to his or her home community and family.
As his home community was Victoria, B contended that the least restrictive
environment would be a minimum-security level institution near that city.
The CSC submitted that they had consistently rated B as a medium security
risk, and that B’s transfer to the Saskatchewan Penitentiary was well
within their jurisdiction and did not encroach on his residual liberty
or violate his Charter rights. In addition, the CSC argued that the application
was essentially for a writ of mandamus which remedy is within the exclusive
jurisdiction of the Federal Court. The issues dealt with by the Court
were: 1) Does a provincial superior court have jurisdiction by habeas
corpus with certiorari in aid to grant all, or part of, the relief sought
by B, and if so, in what circumstances? 2) If the answer to the first
issue is “Yes”, should the relief requested by B, or a variation thereof,
be granted? |
| In
responding to the first issue, Klebuc J. asserted that provincial superior
courts have no jurisdiction to grant relief that essentially would contemplate
the granting of a writ of mandamus directing the CSC to transfer B to
a specific institution in British Columbia. However, that conclusion did
not settle the question of what relief the court may extend by way of
habeas corpus with certiorari in aid. Citing past case authority, Klebuc
J. held that the provincial superior courts have jurisdiction by habeas
corpus to make remedial orders in circumstances where the confinement
or detention of a prisoner is more restrictive or severe than those contemplated
by the CCRA, particularly s28 thereof. The intended benefit prescribed
by s28(b) of the CCRA constitutes more than a
mere privilege and therefore may be reviewed by habeas corpus where it
is demonstrated that the CSC failed to comply with s28(b) without just cause. If the impugned
administrative act resulted in a confinement more restrictive then contemplated
by the CCRA or impinged on the residual liberty of an inmate, the court
may quash such act. Turning to the question of whether B should be granted
relief in this case, Klebuc J. was of the opinion that the placement of
B in a facility approximately 2000 km from his home community, without
any justification for doing so, results in a confinement of B far more
severe than contemplated by the CCRA. It denied him easy access to his
family and friends and to that extent it constituted a form of isolation
that s28(b) seeks to avoid. It was Klebuc J.’s
view that the isolation impinged upon B’s residual liberty within the
prison system. Even if the relationship between B and certain members
of his family was strained, such fact would not be sufficient to deny
him the opportunity of living in his home community. Logic dictated that
B’s presence in his home community created a more opportune environment
for fostering re-conciliations than in an institution 2000 km away. The
Court was of the opinion that one of the underlying intentions of s28(b) is to facilitate re-conciliations and
foster the ultimate re-entry of an inmate into the community where he
or she intends to live. In this case, the re-entry community was Victoria,
B.C. The application was allowed in part. Since B was classified as a
medium security risk, his application for an order directing the CSC to
transfer him to a minimum-security penitentiary was dismissed. However,
Klebuc J. issued an order quashing the transfer of B to the Saskatchewan
Penitentiary and directing the CSC to purge the noted encroachment on
B’s liberty by complying with s28 of the CCRA. |
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