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H was ordered involuntarily transferred from a maximum-security penitentiary
in British Columbia to the SHU in Quebec. H sought an order by way of
habeas corpus with certiorari in aid quashing the decision of the CSC
that he be transferred and an order that he not be transferred from the
Pacific Region without leave of the Court. At the time the Court heard
the petition, the actual transfer had not yet occurred. The issue was
whether a court could grant a writ of habeas corpus prior to the execution
of the transfer? After reviewing past case authority, Loo J. held that
the Court lacked jurisdiction to issue habeas corpus since the petitioner
H was at the time lawfully detained. In such circumstances, the proper
procedure would be for H to challenge the underlying decision by judicial
review under s18 of the Federal Court Act, as an application for a writ
of certiorari can be made by the Federal Court before an applicant is
transferred. |
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