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The CSC had approved an involuntary transfer of the applicant L from a maximum-security institution to the SHU. The principal reason for the transfer decision was the belief on the part of the Deputy Commissioner that L was involved in the murder of a fellow inmate. The Deputy Commissioner held this belief despite the fact that L had been acquitted, and another inmate convicted, of the murder. L submitted an application to the Court for a stay of the decision to transfer pending an application for judicial review. In allowing this application Wetston J. considered the generally accepted tripartite test for a stay. Firstly, has the applicant demonstrated that there is a serious issue? This more or less involves a preliminary assessment of the case, not whether the applicant will be successful ultimately. In demonstrating serious concerns over the reasonableness of the decision and alleged violations of the principles of fundamental justice, Wetston J. held that L had satisfied the first part of the test. The second question is whether the applicant would suffer irreparable harm if the stay is denied? Wetston J. agreed with L in that a transfer to the SHU would jeopardize his chances of early release on day parole, a harm that is beyond merely speculative. Thirdly, in whose favour does the balance of convenience lie? Considering that prisoners may spend considerable amounts of time in the SHU before they are transferred back to a maximum security institution, and in light of the fact that the staff at the maximum penitentiary where L was located did not view L as a problem, Wetston J. concluded that the balance of convenience favoured the applicant. Wetston J. ordered that the application for a stay of the decision to transfer be granted until such time as the application for judicial review is heard and finally determined.
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