| In
dismissing the appeal, Le Dain J. declared 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 s2 of the Federal Court
Act. There can be no doubt that certiorari in aid is important, if not
essential, to the effectiveness of habeas corpus. In many cases it may
not be possible for a court to determine whether there has been an absence
or excess of jurisdiction if the record of the tribunal that imposed or
authorized the detention is not brought before it. The importance of habeas
corpus itself, and by implication the importance of maintaining it as
a fully effective remedy is given particular emphasis by its inclusion
as a guaranteed right in s2(c)(iii) of the Canadian Bill of Rights. To
this recognition may be added the constitutional guarantee of the right
to habeas corpus in s10(c) of the Charter. It was Le Dain J.'s
opinion that because of the clear intention to leave the habeas corpus
jurisdiction over federal authorities with the provincial superior courts
and the importance of certiorari in aid to the effectiveness of habeas
corpus, it cannot have been intended that the reference to certiorari
in s18 of the Federal Court Act should have the effect of undermining
or weakening the habeas corpus jurisdiction of the provincial superior
courts by the exclusion or denial of certiorari in aid. Certainly such
a construction is to be avoided if at all possible. It can be avoided
by the application of the distinction between certiorari as an independent
and separate mode of review having its object to quash the decision of
an inferior tribunal and certiorari as an ancillary procedure used to
serve an essentially evidentiary purpose. Applying the distinction to
the reference to certiorari in s18 of the Federal Court Act, it is reasonable
to conclude, because of the association in that section of certiorari
with the other prerogative and extraordinary remedies, that the reference
is to the independent remedy of certiorari to quash. It is unlikely that
Parliament intended to confer an exclusive jurisdiction to issue certiorari
in aid when it had clearly withheld the jurisdiction to issue habeas corpus.
Le Dain J. was also of the opinion that, subject to the limitation arising
from the conclusive character of the records of courts of superior or
general common law jurisdiction, a court may on an application for habeas
corpus without certiorari in aid consider affidavit or other extrinsic
evidence to determine whether there has been an absence or excess of jurisdiction.
Turning to the question of whether habeas corpus should lie to determine
the validity of the confinement of an inmate in the SHU, Le Dain J. declared
that such confinement, or administrative segregation, is a form of detention
that is distinct and separate from that imposed on the general inmate
population. It involves a significant reduction in the residual liberty
of the inmate. It is in fact a new detention of the inmate, purporting
to rest on its own foundation of legal authority. It is that particular
form of detention or deprivation of liberty that is the object of the
challenge by habeas corpus. It is release from that form of detention
that is sought. There is no sound reason in principle, having to do with
the nature and role of habeas corpus, why habeas corpus should not be
available for that purpose. Le Dain J. does not say that habeas corpus
should lie to challenge any and all conditions of confinement in a penitentiary
or prison, including the loss of any privileges enjoyed by the general
inmate population. But it should lie in Le Dain J.'s opinion 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. |
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