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This was an appeal by the Attorney General from a judgment of the Superior
Court of Quebec granting the issuance of a writ of habeas corpus in relation
to S’s involuntary transfer from a medium security penitentiary to a maximum
security penitentiary. S was transferred on an emergency basis pursuant
to s13 of the CCR Regulations, which provides
that the normal procedures set out in s12 giving an inmate prior notice and an opportunity
to prepare representations do not apply where it is determined that it
is necessary to immediately transfer an inmate for the security of the
penitentiary or the safety of the inmate or any other person. Subsection 13(2) of the Regulations, however,
provides that prison officials must within two working days after the
transfer explain the reasons for the transfer and give the inmate an opportunity
to make representations, and give to the inmate within five working days
after the final decision written notice of the final decision as well
as reasons. In the case of S, the emergency transfer was executed on the
grounds that he was alleged to have been a leader of a group of inmates
practicing methods of intimidation and control, by way of physical threats
and violence, within a wing of the penitentiary. S did not avail himself
of the internal grievance procedure prior to applying for habeas corpus.
In allowing the petition, the superior court judge ruled that there was
no emergency because the initial intent of the prison authorities was
to have S placed in a protective segregation unit. That would have entitled
him to disclosure of the alleged facts and allowed him to present his
own arguments. It was the judge’s view that the argument that segregation
units were occupied was not sufficient to justify an immediate transfer,
and thus the transfer was illegal. On appeal, the Attorney General raised
the three following issues: 1) Should the application for habeas corpus
be dismissed on the grounds that S had not previously exhausted the other
remedies available to him? 2) Was the transfer and the increase in security
classification carried out in compliance with the Act and the principles
of fundamental justice? 3) Did the trial judge err in ruling that no emergency
situation existed which justified the immediate transfer of S pursuant
to s13 of the CCR Regulations? |
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In allowing the appeal Rousseau-Houle J.A. of the Court of Appeal discussed the availability of habeas corpus. As opposed to other extraordinary remedies, habeas corpus is remedy as of right once evidence has led the Court to conclude that the applicant has been illegally deprived of his liberty. Yet, even if the remedy of habeas corpus is not discretionary, it will nevertheless be refused if the applicant has not exhausted all his avenues of appeal. In the same manner, habeas corpus may not be used redundantly with the system of judicial review. However, the enactment of the Charter has had the effect of expanding the scope of habeas corpus. The Supreme Court of Canada has ruled that the rules of common law governing habeas corpus motions should be applied in a flexible manner if the applicant has demonstrated that continued detention breaches the principles of fundamental justice recognized under the Charter. The possibility of recourse to habeas corpus as a remedy under paragraph 24(1) of the Charter thus allows the Courts a wider latitude when the application is truly of a constitutional nature. In this case, the Court of Appeal held that there was no breach of the Charter or negation of principles of fundamental justice and that the superior court judge should not have granted the application for the issue of a writ of habeas corpus. The record showed that CSC officials complied with the relevant statutory requirements of an emergency transfer. While the final decision-maker reviewed all the documentation included in the record except for Preventative Security Reports, this omission was insufficient alone to invalidate his decision due to the quantity of information that he otherwise reviewed. The duty of the decision-maker was to ensure that information upon which he relied to act was trustworthy and convincing and to decide whether it was fair to use it in coming to his decision. The Court of Appeal was of the opinion that he fulfilled his duty and consequently that there was no breach of the duty to respect procedural fairness at the time the transfer decision was made. In the case of assignment or change of the security classification, Parliament did not provide for the inmate having the opportunity to present his observations prior to the decision. The very nature of a prison institution requires officers to make “on the spot” decisions and judicial review should therefore be exercised with restraint. The fact that a decision, due to its nature or its urgency, may be taken without notice and without prior hearing does not mean that there necessarily has been a failure to grant a fair hearing. While the decision-maker who confirmed the transfer did not have the power to change S’s security classification, a decision that the transfer was unjust would have necessarily required a reassessment of the security classification. As the record does not disclose any extraordinary circumstances allowing for the conclusion that the statutory procedure was not appropriate and that the requirements of fundamental justice required immediate recourse to habeas corpus, it was not appropriate to apply the wider scope of review by way of writ of habeas corpus. The court record showed that CSC officials had the intent of transferring S whether by regular procedure or by emergency procedure and that the grounds for transfer raised were well founded. The non-availability of segregation units was not the ground underlying immediate transfer, but rather the factor which contributed to creating an emergency situation. The decision of the CSC was thus legal and it could not be quashed merely because the superior court judge would have ruled differently. Section 13 of the Regulations must be applied solely and exclusively for the purpose of ensuring the security of the penitentiary, that of an inmate or of any other person. This was the objective of the prison authorities in the present matter, and the reasonableness of the decision placed it beyond the ambit of any judicial review.
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