Habeas Corpus Law for Prison Administrators 2018 CanLIIDocs 246 Gerard Mitchell Case comment: Mission Institute v. Khela, [2014] 1 S.C.R. 502 2018 CanLIIDocs 246 [1] Habeas Corpus proceedings are the way in which prisoners can challenge the lawfulness of their confinement. [2] In the last few years federal penitentiary administrators have found themselves spending a lot of time and resources defending their decisions in habeas corpus proceedings before provincial superior courts. [3] The trend is likely to continue because the March 27, 2014 decision of the Supreme Court of Canada in the case of Mission Institute v. Khela, [2014] 1 S.C.R. 502 strongly supports a broad scope for habeas corpus review by affirming that provincial courts can assess both the procedural fairness and the reasonableness of a decision in order to determine if an individual’s detention is lawful. 2018 CanLIIDocs 246 [4] The Court also ruled that correctional authorities have significant disclosure obligations in an involuntary transfer context, and that information can only be withheld when the commissioner of Corrections or his or her representative has reasonable grounds to believe that should the information be released it might threaten the security of the prison, the safety of any person, or interfere with the conduct of an investigation. [5] Section 10(c) of the Canadian Charter of Rights and Freedoms guarantees everyone detained the right to have the validity of their detention determined by way of habeas corpus and to be released if the detention is not lawful. Everyone includes prisoners. [6] Prisoners have a Charter right not to be deprived of their residual liberties except in accordance with the principles of fundamental justice (s.7) and they have a Charter right not to be arbitrarily detained (s.9). Detentions are arbitrary if they are unlawful. [7] Decisions by prison officials that adversely impact an inmate’s residual liberty include, but are not limited to, administrative segregation, confinement in a special handling unit, and transfer to a higher security institution. [8] In the Khela decision the Supreme Court of Canada described habeas corpus as the strongest and most timely tool a prisoner has to ensure the deprivation of his liberty is not unlawful. The court also took notice of the importance of swift access to justice for those unjustly deprived of their liberty. [9] Sections 27 to 37 of the Corrections and Conditional Release Act (CCRA) set forth the statutory rights of prisoners and the statutory obligations of prison authorities with respect to these matters. Prison authorities must pay very strict attention to those provisions. [10] The Khela case involved an inmate who was involuntarily transferred on an emergency basis from the medium security of Mission Institution to the maximum- security facility at Kent Institution [11] Khela was serving a life sentence for first degree murder for hiring two men to carry out the 2002 killing of a school teacher. In 2004 he began serving his sentence at the maximum-security facility Kent Institution. After serving three years at Kent he was transferred to medium security Mission Institution. [12] In September 2009 another inmate was stabbed several times at Mission 2018 CanLIIDocs 246 Institution. A short time later prison officials received information implicating Khela in the stabbing. On February 2, 2010 the security intelligence office at Mission Institute completed a report which contained information that Khela has hired two other inmates to do the stabbing in exchange for three grams of heroin, [13] On February 4, 2010 Khela received an Assessment and Notice from prison authorities indicating a transfer back to maximum security. The Assessment indicated that the primary reason for the transfer was the security intelligence report and the culmination of the information it contained which included the identification of Khela as the person responsible for organizing the stabbing. The Assessment said the warden had come to this conclusion because of anonymous information received from three separate and distinct sources. [14] The Assessment did not contain detailed information with respect to the sources’ names, what they said or why they might be considered reliable. The Notice indicated that although Khela’s security classification based on the security reclassification scale was to be medium security, his case management team had recommended that classification should be overridden and increased to maximum. [15] On February 26, 2010 Khela submitted a written rebuttal to his transfer He also asked for disclosure of the following: (1) the scoring matrix used in determining his ranking in accordance with the security reclassification scale; (2) the security report; (3) information on why the sources should be considered reliable and; (4) how the warden determined they were reliable. 3 [16] On March 15, 2010 Khela received a document informing him that the warden’s final decision was to transfer him to maximum. Khela was also informed that the information received and assessed by the security intelligence officer was believed reliable because of the expertise and policies of the security intelligence officers. [17] On April 27, 2010 Khela filed a notice he would be making a habeas corpus application in the Supreme Court of British Columbia. His grounds for the application were that the transfer decision was unreasonable and procedurally unfair. [18] The application for habeas corpus was heard by a judge of the British Columbia Supreme Court on May 11, 2010. Ten days later the judge issued a decision granting the writ of habeas corpus and ordering that Khela be returned to the general population 2018 CanLIIDocs 246 of the medium security Mission Institution. The judge found that the warden had wrongly failed to disclose (1) the specific statements made by the anonymous sources; (2) the information concerning the reliability of those sources and: (3) the scoring matrix relied upon for the security reclassification scale. [19] The prison authorities appealed the judge’s decision to the British Columbia Court of Appeal. In substance, the Court of appeal upheld the decision of the superior court judge. The prison authorities then appealed to the Supreme Court of Canada. [20] At the Supreme Court of Canada, the prison authorities argued that (1) a provincial superior court lacked jurisdiction to assess the reasonableness of decisions made by prison authorities and; (2) that the prison authorities had made sufficient disclosure to Khela. The prison authorities also argued against habeas corpus proceedings on the grounds they took too long and cost too much. [21] The Supreme Court rejected the arguments made on behalf of prison authorities. Its judgment gave wide scope for prisoners to take habeas corpus proceedings in provincial superior courts to challenge decisions affecting their detention. [22] The Court said decisions by prison authorities that result in a reduction of a prisoner’s residual liberty will not be lawful if they (1) are made without jurisdiction, (2) are unreasonable or (3) are not procedurally fair. In an application for habeas corpus with certiorari in aid the provincial superior court has the power to review the record to see if it supports the decision of the prison authorities. 4 [23] The court said an inmate applicant for habeas corpus must establish: (1) that he or she has suffered a deprivation of residual liberty as the result of a prison official’s decision and (2) that there is a legitimate basis to question the lawfulness of that decision. If the applicant is successful in establishing both, the judge must conduct a hearing in which the onus will be on the prison authorities to show that (1) there was jurisdiction to make the decision, (2) that the decision was reasonable and; (3) that the procedure was fair. [24] A deprivation of liberty is only permissible if the prison officials can demonstrate that it is justified. The Supreme Court held that to meet the onus on them to justify a deprivation of liberty prison authorities have to establish (1) that the decision was 2018 CanLIIDocs 246 reasonable under all the circumstances and (2 ) that they had in a timely manner given the prisoner at least a summary of all the information, to be relied upon in the decision making process so that he or she had a reasonable opportunity to challenge it before the decision was made. [25] The Supreme Court said that if the inmate raises a legitimate doubt as to the reasonableness of a decision negatively impacting his residual liberty the judge of the superior court is required to examine the substance of the decision and determine whether the evidence presented by the detaining authorities is reliable and supports the decision. The court held a decision will be unreasonable if an inmate’s liberty interests are sacrificed absent any evidence or based on unreliable or irrelevant evidence or evidence that cannot support the conclusion. [26] The Supreme Court did caution that courts reviewing decisions for reasonableness must be careful not to micro-manage penitentiaries. A standard of reasonableness implies a measure of deference. On the other hand, when reviewing for procedural fairness the standard is correctness and on this there is no room for deference. [27] In the end the Supreme Court did not actually rule on the reasonableness of the decision in Khela’s case because it was unnecessary to do so in view of its ruling on the procedural fairness issue. The Supreme Court held that the prison authorities had not complied with the statutory disclosure requirements. As a result, the transfer decision was procedurally unfair and therefore unlawful. Accordingly, the appeal by the prison authorities was dismissed. 5 [28] Section 29 the CCRA authorizes inmate transfers. Sections 5(1)(b) and 13 of the Corrections and Conditional Review Regulations (CCRR) outline how this authority is to be exercised.