May et al. v. Ferndale Institution et al., (2005) 343 N.R. 69 (SCC)

• Judge: McLachlin, C.J.C., Major, Bastarache, Bin­nie, LeBel, Deschamps, Fish, Abella and Charron, JJ.
• Court: Supreme Court (Canada)
• Case Date: December 22, 2005
• Jurisdiction: Canada (Federal)
• Citations: (2005), 343 N.R. 69 (SCC);2005 SCC 82

May v. Ferndale Institution (2005), 343 N.R. 69 (SCC)

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[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

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Temp. Cite: [2005] N.R. TBEd. DE.033

Terry Lee May (appellant) v. Warden of Ferndale Institution, Warden of Mission Institution, Deputy Commissioner, Pacific Region, Correctional Service of Canada and Attorney General of Canada (respon­dents)

David Edward Owen (appellant) v. Warden of Ferndale Institution, Warden of Matsqui Institution, Deputy Commissioner, Pacific Region, Correctional Service of Canada and Attorney General of Canada (respon­dents)

Maurice Yvon Roy, Gareth Wayne Robinson and Segen Uther Speer-Senner (appellants) v. Warden of Ferndale Institution, Warden of Mission Institution, Dep­uty Commissioner, Pacific Region, Correc­tional Service of Canada and Attorney General of Canada (respondents) and Cana­dian Association of Elizabeth Fry Societies, John Howard Society of Canada and Brit­ish Columbia Civil Liberties Association (intervenors)

(30083; 2005 SCC 82; 2005 CSC 82)

Indexed As: May et al. v. Ferndale Institution et al.

Supreme Court of Canada

McLachlin, C.J.C., Major, Bastarache, Bin­nie, LeBel, Deschamps, Fish, Abella and Charron, JJ.

December 22, 2005.

Summary:

The five appellants were inmates serving life sentences for murder or manslaughter. A Correctional Service of Canada directive or­dered the review of the security classifica­tions of all inmates serving life sentences in minimum security institutions. A computer­ized reclassification scale (i.e., the Security Reclassification Scale or SRS) was used and pursuant thereto each inmate was involuntar­ily transferred to a medium security institu­tion from a minimum security institution. There were no allegations of misconduct on the part of the inmates. Each inmate applied for habeas corpus seeking to be transferred back to the minimum security facility and from the outset requested the scoring matrix for the SRS, but were told that it was un­available.

The British Columbia Supreme Court (i.e., a chambers judge of the provincial superior court), in a decision reported at [2001] B.C.T.C. 1335, dismissed all five applica­tions. The chambers judge held that it had jurisdiction to review the transfer of federal prisoners, holding that provincial superior courts had retained concurrent jurisdiction with the Federal Court 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 s. 2 of the Fed­eral Court Act. The chambers judge, how­ever, dismissed the applications holding that the inmates had not made out their allega­tions of nondisclosure and that the transfers had not been made ar­bi­trarily in the absence of or in excess of jurisdiction. The inmates appealed.

The British Columbia Court of Appeal, in a decision reported 188 B.C.A.C. 23; 308 W.A.C. 23, dismissed the appeals. The court held that the chambers judge should have de­clined to exercise habeas corpus jurisdic­tion because there was no reasonable expla­nation as to why the inmates failed to pursue judi­cial review in the Federal Court. As to the substantive issue, the court found no error in the chambers judge's conclusion that there were no procedural flaws which would en­title the inmates to an order for habeas cor­pus. The inmates appealed and moved to sub­mit the cover page of a scored copy of an assessment and a current version of the scor­ing matrix as new evidence. At issue was the right of federal prisoners to chal­lenge the le­gality of their detention by way of habeas corpus in provincial superior courts and whether the inmates were unlaw­fully de­prived of their liberty.

The Supreme Court of Canada Charron, Ma­jor and Bastarache, JJ., dissenting, al­lowed the appeal. The court granted the mo­tion to adduce new evidence and allowed the habeas corpus applications. The transfer de­ci­sions were declared null and void. The court held that the Federal Court and the pro­vincial superior courts had concurrent jurisdiction to consider habeas corpus appli­cations brought by feder­al prisoners. Here the provincial superior court proper­ly exer­cised its habeas corpus jurisdiction. This was not one of the limited circum­stances pursu­ant to which a superior court should decline to exercise its jurisdiction (i.e., this was not a criminal matter where a statute conferred jurisdiction on a court of appeal to correct errors of a lower court and release the appli­cant if necessary, nor was it a situation where there was in place a com­plete, com­pre­hensive and expert procedure for review of an administrative decision, the Corrections and Corrections and Conditional Release legis­la­tion not constituting such a scheme). How­­ever, the court held that the inmates were unlawfully deprived of their liberty. The correctional authorities breached the duty of procedural fairness by not disclosing the scoring matrix. The auth­orities did not com­ply with their statutory duties of disclos­ure under s. 27(1) of the Corrections and Con­di­tional Release Act.

Administrative Law - Topic 608

The hearing and decision - Disclosure by tri­bunal - To parties of material used or relied upon by the tribunal in making its de­cision - The Supreme Court of Canada dis­cussed the disclosure requirements imposed by the Charter in the criminal con­text as recognized in R. v. Stinchcombe (1991) - The court stated that the Stinch­combe principles did not apply in the ad­ministrative context but went on to discuss the duty of disclosure obligations in the administrative context (i.e., statutory obli­gations and procedural fairness which im­posed informational burdens on the parties involved) - See paragraphs 88 to 120.

Administrative Law - Topic 608

The hearing and decision - Disclosure by tribunal - To parties of material used or relied upon by the tribunal in making its decision - [See first Courts - Topic 4023 ].

Administrative Law - Topic 2266

Natural justice - The duty of fairness - What constitutes procedural fairness - [See first Courts - Topic 4023 ].

Civil Rights - Topic 3176

Trials - Due process, fundamental justice and fair hearings - Administrative and non­criminal proceedings - General - [See first Administrative Law - Topic 608 ].

Courts - Topic 4023

Federal Court of Canada - Jurisdiction - Trial Division - Prison inmates - Inmates serving life sentences in federal peniten­tiaries were involuntarily transferred from minimum to medium security institutions on the basis of a computerized re-classifi­cation scale - The inmates sought habeas cor­pus, alleging that they were denied pro­cedural fairness because the reclassification was done arbitrarily and because the scor­ing matrix was not dis­closed to them - The British Columbia Supreme Court (i.e., a chambers judge of the provincial superior court) held that it had jurisdiction to re­view the transfer of federal prisoners, but dismissed the appli­cations on the merits - The inmates appealed - The British Colum­bia Court of Appeal dismissed the appeal -The inmates appealed again - The Su­preme Court of Canada allowed the appeal - The court granted the applications for habeas corpus and a motion to adduce new evi­dence (i.e., the scoring matrix) - The court held that the chambers judge proper­ly ex­er­cised the court's habeas corpus juris­dic­tion, instead of declining jurisdic­tion in favour of the Federal Court - How­ever, the court held that the inmates were unlawfully deprived of their liberty - While the appli­cation of the clas­sification scheme was not arbitrary, the nondisclos­ure of the scoring matrix consti­tuted a major breach of the duty to dis­close in­herent in the requirement of pro­cedural fairness and a breach of stat­u­tory duty under s. 27(1) of the Correc­tions and Conditional Release Act - See para­graphs 1 to 121.

Courts - Topic 4023

Federal Court of Canada - Jurisdiction - Trial Division - Prison inmates - Inmates serv­ing life sentences for murder or man­slaughter in federal institutions were invol­untarily transferred from minimum security to medium security institutions - Each in­mate applied for habeas corpus - A cham­bers judge of the British Columbia Su­preme Court (i.e., a provincial superior court) held that the court had jurisdiction to review the transfer of federal prisoners on the basis that the provincial superior courts had retained concurrent jurisdiction with the Federal Court 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 s. 2 of the Federal Court Act - The jurisdictional issue made its way to the Supreme Court of Canada - The Su­preme Court of Canada held that the pro­vincial superior court properly exercised its habeas corpus jurisdiction - This was not one of the limited circum­stances pursu­ant to which a superior court should decline to exercise its juris­diction - In reaching its decision, the court reviewed and discussed five subjects: (1) the nature of habeas cor­pus; (2), the trilogy of cases (Miller, Car­dinal and Morin) respecting the concur­rent jurisdic­tion of the superior courts and the Federal Court; (3) the rise of a limited dis­cretion of superior courts to decline to ex­ercise their habeas corpus jurisdiction; (4) the expansion of the limited discretion to decline habeas corpus jurisdiction in the prison context by prov­incial courts of ap­peal; and (5) the need for and protection of federal prison­ers' access to habeas corpus -See para­graphs 18 to 75.

Courts - Topic 4023

Federal Court of Canada - Jurisdiction - Tri­al Division - Prison inmates - Inmates serving life sentences for murder or man­slaughter in federal institutions were invol­untarily transferred from minimum security to medium security institutions - Each in­mate applied for habeas corpus - At issue was whether the British Columbia Supreme Court (i.e., a provincial superior court) should have declined jurisdiction in favour of the Federal Court - The Supreme Court of Canada held that the Federal Court and the provincial superior courts had concur­rent jurisdiction respecting habeas corpus applications by federal prisoners - Here the provincial superior court properly exercised its habeas corpus jurisdiction - This was not one of the limited circumstances pursu­ant to which a superior court should de­cline to exercise its jurisdiction such as in criminal matter where a statute con­ferred jurisdic­tion on a court of appeal to correct errors of a lower court and release the ap­plicant if necessary or where there was in place a complete, comprehensive and ex­pert pro­cedure for review of an ad­min­istra­tive decision, the Corrections and Con­ditional Release legislation not being such a scheme - See paragraphs 18 to 72.

Courts - Topic 5600

Provincial courts - General - Concurrent and conflict­ing jurisdiction - General - [See second Courts - Topic 4023 ].

Habeas Corpus - Topic 1

General - The Supreme Court of Canada reviewed the history and nature of the writ of habeas corpus - See paragraphs 19 to 72.

Habeas Corpus - Topic 510

Jurisdiction to issue writ - General - Juris­diction of provincial superior courts over inmates in federal penitentiaries - [See all Courts - Topic 4023 ].

Habeas Corpus - Topic 510

Jurisdiction to issue writ - General - Juris­diction of provincial superior courts over in­mates in federal penitentiaries - The Su­preme Court of Canada stated that "the jur­is­prudence of this Court establishes that prisoners may choose to challenge the le­gality of a decision affecting their resid­ual liberty either in a provincial superior court by way of habeas corpus or in the Federal Court by way of judicial review. As a mat­ter of principle, a provincial superior court should exercise its jurisdic­tion when it is requested to do so. Habeas corpus jurisdic­tion should not be declined merely because another alternative remedy exists and would appear as or more con­venient in the eyes of the court. The option belongs to the applicant. Only in limited circum­­stances will it be appropriate for a provin­cial superior court to decline to exercise its habeas corpus jurisdiction. For instance, in criminal law, where a statute confers juris­diction on a court of appeal to correct the errors of a lower court and release the ap­pli­cant if need be, habeas corpus will not be available ... Jurisdiction should also be declined where there is in place a com­plete, comprehensive and expert procedure for review of an adminis­trative decision ..." - See paragraph 44.

Practice - Topic 9031

Appeals - Evidence on appeal - Admission of "new evidence" - Inmates serving life sentences for murder or manslaughter in federal institutions were involuntarily transferred from minimum security to me­dium security institutions - Each inmate applied for habeas corpus - The case made its way to the Supreme Court of Canada, where the inmates sought to introduce new evidence on appeal (i.e., the scoring matrix used by prison authorities in determining who to transfer) - The Supreme Court of Can­ada allowed the motion to admit new evi­dence where the evidence satisfied all the requirements of the Palmer test - The court noted that: (1) the inmates exercised due diligence; (2) the new evidence went to the heart of a fundamental issue, i.e., procedural fairness; (3) the prison author­ities did not contest the credibility of the information; (4) the correction authorities were less than forthcoming about the exist­ence and function of the scoring matrix; and (5) the information might have af­fected the chambers judge's decision on the habeas corpus application - See para­graphs 106 to 108.

Prisons - Topic 1026

Administration - Powers re prisoners - Transfers - [See all Courts - Topic 4023 and second Habeas Corpus - Topic 510 ].

Cases Noticed:

R. v. Miller, [1985] 2 S.C.R. 613; 63 N.R. 321; 14 O.A.C. 33, applied. [para. 9].

Spindler et al. v. Millhaven Institution (Warden) (2003), 175 O.A.C. 251; 15 C.R.(6th) 183 (C.A.), disapproved [para. 11].

Hickey v. Kent Institution (Director) et al. (2003), 176 B.C.A.C. 272; 290 W.A.C. 272; 2003 BCCA 23, disapproved [para. 12].

Cardinal and Oswald v. Kent Institution (Director), [1985] 2 S.C.R. 643; 63 N.R. 353, appld. [para. 18].

Morin v. National Special Handling Unit Review Committee, [1985] 2 S.C.R. 662; 63 N.R. 363, appld. [para. 18].

Jones v. Cunningham (1962), 371 U.S. 236, refd to. [para. 21].

Martineau v. Matsqui Institution Dis­cipli­nary Board, [1980] 1 S.C.R. 602; 30 N.R. 119, refd to. [para. 25].

Trepanier, Re (1885), 12 S.C.R. 111, refd to. [para. 36].

Sproule, Re (1886), 12 S.C.R. 140, refd to. [para. 36].

Goldhar v. R., [1960] S.C.R. 431, refd to. [para. 36].

Morrison v. R., [1966] S.C.R. 356, refd to. [para. 36].

Karchesky v. R., [1967] S.C.R. 547, refd to. [para. 36].

Korponay v. Kulik, [1980] 2 S.C.R. 265, refd to. [para. 36].

Gamble v. R., [1988] 2 S.C.R. 595; 89 N.R. 161; 31 O.A.C. 81, refd to. [para. 37].

Pringle v. Fraser, [1972] S.C.R. 821, dist. [para. 39].

Peiroo v. Minister of Employment and Immigration (1989), 34 O.A.C. 43; 69 O.R.(2d) 253 (C.A.), leave to appeal denied, [1989] 2 S.C.R. x; 104 N.R. 319, dist. [para. 39].

Reza v. Minister of Employment and Immigration, [1994] 2 S.C.R. 394; 167 N.R. 282; 72 O.A.C. 348, refd to. [para. 40].

Steele v. Mountain Institution, [1990] 2 S.C.R. 1385; 121 N.R. 198, consd. [para. 41].

Idziak v. Canada (Minister of Justice), [1992] 3 S.C.R. 631; 144 N.R. 327; 59 O.A.C. 241, consd. [para. 43].

Bernard v. Kent Institution (Warden) et al., [2003] B.C.A.C. Uned. 6; 2003 BCCA 24, refd to. [para. 46].

Dumas v. National Parole Board, [1986] 2 S.C.R. 459; 72 N.R. 61; 3 Q.A.C. 133, refd to. [para. 76].

Dumas v. LeClerc Institute - see Dumas v. National Parole Board.

Davidson v. Slaight Communications Inc., [1989] 1 S.C.R. 1038; 93 N.R. 183, refd to. [para. 77].

Hay v. National Parole Board (1985), 21 C.C.C.(3d) 408 (F.C.T.D.), refd to. [para. 80].

Cunningham v. Canada, [1993] 2 S.C.R. 143; 151 N.R. 161; 62 O.A.C. 243, refd to. [para. 82].

R. v. Stinchcombe, [1991] 3 S.C.R. 326; 130 N.R. 277; 120 A.R. 161; 8 W.A.C. 161, dist. [paras. 88, 125].

Ruby v. Royal Canadian Mounted Police et al., [2002] 4 S.C.R. 3; 295 N.R. 353; 2002 SCC 75, refd to. [para. 90].

Knight v. Board of Education of Indian Head School Division No. 19, [1990] 1 S.C.R. 653; 106 N.R. 17; 83 Sask.R. 81, refd to. [para. 90].

Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817; 243 N.R. 22, refd to. [para. 90].

Chiarelli v. Minister of Employment and Immigration, [1992] 1 S.C.R. 711; 135 N.R. 161, refd to. [para. 90].

Québec (Ministre de la Justice) v. Therrien, [2001] 2 S.C.R. 3; 270 N.R. 1; 2001 SCC 35, refd to. [para. 90].

Nicholson v. Haldimand-Norfolk Regional Board of Commissioners of Police and Ontario (Attorney General), [1979] 1 S.C.R. 311; 23 N.R. 410, refd to. [para. 94].

R. v. Palmer, [1980] 1 S.C.R. 759; 30 N.R. 181, refd to. [paras. 107, 133].

United States of America v. Shulman, [2001] 1 S.C.R. 616; 268 N.R. 115; 145 O.A.C. 201; 2001 SCC 21, refd to. [para. 107].

Public School Boards Association (Alta.) et al. v. Alberta (Attorney General) et al., [2000] 1 S.C.R. 44; 251 N.R. 1; 250 A.R. 314; 213 W.A.C. 314; 2000 SCC 2, refd to. [para. 107].

Statutes Noticed:

Canadian Charter of Rights and Freedoms, 1982, sect. 10(c) [para. 22].

Corrections and Conditional Release Act, S.C. 1992, c. 20, generally [para. 52]; sect. 27(1) [para. 95]; para. 27(3) [para. 96].

Federal Courts Act, R.S.C. 1985, c. F-7, sect. 18(1), sect. 18(2) [para. 29].

Authors and Works Noticed:

Duker, William F., A Constitutional His­tory of Habeas Corpus (1980), p. 25 [para. 19].

Jackson, Michael, Justice Behind the Walls: Human Rights in Canadian Prisons (2002), pp. 47 to 50 [para. 23].

Jackson, Michael, Prisoners of Isolation: Solitary Confinement in Canada (1983), p. 82 [paras. 23, 24].

Mullan, David J., Administrative Law (2001), p. 481 [para. 71].

Sharpe, Robert J., The Law of Habeas Corpus (2nd Ed. 1989), pp. 19 [para. 20]; 23 [para. 21]; 58 [paras. 33, 71]; 59 [paras. 34, 35]; 60 [para. 35]; 86 to 88 [para. 71].

Counsel:

Ann H. Pollak, for the appellants, Terry Lee May and David Edward Owen;

Donna M. Turko, for the appellants, Mau­rice Yvon Roy, Gareth Wayne Robinson and Segun Uther Speer-Senner;

Roslyn J. Levine, Q.C., and Donald A. MacIntosh, for the respondents;

Elizabeth Thomas and Allan Manson, for the intervenors, the Canadian Association of Elizabeth Fry Societies and the John Howard Society of Canada;

Michael Jackson, Q.C., for the intervenor, the British Columbia Civil Liberties As­so­ciation.

Solicitors of Record:

Ann H. Pollak, Vancouver, British Columbia, for the appellants, Terry Lee May and David Edward Owen;

Donna M. Turko, Vancouver, British Columbia, for the appellants, Maurice Yvon Roy, Gareth Wayne Robinson and Segun Uther Speer-Senner;

Justice Canada, Toronto, Ontario, for the respondents;

Elizabeth Thomas, Kingston, Ontario, for the intervenors, the Canadian Association of Elizabeth Fry Societies and the John Howard Society of Canada;

Michael Jackson, Vancouver, British Columbia, for the intervenor the British Columbia Civil Liberties Association.

This appeal was heard on May 17, 2005, before McLachlin, C.J.C., Major, Bastarache, Binnie, LeBel, Deschamps, Fish, Abella and Char­ron, JJ., of the Supreme Court of Can­ada.

The judgment of the Supreme Court of Can­ada was delivered in both official lan­guages on December 22, 2005, and the fol­low­ing opinions were filed:

LeBel and Fish, JJ. (McLachlin, C.J.C., Binnie, Deschamps, and Abella, JJ., concurring) - see paragraphs 1 to 121;

Charron, J., dissenting (Major and Bas­ta­rache, JJ., concurring) - see para­graphs 122 to 140.