May et al. v. Ferndale Institution et al., (2005) 220 B.C.A.C. 1 (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), 220 B.C.A.C. 1 (SCC);2005 SCC 82

May v. Ferndale Institution (2005), 220 B.C.A.C. 1 (SCC);

    362 W.A.C. 1

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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] B.C.A.C. TBEd. DE.038

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; 37 O.A.C. 160, 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.