Richards v. Springhill Institution (Warden) et al., 2015 NSCA 40

• Judge: Fichaud, Beveridge and Bryson, JJ.A.
• Court: Court of Appeal of Nova Scotia (Canada)
• Case Date: April 30, 2015
• Jurisdiction: Nova Scotia
• Citations: 2015 NSCA 40;(2015), 359 N.S.R.(2d) 59 (CA)

Richards v. Springhill Institution (2015), 359 N.S.R.(2d) 59 (CA);

    1133 A.P.R. 59

MLB headnote and full text

Temp. Cite: [2015] N.S.R.(2d) TBEd. MY.001

Warden (Springhill Institution), Correctional Service of Canada, and the Attorney General of Canada (appellants) v. Ryan Richardo Richards (respondent)

Warden (Springhill Institution), Correctional Service of Canada, and the Attorney General of Canada (appellants) v. Ryan Richardo Richards (respondent)

Warden (Springhill Institution), Correctional Service of Canada, and the Attorney General of Canada (appellants) v. Shawn Peters (respondent)

(CA 426372; CA 426375; CA 425346; 2015 NSCA 40)

Indexed As: Richards v. Springhill Institution (Warden) et al.

Nova Scotia Court of Appeal

Fichaud, Beveridge and Bryson, JJ.A.

April 30, 2015.

Summary:

An inmate in a Nova Scotia institution (Richards) was reclassified from a medium to maximum security risk. As a transfer to a New Brunswick institution was pending, the inmate applied for habeas corpus, challenging the reclassification. A Chambers judge declined the inmate's request to stay the transfer pending the hearing of the habeas corpus application. The inmate was transferred to a New Brunswick institution prior to the habeas corpus application being heard. The respondents, as a preliminary matter, argued that the Nova Scotia courts lacked territorial competence to hear the application. Alternatively, the respondents argued that the court should decline jurisdiction in favour of the Federal Court (judicial review) or the New Brunswick courts (new habeas corpus application). A second inmate (Peters) was also reclassified and scheduled to be transferred out of Nova Scotia. His transfer was stayed pending the hearing of the habeas corpus application.

The Nova Scotia Supreme Court, in a judgment reported (2014), 342 N.S.R.(2d) 8; 1083 A.P.R. 8, applying the real and substantial connection test, held that it had territorial competence notwithstanding Richards' transfer out of Nova Scotia. The court chose not to decline jurisdiction in favour of the Federal Court or the New Brunswick courts.

The Nova Scotia Supreme Court, in a judgment reported (2014), 342 N.S.R.(2d) 21; 1083 A.P.R. 21, allowed the habeas corpus application and reinstated Richards' medium security classification. The inmate was not afforded procedural fairness and the decision was unreasonable. Correctional Services Canada was directed to forthwith transfer Richards to a medium security institution. In a judgment not reported in this series of reports, the court dismissed Peters' habeas corpus application. In both cases, the Springhill Institution and the provincial Attorney General appealed. At issue was: (1) whether the court had jurisdiction to hear a habeas corpus application where the inmate was no longer in Nova Scotia; (2) whether the court had jurisdiction to order that an inmate applying for habeas corpus not be removed from the jurisdiction pending the hearing of the application; and (3) whether it was proper to name the Correctional Service of Canada (CSC) as a party. Peters chose not to participate in the appeal.

The Nova Scotia Court of Appeal held that the court had jurisdiction to hear a habeas corpus application where an inmate was no longer in Nova Scotia and to order that an inmate applying for habeas corpus not be removed from the jurisdiction pending the hearing of the application. It was proper to name the Correctional Service of Canada (CSC) as a party. However, the court declined to hear the appeal respecting Richards. Pursuant to the Liberty of the Subject Act, an inmate had a right of appeal, but the Attorney General did not.

Conflict of Laws - Topic 603

Jurisdiction - General principles - Jurisdiction simpliciter - [See Conflict of Laws - Topic 620 ].

Conflict of Laws - Topic 620

Jurisdiction - General principles - Habeas corpus applications - An inmate (Richards) in a Nova Scotia institution was reclassified by the Correctional Service of Canada (CSC) from a medium to maximum security risk - As a transfer to a New Brunswick institution was pending, the inmate applied for habeas corpus, challenging the reclassification - A Chambers judge declined the inmate's request to stay the transfer pending the hearing of the habeas corpus application - The judge held that the court lacked jurisdiction - The inmate was then transferred before the habeas corpus application was heard - The respondents, as a preliminary matter, argued that the Nova Scotia courts lacked territorial competence to hear the application - Alternatively, the respondents argued that the court should decline jurisdiction in favour of the Federal Court (judicial review) or the New Brunswick courts (new habeas corpus application) - The trial judge, on the basis of a real and substantial connection between Nova Scotia and the matter at issue, held that it had territorial competence respecting the habeas corpus application - Finding Nova Scotia to be the forum conveniens, the court chose not to decline jurisdiction in favour of the Federal Court or the New Brunswick courts - The court stated that to accede to the respondent's argument would allow decision makers to preclude any habeas corpus application by simply transferring the inmate out of province before the habeas corpus application was heard - That would result in injustice - Allowing the habeas corpus application would result in a remedy of reinstating the medium security risk classification, which would follow the inmate wherever he was incarcerated - Accordingly, the Nova Scotia court was not required to impose an order on the warden of an institution outside of Nova Scotia - The Nova Scotia Court of Appeal agreed, stating that "the Supreme Court of Nova Scotia had jurisdiction to hear Mr. Richards' application when it was filed, and did not necessarily lose it by CSC transferring him out of Nova Scotia. Whether Nova Scotia can or should retain jurisdiction depends on the circumstances. In Mr. Richards' circumstances, the application judge made no error in her ruling to retain jurisdiction." - See paragraphs 59 to 122.

Courts - Topic 2004

Jurisdiction - General principles - Inherent jurisdiction - [See Prisons - Topic 1026 ].

Courts - Topic 2286

Jurisdiction - Bars - Academic matters or moot issues - [See Practice - Topic 8858 ].

Courts - Topic 6026

Provincial courts - Nova Scotia - Supreme Court - Jurisdiction - Inherent - [See Prisons - Topic 1026 ].

Habeas Corpus - Topic 510

Jurisdiction to issue writ - General - Jurisdiction of provincial superior courts over inmates in federal penitentiaries - [See Conflict of Laws - Topic 620 ].

Habeas Corpus - Topic 3002

Practice - General principles - Parties - The Nova Scotia Court of Appeal rejected an argument that the Correctional Service of Canada (CSC) was not a proper party to a habeas corpus application - The court stated that "Many times, the exact name of a person who has made a decision impacting the residual liberty of an inmate may not be known. What is obvious to all is that such decisions are the responsibility of the CSC, and are made in its name. It is the decision-making authority, and is a proper party. ... there is also ample authority for the proposition that a government agency or department is a legal entity for the purposes of asking courts for relief by way of prerogative writs. ... Not only is CSC a proper respondent as the statutory authority responsible for the care and custody of inmates and for assigning a security classification for each inmate, there is much to be said for the practice of simply naming CSC and the Attorney General of Canada as respondents - or the Attorney General of Canada, representing the Correctional Service of Canada." - See paragraphs 145 to 160.

Habeas Corpus - Topic 3281

Practice - Appeals - Right of appeal - [See Habeas Corpus - Topic 3284 ].

Habeas Corpus - Topic 3284

Practice - Appeals - Jurisdiction - An inmate at Springhill Institution in Nova Scotia (medium security) was reclassified as a maximum security inmate, which required transfer out of Nova Scotia (no maximum security institution) - He sought habeas corpus, but was transferred to New Brunswick (Renous) prior to his habeas corpus application being heard - The habeas corpus application was allowed - Another inmate, whose transfer was precluded by an interlocutory order, had his habeas corpus application dismissed - The Springhill Institution and the provincial Attorney General appealed - At issue was whether the court had jurisdiction to hear a habeas corpus application where the inmate had been transferred out of province and whether a court had jurisdiction to order that an inmate not be transferred pending his hearing - The Nova Scotia Court of Appeal held that the court had jurisdiction to grant leave to appeal and hear the appeals respecting the interlocutory orders respecting both inmates - However, the court declined to hear the transferred inmate's appeal - Appeals were statutory - A Notice of Appeal (rule 90.06(1)(c)) and Applications for Leave to Appeal (rule 90.09) both required the identification of the statutory authority for the appeal - Neither did so - Section 38(1) of the Judicature Act (broad provision authorizing appeals from the Supreme Court) did not provide legislative sanction for an appeal to the Court of Appeal by the Attorney General from a successful habeas corpus application - Section 14(1) of the Liberty of the Subject Act gave an inmate a right to appeal from an unsuccessful habeas corpus application, but the Attorney General a right to appeal a successful habeas corpus application - In Nova Scotia, an inmate had a right of appeal - The Attorney General did not - See paragraphs 161 to 220.

Practice - Topic 8858

Appeals - Bar or loss of right of appeal - Moot issues - Two inmates at Springhill Institution in Nova Scotia (medium security) were reclassified as maximum security inmates, which required transfer out of Nova Scotia (no maximum security institution) - Both sought habeas corpus - One inmate was transferred to New Brunswick (Renous) prior to his habeas corpus application being heard - The other remained in Nova Scotia following a court order that he not be transferred out of Nova Scotia pending the hearing of his application - One inmate's application was allowed - The other inmate's application was dismissed - The Springhill Institution and the provincial Attorney General appealed - At issue was whether the court had jurisdiction to hear a habeas corpus application where the inmate had been transferred out of province and whether a court had jurisdiction to order that an inmate not be transferred pending his hearing - There remained no "live" controversy respecting the two inmates (one was reclassified back to medium security and the other no longer challenged his reclassification) - The Attorney General sought to have the court hear the appeals notwithstanding that they were moot - The Nova Scotia Court of Appeal held that both lower court rulings were jurisdictional and dealt with circumstances of a "recurring nature but brief duration" - There were conflicting decisions on the issues raised - The circumstances of applications such as these "can change quickly and will likely be moot before an appellate court can review the lower court's decision" - These types of cases were "capable of repetition, yet evasive of review" - The court exercised its discretion to hear the appeals notwithstanding that they were moot - See paragraphs 50 to 58.

Prisons - Topic 1026

Administration - Powers re prisoners - Transfers - An inmate in the Nova Scotia Springhill Institution (medium security) was reclassified as a maximum security inmate - The inmate applied for habeas corpus, challenging the lawfulness of his reclassification, which would result in his transfer to a maximum security institution outside of Nova Scotia - A judge granted an interlocutory order precluding the inmate's transfer out of Nova Scotia pending the hearing of the habeas corpus application - The Attorney General challenged the court's jurisdiction to do so, arguing that the order was beyond what a superior court could order on a habeas corpus application, only the Federal Court had jurisdiction to grant such an interlocutory injunction and the order prevented Correctional Service of Canada from fulfilling its statutory obligations - The Nova Scotia Court of Appeal held that both the provincial Liberty of the Subject Act and Civil Procedure Rule 7.14 gave the judge jurisdiction to make such an interlocutory order precluding an inmate's transfer pending the hearing of a habeas corpus application - The court stated that "Even if it could be said that these provisions could not be relied upon to source jurisdiction, the amicus makes an attractive submission that the inherent jurisdiction of the Nova Scotia Supreme Court would be a well into which one would not have to dip deeply to find the necessary authority to make orders that ensure timely and effective access to the Charter protected right to have the validity of detention determined by way of habeas corpus ." - There was no error in precluding the transfer to avoid any frustration or delay in the inmate's habeas corpus application being heard - The Federal Court's jurisdiction over federal decision makers did not detract from the Nova Scotia court's power to make an order ensuring that the habeas corpus application was heard without delay - The argument that the interim order interfered with CSC fulfilling its statutory obligations was rejected - See paragraphs 123 to 144.

Cases Noticed:

Muscutt et al. v. Courcelles et al. (2002), 160 O.A.C. 1; 60 O.R.(3d) 20 (C.A.), refd to. [para. 27].

Borowski v. Canada (Attorney General), [1989] 1 S.C.R. 342; 92 N.R. 110; 75 Sask.R. 82, refd to. [para. 52].

Khela v. Mission Institution (Warden) et al. (2014), 455 N.R. 279; 351 B.C.A.C. 91; 599 W.A.C. 91; 2014 SCC 24, refd to. [para. 52].

Bradley v. Canada (Attorney General) (2012), 315 N.S.R.(2d) 359; 998 A.P.R. 359; 2012 NSSC 173, refd to. [para. 58].

Nodrick v. Correctional Service of Canada et al. (2014), 341 N.S.R.(2d) 164; 1081 A.P.R. 164; 2014 NSSC 93, refd to. [para. 58].

Bell v. Director of the Springhill Medium Security Institution et al. (1977), 19 N.S.R.(2d) 216; 24 A.P.R. 216 (C.A.), refd to. [para. 61].

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

May et al. v. Ferndale Institution et al. (2005), 343 N.R. 69; 220 B.C.A.C. 1; 362 W.A.C. 1; 2005 SCC 82, refd to. [para. 64].

R. v. Secretary of State for Home Affairs (ex parte O'Brien), [1923] 2 K.B. 361 (C.A.), appeal dismissed [1923] A.C. 603 (H.L.), refd to. [para. 70].

Wilson v. Canada (Attorney General) (2011), 310 N.S.R.(2d) 325; 983 A.P.R. 325; 2011 NSCA 116, refd to. [para. 86, footnote 2].

Ross v. Riverbend Institution (Warden) (2008), 310 Sask.R. 9; 423 W.A.C. 9; 2008 SKCA 19, refd to. [para. 86, footnote 2].

Penny v. Bouch et al. (2009), 281 N.S.R.(2d) 238; 893 A.P.R. 238; 2009 NSCA 80, leave to appeal refused (2010), 406 N.R. 387 (S.C.C.), refd to. [para. 88, footnote 3].

Bonamy v. R. (1999), 130 B.C.A.C. 11; 211 W.A.C. 11; 1999 BCCA 487, refd to. para. 101].

Gamble v. R., [1988] 2 S.C.R. 595; 89 N.R. 161; 31 O.A.C. 81, refd to. [para. 101].

Canadian Human Rights Commission v. Canadian Liberty Net et al., [1998] 1 S.C.R. 626; 224 N.R. 241, refd to. [para. 140].

Jabour v. Law Society of British Columbia et al., [1982] 2 S.C.R. 307; 43 N.R. 451, refd to. [para. 142].

Westlake et al. v. Ontario, [1971] 3 O.R. 533 (H.C.), affd. [1972] 2 O.R. 605 (C.A.), leave to appeal denied (1973), 33 D.L.R.(3d) 256 (S.C.C.), refd to. [para. 154, footnote 4].

Hollinger Bus Lines Ltd. v. Ontario Labour Relations Board, [1952] O.R. 366 (C.A.), refd to. [para. 154, footnote 4].

R. v. Meltzer and Laison, [1989] 1 S.C.R. 1764; 96 N.R. 391, refd to. [para. 162].

Cox v. Hakes (1890), 15 App. Cas. 506 (C.A.), refd to. [para. 166].

Secretary of State for Home Affairs v. O'Brien, [1923] A.C. 603 (C.A.), refd to. [para. 170].

Storgoff, Re, [1945] S.C.R. 526, refd to. [para. 179].

R. v. LaPierre (1976), 15 N.S.R.(2d) 361; 14 A.P.R. 361 (C.A.), refd to. [para. 181, footnote 5].

Superintendent of Her Majesty's Foxhill Prison et al. v. Kozeny, [2012] N.R. Uned. 44; [2012] UKPC 10, refd to. [para. 186, footnote 6].

R. v. MacKay (1956), 114 C.C.C. 107; 38 M.P.R. 91; 2 D.L.R.(2d) 358; 1956 CarswellNS 7 (C.A.), refd to. [para. 187].

MacKenzie, Re (1881), 14 N.S.R. 481, refd to. [para. 190].

Blair, Re (1891), 23 N.S.R. 225, refd to. [para. 190].

Mackey, Re (1918), 52 N.S.R. 165, refd to. [para. 190].

Hood, Re (1927), 59 N.S.R. 387, refd to. [para. 190].

Cardinal and Oswald v. Kent Institution (Director), [1985] 2 S.C.R. 643; 63 N.R. 353, refd to. [para. 207, footnote 7].

Finck et al. v. National Parole Board et al. (2008), 266 N.S.R.(2d) 337; 851 A.P.R. 337; 2008 NSCA 56, refd to. [para. 210].

Housen v. Nikolaisen et al. (2002), 286 N.R. 1; 219 Sask.R. 1; 272 W.A.C. 1; 2002 SCC 33, refd to. [para. 220, footnote 8].

Statutes Noticed:

Civil Procedure Rules (N.S.), rule 7.14 [para. 132].

Court Jurisdiction and Proceedings Transfer Act, S.N.S. 2003, c. 2, sect. 4 [para. 85]; sect. 12 [para. 94].

Judicature Act, R.S.N.S. 1989, c. 240, sect. 38(1) [para. 164]; sect. 40 [para. 219].

Liberty of the Subject Act, R.S.N.S. 1989, c. 253, sect. 2 [para. 129]; sect. 6, sect. 7 [para. 121]; sect. 14(1) [para. 196].

Rules of Civil Procedure (N.S.) - see Civil Procedure Rules (N.S.).

Rules of Court (N.S.) - see Civil Procedure Rules (N.S.).

Authors and Works Noticed:

Black, Vaughan, Pitel, Stephen, and Sobkin, Michael, Statutory Jurisdiction: An Analysis of the Court Jurisdiction and Proceedings Transfer Act (2012), generally [para. 84].

Farbey, J., Sharpe, R.J., and Atrill, S., The Law of Habeas Corpus (3rd Ed. 2011), pp. 195 to 197 [para. 69]; 227 [para. 208].

Harvey, Cameron, The Law of Habeas Corpus in Canada (1974), pp. 214 [para. 107]; 216 [para. 108].

Letourneau, Gilles, The Prerogative Writs in Canadian Criminal Law and Procedure (1976), p. 310 [para. 109].

Counsel:

Lori Rasmussen and Jill Chisholm, for the appellants;

Professor Alan Young, amicus curiae.

These appeals were heard on October 10, 2014, at Halifax, N.S., before Fichaud, Beveridge and Bryson, JJ.A., of the Nova Scotia Court of Appeal.

On April 30, 2015, Beveridge, J.A., delivered the following judgment for the Court of Appeal.