Mr. Trump and the Slippery Slope

The significance of Trump’s pledge, if he is elected, to appoint a special prosecutor to investigate charges against Hillary:

According to Time Magazine,US federal law implies that independent counsel can be appointed if the attorney general determines that an investigation by the Department of Justice “would present a conflict of interest for the department or other extraordinary circumstances” and “that under the circumstances, it would be in the public interest to appoint an outside special counsel,” .

The norm in a country governed by the Rule of Law is that the policing and prosecuting agencies independently decide whether to charge and prosecute – not politicians.

As the above passage says, appointing a special prosecutor- independent of the Department of Justice and the FBI – should occur only in extraordinary circumstances, such as when a conflict of interest occurs with respect to DOJ/FBI’s accountability. .

Such a conflict occurs where the prosecuting department is answerable to the person they would be asked to prosecute- e.g. White Water (Bill Clinton) or Watergate (Nixon).

Trump purports to say to can be used as an implement of power by the President where he does not like what the DOJ/FBI has already determined, where he believes they lack credibility.

Three dangers here:

1. The President could himself act in keeping with his own political interests
2. The President could take revenge on political opponents
3. ( the most alarming) The box would be open, the precedent set for future politics – the loser might lose their liberty as well as the election, truly a chilling effect on the willingness of people to become candidates.

Mr. Trump’s proposal is a paradigm shift into a potentially autocratic society

News on the “Pay Cuts” case

People have been asking what happened with the Federal Court application for judicial review regarding the Correctional Service of Canada decision, in October, 2013 to “increase offender accountability” by effectively their pay by 22% and eliminating pay for those who worked in CORCAN (prison industries).

The short answer is that the hearing on the matter will take place on February 6-8, 2017 in Montreal at the Palais de Justice.

Delays have occurred because of various motions and the compiling of voluminous documents by the Department of Justice (the Attorney General) and the five other lawyers representing prisoners.

I must say that I had hoped that the government would intervene to correct these very unjust measures since last October, but no news yet on that front.



Hebeas Corpus – Two steps forward……



Mission Institution v. Khela [2014] 1 SCR 502, which built on May v. Ferndale Institution [2005] 3 SCR 89, was greeted by prisoner advocates and the corrections bar as a significant advance in protecting inmates who are subjected to unlawful deprivations of liberty by the Correctional Service of Canada (CSC) – e.g. involuntary transfers to higher security and segregation

In the May/ Khela progression, the Supreme Court of Canada provided a number of important tools for combatting such decisions.

First, challenges to transfer and segregation decisions could be heard as Habeas Corpus applications in provincial superior courts, and not the Federal Court, which has a reputation of being more “deferential” to CSC decisions in such matters.

Second, direct access to superior courts relieved inmates from being required to exhaust the internal grievance procedure, which can take many months, before going to Court

Third, the procedural fairness of CSC decisions, whether they afforded the inmate an opportunity to respond to all information considered by CSC, wouldhenceforth be decided by Courts on the basis of a strict reading ( a “standard of correctness”) of s. 27 of the Corrections and Conditional Release Act, S.C. 1992, c.20:

Information to be given to offenders

  • 27 (1) Where an offender is entitled by this Part or the regulations to make representations in there take the decision shall, subject to subsection (3), give the offender, a reasonable period before the decision is to be taken, all the information to be considered in the taking of the decision or a summary of that information. (3) Except in relation to decisions on disciplinary offences, where the Commissioner has reasonable grounds to believe that disclosure of information under subsection (1) or (2) would jeopardize
  • (a) the safety of any person,
  • (b) the security of a penitentiary, or
  • (c) the conduct of any lawful investigation, 
    • S.27 incorporates previous Supreme Court constitutional decisions into the CCRA. It requires:
    • the Commissioner may authorize the withholding from the offender of as much information as is strictly necessary in order to protect the interest identified in paragraph (a), (b) or (c).


  1. (2) Where an offender is entitled by this Part or the regulations to be given reasons for a decision taken by the Service about the offender, the person or body that takes the decision shall, subject to subsection (3), give the offender, forthwith after the decision is taken, all the information that was considered in the taking of the decision or a summary of that information.
  • That, before taking an adverse decision, CSC share with the prisoner in question all information to be considered by CSC in taking the decision, or a summary of that information
  • That the prisoner be given a reasonable time to review the shared information and to make representations to CSC, which will be considered in taking the decision
  • That the exception to the obligation to share is that CSC may withhold information where this is strictly necessary in order to prevent harm to any person, to preserve the security of the institution or to preserve the integrity of an investigation

Khela ruled that fairness is to be judged simply on whether the terms of s.27 were followed – without any “benefit of the doubt” to prison officials. Any lack of compliance with the terms of s.27 , with minor exceptions, would be considered an unlawful decision and would result in the transfer/segregation decision being overturned.

This correctness standard is different from the judicial standard to be applied in reviewing other CSC decisions – in particular the justification ( versus the fairness) of decisions.

Justification for a decision entails whether a decision has a sufficient informational and analytical basis, as opposed to whether information was properly shared and prisoner representations considered (fairness)

Justification will be judged on a standard of reasonableness – i.e such decisions will be overturned only if they were clearly unsupported by the facts. Herein the courts, as in the past, will defer to the expertise of CSC staff in taking decisions – they will not overturn the CSC decision only because they might have decided differently.

Post-Khela litigation

Clearly these new judicial rules have assisted prisoners in combatting unfairly taken decisions. Clearly CSC has been put on notice to ensure that the information sharing ( and excluding) provisions of s.27 are observed.

All this is to the good, but, as is the case with many other judicial improvements, damage control quickly kicked in to minimize the effect of the case law. Moreover, huge gaps remain in how effectively prisoners can successfully litigate adverse decisions.

The Courts have generally greeted the enhanced access to Habeas Corpus under Khela quite conservatively. Three possible bases for this are:

  1. That the Courts understandably envisioned a flood of new Habeas Corpus applications based on Khela, some of which might be frivolous or might try to inappropriately expand the Khela principles
  2. That the Courts, especially at the trial level, are very deferential to the decisions of                                                                                                                                                                                                                                                                                                                                                                                                                               administrative “experts” such a CSC officials and will second- guess prison officials only where this is clearly warranted
  3. That the Courts see their role as adjudicating legality rather than managing correctional institutions.

Accordingly, we have seen a number of trends in the case law.

Strict interpretation of “restriction of liberty”

The Courts have been reluctant to accept Habeas Corpus applications other than for straight-forward upward transfers or segregation placements. They have generally interpreted the requirement for “restriction of liberty” in Habeas Corpus cases to mean a movement to a physical setting involving actual restriction of movements and enhanced supervision/control of inmates.

Thus, a transfer from one maximum security institution to another has not been considered a “restriction” even where this involves distancing from needed community resources and family support or where the new institution has a more restrictive regime (e.g. times inmates permitted out of cells or ranges).

As well, as can be expected, the Courts will readily consider a case “moot” if a person has been moved away from the restrictive placement on which they based the Habeas Corpus application – e.g. by the time the hearing takes place the inmate has been removed from segregation or has been moved to another institution.

Deference to decisions not to share information.

Ss.27(3) provides rather strict rules on what must be shared.

If the sub-section is not invoked by CSC then the exclusion will not be permitted by the Court. Moreover, if CSC does not adequately indicate to the prisoner the reason for any exclusion of information, then ss.27(3) will be considered breached.

The devil is in the details, however.

The normal approach of CSC over the last several months has been:

  1. To announce in documents shared with the prisoner that certain, very substantial, portions of the information to be considered by the decision-maker can’t be shared because they would endanger interests provided in ss. 27(3) – safety of individuals, institutional security or the integrity of an investigation.
  2. To indicate belief in the reliability of informants’ statements based simply on categories set out in policy, without indicating how these categories were identified.
  3. To provide information to the prisoner that does not contain enough detail for them to contest the allegations against them.

In the most frequent cases, where the information relates to informers’ statements about the prisoner, the statements, CSC will inform an inmate that he has been observed carrying out inappropriate activities in general terms, without citing specifics that may assist the prisoner’s representations. For example, “observed bringing contraband into the institution after a temporary absence and leaving the contraband for another inmate to retrieve”.

  • CSC will make broad conclusions that the information withheld, usually the brunt of informants’ statements, must be withheld because revealing any of it could reasonably result in identifying the informant
  • No information is provided about any specific dates or locations that might permit the prisoner, if innocent of the allegations, to demonstrate that they could not have committed the misbehavior.
  • No attempt is made to de-personalize the information or to separate out portions that could be shared without identifying informers.
  • Informants whose statements are used will normally be characterized as “believed reliable” or, in rare cases, as “completely reliable”. These are terms used in Commissioner’s Directive 568-2, Annex B:
  •      Believed Reliable (Court) B/R or B/R/C Refers to information that gives every indication that it is accurate, but has not been confirmed. The information somewhat agrees with the general body of intelligence, is reasonable and consistent with other information on the same subject.

Completely Reliable (Court) C/R or C/R/C Refers to information that is substantiated or confirmed by one or more independent sources. The information is logical and consistent with other corroborated information on the same subject.

Little or no information will be provided, for example, on how the information coincides with other    information or on whether any informant has a motive to lie, through interaction with the prisoner under review.

At the end of the day the prisoner is usually faced with a kind of “precis” shared under s.27- statement of information that does little to help them make their case, based on assumptions about the reliability of informant information that cannot be contested.


The gist

In further support of their non-disclosure of information, CSC often argues that what they have shared constitutes a “summary”, as permitted in ss.27(1).

My perception has been that the purported summary does not meet the test provide in the Khela judgment , that the inmate should have sufficient information “to know the case against him”.

Moreover the summary seems to fall short of what is required even under CSC policy on sharing “gists” (summaries) of information with offenders. The characteristics of a valid gist are set out in Commissioner’s Directive 701:

Annex C


Gist for Protected Information

  • An offender is normally entitled to know the substance of the information which is being used in making a decision about his/her case. The substance of the information and/or significant details are shared with the offender in a “gist”. This is the duty to act fairly”.
  • A gist conveys the essence of the information to be considered by decision makers and provides sufficient detail to allow the offender to know what the information is about. It must give as much of the information as possible without disclosing information which can legitimately be withheld under the specified criteria for non-disclosure.
  • Only as much information as is strictly necessary to protect the interests identified in subsection 27(3) of the CCRA may be withheld.


  •  A gist is only to be used in exceptional circumstances as normally all information will be shared with offenders. If information cannot be shared with the offender in a gist form, then the information should not be used in the decision making. (For exceptions, see “Withholding a Gist”.)
  • Where the protected information is intelligence-related, the Security Intelligence Officer will prepare a gist in a separate document and provide it to the Parole Officer.
  • In all other circumstances, the Parole Officer will normally prepare the gist.


Preparing a Gist

  • The information shared must provide the offender with sufficient details to enable him/her to respond meaningfully to the assertions being made.
  • The gist must provide the relevant facts, including:
  • the dates and places of specific incidents
  • the manner in which these became known to the authorities
  • any other evidence supporting the intelligence information.
  • The name of the source is not relevant information.
  • The disclosure of information to an offender does not necessarily mean that he/she has a right to:
  • know the identity of the source of the information, or details and circumstances which could reveal the identity of a source of information
  • a copy of the actual documents, or
  • all of the details of the case against him/her.


Withholding a Gist

  • In order to justify withholding a gist, it will have to be demonstrated that the information meets one of the injury tests outlined in subsection 27(3) of the CCRA.
  • In some cases, the information is time-sensitive and must be withheld from the offender until the injury test no longer applies. The Parole Officer, in consultation with the Security Intelligence Officer will share the gist of the information when there is no imminent risk to the source.
  • In rare cases, there may be circumstances which preclude even the gist from being disclosed to the offender without compromising the security of the institution or endangering life. The reasons for the full exemption of the file will be prepared and provided to the PBC.
  • Where relevant information is of such a highly sensitive nature that a gist cannot be provided to the offender, the PBC must be informed and the following statement appended to the decision-making report:


“In accordance with subsection 27(3) of the CCRA, the information contained in certain reports cannot be shared with you at this time since it is considered that disclosing this information to you would be injurious to a public interest which outweighs your right to receive the information.”

  • In order to support the rationale not to disclose under subsection 27(3) of the CCRA, the following points should be noted:
  • when information has already been made public, the offender will already know the names of the victims and the details of the alleged crime thereby rendering it unlikely not to be able to share information
  • fear that disclosure would threaten the safety of sources or informants requires evidence of this allegation.


I have highlighted the most relevant requirements in the policy.

Suffice to say that it requires CSC to disclose sufficient information in a gist for the prisoner to know the case against them and to respond.

Suffice to say that exceptions from sharing regarding informants must be supported by “evidence” – information that has probative value and is relevant.

In my view much of what is currently shared with prisoners does not meet these tests.

Why, then, is CSC seemingly permitted to breach these rules or guidelines?

I think the answer lies in Khela’s ruling that choices about what to consider in taking decisions and how to assess the reliability of this information are within CSC’s mandate and expertise. As such the Courts have deferred to CSC (under a standard of reasonableness) in decisions as to what to include and what to rely upon in taking decisions.


The envelope

Khela held that, in order to assess information withheld from prisoners , the Attorney General would be required to place all unshared information in a confidential envelope. This would be reviewed by the Court but not shared with the prisoner or their lawyer.

Prisoners’ lawyers normally take pains to say that the Court should review the information in order to

    1. determine, based on a correctness standard, whether all information considered by CSC was shared
  • determine whether it had been properly evaluated for its reliability
  • determine whether it was strictly necessary to withhold all information that was not shared


The Court will also review this concealed information to decide with the transfer/segregation etc was justified, whether it was reasonably necessary to place the inmate in this level of custody, as opposed to any, less restrictive alternatives.

The prisoner and their counsel have no input to these determinations, which places them, of course, at a severe disadvantage.

I have seen few judgments that make specific comments on how the Court reviewed the hidden information, other than statements that the the information supports CSC’s decision.

I do not argue, of course, that the Courts are being dishonest or biased in their analysis.

Rather I wonder whether the courts might provide a more cogent analysis if somehow they could have access to both sides of the issues – to somebody knowledgeable of the correctional system and to Habeas Corpus law, who could provide that specific expertise to the Court, without disclosure to other party.

I have made the suggestion on one occasion that it might be appropriate for the Court to appoint an amicus curiae, an independent expert in law and prisons, who could review the information to decide what should have been shared and the probative value of what wasn’t shared.

This idea was rejected by the Court. I have to wonder if it should be raised again.


The bottom line

As a matter of litigation tactics, CSC has learned the minimum information that they must share under Khela and s.27 and argued before the Court, either in open court or in confidence.

Although the Khela judgment has enhanced the ability of prisoners to access the courts and to argue unfairness in CSC decisions, the seemingly open door has been closing.

Segregation – Let’s get it right this time

May 10, 2016

Excerpt from a report by Paul Dube, Ombudsman of Ontario.[1]

“The only way to ensure fairness for segregated inmates is to establish an independent segregation review panel, enshrine procedural guarantees in regulation rather than policy, and establish systematic monitoring of segregation practices. These oversight mechanisms should be combined with an enhanced emphasis on the well-being, treatment, and rehabilitation of segregated inmates”

Mr. Dube focuses on the essential element of any plan to control the abuse of segregation in our prisons.

Independent review was the centerpiece of federal recommendations following the Arbour Inquiry [2], in part into abuses of segregation placement at the Prison for women in Kingston. Madam Justice Arbour was convinced that, absent outside intervention, segregation could become indefinite, harmful and contrary to the objectives of Canadian corrections after an offender had spent 30 – 60 days in segregation.

She recommended:

a)  mandatory referral of cases to the Courts for resolution of segregation placements after 30 days or,

b) if judicial intervention was not accepted by CSC, that an independent arbitrator ( a lawyer) be brought in to adjudicate the need for continued segregation after 5 days of segregation and at 30-day intervals thereafter.

( see her recommendations below, at the end of this post)

The recommendations were declined by the Government and we were left with a system involving no independent oversight or review of any kind, other than access to habeas corpus or other judicial review remedies.

The Correctional Investigator (the federal prison ombudsman) weighed in,  in 2004, expressing dissatisfaction with the status quo and strongly recommending an independent review of segregation in “Shifting the Orbit – Human Rights, Independent Review and Accountability in the Canadian Corrections System” [3]. The Report, which I authored indicated:

We underline our continued support for the Arbour judicial remedy and for judicial involvement, at a reasonable juncture, into decisions on segregation placement.The involvement of the Courts remains, in our view, the surest way of ensuring early and effective declaration of the law and of what must be done to comply with it.

The Correctional Service has rejected all manner of independent review, based on its stated wish to maintain “control and accountability” with respect to segregation issues. The ability to assign decisions to an independent body would relieve the Service from managing its own processes.

Based on this highly rebuttable premise (in my opinion and those of many others more  expert than I) we have seen the use of segregation slip back to a system that is more concerned with pushing aside problems than with human rights. Mentally ill prisoners are unduly isolated, often exacerbating their conditions. Perceived trouble-makers are kept apart, with scarce opportunity and support to permit them to adjust attitudes and succeed in safely reintegrating to the community.

In our Ontario penal system, the attitudes that have led to federal problems are magnified by serious space and personnel issues. Hence, the Ombudsman’s timely and informed recommendation.

We can only hope that some eyes will open this time.

Unfortunately the “small p” politics of control within institutions will probably persist. Staff will not wish, at the end of the day, to lose their grip on an important instrument of control and even punishment

There will also be  “large p” politics. Governments of all stripes in Canada are loathe to upset public perceptions that we must not “coddle” prisoners by taking authority from front-line protectors of public safety. Moreover, if a prisoner is released from segregation against the wishes of prison authorities and a harmful incident takes place, how will that reflect on the Government?

At the end of the day corrections are a matter of achieving goals by information-based assessment of risk. Accepting and implementing this principle takes courage and common sense. Not accepting it leaves the keepers and the politicians comfortable while many prisoners  ( in isolation from reasonable support) become more and more of a risk to public safety.

But I’m not betting the mortgage.


Here are the Arbour recommendations referenced above

9. With respect to segregation, I recommend:

(a)that when administrative segregation is used, it be administered in compliance with the law and appropriately monitored;

(b)that daily visits to segregation units by senior prison managers be required, and that the discharge of that duty be specifically made part of any performance evaluation of these managers;

(c)that the obligation to conduct daily visits to segregation not be delegated below the level of Unit Manager, or its equivalent, except in very small institutions where, on weekends, this function could be performed by the officer in charge of the institution;

(d)that the practice of long-term confinement in administrative segregation be brought to an end;

(e)that, in order to so achieve, a time limit be imposed along the following lines:

(i)if the existing statutory pre-conditions for administrative segregation are met, an inmate be segregated for a maximum of three days, as directed by the institutional head, in response to an immediate incident;

(ii)after three days, a documented review take place, if further detention in segregation is contemplated;

(iii)the administrative review specify what further period of segregation, if any, is authorized, up to a maximum of 30 days, no more than twice in a calendar year, with the effect that an inmate not be made to spend more than 60 non-consecutive days in segregation in a year;

(iv)after 30 days, or if the total days served in segregation during that year already approaches 60, the institution be made to consider and apply other options, such as transfer, placement in a mental health unit, or other forms of intensive supervision, but involving interaction with the general population;

(v)if these options proved unavailable, or if the Correctional Service is of the view that a longer period segregation was required, the Service be required to apply to a court for a determination of the necessity of further segregation;

(vi)that upon being seized of such application, the court be required to consider all the components of the sentence, including its duration, so as to make an order consistent with the original intent of the sentence, and the present circumstances of the offender;

(f) failing a willingness to put segregation under judicial supervision, I would recommend:

(i)that segregation decisions be made at an institutional level subject to confirmation within five days by an independent adjudicator;

(ii)that the independent adjudicator be a lawyer, and that he or she be required to give reasons for a decision to maintain segregation;

(iii)that segregation reviews be conducted every 30 days, before a different adjudicator each time, who should also be a lawyer, and who should also be required to give reasons for his or her decision to maintain segregation;

(g) that failure to comply with any of the above provisions be treated as having rendered the conditions of imprisonment harsher than that contemplated by the sentence, for the purposes of the remedy contemplated in recommendation 8(b) and (c).

End notes:




Who do prison doctors serve?

A number of cases are emerging from Correctional Service regulation of the non-narcotic pain-killing drug, Gabapentin. These cases highlight the lengths to which CSC will go to promote their view of institutional security, even at the expense of fair access to essential health serve – even at the expense of continuous pain for some prisoners.

Gabapentin has been highly successful in treating all sorts of pain conditions and until recently was frequently prescribed to prisoners. Then in 2015 CSC concluded that the drug was being overused for trafficking purposes.

CSC sent out an announcement to prisoners indicating that no new prescriptions for Gabapentin would be issued after August 1, 2015 except for patients suffering from epilepsy or from neural pain caused by diabetes or shingles. CSC offered the opinion that ” there is no proof that [Gabapentin] works for other types of pain”.

This left the prisoners who had already been on Gabapentin prior to August 1, 2015. Here CSC established a “grandfathering” regime. Prisoners on Gabapentin  prescriptions, other than for epilepsy and pain from diabetes or shingles, would be permitted to continue on the drug only if, via the institutional physician, a formal request was made to Regional authorities who manage the CSC formulary and the request was accepted.

Requests for continuation of use of Gabapentin were to be made by March 1, 2016 failing which the prisoners in question would be deprived of Gabapentin as of April 1, 2016. Physicians were to assist in finding alternative medications that would meet the needs of prisoners.

The Current Situation (May, 2016)

I am aware of a  number of prisoners who suffer from severe, chronic pain who have seen their  (previously successful) Gabapentin prescription ended as of April 1, 2016.

In some cases the institutional physician has refused to seek continued access to the drug. In others, the formulary authorities have refused to permit continued treatment.

Where physicians have refused to request continued treatment, this has been either because the physician purported to believe that Gabapentin was unnecessary or because the physician expressed the view that a formulary request would simply not be granted.

In almost all cases I have seen, the prisoner in question had been enjoying successful treatment with Gabapentin, sometimes in combination with another drug, for many months or even years.  There are opinions on their files from pain specialists/ neurologists to the effect that Gabapentin has been, and remains, an effective response to the pain in question.

Now these prisoners are suffering pain, as could be anticipated, occasionally with some assistance from narcotic prescriptions that, at first blush, seem far more’ dangerous” than non-narcotic Gabapentin, from a security perspective. They have sought second opinions and made repeated requests for Gabapentin relief but, to date, they continue to be in pain.


One would think that prisoners could seek judicial review in Federal Court to attack decisions removing Gabapentin. A problem with this approach is that it can involve long delays should the Court determine that complaints should go through the grievance procedure ( “an adequate internal remedy” that the Court has usually supported). As well, the Court could be convinced that the decisions under review were those of medical doctors and not government officials, thus removing them from judicial review jurisdiction under the Federal Court Act.

While civil actions might be effective, and would by-pass the above-mentioned obstacles, the process for Actions in both Superior Courts and the Federal Court is painfully slow, and is not usually accepted for legal aid support.

My view is that there are ways of dealing with these problems, which I will not be disclosing in this article for obvious reasons. ( I don’t think the Department of Justice pays much attention to my blogs but who knows?)

The policy issue – here we go again

The important point here is that CSC  is once again adopting a lock-step approach to an important prisoner right wherein perceived notions of security trump essential health care.

I don’t say that there was a deliberate agenda behind the way the policy on Gabapentin was rolled out but it is clear that a principal aspect is to somehow protect CSC against judicial review.

Moreover, the decision is being implemented in an atmosphere where CSC physicians are under considerable pressure to tow the line even if, absent the new rules, they would have continued the prescription. Herein, expert second opinions can be either prohibited or ignored.

As well, the policy is based on comfortable generalities, purported research conclusions, that support prohibitions of rights.

Compare this, for example, to CSC policies on access to digital tools and in-cell computers.

CSC decided, despite considerable adverse opinion, that any form of even potential digital communication with the community was too much of a security issue ( especially a drug interdiction issue) to permit any form of communication. Cell computers were grandfathered and to this day prisoners are having to take legal measures to prevent their ancient computers from being taken away.

Meanwhile numerous jurisdictions around the world are accepting the reality of computers and email/internet communications as akin to a basic human right.

Nobody disputes that security concerns exist. The problem is that fundamental rights may be sacrificed by the template of CSC security – security is the central issue and policy must be adapted to this priority by allowing overriding prohibition of rights enjoyed in the community and by setting up breastworks to fend off legal  challenge.

This really hurts.















Push back: The Courts are identifying ways to counter habeas corpus applications

The landmark Supreme Court Judgments in May v. Ferndale Institution[1] and Mission Institution v. Khela [2] fashioned an effective remedy for inmates faced with restrictions on liberty ( involuntary transfers to higher security, segregation, etc).

Rather than wading through the grievance system and then the restrictions inherent to Federal Court review inmates, since May and Khela,  can apply directly to provincial superior courts for orders issuing writs of habeas corpus.

Such applications are relatively timely and the fairness of decisions is governed by an analysis of compliance with s.27 of the Corrections and Conditional Release Act, S.C.1992, c.20, which sets out concrete rules on what must be done to ensure inmates get a fair input into proposed decisions. Moreover, contrary to their normal deference toward “reasonable” decisions by prison authorities, the Courts review compliance with s.27 quite strictly (under a standard of “correctness”) .

Predictably,  a lot of habeas corpus applications have been filed by inmates in the last two years. Predictably the superior courts have felt the pressure as Court calendars are taken up with  many more hearings.

It stands to reason that, as a matter of policy, the Courts do not enjoy this situation and they are unlikely to be kind to litigants whom they regard as abusing the system with frivolous habeas corpus cases.

Given these circumstances some Judges will tend to interpret the law strictly in “suspect” cases. Moreover they will be loathe to permit the precedent of Khela to be broadened to include cases beyond the Khela circumstances.

For example, Judges have been quick to reject jurisdiction in many cases where the standard Khela paradigm is not in place ( straight-forward, formal transfer to higher security or, placement in segregation). Courts will be very hesitant to accept jurisdiction:

  • where there is a “lateral” transfer between institutions at the same security level – e.g. max to max – the Courts are likely to find that there is no “restriction in liberty” and to decline jurisdiction to hear the matter.
  • where the Applicant pleads that he/she has been denied a reduction in classification to a level that he/she actually deserves, the Courts may well determine that there has been no actual restriction of liberty – i.e. the Applicant was not physically moved to a higher custody situation, but rather not permitted a less restrictive one.

I believe that these two trends are in some respects a form of  administrative gate-keeping in the face of the Khela wave. Khela was based on a formal transfer from medium to maximum, and it referenced other case law that applied the concept of “restriction of liberty” to involuntary transfers, segregation and placement in the Special Handling Unit.

The possibility that there could be an actual restriction in liberty occasioned by a “lateral” transfers was not canvassed in Khela.

Nevertheless where, for example, a lateral transfer removes the Applicant from important community services, family contacts or access to educational or litigation resources it is reasonable to conclude that restrictions have taken place, albeit not physical restrictions.

As well, the possibility that the decision of a Warden not to grant lower custody could be considered a restriction in liberty was not canvassed  in Khela.  

Again, it might be reasonable to conclude that restrictions have taken place where, for example, a Warden denies a voluntary transfer request, or a work release, or a conjugal visit, or a temporary absence without permitting inmates to fairly contribute to the decision – or by denying the reduction on custody in bad faith or for clearly unjustified reasons.

There will have to be appeals to resolve the issues arising from these situations. In the meantime potential applicants need to be wary of jurisdictional roadblocks.

An even more ominous trend that will have to be addressed, though, is the use of cost awards against unsuccessful applicants.

Case law shows that some Judges are increasingly inclined to impose costs in order to deter unfounded habeas corpus applications.

A clear, even frank, statement of some of the judicial thinking on the matter is the following excerpt from Woods v. Atlantic Institution [3] : [ I have emphasized the most relevant passages]

[64]      Habeas corpus is a civil remedy. The normal rule in civil matters is that costs follow the cause, i.e. the result. The applicant has been unsuccessful in his claim. Although the respondent has not specifically sought costs, the respondent has not explicitly waived right to them either.

 [65]      I note that my colleague Riordon J. has awarded costs against unsuccessful inmates in similar cases (See: Samms v. Atlantic Institution 2004 NBQB 140 (CanLII) ($750.00); Bird v. National Parole Board 2007 NBQB 96 (CanLII) ($950.00) and Cain v. Canada (Attorney General) 2011 NBQB 47 (CanLII) ($1,000.00)). I see no reason not to follow that practice. This approach is seen elsewhere as well (e.g. Robinson v. A.G. of Canada 2013 ONSC 7992 (CanLII) ($2,000)). I have in mind the policy considerations that animate the law of costs:

… aside from the purpose of providing the successful party with indemnification, awards of costs have been used as tool to influence the way in which the parties conduct themselves and to prevent abuse of the Court’s process.

(Doucet v. Spielo Manufacturing Inc. 2011 NBCA 44 (CanLII) at para. 117)

 [66]      As Mission Institution v. Khela, supra, foretells and the present case exemplifies, it can be reasonably expected that many more challenges to prison administrative decisions will be brought by inmates to provincial superior courts given our greater accessibility and the now expanded scope of review by habeas corpus. Courts in locales where prisons exist are particularly on the front line. Unchecked, there would be no disincentive for inmates to seek to have a judge review the reasonableness of each and every administrative decision potentially impacting on a residual liberty interest, regardless of merit. Put differently, what would a person have to lose?

 [67]      The potential impact and the added expense that would have to be otherwise borne by taxpayers to meet each and every challenge are patent. This case, for example, took beyond a full day. The federal government lawyer representing the respondent was required to file a brief on law and a case book of authorities and to also supplement the record on hearing. She travelled from Nova Scotia to appear at the hearing. On the other side, the applicant conducted himself in a respectful manner and mounted thoughtful arguments.

 [68]      This is all to say that every litigant in society invoking the civil law in seeking redress before the courts is expected to assess the monetary risks should they be unsuccessful. I do not see why an inmate should not also be expected to engage in some introspective consideration of the relative merits of a potential claim, i.e. engage in a “risk-reward” assessment. Inmates too must shoulder some responsibility for their decisions in these regards.

 [69]      At the same time, costs cannot become a roadblock to accessing the writ of habeas corpus. After all, habeas corpus is the law’s oldest front line bastion of protection against “unlawful” loss of liberty; in modern times including the protection against “unlawful” reduction or restriction of residual liberty interests of inmates. Habeas corpus can be an efficacious remedy suited to respond to a multitude of situations. Money cannot be made to act as bar to its resort.

 [70]      In the end, the just balance is found in imposing more modest cost awards relative to the length of the hearings, the conduct of the party and the merits of the claim than might otherwise be imposed, recognizing an inmate’s special situation. This would not be an exercise in futility either. The evidence discloses in this case that inmates do receive some, albeit limited, pay from the government for work and study inside and otherwise do receive allowances.

 [71]      In my opinion, the historical and societal policy considerations that inform costs awards should not stop at the outside of prison walls. Indeed, this is reflected in the decisions previously cited of my colleague Riordon J., which approach, to reiterate, I intend to follow.

So, to stem the tide,   inmates should be required to pay some “modest” amount, based on their allowances earned “inside”, if they engage in ill-advised applications ( or perhaps any application?).

I firmly believe that the rules governing costs merit fleshing out, to say the least. Some possible issues are:

  • Where an inmate has a legitimate argument to make, how should the Correctional Service, with its enormous power over inmates and, more important, its control over the administrative decision-making process, and the evidence, be fairly held to account by independent adjudication? A great many cases are characterized by the amount of evidence involved, by its complexity and by the unwillingness of the Correctional Service to disclose relevant evidence. In every case, then, it is unclear at the outset, without the aid of the judicial review process, what relevant information is available. Should inmates be dissuaded from seeking this information and basing arguments on it?
  • What consideration is required in fairly assessing the financial means of inmates? Rather than making broad statements about the ability and resources of inmates to pay costs, there must be careful consideration of the use of inmates” financial resources in supporting legitimate correctional purposes – especially preparing and planning for release.

Pending appeal court scrutiny, lawyers will have to carefully advise clients of cost possibilities. Applicants for habeas corpus will have to ensure that the cases they make at least will not be considered frivolous.

Pending such judicial clarification the chilling effect of costs will probably prompt some prisoners to needlessly sacrifice the rights that May and  Khela provided before even exercising those rights.














End notes:

[1] [2005] 3 SCR 809

[2] 2014 SCC 24

[3] Wood v Canada (Atlantic Institution), 2014 NBQB 135 (CanLII), 427 NBR (2d) 205


Hope for the New Year?

Those who advocate evidence -based, reintegrative approaches to corrections were heartened by the following points in the  new Government’s Mandate Letter to the Minister of Justice and Attorney General:

  • Develop, in collaboration with the Minister of Indigenous and Northern Affairs, and supported by the Minister of Status of Women, an approach to, and a mandate for, an inquiry into murdered and missing Indigenous women and girls in Canada, including the identification of a lead Minister.
  • Review our litigation strategy.  This should include early decisions to end appeals or positions that are not consistent with our commitments, the Charter or our values.  
  • You should conduct a review of the changes in our criminal justice system and sentencing reforms over the past decade with a mandate to assess the changes, ensure that we are increasing the safety of our communities, getting value for money, addressing gaps and ensuring that current provisions are aligned with the objectives of the criminal justice system.  Outcomes of this process should include increased use of restorative justice processes and other initiatives to reduce the rate of incarceration amongst Indigenous Canadians, and implementation of recommendations from the inquest into the death of Ashley Smith regarding the restriction of the use of solitary confinement and the treatment of those with mental illness.
  • Work with the Minister of Public Safety and Emergency Preparedness and the Minister of Indigenous and Northern Affairs to address gaps in services to Aboriginal people and those with mental illness throughout the criminal justice system

[- See more at:

Given the anticipated approach of the Minister, Jody Wilson-Raybould, a long-time defender of the rights of aboriginal people, with a thorough understanding of the criminal justice process, we can afford to hopethat the new Cabinet will break away from the attitudes of previous conservative and Liberal government towards the correctional system.

This is by no means a sure thing, however.

For decades public distain for prisoners has been mirrored, and nourished, in policy and practice by governments of all stripes, with muted opposition. Despite some significant gains legislatively, such as the Corrections and Conditional Release Act we have seen a range of particularly pernicious measures such as:

  • The “two year rule”, which created an actuarial wall, using the security rating points system to automatically consign offenders convicted of murder to maximum institutions, irrespective of their actual risk to other offenders, staff or institutional security ( Liberal Government,  2001 )
  • The failure to implement effective, independent review of decisions to maintain offenders in segregation as proposed by the Task Force on Administrative Segregation ( Liberal Government, 1997)
  • Moratorium on inmate access to digital communication tools and on new inmate purchases on personal computers, effectively exiling prisoners from essential tools of the 21st century (2003, Liberals)
  • Closing of prison farms, a significant program for teaching work skills and values that many prisoners lack ( 2011, Conservatives)
  • The failure to move on recommendations arising from the Ashley Smith Inquiry (Conservative Government, 2014)
  • Implementation of reductions in inmate pay and allowances, leading to reduced offender capacity to achieve reintegration to the community (Conservative Government 2013)

These specifics are serious in themselves but they arise from even more fundamental historical wrongs.

Not only have these wrongs been ignored administratively, they have been permitted to guide how we “deal with” prisoners for hundreds of years. They are the underpinning of each of the failures listed above  and there is no real indication that the failures will end.

The most damaging aspectsa are:

  1. Devaluation of prisoners’ human rights

Prisons have been a major laboratory for judicial clarification of human rights in Canada ( and elsewhere). The Courts have long recognized that the human rights of people convicted of crimes must be retained to the greatest extent commensurate with institutional safety and security.

This rule has been fundamentally misinterpreted by many of those regulating and administering the corrections system. Despite the Courts’ pronouncements, those with power over prisoners have approached decision-making from a perspective where rights are somehow “found” exceptions to the central role of punishing and controlling prisoners. Regulations and policies are written to avoid successful challenges based on case law – not to build upon the rights that have been articulated by the Courts.

Until those in power begin to implement policy and practice beginning with rights and restricting these only where demonstrably justified by legitimate custodial objectives we will continue to have a correctional system which “accommodates” the law rather than obeying it.

More important, since rights are fundamental in and of themselves, we will remain continue to be hypocrites.

There is no other hand.

2. Acquiescence to regressive attitudes

Based on a perception that the public overwhelmingly  believes prisoners are coddled and must be treated harshly Governments have consistently allowed correctional staff to treat prisoners as repressively  as befits the situation.

It is an accepted attitude “inside” that, in order to maintain power and control over prisoners, they must be reminded that the authority is with the staff, irrespective of the rules. Programming can be delayed; visits  curtailed; pay reduced; cells searched; parole postponed – often based on biases

This results in the systemic injustices that have been repeatedly identified – and mentioned in Mr. Trudeau’s Mandate letter, above.

Moreover, it results in the “thousand cuts” that characterize the every day relationship between the kept and the keepers- with no consequences for the latter.

The culture and politics of those who regulate the system results, at best, in pious hopes and far more often in shrugs.

3. Cynicism towards rehabilitation

It is humbly submitted that a reintegrative approach to corrections, promoting prisoners’ willingness and ability to safely return to the community, is the accepted wisdom. Experts no longer accept retributive justice as a means of making our streets safer.

Yet the pervading attitude toward corrections by those who regulate and implement is a throw back to Dickensian attitudes.

This gloss – “rehabilitation just doesn’t work” – is not supported by research. More important, it is founded in great part on the  flaws that were created by the system itself. Labeling as a failure reintegration policy that is not supported by the labelers themselves is the definition of a self-fulfilling prophecy.

To the extent that staff are permitted to make such assumptions the flaws will grow as the motivation of staff to actually support effective measures diminishes.

Circular to say the least.

It can be done

The important objectives set out in the Mandate letter can be addressed to some extent by appropriate policy and legislation. The problem will be the duration of the effect on operations.

In the past changes have been recommended, and some implemented, in response to crises that the public has noticed – e.g. the McGuigan Report, the Arbour Inquiry, Ashley Smith.

Despite this the system has gradually reverted to the status quo.

This has occurred, in my view, because the motivations, understanding and values of those who execute policy have not been addressed.

There is no “accountability” ( a favourite catchword of practitioners) for falling to monitor and to instill appropriate attitudes among correctional staff.

I don’t say that it is easy to turn around beliefs and “codes” that have been in place forever. I do say that I have never seen a serious effort to promote human rights  and effective corrections on the floor.

The rolling of eyes and the smirk remain the main obstacle to justice and good corrections.

This government has an opportunity to set a new course. Let’s hope they can translate  “ensuring that current provisions are aligned with the objectives of the criminal justice system” into more than window dressing.