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



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