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May 18, 2005


On May 17, 2005, the Supreme Court of Canada heard oral arguments in a case from British Columbia (May v. Warden of Ferndale Institution) which will have important implications for federal prisoners’ access to the remedy of habeas corpus. Sector I ,Chapter 3 of Justice Behind the Walls describes how in 1985 the Supreme Court in the trilogy of Miller, Cardinal and Oswald, and Morin, ruled that prisoners have a right not to be deprived, unlawfully or unfairly, of the relative or “residual” liberty they retain as members of the general prison population; and that any significant deprivation of that liberty -- such as being placed in administrative segregation or a Special Handling Unit -- could be challenged through habeas corpus in the provincial superior courts. In subsequent cases, the courts have held that habeas corpus is available to review not only placement in segregation or transfer to a Special Handling Unit, but any involuntary transfer to higher security where the regime of confinement is significantly more onerous and restrictive of liberty. The trilogy squarely addressed the issue of whether jurisdiction for judicial review of federal boards by the Federal Court under s.18 of the Federal Court Act trumped the provincial superior court jurisdiction in habeas corpus and held that the prisoner was entitled to choose the forum in which to challenge unlawful restrictions of liberty in the prison context.

Starting in 2001, a series of cases, culminating in the one before the Supreme Court this week, has thrown this state of affairs into question. In May the prisoners challenged their transfers from minimum security, where they had been without problems for periods varying from one to four years, back to medium security, not for any misconduct but because of a CSC national policy change (arising out of a sensational incident back East) that lifers could not remain in minimum if they had not completed an intensive violent offender program.

The BC Court of Appeal, following a decision of the Ontario Court of Appeal, held that federal prisoners, seeking to challenge the lawfulness of deprivations on their residual liberty, must first exhaust alternative remedies, including an application for judicial review to the Federal Court of Canada, as a condition precedent to applying to a provincial superior court for the remedy of habeas corpus or adduce a reasonable explanation of the inadequacy of those alternative remedies.

Because applications to the federal court typically take much longer and are more procedurally complicated than applications to the provincial superior courts, the lower court rulings, if upheld by the Supreme Court of Canada, will constitute a serious barrier to prisoners seeking a speedy challenge to their involuntary transfers or segregation.

In the appeal the prisoners were represented by Ann Pollak and Donna Turko, two of only a handful of lawyers in Canada who regularly represent prisoners. The BC Civil Liberties Association, represented by Professor Michael Jackson, was granted intervener status, as were the John Howard and Elizabeth Fry Societies, who were represented by Professor Allan Manson and Elizabeth Thomas.

You can find out more about this important case by reading the written arguments presented to the Supreme Court (called “factums”). Click here to read the factum filed by the prisoners’ lawyers; and here to read Professor Jackson’s factum for The BC Civil Liberties Association.

www.justicebehindthewalls.net will post the Supreme Court’s decision once it is delivered, which likely will be sometime in the fall.

Michael Jackson