Dr. Donald Payne

The applicant, a foreign national subject to a removal order, applied for habeas corpus after being detained in a maximum security provincial jail for over four years pending removal.

The court found that while the length of detention was exceptional, its duration was not uncertain because the applicant's recent cooperation provided a reasonable prospect for removal, thus not violating sections 7 and 9 of the Charter.

However, the court held that detaining the applicant in a maximum security facility with frequent lockdowns, rather than an immigration holding centre, was grossly disproportionate to his flight risk and constituted cruel and unusual treatment under section 12 of the Charter.

The court ordered his immediate transfer to an immigration holding centre.

The appellant appealed an order dismissing his motion to set aside a default judgment of nearly $50,000.

The appellant argued he was under a disability when served with the statement of claim and that the default judgment should be set aside under Rule 19.08(2).

The Court of Appeal allowed the appeal, finding that while the appellant was not under a disability at the time he was noted in default, his medical condition provided a reasonable explanation for his failure to defend the action.

The default judgment was set aside to allow the appellant to present a triable defence on the merits.

The Crown appealed a conditional sentence imposed after convictions for four counts of trafficking in a substantial quantity of heroin.

The majority held that the sentencing judge gave excessive weight to the respondent's psychological condition and erred by treating treatment of that condition as central to rehabilitation absent evidence connecting it to the offences.

While the respondent's history of torture and resulting post-traumatic stress disorder justified some reduction from the usual range, a community-based sentence was held unavailable for this level of heroin trafficking.

The court allowed the appeal, set aside the conditional sentence and probation order, and substituted a six-year penitentiary sentence.

The intervenor's motion to introduce fresh evidence on electronic monitoring was dismissed.