DATE: 20030910 DOCKET: C39384

COURT OF APPEAL FOR ONTARIO

DOHERTY, CHARRON and ARMSTRONG JJ.A.

BETWEEN:

DONALD SPINDLER, JOHN GARY SAMUELS, DONALD AULD

Appellants (Applicants)

• and -

THE WARDEN OF MILLHAVEN INSTITUTION

Respondent (Respondents)

Allan Manson and Elizabeth Thomas for the respondent

Kathryn Hucal and Nancy Noble for the appellants

Heard: August 21, 2003

On appeal from the order of Justice Kenneth Pedlar dated December 17, 2002.

DOHERTY J.A.:

I

[1] The appellants are serving life sentences for murder and are incarcerated in Millhaven Institution, a maximum security penitentiary. They applied for habeas corpus claiming that their detention in a maximum security penitentiary was illegal and seeking an order directing that they be moved to "a penitentiary of a lower security level". The motion judge held that he had jurisdiction to consider the habeas corpus claim but declined to do so holding that the Federal Court (Trial Division) was the more appropriate forum.

[2] I agree with the motion judge's disposition and would dismiss the appeal.

II

[3] Section 30 of the Corrections and Conditional Release Act S.C. 1992 c. 20 (CCRA) requires that all federal prisoners be classified upon their confinement according to their security risk as maximum, medium or minimum. The classification must be made in a manner that is consistent with the principles in the CCRA and in particular, with s. 28. That section reads:

Where a person is, or is to be confined in a penitentiary, the Service shall take all reasonable steps to ensure that the penitentiary in which the person is confined is one that provides the least restrictive environment for that person, taking into account

(a) the degree and kind of custody and control necessary for

(i) the safety of the public,

(ii) the safety of that person and other persons in the penitentiary, and

(iii) the security of the penitentiary;

[4] Sections 17 and 18 of the Corrections and Conditional Release Act Regulations SOR/92-620 identify the relevant factors to be considered in making a classification and the criteria to be applied in determining an inmate's security classification.

[5] The classification process has multiple components including an assessment made under what is called the Custody Ratings Scale (CRS). The CRS is a research-based instrument, which generates numerical scores intended to measure both the inmate's potential for institutional adjustment and his security risk. The CRS is designed to make the classification of inmates more objective and transparent. Under the security risk component of the CRS, scores are assigned to various factors such as the number of prior convictions, prior parole experiences and the length of the sentence being served. Higher scores indicate a greater security risk. If the score is above a preset number, the prisoner will be placed in maximum security. If the score is below that number but above a second preset number, the prisoner will be placed in medium security. If the score is below the second preset number, the prisoner will be placed in minimum security. Although the CRS classification usually determines a prisoner's placement, a designated official within the prison has the discretion to override the classification determination made using the CRS. This is referred to as a discretionary override.

[6] Prior to February 23, 2001, prisoners serving life sentences for murder had their security placement determined in the same way as other prisoners. Under the CRS persons serving life sentences for murder could achieve scores that were sufficiently low to warrant placement in medium or minimum security institutions. Prisoners serving life sentences for murder could also request that the designated person within the institution exercise her discretion and override the placement indicated by the CRS score in favour of a less severe placement. In addition, as with all other prisoners, persons convicted of murder had their placements reviewed annually and could challenge their placements through an internal grievance procedure. Under the policy in place prior to February 23, 2001, about 70% of the persons convicted of murder were placed in a medium or minimum security institution on their initial placement.

[7] On February 23, 2001, the Commissioner of Corrections (the Commissioner) issued a policy applicable to all persons convicted of murder and assessed for initial placement after February 23, 2001. I will refer to this as the new policy. Under the new policy, murderers brought into the Federal prison system after the policy was in effect, were classified as maximum security. This change was effected by increasing the numerical value assigned to the length of sentence in the CRS assessment so that it was higher than the number required for placement in the maximum security. Consequently, every person convicted of murder achieved a CRS score that was greater than the score required for classification in maximum security. The new policy also provided that the initial assessment for murderers would be reviewed after two years instead of annually.

[8] Under the new policy, prisoners convicted of murder could apply for the discretionary override described above, however it could be granted only by the Assistant Commissioner of Corrections. One override has been granted since the policy came into effect two and a half years ago.

[9] In addition to the possibility of a discretionary override, prisoners convicted of murder and classified under the new policy can also challenge their classification by way of the established internal grievance procedures. The grievance procedures are of little practical value given that the initial classification is made pursuant to a specific policy put in place by the Commissioner.

[10] The material filed by the appellants indicates that prior to the implementation of the new policy, their CRS scores would have placed them in a medium or minimum institution. The appellants have unsuccessfully challenged their placements through the internal grievance procedures. The appellant Samuels unsuccessfully sought an exercise of the override discretion by the Assistant Commissioner of Corrections.

III

[11] The appellants contend that the new policy is in direct conflict with s. 28 of the CCRA and ss. 17 and 18 of the Regulations in that it is based on policy considerations which are inconsistent with those identified in s. 28. The appellants also argue that the new policy effectively deprives the appellants of the individualised classification assessment to which they are entitled under the Act. They are now classified as a group based exclusively on the offence they committed.

[12] The appellants further contend that as the new policy is contrary to the CCRA it is beyond the powers of the Commissioner, and is therefore illegal. They argue that their continued confinement in a maximum security penitentiary pursuant to an illegal policy amounts to an unlawful deprivation of their liberty which is properly curable on a habeas corpus application. Finally, the appellants argue that their illegal confinement infringes their rights under s. 7 and s. 9 of the Charter.

[13] In declining to exercise his habeas corpus application jurisdiction, the motion judge accepted the respondent's submission that the application was in essence, a challenge to the legal validity of a policy fashioned by the Commissioner in the purported exercise of powers granted to the Commissioner by a federal statute. The motion judge held that challenges to the exercise of that power should be heard in the Federal Court.

[14] On appeal, this court heard argument as to the appropriate forum in which to bring this application and the merits of the application.

IV

[15] Counsel for the respondent submitted that the Superior Court had no jurisdiction to grant habeas corpus. I disagree. The material filed by the appellants leaves no doubt that prisoners held in maximum security are subject to significant liberty restrictions that do not exist for prisoners in a medium or minimum security institution. A claim that a prisoner is being unlawfully detained in a part of the prison where his liberty is subject to significant restrictions that would not exist if the prisoner was held in the part of the prison in which he claims he should be held, may be advanced by way of a habeas corpus application. The fact that the detention may also be challenged by way of an application for judicial review in the Federal Court challenging the placement decision does not oust the habeas corpus jurisdiction of the Provincial Superior Court: R. v. Miller (1985), 1985 22 (SCC), 23 C.C.C. (3d) 97 at 105-106, 115-118 (S.C.C.).

[16] The importance of habeas corpus as an effective and expeditious remedy to those unlawfully deprived of their liberty cannot be gainsaid. It is, however, clear that there are circumstances in which a provincial superior court should decline to exercise its habeas corpus jurisdiction leaving the applicant to seek relief by way of judicial review in the Federal Court. In Steele v. Warden of Mountain Institution, 1990 50 (SCC), [1990] 2 S.C.R. 1385, the applicant sought habeas corpus claiming that his continued detention amounted to cruel and unusual punishment. The Supreme Court of Canada agreed holding that he had been unlawfully detained for many years as a result of the National Parole Board's repeated failure to properly exercise its statutory powers over Mr. Steele.

[17] After considering the merits of the claim, Cory J. turned to the propriety of relief by way of habeas corpus. He said at p. 418:

It is necessary to make a further comment. As I have made clear above, the continuing detention of a dangerous offender sentenced pursuant to the constitutionally valid provisions of the Criminal Code will only violate s. 12 of the Charter when the National Parole Board errs in the exercise of the vital duties of tailoring the indeterminate sentence to the circumstances of the offender. This tailoring is performed by applying the criteria set out in s. 16(1) of the Parole Act. Since any error that may have been committed occurs in the parole review process itself, an application challenging the decision should be made by means of a judicial review from the National Parole Board decision, not by means of an application for habeas corpus. It would be wrong to sanction the establishment of a costly and unwieldy parallel system for challenging a Parole Board decision. As well, it is important that the release of a long-term inmate should be supervised by those who are experts in this field. … [emphasis added]

[18] Cory J. went on to hold that in the exceptional circumstances of the case it would be unfair to require the applicant to begin a new proceeding in the Federal Court. Cory J. affirmed the applicant's release on habeas corpus.

[19] As I read Steele, supra, except in exceptional circumstances, a provincial superior court should decline to exercise its habeas corpus jurisdiction where the application is in essence, a challenge to the exercise of a statutory power granted under a federal statute to a federally appointed individual or tribunal. Those challenges are specifically assigned to the Federal Court under the Federal Court Act R.S.C. 1985 c. F-7 s. 18, s. 28. By directing such challenges to the Federal Court, Parliament has recognized that individuals or tribunals exercising statutory powers under federal authority must exercise those powers across the country. It is important that judicial interpretations as to the nature and scope of those powers be as uniform and consistent as possible. By giving the Federal Court jurisdiction over these challenges, Parliament has provided the means by which uniformity and consistency can be achieved while at the same time, facilitating the development of an expertise over these matters in the Federal Court.

[20] Mr. Manson, for the appellants submits that Steele applies only to situations where a prisoner's unlawful detention can be ascribed to some improper conduct by the parole authorities. While it is true that most of the cases that have applied Steele involve alleged errors by the Parole Board, I see no logical reason why Steele should not have equal application to decisions made by other federal prison authorities that negatively impact on liberty and are also subject to judicial review in the Federal Court. The need for consistency in interpretation as well as the need to avoid costly and cumbersome parallel systems of review are as important in the determination of the classification of prisoners as they are in questions of parole.

[21] Steele was applied in R. v. Hickey, [2003] B.C.J. No. 61 (C.A.), a case involving a challenge to a placement decision made by prison authorities. In Hickey, the applicant was serving a life-sentence in a British Columbia penitentiary. He challenged the decision of the correctional authority to transfer him to a Special Handling Unit in a Quebec penitentiary.

[22] Ryan J.A. for a unanimous court first held that the decision to transfer the applicant sufficiently engaged his liberty interest to give the Supreme Court of British Columbia jurisdiction to hear the habeas corpus application. She went on however to hold that the Superior Court should have declined to exercise that jurisdiction stating at para. 50:

It is trite that the court has a discretion to refuse to entertain an application for habeas corpus if there exists a viable alternative to the writ. In the context of prison law, the fact that there is in place a complete comprehensive and expert procedure for review of a decision affecting the prisoner's confinement is a factor which militates against hearing a petition for habeas corpus. But there will be exceptions.

[23] Ryan J. concluded that as the applicant had not offered an explanation for the failure to pursue judicial review in the Federal Court, the British Columbia Supreme Court should have declined to hear the habeas corpus application.

[24] I agree with the analysis in Hickey. It is agreed by all counsel that the appellants can challenge the Commissioner's new policy in the Federal Court. They should do so unless they can establish exceptional circumstances justifying the exercise of the Ontario Superior Court's habeas corpus jurisdiction.

[25] Counsel for the appellants argued that there are exceptional circumstances in this case. They advanced three arguments. First, they contend that on a judicial review application, the appellants would have the onus of demonstrating the illegality of the new policy whereas on a habeas corpus application, the respondent would have that onus. I am not sure that the appellants' submission is correct in law. In any event, onus will play no part in a determination of the merits of this application. Either the policy is beyond the Commissioner's authority and therefore made without jurisdiction or it is not. I cannot imagine how the resolution of this issue could possibly turn on which party has the onus of proof.

[26] Second, the appellants argue that on a judicial review application, the court would have a discretion to dismiss the application even if the appellants could demonstrate the illegality of the new policy. The appellants submit that on a habeas corpus application, they are entitled as a right to a remedy once they demonstrate the illegality of the policy. I agree that relief by way of judicial review is discretionary, whereas relief on habeas corpus is as of right once an illegal detention is established. However, I do not think it is realistic to suggest that a court on judicial review would decline to grant relief if it accepted the appellants' contention that the Commissioner had no power to implement the new policy. The remedial provisions in s. 18.1(3) of the Federal Court Act are certainly broad enough to allow the court on an application for judicial review to grant virtually the identical remedy sought by the appellants on their habeas corpus application. The fact that judicial review may provide a more flexible remedy than habeas corpus is not, in any event, a factor which should favour resort to habeas corpus over an application for judicial review.

[27] Lastly, the appellants submit that they were able to get before the Superior Court on a habeas corpus application much more quickly than they could have gotten before the Federal Court on a judicial review application. Delay in gaining access to judicial review can justify the exercise of habeas corpus jurisdiction. While there is some evidence in the record indicating that there is often considerable delay in bringing a judicial review application in the Federal Court, there was no attempt to seek judicial review in this case. The material indicates that the Associate Chief Justice of the Federal Court can order an expedited hearing. Absent any request for an expedited hearing, I cannot assume that one would not have been provided. The appellants have not demonstrated that proceeding by way of judicial review would have taken appreciably longer than did this habeas corpus application.

V

[28] In summary, the application brought by the appellants challenged their detention based on the legality of the new policy implemented by the Commissioner. The appellants did not challenge the constitutionality of any part of the CCRA or its Regulations. The new policy applies across the country to all persons convicted of murder and classified after the date the policy came into effect. In essence, the appellants contend that the Commissioner acted without jurisdiction. The appellants' challenge is amenable to determination by way of judicial review. Indeed, it is exactly the kind of challenge that Parliament has directed should go to the Federal Court (Trial Division) where a statutory power is granted by federal legislation and exercised by a federally appointed person. Federal Court Act s. 18.1(4)(a). I would dismiss the appeal.

Released: "DD" "SEPT 10 2003"

"Doherty J.A." "I agree Louise Charron J.A." "I agree Robert P. Armstrong J.A."