CITATION: Dodd v. Isabel McNeill House, 2008 ONCA 654
DATE: 20080926
DOCKET: C48694
COURT OF APPEAL FOR ONTARIO
Doherty, Laskin and MacPherson JJ.A.
BETWEEN
Lorie Dodd, Bonnie McAuley, Lisa Olsen and Ludmila Ilina
Appellants
and
The Warden of Isabel McNeill House
Respondent
Elizabeth Thomas and Diane Oleskiw for the appellants
Nancy Noble and Kathryn Hucal for the respondent
Heard and released orally: September 22, 2008
On appeal from the order of Justice Robert F. Scott of the Superior Court of Justice dated April 24, 2008 dismissing the application for habeas corpus pursuant to s. 784 (5) of the Criminal Code.
BY THE COURT:
[1] The appellants are serving life sentences for murder. They have been classified as minimum security prisoners and are currently incarcerated at Isabel McNeill House (IMH) in Kingston, Ontario. IMH is a very old building, which was originally designed as a residence and was at one time the home of the deputy warden of Kingston Penitentiary. It has been used as a minimum security facility for women incarcerated in the federal penitentiary system for many years. It has a ten person capacity. At the time these proceedings were commenced there were four prisoners residing at IMH.
[2] Because of its age IMH is in need of a thorough and expensive retrofit. The Correctional Services of Canada (CSC) has decided to close that institution permanently and move the applicants to Grand Valley Institution (GVI) in Kitchener, Ontario. GVI is a multi-level federal penitentiary for women. It contains housing for minimum security prisoners, and separate housing for medium as well as maximum security prisoners. All of the housing is within the same institution and the prisoners share common administrative and recreational facilities. CSC plans to transfer the applicants to the minimum security residences within GVI.
[3] The applicants moved for habeas corpus claiming that the transfer resulted in a deprivation of their residual liberty interest and was unlawful because it was contrary to the relevant legislation and offended various provisions of the Charter.
[4] The application was heard over four days by Scott J. He determined that the applicants had not established that the transfer would deprive them of any residual liberty interest. He also held that the transfer was not in any event unlawful. The appellants appeal from that decision. They remain at IMH and CSC remains determined to close that facility. Of the four original applicants one has since transferred to another institution and, as we understand it, is no longer involved in these proceedings.
[5] The record before Scott J. was massive. The summary provided by him in his reasons and in particular in an appendix he attached to those reasons highlights the differences and similarities between the two institutions. We rely on his summary of the relevant facts.
[6] An applicant who is lawfully in custody and who is seeking relief by way of habeas corpus from an order transferring that applicant to another institution must demonstrate that the transfer would amount to a substantial change in the applicant’s conditions of incarceration, thereby resulting in a deprivation of a residual liberty interest. If the appellant succeeds in showing that deprivation the onus moves to the jailer to demonstrate that the transfer is lawful.
[7] Counsel on appeal acknowledges, correctly in our view, that if she cannot demonstrate that the transfer would result in a deprivation of the applicants’ liberty interest the entire application must fail.
[8] The application judge dealt with the argument that the transfer resulted in the deprivation of the liberty interest. We are in substantial agreement with his analysis of the issue (see paragraphs 43-47). We agree with his observation at paragraph 45:
Given the evidence before me, the transfer from IMH to GVI does not constitute a deprivation of their liberty on probable and reasonable grounds. There are differences between the facilities but these differences are minimal and do not constitute a marked departure from the guidelines which are to be followed by CSC in the treatment and housing of like female prisoners. In fact, were there a facility of the same design and function as GVI located in Kingston, there would be no real basis for this habeas corpus Application. As such, it follows that although the Applicants are being laterally transferred, the geographical change from Kingston to Kitchener is not significant.
[9] In her able submissions, counsel for the applicants submitted that the transfer of the applicants to GVI would result in a deprivation of the applicants’ residual liberty interest for three reasons. First she argued that the added perimeter security at GVI exacerbated the applicant’s sense of confinement and thereby created at least an added psychological deprivation of liberty. It is clear that there is a great deal more perimeter security at GVI, although, unlike IMH, there is no guard within the minimum security residence. One can accept that the added perimeter security enhances the sense that one is in prison. However, in our view, that kind of psychological impact does not affect any residual liberty interests in the relevant sense.
[10] At both GVI and IMH prisoners are not allowed to leave the grounds of the institution without the requisite permission. The added perimeter security obviously makes it more difficult to escape from GVI, but does not limit the residual liberty of the prisoners in any way. In both institutions they are obliged to remain within the perimeter absent permission to go beyond the perimeter. The added security at GVI, no doubt brought about because GVI houses medium and maximum security prisoners as well as minimum security prisoners, does not mean that the minimum security prisoners are any more, or any less, confined than they were at IMH.
[11] Counsel’s second argument is based on the alleged restrictions in the movements within the institution allowed to minimum security prisoners at GVI compared to that available to prisoners at IMH. Counsel submits that there are substantial restrictions at GVI that have no equivalent at IMH.
[12] There are restrictions on the movements of minimum security prisoners at GVI that do not exist at IMH. These restrictions are explained by the very different physical structures of the two institutions. IMH is a relatively small residence and consists of a single building. GVI is a large institution housing women of different security classifications and consists of several different residences and other administrative buildings.
[13] The record indicates that there are some minor limitations imposed on the movement of minimum security prisoners at GVI because of the mixed nature of the prison population. For example, minimum security prisoners must have a pass to move from one building to another, although they can move within their own residence without any such pass. There is nothing in the record to suggest that passes are difficult to get or that movement around the institution for minimum security prisoners is in any way compromised by the pass requirement. Minimum security prisoners are also not allowed in common areas when maximum security prisoners are using those areas. Again there is no suggestion that this limitation is of any significance in the day to day lives of minimum security prisoners at GVI.
[14] The applicant’s argument essentially comes down to the contention that housing different levels of prisoners within the same institution in and of itself results in a deprivation of the liberty interest of minimum security prisoners. We cannot accept that general proposition.
[15] In addition to arguing that there were physical limitations on the movement of minimum security prisoners within GVI, two of the applicants suggested that their movements would be restricted because of subjective safety concerns they have were they to be placed in common areas with medium security prisoners. These subjective concerns cannot in and of themselves rise to the level of establishing a liberty deprivation sufficient to invoke habeas corpus relief.
[16] The third argument advanced by counsel relates to access to the escorted temporary absence program (ETP). She submits that access to that program will be more restricted at GVI than it is at IMH. The record indicates that some of the reasons for granting ETPs at IMH will not be applicable to ETP requests at GVI. For example there are grocery facilities and a library on site at GVI. Consequently prisoners at GVI may not get ETPs to go to the library or the grocery store as they do at IMH. We do not agree that the inability to get an ETP for these purposes because the facilities exist within the institution is a denial of a liberty interest. To the contrary it suggests that the institution is better able to meet the day to day needs of the inmates. The criteria applicable to the granting of ETPs is the same at both institutions. The institution in which a prisoner is located and the facilities available at that institution may have some impact on whether an ETP is granted in a specific situation. Sometimes the circumstances within a particular institution will favour granting the requested ETP while in others the conditions may lead to a determination that the ETP should not be granted. Regardless of the outcome of a particular request for an ETP, the process by which the availability of the ETP is determined is the same in both institutions.
[17] In our view there is no deprivation of any liberty interest flowing from the proposed transfers of the applicants. It follows that the applications for habeas corpus must fail. The appeals are dismissed.
“Doherty J.A.”
“John Laskin J.A.”
“J.C. MacPherson J.A.”