CITATION: Muir v. Canada (AG), 2015 ONSC 3593
COURT FILE NO.: CR-15-100-MO
DATE: 2015 June 08
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
DAVID MUIR
Applicant
– and –
THE ATTORNEY GENERAL OF CANADA
Respondent
Fergus J. O’Connor, for the Applicant
Helene Robertson, for the Respondent
HEARD: May 29, 2015 at Kingston
BELCH, J.
Habeas corpus Decision
BACKGROUND
[1] David Muir, (Applicant) applies for an order issuing a Writ of Habeas corpus ad Subjiciendum with Certiorari in aid. The Attorney General of Canada, (Respondent) opposes the application.
[2] For the reasons that follow, the application is denied.
[3] The Applicant is serving a three year and 69 day sentence for robbery, disguise with intent, failure to comply with a probation order, possession of property obtained by crime and use of imitation firearm. His sentence commenced in June 2013 and his statutory release date is August 27, 2015.
[4] The Applicant is currently housed in Millhaven Penitentiary in Ontario, a maximum security institution. In December 2014, the Respondent decided to involuntarily transfer the Applicant to Kent Institution, a maximum security penitentiary in British Columbia. The Applicant challenges this transfer by habeas corpus. The Respondent notes both institutions are maximum security, however, the plan is to transfer the Applicant from segregation in maximum security at Millhaven to the general population in maximum security at Kent. The Respondent submits that without a change in security classification, this transfer does not constitute deprivation of liberty, in fact, the Applicant’s liberty will be increased.
[5] The Applicant opposes the transfer as unlawful, arguing if the transfer occurs, it will cause him great hardship and deprivation of liberty for the following reasons:
a. he has only three months left to serve in custody;
b. all of his family support is in Ontario;
c. he has serious physical and mental health problems with which medical personnel at Millhaven are already familiar;
d. he has retained legal counsel in Ontario, three different lawyers, to assist in seeking proper medical attention, to assist him in dealing with the consequences of catastrophic injuries he suffered in 2003, and to represent him before the Parole Board of Canada;
e. although the reason given for this involuntary transfer is to alleviate segregation status, he expects to be segregated in British Columbia, given there are incompatibles at Kent; and finally,
f. he consents to remaining in segregation at Millhaven.
[6] The Respondent submits the record shows the Applicant has not received a family visit while in administrative segregation, that he complains about the medical attention offered to him at Millhaven, at times refusing to accept some of what is offered, he can instruct legal counsel at a distance and already does so in relation to his personal injury counsel located in Whitby, Ontario, and finally, he has alone been responsible for postponing his parole hearing first scheduled for June 2014 and recently, he has waived the parole hearing altogether.
ISSUES
[7] The Applicant identifies the issue as whether habeas corpus lies to prevent an unlawful imprisonment before it happens.
[8] For the Respondent, the issue is; has the Applicant established, on a balance of probabilities, that he will suffer at deprivation of liberty as a result of the proposed transfer and, if he establishes a deprivation of liberty, is the proposed transfer lawful?
THE LAW
[9] Section 28 and section 29 of the Corrections and Conditional Release Act, S.C. 1992, s. 140 (Act ) provide as follows:
- If 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 they are confined is one that provides them with an environment that contains only the necessary restrictions, 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;
(b) accessibility to
(i) the person’s home community and family,
(ii) a compatible cultural environment, and
(iii) a compatible linguistic environment; and
(c) the availability of appropriate programs and services and the person’s willingness to participate in those programs.
- The Commissioner may authorize the transfer of a person who is sentenced, transferred or committed to a penitentiary to
(a) another penitentiary in accordance with the regulations made under paragraph 96(d), subject to section 28;
[10] The Applicant argues, bearing in mind section 28 of the Act, that habeas corpus is available to prevent a transfer from one region to another and it has been held that in appropriate circumstances habeas corpus will lie to prevent Correction Services Canada, (CSC) from housing a prisoner far from his home and support network and here it is not just far from home and family support, but also from attending physicians and psychiatrists familiar with his health issues as well as his current legal representation.
[11] The Applicant relies upon Bonamy v. Correction Service Canada (Commissioner), 2000 SKQB 385. In that case, the applicant, Bonamy sought an order to transfer him from Saskatchewan Penitentiary, a medium security facility located at Prince Albert to a minimum security penitentiary in British Columbia. In commenting on section 28 of the Act, at paragraph 20, the court held “In my opinion, the placement of the applicant in a facility approximately 2000 kilometres from his home community, without any justification for doing so, results in a confinement of the applicant far more severe than contemplated by the Act. It denied him easy access to his family and friends and to that extent it constitutes a form of isolation that s. 28(b) seeks to avoid. In my view, the isolation impinges upon the applicant’s residual liberty within the prison system comparable to that considered in Miller v. The Queen, supra. There, the prisoner was isolated from the company of the general prison population. In the instant case, the applicant is isolated from his family and friends by virtue of the substantial travel distance and the obvious resulting costs.”
[12] Counsel for the Respondent submits that on a principled basis, the court should not follow Bonamy for three reasons:
a. the case appears to have been followed only once, while the weight of subsequent jurisprudence disagrees with its conclusions. In Attorney General of Canada v. Desmond, File No. CR-15-126-00MO, the Ontario Superior Court held an involuntary interregional transfer between administrative segregation and general population in institutions of the same security classification was “at best, lateral transfer.” In R. v. Green, 2009 ABQB 233, the Alberta Court of Queen’s Bench concluded a transfer from maximum security to maximum security did not constitute a deprivation of liberty. In Wood v. Canada (Atlantic Institution), 2014 NBQB 135, the New Brunswick Court of Queen’s Bench held the writ of habeas corpus cannot by remedy functionally reach certain alleged reductions or restrictions in residual liberty - the continuation of the same security classification being one.”
b. In R. v. Blanchard, 2011 SKCA 60, the Saskatchewan Court of Appeal decided the transfer of an inmate from voluntary segregation in one province to the general population in another province did not constitute at deprivation of liberty.
c. Based on the above considerations, Bonamy is not binding on this Court, is not persuasive and should not be followed in Ontario.
[13] Further, the Applicant argues the decision to effect an involuntary transfer to Kent in all the circumstances is unreasonable, contrary to the principles of fundamental justice, and therefore unlawful. The Applicant relies upon Mission Institution v. Khela, 2014 SCC 24 (Khela) where the Supreme Court of Canada held, “in my view, superior courts are entitled to review an inmate transfer decision for reasonableness on an application for habeas corpus with certiorari in aid. If a decision is unreasonable, it will be unlawful. Support for this conclusion can be found in the nature of the writ, in past court decisions regarding the writ, and in the importance of swift access to justice for those who have been unlawfully deprived of their liberty.” The Applicant respectfully submitted that the decision to effect an involuntary transfer to Kent maximum security penitentiary in British Columbia in this case, in all the circumstances, is unreasonable and therefore, unlawful.
[14] The Respondent argues the Supreme Court of Canada outlined what constituted a deprivation of liberty in Dumas v. Leclerc Institute, 1986 CanLII 38 (SCC), [1986] 2 SCR 459 holding as follows: “in the context of correctional law, there are three different deprivations of liberty: the initial deprivation of liberty, a substantial change in conditions amounting to a further deprivation of liberty, and a continuation of the deprivation of liberty.”
[15] The Respondent argues there has been no substantial change in conditions amounting to a further deprivation of liberty, and neither of the other two types of deprivation is applicable to the Applicant’s case. In fact, to the extent that there will be a substantial change in his liberty, it would involve an increase to the Applicant’s liberty.
[16] The Applicant also requested an interlocutory order as appropriate and necessary to prevent the transfer that is imminently threatened and to allow adjudication on the merits in due course.
[17] The motion for interlocutory relief in this file was heard April 17, 2015 and the decision released May 20, 2015 by Tranmer, J. who was satisfied the Federal Court Act, R.S.C., specifically, section 18(1)(a), provided the Federal Court with exclusive original jurisdiction to issue an injunction against any federal tribunal and he could not find “the facts of this case reach the threshold of probable and reasonable grounds sufficient to establish at this point that his transfer would prima facie constitute at deprivation of liberty as was the case in Dodd. On its face, the transfer is from maximum security segregation to maximum security general population. That is an increase in Mr. Muir’s liberty.”
[18] The Respondent submits the court is bound by that decision; the Applicant argues the ratio of that case is confined to interrogatory relief. I agree with the Applicant’s position.
[19] Both sides agreed the case of May v. Ferndale 2005 SCC 82, [2005] 3 S.C.R. 809 (May) establishes the test to follow in terms of onus of proof in a habeas corpus proceeding. The onus is on the applicant to establish a deprivation; and the onus is on the respondent jailer then to establish the legality of the imprisonment.
ANALYSIS AND CONCLUSION
[20] As mentioned, the Applicant opposes the transfer arguing it is unlawful and will result in a deprivation of his liberty. The reason the transfer is unlawful is because it is unreasonable as the Respondent has failed to follow its statutory duty to consider his home community and family. The Applicant describes his deprivation as loss of residual liberty. What is residual liberty?
[21] Le Dain, J. in R. v. Miller, 1985 CanLII 22 (SCC), [1985] 2 S.C.R. 613 concluded confinement in a special handling unit involved a significant reduction in the residual liberty of the inmate. At paragraph 28 of May, the court noted it was the view of Justice Le Dain that, “habeas corpus should lie to challenge the validity of a distinct form of a confinement or detention in which the actual physical constraint or deprivation of liberty, as distinct from the mere loss of certain privileges, is more restrictive or severe than the normal one in an institution.”
[22] Mr. Muir’s situation does not involve a change in actual physical constraint. Nevertheless, in Bonamy, the court held a transfer similar to Mr. Muir’s constitutes a form of isolation that section 28 of the Act seeks to avoid provided “there is no justification for doing so.” That isolation “results in a confinement of the applicant far more severe than contemplated by the Act… and impinges upon the Applicant’s residual liberty within the prison system … isolated from his family and friends by virtue of the substantial travel distance and the obvious resulting costs.”
[23] At paragraph 34 of Khela, the Supreme Court again refers to Miller and the remarks of Le Dain J. before deciding, “decisions which might affect an offender’s residual liberty include, but are not limited to, administrative segregation, confinement in a special handling unit and, as in the case at bar, a transfer to a higher security institution.” That is not the case with Mr. Muir.
[24] Jurisprudence dealing with similar transfers, decided subsequent to Bonamy, has held, interregional involuntary transfer between administrative segregation and general population in institutions of the same security classification was “at best, lateral transfer” (Desmond). Transfer from maximum security to maximum security did not constitute a deprivation of liberty (Green). Habeas corpus cannot remedy certain alleged reductions or restrictions in residual liberty (Wood). And transferring an inmate from involuntary segregation in one province to the general population in another province did not constitute a deprivation of liberty. (Blanchard). Only Desmond involves an Ontario Superior Court.
[25] Should decisions from other provincial courts be accepted as persuasive? Given these decisions involve Canada’s Criminal Code and federal statutes dealing with incarceration under that Code, it would seem logical that how an inmate is transferred or confined should be dealt with similarly across Canada.
[26] The court is satisfied not all losses of residual liberty can be remedied by habeas corpus and Mr. Muir’s case is one of those that cannot. The court is not convinced he would suffer a deprivation of liberty if transferred to Kent and his application for habeas corpus fails on that ground.
[27] However, if the court’s finding is incorrect, has the Applicant raised a legitimate ground to question the legality of the transfer? If he has, the onus shifts to the Respondent to show the deprivation of liberty was lawful? This involves the issue of reasonableness.
[28] In Khela, the Supreme Court of Canada holds a provincial Superior Court on a habeas corpus application can address reasonableness and review a transfer decision for procedural fairness.
[29] The Applicant argues the Respondent has a statutory duty pursuant to section 28 of the Act to take all reasonable steps to ensure that in selecting the penitentiary in which the inmate is to be confined, accessibility to the inmate’s home community and family has been considered. Mr. Muir submits his transfer from Millhaven to Kent Institution removes him from family, medical attention and legal representation rendering the transfer unreasonable.
[30] As previously mentioned, the Respondent submits the Applicant has not received family visits while in administrative segregation, complains about medical attention offered to him even to the point of refusing some of it, and he is able to instruct legal counsel at a distance. One of the reasons for delaying the transfer from Ontario to British Columbia was to accommodate a scheduled parole hearing, however, Mr. Muir, alone, postponed the hearing more than once and eventually waived his right for the hearing. The necessity of keeping Mr. Muir in Ontario for this reason is now removed.
[31] The court rejects the Applicant’s argument that the Respondent breached section 28 of the Act. The Respondent has provided its reasons for the proposed transfer taking accessibility to Mr. Muir’s home community and family into account.
[32] There is an evidentiary foundation regarding section 28 showing the transfer was neither arbitrary nor unreasonable. The standard of review is reasonableness.
[33] The Supreme Court of Canada addressed standard of review at para 75 of Khela.
75 A review to determine whether a decision was reasonable, and therefore lawful, necessarily requires deference (Dunsmuir, at para. 47; Canada (Citizenship and Immigration) v. Khosa, 2009 SCC 12, [2009] 1 S.C.R. 339, at para. 59; Newfoundland and Labrador Nurses' Union, at paras. 11-12). An involuntary transfer decision is nonetheless an administrative decision made by a decision maker with expertise in the environment of a particular penitentiary. To apply any standard other than reasonableness in reviewing such a decision could well lead to the micromanagement of prisons by the courts.
[34] This court is satisfied the Respondent has complied with the duty of procedural fairness thus satisfying the standard of review.
[35] In reaching this conclusion, the court observes section 28 contains other statutory duties to be considered as well by the Respondent, namely, to ensure the inmate is confined in an environment that contains only the necessary restrictions and the availability of appropriate programs and services for the inmate. Mr. Muir is in involuntary segregation which is more confining than serving his sentence in the general population. At Millhaven, the reason for segregation relates back to a fracas with other inmates. Mr. Muir has “incompatibles” at Millhaven. He advises he also has “incompatibles” at Kent which is acknowledged by the officials at Kent, however, Kent advises it is confident Mr. Muir can be safely held within the general population there. The goal of penitentiary officials is to keep to a minimum, if at all possible, the length of time an inmate spends in segregation. Transferring Mr. Muir from maximum security segregation to maximum security general population will meet that goal.
[36] If Mr. Muir is correct in concluding it will be necessary to keep him in segregation at Kent then he will be able to challenge the possible transfer from general to segregation at Kent by habeas corpus as a deprivation of liberty although with only three months to serve habeas corpus could be “moot.”
[37] The Respondent advises it cannot provide the programming to assist Mr. Muir with reintegration into the community upon release while Mr. Muir is confined in segregation. This programming is only available when an inmate is within the general population.
[38] Accordingly, the court is satisfied the decision to transfer is reasonable and therefore lawful as there is no evidence of bad faith or improper motives in the transfer given the respondent is observing two of the three statutory duties found in section 28 while noting the remaining duty to keep Mr. Muir close to his home community and family has been considered. In so doing, I am in accord with paragraph 30 of Green.
[39] There are many types of administrative decisions that must be made in the normal day-to-day operation of a prison which may negatively impact an individual prisoner’s liberty in some way, but if each of these entitled that prisoner to apply for habeas corpus that would have an enormous impact on the ability of Corrections Canada to operate and manage prisons in Canada. No case authority goes so far as to allow the remedy where the negative effect of the transfer complained of is simply that the prisoner will have less contact with family and friends due to an increase in geographic distance from them.
[40] While Bonamy appears to dispute that conclusion, it must be remembered the court in Bonamy qualified its finding by adding “without any justification for doing so.” I am satisfied the Respondent has provided justification for doing so by fully complying with section 28.
COSTS
[41] Both parties seek costs against the other. While the respondent has been successful and normally costs would follow success, there has been no evidence that Mr. Muir has the ability to pay which is an important consideration in assessing costs. No costs.
Honourable Mr. Justice Douglas M. Belch
Released: June 08, 2015
CITATION: Muir v. Canada (AG), 2015 ONSC 3593
COURT FILE NO.: CR-15-100-MO
DATE: 2015 June 08
ONTARIO
SUPERIOR COURT OF JUSTICE
DAVID MUIR
Applicant
– and –
THE ATTORNEY GENERAL OF CANADA
Respondent
HABEAS CORPUS DECISION
Belch, J.
Released: June 08, 2015