CITATION: Ahmad v. Canada (Attorney General), 2015 ONSC 7010

COURT FILE NO.: CR-15-296-MO

DATE: 2015 Dec 01

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

FAHIM AHMAD

Applicant

– and –

ATTORNEY GENERAL OF CANADA and THE WARDEN OF MILLHAVEN INSTITUTION

Respondents

M. Mandelcorn, for the Applicant

H. Robertson, for the Respondents

HEARD: November 12, 2015

TRANMER, j.

decision on application for habeas corpus

BACKGROUND

[1] The Applicant is serving a federal sentence of incarceration of 7 years and 3 months which sentence began on October 25, 2010.

[2] He began to serve this sentence at the super maximum security institution in Québec.

[3] In August of 2012, he was transferred to Millhaven Institution, a maximum security institution.

[4] The Applicant cites two factors in support of his application. Firstly, a psychological/psychiatric assessment report dated December 12, 2014, concluded that there were no current significant psychological contraindications to transfer to medium security if and when his CMT are supportive of such a move.

[5] Secondly, on January 12, 2015, the Applicant applied for transfer to Collins Bay, a medium security institution, and the Security Reclassification Scale indicated a medium security reclassification.

[6] However, the CMT recommended an override and that maximum security be maintained. The warden agreed with this and the maximum security classification has been maintained.

THE APPLICATION

[7] The Applicant seeks a writ of habeas corpus with certiorari in aid thereof, and an order declaring that the decision to override the SRS has given rise to an unlawful deprivation of liberty. He submits that that deprivation is unlawful and that this court should order his transfer to a medium security institution.

THE LAW

[8] On this application, the Applicant must establish firstly that he or she has been deprived of his or her liberty. If the Applicant is successful in doing so, then the onus falls on the Respondent to prove that that deprivation of liberty was lawful.

[9] The Respondent submits that the Applicant has not established a deprivation of liberty.

[10] In Dumas v. The Director of the Leclerc Institute of Laval, 1986 CanLII 38 (SCC), [1986] 2 SCR 459, the Supreme Court of Canada referred to its decision in R. v. Miller, 1985 CanLII 22 (SCC), [1985] 2 SCR 613, quoting as follows, “habeas corpus should lie to determine the validity of a particular form of confinement in a penitentiary… Confinement in a special handling unit, or in administrative segregation … as a form of detention that is distinct and separate from that imposed on the general inmate population. It involves a significant reduction in the residual liberty of the inmate. It is in fact a new detention of the inmate, purporting to rest on its own foundation of legal authority. It is that particular form of detention or deprivation of liberty which is the object of the challenge by habeas corpus. It is release from that form of detention that is sought… But it should lie in my opinion to challenge the validity of a distinct form of 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”.

[11] In Dumas, the Court stated at page 464, “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 the continuation of the deprivation of liberty… The continuation of an initially valid deprivation of liberty can be challenged by way of habeas corpus only if it becomes unlawful. In the context of parole, the continued detention of an inmate will only become unlawful if he has acquired the status of a parolee. An inmate acquires that status as of the moment the decision to grant him parole takes effect. Thus, if parole is granted effective immediately, he becomes a parolee when the decision is rendered. If, for some reason, the restriction of his liberty continues, he may then have access to habeas corpus…”.

[12] In [Mission Institution v. Khela 2014 SCC 24](https://www.minicounsel.ca/scc/2014/24