Court File and Parties

COURT FILE NO.: 1075/19 DATE: 20200630 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

Edward Pengelly Applicant – and – Attorney General of Canada Respondent

Counsel: John Dillon, for the Applicant Derek Edwards, for the Respondent

HEARD: March 2, 2020

S.T. Bale J.

Reasons for Decision

[1] Edward Pengelly has applied for a writ of habeas corpus directing that he be released from Warkworth Institution and transferred to an appropriate minimum security institution. At his request, the application was adjourned. However, although I adjourned the underlying application, I agreed to hear Crown counsel’s challenge to this court’s jurisdiction to hear the application.

[2] On May 11, 2017, following an investigation, the applicant was re-classified to medium security, and involuntarily transferred to Warkworth Institution. Prior to that date, he had, for some time, been incarcerated at Joyceville Institution – Minimum Security.

[3] On April 3, 2019, a biennial security classification was conducted, and the applicant was deemed to meet the criteria of a medium-security offender, and to be appropriately located at Warkworth Institution.

[4] On this preliminary motion, Crown counsel argues that this court lacks jurisdiction to grant relief to the applicant, and that the applicant’s sole remedy is an an application to the Federal Court for judicial review. For the following reasons, I disagree.

[5] Provincial superior courts may decline jurisdiction to hear habeas corpus applications in only two very limited circumstances: (1) where a statute such as the Criminal Code confers jurisdiction on a court of appeal to correct the errors of a lower court and release the applicant, if appropriate, or (2) the legislator has put in place a complete, comprehensive and expert procedure for review of an administrative decision: Mission Institution v. Khela, 2014 SCC 24, at para. 42, citing May v. Ferndale Institution, 2005 SCC 82, at para. 50. The first exception does not apply in this case because it does not involve a criminal conviction, but rather administrative decisions made in the prison context. With respect to the second exception, as in Khela, the respondent has offered no argument to suggest that the transfer and review process has, since May, become a “complete, comprehensive and expert procedure.”

[6] In support of his position, Crown counsel relies primarily upon Khela, and Chung v. Alberta (Attorney General), 2017 ABQB 446.

[7] The passage in Khela, relied upon by Crown counsel is the following (at para. 13):

It is important to note that this appeal is now factually moot. On July 23, 2010, the Warden of Mission Institution made another decision to reclassify Mr. Khela as requiring maximum security. As a result of that decision, Mr. Khela was transferred back to Kent Institution, the maximum security facility. This second transfer was the subject of another habeas corpus application, which was dismissed by a judge of the British Columbia Supreme Court. Mr. Khela did not appeal the dismissal of that application. The lawfulness of his current incarceration is therefore not before this Court. [Citations omitted.]

[8] Relying upon that passage, Crown counsel argues that the 2017 re-classification cannot be challenged, because it was superseded by the 2019 biennial classification. However, the present case is easily distinguished from Khela: there has been no prior determination of the lawfulness of the second (2019) classification – it is one of the subjects of this habeas corpus application. I also note that the passage relied upon by Crown counsel addresses the issue of mootness on appeal, and not jurisdiction.

[9] The passage in Chung relied upon by Crown counsel is the following (at para. 45):

Second, Mr. Chung cannot use habeas corpus to challenge any decision other than the decision that led him to initially be detained. Habeas corpus is not a basis to challenge a decision that denies a person release from detention, or which denies a step that would result in an increase in residual liberty. [Citations omitted].

[10] Relying upon this passage, Crown counsel argues that the 2019 biennial security classification cannot be challenged, because the deprivation of residual liberty resulted from the 2017 re-classification. However, the passage needs to be read in context. Mr. Chung was in segregation at a provincial remand centre and complained that the processes by which his ongoing segregation was reviewed were arbitrary and conducted in bad faith. The court held that “habeas corpus is not a remedy for a complaint of that kind.” While that may be, it is a remedy by which a security level classification may be challenged. I also note that no question of jurisdiction was raised in Chung.

[11] The fact is that the applicant had been in minimum security, is now in medium security, and challenges both the 2017 and 2019 classifications. Crown counsel is, in effect, arguing that successive classifications of an inmate to the same security level may prohibit him from challenging either decision by way of habeas corpus. Counsel concedes that if the present application were made prior to the 2019 classification, the court would have jurisdiction to hear it, but says that it “just happened” that the 2019 classification intervened. However, to allow a prisoner’s rights to be determined by happenstance would be both intolerable and contrary to the underlying goal of habeas corpus: that no one should be deprived of their liberty without lawful authority. “This remedy is crucial to those whose residual liberty has been taken from them by the state, and this alone suffices to ensure that it is rarely subject to restrictions”: Khela, at para. 54.

[12] For the reasons given, the respondent’s motion to dismiss the application for want of jurisdiction is dismissed.

“S.T. Bale J.” Released: June 30, 2020