Court File and Parties

Court File No.: 25-09/25-10

Date: 2025-09-29

Ontario Superior Court of Justice

Between:

Attorney General of Canada, Applicant (Responding Party on the Underlying Application)

– and –

Derrick Blackett and Alvin Boyce, Respondents (Moving Party on the Underlying Application)

Counsel

Valeriya Sharypkina for the Attorney General of Canada

John Dillion for Mr. Blackett and Mr. Boyce

Hearing

Heard: June 4, 2025 (Kingston); oral decision given September 25, 2025

Reasons for Ruling on Motion for Summary Judgment

Anne London-Weinstein J.

Decision

[1] The Respondents are two African-Canadian men who are now inmates at Joyceville Institution ("JI"). They are both serving life sentences for second degree murder. They were both granted Community Service Escorted Temporary Absences ("ETA") in May of 2024. The ETAs were cancelled after a proceeding in which the corrections official who investigated the complaint against the Respondents also acted as the adjudicator of the internal misconduct hearing. They brought a writ of habeas corpus before the Superior Court of Justice. The Applicant seeks summary dismissal of that application.

[2] The Applicant argues that the cancellation of the ETAs does not impair the liberty interests of the Respondents and therefore a writ of habeas corpus has no application. The Applicant seeks summary dismissal of the Respondents' writ of habeas corpus.

Background

[3] Alvin Boyce is a 42-year-old Afro-Canadian first-time federal offender serving a life sentence with a 13-year period of parole ineligibility at JI minimum-security. He was convicted of the September 9, 2008, murder of Alex Meshi. Derrick Blackett is a 39-year-old Afro-Canadian first-time federal offender serving a life sentence with a 12-year period of parole ineligibility at JI. He was convicted of the September 2015 murder of Mark Ian Bramley.

[4] Mr. Boyce has been eligible for day parole since September 15, 2018. On May 22, 2024, the Parole Board of Canada granted him an ETA. Mr. Blackett has been eligible for day parole since December 11, 2024. On October 31, 2023, the Parole Board of Canada granted him a one-year package of ETAs.

[5] For a "lifer", ETAs are critically important to rehabilitation and reintegration into the community. Almost every lifer must complete a package of ETAs. They can be for community service or even just to access church services in the community.

[6] After completing the ETAs, the next step would be for the lifer to complete a series of Unescorted Temporary Absences ("UTA"). This would be followed by a period of day parole, and finally full parole. Losing an ETA pushes the process back two to five years or more.

[7] On June 5, 2024, the house that the Respondents shared with other inmates was searched by correctional officers. They were advised that approximately three packages of tobacco and 54 Gabapentin pills were found in a common living area of the house. The Respondents assert that they had no knowledge of that contraband and advised the correctional authorities of their lack of knowledge.

[8] The inmates who shared the house spoke about the contraband. No one admitted to owning the contraband. The Respondents denied conspiring with anyone as to what would be said regarding the contraband, and no one admitted to owning the contraband.

[9] On June 6, 2024, Mr. Boyce was interviewed by Correctional Manager ("CM") Steele and Security Intelligence Officer ("SIO") LaSalle about the contraband. He denied owning the contraband and he denied knowing who owned it. The authorities described him as being "uncooperative, belligerent and claiming no knowledge of the contraband found". Mr. Boyce agrees that he said he had no knowledge of the contraband, and he maintains that position; however, he denies that he was uncooperative or belligerent. He maintains that he fully cooperated and told the truth.

[10] Mr. Boyce asserts that CM Steele and SIO LaSalle were attempting to have him inform on his house mates. Mr. Boyce knows from his years of living in prison that informers can be beaten up and even killed.

[11] Mr. Boyce maintains that CM Steele and SIO Lasalle threatened to increase his security level from minimum to medium or maximum because they were unhappy with his responses to them.

[12] Mr. Boyce asked about what he had done that could be described as belligerent. CM Steele did not answer this question. Mr. Boyce was not provided with any details which would underpin the allegations of him being allegedly uncooperative or belligerent. Mr. Boyce admits that he was terse, and merely advised the authorities that he had no knowledge with regard to the contraband. He specifically denies being belligerent or uncooperative.

[13] The authorities at JI made the decision to punish all of the residents of the house for the actions of the person who introduced the contraband, according to Mr. Boyce. It was decided that everyone who had ETAs would lose them, and all of the residents of the house would give up their single cells and be double bunked with other offenders. At a meeting, Mr. Boyce asked Assistant Warden, Operations ("AWO") Ketcheson if he agreed with how they were being treated. AWO Ketcheson advised he was in complete agreement with CM Steele. Later, Mr. Boyce's parole officer told him that they were being moved to double-bunked cells for health and safety reasons.

[14] Mr. Boyce indicates that CM Steele and SIO LaSalle came to the Inmate Committee Office and told the inmates that they all had to move. CM Steele gave the order to move. One of the housemates, not Mr. Boyce, was animated and upset. Subsequently, this inmate was involuntarily transferred to JI medium security. Mr. Boyce suspects that the authorities believed that the transferred inmate owned the contraband, which is why he was transferred. Mr. Boyce denies being aggressive with the authorities when they came to speak to them at the Inmate Committee Office.

[15] A number of inmates were charged as a result of this contraband incident. Mr. Boyce was charged under the Corrections and Conditional Release Act, S.C. 1992, c. 20, with a s. 40 (r) offence of "disobeys a written rule governing the conduct of inmates". Mr. Boyce is of the view that this is not the correct charge. He believes that the correct charge would have been a s. 40(a) charge of "disobeys a justifiable order of a staff member". The order he was alleged to have disobeyed was an order made by CM Steele. When Mr. Boyce attended his hearing, it was CM Steele who adjudicated over the hearing and found him guilty, despite being directly involved in the incident and being the individual who issued the order in question. Mr. Boyce had asked that a decision maker who was not involved in charging him adjudicate over his proceeding, but this was denied.

[16] Mr. Boyce argues that the process by which authorities made the decision to remove his ETAs was not made in accordance with the principles of fundamental justice.

[17] Mr. Boyce seeks an order in the nature of a writ of habeas corpus ordering that his ETAs be reinstated. He also seeks costs.

[18] The Crown brings a motion for summary dismissal of Mr. Boyce's writ of Habeas Corpus. The Crown argues that because there is no deprivation of liberty in this case, the matter cannot succeed. Further, the Crown argues that the writ of habeas corpus is not the appropriate remedy, and instead, the matter should be reviewed in the Federal Court of Canada by way of judicial review. The Applicant's position is that that the matter is manifestly frivolous and does not have a reasonable chance of success. The Crown argues that there is no factual or legal basis to grant the order sought and seeks summary dismissal of the underlying application.

Legal Analysis

The Nature of Habeas Corpus

Section 10(c) of the Canadian Charter of Rights and Freedoms states:

Everyone has the right on arrest or detention:

(c) To have the validity of the detention determined by way of habeas corpus and to be released if the detention is not lawful.

[19] The writ of habeas corpus is a mechanism by which the justification of a person's detention may be reviewed: Mission Institution v. Khela, 2014 SCC 24, [2014] 1 S.C.R. 502, at para. 27.

[20] It has been described as a critical remedy in the pursuit of the fundamental right to liberty and not to be deprived thereof except in accordance with the principles of fundamental justice and the related right not to be arbitrarily detained or imprisoned. These rights are set out in s.7 and s. 9 of the Charter respectively: see May v. Ferndale Institution, 2005 SCC 82, [2005] 3 S.C.R. 809.

[21] To be successful, an application for habeas corpus must meet the following criteria. First, the applicant must establish that he or she has been deprived of liberty. Upon establishing a deprivation of liberty, the applicant must raise a legitimate ground upon which to question its legality. Once this ground has been established, the onus shifts to the respondent requiring that the deprivation of liberty is lawful: Khela, at para. 30.

Jurisdiction to Hear Habeas Corpus Applications

[22] In Khela, May, and a number of other decisions, the issue of jurisdiction regarding habeas corpus has been discussed: see Idziak v. Canada (Minister of Justice), [1992] 3 S.C.R. 631; Peiroo v. Canada (Minister of Employment and Immigration), 69 O.R. (2d) 253 (C.A.), leave to appeal to S.C.C. refused, [1989] 2 S.C.C.A. No. 332; Canada (Public Safety and Emergency Preparedness) v. Chhina, 2019 SCC 29, [2019] 2 S.C.R. 467; Khela, at para. 32; and May, at para. 44.

[23] In Peiroo, the court indicated that superior courts should decline to exercise habeas corpus jurisdiction where the legislature has put in place a complete, comprehensive and expert procedure for review of an administrative decision that is at least as broad as that available by way of habeas corpus and no less advantageous. The court found that the administrative scheme in the then in force Immigration Act, R.S.C. 1985, c. I-2, to be such a complete procedure: pp. 261-62. The Peiroo exception to the exercise of habeas corpus jurisdiction was reaffirmed by the Supreme Court of Canada in May and Khela.

[24] However, in Chhina, the Supreme Court of Canada narrowed this exception. In Chhina, the Supreme Court indicated that provincial superior courts, in determining whether to assume jurisdiction over a federal immigration detention matter, must first consider the articulated grounds on which the habeas corpus is grounded.

[25] If the institutional scheme is not as advantageous and as broad with respect to the specific grounds objected to, it is appropriate for the superior court to assume jurisdiction.

[26] That is not to say that upon hearing the application that a superior court may necessarily order the reinstatement of the ETA privileges. There is a discretion vested in the superior court in determining what order will be made. The writ is mandatory upon the court, but release as a remedy at common law is discretionary: see Khela, para. 78. The term release in the context of this case should be understood as the ordering of the reinstatement of the ETA privileges.

[27] In this case, the Respondents argue that they have been denied procedural fairness in that the correctional officer who investigated the alleged contraband incident also served as the adjudicator at their hearing.

[28] In Cardinal v. Director of Kent Institution, [1985] 2 S.C.R. 643, the Supreme Court of Canada considered whether the Supreme Court of British Columbia had jurisdiction to issue certiorari in aid of habeas corpus, despite the exclusive jurisdiction by way of certiorari of the Federal Court of Canada under s.18 of the then in force Federal Court Act, R.S.C. 1970 (2nd Supp.) c. 10.

[29] In Cardinal, the appellants were prisoners who were allegedly involved in a hostage-taking incident in Matsqui Institution. Criminal charges of forcible seizure and attempted escape were laid against them. They were transferred to Kent Institution where they were placed, on the director's oral instructions, in administrative segregation pursuant to s. 40 of the Penitentiary Service Regulations, C.R.C. 1978, c. 1251, on the ground that it was necessary for the maintenance of good order and discipline in the institution. The director failed to make an independent inquiry into the alleged involvement of the appellants in the hostage-taking incident but relied solely on what he had gathered from the warden of Matsqui Institution and staff at regional headquarters.

[30] The Segregation Review Board, which reviewed the appellants' segregation monthly in accordance with s. 40 of the Regulations, recommended that they be released from administrative segregation into the general prison population. The director declined to follow the Board's recommendation as to do so prior to the resolution of the criminal charges against them would "probably" or "possibly" introduce an unsettling element into the prison population. The director failed to inform the appellants of his reasons for refusing to follow the Board's recommendation and did not give them an opportunity to be heard as to whether he should act in compliance with this recommendation.

[31] The Appellants challenged their continued confinement in administrative segregation by applications for habeas corpus with certiorari in aid. The Supreme Court of Canada held that the court had jurisdiction to issue certiorari in aid of habeas corpus despite the exclusive jurisdiction by way of certiorari of the Federal Court of Canada under s. 18 of the Federal Court Act, and that habeas corpus would lie to determine the validity of the confinement in administrative segregation: pp. 652-53. On the merits of the application, the Supreme Court decided that the director failed to provide the appellants with a fair hearing regarding whether he should follow the Board's recommendation to release them from administrative segregation into the institution's general population. As a result of this breach of the duty of procedural fairness, the appellants' continued segregation was unlawful. The appellants were therefore entitled, by way of habeas corpus, to be released from administrative segregation and reintegrated into the general population of the penitentiary: p. 661.

[32] The Supreme Court of Canada pointed out that at common law, a duty of procedural fairness lies on every public authority making an administrative decision which is not of a legislative nature, and which affects the rights, privileges or interests of an individual. The duty of procedural fairness has been held to apply in principle to disciplinary proceedings within the penitentiary: see Cardinal, at p. 653, citing Nicholson v. Haldimand-Norfolk Regional Board of Commissioners of Police, [1979] 1 S.C.R. 311; Martineau v. Matsqui Institution Disciplinary Board (No. 2), [1980] 1 S.C.R. 602; and Attorney General of Canada v. Inuit Tapirisat of Canada, [1980] 2 S.C.R. 735. In Cardinal, the Supreme Court, citing Martineau (no. 2), held that the duty of procedural fairness applied in principle to disciplinary proceedings within a penitentiary. Although administrative segregation is distinguished from punitive or disciplinary segregation under s. 40 of the Penitentiary Service Regulations, its effect on the inmate in either case is the same and as such gives rise to a duty to act fairly: p. 653.

[33] The Supreme Court concluded that by his failure to afford the appellants a fair hearing on the question of whether he should act in accordance with the recommendation of the Board, the director rendered the continued segregation of the appellants unlawful, giving rise to the right for them on habeas corpus to be released from administrative segregation: p. 661.

[34] In this case, the Respondents argue that they were denied procedural fairness because the individual who investigated the alleged misconduct also served as the adjudicator, despite their request for his recusal in favour of a more neutral decision-maker. In my view, there is certainly an argument to be made that this amounted to a breach of procedural fairness.

[35] It is well established that the removal of an adjudicator is appropriate where a reasonable apprehension of bias has been demonstrated. The applicable legal test was set out in Committee for Justice and Liberty et al. v. National Energy Board, [1978] 1 S.C.R. 369, at p. 394.

[36] The apprehension of bias must be a reasonable one, held by reasonable and right-minded persons applying themselves to the question and obtaining thereon the required information. The test is "what would an informed person, viewing the matter realistically and practically—and having thought the matter through—conclude.": Committee for Justice and Liberty, at p. 394.

[37] There is also a strong presumption of judicial impartiality and integrity. The onus rests on the applicant to demonstrate a reasonable apprehension of bias, and the threshold is a high one: Ontario Provincial Police v. MacDonald, 2009 ONCA 805, 255 O.A.C. 376, at para. 44; R v. Brown, 64 O.R. (3d) 161 (C.A.), at paras. 37-39.

[38] The motion by the Applicant is for summary dismissal. The Applicant has not established that the Respondents application can be declared manifestly frivolous on the basis of jurisdiction: see R. v. Haevischer, 2023 SCC 11. This is a rigorous standard which permits most applications to be decided on their merits.

[39] However, the Applicant also argues that the Respondents application should be dismissed as there is no deprivation of liberty at issue in this case.

[40] Almost 40 years ago the Supreme Court of Canada identified three significant types of liberty deprivation within penitentiaries that are capable of review under habeas corpus. Lamer J. stated "in the context of correctional law, there are three significant deprivations of liberty: the initial deprivation of liberty, a substantial change in conditions amounting to a further deprivation of liberty and a continued deprivation of liberty.": Dumas v. Leclerc Institute, [1986] 2 S.C.R. 459, at p. 464.

[41] This case would fall into the third category of a continued deprivation of liberty arising from the alleged flawed adjudicative hearing process.

[42] In addition to habeas corpus being available in the above referenced correctional law scenarios, the Supreme Court of Canada has also held that the scope of a provincial superior court's review power on an application for habeas corpus extends to examine the reasonableness of administrative decisions made by prison authorities: see Khela, at para. 72.

[43] The facts in Khela were that the respondent was a federal inmate serving a life sentence for first-degree murder at Kent Institution in British Columbia. After three years at this maximum-security facility, he was transferred to Mission Institution, a medium security facility.

[44] In 2009, an inmate was stabbed at Mission Institution. Roughly one week after the stabbing, a Security Intelligence Report was completed which contained information that the respondent, Mr. Khela, had hired two other inmates to carry out the stabbing in exchange for three grams of heroin. As a result, Mr. Khela was involuntarily transferred back to the maximum-security facility on an emergency basis after the warden reassessed his security classification. It is this transfer that was the subject of Mr. Khela's initial habeas corpus application. He claimed that this transfer to a higher security institution was both unreasonable and procedurally unfair, and therefore unlawful. Both the British Columbia Supreme Court and, on appeal, the British Columbia Court of Appeal, agreed that Mr. Khela's habeas corpus application should be granted.

[45] The Supreme Court of Canada held that on an application for habeas corpus, a provincial superior court may rule on the reasonableness of an administrative decision to transfer an inmate to a higher security institution. The reasonableness of the decision must not have to be dealt with by the Federal Court of Canada on an application for judicial review.

[46] Further, the Supreme Court of Canada in Khela confirmed that reasonableness is a legitimate ground upon which to question the legality of a deprivation of liberty in an application for habeas corpus: para. 72.

[47] The threshold issue for this court is whether the cancellation of ETAs give rise to a deprivation of liberty. A recent case from the Court of Appeal for Ontario held that no such residual liberty interest exists in these circumstances.

[48] However, the case is currently on reserve at the Supreme Court of Canada. Simmons J.A., dissenting with the majority of the Court of Appeal for Ontario, disagreed with the majority's conclusion that the reclassification of an inmate's security classification did not constitute a deprivation of liberty such that habeas corpus would be available to the appellants: see Dorsey v. Canada (Attorney General), 2023 ONCA 843, 169 O.R. (3d) 417, leave to appeal granted and appeal heard and reserved May 13, 2025, [2024] S.C.C.A. No. 51.

[49] In the correctional context, deprivation of liberty refers to whether an inmate has been deprived of their residual liberty. The Court of Appeal upheld the application judge's conclusion that habeas corpus was not available to the appellants because the reclassification denials were not deprivations of their residual liberty. I note that in Dorsey, a motion to strike was not granted. The motions judge heard the motion and found that no residual liberty interest was implicated, a conclusion which was upheld by the Ontario Court of Appeal: see Dorsey, Newton, and Salah v. Attorney General of Canada, 2020 ONSC 6297.

[50] There is appellate authority for the proposition that save in unusual circumstances, courts should not entertain an application for habeas corpus from someone who had not yet attained the status of parolee: see Steele v. Mountain Institution, [1990] 2 S.C.R. 1385; M.S. v. Canada (National Parole Board), 102 C.C.C. (3d) 273 (B.C.C.A), at para. 20, leave to appeal refused, [1995] S.C.C.A. No. 507. See also Judith Farbey, R.J. Sharpe and Simon Atrill, The Law of Habeas Corpus, 3rd ed., (New York: Oxford University Press, 2011), at pp. 168-69.

[51] In contrast, a 1985 trilogy of cases which included Cardinal, demonstrate that Correctional Service of Canada ("CSC") security classification decisions can be reviewable by habeas corpus. Moreover, although the Supreme Court's subsequent decision in Khela involved a transfer to a more restrictive security classification and institution, and therefore falls into the second Dumas category, Khela makes it clear that CSC security classification decisions are subject to review on a reasonableness standard: Dorsey, at para. 108.

[52] Notably, at least one of the 1985 trilogy cases, Cardinal, was not decided on the basis that the initial imposition of administrative segregation was unlawful: Dorsey, at para. 109.

[53] Rather, it was the decision to withhold a lesser security classification (transfer to the normal prison population of a maximum-security institution) that created the deprivation of liberty. Because that decision was unlawful, it crystallized what was an initially valid lawful deprivation of liberty (administrative segregation) into an unlawful deprivation of liberty: Dorsey, at para. 111.

[54] Similarly, in the post-trilogy decision in R. v. Gamble, [1988] 2 S.C.R. 595, Ms. Gamble was tried and convicted of murder under provisions of the Criminal Code enacted after the murder was committed. She was thus sentenced to a 25-year period of parole ineligibility, when a period of parole ineligibility of not less than ten years and not more than 20 would have applied had she been tried under the provisions in force when the murder was committed. In 1986, after serving ten years of imprisonment, Ms. Gamble claimed that the 25-year period of parole ineligibility had become unlawful by reason of the enactment of the Charter. The Supreme Court of Canada held that her application for habeas corpus fell within the third Dumas category: the continuation of an initially valid deprivation of liberty that can be challenged by way of habeas corpus only if it becomes unlawful. Applying a flexible approach to habeas corpus in the context of a claim also brought under s. 24(1) of the Charter, the Supreme Court declared Ms. Gamble eligible for parole as of the date of release of its judgment.

[55] Whether any overlap between the two routes to remedy precludes the resort to writ of habeas corpus will presumably be one of the issues to be determined by the Supreme Court of Canada in Dorsey.

[56] This court has had the benefit of reviewing oral arguments presented before the Supreme Court of Canada on May 13, 2025. Several submissions were made in support of retaining the writ of habeas corpus as a remedy in matters involving procedural unfairness. Kasirer J. also raised the issue of the undesirability of leaving an individual in a state of arbitrary detention. For example, where it can be demonstrated that the decision to withhold a lower security classification was made arbitrarily, unreasonably and therefore unlawfully, it would seem unjust to preclude resort to a remedy from a superior court through a writ of habeas corpus. Requiring the inmate to pursue judicial review of a CSC decision instead would risk perpetuating an arbitrary limitation of liberty.

[57] Additionally, Justice O'Bonsawin pointed out that Indigenous and African-Canadian inmates remain overrepresented in maximum security federal penitentiaries, and that little to no progress has been made on that issue despite the Supreme Court pointing it out over three decades ago in Peiroo.

Test for Summary Judgment

[58] It is not the role of this court to determine whether this application will ultimately succeed. That is not the test on a motion for summary judgment. In this case, there is no trial. The issue is whether the manner in which the prison authorities decided that the Respondents should lose their ETAs resulted in a deprivation of their respective residual liberty interests. Further, the concern is whether the alleged arbitrary decision to revoke their ETAs rendered the Respondents' continued deprivation of liberty unlawful.

[59] In a summary dismissal motion, all of the underlying facts relied upon are assumed to be true, and the Respondents' case is to be taken at its highest. Taken at its highest, Mr. Boyce lost his ETA after the individual who accused him of wrongdoing insisted on adjudicating the hearing to determine whether Mr. Boyce had engaged in wrongdoing. Issues of fairness could not be more central to the determination of this matter.

[60] When applying the "manifestly frivolous" standard, the judge should not engage in even a limited weighing of the evidence to ascertain whether it is reasonably capable of supporting an inference, nor should the judge decide which among the competing inferences they prefer. Any such weighing should be left to the voir dire. The judge must assume the facts alleged to be true and must take the arguments at their highest: Haevischer, at paras. 83-84.

[61] Taking the case at its highest, and assuming the underlying facts to be true, the Respondents were tried by their accuser/investigator resulting in a loss of their ETAs. There is an argument to be made that this gives rise to a reasonable apprehension of bias, resulting in an arbitrary process.

[62] The Applicant has failed to demonstrate that the issues in this case are manifestly frivolous, either on the basis of a lack of jurisdiction or that there is no residual liberty interest at issue. Caution should be exercised before granting summary judgment: Haevischer, at para. 61. This is especially true given that the issues in this matter will shortly be clarified by the Supreme Court of Canada. Therefore, the motion for summary dismissal is dismissed.

Anne London-Weinstein J.

Released: September 29, 2025