






Citation:


Hickey 
          v. Kent Institution


Date:
20030116







2003 
          BCCA 23


Docket:


CA026638






COURT 
          OF APPEAL FOR BRITISH COLUMBIA






BETWEEN:






BRIAN DONALD HICKEY






APPELLANT

(PETITIONER)






AND:






DIRECTOR, KENT INSTITUTION

CORRECTIONAL SERVICES CANADA






RESPONDENTS

(RESPONDENTS)












Before:


The 
          Honourable Madam Justice Rowles







The 
          Honourable Madam Justice Ryan







The 
          Honourable Madam Justice Saunders










A.H. 
          Zipp


Counsel 
          for the Appellant






C. 
          Workun


Counsel 
          for the Respondents




Place 
          and Date of Hearing:


Vancouver, 
          British Columbia




September 21, 2001




Place 
          and Date of Judgment:


Vancouver, 
          British Columbia




January 16, 2003








Written 
    Reasons by:

The 
    Honourable Madam Justice Ryan



Concurred 
    in by:

The 
    Honourable Madam Justice Saunders



Concurring 
    Reasons by:

The 
    Honourable Madam Justice Rowles (Page 26, para. 55)


Reasons for Judgment of the Honourable 
    Madam Justice Ryan:






Introduction

[1]

The appellant, Brian Donald Hickey, is an inmate in a federal institution.  
    He is serving a sentence of life imprisonment imposed on April 17, 1996.

[2]

On September 1, 1999 the appellant was lodged at Kent Institution.  
    On that day he was ordered transferred to the Special Handling Unit in Quebec 
    by a delegate of the   of Corrections pursuant to s. 29 of the
Corrections 
    and Conditional Release Act
, S.C. 1992, c. 20 ("the Act").  
    The appellant was provided with a copy of the order on September 2, 1999.  
    Shortly thereafter he was advised that his transfer would take place on October 
    7, 1999.  I will deal in more detail with the making of the transfer order 
    later in these reasons.

[3]

The Special Handling Unit is a distinct entity located within the regional 
    reception centre at Ste-Anne-des-Plaines, Quebec.  It is the only facility 
    of its kind in Canada.  According to Commissioner's Directive No. 551, the 
    policy objective of the Special Handling Unit is to "create an environment 
    in which dangerous offenders are motivated and assisted to behave in a responsible 
    manner so as to facilitate their integration in a maximum security institution."

[4]

On October 5, 1999 the appellant filed an application in the Supreme 
    Court of British Columbia seeking:

1.   
    An order quashing the decisions of Correctional Services Canada that the Applicant 
    be transferred to the Special Handling Unit.



2.   
    An order that the appellant not be transferred from the Pacific Region without 
    leave of the Court.





[5]

On October 6, 1999 the appellant obtained an
ex parte
order 
    from a Supreme Court justice which stayed the appellant's transfer until the 
    application was heard.

[6]

The matter proceeded to hearing on October 13, 1999 on the basis that 
    it was an application by the appellant for a writ of
habeas corpus
with
certiorari in aid
.  Counsel for the respondent resisted the application 
    on the basis that it was premature.  Shortly put, his argument was that while 
    a writ of
habeas corpus
will release an inmate from an unlawful detention, 
    it has no application where an alleged unlawful detention is only anticipated.  
    He argued that the appellant in this case would have to wait for transfer 
    into the Special Handling Unit before he could apply for
habeas corpus
.  
    Until that time arrived the prisoner should have relied on other available 
    remedies.  The Chambers judge agreed with counsel for the respondent.  She 
    concluded, at para. 13:

As Mr. Hickey remains lawfully detained, I find that this court lacks jurisdiction 
    to issue
habeas corpus
and the proper procedure is for him to challenge 
    the underlying decision by judicial review under s. 18 of the
Federal 
    Court Act
.





[7]

We were advised by counsel for the respondent that on December 1, 1999 
    the appellant filed a motion to extend the time for filing an application 
    for judicial review of the transfer decision, along with an application to 
    stay the transfer.  The motions were heard before Mr. Justice Pinard in the 
    Federal Court on December 6, 1999 and dismissed the next day.

[8]

An appeal from the decision of the Supreme Court justice was filed 
    by the appellant's counsel on December 22, 1999.  On February 1, 2000 the 
    respondent sought dismissal of the appeal on the basis that it was out of 
    time.  Madam Justice Newbury dismissed the respondent's application.  She 
    granted the appellant an extension of time in which to bring his appeal.

[9]

On March 29, 2000 Mr. Justice Mackenzie of this Court heard and dismissed, 
    for lack of jurisdiction, a stay application respecting the decision to transfer 
    the appellant.

[10]

The 
    decision of Mr. Justice Pinard in Federal Court refusing to quash the order 
    transferring the appellant to the Special Handling Unit and the refusal of 
    a justice of this Court to stay the decision to transfer the appellant rendered 
    this appeal moot.  However, the court agreed to hear the appeal, since it 
    raises questions which affect access to the Supreme Court of British Columbia 
    by federal prisoners who seek to challenge involuntary inter-provincial transfers 
    on the basis of manifest unfairness.

The 
    Ground(s) of Appeal

[11]

The 
    ground of appeal in this case is whether the Supreme Court justice in Chambers 
    erred in law in finding that the British Columbia Supreme Court had no jurisdiction 
    to grant relief in the nature of
habeas corpus
for an imminent deprivation 
    of liberty by virtue of a contested involuntary order of transfer made within 
    the prison system.

The 
    Legislation Governing Prison Transfers

[12]

Section 
    29 of the
Corrections and Conditional Release Act
provides:

29.
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; or



(
b
)  
    a provincial correctional facility or hospital in accordance with an agreement 
    entered into under paragraph 16(1)(
a
) and any applicable regulations.





[13]

Section 
    28 of the Act provides:

28.
Where 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 the person is confined is one that provides the 
    least restrictive environment for that person, 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.





[14]

Section 
    96(d) of the Act provides:

96.
The Governor General in Council may make regulations

. 
    . .



(
d
)  
    respecting the placement of inmates pursuant to section 28 and their transfer 
    pursuant to section 29;





[15]

Section 
    12 of the Regulations provides:

12.  Before the transfer of an inmate pursuant to section 29 of the Act, other 
    than a transfer at the request of the inmate, an institutional head or a staff 
    member designated by the institutional head shall



(a)  
    give the inmate written notice of the proposed transfer . . . .





[16]

Section 
    96 of the Act gives the Commissioner the power to issue Commissioner's Directives.  
    While the Directives have no force of law, they set out such things as policy 
    objectives, time frames and procedures that are meant to provide fairness 
    and uniformity within the federal prison system.  (
R. v. Institutional 
    Head of Beaver Creek Correctional Camp, Ex Parte MacCaud
, [1969] 1 
    C.C.C. 371 (Ont. C.A.); and
Leprette v. Edmonton Institution (Warden) 
    et al.
(1992), 58 F.T.R. 101 (T.D.).)

[17]

Directive 
    No. 540 - "Transfer of Offenders" and Directive 551 - "Special 
    Handling Unit" apply in this case.

[18]

Directive 
    No. 540 sets out, among other things, time frames within which assessments 
    and decisions for placements should be made.

[19]

Directive 
    No. 551 provides in part:

15.  
    The case of any offender who causes or commits an act causing serious harm 
    or death shall be automatically reviewed by the Regional Deputy Commissioner 
    for admission to the Special Handling Unit for assessment.





[20]

An 
    inmate who is unhappy with a transfer decision may appeal through grievance 
    procedures set up under ss. 90 and 96(u) of the Act, ss. 7482 of the Regulations, 
    and Commissioner's Directive No. 81.

[21]

At 
    the conclusion of the grievance procedure, the inmate may appeal the decision 
    by way of judicial review under s. 18 of the
Federal Court Act
, 
    R.S.C. 1985, c. F-7.  It is also open to the inmate, if the grievance procedure 
    promises to be inadequate, to by-pass the grievance procedure and go directly 
    to Federal Court by way of judicial review.  (
Anderson v. Canada (Armed 
    Forces)
, [1997] 1 F.C. 273 (C.A.); and
Giesbrecht v. Canada
, 
    [1998] F.C.J. No. 621 (T.D.).)

The Procedure Followed by the Prisoner in this Case

[22]

The 
    record in the case at bar discloses that on May 27, 1999 the appellant received 
    a "Notice of Involuntary Transfer Recommendation".  He passed the 
    notice on to his lawyer who, in a letter dated July 29, 1999, made submissions 
    to the Warden of Kent Institution that the facts underlying the recommended 
    transfer (found in earlier reports filed by corrections officers and parole 
    officers on March 1 and May 18, 1999) were incorrect and did not support a 
    transfer to the Special Handling Unit.  On August 11, 1999 the Warden of Kent 
    Institution advised the appellant in writing that she had reviewed the recommendation 
    to send the appellant to the Special Handling Unit and that it was her intention 
    to uphold the recommendation.  The matter was forwarded for decision to Regional 
    Headquarters Pacific Region.  Counsel for the appellant made submissions to 
    Regional Headquarters Pacific Region in a letter dated August 24, 1999.  On 
    September 1, 1999 the A/Asst. Deputy Commissioner approved the transfer.  
    The appellant received notice of the order on September 2, 1999.  The notice 
    advised the appellant that the transfer decision could be appealed within 
    the Pacific Region through the grievance procedure.  The appellant did not 
    avail himself of either the grievance procedure or judicial review.  As I 
    mentioned earlier, on October 5, 1999, he filed what amounted to an application 
    for
habeas corpus
in the Supreme Court of British Columbia.

The
Habeas Corpus
Jurisdiction of the

Supreme 
    Court of British Columbia

[23]

In 
    his text,
The Law of Habeas Corpus
[1]
, Robert Sharpe (as he then was) said 
    this about the traditional form of review available on
habeas corpus
at p. 23:

The 
    form of review available on
habeas corpus
may be described as follows.  
    The writ is directed to the gaoler or person having custody or control of 
    the applicant.  It requires that person to return to the court, on the day 
    specified, the body of the applicant and the cause of his detention.  The 
    process focuses upon the cause returned.  If the return discloses a lawful 
    cause, the prisoner is remanded; if the cause returned is insufficient or 
    unlawful the prisoner is released.  The matter directly at issue is simply 
    the excuse or reason given by the party who is exercising restraint over the 
    applicant.





[24]

In 
    modern practice in British Columbia
habeas corpus
applications are 
    not decided on a formal return, but on affidavits of the applicant and respondent. 
     As Sharpe notes, however, the technical requirements of the return have shaped 
    the scope of review and must be kept in mind if the cases are to be properly 
    understood.  (p. 23)

[25]

Prior 
    to 1984 there was a body of authority in Canada which held that
habeas 
    corpus
was available only in cases where a favourable judgment would result 
    in the prisoner's immediate release from all forms of custody.  Thus, it was 
    thought that the remedy was unavailable to prisoners held on valid warrants 
    of committal in this country's jails and penitentiaries.  That view did not 
    prevail in
Miller v. the Queen
, [1985] 2 S.C.R. 613.  In
Miller
the Supreme Court of Canada held that
habeas corpus
with
certiorari 
    in aid
lies to release a prisoner from a distinct form of confinement 
    in an institution, such as a special handling unit, to a lesser form of confinement 
    in the general population.  Le Dain J. speaking for the court said this (at 
    p. 641):

Confinement 
    in a special handling unit, or in administrative segregation as in
Cardinal
[
and Oswald and The Queen
(1982), 67 C.C.C. (2d) 252, rev'd [1985] 
    2 S.C.R. 643], is 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. For the reasons indicated above, I can see no sound 
    reason in principle, having to do with the nature and role of
habeas corpus
, 
    why
habeas corpus
should not be available for that purpose. I do not 
    say that
habeas corpus
should lie to challenge any and all conditions 
    of confinement in a penitentiary or prison, including the loss of any privilege 
    enjoyed by the general inmate population. 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.





[26]

In 
    this appeal the appellant argued that not only is
habeas corpus
available 
    to release a prisoner from the Special Handling Unit into the general population 
    (should the more confined detention be found to be unlawful), it is also available 
    to the prisoner as a remedy immediately after any decision is made to confine 
    him further and before the resulting transfer is actually made.  For this 
    proposition counsel for the appellant relies on the decision of
Idziak 
    v.
Canada (Minister of Justice)
, 
    [1992] 3 S.C.R. 631.

[27]

In 
    the
Idziak
case the United States sought to extradite Mr. Idziak 
    from Ontario to face charges in the State of Michigan.  The provisions of 
    the
Extradition Act
in effect at the time required an extradition 
    judge to make an order of committal if the extradition partner met certain 
    requirements set out in the Act.  The order of committal held a person in 
    custody to await his or her surrender to the demanding state.  After committal 
    the Act required the Minister of Justice to decide whether to order the surrender 
    of the person to the extradition partner.  If the Minister decided to surrender 
    the person, a warrant of surrender was issued.  In the
Idziak
case, the warrant for Mr. Idziak's committal was issued after an extradition 
    hearing.  Although appeals of the order of committal were filed after the 
    committal, they were soon abandoned.

[28]

After 
    the appeals were abandoned, Mr. Idziak made submissions under s. 25 of the
Extradition Act
(as it then stood) requesting the Minister of 
    Justice to refuse to exercise his discretionary authority to surrender Mr. 
    Idziak to the United States' authorities.  The Minister rejected Mr. Idziak's 
    submissions.  He issued a warrant of surrender. Following the refusal of the 
    Minister to discharge him, counsel for Mr. Idziak filed an application for
habeas corpus
with
certiorari in aid
to set aside the warrant 
    of surrender on the ground that the Minister had denied his rights to fundamental 
    justice under s. 7 of the
Canadian Charter of Rights and Freedoms
.

[29]

The 
    Minister of Justice took the position that the superior court of Ontario had 
    no jurisdiction to hear the application for
habeas corpus
because Mr. 
    Idziak was held in custody on the warrant of committal, not the impugned warrant 
    of surrender which had not yet been executed.

[30]

The 
    Superior Court judge, Doherty J. (as he then was), held that Idziak's imminent 
    custody provided a sufficient basis for invoking the
habeas corpus
jurisdiction of the court.  However, he dismissed the application on its merits.

[31]

Mr. 
    Idziak's appeal to the Ontario Court of Appeal was dismissed on the substantive 
    issue.  The Court did not find it necessary to decide the jurisdictional issue.

[32]

The 
    Supreme Court of Canada held that Idziak's detention was properly reviewable 
    on
habeas corpus
, but dismissed the appeal on the merits of the application.

[33]

Prior 
    to
Idziak
the question of "imminent detention" had 
    been litigated in the context of persons on bail.  In
Re Isbell
, 
    [1930] S.C.R. 62, the Supreme Court of Canada held that a person who had been 
    released on bail was not entitled to apply for a writ of
habeas corpus
.  
    Rinfret J. said this about the availability of the writ (at p. 65):

In my 
    view, in order to make a case for
habeas corpus
in criminal matters, 
    there must be an actual confinement or, at least,
the present means of 
    enforcing it.  A person may apply for the writ while in the custody of a constable, 
    immediately upon being arrested, and need not wait until he is actually incarcerated.
But a person at large on bail is not so restrained of his liberty as to entitle 
    him to the writ.  There are numerous decisions in that sense in the United 
    States.  They may be found conveniently collected in the American and English 
    Encyclopedia of Law, 2nd ed., vol. 15, vo.
Habeas Corpus
, at p. 159.



[Emphasis added.]

[34]

This 
    comment of Rinfret J. was later relied upon by a Quebec Superior Court justice 
    in the first instance in
Masella v. Langlais
,

[1955] 
    S.C.R. 263.  In that case Masella had been ordered detained and deported by 
    a Board of Inquiry under the
Immigration Act
of the day.  Masella 
    obtained his release on bail and soon made an application for a writ of
habeas 
    corpus
.  Brossard J. granted the writ.  He concluded that Masella's imminent 
    detention provided a sufficient basis for the issuance of the writ.  The Supreme 
    Court of Canada disagreed, holding that by its terms and nature, the writ 
    of
habeas corpus
is inapplicable to the situation where the person 
    is at liberty on bail and not confined or restrained of his liberty.  Locke 
    J., referring to the conclusions of Brossard J., said this (at p. 274):

If the 
    principal ground assigned by Brossard J. for his opinion, namely, that the 
    fact that there was an order for deportation outstanding under which the applicant 
    might be taken into custody, afforded ground for the issue of the writ, any 
    accused person for whose arrest a warrant has been issued but which has not 
    been executed might apply by
habeas corpus
for his discharge.  I know 
    of no authority for any such proposition.





[35]

As 
    I mentioned earlier, Brossard J. had relied upon the passage from
Re 
    Isbell
, which I have reproduced in the previous paragraphs, for the 
    proposition that the existence of the deportation order provided a sufficient 
    basis for the issuance of the writ.  Thus, Locke J. found it necessary to 
    explain what Rinfret J. had meant in
Re Isbell
.  Locke J. said 
    (at pp. 274-5):

[I]n
Re Isbell
[Rinfret J.] had said that:



In order to make a case for
habeas corpus
in criminal matters, there 
    must be an actual confinement, or, at least, the present means of enforcing 
    it.



The 
    concluding words of this passage appear to me to have been taken from the 
    judgment of the Supreme Court of the United States in
Wales v. Whitney
[(1884) 114 U.S. 564].  What was meant by "the present means of enforcing 
    it" was explained by Miller J. in that case in the next sentence of his 
    judgment which read (p. 572):



The class of cases in which a sheriff or other officer, with a writ in his 
    hands for the arrest of a person whom he is required to take into custody, 
    to whom the person to be arrested submits without force being applied, comes 
    under this definition.



That 
    it was in this sense that the expression was used in
Re Isbell
is made 
    clear by the sentence in the reasons which followed the language quoted, which 
    reads (p. 65):



A person may apply for the writ while in the custody of a constable,
immediately 
    upon being arrested
, and need not wait until he is actually incarcerated.

[Emphasis added.]

[36]

Doherty 
    J. had relied also on
Re Isbell
,
supra
, in the
Idziak
case for the proposition that imminent detention may provide the necessary 
    condition for an application for
habeas corpus
.  In
Idziak
,

Cory J. referring to
Masella v. Langlais
observed that 
    (at p. 648):

On its face, this decision would seem to prohibit Mr. Idziak from seeking 
    the remedy of
habeas corpus
against his surrender before the Canadian 
    authorities actually initiate the surrender phase by confining him for purposes 
    of transfer to the United States.

[Emphasis 
    added.]





[37]

Cory 
    J. went on to note that the correctness of
Masella
had been 
    questioned in
R. v. Gamble
, [1988] 2 S.C.R. 595, where Wilson 
    J. stated (at p. 645) that
Masella v. Langlais
was "suspect 
    to the extent that it denies
habeas corpus
as a remedy to vindicate 
    the rights protected under s. 7 of the
Charter
."

[38]

Cory 
    J. concluded that forcing Mr. Idziak to wait until the authorities initiated 
    the surrender phase would place an unfair and intolerable burden upon the 
    applicant.  He added (at pp. 648-9):

From a practical point of view to apply such a principle would put anyone 
    in Mr. Idziak's situation in an impossible position.  Is it really necessary 
    that the subject be forced to wait until he is incarcerated, perhaps for only 
    a very short time pending his or her transfer to the foreign authorities, 
    before he can move to obtain relief by means of
habeas corpus
?  The 
    time constraints alone would place the remedy beyond reach.  To take such 
    a position would be unfair and contrary to the very nature of the remedy of
habeas corpus
is designed to provide.

[39]

In 
    reaching his conclusion that the writ was available in Idziak's case Cory 
    J. noted the words of Wilson J. in
Gamble
, where she said this 
    at p. 645 (p. 649
Idziak
):

As did my colleague Le Dain in
Miller
at pp. 638-39, I have found the 
    American authorities helpful in identifying the kinds of liberty interest 
    served by the
habeas corpus
remedy.  I agree that
habeas corpus
, 
    the 'Great Writ of Liberty', is:



". . . not now and never has been a static, narrow, formalistic remedy; 
    its scope has grown to achieve its grand purpose  the protection of individuals 
    against erosion of their right to be free from wrongful restraints upon their 
    liberty" (
Jones v. Cunningham
, 371 U.S. 236 (1962), at p. 243).





[40]

In 
    the end Cory J. concluded that (at pp. 649-50):

The 
    remedy of
habeas corpus
should be available to those who are subject 
    to an outstanding warrant of detention.  To be subject to the issuance of 
    a warrant of surrender which will result in a loss of residual liberty when 
    it is executed at a future date is certainly a sufficient basis to support 
    an application for a writ of
habeas corpus
.

[41]

The 
    appellant has also provided this Court with a copy of the decision in
Beaudry 
    v.
Canada (Commissioner of Corrections)
, 
    [1997] O.J. No. 5082 (C.A.).  In that case prisoners were advised that they 
    were being transferred from one penitentiary in Ontario to another.  Before 
    the prisoners were transferred they filed applications for
habeas corpus
in the Ontario Court of Justice.  Counsel for the Commissioner of Corrections 
    argued that the Ontario Court had no jurisdiction to make an order of
habeas 
    corpus
until the prisoners were actually in the detention they said was 
    unlawful.  A judge of the Ontario Court of Justice ruled that he would hear 
    the application
for habeas corpus
.  The matter made its way to the 
    Ontario Court of Appeal on the issue of jurisdiction alone.  The Court dismissed 
    the Commissioner's appeal with this endorsement:

Applying the rationale of the decisions of the Supreme Court of Canada in
Miller v. The Queen
,
Gamble v. The Queen
, and
Idziak v. Canada 
    (Minister of Justice)
, we are of the opinion that the judge below did 
    not err in holding that the applicants, that is the respondents in this appeal, 
    are entitled to seek relief by way of
habeas corpus
even though they 
    are not yet in the Regional Treatment Centre.



We make no decision as to the remedies, if any, that may be available to the 
    applicants and leave such issues to the trial of this matter which we are 
    advised is scheduled to proceed on January 5, 1998.





[42]

In 
    the case at bar counsel for the respondent urged this Court not to follow 
    the
Beaudry
case.  He submitted that the
Idziak
case and
Gamble
were distinguishable from the case at bar because 
    in both cases necessity was at the heart of the decision to expand the scope 
    of
habeas corpus
.  Counsel submitted that the pivotal fact in
Idziak
was that if Mr. Idziak was forced to wait for the surrender process 
    to be initiated he would be effectively deprived of any remedy at all because 
    once in the hands of the foreign authorities he would likely be beyond the 
    reach the Canadian courts.

[43]

Gamble
presented a unique set of facts.  
    Janice Gamble had been an accomplice to murder in March 1976.  After the murder 
    and before her trial the provisions of the
Criminal Code
relating 
    to murder had been amended extensively.  Gamble was tried under the new provisions 
    of the
Code
.  She was sentenced to life imprisonment with parole 
    ineligibility for 25 years.  Gamble's conviction appeal to the Alberta Court 
    of Appeal was dismissed.  Although the Court found that Gamble ought to have 
    been tried under the old provisions of the
Code
, it refused 
    to order a new trial because the transition provisions of the new legislation 
    required that the re-trial be held in accordance with the new provisions.

[44]

After 
    the
Charter
was made part of our constitution in 1982 counsel 
    for Ms. Gamble developed an argument that her sentence violated s. 7 of the
Charter
.  Had the appellant been tried under the old provisions 
    and convicted of "murder punishable by life imprisonment" she would 
    have been ineligible for parole not more than 20 and not less than 10 years 
    of imprisonment.  Having been tried under the new provisions she had been 
    sentenced to a minimum of 25 years. After fourteen years of imprisonment she 
    filed an application for
habeas corpus
alleging that the condition 
    of her sentence  the 25-year period of parole ineligibility  infringed her 
    s. 7 residual liberty interest.  She applied to be released from a strict 
    form of incarceration to a lesser one in which she could apply for parole.

[45]

Many 
    arguments were made by the respondent that the remedy of
habeas corpus
was unavailable to Ms. Gamble.  One of the arguments made was that the proper 
    remedy ought to have been a sentence appeal.  At that late stage, however, 
    the appellant was required to seek an extension of time to seek leave to appeal.  
    She could not seek the remedy as of right, but only as an indulgence.  Wilson 
    J., speaking for the majority, found that this meant that Gamble could very 
    well be left without a remedy for the alleged violation of her
Charter
rights, "and that is not a situation which a court should countenance 
    if it has the means to avoid it." (p. 634)  Later in her reasons Wilson 
    J. repeated the words of Professor Sharpe
[2]
saying, "if the time for appeal 
    of an illegal sentence has gone by 'the law should provide another remedy'." 
    (p. 643,
Gamble
)

[46]

While 
    it may be the case that necessity was the driving force behind the decision 
    in
Gamble
, the same cannot be said for
Idziak
.  
    It was open to Mr. Idziak to challenge the decision of the Minister under 
    s. 18 of the
Federal Court Act
while he remained detained under 
    the warrant of committal. As I read the case, what mattered in
Idziak
was the fact that Mr. Idziak would be deprived of his right to
habeas corpus
if he was forced to wait until the authorities began the surrender process.  
    Mr. Idziak's right to seek the remedy of
habeas corpus
would arise 
    the moment the warrant of surrender was acted upon.  In other words, his right 
    to
habeas corpus
would arise the moment officers moved under the warrant 
    to transfer his custody to the U.S. authorities.  Since his opportunity to 
    challenge the warrant would be severely restricted once he was in the hands 
    of agents of the foreign government, he ought to be able to challenge his 
    detention before that process began.

[47]

In 
    the case at bar, as a result of the jurisprudence developed in
Isbell
,
Masella
, and
Idziak
, Mr. Hickey's right to seek
habeas corpus
would arise the moment the prison authorities began to 
    act on the order of transfer.  Although Mr. Hickey, once transferred, would 
    not be placed beyond the jurisdiction of the Canadian courts, he would be 
    placed beyond the jurisdiction of the British Columbia Supreme Court, the 
    province in which the challenged order was made.

[48]

In 
    spite of the able arguments of counsel for the Commissioner, I am of the view 
    that the burden of authority favours a finding that in the circumstances of 
    this case, the British Columbia Supreme Court has jurisdiction to entertain 
    an application for
habeas corpus
where transfer under such an order 
    in the case at bar is imminent.  In my view the Supreme Court justice erred 
    in law in finding that she had no jurisdiction to entertain an application 
    for
habeas corpus
.

The 
    Discretion to Refuse
Habeas Corpus


[49]

Counsel 
    for the Commissioner submitted that if this Court concluded that the Chambers 
    judge erred in finding that she had no jurisdiction to hear the appellant's 
    application for
habeas corpus
, this Court should nonetheless dismiss 
    the appeal.  He submitted that even if the Chambers judge had the jurisdiction 
    to hear the application, she was bound to exercise her discretion against 
    hearing it.

[50]

It 
    is trite that the court has a discretion to refuse to entertain an application 
    for
habeas corpus
if there exists a viable alternative to the writ.  
    In the context of prison law the fact that there is in place a complete, comprehensive 
    and expert procedure for review of a decision affecting the prisoner's confinement 
    is a factor which militates against hearing a petition for
habeas corpus
.  
    But there will be exceptions.

[51]

In
Warden of Mountain Institution v. Steele
, [1990] 2 S.C.R. 1385, 
    the court found that Mr. Steele's continued incarceration as a dangerous offender 
    was a violation of s. 12 of the
Charter
.  An appeal of his parole 
    status had been available to Mr. Steele by way of judicial review of a decision 
    of the National Parole Board.  Mr. Steele failed to pursue it.  The Supreme 
    Court of Canada allowed the application for
habeas corpus
, concluding 
    that given Mr. Steele's age and length of detention it would be unfair to 
    require him to commence new proceedings.

[52]

In
Fraser v. Kent Institution
(1997), 6 C.R. (5th) 293, this Court 
    recognized that an institutional backlog of over six months to deal with an 
    appeal with respect to parole matters provided a reason to exercise the discretion 
    of the court in favour of hearing the application for
habeas corpus
.

[53]

In 
    the case at bar the appellant provided the Supreme Court with no explanation 
    as to why he had not pursued either the grievance procedures or judicial review 
    to the Federal Court.  Without any information setting out why these procedures 
    were inadequate to deal with Mr. Hickey's situation, the Chambers judge ought 
    not to have heard the application for
habeas corpus
.

Conclusion

[54]

I 
    agree with the appellant that the Chambers judge erred in law in concluding 
    that the British Columbia Supreme Court lacked the jurisdiction to entertain 
    the application for
habeas corpus
in the circumstances of this case.  
    However, since no evidence was placed before the Chambers judge to demonstrate 
    that the grievance procedures under the
Corrections and Conditional 
    Release Act
, or judicial review to the Federal Court were inadequate, 
    the Chambers judge was bound to exercise her discretion and refuse to consider 
    the application.  I would dismiss this appeal.







The 
    Honourable
Madam Justice Ryan





I AGREE:







The Honourable
Madam 
    Justice Saunders




Reasons for Judgment of the Honourable 
    Madam Justice Rowles:








[55]

This 
    appeal is moot but it raises an important issue concerning the availability 
    of
habeas corpus
by federal prisoners who seek to challenge an involuntary 
    transfer on the basis of unfairness.

[56]

I 
    agree with Madam Justice Ryan for the reason she states that the Supreme Court 
    of British Columbia has jurisdiction to grant relief in the nature of
habeas 
    corpus
to a federal prisoner faced with an involuntary transfer.

[57]

This case does not lend itself to extensive comment on the exercise 
    of discretion because of the limited material that was put before the Supreme 
    Court judge but I wish to make the following observation.  The question of 
    when to entertain an application for
habeas corpus
is a matter of discretion 
    which ought to be informed by the particular difficulties prisoners face in 
    challenging a transfer order.  In his recently published book,
Justice 
    Behind Walls
(Douglas & McIntyre, 2002), Professor Michael Jackson 
    explores the practice of involuntary transfers under s. 28 of the
Corrections 
    and Conditional Release Act
and s. 18 of the
Regulations.
In 
    "Sector 5", Professor Jackson illustrates some of the problems prisoners 
    face when served with a transfer notice by making reference cases that have 
    come into the courts.  One of the cases he refers to is the decision of Thackray 
    J. (as he then was) in
Fitzgerald v. William Head Institution
, 
    [1994] B.C.J. No. 1534 (Q.L.) (S.C.), in which a review of a correctional 
    administrator's decision was successful. Professor Jackson uses the
Fitzgerald
case to illustrate his point that testing "faceless informer" information 
    used by administrators in making decisions about transfers poses particularly 
    difficult problems in the prison setting.  In that case, Thackray J. also 
    acknowledges the current climate in which courts must adjudicate issues of 
    prisoners' rights.

[58]

I 
    agree that the material presented by the appellant was an inadequate foundation 
    on which the Supreme Court judge could decide whether to exercise her discretion 
    in this case and would also dismiss the appeal.







The 
    Honourable Madam Justice Rowles












[1]
R.J. Sharpe,
The Law of Habeas Corpus
, Oxford:  Clarendon 
    Press, 1976.



[2]

Ibid
.


