The court allowed the applicant’s habeas corpus application and thereby ordered the applicant to be transferred back to his previous medium-security facility. A writ of habeas corpus is issued as of right where the applicant establishes there is cause to doubt the lawful nature of his detention. The respondents conceded that the transfer to a higher security level institution constituted a deprivation of residual liberty, and thus the onus rested with the respondents to demonstrate the legality of their decision to transfer the applicant. The respondents failed to prove that the statutory and common law standards of procedural fairness, and in particular, the obligation to make full disclosure to the plaintiff, were met in regard to the transfer decision.

Administrative law – Decisions of administrative tribunals – Prisons – Transfer of inmates – Remedies – Habeas corpus – Statutory provisions – Judicial review – Evidence – Disclosure – Procedural requirements and fairness – Compliance with legislation – Jurisdiction

Khela v. Mission Institution, [2010] B.C.J. No 971, 2010 BCSC 721, British Columbia Supreme Court, May 21, 2010, C.J. Bruce J.

The applicant served the first three years of his first degree murder sentence at Kent Institution, a maximum security prison located in the Fraser Valley, east of Vancouver. He was then transferred to the Mission Institution, which is a medium security facility, only to be transferred back to the Kent Institution on an emergency and involuntary basis as a result of a re-assessment of his security classification. The transfer back to Kent Institution occurred after prison authorities received information that the applicant was directly responsible for contracting two prisoners at Mission Institution to assault an inmate, promising to pay three grams of heroin to the assailants.

The court found that it had jurisdiction to hear the applicant’s application. Subject only where, by statute, a court of appeal is vested with exclusive authority to hear an appeal, or where there is a complete internal process for review of an administrative decision put in place by the legislature, the superior courts of each province have jurisdiction concurrent to that of the Federal Court in the case of an inmate who seeks to challenge a decision by prison authorities pursuant to the remedy of habeas corpus.

Section 27(1) of the Corrections and Conditional Release Act (the “CCRA”), in conjunction with the common law duty of fairness, requires an administrative decision-maker to disclose all of the information relied upon, so that the applicant may know the case to meet and have an opportunity to respond. Key elements of disclosure are both the reliability of the sources who provide information leading to a transfer decision and the content of what was said by the sources. The information given to the applicant did not include what was said by the sources or what made the prison authorities believe the sources were reliable. Additionally, the prison authorities’ conclusion about the reliability of the sources was primarily based upon the expertise of the staff, and the court questioned how the prison authorities knew that their information came from three independent sources since two of the sources were anonymous tips. Although s. 27(3) of the CCRA permits information to be withheld where necessary to protect the public, the respondents did not provide any evidence in support of this section. Accordingly, the respondents failed to satisfy the onus upon them to justify the transfer decision as lawful because they failed to prove that the statutory and common law standards of procedural fairness were met in regard to the transfer decision, and in particular, the obligation to make full disclosure to the applicant.

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