The appellant warden of Mission Institution was unsuccessful in her appeal of a chambers decision which ordered that the respondent inmate be returned from Kent Institution to Mission Institution

27. December 2011 0

Administrative law – Decisions of administrative tribunals – Prison warden – Prisons – Transfer of inmates – Judicial review –  Investigations – Disclosure – Test – Procedural requirements and fairness – Remedies – Habeas corpus – Certiorari

Khela v. Mission Institution, [2011] B.C.J. No. 2111, 2011 BCCA 450, British Columbia Court of Appeal, November 9, 2011, K.J. Smith, E.C. Chiasson and H. Groberman JJ.A.

This appeal was heard at the same time as two other appeals involving other inmates involved in a stabbing at Mission Institution (Mr. Foster and Mr. Zhuria).

The respondent inmate, Mr. Khela, was reclassified as a maximum security inmate on an emergency basis and transferred from Mission Institution (“Mission”) to Kent Institution (“Kent”). This happened after a new inmate was stabbed and the appellant warden (the “Warden”) heard Mr. Khela was involved in arranging for two other inmates to stab the new inmate. The stabbing took place on September 23, 2009.

Between October 1, 2009 and January 26, 2010, various pieces of information were received to indicate that Mr. Khela had arranged for the assault by paying heroin to the assailants. The Warden received a security intelligence report on February 2, 2010, which outlined the results of the investigation. On that day, Mr. Khela was transferred to Kent and placed in segregated custody. Two days later, he was given written notice that he was involuntarily transferred to Kent because he posed an imminent risk to the safety and security at Mission. The written notice was signed by the manager of assessment intervention. The notice also advised him that a recommendation had been made to reclassify his security level as “maximum”.

On April 27, 2010, Mr. Khela filed an application seeking habeas corpus and the court granted the application. Mr. Khela was returned to Mission and placed in segregation. His classification was then reviewed again (based on the alleged involvement in the stabbing) and he was reclassified as a maximum security risk and transferred to Kent. He again applied for habeas corpus but the application was refused.

In denying the second application for habeas corpus, the chambers judge first considered the procedural arguments made by Mr. Khela. Mr. Khela complained that he was not given information about the sources of information. He also complained he was not given information about the scoring matrix used to reclassify him. He argued his charter rights were violated and he argued that the court could review the reasonableness of the Warden’s decision.

The chambers judge accepted that Mr. Khela had raised legitimate grounds for review and then shifted the onus to the Warden to demonstrate the legality of the transfer. The judge found the disclosure of the sources was insufficient given the onerous disclosure obligation noted in section 27 of the Corrections and Conditional Release Act and the common law duty to act fairly. With respect to the scoring matrix, the judge found the Warden should have adduced some evidence about the lack of reliance on the “Security Reclassification Scale” (SRS) rather that attempting to rely on affidavit material filed in a previous case.

The Warden appealed the chambers decision. The Warden argued the judge erred by applying the wrong test for disclosure, exceeding her jurisdiction when considering whether the Warden’s decision was reasonable, and ordering Mr. Khala be returned to the general population at Mission.

The court first decided the appeal should be heard even though it was moot (and so was the appeal relating to Mr. Foster and Mr. Zuria). The court then went on to consider the disclosure issues. The court found the chambers judge did not err in concluding that the Warden should have disclosed additional information concerning the sources of information considered by the Warden. The Warden did not adduce evidence to justify her lack of disclosure.

The court found the chambers judge did not err in deciding the Warden did not adduce sufficient evidence about the lack of reliance on the SRS. The court also rejected the Warden’s application to adduce fresh evidence.

The chambers judge did not review the reasonableness of the Warden’s decision relating to Mr. Khela but did do so in respect of Mr. Foster and Mr. Zuria. The court reviewed these decisions and noted that the chambers judge seemed to rely upon the Supreme Court of Canada decision in the “May” case. The Warden argued that treating habeas corpus like judicial review would water down habeas corpus. She stated that the courts are not to review the merits of the impugned decision.

The court extensively reviewed the history and development of habeas corpus and concluded that habeas corpus could not be narrower in scope than judicial review. The court held that a consideration of reasonableness was available to a person bringing an application for habeas corpus.

The court then reviewed the wording of the chamber judge’s order (ordering that Mr. Khela be returned to the general population at Mission). The court held that, in habeas corpus proceedings, the order should simply “release” the individual and not be so specific about the nature of the release. The court granted habeas corpus and ordered that Mr. Khela be released from custody at Kent and returned to a medium security institution “to be dealt with therein as the prison authorities consider to be appropriate”.

This case was digested by Scott J. Marcinkow of Harper Grey LLP. If you would like to discuss this case further, please feel free to contact him directly at or review his biography at

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