Dodd et al. v. The Warden of Isabel McNeill House
[Indexed as: Dodd v. Isabel McNeill House (Warden of)]
85 O.R. (3d) 346
Court of Appeal for Ontario,
Goudge, Lang and Rouleau JJ.A.
April 5, 2007
Criminal law — Prisoners — Extraordinary remedies — Habeas corpus — Applicants scheduled for transfer from minimum security penitentiary to multi-level institution because of closure of former institution — Applicants bringing application for habeas corpus to prevent transfer
— Application judge holding that there would be no deprivation of applicants’ liberty if they were transferred and then adjourning application so that additional materials could be filed — Decision of application judge constituting refusal of application — Applicants having right of appeal to Court of Appeal — Applicants meeting threshold of probable and reasonable grounds required for writ to be issued — Appeal allowed — Criminal Code, R.S.C. 1985, c. C-46, ss. 784(3), (5).
The applicants were incarcerated in the only minimum security penitentiary for women operated by Correctional Services of Canada. The penitentiary was scheduled to be closed, and the applicants were to be transferred to a multi-level institution housing inmates in minimum, medium and maximum levels of security. They brought an application for a writ of habeas corpus to prevent the transfer. The application judge held that there would be no deprivation of the applicants’ liberty if the transfer went ahead. He purported to adjourn the application so that additional materials could be filed. The applicants appealed. The respondent moved to quash the appeal, arguing
that the application judge merely issued an interlocutory order to adjourn, from which there was no appeal to the Court of Appeal.
Held, the motion should be dismissed; the appeal should be allowed.
The applicants had a right of appeal. Sections 784(3) and (5) of the Criminal Code provide the statutory foundation for appeals from the refusal of a writ of habeas corpus. They reflect the traditional two-stage approach where, if the applicant meets the threshold of raising an arguable case, the writ issues and on its return, there is a full hearing on the merits. These sections provide a right of appeal if the writ is refused at the first stage or if the application is dismissed at the second stage. The decision of the application judge clearly constituted a refusal of the application. The application judge’s conclusion that there would be no deprivation of the applicants’ liberty if they were transferred was fatal to their application, and his refusal to make an order as to where the applicants were to reside denied them the very relief sought. [page347]
The applicants presented an arguable case that they would be subjected to greater security and that their movements would be more restricted if they were transferred. They showed probable and reasonable grounds for their complaint that the transfer would constitute unlawful detention. They met the threshold required for the writ to issue.
Cases referred to
Idziak v. Canada (Minister of Justice),  3 S.C.R. 631,  S.C.J. No. 97, 97 D.L.R. (4th) 577, 144 N.R. 327, 12
C.R.R. (2d) 77, 77 C.C.C. (3d) 65, 17 C.R. (4th) 161; United
States of America v. Desfosss,  2 S.C.R. 326, 
S.C.J. No. 59, 147 D.L.R. (4th) 193, 212 N.R. 206, 115 C.C.C.
(3d) 257, 7 C.R. (5th) 233 (sub nom. Desfosss v. Parthenais Prevention Center (Warden))
Statutes referred to
Canadian Charter of Rights and Freedoms, s. 15 Corrections and Conditional Release Act, S.C. 1992, c. 20 Criminal Code, R.S.C. 1985, c. C-46, s. 784 [as am.]
Authorities referred to
Hurd, R.C., A Treatise on the Right of Personal Liberty and on the Writ of Habeas Corpus (New York: W.C. Little & Co., 1876)
APPEAL from the order on the application for a writ of habeas corpus by Lally J. of the Superior Court of Justice, dated March 1, 2007.
Diane Oleskiw and Renu Mandhane, for appellants. Nancy L. Noble and Natalie Henein, for respondent.
The judgment of the court was delivered by
 GOUDGE J.A.: — The appellants are all women serving life sentences for murder. They are presently incarcerated at Isabel McNeill House (“IMH”) in Kingston, Ontario, the only minimum security penitentiary for women operated by Correctional Services of Canada (“CSC”).
 On February 19, 2007, CSC announced that it was closing IMH. On February 23, it informed the appellants that they would be transferred to Grand Valley Institution (“GVI”) in Kitchener or to the institution of their choice, all of which are “multi- level” institutions housing inmates in minimum, medium and maximum levels of security.
 On February 22, the appellants obtained an order that their application for habeas corpus would be heard on March 1, 2007, on the respondent’s undertaking not to transfer the appellants in the meantime. The appellants’ application sought a writ of habeas corpus ordering that they not be transferred from IMH to GVI. [page348]
 On March 1, the application judge had before him a number of affidavits filed by the appellants and one affidavit filed by the respondent. After hearing argument, he concluded as follows:
Here the transfer is from one minimum-security institution. There are differences between the two facilities, but, in my judgment, to use the words of Mr. Justice Muldoon, they are “neither great nor maliciously imposed”, and there would be no deprivation of liberty if the applicants are transferred from Isabel McNeill House to Grand Valley Institution. It may be that, at the habeas corpus hearing, a court will find that minimum-security inmates cannot be housed in a multi-level institution, but that is not something that I can decide, today.
 The application judge then purported to adjourn the appellants’ application to April 13 so that the respondent could file full responding materials, the appellants could file two additional affidavits and cross-examinations could be conducted if desired.
 Finally, the application judge said that in the interim, he would make no order as to where the appellants should reside.
 Since March 1, the appellants’ transfers have been stayed by orders of this court.
 The appellants appeal from the order of March 1, arguing that they have a right to appeal because the application judge decided the merits of their application with the finding quoted above, and refused to issue the writ of habeas corpus that they sought. On the merits of the appeal, they say that the writ should have issued and that pending its return for a full hearing, they should be kept at IMH.
 For its part, the respondent seeks to quash the appeal, arguing that the application judge merely issued an interlocutory order to adjourn, from which there is no appeal to this court. In the alternative, the respondent says that the appellants have not made out the prima facie case required to have the writ issued.
 In my view, the appellants have a right of appeal to this court. Sections 784(3) and (5) [of the Criminal Code, R.S.C. 1985, c. C-46] provide the statutory foundation for appeals from the refusal of a writ of habeas corpus. They reflect the traditional two-stage approach where, if the applicant meets the threshold of raising an arguable case, the writ issues, and on its return there is a full hearing on the merits. These sections provide a right of appeal if the writ is refused at the first stage or if the application is dismissed at the second stage. Those sections read as follows:
784(3) Where an application for a writ of habeas corpus ad subjiciendum is refused by a judge of a court having jurisdiction therein, no application may again be made on the same grounds, whether to the same or to another court or judge, unless fresh evidence is adduced, but an appeal from that refusal shall lie to the court of appeal, and where on the appeal the application is refused a further appeal shall lie to the Supreme Court of Canada, with leave of the court. [page349]
. . . . .
(5) Where a judgment is issued on the return of a writ of habeas corpus ad subjiciendum, an appeal therefrom lies to the court of appeal, and from a judgment of the court of appeal to the Supreme Court of Canada, with leave of that Court, at the instance of the applicant or the Attorney General of the province concerned or the Attorney General of Canada, but not at the instance of any other party.
 In United States of America v. Desfosss,  2 S.C.R. 326,  S.C.J. No. 59, Sopinka J. described the effect of these subsections this way [at para. 9]:
Sections 784(3) and (5) embody a compromise. If a writ was refused at the first stage and no hearing was had on the merits, then an appeal as of right lay to the court of appeal, and if the appeal failed the appellant was entitled to an appeal as of right to this Court. In return, the unsuccessful applicant could not make successive applications to other judges once the writ was refused by a judge. This was subject to the proviso with respect to fresh evidence.
Under s. 784(3) the applicant could exhaust his or her appeals without securing a hearing on the merits. This will occur if the applicant cannot meet the threshold required for the issue of the writ. The required threshold is that there are “probable and reasonable grounds” for the complaint that the detention is unlawful. See R. v. Olsen,  1 S.C.R. 296, at p. 298. Section 784(5) sets out the rights of appeal if the writ is issued and a hearing on the merits has been held.
 In my view, the decision of the application judge on March 1 clearly constitutes a refusal of the appellants’ application for the writ of habeas corpus. His conclusion that there would be no deprivation of their liberty if they were transferred from IMH to GVI is fatal to their application and his refusal to make an order as to where the appellants reside denies them the very relief sought. The decision is in substance a refusal of the writ. In the face of this, there would be nothing left to debate on April 13, the date to which the application was purportedly adjourned. I would therefore dismiss the respondent’s motion to quash the appeal, given that the order of March 1 constitutes a refusal to issue the writ.
 Turning to the merits of the appeal, the appellants submit that on the evidence before the court on March 1, they meet the threshold of “probable and reasonable grounds” required for the writ to be issued.
 I agree. While much of that evidence may be ultimately contested when the merits are heard on the return of the writ, at this stage the threshold is met. The appellants’ material is enough to establish at this point that their transfer would prima facie constitute a deprivation of liberty and is arguably unlawful.
 Their evidence makes an arguable case that the perimeter security to which they would be subjected is significantly greater since GVI is surrounded by a chain-link fence topped with razor wire, while IMH has no perimeter security fence. Similarly, they [page350] say that within the confines of the perimeter security at GVI, prisoners’ movements are significantly more restricted than at IMH in a variety of ways. They submit that, in effect, the transfer would constitute a change in their security classification from true minimum security to something akin to medium security without the justification for such a change required by the Corrections and Conditional Release Act, S.C. 1992, c. 20. Further, they say that the transfer is unlawful and violates their rights under the Canadian Charter of Rights and Freedoms, particularly s. 15. Unlike women, male prisoners have available facilities that house only minimum security prisoners.
 Putting these together, I conclude that the appellants have met the threshold of showing probable and reasonable grounds for their complaint that the transfer would constitute unlawful detention. The application judge erred in not so finding. I conclude that the writ should issue. As the parties have been working towards a hearing on April 13, I would make that the date for the return of the writ.
 Pending its return for a full hearing on the merits, the appellants remain under the authority of the writ. See R.C. Hurd, A Treatise on the Right of Personal Liberty and on the Writ of Habeas Corpus (New York: W.C. Little & Co., 1876), p. 319. This gives the court the authority to determine where the appellants should be held during that period of time.
 It is obvious that if the objective of the habeas corpus procedures are to be achieved, the return of a writ should be as soon as possible after its issue so that the liberty interests of the applicant are determined without delay. It is clear that the court’s determination of where an applicant is held in this intervening period of time is best done on a case by case basis in light of the particular circumstances.
 Where the writ is issued after the alleged unlawful detention begins, the applicant is frequently left in the same place pending the return, often because the most important consideration is a want of alternatives. However, as in this case the writ can be issued prospectively prior to an imminent detention that is said to be unlawful. See Idziak v. Canada (Minister of Justice),  3 S.C.R. 631,  S.C.J. No. 97. Here, too, the court must carefully balance the relevant considerations in exercising its discretion.
 In this case, the application judge made no order about where the appellants should be held pending the purported adjournment and offered no reasons for declining to do so.
 In my view, given the relevant considerations in this case, the court should exercise its discretion to order that the appellants continue to be held at IMH until the return of the writ. First, the commencement date for that stage is now only a week [page351] away. Second, a transfer to GVI would undoubtedly carry significant disruption that is best put off until a determination of the merits to avoid the risk of a second disruptive move back to IMH if the application were to be successful. Third, while it is by no means a conclusive factor, a transfer to GVI at this stage would constitute a prima facie unlawful deprivation of liberty for the appellants.
 On the other side of the scales is the greater cost burden on the respondent to continue to house the appellants at IMH. While this factor is not enough to tilt the scales against the status quo at this point, it will be up to the judge charged with the full hearing to revisit where the applicants should be held if that hearing is unduly prolonged.
 In summary, I would dismiss the motion to quash the appeal. I would allow the appeal and order that the writ of habeas corpus issue, to be returned on April 13, 2007. I would order that the appellants continue to be held at IMH pending the return of the writ.