Prison Transfers Must Be Fair, Supreme Court Rules: Mission Institution v Khela

Earlier this year, in late March, the Supreme Court of Canada (SCC) sent a resounding message to federal prison wardens across the country that inmates’ freedoms cannot be limited lightly. In Mission Institution v Khela, 2014 SCC 24, a unanimous ruling of eight judges, the SCC made it clear that if you decide to further limit the freedoms of an inmate, you must justify your decision with reasons or invoke a special provision of the Corrections and Conditional Release Act, SC 1992, c 20 (CCRA). Failing to carry out one of those actions undermines the procedural fairness owed to prisoners. The SCC also affirmed the importance of providing access to justice by refusing to limit remedial avenues for prisoners.

Background

In Mission Institution v Khela, the Supreme Court reviewed the decision behind an involuntary transfer of a federal prisoner, Gurkirpal Singh Khela. In February 2010, he was moved to a maximum security prison from Mission Institution, a medium security prison. The prisoner applied for a writ of habeas corpus. He claimed the transfer was unlawful because it was unreasonable and procedurally unfair. The British Columbia Supreme Court granted the writ, which was appealed by the prison. The British Columbia Court of Appeal supported the lower court’s decision. The prison then appealed to the Supreme Court.

Issues: Jurisdiction, Disclosure and Grounds

The Supreme Court assessed three main issues: (1) whether a provincial superior court has the jurisdiction to rule on the reasonableness of a federal prison transfer decision or if the issue has to be dealt with by a federal court through an application for judicial review, (2) what information must be disclosed to a prisoner at the time of a transfer to meet the statutory requirements for procedural fairness and (3) whether there were grounds in this case for finding that the prison’s transfer decision was unlawful and for granting habeas corpus. The appeal itself was moot by the time it was reviewed by the Supreme Court; Khela was by then in a maximum security prison following a separate classification decision that was not under dispute. However, the Supreme Court felt the issues raised by the earlier classification decision were important and warranted its attention.

Access to Justice Matters

The Supreme Court ruled that determining the reasonableness of an inmate transfer falls within the jurisdiction of provincial superior courts. The SCC voiced the concern that, if provincial superior courts were barred from making rulings on transfers, federal prisoners would lose out. The Court noted that, by forcing federal prisoners to go through the judicial review process, the Court would be, in essence, depriving them of an alternate avenue of appeal. Additionally, because the habeas corpus application through the provincial court system was much more efficient—it could be handled in six days versus the four-and-a-half month judicial review process—the result would be a grave reduction in access to justice for the inmates. The SCC noted that the two remedies differ in additional, important ways. The habeas corpus application triggers a non-discretionary hearing, and the burden of proof falls on the warden. In contrast, a judicial review through a federal court is a discretionary remedy, and the onus is on the prisoner to show that a transfer has been unreasonable.

The SCC also considered the facts that provincial courts can provide local access and that provincial courts are well versed in the Charter rights that apply to the loss of liberty for prisoners who are transferred to higher security facilities—under s. 7 and s. 9 of the Charter. The Court noted that, while there are two instances where a provincial superior court should refuse habeas corpus applications (which are set out in May v Ferndale, [2005] 3 SCR 809), reviews of decisions by prison wardens to determine reasonableness did not fall into either exception.

Transfer Decisions Must Be Justifiable

The SCC found that the prison had failed to ensure procedural fairness in its transfer of Khela to a higher security facility. The prison had not disclosed its reasons for its decisions, nor had it invoked section 27(3) of the CCRA, a provision that allows a prison not to disclose its reasoning for a transfer decision because of concerns of security or of jeopardizing an ongoing investigation. The Court ruled that the prison, having failed to invoke 27(3), owed Khela transparent and justifiable reasons for its decision. Because liberty interests are at stake, a prison owes its inmates clarity and strong evidentiary reasoning. In his decision, Justice LeBel wrote, “To be lawful, a decision to transfer an inmate to a higher security penitentiary must, among other requirements, be procedurally fair” (para 98). The SCC found that, in Khela’s case, there were in fact grounds for finding that that the decision was unlawful and for granting the writ of habeas corpus.

Procedural Fairness Wins the Day

Unlawful decisions are unfair decisions. The decision in Mission Institution v Khela is a victory for prisoners and a clear reminder that the principles of fundamental justice apply to everyone in Canada. Prison inmates, as people who have already had limits put on their rights, are particularly vulnerable if wardens do not have to follow fair procedures. This ruling shows that every deprivation of liberty must be considered carefully and be justifiable. Section 9 of the Charter specifically states: “Everyone has the right not to be arbitrarily detained or imprisoned.” The SCC’s decision shows that prisoners cannot be deprived of their right to be free from arbitrary decisions.