Warden’s failure to disclose information considered in making decision breach of procedural fairness

DUTY TO ACT FAIRLY

Warden’s failure to disclose information considered in making decision breach of procedural fairness

Individual, federal inmate serving life sentence, transferred from medium security facility to maximum security facility on emergency, involuntary basis after individual implicated in stabbing incident at medium security facility. Warden, relying on security intelligence office report stating that individual implicated in stabbing, reassessed individual’s security classification to order transfer. Individual received assessment indicating that primary reason for emergency transfer was security intelligence report and anonymous information received from “three separate and distinct sources”, but not containing detailed information regarding identity of sources, what they said or why their information was considered reliable. Individual received notice confirming his case management team had recommended his classification be overridden. Individual’s application for habeas corpus on grounds that transfer decision unreasonable and procedurally unfair and therefore unlawful granted and decision upheld by British Columbia Court of Appeal. Warden’s further appeal dismissed. Inmate deprived of liberty as result of unlawful decision of federal board, commission, or tribunal can apply to provincial superior court for relief in form of habeas corpus. Decision not lawful if detention not lawful, if decision-maker lacked jurisdiction, or if breach of procedural fairness. Reasonableness should be regarded as one element of lawfulness. Where deprivation of liberty results from federal administrative decision, inmate can either challenge reasonableness of decision by applying for judicial review under Federal Court Act or have decision reviewed for reasonableness by means of application for habeas corpus. Reasonableness is legitimate ground upon which to question legality of deprivation of liberty on application for habeas corpus. Transfer decision that does not fall within range of possible, acceptable outcomes defensible in respect of facts and law or that lacks “justification, transparency and intelligibility” will be unlawful. To be lawful, reasons for and record of decision must “in fact or in principle support conclusion reached”. Inmate’s application for habeas corpus granted. Warden’s failure to disclose information considered in making transfer decision constituted breach of procedural fairness, rendering transfer decision unlawful.
Khela v. Mission Institution (Mar. 27, 2014, S.C.C., McLachlin C.J.C., LeBel J., Abella J., Rothstein J., Cromwell J., Moldaver J., Karakatsanis J., and Wagner J., File No. 34609) 239 A.C.W.S. (3d) 983.