Citation:

R.
          v. Mojtahedpour

Date:
20030115

2003
          BCCA 22

Docket:

CA028554

COURT
          OF APPEAL FOR BRITISH COLUMBIA

BETWEEN:

REGINA

RESPONDENT

AND:

KAMRAN MOJTAHEDPOUR

APPELLANT

Before:

The
          Honourable Chief Justice Finch

The
          Honourable Madam Justice Newbury

The
          Honourable Mr. Justice Hall

W.
          Ehrcke, Q.C.

Counsel
          for the Appellant

G.
          DelBigio

Counsel
          for the Respondent

Place
          and Date of Hearing:

Vancouver,
          British Columbia

3 October 2002

Place
          and Date of Judgment:

Vancouver,
          British Columbia

15 January 2003

Written
    Reasons by:

The
    Honourable Mr. Justice Hall

Concurred
    in by:

The
    Honourable Chief Justice Finch

Concurring
    Reasons by:

The
    Honourable Madam Justice Newbury  (Page 16, para. 26)

Reasons for Judgment of the Honourable
    Mr. Justice Hall:

[1]

On April 9, 2001, this appellant was convicted by a Supreme Court judge
    on two counts of wilfully attempting to obstruct, pervert or defeat the course
    of justice.  The obstruction alleged was making false statements to a police
    officer in the course of an investigation.  On April 30, 2001, he was sentenced
    to a nine month conditional sentence.

[2]

The issue in the case is about the admissibility of intercepted private
    communications between the appellant and his parents, which communications
    occurred around 6:30 a.m. on September 15, 1997, at an interview room in the
    North Vancouver R.C.M.P. detachment.  The appellant argues that the conversation
    ought to be held to have not been lawfully intercepted and seeks to have it
    excluded as evidence at trial.  The Crown argues that there were no unlawful
    features in the interception but that in any event, the intercepted conversation
    ought to be found admissible pursuant to s. 24(2) of the
Charter of
    Rights and Freedoms
.

[3]

The background to the case is as follows.  A fatal shooting occurred
    in a movie theatre in North Vancouver on February 2, 1997.  The police suspected
    that the perpetrator of the crime to be a person named Caster.  Caster was
    a friend or acquaintance of the appellant.  The police interviewed the appellant
    on March 2, 1997, concerning the whereabouts of himself and Caster at the
    time of the homicide.  As is now apparent, the appellant then lied to the
    police in claiming that he was at another location with Caster at the time
    of the homicide.  That false statement was the subject of Count 1, the first
    charge on which the appellant was convicted.  The police continued to work
    on the case.  By September 13, 1997, they had amassed enough evidence to arrest
    Caster and charge him with the murder.  I gather that the success of the investigation
    against Caster resulted from evidence developed in an undercover operation.
    By September 13, the police had also concluded that the narrative of events
    given by the appellant to support an alibi for Caster was false.

[4]

After arresting Caster and an alleged accomplice in September, the
    police decided to re-interview the appellant.  One of the officers suggested
    that their purpose for doing so was as follows:

 we
    sought the truth to advance the investigation and that included establishing
    that Mojtahedpour was giving us a false alibi  primarily,  we wanted the
    truth and we didn't believe his story and we wanted him as a witness against
    Caster and any investigation of obstruction was secondary.

[5]

In furtherance of their investigation, police officers attended, in
    Coquitlam, at the residence of the appellant, where he resided with his parents,
    around 10 o'clock on the evening of September 14, 1997.

[6]

The trial judge found their object was to determine what the appellant
    truly knew about the events of February 28 and whether they would be able
    to use him as a witness against Caster.  The officers who went to the house
    had no particular instructions as to what do if the appellant refused to come
    with them.  Their object was to persuade him to come with them on a voluntary
    basis.  They asked him to do so in the presence of his parents.  One of the
    officers admitted in his evidence that if the appellant had then refused,
    he would probably have arrested him.  It appeared they had been instructed
    that if the appellant refused to go with them, they were to simply leave.
    In any event, that circumstance did not arise since the appellant agreed to
    accompany them to police headquarters at North Vancouver.

[7]

The residence in Coquitlam was about an hour's drive away from the
    North Vancouver detachment.  The police transported the appellant back to
    the North Vancouver Detachment, arriving there in the late evening.  The parents
    of the appellant also drove to the detachment at this time but not long after
    the commencement of the interview between the police and the appellant and
    at the suggestion of the appellant, his parents were advised to return home.
    There then followed a lengthy interrogation of the appellant by various police
    officers.  The appellant continued to resist the suggestion that he knew more
    about the homicide than he was telling them.  He again reiterated that he
    and Caster had been elsewhere at the time of the shooting.  That, of course,
    was false and this formed the basis for the second charge of which he was
    convicted.

[8]

In the course of their investigation of the homicide in late July of
    1997, the police had obtained from a judge an authorization to intercept the
    private communication of amongst others persons the appellant and his parents.
    The authorization permitted interception at various locations including the
    home of the Mojtahedpour family.  The appellant and his parents were named
    parties in the authorization to intercept private communications.  The authorization
    was recited to be in force between July 27, 1997 and September 21, 1997, a
    period not exceeding 60 days, to conform with the provisions of s. 186(4)(e)
    of the
Criminal Code
.

[9]

Around 6 a.m. on the morning of September 15,
    the parents of the appellant were contacted at their home by the police.  It
    was suggested to them that they ought then to attend police headquarters in
    North Vancouver as their son might have something to say to them.  The appellant
    was concurrently advised that his parents were coming to the detachment and
    that he would be given an opportunity to speak to them in a room at the detachment.
    One of the officers said to the appellant at this time:

Your
    parents are downstairs and we have a room sort of set aside where you can
    talk to them and sort of explain, you know, your position on things.  I know
    they're pretty anxious about what's going on.  Why don't you come on downstairs.
    You guys can sit in comfort.

[10]

The
    appellant was taken from the area where he had been interviewed to a room
    in another part of the building.  He and his parents were placed in that interview
    room.  I gather the room is normally used as a victim assistance interview
    room.  On this occasion, the police had, prior to having the appellant and
    his parents enter the room, set matters up technically so that any conversation
    between the appellant and his parents could be intercepted and tape recorded.
    As the police hoped, the appellant acknowledged in conversation with the parents
    that he had been with Caster at the scene of the homicide and had given misinformation
    on the subject to police investigators.  The resultant tape recording was
    translated and transcribed.  Thus, he acknowledged in the intercepted communications
    that he had lied to the police, the
actus
reus
of the offences with which he was
    charged and ultimately convicted.  The evidence from the intercepted conversation
    provided the basis for the convictions.

[11]

At
    the trial proceedings, counsel for the Crown conceded that the appellant had
    been detained by the police overnight at the detachment.  There was at times
    some imprecision in the evidence as to his exact custodial status but I believe
    that concession to be governing.  The police, in a general way, had given
    the appellant a s. 10 Charter warning, which warning the judge found sufficient.
    It was argued at trial that the prolonged police interrogation of September
    14-15 was violative of the rights of the appellant and that the conversation
    should be excluded on that ground.  The judge did not accede to that submission
    and neither would I.  I cannot conclude that there was any breach of any
Charter
rights of this appellant in the conduct of the police in their dealings with
    the appellant.

[12]

The
    main focus of the appeal and the principal point argued before us was the
    question as to whether or not the conversation of September 15 between the
    appellant and his parents had been lawfully intercepted.  As I noted,
supra
,
    the authorization, by its terms, permitted interception of the private communications
    of the appellant and other persons including his parents at various specific
    locations, in or near certain described motor vehicles.  It also permitted
    the interception of communications:

at any
    other place or premises, either mobile or stationary, in the Province of British
    Columbia or elsewhere in Canada, resorted to or used by the persons referred
    to in paragraph 3,...

[13]

The
    appellant argues that because the appellant and his parents were "brought
    to" the room where the conversation was intercepted in the police station,
    the interception was not made pursuant to the requirements of the authorization.
    The authorization, by its terms, provided that interceptions could be made
    at a place "resorted to" or "used by" those named in the
    authorization.  It was submitted that what was done by the police to obtain
    evidence of the conversation was not within the parameters provided for in
    the authorization.  Therefore, it is submitted, this interception was not
    lawfully made and the evidence ought to have been excluded by the learned
    trial judge.

[14]

Concerning
    the admissibility of what was said by the appellant to his parents in the
    interview room, the learned trial judge ruled as follows:

In terms
    of the Victims Assistance Room, I conclude nothing done by the police compelled
    him to speak with his parents and thus while his own untrammelled tongue was
    his undoing it did not come as a consequence of any inappropriate conduct
    on the part of the police.  All they did was to give him the false sense of
    security that he could speak with his parents out of the presence of police
    officers.  The interception as I have concluded was itself lawful and thus
    they were entitled to record the conversation.
I accordingly find no basis
    to consider s. 24(2) of the Charter
.

[my
    emphasis]

[15]

The
    trial judge, having found admissible the evidence that incontestably proved
    the case against the appellant, he was found guilty as charged.

[16]

The
    narrow question to be decided on this appeal is whether or not the conclusion
    of the trial judge that the interception was lawfully made should be sustained.
    The appellant submits that if we conclude that the interception was not lawfully
    made, the matter should be dealt with by way of a new trial where a judge
    can pass on the question of the admissibility of the evidence under s. 24(2)
    of the
Charter
.  The Crown, as I noted, submits that there was
    nothing unlawful in the circumstances of interception and further that even
    if it should be found that the interception was not lawfully made, this Court
    should hold the evidence to be properly admissible under s. 24(2) of
    the
Charter
.

[17]

The
    words employed by the trial judge in his ruling, "his own untrammelled
    tongue was his undoing" would appear to be taken from an earlier judgment
    of this Court,
R. v. Roberts
(1997), B.C.J. No. 765.  That was
    a homicide case where police officers posing as criminals befriended the appellant
    and persuaded him to give them detailed information about how he had killed
    his wife and children.  He was subsequently convicted of the murders and appealed.
    This Court dismissed his appeal.  At issue in that case was the admissibility
    of what he had said to the undercover officers.  In the course of the judgment,
    I said this:

...The words of Scollin J. of the Manitoba Queens Bench in
R. v. Skinner
(1992), 17 C.R. (4th) 265 at p. 275, trenchantly express what I think could
    fairly be said about this appellant and about the conduct of the police in
    this case:

The difference between the unpalatable and the inedible is generally a matter
    of personal taste.  Absent "dirty tricks", the courts should not
    set themselves up as the arbiters of good taste or of the preferred methods
    of investigation.  It is unrealistic to demand chivalry from those who must
    investigate what are often heinous offences against blameless victims.  The
    law should not appear to materialize as a revolutionary rabbit from a judicial
    magician's hat.  Both the common law and the
Charter
justly preserve the accused from coercion and endow him with specific rights
    which he may exercise at the time of his arrest and while he is in custody;
    but the courts should not be so indulgent as to preserve the accused from
    himself and his own untrammeled tongue, and should require realistic justification
    for suppressing facts from the jury which go to weight rather than to admissibility.

In the
    case at bar, the police put on a good show, the appellant fell for it and
    "his own untrammeled tongue" did him in.  The reasonable well-informed
    member of the community would be not at all shocked by this police conduct
    but would, I believe, unhesitatingly endorse it.  There is here no abuse of
    process nor any breach of the Section 7 rights of the appellant.

[18]

The
    present case is, of course, very different and distinguishable from the situation
    being considered in
Roberts
.  In that sort of case, the police
    "put on a show" for a suspect and hope to get him to admit to persons
    posing as criminals details about the crime they are investigating.  The suspect
    in those cases has no belief that he or she is speaking to police officers.

[19]

In
    my opinion, the authorization in the instant case was facially valid.  There
    was no over breadth as was found to be the situation in some of the earlier
    authorities that were cited to us, such as
R. v. Grabowksi,
[1985] 2 S.C.R. 434.  I agree with and adopt what was said about the meaning
    of "resorts to" as connoting "go" in the case of
R.
    v. LeClerc
(1985), 20 C.C.C. (3d) 173 (B.C.C.A.).

[20]

I
    am in general agreement with the comments of the trial judge concerning the
    term "used by".  The trial judge said:

The
    term "to use" means to cause to act or serve for a purpose, to bring
    into service and to avail oneself.

[21]

However,
    those considerations do not quite characterize what happened in this case.
    In
R. v. Hillier
(1997), N.J. No. 125, O'Regan J. had before
    him a case where an electronic device had been placed in a police holding
    cell.  The operative clause in the authorization to intercept private communications
    was as follows:

The
    communication of the persons referred to in paragraph C may be intercepted
    at:

"(iv)
    and any place or premises either stationary or mobile, including any motor
    vehicles resorted to or used by any of the persons referred to in Paragraph
    C."

[22]

He
    went on to say:

A common
    sense interpretation of a clause which says

"resorted
    to" or "used by" would not include a jail cell where the accused
    is placed.  To say that those suspected of involvement in drug conspiracy
    would "resort to" a jail cell for their activities does not have
    an air of reality.  Counsel for the applicants relies on the interpretation
    of Sopinka, J. in Thompson (1990), 59 C.C.C. (3d) 225 (S.C.C.) at p. 296:

"In
    my view, the proper interpretation of the "resort to" clause is
    that the police can only intercept communications of the target at a place
    to which, based on evidence, they believe on reasonable and probable grounds
    the target has resorted or will resort.  To this extent there is prior authorization.
    Before dealing with whether the Hunter v. Southam requirement of prior authorization
    is met, I canvass the issue of what evidence is required to prove "resorting
    to. ...

Of
    course, this does not end the inquiry in the case at bar.  One must then ask
    whether there is other evidence that the target person "resorted to"
    a particular location.  The level of evidence required, in my view, is that
    which would lead the police to believe on reasonable and probable grounds
    that a person will resort to a particular location. ..."

My interpretation
    of the comments of Sopinka J. in Thompson is that there must clearly be reasonable
    and probable grounds to believe that an individual has resorted to or will
    resort to a particular location.  There is definitely nothing in the evidence
    before me to suggest that the applicants had planned to resort to the R.C.M.P.
    cells.  There is, however, ample evidence to show that the police had every
    intention to bring them to the police cells while searching the residence
    with the added hope that the private communications being intercepted would
    lead to admissible evidence.  In my opinion, there is a great difference when
    one considers the words "resorting to" as opposed to "brought
    to".

I find
    that the "resort to" clause is not sufficient to allow the interception
    in the cells.  Whether or not the authorization to intercept at the jail would
    have been granted if expressly requested is a question for another day.

[23]

The
    judge in that case did not at any length consider what might be encompassed
    by the term "used by".  It is possible to argue that "used
    by" is a term of wider import and that it could encompass what occurred
    at police headquarters on September 15.  However, in the particular circumstances
    of this case, I am not persuaded that this authorization should be interpreted
    to cover what occurred here.  I do not read the authorization that was granted
    here in July as envisaging these rather unusual factual circumstances.  I
    consider the interception made here was beyond the parameters of the authorization.
    The appellant, who was acknowledged to be detained, was placed in the room
    to talk to the parents.  I think it would be a linguistic stretch to say that
    in these circumstances, the site of the interception was a place being "resorted
    to" or "used by" the targets of the authorization.

[24]

Because
    I reach that conclusion, I consider the conversation between the appellant
    and his parents was not lawfully intercepted.  That leaves for consideration
    the s. 24(2) issue.  The trial judge, of course, was never required to consider
    that issue because of his conclusion that the interception had been lawfully
    made.  Thus, the issue remains unresolved at the trial court level.

[25]

A
    trial court is usually considered to be somewhat more favourably situated
    to consider such a matter.  A trial judge will be more conversant with the
    circumstances of the case and is well placed to assess such a question.  Considerations
    such as investigative conduct, the seriousness of the charge and the like
    fall to be considered on the issue of admissibility.  There are, of course,
    cases where such an issue can properly be considered on appeal but I am not
    persuaded that we should decide that issue in this case.  I would not accede
    to the suggestion of the Crown respondent that we should decide this issue.
    I would therefore order a new trial in this case.

The
    Honourable Mr. Justice Hall

I AGREE:

The Honourable Chief
    Justice Finch

Reasons
    for Judgment of the Honourable Madam Justice Newbury:

[26]

I
    agree with my colleague Mr. Justice Hall that the conversation between the
    appellant and his parents was not lawfully intercepted and that a new trial
    should be ordered.  However, I reach the first conclusion for somewhat different
    reasons than he.  I will state them very briefly.

[27]

First,
    it is important to distinguish between the question of the validity of the
    authorization and the ambit or meaning of the words used in the authorization,
    assuming it is valid.  My colleague focuses on the second question.  He concludes
    that it would be stretching the phrase "used by" too far to say
    that in the circumstances of this case, the site of the interception fell
    within the terms of the authorization.

[28]

Approaching
    this question solely on the basis of the wording used, I am not persuaded
    this is correct.  In my view, the word "use" has a very wide meaning
    in its ordinary and natural sense.  In ordinary parlance, it is common to
    refer to "using" a room in which to talk or meet.  It would not
    have been unusual in the case at bar, for example, for the appellant and his
    parents to ask if they could "use" a room in which to speak privately,
    nor for the police to suggest that the appellant and his parents were welcome
    to "use" the room for that purpose.

[29]

That
    does not, in my view, decide the question of principle that arises under s.
    8 of the
Canadian Charter of Rights and Freedoms.
Section 8
    as it relates to wiretap authorizations was discussed at length by Sopinka
    J. for the majority in
R. v. Thompson
[1990] 2 S.C.R. 1111,
    59 C.C.C. (3d) 225.  In that case, two "resort to" clauses were
    at issue in three very similar authorizations.  Paragraph (c) of each authorization
    named various persons whose private communications could be intercepted at
    particular locations "or elsewhere in the Province of British Columbia
    resorted to by the [named persons]."  The authorizations also stated:

(d)
    The persons whose identities are not known as of the date hereof whose private
    communications may be intercepted and the places at which private communications
    may be intercepted are:

(i)
    those persons who
resort to or use the premises
described in sub-paragraph
    (c) hereof, or

(ii)
    those persons who are in communication with the persons described in sub-paragraph
    (c) hereof apparently with respect to an offence mentioned in paragraph (a)
    hereof;

which
    private communications may be intercepted at any of the premises hereinbefore
    described and
any place or premises in the Province of British Columbia
    resorted to or used by the persons
described in sub-paragraph (c) hereof.
    [at 257; emphasis added.]

[30]

In
    discussing the appellant's attack in
Thompson
on the clauses
    in question, Sopinka J. for the majority noted that unlike the authorization
    in
Grabowski v. The Queen
(1985) 22 C.C.C. (3d) 449 (S.C.C.),
    the authorizations at issue did not "permit the interception of communications
    of anyone anywhere within the Province.  It is limited in location to places
    resorted to by certain named individuals." (at 265)  Thus the authorizations
    were found to be in compliance with the requirements of (then) s. 178.16 of
    the
Criminal Code
.  Further, he said:

A
    basket clause which would permit interception of any persons unknown to the
    police at the time of the application for the authorization and which would
    permit the police to intercept such communications at any place provided that
    there are reasonable and probable grounds to believe that the interception
    may assist in the investigation has been held to be invalid. The basis for
    that decision is that such a clause vests in the police the discretion to
    intercept the private communications of any or all persons if there are reasonable
    or probable grounds to believe that the interceptions would assist in the
    investigations, which is the function given by statute to the issuing judge
    . . . .  Neither paras. (c) nor (d) of the authorizations in this case is
    in that category. Each contains limitations. Paragraph (c) is limited to named
    persons. Paragraph (d) is limited to persons who resort to or use named premises
    or communicate with named persons. As to place, each is limited to places
    resorted to by five named individuals. It cannot therefore be said to delegate
    to the police the determination as to whether the interceptions would assist
    in the investigation. [at 265-6]

[31]

Sopinka
    J. then turned to the so-called "minimization" argument under s.
    8 of the
Charter
.  He concluded that the "resort to"
    clause
per se
did not offend the requirement of prior judicial authorization
    referred to in
Hunter v. Southam Inc.
[1984] 2 S.C.R. 145, or
    constitute a delegation of the function of authorization from a judge to the
    officers conducting the surveillance.  However, he continued:

. .
    . the proper interpretation of the "resort to" clause is that the
    police can only intercept communications of the target
at a place to which,
    based on evidence, they believe on reasonable and probable grounds the target
    has resorted or will resort
. To this extent there is prior authorization.
    [at 269; emphasis added.]

After
    considering the meaning of the phrase "resort to" (which he seemed
    at some points to equate with "use"), Sopinka J. agreed with the
    Ontario Court of Appeal in
R. v. Niles
(1978) 40 C.C.C. (2d)
    512, that the identification of the targeted person's voice could not alone
    be sufficient to constitute evidence of this kind.  To hold otherwise, he
    said, would encourage the police to monitor communications indiscriminately,
    "with the foreknowledge that any relevant communications that happen
    to turn up would be found, in a sense retroactively, to have been justified."
    He continued:

Of course, this does not end the inquiry in the case at bar. One must then
    ask whether there is other evidence that the target person "
resorted
    to
" a particular location.  The level of evidence required, in my
    view, is that which would lead the police to believe on reasonable and probable
    grounds that a person
will resort to
a particular location. The Crown
    submits, and I agree, that "resorting to" can be established through
    a previously lawfully authorized interception. For instance, if a target says
    that he or she
is going to use
a particular telephone, this would provide
    reasonable and probable grounds to believe that a person "resorted to"
    a particular location. The evidence need not in my opinion take a particular
    form, e.g. visual surveillance, so long as it is probative of the fact in
    issue. In the absence of evidence to the contrary, the trial judge would be
    justified in concluding that the authorization had been complied with.  [at
    270; emphasis added.]

[32]

In
    the result, the majority of the Court in
Thompson
held that
    to the extent that authorizations had been used by the police to monitor pay
    phones not specifically described in the authorization and without supporting
    evidence that created reasonable grounds for believing such phones would be
    used by the targeted persons, the officers had engaged in an unreasonable
    search contrary to s. 8 of the
Charter
.  At 280,  Sopinka J.
    then summarized two of his conclusions as follows:

(i)
    Interceptions authorized by para.(c) are lawful, provided that the police
    acted upon sufficient evidence that a person "
resorted to"
a place. Interceptions at places for which such evidence is absent are unlawful.

(ii)
    Interceptions obtained at public pay telephones in the absence of reasonable
    and probable grounds for believing that the telephone
was in

use
by a target
at the time the listening device was activated
were obtained
    contrary to s. 8 of the
Charter
. . . .

Thus,
    the interceptions characterized as unlawful in (i) are subject to the absolute
    exclusionary rule of s. 178.16(1), and are therefore inadmissible. Interceptions
    characterized as unreasonable in (ii) . . . are not properly characterized
    as unlawful. [Emphasis added.]

[33]

Although
    I must say I find it difficult to reconcile these conclusions
exactly
with the other passages quoted above and in particular I find the tenses of
    the verbs underlined in the quoted passages to be confusing, I take the judgment
    as a whole to mean that: (i) the use of a "basket clause" such as
    that in issue here is not
per
se unlawful in the sense that such clauses
    do not comply with the requirements of what is now Part VI of the
Code
;
    but that (ii) in order not to infringe the requirement of reasonableness under
    s. 8 of the
Charter
, at the time the police activate the authorized
    listening device they must have evidence that provides reasonable and probable
    grounds to believe that the facility (in this case, the room) will be used
    or is being used by one or more of the targeted persons.  (Sopinka J. used
    the words "was in use" and "resorted to" in the passage
    quoted immediately above, but the earlier portions of his reasons suggest
    that evidence that the telephone (or in this case, the room)
will be used
at a future time would also meet the requirements of s. 8.)  The evidence
    must be independent of the fact that, by the time of trial, the person or
    persons
did
in fact resort to or use the facility in question.

[34]

It
    is difficult to apply these principles to the case at bar.  It is clear the
    meeting room was "used by" the appellant and his parents, and that
    at the time the listening device was activated, the police
knew
the
    appellant and his parents would be "using" the room.  But in this
    instance, they knew because it was they who directed the appellant and his
    parents to do so.  Had it not been for this suggestion, the appellant and
    his parents would not have done so.  There could have been no reasonable and
    probable grounds for believing they would do so
except
for the police
    officer's own suggestion.  The facts go beyond the 'retroactive validation'
    found objectionable in
Niles
,
supra
, to prospective manipulation.  In my opinion, these
    circumstances do not constitute the kind of "evidence" the Court
    had in mind in
Thompson
, notwithstanding that one might say
    the bare requirements of para. (ii) quoted above from the Court's judgment
    were met.  If the Crown were permitted to use this evidence, it would be open
    to the police to manoeuvre suspects into places or facilities for the express
    purpose of intercepting statements, without any evidence justifying an expectation
    that the target would otherwise have used or resorted to the location or facility.
    On my reading of
Thompson
, the Supreme Court would regard this
    result as an unreasonable delegation of authority to law enforcement officers
    and an unacceptable violation of privacy. Accordingly, I find that the appellant's
    rights under s. 8 of the
Charter
were breached in this case.

[35]

I
    agree with Hall J.A. that the question of whether the admission of the evidence
    thus obtained would bring the administration of justice into disrepute is
    properly the province of a trial judge and I therefore join with him in concluding
    that a new trial should be ordered.

The
    Honourable Madam Justice Newbury


Citation:

Hickey
          v. Kent Institution

Date:
20030116

2003
          BCCA 23

Docket:

CA026638

COURT
          OF APPEAL FOR BRITISH COLUMBIA

BETWEEN:

BRIAN DONALD HICKEY

APPELLANT

(PETITIONER)

AND:

DIRECTOR, KENT INSTITUTION

CORRECTIONAL SERVICES CANADA

RESPONDENTS

(RESPONDENTS)

Before:

The
          Honourable Madam Justice Rowles

The
          Honourable Madam Justice Ryan

The
          Honourable Madam Justice Saunders

A.H.
          Zipp

Counsel
          for the Appellant

C.
          Workun

Counsel
          for the Respondents

Place
          and Date of Hearing:

Vancouver,
          British Columbia

September 21, 2001

Place
          and Date of Judgment:

Vancouver,
          British Columbia

January 16, 2003

Written
    Reasons by:

The
    Honourable Madam Justice Ryan

Concurred
    in by:

The
    Honourable Madam Justice Saunders

Concurring
    Reasons by:

The
    Honourable Madam Justice Rowles (Page 26, para. 55)

Reasons for Judgment of the Honourable
    Madam Justice Ryan:

Introduction

[1]

The appellant, Brian Donald Hickey, is an inmate in a federal institution.
    He is serving a sentence of life imprisonment imposed on April 17, 1996.

[2]

On September 1, 1999 the appellant was lodged at Kent Institution.
    On that day he was ordered transferred to the Special Handling Unit in Quebec
    by a delegate of the   of Corrections pursuant to s. 29 of the
Corrections
    and Conditional Release Act
, S.C. 1992, c. 20 ("the Act").
    The appellant was provided with a copy of the order on September 2, 1999.
    Shortly thereafter he was advised that his transfer would take place on October
    7, 1999.  I will deal in more detail with the making of the transfer order
    later in these reasons.

[3]

The Special Handling Unit is a distinct entity located within the regional
    reception centre at Ste-Anne-des-Plaines, Quebec.  It is the only facility
    of its kind in Canada.  According to Commissioner's Directive No. 551, the
    policy objective of the Special Handling Unit is to "create an environment
    in which dangerous offenders are motivated and assisted to behave in a responsible
    manner so as to facilitate their integration in a maximum security institution."

[4]

On October 5, 1999 the appellant filed an application in the Supreme
    Court of British Columbia seeking:

1.
    An order quashing the decisions of Correctional Services Canada that the Applicant
    be transferred to the Special Handling Unit.

2.
    An order that the appellant not be transferred from the Pacific Region without
    leave of the Court.

[5]

On October 6, 1999 the appellant obtained an
ex parte
order
    from a Supreme Court justice which stayed the appellant's transfer until the
    application was heard.

[6]

The matter proceeded to hearing on October 13, 1999 on the basis that
    it was an application by the appellant for a writ of
habeas corpus
with
certiorari in aid
.  Counsel for the respondent resisted the application
    on the basis that it was premature.  Shortly put, his argument was that while
    a writ of
habeas corpus
will release an inmate from an unlawful detention,
    it has no application where an alleged unlawful detention is only anticipated.
    He argued that the appellant in this case would have to wait for transfer
    into the Special Handling Unit before he could apply for
habeas corpus
.
    Until that time arrived the prisoner should have relied on other available
    remedies.  The Chambers judge agreed with counsel for the respondent.  She
    concluded, at para. 13:

As Mr. Hickey remains lawfully detained, I find that this court lacks jurisdiction
    to issue
habeas corpus
and the proper procedure is for him to challenge
    the underlying decision by judicial review under s. 18 of the
Federal
    Court Act
.

[7]

We were advised by counsel for the respondent that on December 1, 1999
    the appellant filed a motion to extend the time for filing an application
    for judicial review of the transfer decision, along with an application to
    stay the transfer.  The motions were heard before Mr. Justice Pinard in the
    Federal Court on December 6, 1999 and dismissed the next day.

[8]

An appeal from the decision of the Supreme Court justice was filed
    by the appellant's counsel on December 22, 1999.  On February 1, 2000 the
    respondent sought dismissal of the appeal on the basis that it was out of
    time.  Madam Justice Newbury dismissed the respondent's application.  She
    granted the appellant an extension of time in which to bring his appeal.

[9]

On March 29, 2000 Mr. Justice Mackenzie of this Court heard and dismissed,
    for lack of jurisdiction, a stay application respecting the decision to transfer
    the appellant.

[10]

The
    decision of Mr. Justice Pinard in Federal Court refusing to quash the order
    transferring the appellant to the Special Handling Unit and the refusal of
    a justice of this Court to stay the decision to transfer the appellant rendered
    this appeal moot.  However, the court agreed to hear the appeal, since it
    raises questions which affect access to the Supreme Court of British Columbia
    by federal prisoners who seek to challenge involuntary inter-provincial transfers
    on the basis of manifest unfairness.

The
    Ground(s) of Appeal

[11]

The
    ground of appeal in this case is whether the Supreme Court justice in Chambers
    erred in law in finding that the British Columbia Supreme Court had no jurisdiction
    to grant relief in the nature of
habeas corpus
for an imminent deprivation
    of liberty by virtue of a contested involuntary order of transfer made within
    the prison system.

The
    Legislation Governing Prison Transfers

[12]

Section
    29 of the
Corrections and Conditional Release Act
provides:

29.
The Commissioner may authorize the transfer
    of a person who is sentenced, transferred or committed to a penitentiary to

(
a
)
    another penitentiary in accordance with the regulations made under paragraph
    96(
d
), subject to section 28; or

(
b
)
    a provincial correctional facility or hospital in accordance with an agreement
    entered into under paragraph 16(1)(
a
) and any applicable regulations.

[13]

Section
    28 of the Act provides:

28.
Where a person is, or is to be, confined
    in a penitentiary, the Service shall take all reasonable steps to ensure that
    the penitentiary in which the person is confined is one that provides the
    least restrictive environment for that person, taking into account

(
a
)
    the degree and kind of custody and control necessary for

(i)   the safety of the public,

(ii)  the safety of that person and other persons in the penitentiary,
    and

(iii) the security of the penitentiary;

(
b
)
    accessibility to

(i)   the person's home community and family,

(ii)  a compatible cultural environment, and

(iii) a compatible linguistic environment; and

(
c
)
    the availability of appropriate programs and services and the person's willingness
    to participate in those programs.

[14]

Section
    96(d) of the Act provides:

96.
The Governor General in Council may make regulations

.
    . .

(
d
)
    respecting the placement of inmates pursuant to section 28 and their transfer
    pursuant to section 29;

[15]

Section
    12 of the Regulations provides:

12.  Before the transfer of an inmate pursuant to section 29 of the Act, other
    than a transfer at the request of the inmate, an institutional head or a staff
    member designated by the institutional head shall

(a)
    give the inmate written notice of the proposed transfer . . . .

[16]

Section
    96 of the Act gives the Commissioner the power to issue Commissioner's Directives.
    While the Directives have no force of law, they set out such things as policy
    objectives, time frames and procedures that are meant to provide fairness
    and uniformity within the federal prison system.  (
R. v. Institutional
    Head of Beaver Creek Correctional Camp, Ex Parte MacCaud
, [1969] 1
    C.C.C. 371 (Ont. C.A.); and
Leprette v. Edmonton Institution (Warden)
    et al.
(1992), 58 F.T.R. 101 (T.D.).)

[17]

Directive
    No. 540 - "Transfer of Offenders" and Directive 551 - "Special
    Handling Unit" apply in this case.

[18]

Directive
    No. 540 sets out, among other things, time frames within which assessments
    and decisions for placements should be made.

[19]

Directive
    No. 551 provides in part:

15.
    The case of any offender who causes or commits an act causing serious harm
    or death shall be automatically reviewed by the Regional Deputy Commissioner
    for admission to the Special Handling Unit for assessment.

[20]

An
    inmate who is unhappy with a transfer decision may appeal through grievance
    procedures set up under ss. 90 and 96(u) of the Act, ss. 7482 of the Regulations,
    and Commissioner's Directive No. 81.

[21]

At
    the conclusion of the grievance procedure, the inmate may appeal the decision
    by way of judicial review under s. 18 of the
Federal Court Act
,
    R.S.C. 1985, c. F-7.  It is also open to the inmate, if the grievance procedure
    promises to be inadequate, to by-pass the grievance procedure and go directly
    to Federal Court by way of judicial review.  (
Anderson v. Canada (Armed
    Forces)
, [1997] 1 F.C. 273 (C.A.); and
Giesbrecht v. Canada
,
    [1998] F.C.J. No. 621 (T.D.).)

The Procedure Followed by the Prisoner in this Case

[22]

The
    record in the case at bar discloses that on May 27, 1999 the appellant received
    a "Notice of Involuntary Transfer Recommendation".  He passed the
    notice on to his lawyer who, in a letter dated July 29, 1999, made submissions
    to the Warden of Kent Institution that the facts underlying the recommended
    transfer (found in earlier reports filed by corrections officers and parole
    officers on March 1 and May 18, 1999) were incorrect and did not support a
    transfer to the Special Handling Unit.  On August 11, 1999 the Warden of Kent
    Institution advised the appellant in writing that she had reviewed the recommendation
    to send the appellant to the Special Handling Unit and that it was her intention
    to uphold the recommendation.  The matter was forwarded for decision to Regional
    Headquarters Pacific Region.  Counsel for the appellant made submissions to
    Regional Headquarters Pacific Region in a letter dated August 24, 1999.  On
    September 1, 1999 the A/Asst. Deputy Commissioner approved the transfer.
    The appellant received notice of the order on September 2, 1999.  The notice
    advised the appellant that the transfer decision could be appealed within
    the Pacific Region through the grievance procedure.  The appellant did not
    avail himself of either the grievance procedure or judicial review.  As I
    mentioned earlier, on October 5, 1999, he filed what amounted to an application
    for
habeas corpus
in the Supreme Court of British Columbia.

The
Habeas Corpus
Jurisdiction of the

Supreme
    Court of British Columbia

[23]

In
    his text,
The Law of Habeas Corpus
[1]
, Robert Sharpe (as he then was) said
    this about the traditional form of review available on
habeas corpus
at p. 23:

The
    form of review available on
habeas corpus
may be described as follows.
    The writ is directed to the gaoler or person having custody or control of
    the applicant.  It requires that person to return to the court, on the day
    specified, the body of the applicant and the cause of his detention.  The
    process focuses upon the cause returned.  If the return discloses a lawful
    cause, the prisoner is remanded; if the cause returned is insufficient or
    unlawful the prisoner is released.  The matter directly at issue is simply
    the excuse or reason given by the party who is exercising restraint over the
    applicant.

[24]

In
    modern practice in British Columbia
habeas corpus
applications are
    not decided on a formal return, but on affidavits of the applicant and respondent.
     As Sharpe notes, however, the technical requirements of the return have shaped
    the scope of review and must be kept in mind if the cases are to be properly
    understood.  (p. 23)

[25]

Prior
    to 1984 there was a body of authority in Canada which held that
habeas
    corpus
was available only in cases where a favourable judgment would result
    in the prisoner's immediate release from all forms of custody.  Thus, it was
    thought that the remedy was unavailable to prisoners held on valid warrants
    of committal in this country's jails and penitentiaries.  That view did not
    prevail in
Miller v. the Queen
, [1985] 2 S.C.R. 613.  In
Miller
the Supreme Court of Canada held that
habeas corpus
with
certiorari
    in aid
lies to release a prisoner from a distinct form of confinement
    in an institution, such as a special handling unit, to a lesser form of confinement
    in the general population.  Le Dain J. speaking for the court said this (at
    p. 641):

Confinement
    in a special handling unit, or in administrative segregation as in
Cardinal
[
and Oswald and The Queen
(1982), 67 C.C.C. (2d) 252, rev'd [1985]
    2 S.C.R. 643], is a form of detention that is distinct and separate from that
    imposed on the general inmate population. It involves a significant reduction
    in the residual liberty of the inmate. It is in fact a new detention of the
    inmate, purporting to rest on its own foundation of legal authority. It is
    that particular form of detention or deprivation of liberty which is the object
    of the challenge by
habeas corpus
. It is release from that form of
    detention that is sought. For the reasons indicated above, I can see no sound
    reason in principle, having to do with the nature and role of
habeas corpus
,
    why
habeas corpus
should not be available for that purpose. I do not
    say that
habeas corpus
should lie to challenge any and all conditions
    of confinement in a penitentiary or prison, including the loss of any privilege
    enjoyed by the general inmate population. But it should lie in my opinion
    to challenge the validity of a distinct form of confinement or detention in
    which the actual physical constraint or deprivation of liberty, as distinct
    from the mere loss of certain privileges, is more restrictive or severe than
    the normal one in an institution.

[26]

In
    this appeal the appellant argued that not only is
habeas corpus
available
    to release a prisoner from the Special Handling Unit into the general population
    (should the more confined detention be found to be unlawful), it is also available
    to the prisoner as a remedy immediately after any decision is made to confine
    him further and before the resulting transfer is actually made.  For this
    proposition counsel for the appellant relies on the decision of
Idziak
    v.
Canada (Minister of Justice)
,
    [1992] 3 S.C.R. 631.

[27]

In
    the
Idziak
case the United States sought to extradite Mr. Idziak
    from Ontario to face charges in the State of Michigan.  The provisions of
    the
Extradition Act
in effect at the time required an extradition
    judge to make an order of committal if the extradition partner met certain
    requirements set out in the Act.  The order of committal held a person in
    custody to await his or her surrender to the demanding state.  After committal
    the Act required the Minister of Justice to decide whether to order the surrender
    of the person to the extradition partner.  If the Minister decided to surrender
    the person, a warrant of surrender was issued.  In the
Idziak
case, the warrant for Mr. Idziak's committal was issued after an extradition
    hearing.  Although appeals of the order of committal were filed after the
    committal, they were soon abandoned.

[28]

After
    the appeals were abandoned, Mr. Idziak made submissions under s. 25 of the
Extradition Act
(as it then stood) requesting the Minister of
    Justice to refuse to exercise his discretionary authority to surrender Mr.
    Idziak to the United States' authorities.  The Minister rejected Mr. Idziak's
    submissions.  He issued a warrant of surrender. Following the refusal of the
    Minister to discharge him, counsel for Mr. Idziak filed an application for
habeas corpus
with
certiorari in aid
to set aside the warrant
    of surrender on the ground that the Minister had denied his rights to fundamental
    justice under s. 7 of the
Canadian Charter of Rights and Freedoms
.

[29]

The
    Minister of Justice took the position that the superior court of Ontario had
    no jurisdiction to hear the application for
habeas corpus
because Mr.
    Idziak was held in custody on the warrant of committal, not the impugned warrant
    of surrender which had not yet been executed.

[30]

The
    Superior Court judge, Doherty J. (as he then was), held that Idziak's imminent
    custody provided a sufficient basis for invoking the
habeas corpus
jurisdiction of the court.  However, he dismissed the application on its merits.

[31]

Mr.
    Idziak's appeal to the Ontario Court of Appeal was dismissed on the substantive
    issue.  The Court did not find it necessary to decide the jurisdictional issue.

[32]

The
    Supreme Court of Canada held that Idziak's detention was properly reviewable
    on
habeas corpus
, but dismissed the appeal on the merits of the application.

[33]

Prior
    to
Idziak
the question of "imminent detention" had
    been litigated in the context of persons on bail.  In
Re Isbell
,
    [1930] S.C.R. 62, the Supreme Court of Canada held that a person who had been
    released on bail was not entitled to apply for a writ of
habeas corpus
.
    Rinfret J. said this about the availability of the writ (at p. 65):

In my
    view, in order to make a case for
habeas corpus
in criminal matters,
    there must be an actual confinement or, at least,
the present means of
    enforcing it.  A person may apply for the writ while in the custody of a constable,
    immediately upon being arrested, and need not wait until he is actually incarcerated.
But a person at large on bail is not so restrained of his liberty as to entitle
    him to the writ.  There are numerous decisions in that sense in the United
    States.  They may be found conveniently collected in the American and English
    Encyclopedia of Law, 2nd ed., vol. 15, vo.
Habeas Corpus
, at p. 159.

[Emphasis added.]

[34]

This
    comment of Rinfret J. was later relied upon by a Quebec Superior Court justice
    in the first instance in
Masella v. Langlais
,

[1955]
    S.C.R. 263.  In that case Masella had been ordered detained and deported by
    a Board of Inquiry under the
Immigration Act
of the day.  Masella
    obtained his release on bail and soon made an application for a writ of
habeas
    corpus
.  Brossard J. granted the writ.  He concluded that Masella's imminent
    detention provided a sufficient basis for the issuance of the writ.  The Supreme
    Court of Canada disagreed, holding that by its terms and nature, the writ
    of
habeas corpus
is inapplicable to the situation where the person
    is at liberty on bail and not confined or restrained of his liberty.  Locke
    J., referring to the conclusions of Brossard J., said this (at p. 274):

If the
    principal ground assigned by Brossard J. for his opinion, namely, that the
    fact that there was an order for deportation outstanding under which the applicant
    might be taken into custody, afforded ground for the issue of the writ, any
    accused person for whose arrest a warrant has been issued but which has not
    been executed might apply by
habeas corpus
for his discharge.  I know
    of no authority for any such proposition.

[35]

As
    I mentioned earlier, Brossard J. had relied upon the passage from
Re
    Isbell
, which I have reproduced in the previous paragraphs, for the
    proposition that the existence of the deportation order provided a sufficient
    basis for the issuance of the writ.  Thus, Locke J. found it necessary to
    explain what Rinfret J. had meant in
Re Isbell
.  Locke J. said
    (at pp. 274-5):

[I]n
Re Isbell
[Rinfret J.] had said that:

In order to make a case for
habeas corpus
in criminal matters, there
    must be an actual confinement, or, at least, the present means of enforcing
    it.

The
    concluding words of this passage appear to me to have been taken from the
    judgment of the Supreme Court of the United States in
Wales v. Whitney
[(1884) 114 U.S. 564].  What was meant by "the present means of enforcing
    it" was explained by Miller J. in that case in the next sentence of his
    judgment which read (p. 572):

The class of cases in which a sheriff or other officer, with a writ in his
    hands for the arrest of a person whom he is required to take into custody,
    to whom the person to be arrested submits without force being applied, comes
    under this definition.

That
    it was in this sense that the expression was used in
Re Isbell
is made
    clear by the sentence in the reasons which followed the language quoted, which
    reads (p. 65):

A person may apply for the writ while in the custody of a constable,
immediately
    upon being arrested
, and need not wait until he is actually incarcerated.

[Emphasis added.]

[36]

Doherty
    J. had relied also on
Re Isbell
,
supra
, in the
Idziak
case for the proposition that imminent detention may provide the necessary
    condition for an application for
habeas corpus
.  In
Idziak
,

Cory J. referring to
Masella v. Langlais
observed that
    (at p. 648):

On its face, this decision would seem to prohibit Mr. Idziak from seeking
    the remedy of
habeas corpus
against his surrender before the Canadian
    authorities actually initiate the surrender phase by confining him for purposes
    of transfer to the United States.

[Emphasis
    added.]

[37]

Cory
    J. went on to note that the correctness of
Masella
had been
    questioned in
R. v. Gamble
, [1988] 2 S.C.R. 595, where Wilson
    J. stated (at p. 645) that
Masella v. Langlais
was "suspect
    to the extent that it denies
habeas corpus
as a remedy to vindicate
    the rights protected under s. 7 of the
Charter
."

[38]

Cory
    J. concluded that forcing Mr. Idziak to wait until the authorities initiated
    the surrender phase would place an unfair and intolerable burden upon the
    applicant.  He added (at pp. 648-9):

From a practical point of view to apply such a principle would put anyone
    in Mr. Idziak's situation in an impossible position.  Is it really necessary
    that the subject be forced to wait until he is incarcerated, perhaps for only
    a very short time pending his or her transfer to the foreign authorities,
    before he can move to obtain relief by means of
habeas corpus
?  The
    time constraints alone would place the remedy beyond reach.  To take such
    a position would be unfair and contrary to the very nature of the remedy of
habeas corpus
is designed to provide.

[39]

In
    reaching his conclusion that the writ was available in Idziak's case Cory
    J. noted the words of Wilson J. in
Gamble
, where she said this
    at p. 645 (p. 649
Idziak
):

As did my colleague Le Dain in
Miller
at pp. 638-39, I have found the
    American authorities helpful in identifying the kinds of liberty interest
    served by the
habeas corpus
remedy.  I agree that
habeas corpus
,
    the 'Great Writ of Liberty', is:

". . . not now and never has been a static, narrow, formalistic remedy;
    its scope has grown to achieve its grand purpose  the protection of individuals
    against erosion of their right to be free from wrongful restraints upon their
    liberty" (
Jones v. Cunningham
, 371 U.S. 236 (1962), at p. 243).

[40]

In
    the end Cory J. concluded that (at pp. 649-50):

The
    remedy of
habeas corpus
should be available to those who are subject
    to an outstanding warrant of detention.  To be subject to the issuance of
    a warrant of surrender which will result in a loss of residual liberty when
    it is executed at a future date is certainly a sufficient basis to support
    an application for a writ of
habeas corpus
.

[41]

The
    appellant has also provided this Court with a copy of the decision in
Beaudry
    v.
Canada (Commissioner of Corrections)
,
    [1997] O.J. No. 5082 (C.A.).  In that case prisoners were advised that they
    were being transferred from one penitentiary in Ontario to another.  Before
    the prisoners were transferred they filed applications for
habeas corpus
in the Ontario Court of Justice.  Counsel for the Commissioner of Corrections
    argued that the Ontario Court had no jurisdiction to make an order of
habeas
    corpus
until the prisoners were actually in the detention they said was
    unlawful.  A judge of the Ontario Court of Justice ruled that he would hear
    the application
for habeas corpus
.  The matter made its way to the
    Ontario Court of Appeal on the issue of jurisdiction alone.  The Court dismissed
    the Commissioner's appeal with this endorsement:

Applying the rationale of the decisions of the Supreme Court of Canada in
Miller v. The Queen
,
Gamble v. The Queen
, and
Idziak v. Canada
    (Minister of Justice)
, we are of the opinion that the judge below did
    not err in holding that the applicants, that is the respondents in this appeal,
    are entitled to seek relief by way of
habeas corpus
even though they
    are not yet in the Regional Treatment Centre.

We make no decision as to the remedies, if any, that may be available to the
    applicants and leave such issues to the trial of this matter which we are
    advised is scheduled to proceed on January 5, 1998.

[42]

In
    the case at bar counsel for the respondent urged this Court not to follow
    the
Beaudry
case.  He submitted that the
Idziak
case and
Gamble
were distinguishable from the case at bar because
    in both cases necessity was at the heart of the decision to expand the scope
    of
habeas corpus
.  Counsel submitted that the pivotal fact in
Idziak
was that if Mr. Idziak was forced to wait for the surrender process
    to be initiated he would be effectively deprived of any remedy at all because
    once in the hands of the foreign authorities he would likely be beyond the
    reach the Canadian courts.

[43]

Gamble
presented a unique set of facts.
    Janice Gamble had been an accomplice to murder in March 1976.  After the murder
    and before her trial the provisions of the
Criminal Code
relating
    to murder had been amended extensively.  Gamble was tried under the new provisions
    of the
Code
.  She was sentenced to life imprisonment with parole
    ineligibility for 25 years.  Gamble's conviction appeal to the Alberta Court
    of Appeal was dismissed.  Although the Court found that Gamble ought to have
    been tried under the old provisions of the
Code
, it refused
    to order a new trial because the transition provisions of the new legislation
    required that the re-trial be held in accordance with the new provisions.

[44]

After
    the
Charter
was made part of our constitution in 1982 counsel
    for Ms. Gamble developed an argument that her sentence violated s. 7 of the
Charter
.  Had the appellant been tried under the old provisions
    and convicted of "murder punishable by life imprisonment" she would
    have been ineligible for parole not more than 20 and not less than 10 years
    of imprisonment.  Having been tried under the new provisions she had been
    sentenced to a minimum of 25 years. After fourteen years of imprisonment she
    filed an application for
habeas corpus
alleging that the condition
    of her sentence  the 25-year period of parole ineligibility  infringed her
    s. 7 residual liberty interest.  She applied to be released from a strict
    form of incarceration to a lesser one in which she could apply for parole.

[45]

Many
    arguments were made by the respondent that the remedy of
habeas corpus
was unavailable to Ms. Gamble.  One of the arguments made was that the proper
    remedy ought to have been a sentence appeal.  At that late stage, however,
    the appellant was required to seek an extension of time to seek leave to appeal.
    She could not seek the remedy as of right, but only as an indulgence.  Wilson
    J., speaking for the majority, found that this meant that Gamble could very
    well be left without a remedy for the alleged violation of her
Charter
rights, "and that is not a situation which a court should countenance
    if it has the means to avoid it." (p. 634)  Later in her reasons Wilson
    J. repeated the words of Professor Sharpe
[2]
saying, "if the time for appeal
    of an illegal sentence has gone by 'the law should provide another remedy'."
    (p. 643,
Gamble
)

[46]

While
    it may be the case that necessity was the driving force behind the decision
    in
Gamble
, the same cannot be said for
Idziak
.
    It was open to Mr. Idziak to challenge the decision of the Minister under
    s. 18 of the
Federal Court Act
while he remained detained under
    the warrant of committal. As I read the case, what mattered in
Idziak
was the fact that Mr. Idziak would be deprived of his right to
habeas corpus
if he was forced to wait until the authorities began the surrender process.
    Mr. Idziak's right to seek the remedy of
habeas corpus
would arise
    the moment the warrant of surrender was acted upon.  In other words, his right
    to
habeas corpus
would arise the moment officers moved under the warrant
    to transfer his custody to the U.S. authorities.  Since his opportunity to
    challenge the warrant would be severely restricted once he was in the hands
    of agents of the foreign government, he ought to be able to challenge his
    detention before that process began.

[47]

In
    the case at bar, as a result of the jurisprudence developed in
Isbell
,
Masella
, and
Idziak
, Mr. Hickey's right to seek
habeas corpus
would arise the moment the prison authorities began to
    act on the order of transfer.  Although Mr. Hickey, once transferred, would
    not be placed beyond the jurisdiction of the Canadian courts, he would be
    placed beyond the jurisdiction of the British Columbia Supreme Court, the
    province in which the challenged order was made.

[48]

In
    spite of the able arguments of counsel for the Commissioner, I am of the view
    that the burden of authority favours a finding that in the circumstances of
    this case, the British Columbia Supreme Court has jurisdiction to entertain
    an application for
habeas corpus
where transfer under such an order
    in the case at bar is imminent.  In my view the Supreme Court justice erred
    in law in finding that she had no jurisdiction to entertain an application
    for
habeas corpus
.

The
    Discretion to Refuse
Habeas Corpus

[49]

Counsel
    for the Commissioner submitted that if this Court concluded that the Chambers
    judge erred in finding that she had no jurisdiction to hear the appellant's
    application for
habeas corpus
, this Court should nonetheless dismiss
    the appeal.  He submitted that even if the Chambers judge had the jurisdiction
    to hear the application, she was bound to exercise her discretion against
    hearing it.

[50]

It
    is trite that the court has a discretion to refuse to entertain an application
    for
habeas corpus
if there exists a viable alternative to the writ.
    In the context of prison law the fact that there is in place a complete, comprehensive
    and expert procedure for review of a decision affecting the prisoner's confinement
    is a factor which militates against hearing a petition for
habeas corpus
.
    But there will be exceptions.

[51]

In
Warden of Mountain Institution v. Steele
, [1990] 2 S.C.R. 1385,
    the court found that Mr. Steele's continued incarceration as a dangerous offender
    was a violation of s. 12 of the
Charter
.  An appeal of his parole
    status had been available to Mr. Steele by way of judicial review of a decision
    of the National Parole Board.  Mr. Steele failed to pursue it.  The Supreme
    Court of Canada allowed the application for
habeas corpus
, concluding
    that given Mr. Steele's age and length of detention it would be unfair to
    require him to commence new proceedings.

[52]

In
Fraser v. Kent Institution
(1997), 6 C.R. (5th) 293, this Court
    recognized that an institutional backlog of over six months to deal with an
    appeal with respect to parole matters provided a reason to exercise the discretion
    of the court in favour of hearing the application for
habeas corpus
.

[53]

In
    the case at bar the appellant provided the Supreme Court with no explanation
    as to why he had not pursued either the grievance procedures or judicial review
    to the Federal Court.  Without any information setting out why these procedures
    were inadequate to deal with Mr. Hickey's situation, the Chambers judge ought
    not to have heard the application for
habeas corpus
.

Conclusion

[54]

I
    agree with the appellant that the Chambers judge erred in law in concluding
    that the British Columbia Supreme Court lacked the jurisdiction to entertain
    the application for
habeas corpus
in the circumstances of this case.
    However, since no evidence was placed before the Chambers judge to demonstrate
    that the grievance procedures under the
Corrections and Conditional
    Release Act
, or judicial review to the Federal Court were inadequate,
    the Chambers judge was bound to exercise her discretion and refuse to consider
    the application.  I would dismiss this appeal.

The
    Honourable
Madam Justice Ryan

I AGREE:

The Honourable
Madam
    Justice Saunders

Reasons for Judgment of the Honourable
    Madam Justice Rowles:

[55]

This
    appeal is moot but it raises an important issue concerning the availability
    of
habeas corpus
by federal prisoners who seek to challenge an involuntary
    transfer on the basis of unfairness.

[56]

I
    agree with Madam Justice Ryan for the reason she states that the Supreme Court
    of British Columbia has jurisdiction to grant relief in the nature of
habeas
    corpus
to a federal prisoner faced with an involuntary transfer.

[57]

This case does not lend itself to extensive comment on the exercise
    of discretion because of the limited material that was put before the Supreme
    Court judge but I wish to make the following observation.  The question of
    when to entertain an application for
habeas corpus
is a matter of discretion
    which ought to be informed by the particular difficulties prisoners face in
    challenging a transfer order.  In his recently published book,
Justice
    Behind Walls
(Douglas & McIntyre, 2002), Professor Michael Jackson
    explores the practice of involuntary transfers under s. 28 of the
Corrections
    and Conditional Release Act
and s. 18 of the
Regulations.
In
    "Sector 5", Professor Jackson illustrates some of the problems prisoners
    face when served with a transfer notice by making reference cases that have
    come into the courts.  One of the cases he refers to is the decision of Thackray
    J. (as he then was) in
Fitzgerald v. William Head Institution
,
    [1994] B.C.J. No. 1534 (Q.L.) (S.C.), in which a review of a correctional
    administrator's decision was successful. Professor Jackson uses the
Fitzgerald
case to illustrate his point that testing "faceless informer" information
    used by administrators in making decisions about transfers poses particularly
    difficult problems in the prison setting.  In that case, Thackray J. also
    acknowledges the current climate in which courts must adjudicate issues of
    prisoners' rights.

[58]

I
    agree that the material presented by the appellant was an inadequate foundation
    on which the Supreme Court judge could decide whether to exercise her discretion
    in this case and would also dismiss the appeal.

The
    Honourable Madam Justice Rowles

[1]
R.J. Sharpe,
The Law of Habeas Corpus
, Oxford:  Clarendon
    Press, 1976.

[2]

Ibid
.