2014 SKCA 51 Date:, 2014 SKCA 51

THE COURT OF APPEAL FOR SASKATCHEWAN Citation: 2014 SKCA 51 Date: 2014-04-25 Between: Docket: CACR2372 Jean Richer and Leslie Sinobert Appellants - and - The Attorney General of Canada Respondent Coram: Richards C.J.S., Cameron and Herauf JJ.A. Counsel: Appellants in person via video conference Christopher Bernier for the respondent Appeal: From: 2013 SKQB 397

Heard: April 25, 2014 Disposition: Dismissed Reasons: April 28, 2014 By: The Honourable Mr. Justice Cameron In Concurrence: The Honourable Chief Justice Richards The Honourable Mr Justice Herauf CAMERON J.A. [ 1 ] This is an appeal from an order made by Madam Justice Dovell in the Court of Queen’s Bench dismissing an application by the appellants for a writ of habeas corpus with certiorari in aid. [ 2 ] The appellants, Jean Richer and Leslie Sinobert, are inmates at the Saskatchewan Penitentiary who are currently serving their terms of imprisonment at Riverbend Institution.

This is a minimum security facility associated with the Penitentiary. Each of them was transferred from the medium security facility in the Penitentiary to the minimum security facilities at Riverbend about a year ago, at which time they were assigned separate housing units. They had earlier formed a close, same-sex relationship and were desirous of being housed together in Mr Sinobert’s housing unit. Mr Richer made a formal request to that effect but Correctional Service of Canada denied the request.

It denied it on the basis Mr Sinobert, who suffers from mental illness, had been assigned to a housing unit specifically designed for inmates with mental health needs. [ 3 ] While the request was under consideration, Mr Richer let it be known that at a minimum the two of them would like to be able to visit one another in the privacy of Mr Sinobert’s quarters, though each knew this was contrary to prison policy and subject to institutional disciplinary action.

Hence in denying the request, the Correctional Service informed Mr Richer that he and Mr Sinobert could continue to visit and socialize with one another—outside the minimum security houses—in the mornings, after work, and on the weekends.

Socializing among inmates is permitted as a matter of policy in the Cultural Centre, the Gymnasium, the Multi-Purpose Building, the recreation areas, and so on, but is not permitted in individual housing units. [ 4 ] Shorty after being informed of the denial of their request to be housed together, the two applied to the Court of Queen’s Bench for a writ of habeas corpus with certiorari in aid. They founded their application on

section 10 of The Canadian Charter of Rights and Freedoms , which guarantees the right of everyone in detention to have the validity of their detention determined by way of habeas corpus . In support of their application they alleged that the decision by the Correctional Service encroached upon their Charter freedoms of expression and association, guaranteed by

section 2 , and was contrary to their Charter right, guaranteed by

section 15 , not to be discriminated against on the prohibited ground of sexual orientation. In addition, they alleged that the decision served to impose upon them a form of cruel and unusual punishment, contrary to

section 12 of the Charter , inasmuch as the effect of the decision was to preclude them from any private association. [ 5 ] Justice Dovell dismissed their application on the primary ground it lay beyond the remedial jurisdiction of the Court of Queen’s Bench because it amounted in substance to an application for judicial review, in the narrow sense, of the decision made by the Correctional Service, not one for relief in the nature of habeas corpus .

On her view of it, the application was merely packaged in the guise of habeas corpus , or framed on the pretence of seeking relief in the nature of habeas corpus with certiorari in aid, when in reality it sought remedial relief in the nature of certiorari on its own, and of prohibition and mandamus. That being so, she was of the opinion the application fell within the exclusive remedial jurisdiction of the Federal Court.

Even if it were otherwise, she observed, she would have dismissed the application on the bases the appellants had failed to establish any “deprivation of liberty” within the contemplation of the law of habeas corpus . [ 6 ] All else aside, we agree with Justice Dovell that the appellants failed to establish the requisite deprivation of liberty, and for that reason we have decided to dismiss the appeal. [ 7 ] It was incumbent upon the appellants, were they to succeed on their application for habeas corpus in the Court of Queen’s Bench, to first establish that they had been deprived of a significant aspect of their “residual liberty” as inmates.

In other words it fell to them to establish that the denial of their request to be housed together served to reduce their liberty as inmates by imposing upon them a more onerous form of imprisonment or confinement that would otherwise have been the case at Riverbend.

[8] As explained by the Supreme Court of Canada in the recent case of Mission Institution v. Khela, 2014 SCC 24: 30 To be successful, an application for habeas corpus must satisfy the following criteria. First, the applicant must establish that he orshe has been deprived of liberty. Once a deprivation of liberty is proven, the applicant must raise a legitimate ground upon which toquestion its legality. If the applicant has raised such a ground, the onus shifts to the respondent authorities to show that the deprivation ofliberty was lawful (Farbey, Sharpe and Atrill, at pp. 84-85; May, at paras. 71 and 74).

The Court went on to note, at para. 34, that decisions which might affect an offender’s residual liberty include, but are not limited to,administrative segregation, confinement in a special handling unit, and transfer to a higher security institution. Nothing of this nature ispresent in the case before us. [9] Indeed, we are of the opinion there is nothing here to indicate that the denial of the appellants’ request to be housed together in MrSinobert’s housing unit constituted a deprivation of liberty within the contemplation of the law relating to habeas corpus.

We say thishaving regard in particular for what the Supreme Court had to say of the matter in The Queen v. Miller (SCC), [1985] 2S.C.R. 613 at 641, namely that habeas corpus lies (in the context of the treatment of inmates), “to challenge the validity of a distinctform of confinement or detention in which the actual physical constraint or deprivation of liberty, as distinct from the mere loss of certainprivileges, is more restrictive or severe than the normal one in an institution.” [10] We can see nothing of this nature in the present case, and for this reason alone the appeal must fail.

There will be an orderaccordingly.