Court of Appeal

Judges:

The Honourable Justice Van den Eynden

The Honourable Justice J.E. (Ted) Scanlan (dissenting)

Appeal Heard:

June 1, 2016, in Halifax, Nova Scotia

Subject:

Habeas corpus/Deprivation of residual liberty/Initial security classification

Summary:

The appellant, Mr. Gogan, filed a habeas corpus application.  The hearing was bifurcated.  The focus of the hearing was on Mr. Gogan’s obligation to establish a deprivation of his liberty.  The application judge found that in these circumstances, where Mr. Gogan underwent an initial security classification assessment, there was no deprivation of residual liberty.  He found that only the Federal Court had the power to quash decisions of this nature and craft a remedy.  The application judge dismissed the application without assessing the merits of Mr. Gogan’s case. 

Issues:

(1)        Was the application judge correct in finding that in the context of an initial security classification it was not open to the appellant to argue there was a deprivation of his residual liberty?

(2)        Was the application judge correct in concluding that only the Federal Court had the authority to quash an initial security classification and grant a remedy?

Result:

The majority concluded the appellant satisfied his burden to establish a deprivation of liberty and allowed the appeal.  There was a substantial change in the appellant’s confinement conditions which resulted in a further deprivation of his residual liberty. Further, the appellant raised a legitimate concern upon which to challenge his security classification. As the hearing was bifurcated, the merits of whether the classification was lawful was not adjudicated by the application judge; nor was the record complete. Accordingly, the matter is remitted back to application judge for determination on the merits.

Scanlan J.A. (dissenting) would have dismissed this appeal because habeas corpus is not a remedy available to inmates at the classification stage as no residual liberties are affected.  In the context of this case, Mr. Gogan is attempting to use habeas corpus to do what is more properly the subject of a judicial review in the Federal Court.