B.C. case offers look at legalities around inmate transfer

Law360 Canada (September 30, 2025, 8:11 AM EDT) --

John L. Hill

Canada’s prison system has been seen as totalitarian. An inmate is often perceived as losing all their rights as a citizen upon being imprisoned.

Yet our Corrections and Conditional Release Act explicitly states that an inmate retains all the rights of citizenship except those necessarily curtailed because of imprisonment. Enforcement of those rights becomes a significant problem.

When a prisoner is classified as a medium- or minimum-security inmate, the liberty interest is greater than if the classification is for maximum-security. However, misbehaviour can lead to a reclassification. How does an inmate challenge any reclassification that limits the liberty interest lost in a transfer to higher security?

One method is to ask the Federal Court to judicially review an administrative decision to determine whether the reclassification was in accordance with the law or as defined by the Commissioner’s Directive, which, although not a law, is considered as such in evaluating fairness.

The challenge of bringing judicial review in the Federal Court stems from the fact that a significant amount of case law dictates that an inmate must first exhaust internal remedies before seeking judicial review. Essentially, inmates need to go through the internal grievance process to obtain relief. However, the grievance process is often slow and bureaucratic. Complaints can take months or even years to resolve, by which time the inmate may have already endured the harsher conditions they are contesting.

Many inmates try to avoid delays by seeking a habeas corpus remedy through a province’s superior court system. That is the route taken by Jeffrey Leinen, a British Columbia inmate serving a life sentence for second-degree murder and aggravated assault. On Nov. 30, 2023, he was emergency transferred from Mission Institution (medium security) to Kent Institution (maximum security) after contraband and debt sheets indicating drug dealing were discovered in his cell. A recent review of his case was addressed by the British Columbia Court of Appeal (Leinen v. Mission Institution (Warden), 2025 BCCA 257).

The transfer was approved by the warden’s decisions of Jan. 11, 2024. That decision elevated Leinen’s security classification to maximum and authorized his involuntary transfer to Kent.

Leinen filed a habeas corpus petition on March 13, 2024. He challenged the decisions as unreasonable and procedurally unfair. On May 23, 2024, the chambers judge agreed, finding procedural unfairness because Leinen was not shown the evidence (debt sheets) relied on by the warden. The judge set aside the warden’s decisions but suspended the order for 21 days to allow a new hearing. A new hearing was held on June 6, 2024. A new warden’s board hearing upheld his maximum-security placement at Kent.

There were subsequent developments. On July 2, 2024, Leinen was reclassified to medium security. Twenty days later, he was voluntarily transferred to Bowden Institution (medium security) in Alberta.

Leinen nonetheless asked the British Columbia Court of Appeal to clarify the scope of a chambers judge’s authority in habeas corpus cases, especially regarding setting aside and suspending a warden’s decision. Since the relief he sought had been granted, the case raised a mootness issue. A second question was whether the judge erred in law by suspending the effect of his order that Leinen be returned to the Mission Institution for 21 days.

Leinen’s argument suggests that, although he ultimately received the relief he sought, his case could be used in future to justify chambers judges suspending decisions pending further review. The nature of habeas corpus applications involving the transfer and segregation of inmates means that the factual circumstances can change quickly, often before an appellate court can review the application judge’s decision. This frequently renders such cases moot before reaching the appellate level, making them “capable of repetition, yet evasive of review” (Borowski v. Canada (Attorney General), [1989] 1 S.C.R. 342, at p. 364). Both May v. Ferndale Institution, 2005 SCC 82 and Cardinal v. Director of Kent Institution, [1985] 2 S.C.R. 643 emphasize that the issues involved are significant enough to be considered “live” issues requiring clarification (Mission Institution v. Khela, 2014 SCC 24). Although this case was technically moot, the decision to stay the warden’s order required examination.

The parties agreed that the judge erred by “setting aside” the warden’s decisions. This remedy falls under the exclusive jurisdiction of the Federal Court. As discussed in Khela, the Federal Court can quash orders made by federal tribunals, but superior courts cannot. While the Federal Court can grant a wide range of relief in a judicial review, “all a provincial superior court can do is determine that the detention is unlawful and then rule on a motion for discharge.”

An appropriate exercise of inherent jurisdiction enables the court to “fulfil the judicial function of administering justice according to law in a regular, orderly and effective manner” (R. v. Caron, 2011 SCC 5). However, as noted in Stelco Inc. Re, 75 O.R. (3d) 5 (Ont. C.A.), inherent jurisdiction is not unlimited, and if a legislative body has not left a functional gap, then intrinsic jurisdiction should not be invoked.

The suspension of an order for release should not be granted for administrative convenience. This is consistent with the “importance” and “grand purpose” of the “great writ of liberty” of habeas corpus, as described in May at paras. 19-22 and R. v. Gamble, [1988] 2 S.C.R. 595.

The Appeal Court held that in the circumstances of this case, the judge’s decision to suspend the effect of his order for 21 days to allow the warden to undertake a fresh warden’s board review process was not an appropriate exercise of the court’s remedial discretion. Leinen’s appeal was allowed.

John L. Hill practised and taught prison law until his retirement. He holds a JD from Queen’s and an LLM in constitutional law from Osgoode Hall. His most recent book, Acts of Darkness (Durvile & UpRoute Books), was released July 1. Hill is also the author of Pine Box Parole: Terry Fitzsimmons and the Quest to End Solitary Confinement (Durvile & UpRoute Books) and The Rest of the (True Crime) Story (AOS Publishing). Contact him at johnlornehill@hotmail.com.

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