Habeas corpus after Khela : dynamics attenuating prisoners' rights


University of British Columbia

Date Issued


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Master of Laws - LLM




This study examines habeas corpus prison decisions from Khela (March 27, 2014) to August 4, 2020. The types of administrative decisions reviewed were security reclassification and transfer and solitary confinement. Habeas corpus review of decision-making in the prison context should be more robust because of the special vulnerability of the affected individuals and the deeply problematic discretionary nature of these decisions and procedures. There are new possibilities set out in Vavilov to have robust reasonableness review and the accompanying culture of justification inform and reshape this area of administrative decision-making so that it better accords with the demands of the rule of law, protects and vindicates prisoners’ rights, and redresses wrongs. The same behaviour by prisoners can lead to either a formal disciplinary charge or security reclassification and transfer. The formal disciplinary system is advantageous to prisoners as it has more procedural safeguards and limited negative consequences. The reclassification and transfer process allows for problematic exercises of discretion by decision makers. Security reclassification and transfer and the former administration segregation regime complemented and propped each other up in creating a parallel system of punishment to the formal system. At an institutional level, prison administrators and decision makers did not demonstrate legal expertise during the cases examined in my study. Many judges on habeas corpus review misinterpreted the text of Khela to stand for the principle that wardens should be granted “significant” deference. Some reviewing judges would say they did not want to “micromanage” the prison because they appeared to be uncomfortable exercising their jurisdiction. A careful analysis of language used by government lawyers, prison administrators, and judges was conducted. The question was also raised as to whether statutory procedural rights should be considered a ceiling or a floor, and the impact of either option. Reviewing judges have attenuated prisoners’ rights by using qualifying language. There are also recent doctrinal developments where respondents are trying to introduce a test where a prisoner has to show how they were prejudiced by the breach. The general body of case law in this area shows an underenforcement of prisoners’ rights.

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Attribution-NonCommercial-NoDerivatives 4.0 International




Law, Peter A. Allard School of