What if my grievance is not upheld? What can I do if I am not satisfied with the decision?
If you are not satisfied with the decision of your original grievance, you can file a higher-level grievance. If you are not satisfied with the decision of a 3rd level grievance, then you have a few other options, as follows.
1. Apply for certiorari (right to review or be heard) in the Federal Court
You can apply to the Federal Court to review decisions made by federal agencies which have a judicial or quasi-judicial function.336 (See the Introduction chapter for more information.)
2. Apply for habeas corpus
Habeas corpus is a form of judicial review that is used mainly by prisoners. It is a Latin term that means roughly ‘to have a body.’ An application for habeas corpus can be brought on behalf of any detained person to show cause for detention. If it can be shown that you have been an unlawfully detained you may be released.
After many cases with unfavourable results, in 2005 the Supreme Court of Canada finally ruled that prisoners can choose to challenge the legality of their detention in a provincial superior court by way of an application for habeas corpus. Most importantly, the Court said that a provincial superior court should hear the application when requested to do so unless it falls into two very narrow categories.337
This can be very important to you for many reasons. For example, you may wish to make an application for habeas corpus if you are unlawfully placed in segregation. As well, you may also wish to consider an application if you are unfairly being transferred to a penitentiary with a higher security rating. The Ontario Court of Appeal has recently ruled that prisoners currently held at Isabel McNeil House (IMH), the only minimum security penitentiary for women in Canada, have a right to a habeas corpus application and should remain at IMH until the application is heard regarding their transfer to a higher security institution.338 An earlier decision of the Ontario Court of Appeal also contended that women had a right to habeas corpus before they were transferred to the Prison for Women in Kingston.339 These decisions can be used as precedents in future applications.
If you wish to make an application for habeas corpus, it is important that you immediately contact your lawyer if you have one. If you do not have counsel, you should contact Legal Aid about the possibility of attaining their services. You may also contact the CAEFS’ information line at 1.800.637.4606 for advice. Contact the Correctional Investigator.
Return to note 336. Martineau v. Matsqui Institution Disciplinary Board (1980) 1 S.C.R. 602.
Return to note 337. May v. Ferndale Institution, [2005] 3 S.C.R. 809.
Return to note 338. Dodd v. Isabel McNeill House, 2007 ONCA 250.
Return to note 339. Beaudry v. Canada (Commissioner of Corrections) ONCA 1997.