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EXTRAORDINARY REMEDIES - Habeas corpus

Tuesday, May 08, 2018 @ 8:35 AM  


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Determination of whether the plaintiffs’ successful habeas corpus application meant that the doctrine of issue estoppel prevented the Crown defence. The plaintiffs, who were placed in involuntary segregation because of information about a plot to harm correctional officers, sued for damages after a successful habeas corpus application.

HELD: The doctrine of issue estoppel did not apply. There was a strong parallel between a writ of habeas corpus and the tort of false imprisonment, but there was a subtle but important difference. One gave rise to damages for confinement and the other asked whether the decision to confine was appropriate. Whether or not the writ overlapped with some elements of the tort was questionable. There was mixed authority about what type of confinement would do. The writ required that the person be produced from any confinement. For the tort, it was not clear whether the confinement had to be absolute or only relative. It was not clear that “justification” for the purposes of the tort was not wider than the element of reasonableness or legality crucial to a determination of whether to release the prisoner. Using the doctrine of issue estoppel to convert habeas corpus into a remedy and damages was very much like turning a public law remedy into a private law one.

Hamm v. Canada (Attorney General), [2018] A.J. No. 335, Alberta Court of Queen's Bench, Master W.S. Schlosser, March 19, 2018. Digest No. TLD-May72018003