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ONCA confirms no costs for parole revocation habeas corpus applications

In Canada (Attorney General) v Samuel, 2019 ONCA 555, the Ontario Court of Appeal held that costs cannot be awarded in habeas corpus applications brought to challenge parole revocation decisions.

These applications are criminal rather than civil in nature. Section 135 of the Corrections and Conditional Release Act indicates that parole revocation is about the protection of society, which is a criminal law purpose. As such, costs cannot be awarded.

However, the Court appeared to recognize that habeas corpus applications brought in other correctional law contexts may be civil in nature, at para 24:

“In the prison discipline and prison transfer cases, the criminal law sentence serves as merely part of the background. It is the reason why the applicant is in the institution and subject to prison discipline. The sanction an applicant would challenge is an administrative order that is quite distinct from the sentence imposed by the criminal court.”

Cost awards may deter inmates of limited means from bringing habeas corpus applications to pursue their rights. While this decision may remove the risk of an inmate being penalized with costs for bringing a habeas corpus application, it only does so for parole revocation cases. Inmates seeking to challenge deprivations of their liberty in other contexts (e.g. transfer and discipline cases) may still face the risk of receiving cost awards if their application is unsuccessful.

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