Court of Appeal for Ontario

Date: July 2, 2019 Docket: C66024

Justices: Sharpe, Brown and Roberts JJ.A.

Between

Attorney General of Canada Respondent (Respondent)

and

Shawn Samuel Applicant (Appellant)

Counsel

J. Todd Sloan, for the appellant

Stewart Phillips and Ani Mamikon, for the respondent

Heard

June 18, 2019

Appeal

On appeal from the order of Justice Mary E. Vallee of the Superior Court of Justice, dated August 21, 2018, with reasons reported at 2018 ONSC 4961, and from the costs order, dated November 2, 2018, with reasons reported at 2018 ONSC 6596.

Sharpe J.A.:

FACTS

[1] The appellant was serving a lengthy sentence on five counts of robbery, unauthorized possession of a firearm, and possession of a weapon contrary to a prohibition order. He was released from Beaver Creek Institution on day parole in April 2016. While in the community, he completed six months of residential substance abuse treatment and, in November 2016, the Parole Board of Canada extended his day parole. The appellant was relocated to Ottawa where he resided in a halfway house and in January 2017 he secured employment.

[2] The appellant was subject to conditions that required he report to the Community Residential Facility ("CRF") where he resided. He was also required to comply with conditions not to associate with any person he knew or had reason to believe was involved in criminal activity. His CRF caseworker reported to his parole officer that he had concerns regarding who the appellant was associating with. His parole officer scheduled a disciplinary meeting. Following the meeting, the Parole Officer Supervisor issued a warrant of apprehension and suspension of the appellant's day parole "for the protection of society" and the appellant's case was referred to the Parole Board of Canada. The Parole Board conducted a hearing and revoked the appellant's day parole because he presented an "undue risk to society", in a decision dated April 20, 2017. The Appeal Division affirmed the Parole Board's revocation decision on September 11, 2017.

[3] The appellant was re-incarcerated on the original sentence as a result of the revocation of his parole. He contends that he was detained within the meaning of s. 10 of the Canadian Charter of Rights and Freedoms during the parole disciplinary meeting and denied the right to be informed of his right to counsel.

[4] While the respondent filed a fresh evidence application to prove that, on March 7, 2019, while this appeal was pending, the appellant was released from prison on statutory release, the application for fresh evidence did not find its way to the appellant's counsel. However, the appellant's counsel concedes that the appellant has been released.

ISSUES

[5] The appellant raises two issues on appeal to this court.

[6] First, he submits that the application judge erred by refusing habeas corpus as the Superior Court was better placed to deal with his Charter arguments than the Parole Board, the Appeal Division and the Federal Court on judicial review.

[7] Second, he argues that his habeas corpus application was criminal in nature and that the application judge erred by characterizing his habeas corpus application as being civil in nature and ordering costs. In the alternative, he submits that if his habeas corpus application was civil in nature, the costs awarded were excessive and amount to a denial of access to justice given his circumstances.

[8] The respondent resists the appeal on the merits, but also asks us to dismiss it as moot.

ANALYSIS

1. Mootness

[9] It is common ground that as the appellant is no longer in detention, his appeal from the refusal of habeas corpus is moot.

[10] It is also common ground that this court has jurisdiction to consider a moot appeal where the appeal raises a legal issue that, in the interests of justice, the court can and should resolve. Cases falling into this category typically raise points that are evasive of review in that they "are sufficiently important, and they come before appellate courts as 'live' issues so rarely, that the law needs to be clarified in the instant case": Mission Institution v. Khela, 2014 SCC 24, [2014] S.C.R. 502, at para. 14.

[11] We agree with the respondent that this is not such a case. The appellant concedes that the Superior Court should ordinarily decline to entertain habeas corpus in the face of a complete, comprehensive and expert procedure for review and that the Parole Board hearing and appeal process constitutes such a process: May v. Ferndale Institution, 2005 SCC 82, [2005] 3 S.C.R. 809, at para. 44; R. v. Graham, 2011 ONCA 138, 275 O.A.C. 200, at para. 16. The appellant's submission that the application judge erred by refusing habeas corpus rests on the contention that, in the particular circumstances of this case and the nature of the Charter issues it raises, the Superior Court was better placed to review the Parole Board's decision on habeas corpus than the Federal Court by way of judicial review.

[12] In our view, the appellant's case is fact-specific and raises no legal point that is evasive of review and that should be clarified despite mootness. As he has now been released, it would serve no purpose for us to entertain the appeal.

[13] Accordingly the appeal is dismissed as moot.

2. Costs

[14] The authority to award costs in habeas corpus proceedings depends on whether the matter is characterized as civil or criminal in nature. In Re Storgoff, [1945] S.C.R. 526 states that it is "the nature and character of the proceeding in which habeas corpus is sought" which determines whether it is a criminal matter.

[15] Re Ange, [1970] 3 O.R. 153 (C.A.) establishes the principle that there is no jurisdiction to award costs for habeas corpus in criminal matters. The issue in that case was the expiry date of concurrent and overlapping periods of imprisonment, requiring interpretation of the Criminal Code and the Parole Act. This court found that the determination of the expiry date was a criminal matter and the court did not have jurisdiction to award costs.

[16] On the other hand, it is well-established that habeas corpus proceedings arising from prison discipline and transfer decisions are characterized as civil in nature and that costs may therefore be awarded: Oliver v. Attorney General (Canada), 2010 ONSC 6431. A habeas corpus application arising from prison disciplinary proceedings is considered a civil matter, "because it deals with an inmate's obligation to conduct himself in accordance with prison rules rather than calling him to account to society for a crime violating the public interest" and because it relates "to the administration of the lawful sentence by public authorities, rather than the legality of the original conviction or indictment": R. v. Campbell, 2010 ONSC 6619, at para. 1.

[17] Similarly, in Karafa v. The Attorney General of Canada, 2016 ONSC 2604, the court awarded costs in a habeas corpus application relating to an involuntary transfer to medium security. Habeas corpus matters where inmates seek release from segregation have been found to be civil matters: Vukelich v. Mission Institution, 2005 BCCA 75, 38 B.C.L.R. (4th) 132, at paras. 33-38. Transfer decisions between institutions and decisions about re-classifications are also considered to be civil in nature: Ross v. Riverbend Institution (Warden), 2008 SKCA 19, 310 Sask. R. 9; Hertrich v. Her Majesty the Queen, 2010 ONSC 6334, at para. 3; Oliver.

[18] The appellant submits that as the impugned decision resulted in re-incarceration on his criminal sentence and was motivated by a penal intent, it ought to be regarded as criminal in nature.

[19] The respondent argues that parole revocation is an administrative decision governed by a comprehensive administrative scheme in the Corrections and Conditional Release Act, S.C. 1992, c. 20 ("CCRA") and therefore is more akin to disciplinary proceedings than to a criminal proceeding. The respondent argues that habeas corpus should only be regarded as criminal in nature if it arises from proceedings directly related to the criminal trial process, including a challenge to the warrant of committal, and that anything related to the execution or administration of the sentence is properly regarded as civil in nature.

[20] Counsel were unable to point to any case law on the question of whether a habeas corpus application challenging the revocation of parole is characterized as criminal or civil in nature. The respondent relies on Lee v. Canada (Attorney General), 2018 ABQB 40, 403 C.R.R. (2d) 194, where the court struck out a confused application alleging that the applicant's detention on a life sentence for murder had become unlawful because the Parole Board refused to consider his application for parole and because he had not committed any violent act while in prison. The court described his application as badly framed, "gibberish" and an abuse of process and ordered him to pay $2,000 costs.

[21] Lee is not binding on this court and in any event I do not regard it as determinative of the issue before us. It was not even clear that the application the court struck out could be considered a habeas corpus application. If it was, in fact, a habeas corpus application, the case did not involve the revocation of parole and it presented many other features crying out for a costs award that are not present here.

[22] The respondent's submission that this is a civil matter has to be assessed in the light of the language and purpose of the statutory scheme that governed the decision the appellant seeks to challenge. Section 135(1) of the CCRA provides for the suspension of parole and re-incarceration of the offender "when an offender breaches a condition of parole or statutory release or when…it is necessary and reasonable to suspend the parole or statutory release in order to prevent a breach of any condition thereof or to protect society". Section 135(7) provides "where…the continued parole or statutory release of an offender would constitute an undue risk to society by reason of the offender reoffending", parole may be terminated or revoked. Where the offender is returned to custody by virtue of these provisions, the offender "continues to serve the offender's sentence": s. 135(10).

[23] In my view, s. 135 indicates that parole revocation has a criminal law purpose and rationale, namely, the protection of society. The reason given for the warrant of apprehension and suspension of the appellant's day parole was "the protection of society" and the Parole Board revoked the appellant's day parole release because he presented an "undue risk to society". These stated reasons track the criminal rationale of s. 135. The appellant was not, as in the case of the prison discipline and transfer cases, subjected to an administrative sanction in order to maintain control within a prison, but rather ordered to "continue to serve" the sentence that the court had imposed in order to protect society.

[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.

[25] In the case of parole revocation, the purpose of the challenged decision is the protection of society, not maintaining order within the institution, and the justification for the detention that is at issue on the habeas corpus application is the re-institution of the criminal sentence imposed by the court. In my view, such an application is properly characterized as being criminal rather than civil in nature.

[26] I conclude, accordingly, that the application judge erred by characterizing this as a civil case and awarding costs.

DISPOSITION

[27] I would dismiss the appeal against the refusal of habeas corpus as moot, dismiss the fresh evidence application as unnecessary but set aside the costs order.

Released: July 2, 2019

"RJS" Robert J. Sharpe J.A.

"I agree. David Brown J.A."

"I agree. L.B. Roberts J.A."