Court and Parties

COURT OF APPEAL FOR ONTARIO DATE: 20220610 DOCKET: C68979

Fairburn A.C.J.O., Feldman and Harvison Young JJ.A.

BETWEEN

Gary Little Applicant (Appellant)

and

Attorney General of Canada and the Warden of Bath Institution Respondents (Respondents)

Counsel: Ian Kasper, for the appellant Kirk Shannon and Carolyn Phan, for the respondents

Heard: November 30, 2021 by video conference

On appeal from the order of Justice Helen K. MacLeod-Beliveau of the Superior Court of Justice, dated February 7, 2020, with reasons reported at 2020 ONSC 865, 452 C.R.R. (2d) 349.

Feldman J.A.:

Introduction

[1] The appellant was designated a dangerous offender and sentenced to an indeterminate sentence on July 27, 2007 by this court. [1] In accordance with s. 761(1) of the Criminal Code, R.S.C. 1985, c. C-46, the appellant has had his case reviewed by the Parole Board a number of times. Before this application, the most recent Parole Board review took place in 2019. In the decision that resulted, the appellant was denied parole, including day parole, as the Parole Board found that he continued to pose a high risk to reoffend.

[2] In addition to appealing the decision of the Parole Board, the appellant brought this application as a self-represented litigant for habeas corpus with certiorari in aid under s. 10(c) of the Canadian Charter of Rights and Freedoms and for a remedy under s. 24(1). The application judge declined jurisdiction and dismissed the application.

[3] On this appeal, now represented by counsel, the appellant submits that the application judge misunderstood the basis for and nature of the application. He says that his complaint is not against the Parole Board, but against the Correctional Service of Canada (“CSC”) for not providing him with the necessary programming to allow him to progress and address the dynamic issues that continue to make him a danger to the public. He submits, as a result, that the application judge should not have declined habeas corpus jurisdiction, and that this court should set aside the decision of the application judge and return the matter to the Superior Court for a new hearing before a different judge.

Appellant’s Background

[4] The appellant was convicted in August 2002, following a trial, of the predicate offences of assault, assault with a weapon (a tire iron), possession of a weapon (a baseball bat) for a purpose dangerous to the public peace, forcible entry, possession of a weapon (a tire iron) for a purpose dangerous to the public peace, uttering threats, break and enter, and two counts of mischief in relation to incidents involving his former girlfriend and her boyfriend, that occurred on October 7, 2001. He committed the offences while he was on statutory release on a charge of aggravated assault against his former girlfriend. As the application judge noted, the trial judge stated that the facts of the case were the worst partner abuse that she had seen in 13 years where death did not result. At sentencing, the Crown asked that the appellant be designated a dangerous offender, but the trial judge designated him a long-term offender and imposed a ten-year sentence followed by a ten-year term of supervision.

[5] The Crown appealed the sentence to this court. The court allowed the appeal, designated the appellant a dangerous offender, and imposed an indeterminate sentence. The court found that the evidence showed that the type of intense supervision that would be required to maintain the appellant and control his risk in the community under long-term supervision was essentially equivalent to custody and was not available to be imposed. Also, the appellant had been found to be a psychopath who suffered from, among other conditions, anti-social personality disorder, and there was no evidence he could be treated within a definite time period.

[6] The appellant has been incarcerated since that time. He had a set-back in his institutional progress at Bath Institution, a medium-security facility, when he secretly became involved in an inappropriate relationship with a staff Chaplain, and in May 2017 had to be transferred on an emergency involuntary basis to Collins Bay Institution, another medium-security institution. The appellant remained at Collins Bay until June 2019, when he was voluntarily transferred back to Bath. The Chaplain lost her job but was allowed to continue visiting the appellant, and the two remained in a relationship.

[7] In the most recent review decision in the record from April 26, 2019, the Parole Board denied the appellant parole. In its reasons, the Board first acknowledged its obligation in the context of the extraordinary circumstances of an indeterminate sentence to ensure that the sentence was tailored to the circumstances of the case and did not breach s. 12 of the Charter: Code, s. 761(1).

[8] The Parole Board reviewed the details of the predicate offences involving attacks on the appellant’s former partner and her boyfriend, as well as the appellant’s criminal history of 33 convictions since 1985, 19 withdrawn charges, and 3 dismissed charges for similar offences. At the parole hearing, the appellant agreed that his criminal history showed a pattern of violence.

[9] At that time, the appellant’s most recent psychological assessment from June 2018 indicated a moderate-high range of risk for general recidivism and a high range of risk for violent recidivism. The Board noted that the appellant had not completed any institutional programs since the Violence Prevention Program that he had successfully completed in 2012. In 2008, he had also completed the National Family Violence Maintenance Program. Later in the reasons, the Board commended the appellant for participating in programming and making gains.

[10] The Board also noted that based on the appellant’s low reintegration potential, his assessed risk levels, and the lack of support from his parole officer and others, the CSC was of the opinion that his risk was not manageable in the community for day parole or parole.

[11] The Board then addressed its decision and the basis for it:

The Board must give close attention to whether your specific needs have been fully identified and addressed; in particular, whether your case management and correctional planning have been customized to fit your present circumstances. Because you have been incarcerated for a lengthy period of time, the Board has a duty to consider whether treatment interventions and/or programs have been offered to you, whether your needs have changed over time, and whether more appropriate treatment/programs are available that may address those needs.

[12] The Board’s conclusion was that parole would be denied. It found that the appellant’s sentence continued to be tailored to his specific needs, and commented that the appellant had said he understood how cascading to a minimum-security institution would be useful to test his gains in a less secure environment. The appellant needed to mitigate his risk by demonstrating that he had internalized those gains and, by collaborating with his case management team, demonstrating that he was willing to address their concerns. The Board found that the appellant’s case management team was willing to work with him to achieve this and concluded that his continued incarceration did not violate his s. 12 Charter rights.

Findings of the Application Judge

[13] The application judge noted in the opening to her reasons that because this was the appellant’s fourth application for a habeas corpus remedy of unconditional release, she had ordered transcripts of the previous hearing before Hurley J. from May 2018 and of this hearing for “comparative purposes”.

[14] After reviewing the appellant’s history, the application judge found that the appellant had demonstrated a pattern of simultaneously appealing the Parole Board’s decisions denying parole and bringing a habeas corpus application to the Superior Court for unconditional release. She noted once more that the current application was the fourth one since 2013, and described each of the previous applications, noting that the last two had been found to be a collateral attack by the appellant on his sentence.

[15] The application judge rejected the appellant’s submission that the application before her was not a collateral attack on the indeterminate sentence or on the Board’s decision to deny parole, but a legitimate attack on the actions of the CSC by way of its negative assessments of the appellant and negative recommendations to the Board.

[16] The application judge perceived the appellant’s position as essentially that he did not like the CSC’s assessments and recommendations that were presented to the Board. She found that as those assessments and recommendations are not decisions, they are not reviewable by the court on a habeas corpus application. While acknowledging that the attack on the CSC’s input to the Board was a new approach by the appellant, she found that he was effectively attacking the decision of the Board, and that the true nature of this application was the same as the three previous ones. She concluded that there was no impropriety in the actions of CSC staff or in the Board’s review of the appellant’s case.

[17] The appellant’s other argument was that to be eligible for parole, he must be classified as a minimum-security inmate, a classification for which he is not eligible as a dangerous offender. The application judge also rejected this argument. She found that there is nothing in the Corrections and Conditional Release Act, S.C. 1992, c. 20 (“CCRA”), that makes a person who has been designated a dangerous offender ineligible for minimum security. To the contrary, the appellant can be classified as minimum security if he meets the requirements, which include consideration of both static and dynamic factors. Static factors include age, the nature of the index offence, and the inmate’s criminal record, while dynamic factors include progress in programs and risk assessments for violent reoffending.

[18] The application judge also noted, in response to the appellant’s submission on the failure to transfer him to minimum security, that the appellant prefers to remain in Bath Institution, a medium-security facility, and that in any event, parole can be granted to medium-security inmates. Previous decisions not to allow the appellant to transfer to minimum security were based on his high risk to violently reoffend “despite completing numerous programs designed to re-habilitate Mr. Little and potentially reduce his security classification to minimum.”

[19] Finally, relying on May v. Ferndale Institution, 2005 SCC 82, [2005] 3 S.C.R. 809, and R. v. Graham, 2011 ONCA 138, 268 C.C.C. (3d) 517, the application judge found that the Board’s statutory regime is the type of complete, comprehensive, and expert regime that provides an exception to when the Superior Court should take jurisdiction in a habeas corpus matter. In addition, had she taken jurisdiction, the application judge would have found that the appellant had not suffered a deprivation of his residual liberty and that his continued detention was lawful. The application judge invited a request for costs by the respondents.

[20] The application judge then added again, specifically by way of obiter, that this was the appellant’s fourth application for habeas corpus on similar, if not identical, grounds to the previous three. She warned that if the appellant brought further applications on similar grounds, summary dismissal as an abuse of process may be available, together with an award of costs.

Issues on the Appeal

[21] The appellant asks this court to set aside the decision of the application judge to decline jurisdiction and to send the matter back for a new hearing. He does not ask this court to order his release or to grant any other relief. The main basis of the appeal is that the application judge misapprehended the nature of the appellant’s complaint, which was not against the Board but against the CSC, for failure to provide him with the programming that would allow him to demonstrate that he is no longer a danger to the public. The appellant labels this a “rehabilitative impasse” created by the CSC, and submits that although he could use the CCRA grievance procedure to try to obtain programming, he may also seek habeas corpus. He submits, relying on May, that the CCRA grievance procedure does not constitute the type of complete, comprehensive, and expert scheme that can allow the court to decline habeas corpus jurisdiction.

[22] The appellant further argues that the application judge erred in finding that his application amounted to a collateral attack on the conviction and sentence decisions [2] and that in making that finding, the application judge further erred by ordering the transcript of a previous hearing without giving the parties the opportunity to make submissions on its significance.

[23] The issues on appeal are therefore:

1. Did the application judge misapprehend the nature of the appellant’s position on the application and thereby err in declining habeas corpus jurisdiction by failing to address the “rehabilitative impasse” submission?
2. Did the application judge err in declining habeas corpus jurisdiction on the basis that the parole system was a complete, comprehensive, and expert procedure to consider the CSC’s refusal to recommend the appellant for parole while he was in medium security?
3. Did the application judge err in declining habeas corpus jurisdiction on the basis that the application was a collateral attack on the sentencing decision, including by ordering and using a transcript of a previous separate habeas corpus hearing without notice to the parties?

Analysis

Issue 1: Did the application judge misapprehend the basis for the application and fail to consider her habeas corpus jurisdiction to address the “rehabilitative impasse” issue?

[24] In May, the Supreme Court of Canada explained and clarified the habeas corpus jurisdiction of a superior court in the context of the rights of prisoners. In that case, as a result of a direction from the CSC, inmates serving life sentences were classified as minimum or medium security according to a computer program and transfers from minimum to medium occurred without disclosure of the scoring matrix used by the program. Some affected inmates applied for habeas corpus with certiorari in aid for an order directing CSC officials to transfer them back to minimum security.

[25] The Supreme Court held: 1) the inmates could choose whether to pursue a remedy of judicial review in Federal Court or seek habeas corpus in a provincial superior court, i.e., there is concurrent jurisdiction; 2) as a matter of principle, a provincial superior court should exercise its habeas corpus jurisdiction when it is requested to do so, and should not decline jurisdiction merely because an alternative, possibly more convenient remedy may be available; 3) provincial superior courts should only decline habeas corpus jurisdiction in two circumstances: a) where a statute such as the Criminal Code gives a court of appeal the jurisdiction to correct the errors of a lower court and order release; or b) where the legislature has put in place a complete, comprehensive, and expert procedure for review of administrative matters, such as the one Parliament created for immigration matters; and 4) the grievance procedure provided for in the CCRA does not constitute the type of complete, comprehensive, and expert procedure for reviewing decisions regarding inmates’ confinement that allows a court to decline habeas corpus jurisdiction: May, at paras. 44, 62-64.

[26] In Graham, this court found that unlike the CCRA grievance procedure, the Parole Board review system established by the CCRA is a complete, comprehensive, and expert procedure for administering the parole review process, and constitutes one of the two exceptions to the rule in May where a superior court may decline habeas corpus jurisdiction: at para. 10.

[27] In this case, the application judge declined jurisdiction based on both exceptions. I will begin with the application judge’s reliance on the second exception, which was the focus of the submissions before this court. I will then address the application judge’s reliance on the first exception, collateral attack, as the third issue. While the application judge relied on both exceptions, a court may decline jurisdiction if the case before it falls within either of the two exceptions.

[28] The appellant submits that the application judge erred by declining jurisdiction when the basis for his application was not an attack on a decision of the Board, but on the failure of the CSC to provide him with rehabilitative programming, an issue for which there is concurrent jurisdiction in the Federal Court on judicial review through the grievance procedure, and in the Superior Court on habeas corpus: May, at para 44.

[29] The respondents deny this ground and say that this is a new issue raised by the appellant for the first time on appeal, that it was not the basis for his application, and that the application judge did not misapprehend the grounds for the application. They say that this court should not entertain it at this stage, especially because the record is incomplete. The respondents submit that if the appellant wishes to raise this issue, he can do so on a fresh habeas corpus application.

[30] On review of the record, I agree that the appellant did not directly raise the “rehabilitative impasse” issue. Counsel for the appellant submits that the issue was raised in the appellant’s Notice of Application, affidavit, factum, and oral submissions, albeit with less force than on appeal. I will consider each of these in turn.

[31] The main grounds for the appellant’s habeas corpus application, as set out in the Notice of Application, are that: 1) the appellant has not been released despite having completed all recommended programs and no longer posing a risk to the public; 2) the Board relied on unchanging risk assessments by the CSC that are not accurate; and 3) the appellant has been required to transfer to minimum security before being granted parole, when this is not a legislative requirement.

[32] The appellant also raised the issue in his Notice of Application and Amended Notice of Application that the Board and CSC had failed to ensure that his sentence was “tailored” to his case, as required by s. 761.1 of the Code, and made this part of his oral argument. Counsel for the appellant submitted that this tailoring ground was an example of the appellant’s argument that the CSC had failed to provide him with the necessary programming for release, resulting in the rehabilitative impasse.

[33] Counsel also pointed to a number of references in the appellant’s affidavit and factum where he points to the CSC’s failure to provide him with treatment programs, which he sometimes refers to as “agency”. I will quote two examples from the appellant’s affidavit and one from his supplementary factum.

[34] At paras. 18 and 21 of his affidavit, the appellant states:

That both the [Board] and CSC are … placing upon me a positive obligation to transfer to minimum-security prior to any serious consideration for parole, thus leaving me in an ongoing Catch-22 with no agency to officially deal with the outstanding risk factors they deem necessary to reduce the ratings needed to qualify for minimum-security and or parole.

At the 2011 parole hearing, the Board expressed that “milestones continue to be met”, positive attitude and responses provided are “best intentions” “yet to be tested in less secure settings” there remained “outstanding risk factors” although no agency has been provided to work and solve those outstanding risk factors of which the Board and CSC continue to use against me to deny release. [Footnotes omitted.]

[35] Paragraph 25 of the supplementary factum is a clear statement of the appellant’s argument:

The Applicant completed his correctional plan in 2008 and again in 2012. Following litigation to obtain additional programs that CSC first screened him out of he remains in medium-security because his high static factors render him incapable of satisfying a minimum-security classification the [Board] expects and without further core programming available to aid in reducing his risk he is stuck in a Catch-22. With no additional efforts made to prepare him for conditional release, together with the findings of the Office of the Correctional Investigator and Chief Commissioner of the Canadian Human Rights Commission highlighting CSC’s failure to meet the fundamental purpose of the CCRA: safe and humane custody and assisting in the rehabilitation and return to the community, their general failure to adequately rehabilitate and reintegrate, bolstered by the 2018 Auditor General of Canada’s Report 6-Community Supervision-Correctional Service Canada illustrates it is inconceivable to rely on and or expect the CSC customize his indeterminate sentence so as to allow the [Board] to ensure the sentence is tailored to meet the applicant’s circumstances. [Footnotes omitted.]

[36] While some of the appellant’s references to the CSC’s alleged failure to provide treatment do not specifically refer to the requirement that he transfer to minimum security, the thrust of this argument was that the failure to provide treatment has prevented him from being transferred to a minimum-security facility and that that is what is preventing him from being granted parole. That was certainly the application judge’s understanding as well as the understanding of the respondents, which did not attempt to refute a stand-alone “rehabilitative impasse” ground on the application.

[37] This conclusion is further supported by the fact that the appellant’s oral submissions in the court below were focused entirely on the minimum security issue. In his submissions, the appellant used the same language from his Notice of Application and Amended Notice of Application regarding the Board’s and CSC’s failure to “tailor” his sentence. There, he argued that the CSC’s recommendation that he first cascade to minimum security, and the Board’s acceptance of this requirement, was affecting the Board’s ability to tailor his sentence.

[38] In my view, although one may, in hindsight, be able to construct an argument that the appellant was also asserting a stand-alone ground against the CSC that it had created a “rehabilitative impasse” that is preventing the appellant from reducing his security risk and from demonstrating that it is reduced, not linked to the transfer to minimum security issue, that ground was not sufficiently articulated to accept at this stage that it was raised and should have been addressed by the application judge.

[39] The fact that the respondents did not join issue on that ground, and that the application judge did not address it, supports that conclusion. In addition, the respondents say that they would require the opportunity to refute the appellant’s assertions regarding the lack of provision of programming with evidence in order to address the issue, and that cannot be done on this appeal.

[40] The appellant has amended his request for relief in this court, and asks the court to order a new hearing of the application before a different Superior Court judge. However, because the application judge did not err in failing to address the “rehabilitative impasse” ground, this is not a basis on which to set aside her decision.

[41] In addition, as an application for habeas corpus on this ground must be based on current circumstances, a current record would be required as a basis for any such application. As three years have passed since this application was launched, and the COVID-19 pandemic has intervened, the current record cannot form the basis for habeas corpus relief.

Issue 2: Did the application judge err by finding that the parole system was a complete, comprehensive, and expert procedure for the minimum security issue?

[42] As a result of my finding that the rehabilitative impasse issue was not before the application judge, the next issue is whether the application judge erred in concluding that the appellant’s argument regarding minimum security, which was before her, fell under the second May exception.

[43] As described above, the Supreme Court in May held that a superior court may refuse jurisdiction over a habeas corpus application where the legislature has put in place a complete, comprehensive, and expert procedure for review. This procedure must be at least as broad and no less advantageous than the review available by way of habeas corpus: May, at para. 40. The court provided the example of the review system for prerogative relief in immigration matters set out in Peiroo v. Canada (Minister of Employment and Immigration) (1989), 69 O.R. (2d) 253 (C.A.), leave to appeal refused, [1989] 2 S.C.R. x, and referred to this exception as the “Peiroo exception”: May, at paras. 39-41.

[44] In Graham, this court held that the parole review process set out in the CCRA is an example of a Peiroo exception: at paras. 10, 15-16. In my view, the application judge made no error in declining habeas corpus jurisdiction on the basis that the Board’s use of material placed before it by the CSC constituted part of the role of the Board in making its parole decision and therefore came within the Peiroo exception from May.

Issue 3: Did the application judge err by finding that the application constituted a collateral attack on the sentencing decision including by ordering and using a transcript of a previous habeas corpus hearing without notice to the parties?

[45] The application judge also found that the appellant’s application was a collateral attack on the sentencing decision of this court, and therefore fell within the first May exception, where the right of appeal is governed by the provisions of the Criminal Code. The appellant submits that there was no basis to make this finding and that the application judge erred in so doing. I would accept this submission.

[46] First, the respondents did not base their opposition to this habeas corpus application on the collateral attack exception, although in previous applications by the appellant, the court had made that finding. The respondents’ position was that the application constituted an attack on the parole system, which was recognized in Graham as coming within the second exception set out in May.

[47] The respondents acknowledged before the application judge that the appellant’s position on this application was different from his previous applications. Here, the appellant’s complaint was not framed against the Board for failing to order his release, but against the actions of the CSC in making the assessments and recommendations that they had made. He argued that he was in a Catch-22 position because he was required to go to minimum security in order to be eligible for parole, but the CSC was blocking his ability to go to a minimum-security institution and recommending to the Board that he be denied parole because of his high risk to reoffend. Therefore, it was impossible for him to go to minimum security and consequently impossible for him to be released.

[48] The issue of collateral attack was raised by the application judge. The appellant denied that he was challenging the original sentencing decision and swore to this in his affidavit on the application. The appellant’s submissions in his factum and affidavit below do not challenge the original sentencing decision.

[49] It appears that the application judge was influenced by the appellant’s pattern of bringing habeas corpus applications and by the findings of the previous judges who heard those applications. She raised with respondents’ counsel the issue of what to do in the future if the appellant were to bring more applications on the same basis.

[50] The record on the application contained the reasons from two of the three previous applications and the endorsement from the third. It also contained the transcript of one of the proceedings, but not of the most recent hearing before Hurley J. for which there was only the endorsement. The application judge indicated that she had read what was in the record, but in respect of the one for which there was no transcript, she said: it “is neither here nor there. It’s not critical.” Later, she asked counsel if all the previous applications had been about Board decisions, then said: “They’re there to be read. And the one that there’s just an endorsement will not be considered. So, for the record, I’m just looking at the actual decisions of the previous two.”

[51] It was in response to this issue that counsel for the respondents indicated that he had originally believed that the current application was the same as the previous ones, but after hearing the submissions made by the appellant, he understood that they were different.

[52] In her reasons for decision, the application judge advised that she had ordered the transcript of the third hearing. She referred to it, both in respect of the consequences if the appellant were to bring future applications on the same basis, but also in respect of her conclusion that this application was essentially the same as the previous ones, and constituted a collateral attack.

[53] In my view, the application judge erred by obtaining the transcript of the previous proceeding and using it in her analysis without giving the parties the opportunity to make submissions on its relevance, and contrary to her statement for the record that she would not look beyond the endorsement in the record. While no two cases are exactly alike, I refer to this court’s decision in R. v. J.M., 2021 ONCA 150, 154 O.R. (3d) 401, at para. 38, where Brown J.A. described the proper procedure where a judge intends to take into account a fact or state of affairs not in the record:

Where a judge, on his or her own initiative, wishes to take judicial notice of a fact or state of affairs that bears on a key issue in a proceeding, the adversarial process requires that the court ensure that the parties are given an opportunity to deal with the new information by making further submissions, oral or written, and allowing, if requested, fresh material in response: [David M. Paciocco, Palma Paciocco & Lee Stuesser, The Law of Evidence, 8th ed. (Toronto: Irwin Law, 2020)], at p. 582.

[54] The respondents submit that the application judge’s review of the transcript she obtained had no impact on the decision, that it was mentioned largely in obiter, and that in any event, the appellant had a meaningful opportunity to present his case, so that the requirements of natural justice were met. I do not agree. The application judge advised the appellant that she did not need to hear from him on the subject of the previous applications. More importantly, the application judge’s review of the transcript influenced her finding that the present application was similar to the previous applications and constituted a collateral attack on the sentencing decision.

[55] As a result, the decision to decline jurisdiction cannot rest on the finding of collateral attack as that was not the basis of the application as framed before the application judge, and because of the use of the transcript obtained without providing the parties an opportunity to make submissions. However, as I have already found that the application judge did not err in relying on the Peiroo exception, this error does not change the outcome of the appeal.

Conclusion

[56] While the application judge erred in basing her decision to deny jurisdiction on the first May exception, collateral attack, she made no error in denying jurisdiction based on the second May exception, that the parole system constitutes a complete, comprehensive, and expert scheme. The application judge also made no error by failing to address the issue of rehabilitative impasse, which, while well-articulated by counsel on this appeal, was not raised as a separate issue by the appellant on the original application.

[57] As a result, I would dismiss the appeal. The respondents did not seek costs and I would not award any.

Released: June 10, 2022 “J.M.F.” “K. Feldman J.A.” “I agree. Fairburn A.C.J.O.” “I agree. Harvison Young J.A.”

Footnotes

[1] R. v. Little, 2007 ONCA 548, 87 O.R. (3d) 683, leave to appeal refused, [2008] S.C.C.A. No. 39.

[2] Although the application judge referred to a collateral attack on conviction and sentence, I understand her to be referring only to the Court of Appeal’s decision sentencing the appellant as a dangerous offender.