Court File and Parties

COURT FILE NO.: CR-18-50-00MO DATE: 20181015 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Patrice Severin v. Bath Institution

BEFORE: Mew J.

COUNSEL: Vanessa Wynn-Williams, for the Crown

HEARD: In Writing

Endorsement

(Application for an Order to Dismiss Pursuant to Rule 6.11(2) of the Criminal Proceedings Rules)

[1] Patrice Severin, an inmate at Bath Institution, has applied to this court for a writ of habeas corpus ad subjeciendum in which he challenges the validity of his detention.

[2] By a notice of application brought in writing pursuant to Rule 6.11(2) of the Criminal Proceedings Rules for the Superior Court of Justice (Ontario), SI/2012-7, the Crown seeks a dismissal of Mr. Severin’s proceeding, asserting that Mr. Severin’s materials do not establish grounds for a remedy in the nature of habeas corpus. According to the Crown, Mr. Severin has neither raised any legitimate ground upon which to challenge his incarceration, nor established any subsequent deprivation of his residual liberty reviewable by way of habeas corpus. As a result, his application is said to be frivolous, vexatious, and has no reasonable prospect of success.

[3] Rule 6.11(2) provides:

(2) Upon application by the respondent that a notice of application does not show a substantial ground for the order sought, a judge of the court may, if he or she considers that the matter is frivolous or vexatious and can be determined without a full hearing, dismiss the application summarily and cause the applicant to be advised accordingly.

[4] The purpose and effect of Rule 6.11 is to dismiss frivolous and vexatious applications without a hearing taking place.

[5] Applications by way of habeas corpus are also governed by Rule 43 which applies where “extraordinary remedies” (as described in sections 774 - 784 of the Criminal Code) are sought. A notice of application under Rule 43 shall be in Form 1 and comply with Rule 6.03, which deals with the contents of notices of application in Form 1. This would seem to suggest that Rule 6.11 is applicable to all applications, including those for extraordinary remedies.

[6] Quite aside from the effect of Rule 6.11, the process followed under Rule 43 in respect of applications for a writ of habeas corpus is as described in Martin’s Ontario Criminal Practice 2018 (Canada Law Book) at p. 498:

The application for a writ of habeas corpus is actually a two-stage process, requiring the judge to whom the application is made to determine whether probable and reasonable grounds for the complaint exist. If such grounds exist, a writ issues and the merits are determined on the return of the writ. It is the practice, however, that where the applicant is represented by counsel, the two stages are combined into one. Where the application is made by a prisoner, then the judge must determine whether or not to issue the writ Usually, the formality of issuing the writ is dispensed with and the judge simply orders the prisoner to be brought before the court to make submissions: R. v. Olson (1989), [1989] 1 S.C.R. 296, 47 C.C.C. (3d) 491, 68 O.R. (2d) 256 n.

Before a writ of habeas corpus may issue, the applicant must establish the following: detention, the basis for detention, complain that the detention is unlawful and establish that there are probable and reasonable grounds for his complaint: Idziak v. Canada (Minister of Justice) (1989), 53 C.C.C. (3d) 385, 48 C.R.R. 165 (Ont. H.C.J.).

[7] Consideration should also be given to section 774.1 of the Criminal Code, which provides:

Despite any other provision of this Act, the person who is the subject of a writ of habeas corpus must appear personally in court.

[8] Can the summary dismissal sought by the Crown be reconciled with section 774.1? In other words, can the court make a determination on whether Mr. Severin’s application should be dismissed without giving him an opportunity to appear personally in court?

[9] In Ex parte Durocher, [1966] 2 O.R. 244 (H.C.), a case preceding the enactment of s. 774.1, Brooke J. stated:

It is open to the Court to examine the application which it receives and if no arguable point is raised therein upon which a Court might direct the issue of a writ of habeas corpus, or if the application is not supported by any proper material, the Court may dismiss the application or deal with it as appears to be just in the circumstances.

In this case, there is nothing in the application upon which it could be contended that a writ should issue nor is there any material filed by way of affidavit, or otherwise, from which it could be suggested that the applicant is being unlawfully detained.

[10] In R. v. Gustavson, 2005 BCCA 32, 249 D.L.R. (4th) 598, 193 C.C.C. (3d) 545, the court said, at para. 14:

The meaning of the English version of s. 774.1 is clear and unambiguous. It provides that a person "who is the subject of a writ of habeas corpus must appear personally in court." Unlike s. 650.01, it is not restricted to an accused applicant. In my view, a person can be the "subject" of a writ of habeas corpus only if a writ has issued to which that person is subject. (Unless and until a writ is issued, an applicant can only be described as being the "subject" of an application for habeas corpus.) A writ is not issued unless and until a judge has determined that the writ should issue. If the judge decides that the application for the writ is entirely without merit, then the writ will not issue; that is, the application will be dismissed. If the writ issues, the applicant must appear personally in court on the return of the writ.

[11] Despite this pronouncement, the British Columbia Court of Appeal went on to consider other factors which it deemed relevant to habeas corpus applications.

[12] One such consideration was whether the process of dismissing applications for habeas corpus made by unrepresented applicants at the first stage offends the principles of natural justice. In particular, does it offend the audi alteram partem principle, and have the effect of depriving unrepresented applicants of procedural protections available to both represented applicants and to the Crown?

[13] Prowse J.A. concluded that permitting the respondent Crown to make submissions to the court at the first stage in the absence of the applicant would offend the audi alteram partem principle. As she put it, at para. 65:

The audi alteram partem principle does not necessarily require that both sides be heard in person, but it does contemplate that both sides will have an equal opportunity to be heard, whether in person, in writing, or, with the benefit of modern technology, through teleconference or videoconference. The emphasis is on an equal opportunity to be heard, rather than on a particular mode of hearing.

[14] In her Ladyship’s view, there were two alternative methods of dealing with applications for habeas corpus made by unrepresented litigants that would comply not only with the Criminal Code and the rules, but also with the audi alteram partem principle, namely:

a. Provide that all applications for habeas corpus be dealt with in a one-stage procedure in which the applicants are brought to court, whether or not they are represented by counsel. Submissions would be made by or on behalf of the applicants, and by the respondent, and the applications would be dealt with on the merits; and

b. Provide for a two-stage procedure whereby both the applicant and the respondent file materials and make written submissions which are considered by a judge in the absence of the parties at the first stage. The judge may dismiss the application based solely on those materials if the application is entirely without merit. The judge, if satisfied that the merits threshold has been met, may make an order requiring the attendance of the applicant at a second-stage hearing. Both the respondent and the unrepresented applicant would be entitled to be present and make submissions at that hearing.

Discussion

[15] The Crown’s application did not address the fairness of a process that would enable the court to adjudicate its request without any opportunity being given to Mr. Severin to respond to it. This is perhaps understandable given a dearth of recent Ontario authority on the subject.

[16] One of the concerns which often arises in cases such as the present was expressed by Monroe J. in R. v. Olson (1968), 63 W.W.R. 446 (B.C.S.C.), at para. 3 where, referring to an earlier unreported decision, he wrote:

As I interpret that judgment, the court did not hold that an inmate in a prison could ensure himself a day out for a trip to a court house at will by the simple expedient of filing an application for a crown prerogative writ, however repetitious, frivolous or lacking in merit the application may be. The court held, only, that the applicant must be given "an opportunity to be heard, ... after proper notice.

[17] In court centres, such as Kingston and Napanee, which are close to multiple federal institutions, considerable resources are expended by the police, the correctional service and the court due to the volume of habeas corpus applications made by inmates. It makes good sense to have a summary process that can efficiently and effectively address and conclude clearly unmeritorious applications. But it should be a fair process. This is particularly so given the role of habeas corpus as a vehicle for safeguarding of the liberty of the subject, enshrined as a fundamental right by s. 10(c) of the Charter of Rights and Freedoms.

[18] In Olson, a Crown lawyer had written to the applicant advising him that he intended to attend in court and take the position that the applications were without merit and that the applicant had no right to attend in court in person, but invited the applicant to submit written argument if he wished to. That satisfied the court that the applicant had been afforded a right to be heard.

[19] Similarly, in civil proceedings, the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 were amended in 2014 to provide, through Rule 2.1.01(1) that the court may, on its own initiative, or upon request by another party, stay or dismiss a proceeding if the proceeding appears on its face to be frivolous or vexatious or otherwise an abuse of the process of the court. However, before such an order is made, the claimant is provided with an opportunity to file a written submission.

[20] The second option described by Prowse J.A. in Gustavson strikes a reasonable balance between the “day trip” concern referred to above and respect for the right of a party to be heard on an issue involving a person’s detention. Rules 6.11 and 43 should, in my view, be interpreted accordingly.

Order

[21] In the context of Mr. Severin’s application, I see from the court’s record that the matter was spoken to at an assignment court, before the application under Rule 6.11(2) had been considered. At that time, the application was adjourned to 1 November 2018. Having now considered the Crown’s application, I am of the view that Mr. Severin should be given an opportunity to respond to it before a decision is made on whether to dismiss Mr. Severin’s application summarily or allow it to proceed to the second stage, namely a hearing on the merits. Accordingly, I order as follows:

a. Mr. Severin shall have 30 days from the date of release of this endorsement to serve and file (with proof of service), should he wish to do so, a written submission responding to the Crown’s application for an order dismissing Mr. Severin’s application for a writ of habeas corpus ad subjeciendum;

b. Service of Mr. Severin’s submission may be effected on the lawyer for the Crown by any method of service provided for by, and in accordance with, in Rule 5.05 of the Criminal Proceedings Rules;

c. The hearing scheduled for 1 November 2018 is adjourned to a date to be set by the Registrar and notified to the parties, should such a hearing be required;

d. Any production order or other order requiring the transportation of Mr. Severin to court on 1 November 2018 in connection with his application is rescinded; and

e. I will remain seized of this matter until further order of the court.

Mew J. Date: 15 October 2018 (at Kingston)