Court of Appeal for Ontario

Date: 2018-01-25

Docket: C62584, C63325

Judges: Doherty, LaForme and Paciocco JJ.A.

Between

Donald Earhart Appellant

and

The Attorney General of Canada Respondent

Counsel

Ian B. Kasper, for the appellant

Sanam Goudarzi and Korinda McLaine, for the respondent

Heard

January 15, 2018

Appeal

On appeal from the order of Justice Tranmer of the Superior Court of Justice, dated August 25, 2015, dismissing an application for habeas corpus.

Reasons for Decision

[1] This appeal was heard with the appeal in R. v. Wong (C63325). Like that appeal, this appeal is moot.

[2] The appellant is serving a life sentence for first degree murder. In April 2015, he was reclassified from medium to maximum security. In June 2015, he was ordered transferred to a penitentiary outside of Ontario. He challenged both decisions by way of habeas corpus. His application was dismissed in August 2015. A year later, in August 2016, this court, on consent, extended the time for filing a Notice of Appeal to August 26, 2016 and the appellant commenced this appeal.

[3] Unbeknownst to counsel at the time of the application for an extension of time, the appellant had been transferred from maximum security back to medium security in June 2016. The appeal was moot when the extension was sought and granted. There can be no doubt that had the court been aware that the appellant had been transferred back to medium security, it would not have granted an extension of time to appeal.

[4] The appellant remained in medium security from June 2016 to June 2017. In June 2017, he was transferred to the segregation unit at a different institution. In August 2017, he was ordered transferred to a different penitentiary outside of the province. In August 2017, the appellant commenced a new habeas corpus application challenging both the transfer to segregation and the transfer to the penitentiary outside of Ontario. That application is to be heard in April of this year.

[5] The appellant seeks to raise the same issues pertaining to s. 27 of the Corrections and Conditional Release Act, S.C. 1992, c. 20 as are raised in R. v. Wong. In one respect, the appellant has a stronger case for the court hearing his appeal, despite its mootness, than does the appellant, Wong. The arguments raised on appeal, particularly as they relate to s. 27(3) of the Act, were raised, to some extent, before the application judge. He addressed those arguments in his reasons. The application judge purported to apply Khela. The appellant submits that the application judge misapplied Khela.

[6] We are satisfied that we should not hear this appeal on its merits. As counsel's oral argument made clear, any attempt to elucidate the principles identified in Khela drives one inevitably back to the specifics of the particular case. The specifics of the case as presented to the application judge are now irrelevant to the lawfulness of the appellant's present detention. The lawfulness of that detention depends on the application of the Khela principles to the specifics of the appellant's current detention. Consequently, the current habeas corpus proceeding is the preferable forum in which to address the application of the principles set down in Khela to the appellant's claim that his detention is unlawful.

[7] The appeal is dismissed as moot.

"Doherty J.A."

"H.S. LaForme J.A."

"David M. Paciocco J.A."