Court of Appeal for Ontario

Date: 2019-02-08 Docket: C63786

Judges: Simmons, Lauwers and Trotter JJ.A.

Parties

Between

Steven Forster Appellant

and

The Institutional Head of Millhaven Penitentiary as Directed by the Commissioner of Corrections Respondent

Counsel

Paul Slansky, for the appellant

Max Binnie and Stephen Kurelek, for the respondent

Hearing and Appeal

Heard: January 17, 2019

On appeal from the order entered on May 11, 2017 by Justice Gary W. Tranmer of the Superior Court of Justice, sitting without a jury, with reasons reported at 2017 ONSC 2865.

Reasons for Decision

Trotter J.A.:

A. Introduction

[1] Steven Forster has been imprisoned as a dangerous offender for more than 30 years. He launched a habeas corpus application to test the validity of his detention. However, on a motion by the respondent, the application was summarily dismissed because it was "plain and obvious" that it could not succeed. Mr. Forster appeals from this preliminary decision.

[2] I would allow the appeal. The appellant's habeas corpus application should not have been dismissed without a full hearing on the merits.

B. Factual Background

(1) The Dangerous Offender Proceedings

[3] On February 23, 1988, the appellant pled guilty to numerous sexual offences. The trial judge, Dilks C.C.J., ordered that the appellant undergo a psychiatric assessment. On December 23, 1988, he declared the appellant to be a dangerous offender and imposed an indeterminate sentence. Dilks C.C.J. also made a recommendation that the appellant "be admitted immediately to such courses of treatment for his disorders as can be made available to him."

[4] The appellant appealed to this court. On June 23, 1995, his appeal was dismissed: see R. v. Forster (1995), 82 O.A.C. 78. At that time, it was brought to the attention of the panel that the appellant had thus far received no treatment. The court said, at para. 11: "The situation is intolerable. This court supports the recommendation of the trial judge and urges the correctional authorities to provide the appropriate treatment on an urgent basis."

(2) The First Habeas Corpus Application

[5] On November 15, 2001, the appellant commenced his first habeas corpus application, seeking relief under many different heads, and invoking numerous sections of the Charter (i.e., ss. 7, 9, 10, 11, 12, 15(1), 24(1), and 26). The appellant was self-represented. It would appear that the nub of his complaint concerned a transfer between institutions. After nine appearances, the application was dismissed by MacLeod J. (now MacLeod-Beliveau J.). At the terminal appearance, counsel appeared and informed the court that the appellant may have a basis to challenge his indeterminate sentence. In dismissing the application, MacLeod J. wrote: "The application is dismissed, without prejudice to the applicant commencing a new application, citing proper grounds for habeas corpus for the court to consider."

[6] The appellant appealed to this court. On June 21, 2005, his appeal was dismissed "without prejudice to the appellant's right to commence proceedings in the Superior Court or in the Federal Court, as may be appropriate, with regard to his various grievances."

(3) The Current Habeas Corpus Proceedings

[7] The appellant commenced the current proceedings on October 5, 2014. His Notice of Application requested a writ of habeas corpus with certiorari in aid, and relief under s. 24(1) of the Charter. The appellant challenges the validity of the warrant of committal, asserting a lack of jurisdiction to make the dangerous offender finding. He alleges that his psychiatric remand was unlawful; that the Crown failed to give the required notice of the dangerous offender application; that he was improperly excluded from parts of the hearing; and that the trial judge failed to recognize that he had a discretion to decline to make the dangerous offender designation.

[8] On May 28, 2015, the respondent filed a motion to have the application dismissed. The respondent purported to rely upon r. 21.01(3)(a) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 ("the civil rules"), which permits a defendant to move before a judge to have an action dismissed or stayed because "the court has no jurisdiction over the subject matter of the action."

[9] In written reasons, the application judge dismissed the habeas corpus application. The application judge accepted that he had the authority to "dismiss these proceedings on a motion to strike" (para. 10), citing the following authorities relied upon by the respondent: Debrocke v. Canada (8 October 2015, CR-15-231-MO (ONSC)); Firbank v. Canada (Attorney General), 2016 ONSC 6592; and Nome v. Attorney General of Canada, Kingston Court File CR-15-583-MO. Although each of these cases resulted in the summary dismissal of habeas corpus proceedings, the jurisdictional basis for doing so was unclear.

[10] The application judge considered the viability of the appellant's claim for relief through the lens of the Supreme Court of Canada's decisions in R. v. Lyons, [1987] 2 S.C.R. 309, R. v. Gamble, [1988] 2 S.C.R. 595, and R. v. Sarson, [1996] 2 S.C.R. 223, as well as this court's judgment in Gallichon v. Canada (Commissioner of Corrections) (1995), 101 C.C.C. (3d) 414 (Ont. C.A.). Ultimately, he determined, at para. 70, that the appellant's application was "an attempt to circumvent the appeal rights that were available to him, and which he has exercised." The application judge concluded that it was "plain and obvious that the application cannot succeed. It has no possibility of success. Therefore, I exercise this court's discretion to dismiss it at this stage."

C. Analysis

[11] The importance of habeas corpus can hardly be understated. The right to test the validity of one's detention by habeas corpus is guaranteed by s. 10(c) of the Charter. The scope of the protection afforded by this right is complex and has required guidance from the Supreme Court of Canada on many occasions. In May v. Ferndale Institution, 2005 SCC 82, [2005] 3 S.C.R. 809, the Court held that there is a limited power in the Superior Courts to decline to exercise habeas corpus jurisdiction. LeBel and Fish JJ. wrote, at para. 44:

Habeas corpus should not be declined merely because another alternative remedy exists and would appear as or more convenient in the eyes of the court…. Only in limited circumstances will it be appropriate for a provincial superior court to decline to exercise its jurisdiction. For instance, in criminal law, where a statute confers jurisdiction on a court of appeal to correct a lower court and release the applicant if need be, habeas corpus will not be available…Jurisdiction should also be declined where there is in place a complete, comprehensive and expert procedure for review of an administrative decision. [Emphasis added.]

In para. 68 of his reasons, the application judge relied on May as a basis for "declining to hear this case."

[12] Declining to exercise habeas corpus jurisdiction is different from striking out an application on a summary basis. In Mission Institution v. Khela, 2014 SCC 24, [2014] 1 S.C.R. 502, at para. 78, the Court held that "[u]nlike the Federal Court in the context of an application for judicial review, a provincial superior court hearing a habeas corpus application has no inherent discretion to refuse to review the case." Stated differently, "if the prisoner does raise an arguable issue there is no room for discretion: the matter should proceed to hearing so that a full and proper determination can be made. The non-discretionary nature of habeas corpus is an important difference between it and other prerogative writs:" Judith Farbey, Robert J. Sharpe and Simon Atrill, The Law of Habeas Corpus, 3rd ed. (New York: Oxford University Press, 2011), at p. 53.

[13] As noted above, the respondent relied on the civil rules as the foundation for its pre-emptive motion to strike this habeas corpus application. However, this reliance was misplaced in a number of respects. First, the respondent relied on r. 21.01(3)(a) – "lack of jurisdiction over the subject matter." However, it would appear that the application judge did not apply this sub-rule. Instead, he found that it was "plain and obvious" that the appellant's claim could not succeed. This language – "plain and obvious" – is more appropriate to r. 21.01(1)(b), which governs a "motion to strike out a pleading on the ground that it discloses no reasonable cause of action or defence": see Paton Estate v. Ontario Lottery and Gaming Commission, 2016 ONCA 458, 131 O.R. (3d) 273, at para. 12; and R. v. Imperial Tobacco Canada Ltd., 2011 SCC 42, [2011] 3 S.C.R. 45, at paras. 17-22.

[14] More profoundly, neither civil rule was applicable in the circumstances of this case. This habeas corpus application was criminal in nature; it arises directly from the imposition of a penal sanction under the Criminal Code: see Vukelich v. Mission Institution, 2005 BCCA 75, 252 D.L.R. (4th) 634, at para. 32. Accordingly, this application was governed by the Criminal Proceedings Rules for the Superior Court of Justice (Ontario), SI/2012-7 ("the criminal rules"). Rule 43 provides the foundation for prerogative relief applications, including habeas corpus.

[15] On appeal, the respondent's position has shifted. It now relies on a number of criminal rules (rr. 1.04(1), (2), 2.01, and 6.11). Moreover, the respondent attempts to fortify its position by invoking R. v. Jordan, 2016 SCC 27, [2016] 1 S.C.R. 631, stressing the need to prevent the criminal courts from becoming clogged by unmeritorious cases such as the appellant's.

[16] The criminal rule that is most applicable to these proceedings is r. 6.11(2), which provides:

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. [1] [Emphasis added.]

[17] This rule sets the bar quite high. The application must fail to show a "substantial ground for the order sought"; it must be "frivolous and vexatious"; and it must be capable of being determined "without a full hearing." Even if these criteria are met, the power to dismiss remains discretionary. The test for dismissal under r. 6.11(2) differs substantially from, and is more onerous than, the tests under r. 21.01(1)(b) and r. 21.01(3)(a) of the civil rules. Moreover, unlike the r. 21.01 tests, the test under s. 6.11(2) contemplates summary dismissal without notice to the applicant – in other words, an application so devoid of merit it can be disposed of ex parte.

[18] In my view, it cannot be said that the appellant's claim "does not show a substantial ground" or that it is "frivolous or vexatious", for the following three reasons. First, when his previous habeas corpus application was terminated, it was "without prejudice" to commencing a new application. The appellant did just that by launching his new application. The new application is not, therefore, vexatious.

[19] Second, the appellant raises grounds that are arguably unique, operating outside of the Lyons/Gamble/Sarson/Gallichon framework. The appellant's habeas corpus claims do not challenge the legality of his continued detention on the basis of legislative shifts; instead, he argues that the initial warrant of committal was invalid at the time it was issued.

[20] Third, whether the appellant could have raised these complaints at his 1995 appeal from sentence is not a foregone conclusion; it is a live issue, the resolution of which may well turn on the scope of this court's dispositional powers under s. 759 of the Criminal Code that were in force at the time of the 1995 appeal.

[21] I return to the authorities (in para. 9, above) that were urged on the application judge by the respondent in support of its motion to strike. They have no application to this case. Those decisions involved prisoners seeking habeas corpus relief in response to lateral transfers between maximum security institutions. In each case, it was determined that there was no cognizable deprivation of liberty for habeas corpus purposes. This is very different from the situation faced by the appellant who, after 30 years, seeks to challenge the legality of his initial and continued detention as a dangerous offender.

[22] I acknowledge that the application judge provided detailed reasons for his decision. He grappled with the merits of the application. However, his judgment was rendered in response to a motion for summary dismissal, predicated on inapplicable civil rules. Given the unique nature of the appellant's habeas corpus application, it was neither expedient nor in the interests of justice to short circuit his application through a procedure not contemplated by the criminal rules.

[23] The appellant argues that, if the application judge erred in striking his application, this court should consider the habeas corpus claim on the merits and grant him the relief that he seeks. The respondent resists this approach. It claims that the case cannot be decided on the merits because the record is incomplete. The respondent wishes to adduce evidence in support of its position.

[24] Even though the record is incomplete as a result of the respondent's misplaced motion to strike, I would not be prepared to adjudicate on the merits of the appellant's claim on the record that is presently before this court, and without the benefit of any further findings that a judge may make after a full hearing on the merits.

D. Disposition

[25] I would allow the appeal, set aside the decision of the application judge, and remit the case to the Superior Court of Justice for a full hearing on the merits.

Released: February 8, 2019

"Gary T. Trotter J.A."

"I agree. Janet Simmons J.A."

"I agree. P. Lauwers J.A."

Footnote

[1] See Severin v. Bath Institution, 2018 ONSC 6096, in which Mew J. (the same judge who decided Firbank) considered an application to dismiss a habeas corpus proceeding under r. 6.11(2). The application was brought ex parte. Mew J. refused to dismiss the application summarily, without the attendance in court of the applicant.