R. v. Olson, [1989] 1 S.C.R. 296

Clifford Robert Olson Appellant

v.

Her Majesty The Queen Respondent

indexed as: r. v. olson

File No.: 20640.

1989: January 24*.

Present: Dickson C.J. and McIntyre, La Forest, L'Heureux-Dubé and Sopinka JJ.

on appeal from the court of appeal for ontario

Criminal law -- Extraordinary remedies -- Habeas corpus -- Jurisdiction of Court of Appeal -- Whether Court of Appeal had jurisdiction to hear the case on the merits -- Whether writ of habeas corpus should have been returned to the court of first instance for consideration of the merits ‑‑ Criminal Code, R.S.C. 1970, c. C-34, ss. 613(1)(b)(iii), (iv), 719(2) -- Act for more effectually securing the Liberty of Subject, S. Prov. C. 1866, 29 & 30 Vict., c. 45, s. 1 -- Ontario Supreme Court Rules Respecting Criminal Proceedings -- Part I, SI/85-152, rules 9, 11.

The High Court of Ontario dismissed appellant's application for a writ of habeas corpus and the order was upheld by the Court of Appeal. The Court of Appeal found that the written material filed by the appellant disclosed an arguable case and that the court of first instance ought either to have issued the writ or to have afforded the appellant the opportunity to appear and make submissions. The Court concluded, however, that it was unnecessary to send the application back to the court of first instance because all relevant material was before the Court. With the full participation of the appellant, the Court of Appeal considered the merits of the case and dismissed the application. In this Court, the appellant argued, in light of the two-stage habeas corpus procedure in effect in Ontario, that the Court of Appeal had no jurisdiction to hear the merits of the case and that the writ of habeas corpus should have been returned to the High Court for consideration of the merits.

Held: The appeal should be dismissed.

Section 613(1)(b)(iv) of the Criminal Code applies by virtue of s. 719(2) which renders applicable Part XVIII of the Code. These provisions, although drafted to meet the situation of an appeal from a conviction, are to be read mutatis mutandis, and are broad enough to encompass the Court of Appeal's dismissal of the application for habeas corpus on the merits in the present circumstances. In any event, even if the Court of Appeal erred in failing to remit the matter to the court of first instance, the error was a purely mechanical one which could be cured by s. 613(1)(b)(iii). To send the matter back to the High Court would be a triumph of form over substance. The result would inevitably be the same, as all the material was before the Court of Appeal and the appellant was afforded full opportunity to make submissions.

Statutes and Regulations Cited

Act for more effectually securing the Liberty of Subject, S. Prov. C. 1866, 29 & 30 Vict., c. 45, s. 1.

Criminal Code, R.S.C. 1970, c. C-34, ss. 613(1)(b)(iii), (iv) [en. 1985, c. 19, s. 143], 719(2).

Ontario Supreme Court Rules Respecting Criminal Proceedings -- Part I, SI/85-152, rules 9 [rep. & subs. SI/86-4], 11.

APPEAL from a judgment of the Ontario Court of Appeal (1987), 1987 CanLII 4314 (ON CA), 62 O.R. (2d) 321, 22 O.A.C. 287, 38 C.C.C. (3d) 534, dismissing appellant's appeal from an order of Maloney J., dismissing appellant's application for a writ of habeas corpus with certiorari in aid. Appeal dismissed.

Fergus O'Connor, for the appellant.

Graham R. Garton, Q.C., for the respondent.

//The Court//

The following is the judgment delivered by

THE COURT -- This is an appeal from the decision of the Ontario Court of Appeal (1987), 1987 CanLII 4314 (ON CA), 62 O.R. (2d) 321, which dismissed an appeal from Maloney J., who refused an application for a writ of habeas corpus made in writing by the appellant, then unrepresented by counsel, without affording the appellant an opportunity to be present and make submissions.

Brooke J.A., speaking for the Court of Appeal, held that the written material filed by the appellant disclosed an arguable case and that Maloney J. ought to either have issued the writ or, in some other manner, afforded the appellant an opportunity to appear and make submissions. He stated (at pp. 329-30):

However, in my respectful opinion, in view of the material filed, there were serious matters to consider being whether the appellant is lawfully detained in segregation, if he is held there on the order of the previous Solicitor-General and further whether his detention in segregation for the past five years, with a prospect of further detention for many years, was cruel and unusual treatment. In the circumstances, Maloney J. should either have directed that the appellant be brought before him to argue the case as though the writ had been issued or, alternatively, to issue the writ and afford the applicant the opportunity to appear and respond to the submissions of his jailer on the hearing upon the return of the writ. It was not good enough to leave this matter by denying the applicant an opportunity to be heard.

By virtue of the combined effect of the Act for more effectually securing the Liberty of Subject, S. Prov. C. 1866, 29 & 30 Vict., c. 45 (the Habeas Corpus Act), and Rules 9 and 11 of the Ontario Supreme Court Rules Respecting Criminal Proceedings -- Part I, SI/85-152, as amended, the application for a writ of habeas corpus is a two-stage process. In the first stage the judge to whom the application is made must determine whether "probable and reasonable ground" for the complaint exists as provided in s. 1 of the Habeas Corpus Act. If such grounds are present, the writ issues and the merits are determined on the return of the writ. However, Rule 11 provides a mechanism for collapsing these two stages into one. Rule 11 provides that on consent the issue of the writ, the return thereto and the presence of the detainee may be dispensed with. This is the usual practice where the applicant is represented by counsel. Where a written application by a prisoner proceeds to the second stage of detailed consideration of the merits, it is common practice to dispense with the formality of actually issuing the writ by simply ordering the prisoner to be brought before the court to make submissions.

As we understand the reasons of Brooke J.A., he was of the opinion that "probable and reasonable ground" for the complaint existed and that the matter should have proceeded to the second stage, either by issuing the writ or by simply having the appellant brought before the court to present his case.

The Court of Appeal concluded, however, that it was unnecessary to send the application back to Maloney J., because all relevant material was before that court and upon the invitation and with the full participation of the appellant, who appeared in person, the merits were fully examined. The Court concluded that the grounds in fact had no merit. The distinction is, of course, one that is well-known in law. Often, what appears to be an arguable case in fact turns out to be without merit.

The issue before this Court is whether the Court of Appeal had jurisdiction to dispose of the application in the manner just described. The appellant now seeks to argue that the Court of Appeal had no jurisdiction to hear the argument on the merits and that the matter should be remitted to Maloney J. to consider the merits of the grounds that the Court of Appeal has already found to be without merit.

In our opinion, this mechanical approach should be avoided. By virtue of s. 719(2) rendering applicable Part XVIII of the Criminal Code, s. 613(1)(b)(iv) applies. Those provisions, although drafted to meet the situation of an appeal from a conviction, are to be read mutatis mutandis, and are broad enough to permit the Court of Appeal to have dismissed the application for habeas corpus on the merits in the circumstances presented here. In any event, even if the Court of Appeal did err in failing to remit the matter to Maloney J., the error was a purely mechanical one which could be cured by s. 613(1)(b)(iii). To send the matter back before Maloney J. would be a triumph of form over substance. The result would inevitably be the same, as all the material was before the Court of Appeal and the appellant was afforded full opportunity to make submissions. Accordingly, the appeal is dismissed.

Appeal dismissed.

Solicitors for the appellant: O'Connor, Ecclestone & Kaiser, Kingston.

Solicitor for the respondent: John C. Tait, Ottawa.

• Reasons delivered on April 13, 1989.