ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: CR-13-196
DATE: 2013 October 04
BETWEEN:
JOSEPH GHOSN
Applicant
– and –
ATTORNEY GENERAL OF CANADA
Respondent
J. Gumienny, for the Applicant
P. Nostbakken, for the Respondent
HEARD: September 23, 2013 at Kingston
TRANMER, j.
Habeas corpus DECISION
NATURE OF THE APPLICATION
[1] The Applicant seeks an Order in the nature of Habeas Corpus ad subjiciendum with Certiorari in aid thereof for firstly “allowing the transfer of the Applicant to a medium security prison”, and, secondly “that the decision of the warden to increase the Applicant's security level be quashed”.
BACKGROUND FACTS
[2] The Applicant is a 47-year-old federal penitentiary inmate serving a life sentence for first-degree murder. This sentence commenced June 28, 1996. His parole eligibility date is April 28, 2017.
[3] Since the beginning of his sentence, he has been classified as medium security and served his sentence in medium security institutions, namely Collins Bay and then Warkworth. He earned a reputation as a trustworthy inmate and was employed in positions that allowed him access to various parts of the institution that were off-limits to other inmates. Staff turned to him for assistance with other inmates. He completed programs recommended to him. He was being considered for transfer to a lower security institution. On the day of the transfer which is the subject of this application, he was offered a transfer to Bath Institution which is also medium security, but is offered to offenders who are compliant with institutional rules and policies. This institutional record supported his process of working towards release.
[4] On June 7, 2011, the Applicant was involuntarily transferred to Millhaven Institution, a maximum security facility. CSC staff told him that he was being investigated for bringing drugs and tobacco into the institution. On July 20, 2011, he was transferred to Kingston Penitentiary, also a maximum security institution. He was questioned by police about a certain guard who they alleged had an account number for a bank account in his name and as well a cell phone number that they believed was linked to the Applicant.
[5] At the time the original application herein was filed, there was clearly a deprivation of liberty suffered by the Applicant by virtue of his reclassification and transfer from medium security to maximum security. The original application in this matter as filed, and as articulated by the Applicant's counsel before me, was framed as unlawful because prison authorities breached the statutory requirements and the duty of procedural fairness of providing to the Applicant sufficient information concerning the allegations against him so as to permit him to know the case against him in order to permit him to fairly respond to them.
NEW FACTS
[6] On September 5, 2013, having been reclassified as medium security, the Applicant was transferred to Fenbrook Institution in Ontario, a medium security facility.
THE ISSUE
[7] The Respondent takes the position that the application is now moot and should be dismissed.
[8] The Applicant takes the position that this court has the jurisdiction to grant the secondary relief originally sought, namely the quashing of the decision to reclassify and transfer the Applicant to maximum security, that the issue is not moot, and that even if the issue is moot, I should exercise my discretion to grant the relief being sought in the current circumstances.
POSITION OF THE RESPONDENT
[9] The Respondent submits that the Applicant's liberty interest is no longer at stake and that therefore this application is moot. He submits that the two fundamental issues on an application for habeas corpus are: firstly, has there been a deprivation of the Applicant's liberty, the onus of which is upon the Applicant to prove; and secondly, if so, is such deprivation lawful, the onus being on the Respondent to prove. “The question is whether the prisoner’s detention, at the present time, is justified substantially and on the merits”, R. v. Latham[^1]. The Respondent submits that there is no present deprivation of liberty and that therefore this application should be dismissed.
[10] The Respondent also submits that the relief currently sought, namely to quash the decision of the prison authorities is not within the power of this court and is properly brought as a certiorari application to the federal court trial division, which has exclusive jurisdiction over such matters in regard to any federal board, commission or other tribunal. He cites section 18 of the Federal Courts Act. He also cites as authority for this proposition Alzehrani v. Warden of Kingston Penitentiary[^2], R v. Miller[^3], May v. Ferndale[^4], Bachynski v. William Head[^5] and Moldovan v. Canada[^6].
[11] The Respondent further submits that I should not adopt the position of the Applicant that even if the issue before me is moot, I should nevertheless, exercise my discretion and on the basis of the record before me quash the subject decision of the prison authorities. On this point, the Respondent submits that a decision on the merits in this case does not have broad public importance. He submits that the complaint in the Applicant’s case is that he was not supplied with sufficient information in order to know the case he had to meet. He submits that this does not engage a dispute about or confusion over the applicable legal principles of compliance with statutory requirements or the duty of procedural fairness, rather it is a fact driven issue specific only to the Applicant’s case.
POSITION OF THE APPLICANT
[12] The Applicant asks me to accept the approach taken by the court in Borowski v. AG Canada[^7] in regard to the question of mootness. In that case, the court stated “Accordingly if, subsequent to the initiation of the action or proceeding, events occur which affect the relationship of the parties so that no present live controversy exists which affect the rights of the parties, the case is said to be moot”. The court set out a two-step analysis. First, it is necessary to determine whether the required tangible and concrete dispute has disappeared and the issues have become academic. Second, if the response to the first question is affirmative, it is necessary to decide if the court should exercise its discretion to hear the case. Counsel cited the relevant criteria that the court should consider when determining whether to exercise its discretion in accordance with this decision.
[13] The Applicant submits that there remains a live controversy between these parties, namely the validity of the information relied upon by prison authorities for the transfer to a maximum and its continuing adverse impact upon the Applicant's treatment within the prison system by prison authorities.
[14] The Applicant submits that there exist special circumstances, namely the failure by prison authorities to disclose to the Applicant the information that they had against him so that he could properly address the case against him.
[15] The Applicant submits that this case is of public interest and importance warranting adjudication by this court, citing Woodhouse v. Canada[^8]and the three cases relied upon by that court at page 41. She submits that Mr. Ghosn’s case bears the same important precedential effect obviating concerns for an unwarranted use of judicial resources and is clearly a case of great importance in the public interest as was found in Woodhouse, ibid, at the trial level. (paras. 199 and 214).
ANALYSIS
[16] For the following reasons, this application must fail.
[17] In May, the Supreme Court of Canada referred to LeDain, J.’s decision in Miller, for the principle that habeas corpus should lie “to challenge the validity of a distinct form of confinement or detention in which the actual physical constraint or deprivation of liberty, as distinct from the mere loss of certain privileges, is more restrictive or severe than the normal one in an institution”, para. 28. He found that the provincial superior courts had jurisdiction to issue certiorari in aid of habeas corpus to review the validity of a detention in federal penitentiaries in order to protect residual liberty interests of an inmate which did not intrude upon the exclusive jurisdiction of the Federal Court under section 18. In May, the Supreme Court held that a successful application for habeas corpus requires two elements: 1. A deprivation of liberty; and 2. That the deprivation be unlawful. The onus of making out a deprivation of liberty rests on the Applicant. The onus of establishing the lawfulness of that deprivation rests on the detaining authority. (Para. 74).
[18] In the Applicant’s present situation, there is no deprivation of liberty. The authorities, including Latham and Borowski cited to me, make it clear that the relevant timing of the inquiry is when the court is called upon to adjudicate. The Applicant cannot succeed on the first element required for habeas corpus.
[19] The Applicant submits that I should exercise my discretion in any event, and grant the relief now sought, namely the quashing of the decision to reclassify and transfer the Applicant to maximum-security. Counsel submits that Borowski sets out the principles to be applied by the court in this regard.
[20] The “live controversy” framed in the Applicant’s case is two-fold. 1. The prison authorities did not give him sufficient information required at law in order for him to know the case he had to meet in order to respond to the transfer, and 2. The decision to reclassify and transfer was wrong on the merits and should be removed from his prison record so as not to adversely affect him in the future. For the reasons I state below, this court does not have the jurisdiction to adjudicate this latter issue.
[21] Assuming that point number one is a live issue, I go on to consider the criteria set out in Borowski as to whether I should exercise my discretion to decide the issue or not.
[22] The requirement is the existence of the necessary adversarial relationship remaining between the parties. There may be collateral consequences of the outcome that will provide the necessary adversarial context.
[23] The second consideration is the concern for limited judicial resources. That concern will be answered if the special circumstances of the case make it worthwhile to apply scarce judicial resources to resolve it. The question is whether this court’s decision will have some practical effect on the rights of the parties notwithstanding that it will not have the effect of determining the controversy which gave rise to the application originally, namely the transfer to maximum. Similarly, an expenditure of judicial resources is considered warranted in cases which although moot are of a recurring nature but brief duration. The court in Borowski pointed out the mere fact, however, that a case raising the same point is likely to recur even frequently should not, by itself, be a reason for hearing an appeal which is moot. “It is preferable to wait and determine the point in a genuine adversarial context unless the circumstances suggest that the dispute will have always disappeared before it is ultimately resolved.” (para. 36). Further justification for the deployment of judicial resources arises in cases which raise an issue of public importance of which a resolution is in the public interest. (para. 37).
[24] The final Borowski criteria is the consideration that the court must be sensitive to its role as an adjudicative branch rather than intruding into the role of the legislative branch. Pronouncing judgments in the absence of a dispute affecting the rights of the parties may be viewed as intruding into the role of the legislative branch.
[25] In applying the criteria, it is important to note that the application as framed and as articulated by counsel in argument before me is that the unlawfulness of the transfer is founded on the issue that the Applicant was given insufficient information in order to know the case he had to meet. That issue is a fact driven and case specific issue. It has no broad application other than to the particular facts in the Applicant’s case. There is no public importance or matter of public interest in that issue. The legal principles that are applicable are set out in the legislation and further defined by the duty of procedural fairness and the Charter of Rights and Freedoms. What those principles are and what they require of prison authorities is not in dispute in this case. This case is about whether factually the established legal principles have been met.
[26] Counsel for the Applicant submits that his transfer back to medium is as a result of his good behaviour over the past two years since his transfer to maximum. She submits that the transfer to maximum will remain as a serious blemish on his institutional record adversely influencing his future treatment by CSC. She submits that my decision, should it be in favour of the Applicant, would positively impact in his favour on the beliefs held by prison authorities that gave rise to the transfer to maximum.
[27] However, the most favourable decision for the Applicant in this case that I could give would be a finding that prison authorities did not give him sufficient information in June of 2011. This court’s decision cannot undo or erase the suspicions that the prison authorities had in June 2011 which in substance is the relief that the Applicants wants and needs.
[28] Therefore, I find that there does not exist the necessary adversarial requirement or collateral consequences to warrant the exercise of my discretion. I further find that there are no special circumstances warranting the application of judicial resources. My decision would have no practical effect on the rights of the parties before me, nor would it influence future transfers which could be considered recurring in nature. I find that there is no issue of public importance, or of public interest warranting this court adjudicating the factual dispute as to whether sufficient information was given to the Applicant in June 2011.
[29] For these reasons, I decline to exercise my discretion to adjudicate upon the issue as framed in the case before me. The decision of the British Columbia Court of Appeal in Lising v. Kent Institution[^9] is strong authority for my decision.
[30] Finally, I find that I have no jurisdiction to quash the subject decision which is the relief presently sought by the Applicant. The cases cited to me by counsel for the Respondent clearly state that principle, as does s.18 of the Federal Court Act (see also Suman v. AG (Canada[^10]).
DECISION
[31] For these reasons, this application is dismissed.
Tranmer J.
Released: October 04, 2013
COURT FILE NO.: CR-13-196
DATE: 2013 October 04
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
JOSEPH GHOSN
Applicant
– and –
ATTORNEY GENERAL OF CANADA
Respondent
Habeas corpus decision
Tranmer, J.
Released: October 04, 2013
[^1]: R. v. Latham 2000 CarswellOnt 3486 (S.C.J.), para.21
[^2]: Alzehrani v. Warden of Kingston Penitentiary 2013 ONSC 5160, paras. 32, 35, 38
[^3]: R v. Miller, 1985 22 (SCC), [1985] 2 S.C.R. 613, paras.13 and 14
[^4]: May v. Ferndale 2005 SCC 82, paras. 30 to 32
[^5]: [1995] B.C.J. No. 1715, para. 23
[^6]: Moldovan v. Canada 2012 ONSC 2682, paras. 42 to 45
[^7]: Borowski v. AG Canada 1989 123 (SCC), [1989] 1 S.C.R. 342
[^8]: Woodhouse v. Canada [2010] BCSC 754, at p.41
[^9]: Lising v. Kent Institution 2008 BCCA 10
[^10]: Suman v. AG (Canada) 2012 ONSC 677