ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: CR-13-488-MO
DATE: 2013 Dec 16

BETWEEN:

GARY LITTLE

Applicant

– and –

THE WARDEN OF BATH INSTITUTION and ATTORNEY GENERAL OF CANADA

Respondent

Applicant, self-represented

Z. Oxaal, for the Respondent

HEARD: December 5, 2013 at Kingston

BELCH j.

HABEAS CORPUS DECISION

[1] The Applicant, Gary Little, is incarcerated in Bath Institution, a penitentiary operated by the Correctional Service of Canada (CSC). The Respondents are the Warden of Bath Institution, and the Attorney General of Canada. The Applicant, having been declared a dangerous offender, is serving an indeterminate sentence.

[2] The Applicant seeks an order of habeas corpus with certiorari to compel the Respondents to release him unconditionally, arguing his continued incarceration for over 12 years violates his rights guaranteed by the Canadian Charter f Rights and Freedoms (Charter), not to be deprived thereof except in accordance with the principles of fundamental justice (s.7), not to be arbitrarily detained or imprisoned (s.9), and/or not to be subjected to any cruel and unusual punishment (s.12). If the answer to any of the above questions is in the affirmative, can the impugned violation be saved by section 1 of the Charter?

[3] The Respondents argue this habeas corpus application, based entirely on a bold assertion of unconstitutionality, has no merit and contradicts Supreme Court of Canada jurisprudence and should be denied.

[4] For the reasons that follow, it is my decision while the Superior Court has concurrent jurisdiction to hear a habeas corpus application, I am satisfied an alternate comprehensive expert scheme exists and as decided by the Supreme Court of Canada in May v. Ferndale, 2005 SCC 82. I should not exercise my jurisdiction to grant habeas corpus relief.

BACKGROUND

[5] On August 21, 2002, the Applicant was found guilty of assault, assault with a weapon, mischief (x2), possession of a weapon (x2), possession of a weapon (x2), uttering a death threat, break and enter and forcible entry arising from an incident involving his ex-girlfriend and her male friend. The trial judge ordered a 60 day assessment to determine whether the Applicant could be designated as a dangerous offender. These offences occurred when the Applicant was on statutory release for a charge of aggravated assault.

[6] According to the Applicant, the assessment of forensic psychiatrist, Dr. Klassen found the Applicant presented with a high risk for violent recidivism for 10 years, but suggested there was a reasonable possibility of eventual control of the risk in the community. The trial judge designated the Applicant a long term offender and sentenced him to 10 years in prison to be followed by a 10 year period of supervision. In 2007, the Ontario Court of Appeal quashed the 10 year prison sentence followed by a 10 year period of supervision and designated the Applicant a dangerous offender. The Applicant asserts he is no longer a dangerous offender having completed all treatment programs geared towards his needs as outlined in his Correctional Plan and his risk to the safety of the public has been diminished through treatment. He advises, the Parole Board mindful of public safety and relying upon static factors in their decision-making will not release the Applicant unconditionally or at all. He therefore seeks unconditional release through habeas corpus relief citing Section 24(1) of the Charter.

[7] The Applicant’s security rating has been gradually reduced over the years to the point where he is currently incarcerated at Bath Institution, a medium security open egress facility in which he enjoys open access including, a key to his single room. He is now being detained, as he sees it, beyond that risk period contemplated by the forensic specialist nominated by the crown. In his application, Mr. Little provides numerous excerpts from his prison file which speak to his cooperation, motivation, understanding particularly of violence and how he now possesses the ability to identify and dispute his past thinking errors and beliefs. He has learned a number of coping skills and gained insight into his pattern of abusive behaviour and his testing shows he has made gains in controlling his physical aggression. The above is not meant to be an exhaustive list as his application includes many more positive comments about his progress.

[8] The Respondents rely on the fact there is a comprehensive statutory scheme governing offenders serving an indeterminate sentence. Section 761(1) of the Criminal Code provides... The Parole Board of Canada (Board) shall, as soon as possible after the expiration of seven years from the day on which that person was taken into custody and not later than every two years after the previous review, review the condition, history and circumstances of that person for the purpose of determining whether he or she should be granted parole… and, if so, on what conditions.

[9] The Parole Board exercises its jurisdiction pursuant to s. 102 of the Corrections and Conditional Release Act (CCRA) and must be satisfied the offender will not, by reoffending, present an undue risk to society before the expiration according to the law of the sentence the offender is serving; and the release of the offender will contribute to the protection of society by facilitating the reintegration of the offender into society as a law-abiding citizen. The offender has a right of appeal to the Appeal Division of the Board, on grounds the Board failed to observe a principle of fundamental justice; made an error of law; breached or failed to apply a policy adopted pursuant to s. 151(2); based its decision on erroneous or incomplete information; or acted without jurisdiction or beyond its jurisdiction, or failed to exercise its jurisdiction.

[10] Finally, the decisions of the Appeal Division are subject to judicial review by the Federal Court with an appeal to the Federal Court of Appeal as a right, and with leave, to the Supreme Court of Canada.

[11] The Respondents also rely on the fact the Applicant’s case has been reviewed regularly by the Board in accordance with the requirements of the statutory scheme noting in January 2010, the Board denied the Applicant day and full parole because the Applicant posed a high risk of violent reoffending if released. In December 2011, day and full parole were again denied given the risk he would reoffend if released, and in November 2013, day and full parole were again denied, noting he presented in the high range of risk for both violent and general recidivism. The Applicant was advised of his right to appeal and he is still within the time period permitted to appeal the most recent decision of the Parole Board.

[12] With respect to the Applicant’s issues, the Respondents submit the threshold issue is whether this court ought to decline to exercise its habeas corpus jurisdiction because a comprehensive expert scheme exists; and if the court decides to exercise its jurisdiction, the issues for a habeas corpus application are as follows: whether there is a deprivation of liberty; and whether the deprivation is unlawful.

APPLICANT’S POSITION

[13] The Applicant advises this application is not a collateral attack on the decision of the Court of Appeal designating him as a dangerous offender. In addition, it is not a collateral attack on any decision of the Parole Board not to release the Applicant.

[14] The Applicant submits having been totally cured his continued detention violates his rights against cruel and unusual punishment. The Parole Board of Canada is without jurisdiction to release the Applicant unconditionally. Habeas corpus is the only recourse available to unconditionally regain his freedom.

[15] The Applicant submits the current use of the designation of dangerous offender here is made to further punish the offender rather than to ensure proper supervision of the offender upon completing a sentence. He submits he is no longer a risk to reoffend. See, Gallichon v. Canada (Commissioner of Corrections), 101 C.C.C. (3d) at page 414.

[16] He submits his continued detention or restraint by conditions of the Parole Board surpass rational bounds of treatment and accordingly, is excessive to all standards of decency. See Gallichon; and continued detention will be cruel and unusual punishment violating the offender’s Charter Rights.

[17] He submits the only remedy to challenge his continued detention is habeas corpus, as neither the Parole Board nor the Federal Court has jurisdiction to release the offender unconditionally because neither has jurisdiction to deal with the original indeterminate sentence.

RESPONDENTS’ SUBMISSIONS

[18] The Respondents acknowledge deprivation of liberty occurs because of the Applicant’s continuing detention. See Dumas v. Leclerc Institution. This triggers his right to bring a habeas corpus application, but they submit the court must decline to exercise its habeas corpus jurisdiction because a comprehensive expert scheme exists in the form of the Parole Board, the Federal Court, Federal Court of Appeal, and with leave, an appeal to the Supreme Court of Canada. See May v. Ferndale, 20005 SCC 82

[19] The Respondents submit recent appellate jurisprudence has made it clear that provincial superior courts should decline to exercise their habeas corpus jurisdiction where there is a comprehensive expert statutory scheme in place and the CCRA provides such a complete, comprehensive, and expert procedure for the review of Board decisions. See R. v. Latham, 1997 1833, Ontario Court of Appeal, John v. National Parole Board, 2011 BCCA 188, and R. v. Graham, 2011 ONCA 138.

[20] The Respondents refer the court to R. v. Lyons, 1987 25 (SCC), [1987] 2 SCR 309 where the Supreme Court found the indeterminate sentencing scheme did not violate the Charter and recognized the importance of the parole review process . Justice La Forest held “it is clear that an enlightened inquiry under s.12 of the Charter must concern itself, first and foremost, with the way in which the effects of punishment are likely to be experienced. Seen in this light, therefore, the parole process assumes the utmost significance for it is that process alone that is capable of truly accommodating and tailoring the sentence to fit the circumstances of the individual offender.”

[21] The Respondents submit in the alternative, indeterminate detention with regular review is constitutional: the Applicant’s detention is therefore lawful. While conceding the Applicant is deprived of his liberty thus satisfying the first requirement of habeas corpus, his detention is entirely lawful and therefore the second requirement for habeas corpus is not met.

[22] In Lyons, the Court considered whether indeterminate detention violated sections 7, 9, 11 and 12 of the Charter and concluded it did not, finding that statutorily mandated regular review of indeterminate sentences by the Board is an important safeguard to the constitutionality of the legislative scheme. Furthermore, the Applicant does not allege that any provisions in the statutory scheme have not been complied with nor does he allege any errors were committed by the Parole Board.

[23] Addressing sections 7 and 9 of the Charter, the Applicant’s detention is not arbitrary and is in accordance with the principles of fundamental justice: he is detained pursuant to a sentence of the court made under a statutory provision of the Criminal Code affirmed as constitutional, and the sentence has not been overturned by any appeal.

[24] As for s. 12, the court should leave to the usual sentencing appeal process the task of reviewing the fitness of the sentence and this section will only be infringed where the sentences are so unfit, having regard to the offence as to be grossly disproportionate. Citing Cory J in Steele…. The test for determining whether a sentence is disproportionately long is very properly stringent and demanding….. The continuing detention of a dangerous offender sentenced pursuant to the constitutionally valid provisions of the criminal code will only violate s.12 of the Charter when the National Parole Board errs in the execution of its vital duties of tailoring the indeterminate sentence to the circumstances of the offender... Since any error that may be committed occurs in the parole review process itself, an application challenging the decision should be made by means of judicial review from the National Parole Board decision, not by means of an application for habeas corpus. It would be wrong to sanction the establishment of a costly and unwieldy parallel system for challenging a Parole Board decision. As well, it is important that the release of a long-term inmate should be supervised by those who were experts in this field.

[25] The Respondents submit the Applicant has failed to establish any Charter breach.

ANALYSIS AND CONCLUSION

[26] In his oral submissions, the Applicant stresses the following:

a. he acknowledges and accepts full responsibility for his long record of wrongdoing including violent acts and his designation as a dangerous offender which are “static” factors which forever influence anyone reviewing his file whether the reviewer is a psychologist or the Parole Board;

b. by focusing on the past, it seems no matter how much effort he has made to reform since incarceration, he cannot overcome the “static” factors which identify him as a high risk;

c. he has changed--- he has successfully completed all prison programs identified as helpful to him and there have been many. He has endorsed Christianity. Having been successfully treated, he says he is cured; there is nothing left to do;

d. he was identified as a 10 year risk by Dr. Klassen and he has served more than 12 years which is disproportional, making his punishment cruel and unusual;

e. Parliament and the courts now stress the safety of the public where earlier rehabilitation of the offender was the primary focus; and

f. the statistics of release of dangerous offenders by the Parole Board are so low that there are “slim prospects” of him being returned to the community. Having been successfully treated with no further programs to take he is just being “warehoused.”

ANALYSIS AND CONCLUSION

[27] Appellate decisions since May v. Ferndale while acknowledging the Superior Court has concurrent jurisdiction to grant habeas corpus have consistently followed the approach the CCRA does provide a complete, comprehensive and expert procedure and the Superior Court should decline jurisdiction. The issue in Graham, an Ontario Court of Appeal decision, while not a case dealing with a dangerous offender but a case of parole suspension challenged by habeas corpus held it was a matter for the Parole Board. In Latham, the Saskatchewan Court of Appeal dealt with the case of a dangerous offender who had served 19 years and found it was for the Parole Board to review. Finding nothing of significance which would allow the court to distinguish the present case from the appellate decisions and applying stare decisis, the application for habeas corpus is dismissed.

[28] If declining jurisdiction is an error, I am still satisfied the applicant’s sentence of dangerous offender is not unlawful and does not offend his Charter rights given dangerous offender sentences have been declared constitutional by the Supreme Court of Canada.

[29] At the time of this hearing, Mr. Little was 45 years of age. Based on age alone, one would expect he would be somewhat less likely to violently reoffend or re-offend at all. However, in the November 2013 decision of the Parole Board, the Board noted Mr. Little was reluctant to accept that two more recent psychological assessments, one in 2011 and another in 2013 continue to rate him as a high risk psychopathic offender who is not ready for any form of conditional release without first further cascading to a minimum-security institution and participating in a series of escorted temporary absences. The Applicant again pointed out while this testing was done by experts, the high risk rating created by his original static testing skewed his overall results. It is his belief minimum security, escorted, then unescorted passes may never occur because of the skewed results.

[30] The Applicant relies upon the Gallichon decision. It has comments helpful to Mr. Little’s submissions, but the two offenders, Mr. Gallichon and Mr. Little, are quite different. Both have a number of offences, including some with violence, but there are still concerns about the risk Mr. Little presents while Mr. Gallichon was described as a “nuisance” offender who “having regard to the length of his incarceration, his record in recent years of non-violence, his age (66) and health, and the lack of any indication that he presents a danger to anyone, but himself” makes these two cases distinguishable.

[31] Having found the Applicant’s sentence is not arbitrary and the Supreme Court of Canada has decided the designation of dangerous offender does not offend his Charter rights, and lacking the expertise to determine the risk of the Applicant if returned to the community, I cannot accede to the request to release him unconditionally and the Application is dismissed.

Belch J.

Released: December 16, 2013

COURT FILE NO.: CR-13-488-MO
DATE: 2013 Dec 16

ONTARIO
SUPERIOR COURT OF JUSTICE

BETWEEN:

GARY LITTLE

Applicant

– and –

THE WARDEN OF BATH INSTITUTION and ATTORNEY GENERAL OF CANADA

Respondent

HABEAS CORPUS DECISION

Belch, J.

Released: December 16, 2013