ONTARIO SUPERIOR COURT OF JUSTICE
COURT FILE NO.: 14-90000105-00MO
DATE: 20140617
BETWEEN:
VINCENZO DEMARIA
Applicant
– and –
ATTORNEY GENERAL OF CANADA AND WARDEN OF COLLINS BAY INSTITUTION
Respondents
Jessica R. Orkin, for the Applicant
Jim Kapches, for the Respondents
HEARD: June 12, 2014
SPEYER J.
[1] The Applicant, Vincenzo DeMaria, has brought an application for a writ of habeas corpus with certiorari in aid. A two-day hearing date for the application has been scheduled to commence on October 30, 2014. In advance of that hearing, the Applicant seeks the court’s direction regarding the order of filing of evidence applicable at the second stage of his habeas corpus application. Specifically, the Applicant submits he is entitled to adduce rebuttal evidence in response to the evidence that will be adduced by the Respondents in their effort to establish the legality of the Applicant’s detention.
[2] Counsel for the Respondents submits that the Applicant should be required to file all of the evidence he anticipates will be relevant in response to the Respondents’ case now, before the Respondents file their application record. It is the Respondents’ position this is standard procedure on any application. It is argued that typically, the Applicant must produce all relevant materials before the Respondents are required to respond. If any issue is raised in the Respondents’ materials which takes the Applicant by surprise, he will be permitted to reply under the rules identified in R. v. Krause, 1986 39 (SCC), [1986] 2 S.C.R. 466, at pp. 473-74.
[3] Following argument on this procedural issue, I ruled in favour of the Applicant with reasons to follow. These are the reasons.
[4] In a habeas corpus application, the applicant must demonstrate that the respondent has deprived him of his liberty, and raises a legitimate ground upon which to challenge its legality. The onus then shifts to the respondent to prove that the deprivation is legal: see Mission Institution v. Khela, 2014 SCC 24, para. 30, 78.
[5] The Applicant has filed all of the materials it will rely upon at stage one. Counsel for the Respondents concedes that the Applicant has satisfied its onus. Therefore, the burden is on the Respondents to justify the legality of the liberty deprivation. I note that during the course of argument, counsel for the Respondents indicated that it is possible that the Respondents’ application record will include material that has not yet been disclosed to the Applicant.
[6] A habeas corpus application is unusual in the sense that the respondents bear the onus on the ultimate issue. This contrasts with, for example, an application for judicial review of a correction official’s decision, in which the onus remains with the applicant to show that the respondent was in error: Khela, at para. 40.
[7] I agree with counsel for the Applicant’s submission that, in these circumstances, it is not economical, fair or in the interests of justice for the Applicant to file all of his material on the legality of the deprivation before the Respondents put their case into the record. In this regard, it is important to ensure all relevant evidence is before the court, in as focussed a manner as possible. It will waste the time and resources of all involved if the Applicant filed volumes of evidence in the hopes of anticipating the Respondents’ case. The Applicant’s production of materials and submissions will be much more tailored if he knows the case he must meet.
[8] Moreover, to require the Applicant to anticipate the Respondents’ case and to apply the strict rules of reply, at this stage of the proceeding, would neither be fair or in the interests of justice. To do so would ignore the fact that the burden falls on the Respondents, not the Applicant. This shift in the burden “is unique to the writ of habeas corpus” and “is compatible with the very foundation of the law of habeas corpus, namely, that a deprivation of liberty is permissible only if the party effecting the deprivation can demonstrate that it is justified”: Khela, at para. 40. It is not fair to ignore the shift in the onus and reject the Applicant’s request simply because it would be contrary to the procedure utilized in the normal case. Forcing the Applicant to file all of its “reply” evidence at this time would also risk unfairness to the Respondents because, if the Applicant later seeks to file reply evidence that it could have filed at first instance but did not do so, the Applicant would have “split its case”, to the detriment of the Respondents. In these unusual circumstances, it is appropriate for the court to exercise its inherent authority to control its own process and permit the Applicant’s request.
[9] Ruling in favour of the Applicant does not give the Applicant carte blanche to file whatever information it would like. The Applicant has challenged (1) whether the Respondents’ decisions were reasonable based on the information before the decision maker and (2) whether the Respondents complied with s. 27(3) of the Corrections and Conditional Release Act, S.C. 1992, c. 20, when it withheld certain parts of this information from the Applicant. One can expect that the Respondents’ evidence will address these issues, and the Applicant’s reply evidence will respond to the same.
Speyer J.
Released: June 17, 2014
COURT FILE NO.: 14-90000105-00MO
DATE: 20140617
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
VINCENZO DEMARIA
Applicant
– and –
ATTORNEY GENERAL OF CANADA AND WARDEN OF COLLINS BAY INSTITUTION
Respondents
REASONS FOR JUDGMENT
Speyer J.
Released: June 17, 2014