COURT FILE NO.: CV-19-622796
DATE: 20191213
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
ANDREW NEWMAN
Applicant
– and –
ATTORNEY GENERAL OF CANADA
Respondent
Andrew Newman, in person
James Schneider, for the Attorney General of Canada
HEARD: December 11, 2019
REASONS FOR DECISION
F.L. Myers J.
The Application
[1] Mr. Newman applies for damages for breach of his rights under the Charter of Rights and for prerogative relief concerning his parole status. For reasons that I will explain below, the application must be reformulated on procedural grounds.
[2] I am not able to determine Mr. Newman’s principal claim under the Charter of Rights relating to a search of his car because there is not enough evidence in the written record to allow me to make the factual assessments needed to decide that issue. If Mr. Newman wants to proceed with his Charter claims before this court, he needs to use an “action” procedure under
Rule 14.03(1) of the Rules of Civil Procedure, RRO 1990, Reg 194. An action is an evidentiary process in which the parties equip the court with all evidence required to make a fair decision summarily or in a full-blown trial if necessary.
[3] Mr. Newman’s other claims relating to his parole terms are not claims that can be heard in this court.
[4] As I am resolving this application on procedural grounds, I will only refer to evidence necessary to explain my decision. This is by no means a complete recitation of the parties’ cases. I am not making any findings of fact on contested evidence in this decision.
Background Facts
[5] On April 20, 2017, Mr. Newman was convicted of almost 300 criminal charges arising from his online contacts with more than 1,300 boys. He was 19 years old. He pleaded guilty to 76 charges of internet luring of a child under 18; 12 charges of extortion; 76 charges of printing or publishing child pornography; 82 charges of possession of child pornography; 34 charges of making sexually explicit material available to children under 18; 4 charges of distributing child pornography; and 2 charges of accessing child pornography.
[6] After applying credit for pre-trial custody, the court sentenced Mr. Newman to a jail term of just over 2 years and 10 months.
[7] The judge also imposed several conditions on Mr. Newman under s.161 of the Criminal Code. Under one of the conditions, Mr. Newman could access the internet on a computer that blocked access to social media and P2P sites if he was under the direct and continuous supervision of his mother.
[8] The Attorney General notes that not only was Mr. Newman a prolific offender, he was also resourceful. After the police seized his home computer, he was able to pursue his unlawful activities on other devices involving another 49 young victims in a short period of time.
[9] By decision dated July 10, 2018, the Parole Board of Canada granted pre-release day parole to Mr. Newman. It imposed several conditions upon him. He was required to live in a halfway house. In addition, he was not to own, use, or possess any device “that would allow [him] unsupervised access to the internet”.
[10] The parole condition is stricter that the condition imposed under s.161 of the Criminal Code by the trial judge. Mr. Newman says that the stricter term was improper because it conflicts with the sentencing condition in violation of the Release Conditions set out in Parole Board’s Decision-Making Policy Manual for Board Members, at para. 7(d).
[11] At the halfway house, Mr. Newman questioned the validity and interpretation of the parole condition as compared to his sentencing condition to a degree that staff at the halfway house found inappropriate. They felt he was lacking accountability for his crimes and that he was resisting conditions that were imposed to mitigate the risk of Mr. Newman reoffending. Mr. Newman says that in purporting to raise concerns as a result of things he said, the staff violated his right to freedom of expression under s.2(b) of the Charter of Rights.
[12] Mr. Newman bought a car and parked it at the halfway house. He was not yet licenced to drive although he had a G1 learner’s permit. Staff at the halfway house noticed that Mr. Newman was spending significant time sitting alone in his parked car. He could not drive it without a licenced driver. They suspected that he might be trying to access the internet from his car. They decided to search the car.
[13] The halfway house requires all residents to sign an acknowledgment of its rules. Among the rules is a provision that staff may search any vehicles on site on reasonable grounds.
[14] On searching Mr. Newman’s car, staff found a duffel bag hidden in the back. It contained a laptop computer, an X-Box, flash drives, a SIM card, documentation showing that Mr. Newman had purchased a data plan, a wi-fi booster, and a towel.
[15] Mr. Newman was re-arrested. He says he was not told why nor read his rights. However, the only sworn evidence before the court is from the arresting officer who says he did both of those things.
[16] The Parole Board held a hearing and revoked Mr. Newman’s parole.
[17] Mr. Newman’s mother filed a letter with the Parole Board claiming that the computer and equipment belonged to her and she forgot it in the car after her last visit. In its decision dated December 20, 2018, the Parole Board recited the following:
At the post suspension interview, you appeared not to know why you were suspended and were reminded that computer-related items were found in your vehicle. You stated you could have those items with your mother, but your CPO reminded you that you were not to have these items accessible without the direct supervision of your mother. You then changed your approach, stating that your mother forgot to take the bag with the electronics and she was going to get them later. You did not see any issue with this as you had simply forgot the bag was there. You claimed you put it out of sight so you would not be tempted.
[18] Mr. Newman explained that in his post suspension interview, when he told the CPO the truth she did not believe him, so he told her that he had hid the bag of electronics to avoid temptation to try to convince her to believe that he had done no wrong. In response to my question from the bench, Mr. Newman confirmed to me that in order to convince people to believe him, he will say things that are not true. He then reiterated that he did not move the bag to avoid temptation. He had just said that to the CPO.
[19] Returning to the narrative, Mr. Newman appealed the Parole Board’s decision to revoke his parole and the decision was upheld.
[20] Mr. Newman was then classified as a medium risk and assigned to a medium-security penitentiary as a result. He challenges these decisions as well. He says he should have been assigned to a minimum-security facility. He argues that the officials put too much emphasis on his convictions and did not see the good work that he had done in jail toward reformation. He argued that he had done nothing wrong at the halfway house and he is neither a security-risk nor a risk to the public.
[21] Finally, Mr. Newman advised the court that as a result of the revocation of his parole, the calculation of his mandatory release date was extended under s. 127 of the Corrections and Conditional Release Act, SC 1992, c 20. As a result, although he has now been released, he was released later than he otherwise would have been. Furthermore, he is now required to stay at another halfway house rather than being released unconditionally to stay at home. He contests these outcomes as well. None of the facts recited in this paragraph are in evidence.
The Relief Sought
[22] In his Notice of Application, Mr. Newman seeks, among other things,
a. Habeas corpus with certiorari in aid under s.10(c) of the Charter of Rights and a remedy under s. 24(1) of the Charter for breach of his rights under ss.2(b), 7, 8, 9, 10(a), 12, and 24(2) of the Charter;
b. Damages for breach of his Charter rights;
c. An order quashing the revocation of his parole;
d. An order quashing the decision of Corrections Canada to send him to a medium-security jail;
e. An order requiring that he be released from prison if he is still incarcerated when the application is heard. At the hearing, Mr. Newman said he now only needs an order quashing the conditions attached to his mandatory release so that he can live at home instead of being confined to a halfway house;
f. A declaration that offenders on parole do have rights;
g. A declaration that Mr. Newman’s rights were violated; and
h. Should the court find even a single violation of Mr. Newman’s rights, an order for an investigation into other administrative decisions by the violating decision-maker;
Habeas Corpus
[23] In a proceeding for habeas corpus, this court has jurisdiction to hear claims brought by a person to challenge the lawfulness of restrictions imposed on the person’s liberty by government. However, the Supreme Court of Canada has ruled that the court should decline to exercise its jurisdiction to review decisions that restrict a person’s liberty where there is another “complete, comprehensive and expert procedure for review” of the decision. See: May v Ferndale, 2005 SCC 82 at para. 44.
[24] In R. v Graham, 2011 ONCA 138, the Court of Appeal ruled that the parole system under the Corrections and Conditional Release Act is a complete, comprehensive, and expert process for review of parole decisions. Absent exceptional circumstances, therefore, it ruled that this court should exercise its discretion to decline to hear habeas corpus applications concerning decisions taken under the parole statutory regime.
[25] Mr. Newman has availed himself of his right to hearings before the Parole Board and appeals. He could also have sought judicial review in the Federal Court.
[26] On Mr. Newman’s recitation of the facts, even if taken as proven, I see no exceptional circumstances that could enable this court to entertain challenges to the decisions to revoke Mr. Newman’s parole, to assign him to a medium-security facility, or to add a condition to his recent release requiring him to stay at a halfway house. Those decisions were made under or subject to the federal Corrections and Conditional Release Act and the regulations, policies, and procedures under that statute. Mr. Newman has or had full rights to challenge those decisions under the statutory procedures and in the Federal Court.
No Charter Relief on a Habeas Corpus Application
[27] A proceeding for habeas corpus involves a quick court process to consider the legality of restrictions on a person’s liberty. They are deemed urgent proceedings. In Brown v Canada (Public Safety), 2018 ONCA 14 the Court of Appeal held that claims for damages under the Charter must be made in separate legal proceedings so as not to interfere with the urgent habeas corpus process.
[28] In addition, Charter cases require evidence. For example, Mr. Newman asserts with great force that the search of his car violated his right to be secure against unreasonable search and seizure under s.8 of the Charter. The determination of whether a search is reasonable turns first on whether Mr. Newman had a reasonable expectation of privacy in his car while at the halfway house. That decision depends on an analysis of the “totality of the circumstances.” The circumstances include, the subject matter of the search; Mr. Newman’s interest in the subject matter of the search; whether Mr. Newman held an expectation of privacy in the subject matter of the search; and whether any such expectation was objectively reasonable. See: R v Cole, 2012 SCC 53, at para. 40.
[29] Based on the information before me, there are numerous factual and legal issues to be considered just on the search issue alone such as: who owned the electronics in the car; whether the electronics were usable by Mr. Newman to access the internet unsupervised; whether he expected his car to be a private place to hide contraband in light of the rules of the halfway house; whether Mr. Newman was spending an inordinate amount of time in his car so as to raise reasonable suspicion; whether Mr. Newman could see children at a school bus stop from his parked car; whether the decision to search the car was reasonable; whether the rules of the halfway house allowing searches on reasonable grounds were lawful.
[30] I cannot decide any of these issues without proper evidence.
The Need for an Action
[31] Mr. Newman filed a thick record with an affidavit that listed and attached most of the relevant documents that he required. But Mr. Newman did not tell his side of the story in his affidavit. During the hearing before me, he offered several times to take the witness stand to swear to the truth of the things he was telling me from the counsel table. Prior to the hearing, Mr. Newman had not cross-examined the halfway house and parole officials on their affidavits. He did not file sworn evidence contradicting them.
[32] Mr. Newman’s Charter claims remain to be resolved on their merits. But they are not asserted with particularity in Mr. Newman’s material. In my view, the most efficient manner of proceeding is to dismiss the claims relating to probation decisions in paras. 1 (habeas corpus),4,5,6,7,8,9, and 11 in the Notice of Application dated June 27, 2019. I convert the remaining claims in paras. 1 (s.24(1) remedy), 2, 3, 10, and 11 of the Notice of Application to an action. If Mr. Newman wishes to proceed with those claims, he shall serve on the Attorney General and file a statement of claim for those heads of relief on or before March 1, 2020. Mr. Newman may not include in the statement of claim any of the claims dismissed in this decision or his putative claim to strike the condition in his current parole requiring him to live at a halfway house. Those claims may be brought in the proper parole process if Mr. Newman is so advised.
Costs
[33] The Attorney General seeks costs of $25,519.77 on a partial indemnity basis. The hours and proposed rates set out in the Attorney General’s Costs Outline are reasonable in my view. Its material was very thorough. It provided a full factual record and an analysis on the procedural issues as well as substantive analysis. Mr. Schneider’s factum and oral submissions were equally thorough and very helpful. I find it appropriate to mention that he also maintained a professional detachment in court, pointing out issues, referring to cases on both sides, and remaining above the fray in a manner that was most fitting and appreciated.
[34] Mr. Newman brought a civil proceeding to seek to redress perceived wrongs and to claim monetary compensation. Section 131 of the Court of Justice Act, RSO 1990, c C.43 provides the court with a discretion to order a party to pay legal costs to the other party. The normative approach in Ontario is for the unsuccessful party to pay the successful party indemnity for a part of its legal expenses.
[35] Most of Mr. Newman’s claims have been dismissed. The rest must effectively start again with a different kind of process. The Attorney General is the successful party.
[36] Mr. Newman suffered from a lack of legal advice. While the court can and does assist self-represented parties to ensure that they understand the issues at play, I cannot rehabilitate a lawsuit that does not state legally cognizable claims. Mr. Newman brought claims that do not lie in this court. He brought claims that are moot. He brought claims that need evidence without providing his own testimony. He brought claims together that must be brought separately. He brought some claims that appear to be frivolous. Others may state a case but even for those Mr. Newman does not seem to understand the role of credibility and reliability in the assessment of contested facts. He asserts repeatedly his view that he did no wrong and presents no risks to the public including online youth. He allows no possibility that others may quite reasonably see things differently. The professional experience, detachment, and objectivity of a lawyer are necessarily unavailable to a party with no legal experience who represents himself or herself in court. Moreover, unless one believes that legal education, practice experience, and advocacy skills are of no value, there can be no complete levelling the playing field for self-represented litigants who lack the knowledge and skills attributes of a lawyer. Furthermore, no one can apply professional objectivity to one’s self. I urge Mr. Newman to seek the advice of an experienced civil litigation lawyer before deciding to proceed further with an action.
[37] While I understand that Mr. Newman feels he has been treated unlawfully and he has yet to have a full hearing on the merits, he brought the wrong legal proceeding and caused the Attorney General to incur substantial public funds to respond. It is entitled to some indemnification for its costs in the ordinary course. I am concerned to ensure that any costs award be fair and reasonable overall, that it be proportionate to the value of the matters in dispute, and that it not be so high as to impede access to justice. To that end, the amount should be within a range that a litigant ought reasonably to have expected to pay if he or she is not successful. I have considered these guiding principles and the factors in Rule 57.01. It is my order that on or before March 1, 2020, Mr. Newman shall pay the Attorney General of Canada its costs of this proceeding on a partial indemnity basis fixed in the amount of $12,000 all-inclusive.
[38] I waive any requirement that Mr. Newman approve the form or content of the formal order implementing this decision.
F.L. Myers J.
Released: December 13, 2019
COURT FILE NO.: CV-19-622796
DATE: 20191213
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
ANDREW NEWMAN
Applicant
– and –
ATTORNEY GENERAL OF CANADA
Respondent
REASONS FOR DECISION
F.L. Myers J.
Released: December 13, 2019