Court File and Parties

Court File No.: CR-19-2-MO Date: 2020 May 26 Superior Court of Justice - Ontario

Re: Gary Little And: Attorney General of Canada and the Warden of Bath Institution

Before: Honourable Madam Justice Helen MacLeod-Beliveau

Counsel: Mr. Gary Little, self-represented, Applicant Mr. Kirk Shannon, for the Respondent

Heard: Written Submissions

Costs Endorsement

[1] The applicant, Gary Little, brought an application for habeas corpus with certiorari in aid based upon the Charter of Rights and Freedoms in relation to his continued detention. In written reasons released in Little v. Canada (Attorney General), 2020 ONSC 865, Mr. Little’s application for habeas corpus was dismissed. Costs were reserved for written submissions. I have now received and considered written submissions from both the applicant and the respondent.

[2] The essence of Mr. Little’s complaint was that his continued detention was unwarranted and was as a result of unlawful administrative assessments and recommendations provided to the Parole Board by Corrections Canada’s correctional staff. Mr. Little’s core objection was that he was being required and coerced, in his words, to apply for minimum-security classification in order to be considered for parole.

[3] The respondent’s Bill of Costs claims $10,644.50 for fees at the partial indemnity rate, and $17,740.83 at the full indemnity rate and disbursements of $457.37. The time spent and the disbursements made I find to be reasonable.

[4] The respondent, in its written submissions claims costs at the partial indemnity rate totalling $11,101.87, inclusive of disbursements, but has reduced its costs claim to the nominal amount of $750.00 payable to the Receiver General of Canada. The respondent acknowledges that Mr. Little’s personal circumstances are that he is of limited financial means. Mr. Little has filed a copy of his inmate trust account showing nominal savings.

[5] Costs in habeas corpus proceedings can only be awarded where the nature of the matter is characterized as civil. Examples of civil issues in habeas corpus applications where costs have been awarded are matters arising from prison discipline, transfer decisions, and seeking release from segregation. There is no jurisdiction to award costs in habeas corpus applications where the nature of the habeas corpus application is criminal in nature. Examples are the expiry date of a sentence of imprisonment, or parole revocation resulting in re-incarceration. (see Canada (Attorney General) v. Samuel, 2019 ONCA 555).

[6] I agree with the respondent’s submission that the matter at issue in this application is civil, rather than criminal, in nature. Mr. Little challenged the assessments and recommendations made by correctional staff sent to the Parole Board who re-assessed Mr. Little’s dangerous offender status as required by law. I held that those assessments and recommendations are not reviewable “decisions” by this court on a habeas corpus application.

[7] I find that a costs award is available in habeas corpus cases of a civil nature in the discretion of the hearing judge. I will therefore consider the respondent’s request for costs.

[8] This is Mr. Little’s fourth failed habeas corpus application on related grounds. Mr. Little had it drawn to his attention on his dismissed application before Hurley, J. on May 31, 2018 that costs can be an issue in habeas corpus applications. Hurley, J considered costs on the third habeas corpus application on related grounds as an abuse of process but chose to warn Mr. Little instead of making any costs award against him. The application before me is Mr. Little’s fourth dismissed related habeas corpus application and costs are being sought by the respondent payable by Mr. Little.

[9] I agree with the reasoning in Wood v. New Brunswick (Warden of Atlantic Institution), 2014 NBQB 135, at paras. 66-70 where it was held that costs follow the cause. Every litigant in a civil matter, including an inmate, must assess the monetary risks should they be unsuccessful, while at the same time, without costs becoming a roadblock to access the remedy of a writ of habeas corpus.

[10] The quantum of costs awarded are assessed in the sole discretion of the judge hearing the matter, in consideration of each case’s individual circumstances.

[11] There have been a significant number of costs awards made in habeas corpus applications of a civil nature. The most cited and reviewed case is Wood v. New Brunswick (Warden of Atlantic Institution). In that case, nominal costs of $750.00 were awarded.

[12] The following are a few examples of costs awarded in habeas corpus applications of a civil nature in Ontario, where the law has been reviewed: a. R. v. Elgundy, Bracebridge Court File 07-09, 2009 10-09; 2009 ONCA 738 ($2,000.00); b. Hertrich v. Her Majesty the Queen, 2010 ONSC 6334 ($4,000.00); c. R. v. Campbell, 2010 ONSSC 6619 ($7,000.00); d. Tyler v. Attorney General of Canada, 2015 ONSC 1283 ($1,000.00); e. Karafa v. The Attorney General of Canada, 2016 ONSC 2604 ($5,000.00); f. Oliver v. Attorney General (Canada), 2010 ONSC 6431 ($5,000.00).

[13] I agree with the reasoning in these cases that costs should generally follow the cause in a civil matter, subject to the discretion of the hearing judge.

[14] Mr. Little failed to acknowledge and assess his position in this habeas corpus application on a reasonable basis and knew there was a risk of costs being awarded against him. Costs in this case are necessary to bring to Mr. Little’s attention that he cannot bring these applications without any personal financial risk if he is unsuccessful. In the exercise of my discretion, I find that the respondent is entitled to costs as sought in the nominal amount of $750.00. The reduced amount claimed I find is reasonable and warranted in this case. I find this amount to be fair and proportionate in all the circumstances and that Mr. Little can pay this nominal cost amount as ordered.

[15] An order shall issue that Gary Little shall pay costs fixed in the amount of $750.00 to the respondent, The Attorney General of Canada, made payable to the Receiver General of Canada.

MacLeod-Beliveau J. Date: May 26, 2020