COURT FILE NO.: CR-15-180-00MO DATE: 20200122 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

STEVEN FORSTER Applicant – and – THE INSTITUTIONAL HEAD OF MILLHAVEN PENITENTIARY AS DIRECTED BY THE COMMISSIONER OF CORRECTIONS Respondent

Counsel: Paul Slansky, for the Applicant Stephen Kurelek, for the Respondent

Heard: 9 October 2019

Mew J.

Reasons for Decision

(Application for habeas corpus with certiorari in aid)

1Stephen Forster has been in prison for over 31 years.

2On 23 February 1988, Mr. Forster pleaded guilty to sixteen child sexual offences under the Criminal Code, including two counts of assault, two counts of abduction of a person under 14, four counts of unlawful confinement, four counts of sexual assault, two counts of uttering threats and two counts of gross indecency. In respect of ten of those counts which were characterised as personal injury offences under the then applicable sections of the Criminal Code, Mr. Forster was found to be a dangerous offender, and given an indeterminate sentence of imprisonment. On the remaining six counts, he was sentenced to two years on each count, those sentences to run concurrently with the indeterminate sentence. A ten year weapons prohibition order was also made.

3Mr. Forster now applies for the following relief:

a. An order quashing the warrant of committal dated 23 December 1988; and b. An order granting his immediate and unconditional release from prison.

4The applicant also seeks a ruling that portions of the responding record filed by the respondent in connection with this application are inadmissible.

Procedural History

5The offences for which Mr. Forster was convicted took place in five episodes over a 37 day period in September and October of 1987. Each episode involved a different adolescent boy.

6Mr. Forster, who was represented by counsel, entered guilty pleas on 23 February 1988 in the District Court of Ontario. Dilks D.C.J. made findings of guilt based on the facts placed before the court. The applicant was remanded in custody pending sentencing “with all necessary warrants to issue for such purpose and to enable [Mr. Forster] to be transported to and from the Oakridge division of the mental health centre at Penetanguishene for pre-sentence observation, evaluation and assessment”.

7A psychiatric report of Dr. Angus McDonald, a consultant psychiatrist at the Mental Health Centre, Penetanguishene, was delivered on 21 April 1988.

8On 27 April 1988, the case was adjourned at the request of Crown counsel to permit the Crown to seek the consent of the Attorney General of Ontario to initiate a dangerous offender application in respect of Mr. Forster.

9The Attorney General having provided his consent to initiate the dangerous offender application on 12 June 1988, the matter was spoken to on 13 June 1988, and further put over to facilitate an examination of Mr. Forster by Dr. Basil Orchard, a psychiatrist nominated by the defence. Dr. Orchard’s report was provided on 20 October 1988.

10On 22 December 1988, Judge Dilks found Mr. Forster to be a dangerous offender. He provided oral reasons for his decision on 23 December 1988, and pronounced the court’s sentencing decision at that time.

11In 1995, the Court of Appeal for Ontario heard a sentencing appeal, in the course of which Mr. Forster asserted that Judge Dilks had erred in his assessment of the evidence with respect to (a) the prospects for Mr. Forster’s treatment and cure and the need for an indeterminate sentence; and, (b) his understanding of the applicable burden of proof and the issues required to be addressed in proceedings under the dangerous offender provisions of the Criminal Code. On 23 June 1995, the Court of Appeal dismissed the appeal: the Court’s endorsement is reported at 1995 ONCA 501.

12On 15 December 2001, Mr. Forster brought a habeas corpus application that was ultimately dismissed by Madam Justice MacLeod-Beliveau on 17 December 2003, without prejudice to Mr. Forster bringing a new application, citing proper grounds. Her decision was subsequently upheld by the Court of Appeal on 21 June 2005 “without prejudice to the appellant’s rights to commence proceedings in the Superior Court or in the Federal Court, as may be appropriate, with regard to his various grievances”.

13Mr. Forster commenced the current application on 5 October 2014. On 28 May 2015, counsel for the Attorney General of Canada, representing the respondent, filed a motion to have the application dismissed, purporting to rely upon Rule 21.01(3)(a) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, which permits a defendant to move before a judge to have an action dismissed or stayed where “the court has no jurisdiction over the subject matter of the action”.

14On 11 May 2017, the respondent’s motion was granted and, consequently, the habeas corpus application was dismissed on the basis that it was “an attempt to circumvent the appeal rights that were available to [Mr. Forster] and which he has exercised”: reasons for decision reported at 2017 ONSC 2865.

15Mr. Forster successfully appealed the dismissal of his application for habeas corpus. In reasons reported at 2019 ONCA 91, Trotter J.A. for the Court of Appeal held, inter alia, that civil procedure rules had no application to a habeas corpus proceeding and ordered that the matter should be remitted to the Superior Court of Justice for a full hearing on the merits. A request by Mr. Forster to have the habeas corpus claim adjudicated on its merits by the Court of Appeal was turned down, with Trotter J.A. noting that the record before this court was incomplete as a result of “the respondent’s misplaced motion to strike”.

16Further evidence has now been placed before this court (subject to the court ruling on the admissibility of some of that evidence).

17The additional evidence includes certain Correctional Service Canada (“CSC”) records, introduced under cover of an affidavit of James Bromilow, a paralegal employed in the Legal Services Section of CSC. Counsel for the applicant gave notice that he wished to cross-examine Mr. Bromilow on his affidavit. I convened a telephone case conference with counsel to discuss this. It was agreed that counsel for the applicant would, initially, deliver written questions. This was done and answers were provided. Counsel for the applicant was not satisfied with the responses provided and renewed his request to cross-examine Mr. Bromilow, but time was an issue as an adjournment of the hearing would likely have been required to do so. Ultimately, the objections raised by the applicant notwithstanding, the application elected to proceeded with the hearing of the application as scheduled (rather incur further delay).

Preliminary Issue

18The applicant objects to the inclusion in the respondent’s record of two categories of documents, namely (a) records produced from the files of the Ministry of the Attorney General; and (b) records maintained by Correctional Services Canada including periodic reviews of Mr. Forster’s sentence conducted by the Parole Board of Canada (and its predecessor).

19The basis for the objection to the Ministry of Attorney General records being included appears to be relevance. The documents were not before Judge Dilks or the Ontario Court of Appeal.

20The respondent argues that the Attorney General documents are admissible and relevant because they either (a) relate to how the Solicitor General of Canada was provided with copies of Mr. Forster’s psychological reports; or, (b) underscore the validity of Mr. Forster’s 1988 remand or his ability to challenge his dangerous offender designation.

21I am satisfied that these documents are no more or no less relevant than much of the other material included in the record pertaining to what was going on in and around the time between Mr. Forster’s guilty plea, his sentencing, and the subsequent appeal. They provide context. Such an approach is consistent with the principle that on an application for habeas corpus, a court can consider affidavit or other extrinsic evidence to determine whether there has been an absence or an excess of jurisdiction: R. v. Miller, 1985 SCC 22, [1985] 2 S.C.R. 613.

22The main thrust of the applicant’s evidentiary concerns relates to the CSC records. While the applicant concedes that if there is a finding by this court that the punishment that was imposed on Mr. Forster by Dilks D.C.J. was greater than that which he might lawfully have imposed, it would be open to me, pursuant to s. 777(2) of the Criminal Code, to impose a lawful punishment, and that in such an eventuality, the CSC records would be relevant, at this juncture the applicant says that they should not form part of the record.

23The applicant argues that correctional records are created for correctional purposes and that Mr. Forster has a reasonable expectation of privacy in relation to the personal information contained in such records. Mr. Forster’s correctional records should not be included without similar safeguards to those that would apply in other third party record situations being implemented. In other words, the respondent should have brought an O’Connor application (R. v. O’Connor (1995), 1995 SCC 51, 103 C.C.C. (3d) 1 (S.C.C.)) or obtained a search warrant. Absent the deployment of these safeguards, the use of the third party records amounts to an illegal search and seizure, contrary to Mr. Forster’s rights under s. 8 of the Canadian Charter of Rights and Freedoms. Mr. Forster further argues that where the predominant purpose for the creation of the record is other than for criminal law purposes, the subsequent use of that record in criminal proceedings amounts to a fresh search and seizure: R. v. Colarusso, 1994 SCC 134, [1994] 1 SCR 20 (use of a bodily sample requested by a coroner pursuant to the Coroners Act which was subsequently used for law enforcement purposes without regard to the stringent prerequisites of searches for such purposes and, thus, an encroachment of an accused person’s s. 8 Charter rights); R. v. Jarvis, 2002 SCC 73, [2002] 3 S.C.R. 757 (information obtained pursuant to the audit powers of Revenue Canada subsequent to the commencement of an investigation into potential criminal liability of the taxpayer amounts to a breach of the reasonable expectation of privacy guaranteed by s. 8 of the Charter Rights and Freedoms and, hence, cannot be used for the purposes of establishing the taxpayer criminal liability).

24The applicant emphasises that he is not taking the position that the CSC records should be formally excluded for all purposes. He does not argue that the creation of the records violated his Charter rights. Rather, he says that the use of that evidence would render consideration of the merits of his habeas corpus application unfair, either at common law, or under s. 24(1) of the Charter of Rights and Freedoms and, consequently, it would be both just and convenient to exclude such evidence at this stage: R. v. Harrer, 1995 SCC 70, [1995] 3 SCR 562 at para. 43. This would be without prejudice to further consideration of whether the CSC records should be considered if the warrant of committal is set aside and, hence, the application of s. 777 of the Criminal Code is considered.

25The Crown argues that the CSC records are admissible and relevant because they respond to Mr. Forster’s requested relief that he be released into the community. Furthermore, the records do not belong to Mr. Forster. They are records compiled by CSC pursuant to its statutory duties.

26According to the Crown, the CSC records are also required to enable the court to fully appreciate the public safety concerns raised by the respondent as a ground for this court to decline jurisdiction over Mr. Forster’s request (about which more is said below).

27Furthermore, s. 8(2)(d) of the Privacy Act, R.S.C., 1985, c. P-21, permits the Attorney General of Canada to obtain “personal information under the control of a government institution [such as Correctional Service Canada]… for use in legal proceedings involving the Crown in Right of Canada or Government of Canada”. While the named respondent is the Institutional Head of Millhaven, s. 5(d) of the Department of Justice Act, R.S.C., 1985, c. J-2, provides that the Attorney General “shall have the regulation and conduct of all litigation for or against the Crown or any department, in respect of any subject within the authority or jurisdiction of Canada. Hence, the respondent argues, it is entitled to rely on the evidence in its record to make full answer and defence to the allegations and assertions made by Mr. Forster.

28I indicated, at the outset of argument on the preliminary issue, that in the event that I found that the warrant of committal should be quashed, I would hear further argument as to what the consequences of that should be and, in particular, whether the court’s powers under s. 777 of the Criminal Code could be invoked. To that extent, the CSC records are of limited assistance to me at this juncture. Having said that, as will be discussed at greater length later in this decision, the availability and conducting of periodic reviews by the Parole Board of Canada in accordance with the schedule set out in s. 695.1 of the Criminal Code is relevant to an evaluation of whether the procedural safeguards set out by the Supreme Court of Canada in R. v. Lyons, 1987 SCC 25, [1987] 2 S.C.R. 309, in respect of dangerous offender determinations, have been observed.

29In evaluating the applicant’s argument that an O’Connor-type procedure would be appropriate prior to admission of the CSC documents as part of the responding record, there is an important distinction to be made between, on the one hand, the use of such records as part of the evidence in a criminal trial, where the issue is the guilt (or otherwise) of an accused person and, on the other hand, a determination of the validity of the warrant of committal on the basis of various errors that are said to have been made in relation to the dangerous offender application, which in turn produced the warrant. Although I agree with the applicant that the CSC records are of no assistance to me in determining whether errors were made by the trial judge in 1988, they are, as I have indicated, relevant to the relief that he is requesting. Furthermore, they are relevant to the public safety concern raised by the respondent in support of its position that the court should decline jurisdiction.

30Ultimately, the relief requested by the applicant is that he be released. Even though I am not, at this stage, deciding what, if any, remedy the applicant may be entitled to, it would be irresponsible of me to exclude the CSC records. That having been said, I have considered them only to the limited extent that they (a) demonstrate the fulfillment of the state’s responsibilities to Mr. Forster as a designated dangerous offender, as established by the Supreme Court of Canada in Lyons, or (b) are relevant to the Crown’s public safety arguments.

31Accordingly, I will not accede to the applicant’s request that I exclude the portions of the respondent’s record that he objects to.

Substantive Issues

32The parties frame the issues and the analytical process to be undertaken in relation to those issues somewhat differently. The applicant summarises his challenge to the validity of the warrant of committal, through what he describes as “a collapsed habeas corpus and s. 24(1) Charter application” based on a lack of jurisdiction of the sentencing court to designate Mr. Forster as a dangerous offender. This lack of jurisdiction is said to arise from a number of errors, including but not limited, to the following:

a. The unlawful manner of psychiatric remand; b. The lack of notice in advance of the remand; c. A failure to comply with statutory pre-conditions; d. Proceeding with a portion of the dangerous offender application in the absence of Mr. Forster; e. Ineffective assistance of counsel; and f. The sentencing judge’s failure to exercise discretion.

33According to the applicant, any one of these errors of law should vitiate the dangerous offender order. Since it was not possible in 1988 to appeal Mr. Forster’s designation as a dangerous offender, he argues that his only means of redress is through a writ of habeas corpus to quash the unlawful and unconstitutional warrant of committal.

34In response to the applicant’s articulation of the basis of his application, the respondent frames the issues to be determined as follows:

a. Should the court exercise its discretion to decline jurisdiction? b. Has the applicant suffered an unlawful deprivation of liberty as a result of his dangerous offender designation? c. Has the applicant raised a legitimate ground on which to question the legality of his alleged deprivation of liberty? d. Can an ineffective assistance of counsel claim be advanced by way of application and, if so, has such a claim been established?

35I will review and analyse the issues raised by the parties using the structure of argument set out in the respondent’s factum.

Should the court exercise its discretion to decline jurisdiction?

36To better frame this issue, I can do no better than repeat para. 11 of the decision of Trotter J.A. in Forster v. Canada (Correctional Service), 2019 ONCA 91:

The importance of habeas corpus can hardly be understated. The right to test the validity of one's detention by habeas corpus is guaranteed by s. 10(c) of the Charter. The scope of the protection afforded by this right is complex and has required guidance from the Supreme Court of Canada on many occasions. In May v. Ferndale Institution, 2005 SCC 82, [2005] 3 S.C.R. 809, the Court held that there is a limited power in the Superior Courts to decline to exercise habeas corpus jurisdiction. LeBel and Fish JJ. wrote, at para. 44:

Habeas corpus should not be declined merely because another alternative remedy exists and would appear as or more convenient in the eyes of the court... Only in limited circumstances will it be appropriate for a provincial superior court to decline to exercise its jurisdiction. For instance, in criminal law, where a statute confers jurisdiction on a court of appeal to correct a lower court and release the applicant if need be, habeas corpus will not be available...Jurisdiction should also be declined where there is in place a complete, comprehensive and expert procedure for review of an administrative decision. [Emphasis added.]

37The respondent argues that this habeas corpus application fits within both of the identified exceptions in May v. Ferndale. In addition, the respondent argues that jurisdiction should be declined because of the inherently problematic nature of the remedy sought by the applicant, namely, his immediate and unconditional release.

38The first of the May v. Ferndale exceptions relates to the right of appeal. It is common ground that Mr. Forster exercised his right of appeal against the sentence imposed by the District Court.

39The Criminal Code in 1988 contained the following right of appeal:

694(1) A person who is sentenced to detention in a penitentiary for an indeterminate period under this Part may appeal to the court of appeal against that sentence on any ground of law or fact or mixed law and fact.

40This provision has been interpreted by the Ontario Court of Appeal as permitting an appeal against the sentence of indeterminate detention, but not the finding of dangerous offender: R. v. Langevin (1984), 1984 ONCA 1914, 45 O.R. (2d) 705 (C.A.). Nevertheless, the court in Langevin added that in deciding whether to quash the sentence, an appellate court must necessarily consider whether the finding of dangerous offender was justified in fact and law.

41The respondent argues that because the Court of Appeal is conferred with the jurisdiction to correct any errors in an offender’s conviction or sentence, it was open to the Court of Appeal to consider a challenge to Mr. Forster’s dangerous offender designation. Examples of where the Court of Appeal has done just that can be found in Langevin, supra., R. v. Sullivan (1987), 27 C.C.C. (3d) 143 (Ont. C.A.) and R. v. Currie (1995), 1995 ONCA 1057, 26 O.R. (3d) 444 (C.A.).

42In each of the cases cited by the respondent, the Court of Appeal considered the soundness, based on the evidentiary record, of the trial court’s finding that the appellant was a dangerous offender. In the present case, however, the applicant argues that there were procedural and jurisdictional errors made by the sentencing judge which render unsafe his finding that Mr. Forster was a dangerous offender.

43The record before me gives no indication that, in 1995, the Court of Appeal was asked to consider procedural or jurisdictional errors which could have had a bearing on the finding that Mr. Forster was a dangerous offender. Rather, the focus was almost entirely on the evidence and the applicable criteria relevant to the issue of dangerousness and the sentencing judge’s exercise of his discretion to make a dangerous offender finding. This is apparent not only from the relatively brief decision of the Court of Appeal but, also, from a review of the factums filed by Mr. Forster and the Crown.

44The respondent suggests that it was open to Mr. Forster, as part of his appeal, to raise the issues that he now advances in support of his habeas corpus application. The respondent points to a letter written in 1990 by a lawyer acting on behalf of Mr. Forster, indicating an intention to appeal the dangerous offender designation. Having had such an opportunity, but not having pursued it, the respondent argues that Mr. Forster should not be entitled to raise them via habeas corpus application, having now exhausted his statutory right of appeal.

45In R. v. Farinacci (1993), 1993 ONCA 3385, 109 DLR (4th) 97 (Ont. C.A.), a five judge panel of the Court of Appeal, in obiter comments at para. 24, observed that the principles of fundamental justice in Canada, as they have evolved, provide an entitlement to some form of review of convictions resulting in imprisonment, whether by way of statutory appeal, or in the absence of such right, by way of prerogative writ.

46In my view, it would be contrary to fundamental principles of justice for there to be no avenue for reviewing whether procedural and jurisdictional errors were made by the sentencing judge and, if so, whether the resulting warrant for committal of Mr. Forster for an indeterminate sentence as a dangerous offender was validly issued. Given the clear finding by the Court of Appeal in Langevin that the legislation then in force (and equally applicable to Mr. Forster’s case) did not empower a court to quash the finding of dangerous offender, I find that the first May v. Ferndale exception does not apply to the present application.

47The respondent observes that where an inmate has exhausted all of his appeal options, yet maintains that he is a victim of a miscarriage of justice, he can apply to the Minister of Justice under s. 696.1 of the Criminal Code for a review of his case, including his designation as a dangerous offender. Accordingly, the Crown argues, Mr. Forster does have access to a remedy. The difficulty with this argument is that s. 696.1(1) expressly refers to the exhaustion of a person’s “rights of judicial review or appeal”. I would interpret the phrase “judicial review” to include an application for habeas corpus with certiorari in aid. Mr. Forster either has a right of appeal or, if he has no such right, he is entitled to a judicial review of the validity of his detention. Having decided that Mr. Forster did not have a right to appeal his dangerous offender designation because of procedural and jurisdictional errors said to have been made by the sentencing judge, it would be irrational (and unfair) for me to decline jurisdiction to entertain a judicial review of the validity of his detention before such rights had been exhausted.

48The second May v. Ferndale exception – that jurisdiction should also be declined where there is in place a complete, comprehensive and expert procedure for review of an administrative decision – is said to arise from the fact that it is within the jurisdiction of the Parole Board of Canada, pursuant to s. 102 of the Corrections and Conditional Release Act, S.C. 1992, c. 20, to grant parole to any offender based on the principles of risk management and reintegration. The applicable provision of the Criminal Code in force at the time that Mr. Forster was sentenced provided for an initial review by the Parole Board after three years of custody, and thereafter, every two years, for the purpose of determining whether he should be granted parole and, if so, on what conditions.

49I do not read May v. Ferndale as saying that even if an error was made which led to an erroneous finding, and such finding is not appealable, habeas corpus should be denied if, notwithstanding the impugned decision which has resulted in an individual’s imprisonment, the individual is entitled to a parole review, and such parole reviews are judicially reviewable. In other words, if, because of jurisdictional or procedural errors, a wrong decision was made which led to an individual’s incarceration, that individual should not be entitled to judicial review if he can appear in front of the Parole Board. Such an argument would be contrary to the generally non-discretionary nature of habeas corpus.

50A third reason put forward by the respondent why this court should decline jurisdiction over Mr. Forster’s habeas corpus application arises from the public safety and policy concerns that flow from the nature of the remedy which Mr. Forster seeks, namely, his unconditional release into the community. Back in 1988, as succinctly summarised by the Court of Appeal in its 1995 decision, the two psychiatrists had testified that Mr. Forster suffered from “homosexual pedophilia or hebophilia, and from an anti-social personality disorder”. The Court of Appeal concluded that the prognoses of these doctors were “very guarded” with neither of them giving any “real assurance of a cure or of any improvement”.

51In declining Mr. Forster’s most recent request for parole in December 2018, the Parole Board of Canada noted that overall, Mr. Forster continues to present a moderate to high risk for general, violent and sexual recidivism. Given, as the Supreme Court noted in Lyons, that “the fundamental purpose of the criminal law generally, and of sentencing in particular, [is] the protection of society”, the court should be concerned about the remedy being requested.

52Another aspect of the policy concerns raised by the respondent is, essentially, a “floodgates” type of argument that if the scope of habeas corpus applications is expanded to include matters properly pursed via a statutory appeal, then lower courts across the country would be vulnerable to similar claims from applicants who have exhausted their statutory appeal rights but who still wish to challenge their conviction, sentence or designation. As the Court of Appeal for Ontario emphasised in R. v. H(E) (1997), 1997 ONCA 418, 33 O.R. (3d) 202 (C.A.) at para. 34, finality is an important goal of the criminal process. Once the broad appellate rights conferred by statute have been exercised, then, absent a right to appeal to a higher court, finality concerns must become paramount.

53The respondent also submits that entertaining Mr. Forster’s habeas corpus application would implicitly conflict with the 1995 decision of the Court of Appeal upholding Judge Dilks’ decision.

54I am not pursued by any of the so called “problems” raised by the respondent with respect to the nature of the remedies sought by Mr. Forster.

55To be sure, there would be public safety concerns if, having found fault with the basis for the warrant of committal, I were to unconditionally release Mr. Forster into the community without further consideration of the appropriateness of doing so. But, as already indicated, that is not going to happen. Even if I were to effectively quash Mr. Forster’s dangerous offender designation, I would have to consider the applicability of s. 777 of the Criminal Code and, if I find it to be applicable, likely determine what a lawful punishment should have been.

56As to the floodgates argument, it has no application given that Mr. Forster did not have a statutory right of appeal against his dangerous offender designation in the first place. Because his challenge to that designation is based not on whether the judge properly found that he was “dangerous” but, rather, because of procedural and jurisdictional errors said to have been made by the judge, this is not a situation in which the court is, effectively, being asked to reopen an appeal.

57Flowing on from that, I do not accept that I am implicitly contradicting the 1995 decision of the Court of Appeal. As I have already indicated, the question of procedural or jurisdictional errors and their effect was not before the Court of Appeal, and even if it had raised, it might well be that the Court of Appeal, applying Langevin, would not have accepted that it had jurisdiction to quash the dangerous offender designation on such ground.

58For the foregoing reasons, I find that this Court does have jurisdiction to consider Mr. Forster’s application for habeas corpus with certiorari in aid by way of a full hearing on its merits.

Has the applicant suffered an unlawful deprivation of liberty as a result of his dangerous offender designation?

59In Dumas v. Leclerc Institution, 1986 SCC 38, [1986] 2 S.C.R. 459, the Supreme Court of Canada ruled that, in the context of correctional law, habeas corpus is available to challenge three different deprivations of liberty:

a. An initial deprivation; b. A substantial change in conditions amounting to a further deprivation of liberty; and c. A continuation of the deprivation of liberty.

60As Lamer J. explained in Dumas, the original use of habeas corpus was to challenge the warrant of committal. But the law evolved so that the continuation of an initially valid deprivation of liberty could be challenged by way of habeas corpus if it became unlawful.

61In the present case, the applicant challenges the warrant of committal, that is, the initial deprivation of his liberty. That deprivation of liberty, of course, has continued since December 1988.

62The respondent argues that the applicant has failed to cite a single case where habeas corpus has been used successfully to challenge an initial deprivation. Rather, the cases relied on by the applicant – R. v. Gamble, 1988 SCC 15, [1988] 2 S.C.R. 595, Steele v. Mountain Institution, 1990 SCC 50, [1990] 2 S.C.R. 1385 and Gallichon v. Canada (Commissioner of Corrections) (1995), 1995 ONCA 1649, 101 C.C.C. (3d) 414 (Ont. C.A.) – are cases of lawful detention “gone bad”, not initial deprivations. These cases have been described as having limited scope: see, generally, Lee v. Canada, 2018 ABQB 40.

63The apparent dearth of precedents involving applications for habeas corpus challenging the initial deprivation of liberty is really not that surprising. Situations where there is and never has been a statutory right of appeal of a determination that has resulted in an individual’s imprisonment are rare indeed. The Criminal Code has subsequently been amended to expressly provide for the appeal of a dangerous offender designation: Criminal Code, s. 759(3). There will, accordingly, be few, if any, other people in detention, now or in the future, in the same or a similar situation to Mr. Forster.

64In short, I am satisfied that Mr. Forster is entitled to ask the court to review the validity of the initial deprivation of his liberty as a result of the dangerous offender designation that was made.

Has the applicant raised a legitimate ground (or grounds) on which to question the validity of the deprivation of his liberty?

65The constitutionality of the Criminal Code’s dangerous offender regime was reviewed by the Supreme Court of Canada in R. v. Lyons. In finding the dangerous offender regime to be constitutionally valid, the Supreme Court set out seven procedural safeguards for dangerous offender applications:

a. The consent of the Attorney General for the bringing of a dangerous offender application; b. The giving of proper notice to the offender; c. The right for the offender to nominate his or her own psychiatrist; d. The opportunity for the offender to attend the hearing; e. The offender’s ability to appeal his or her sentence; f. The requirement for the Solicitor General to be provided with copies of the psychological, psychiatric and criminological evidence and observations of the sentencing court; and g. The review of the offender’s sentence by the Parole Board three years after its imposition and every two years thereafter.

66The respondent asserts that all of these procedural safeguards were met and, hence, the legality of Mr. Forster’s detention cannot be validly impugned.

67The applicant disputes this and points to further procedural and jurisdictional errors that occurred prior to his designation as a dangerous offender, namely:

a. There was no jurisdictional foundation for the sentencing judge to order a psychiatric remand following Mr. Forster’s guilty pleas; b. Mr. Forster was not notified that the psychiatric remand would, or could be used, for the purposes of a dangerous offender application; c. No judicial determination concerning the propriety of proceeding with the dangerous offender procedure had been made prior to obtaining the psychiatric report from Dr. McDonald; d. Submissions on the dangerous offender hearing did not take place in the presence of Mr. Forster; e. Dilks D.C.J. made a clear error in concluding that, if the criteria set out in the dangerous offender provisions of the Criminal Code were satisfied, he had no discretion and was required to make a dangerous offender finding.

68I will deal with each of these procedural or jurisdictional irregularities in turn.

Psychiatric Remand

69The record of proceedings before Dilks D.C.J. on 23 February 1988 discloses that, following the court’s acceptance of Mr. Forster’s guilty pleas and the proposal by the Crown that Mr. Forster should be remanded “for sentencing” with an order for observation and pre-sentence evaluation at the Oakridge division of the mental health centre at Penetanguishene, the judge specifically asked counsel where in the Criminal Code he was provided with the authority to do what was being requested.

70Thereafter, various provisions were suggested to the judge by both the Crown and defence counsel, none of which seemed to be directly on point. The judge’s discomfort is evident from the transcript. Ultimately, however, he was persuaded that the order could be made.

71The respondent now says that, although not cited to the judge, what was then s. 15 of the Mental Health Act, R.S.O. 1980, c. 262 provided the court with the requisite authority to remand the applicant in the manner that he did. Section 15 (the current equivalent provision being s. 21) provided as follows:

(1) Where a judge has reason to believe that a person who appears before him charged with or convicted of an offence suffers from mental disorder, the judge may order the person to attend a psychiatric facility for examination. (2) Where an examination is made under this section, the senior physician shall report in writing to the judge as to the mental condition of the person.

72In R. v. Lenart, 1998 ONCA 1774 at para. 51, Finlayson J.A., for the Court of Appeal, observed that s. 15 of the Mental Health Act:

… provides a mechanism to furnish the court with information that may assist with sentencing, and is consistent with co-operation with respect to mental health and criminal matters…

See also R. v. Jaser, 2015 ONSC 4729 at para. 24 where Code J. noted that the legal test in what is now s. 21(1) of the Mental Health Act has nothing to do with fitness to stand trial or with criminal responsibility.

73The record of proceedings discloses that the proposal to remand Mr. Forster for a psychiatric examination was a joint submission by both the prosecution and the defence. There was no reference to a potential dangerous offender application. Rather, the objective was to obtain a psychiatric assessment as part of the pre-sentence report process.

74Mr. Forster’s submissions relating to the psychiatric remand focus on the lack of authority to order a psychiatric remand under the pre-sentence report provisions of the Criminal Code, or to remand a guilty person for a psychiatric assessment for dangerous offender purposes (as opposed to a determination of an individual’s fitness to stand trial or to be sentenced). Mr. Forster also points out that even if those provisions of the Criminal Code did authorise a psychiatric remand, statutory preconditions would have to have been met including, in the case of a remand for psychiatric assessment, evidence that the person was mentally ill, based on the report of at least one medically qualified practitioner.

75I do not agree. As the decisions in Lenart and Jaser make clear, the Mental Health Act does provide a vehicle for obtaining a psychiatric assessment as part of the sentencing process. I found the decision in Jaser particularly instructive in that regard.

76That case involved two individuals, Esseghaier and Jaser, who were alleged to have engaged in conspiracies to derail a passenger train for the benefit of a terrorist group and to commit murder for the benefit of a terrorist group. They were subsequently convicted (although their convictions have since been set aside due to irregularities with the jury selection process as a result of which new trials have now been ordered: R. v. Esseghaier, 2019 ONCA 672).

77Mr. Esseghaier represented himself throughout the trial. He remained silent in the presence of the jury throughout the trial, having taken the position that the trial should not be conducted under the Criminal Code but, rather, under the Holy Qur’an. Mr. Justice Code described Mr. Esseghaier’s decision to represent himself as “completely coherent”, noting that he was a highly educated, intelligent, adult man who had no difficulty representing himself during pre-trial motions.

78After guilty verdicts were received from the jury, amicus curiae, appointed by the court, was given an expanded role on sentencing in order to provide the judge with any and all evidence and submissions that would assist the court in determining the appropriate sentence for Mr. Esseghaier. A pre-sentence report was ordered, and Mr. Esseghaier was urged to cooperate with the probation officer who had prepared the report and with amicus. As Code J. noted, at para. 22, Mr. Esseghaier provided a full account of his antecedents and his current views about the index offences to the probation officer. Furthermore, when the report was filed in court, he made a number of corrections and agreed that the probation officer could also interview his parents.

79On one of the remand hearings pending sentencing, counsel for Mr. Jaser, who was represented, advised the court that he was having a private psychiatric assessment of Mr. Jaser completed for the sentencing hearing. Subsequently, amicus counsel also brought a motion, seeking a psychiatric assessment of Mr. Esseghaier.

80After noting that there is no provision in the Criminal Code providing for a psychiatric assessment pending sentence, Code J. considered the authority provided pursuant to s. 21 of the Mental Health Act and the Lenart decision. Amicus counsel conceded that Mr. Esseghaier was both fit to stand trial and that he did not meet the statutory test for lack of criminal responsibility. However, amicus counsel argued that the mental health assessment would assist with sentencing, specifically to determine whether Mr. Esseghaier did or did not suffer from a mental disorder, since this would relate to his degree of moral culpability. Reference was made to certain changes in Mr. Esseghaier’s behaviour as his religious extremism had developed, as well as to a small number of incidents that had occurred in court. Amicus counsel conceded that religious fervour provided no evidence of mental disordered, but nevertheless submitted that there was a body of evidence that was suggestive of mental illness.

81Code J. was ultimately persuaded to make an order for Mr. Esseghaier to be assessed at the Centre for Addiction and Mental Health in Toronto. In so doing, he said, at para. 25:

I concluded that it was close case, as to whether there was sufficient evidence of a mental disorder to justify a psychiatric assessment under the Mental Health Act. However, Esseghaier had given his consent to the assessment and I held that it would be helpful on sentencing to know, “whether there is something about Mr. Esseghaier’s personality structure that makes him susceptible to religious extremism and that led to his radicalisation after his arrival in Canada… and that some kind of mental disorder may be relevant… in relation to that issue.

82I refer to Jaser at length because it represents an example of where a psychiatric assessment was ordered without any of the pre-conditions to psychiatric assessments that are would be required under the Criminal Code having been met, and, in particular, without any medical evidence having been provided to suggest that Mr. Forster was, or might be, mentally ill.

83While, in the present case, there was no substantive discussion about the possibility of mental illness, the fact that a joint submission was made on behalf of the prosecution and the defence for a medical assessment no doubt provided Dilks D.C.J. with sufficient comfort to persuade him that the psychiatric remand would be appropriate.

84I am satisfied that the psychiatric remand ordered by Dilks D.C.J. was authorised in law, albeit that the Mental Health Act was not cited as the source of the judge’s jurisdiction.

85The issue of a dangerous offender application appears to have surfaced for the first time shortly after the delivery of Dr. McDonald’s report. Counsel appeared on 27 April 1988, at which time, the Crown asked for the matter to be put over to permit the Crown Attorney to seek the consent of the Attorney General to make a dangerous offender application.

86The Attorney General’s consent was provided on 12 June 1988. A notice of application by the Crown to have Mr. Forster declared a dangerous offender was commenced on 13 June 1988. Counsel for the prosecution and the defence appeared before Dilks D.C.J. that day. After noting that the consent of the Attorney General had been filed, Judge Dilks endorsed the record as follows:

Crown nominates Dr. Angus McDonald (whose report is already on file) and the defence, Dr. Basil Orchard, under s. 690. Order under s. 691 remanding offender to Metro West Detention Centre for the purposes of immediate examination by Dr. Orchard and then return to his prison place of confinement. S. 689(1)(b) notice filed. Mr. Clarke [defence counsel] admitting service thereof this date.

87Mr. Forster advances a number of concerns about the procedure that was followed.

Lack of Notice That Report Would be Used for Dangerous Offender Application Purposes

88In the first place, he argues that even if there was a jurisdictional basis for him to be remanded, following his guilty pleas, for the purposes of a psychiatric evaluation, he was not informed that the resulting report could be used for the purposes of launching a dangerous offender application. This was not just a procedural matter. Mr. Forster, through his counsel, cooperated with the request for a psychiatric remand as part of the process of obtaining pre-sentence reports to assist the court in its sentencing responsibilities.

89As a result of my conclusion that Dilks D.C.J. did have authority to order a psychiatric assessment of Mr. Forester pursuant to s. 15 of the Mental Health Act, I would not give effect to Mr. Forester’s arguments that there was no jurisdictional foundation for that order.

Lack of Notice of Dangerous Offender Application

90The next concern relates to the issue of notice of the Dangerous Offender application itself.

91There was no mention of a dangerous offender application when the Crown wrote to the Director of Oakridge Psychiatric Hospital requesting an assessment of Mr. Forster. Nor did Dr. McDonald mention a dangerous offender application in his 21 April 1988 report. His apparent purpose was to simply provide a psychiatric assessment that would aid in the sentence process. It was only as a result of his diagnosis/risk assessment and the indication that Mr. Forster should be treated for his sexual disorder, that the Crown requested an adjournment from 27 April 1988 to 10 June 1988 in order to seek the consent of the Attorney General for a dangerous offender application.

92As the Court of Appeal observed in Lenart, at para. 31:

…from practical perspective, it is difficult in most cases to determine at the outset, when the trial judge determines that a psychiatric remand is necessary, what the psychiatric remand will produce and the significance of the remand for the trial.

93Section 688 of the Criminal Code in force in 1988 addressed the circumstances in which an application for a finding that an individual is a dangerous offender can be made. Section 689 provided that the application could not be heard unless:

a. the Attorney General of the Province in which the offender was tried had, either before or after the making of the application, consented to the application; b. at least seven days’ notice had been given to the offender following the making of the application outlining the basis on which it was intended to found the application; and c. a copy of the notice of application had been filed with the appropriate court.

94The annotations by Edward L. Greenspan in Martin’s Annual Criminal Code 1988 (Aurora: Canada Law Book Inc.) state at p. 697:

There is no minimum period of time for giving notice of the intention to seek an order under this Part. It is sufficient if the application is made in Court in the presence of the accused. Thereafter the Court should adjourn the proceedings to permit the Crown to give the accused the notice in writing as required by this paragraph outlining the basis on which it is intended to found the application.

95Section 690 of the Code dealt with evidence of dangerous offender status and, in particular, the nomination of psychiatrists. Mr. Greenspan’s annotation notes, at page 698, that at least at the stage where the Crown is merely considering whether or not to bring a dangerous offender application, an accused may refuse to speak to a psychiatrist retained by the Crown and refuse to converse with anyone should he be remanded to a psychiatric facility after conviction.

96Referring to Langevin, Mr. Greenspan also notes that an offender is not compelled to testify at a dangerous offender hearing nor required to cooperate with the psychiatrists.

97Mr. Forster’s complaint is that, by the time he was served with the Crown’s notice of application to have him declared a dangerous offender, he had already been assessed by Dr. McDonald. The endorsement by Dilks D.C.J. reflected a retrospective nomination of Dr. McDonald as one of the evaluating psychiatrists.

98Even if the procedure followed was irregular (and I am not convinced that it was), it is difficult to see how Mr. Forster was prejudiced. The Crown could, theoretically, have asked for a further report from Dr. McDonald or even nominated another psychiatrist to provide a report expressly for the purposes of the dangerous offender application. Instead, the Crown elected to rely on the report that it already had from Dr. McDonald. Dr. Orchard was nominated on Mr. Forester’s behalf to provide a second report. Everything proceeded with the consent of counsel.

99Furthermore, Dr. Orchard reached the same conclusion as Dr. McDonald. Both experts agreed that Mr. Forster met the dangerous offender criteria set out in s. 688 of the Criminal Code. The only issue about which the experts disagreed was whether Mr. Forster could be treated within a definite time frame. Both the decision of Judge Dilks and the subsequent decision of the Court of Appeal, make reference to that.

100Accordingly, I would not give effect to Mr. Forester’s argument that there were irregularities in the manner of which he was given notice of the dangerous offender application. Even if I am in error on the question of whether there were irregularities, I am completely satisfied that what Mr. Forster presents as irregularities did not prejudice his interests in any way.

Applicant not Present while Submissions made

101Next, Mr. Forster asserts that he was not present during part of the dangerous offender hearing.

102There is no indication from the record of proceedings on either 22 or 23 December 1988 that Mr. Forster was not present throughout. When his counsel was expressly asked whether he had any procedural complaints, he replied that he did not. I agree with the respondent’s submission that Mr. Forster’s absence would have been highly irregular and would almost certainly have been noted in the transcript of proceedings. At para. 64 of the respondent’s factum, counsel for the respondent goes on to note:

To the contrary, the transcript of the DO hearing clearly indicates that he was in attendance. Indeed, during his direct examination of Dr. Orchard, Applicant’s counsel asked the following question: “[t]he fact is that he [the Applicant] has supportive parents that are here in the court with him today, is that a positive factor?”

103Nevertheless, in his affidavit sworn on 18 December 2014 in support of his application for habeas corpus, Mr. Forster alleges that neither the Crown or defence counsel presented any arguments in his presence during the hearing of the dangerous offender application and, as a result, he was deprived as his fundamental right to make full answer and defence and to present arguments on the question of whether he was or was not a dangerous offender.

104While there is a transcript of the evidence taken at the hearing of the dangerous offender application, there is no transcript of the arguments presented by counsel. That is not unusual where both parties are represented by counsel.

105In the absence of anything in the record to indicate that Mr. Forster was not present throughout his dangerous offender hearing, I conclude that he was. I would therefore not give effect to his submission that the dangerous offender hearing (or at least a portion of it) proceeded in his absence.

Judge Failed to Exercise Discretion Because He Did Not Know That He Had Discretion

106The final concern raised by Mr. Forster is that Dilks D.C.J. did not appear to know that he had discretion whether to find or designate Mr. Forster as a dangerous offender, and a discretion whether to impose an indeterminate sentence, even when the test was met.

107The respondent concedes that Judge Dilks erred when he said that he had no discretion regarding ordering a dangerous offender designation if the requirements of what was then s. 688 of the Criminal Code were met. However, the respondent argues that the judge’s misstatement had no practical consequences because he had, in fact, reviewed Mr. Forster’s criminal record, the victim impact statements and the psychiatric evidence of both parties’ experts before he concluded that Mr. Forster was a dangerous offender.

108I agree with this submission by the respondent. A review of the oral reasons given by Judge Dilks amply supports the decision that he was a dangerous offender. Judge Dilks’ misstatement as to the non-availability of a discretion did not, on my review of the record, result in an unfair or unreasonable decision. To the contrary, I have no doubt that even if Judge Dilks had appreciated that he retained a discretion, he would still have designated Mr. Forster as a dangerous offender. His error therefore had no practical affect. I take further comfort from the fact that the Court of Appeal subsequently concluded that it was unable to find that Dilks D.C.J. had erred in exercising his discretion.

Conclusion

109For the foregoing reasons, I am not persuaded that the applicant has raised any valid basis for questioning the legality of his deprivation of liberty.

Ineffective Assistance of Counsel

110Mr. Forster asserts that the ineffective assistance of counsel caused or contributed to the dangerous offender finding. He relies on:

a. His counsel’s active participation in using the pre-sentence report process to secure a psychiatric remand and the failure to make Mr. Forster aware that this was to be used for a dangerous offender application; b. Submissions having been made in the absence of the applicant; and c. The failure of counsel to bring to the judge’s attention that the law required the exercise of discretion in the making of the designation.

111Aside and apart from whether a habeas corpus application is ever the appropriate forum in which to raise issues concerning the (in)effective assistance of counsel (as opposed to doing so by way of an appeal), I would not give effect to Mr. Forster’s arguments. To succeed in a claim of ineffective assistance of counsel, an individual must establish the facts underpinning the claim; the incompetence of the representation provided by counsel; and, that a miscarriage of justice has resulted from the incompetent representation: R. v. Cherrington, 2018 ONCA 653 at para. 25. When ineffective assistance of counsel at trial is raised as a ground of appeal, it has been noted that, for the appellant, it “is a burden that it not easily discharged”: R. v. G.D.B., 2000 SCC 22, at para. 27.

112Mr. Forster has not established the ineffective assistance of counsel. Far from it. His own psychiatric expert deemed him to suffer “from an anti-social personality disorder”, to be someone “who is basically unconscious as to the sensitivities of others and who acts only to gratify his own desires”, and who will likely “inflict severe psychological damage on persons in future through his failure [to restraint his behaviour] and that he thereby constitutes a threat to the safety or physical or mental well-being of other persons”. Furthermore, and most significantly, I have found that there was no misuse of the pre-sentence process. Nor could Mr. Forster’s counsel have known or anticipated, at the time of the psychiatric remand, that it might subsequently form the basis for a dangerous offender application. The record indicates that neither the prosecution nor the defence had turned its mind to the dangerous offender issue until after receipt of Dr. McDonald’s report. And if counsel failed to bring the judge’s attention to the law providing him with discretion not to make the dangerous offender designation, as I have already found, it would not have affected the outcome.

113Finally, as previously stated, I simply do not accept Mr. Forster’s assertion that submissions were made in his absence.

114In short, even if it were open to me to consider whether ineffective assistance of counsel could be a basis for relief on a habeas corpus application, the applicant has failed to establish that he would be entitled to such relief.

Disposition

115For the foregoing reasons, the application for habeas corpus with certiorari in aid is dismissed.

116I am grateful to counsel for their comprehensive written and oral submissions.

Mew J.