Court File and Parties

COURT FILE NO.: CR-20-48-00MO DATE: 2020-10-05

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Tharshun Sivasubramaniam v. Attorney General of Canada

BEFORE: Mew J.

COUNSEL: Brian Callender, for the Applicant Heather Thompson, for the Respondent

DATED: 5 October 2020, at Kingston

ENDORSEMENT

[1] A consequence of the presence of Ontario’s two high-security penitentiaries in Kingston and Lennox & Addington respectively, is that from time to time the Superior Court in these jurisdictions receives applications for writs of habeas corpus ad subjiciendum.

[2] The applicant in this case is currently a maximum-security prisoner at Millhaven Institution, serving a five-year, nine-month sentence for trafficking in cocaine. It would appear that he was involuntarily transferred to Millhaven from Bath Institution, where he was a medium-security prisoner.

[3] The applicant seeks relief in the form of habeas corpus on the grounds that the decision to involuntarily transfer him was unreasonable and that it was procedurally unfair.

[4] The notice of application references the Criminal Proceedings Rules for the Superior Court of Justice (Ontario), SI/2012-7 (the “Criminal Rules”) and Form 1 (Notice of Application) under those rules.

[5] Rule 43 of the Criminal Rules deals with applications for Extraordinary Remedies. Subrule 43.01provides:

This rule applies to applications in criminal matters by way of certiorari, habeas corpus, mandamus, procedendo and prohibition, including applications to quash a subpoena, warrant, conviction, inquisition or other order or determination and applications for discharge of a person in custody. [Emphasis added]

[6] The Registrar at Kingston has referred this matter to me for directions following receipt of correspondence from the lawyer for the respondent which states:

… it is our view that the Notice of Application was improperly filed as a criminal proceeding. The application, for writ of habeas corpus, is not criminal in nature as it does not arise from the imposition of any penal sanction under the Criminal Code. Rather, it arises from a transfer decision in a federal penitentiary, which the Ontario Court of Appeal characterizes as civil in nature (see: Canada v. Samuel, 2019 ONCA 555 at para 16).

We request that the Court refile the application pursuant to the Rules of Civil Procedure.

[7] In Canada v. Samuel, 2019 ONCA 555, the Court of Appeal considered the authority of a court to award costs in habeas corpus proceedings. The applicant in that case had unsuccessfully challenged the revocation of his day parole through a writ of habeas corpus. The application judge had awarded costs against the applicant. The Court of Appeal concluded that parole revocation has a criminal law purpose and rationale, namely, the protection of society, and, hence, there was no jurisdiction to award costs. Sharpe J.A. wrote, at para. 16:

A habeas corpus application arising from prison disciplinary proceedings is considered a civil matter, “because it deals with an inmate’s obligation to conduct himself in accordance with prison rules rather than calling him to account to society for a crime violating the public interest” and because it relates “to the administration of the lawful sentence by public authorities, rather than the legality of the original conviction or indictment”: R. v. Campbell, 2010 ONSC 6619, at para. 1

[8] The Court of Appeal in Samuel found that it was an error for the application judge to characterise the habeas corpus application under consideration as a civil matter.

[9] Conversely, in Forster v. Canada, 2019 ONCA 91, an application judge was found to have erred when he acceded to a motion brought by the Attorney General of Canada to summarily dismiss an application for habeas corpus pursuant to Rule 21.01 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 (“the Civil Rules”), because (as found by Trotter J.A. at para. 14) the habeas corpus application in question was “criminal in nature”.

[10] Assuming, without deciding the matter, that the respondent is correct in asserting that the application now before the court is civil in nature, should the applicant be required to re-file his application under the Civil Rules (which, as an aside, would ordinarily require the payment of a $229 filing fee)?

[11] I would answer the question in the negative.

[12] Administratively the court file numbers assigned to habeas corpus applications and their place in the court’s electronic records aligns with the criminal law work of the court. Many applications are brought by inmates and involve liaison with the institution concerned for the purpose of court attendances and other logistics. This is most efficiently done by the court staff servicing the court’s criminal law work, who routinely deal with the institutions and with lawyers practising criminal law.

[13] As the Samuel case demonstrated, it is not always readily apparent whether a habeas corpus application is criminal or civil in nature. That is a determination which, at the very least, would require a review of the substance of the notice of application and, perhaps, of the evidentiary record supporting the application. It is neither reasonable or practical to expect court registrars to perform this function. Nor would it be an appropriate use of judicial resources for judges to have to triage such applications at the time of filing.

[14] Further, as a matter of access to justice, requiring applications for habeas corpus to be commenced under the Civil Rules, with the attendant additional expense and other formalities associated with civil proceedings, would inhibit the availability of the remedy to those who pursue it, many of whom are not only incarcerated, but also litigants in person.

[15] Accordingly, I direct the Registrar to accept the application in the format presented, and to administer the application as a criminal proceeding, subject to any further order that the court may make in the future.

[16] I would add that, as a review of the jurisprudence demonstrates, treating a habeas corpus application as criminal for administrative purposes does not predetermine whether, in substance, the habeas corpus relief sought is civil or criminal in nature. Nor would it preclude a request for summary disposition or the awarding of costs in an appropriate case.

Mew J.

Date: 5 October 2020