COURT FILE NO.: CR-19-2-MO
DATE: 2020 February 07
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
GARY LITTLE
Applicant
– and –
ATTORNEY GENERAL OF CANADA and the WARDEN OF BATH INSTITUTION
Respondents
self-represented
Kirk Shannon, for the Respondent
HEARD: November 22, 2019 at Kingston
MACLEOD-BELIVEAU j.
HABEAS CORPUS DECISION
[1] The applicant Gary Little brings this application for habeas corpus with certiorari in aid under section 10(c) and for a remedy under section 24(1) of the Charter of Rights and Freedoms in relation to his continued detention. Mr. Little seeks an order immediately releasing him from custody unconditionally. Mr. Little is presently serving an indeterminate sentence as a dangerous offender as a result of violent offences that he has committed.
[2] The essence of Mr. Little’s complaint is that his continued detention is unwarranted and is as a result of unlawful administrative assessments and recommendations provided to the Parole Board by Corrections Canada’s correctional staff, resulting in the Parole Board denying Mr. Little’s release on parole into the community. Mr. Little’s core objection is being required and coerced, in his words, by Corrections Canada to apply for a minimum-security classification in order to be considered for parole. Mr. Little further argues that he is therefore unlawfully detained as he cannot meet the requirements of a minimum-security classification. Mr. Little does not want to go to a minimum-security institution. What he does want is to be unconditionally released from custody into the community. Mr. Little submits that Corrections Canada has unduly and unlawfully influenced the Parole Board in its assessments and recommendations and that together with requiring a minimum-security classification for him to be considered for parole, that he has been left in a stalemate or “catch 22” position that needs to be remedied by this court by way of granting his application for habeas corpus and releasing him.
[3] The respondents ask that the application be dismissed on the basis that this court should decline jurisdiction as there is a complete, comprehensive and expert procedure for review of administrative decisions by the Parole Board based upon the principles of risk management and reintegration as set out in Part II of the Corrections and Conditional Release Act (hereinafter the “CCRA”).
[4] As this habeas corpus is the fourth time since 2013 that Mr. Little has brought an application for habeas corpus in the Superior Court of Ontario seeking an order for his unconditional release, I ordered transcripts of the previous hearing before Hurley, J on May 31, 2018 for my review and I ordered transcripts of this hearing on November 22, 2019 for comparative purposes which has delayed the release of my decision in this matter.
[5] On a procedural consent basis, an order shall issue that the title of proceedings is hereby amended to add the Warden of Bath Institution where Mr. Little is presently incarcerated as an additional respondent pursuant to section 23 (1) of the Crown Liability and Proceedings Act.
Issues:
[6] The issues are:
Should this court decline jurisdiction to hear this habeas corpus?
If not, has Mr. Little established that he has suffered a deprivation of residual liberty?
Further, is Mr. Little’s detention lawful if a deprivation of his residual liberty has been shown, based on section 7 (d), 9 and 12 of the Charter?
Result:
[7] The application is dismissed. I find that there is no merit in this application for habeas corpus. I decline to exercise habeas corpus jurisdiction as there is a complete, comprehensive and expert procedure for review of administrative decisions by the Parole Board based upon the principles of risk management and reintegration as set out in Part II of the Corrections and Conditional Release Act. There is no legal basis for attacking the assessments and recommendations made by correctional staff and providing them to the Parole Board for consideration at a Parole Board hearing. Further, Mr. Little has not suffered a deprivation of his residual liberty and his continued detention is lawful. This application is another impermissible collateral attack of the Court of Appeal’s conviction, sentence and designation of Mr. Little as a dangerous offender on July 27, 2007 and the subsequent decisions of the Parole Board in reviewing Mr. Little’s case. Mr. Little’s case falls squarely within the second specified exception as set out in May v. Ferndale Institution, 2005 SCC 82 for this court to reasonably decline to exercise its habeas corpus jurisdiction.
Background and Analysis:
[8] Mr. Little has a long history of extremely violent criminal behaviour and has a criminal record for 14 violent offences. Mr. Little suffers from an anti-social personality disorder, narcissistic personality traits and an alcohol abuse disorder. He has been diagnosed as a psychopath with a history of controlling and abusing his domestic partners by threatening or engaging in violent behaviour and supplying them with alcohol or street drugs.
[9] On August 21, 2002, Mr. Little was found guilty of the predicate offences of assault, assault with a weapon, mischief, possession of a weapon, uttering death threats, break and enter and forcible entry involving his former girlfriend. The offences occurred when Mr. Little was on statutory release for a charge of aggravated assault. The trial judge stated that the facts of the case were the worst partner abuse that he had seen in thirteen years where death had not resulted. After a trial, Mr. Little was found guilty. On March 3, 2004 at the sentencing hearing, Mr. Little was designated as a long-term offender and sentenced to 10 years in prison to be followed by a 10-year period of supervision. The Crown appealed the long-term offender sentence imposed.
[10] On July 27, 2007, the Ontario Court of Appeal quashed that sentence, and designated Mr. Little as a dangerous offender with an indeterminate sentence. The Court of Appeal held that there was no reasonable possibility of control of Mr. Little’s risk in the community after he attains the age of 45. There was no evidence that Mr. Little could be meaningfully treated within a definite time period, or that the resources needed to implement the supervision conditions to control his risk in the community were available, to bring his risk of future re-offending within tolerable limits. More recent reviews by the Parole Board continue to find Mr. Little to be at high risk to violently re-offend if he were released.
[11] Mr. Little was transferred into Bath Institution, a medium-security facility, on December 9, 2009. On May 1, 2017, Mr. Little was transferred on an emergency involuntary basis to Collins Bay Institution, also a medium-security facility, as a result of being involved with a Chaplain at Bath Institution being an inappropriate relationship between an inmate and a CSC staff member. On June 25, 2019, Mr. Little was then voluntarily transferred back to Bath Institution where he currently resides. There is no current application by Mr. Little to transfer to a minimum-security institution.
[12] Dangerous offender sentences are reviewed by the Parole Board as provided for in the Criminal Code, the CCRA and the Federal Courts Act. Mr. Little, who is serving an indeterminate sentence, is entitled to a review of his case within two years of his previous review, as provided in section 761 (1) of the Criminal Code. The Parole Board exercises its jurisdiction pursuant to section 102 of the CCRA by conducting hearings. Decisions of the Parole Board can be appealed to the Appeal Division of the Parole Board. Appeal Division decisions are subject to judicial review by the Federal Court as provided in sections 18 and 18.1 of the Federal Courts Act, and then as of right may be appealed to the Federal Court of Appeal. With leave, Federal Court of Appeal decisions can be appealed to the Supreme Court of Canada.
[13] Mr. Little has had his case reviewed by the Parole Board in 2010, 2011, 2013, 2015, 2017 and 2019. On March 1, 2019, Mr. Little started this application for habeas corpus in the Superior Court of Ontario. In April of 2019, the Parole Board again reviewed Mr. Little’s case.
[14] On April 26, 2019, the Parole Board denied Mr. Little parole noting his diagnosis as a psychopath and his present continued high risk to violently re-offend. Mr. Little’s current psychological risk assessments and institutional behaviour documented by correctional staff have found him to be at high risk to violently re-offend if he were to be released. Importantly, these administrative assessments and recommendations provided to the Parole Board by Corrections Canada’s correctional staff are not decisions themselves but rather part of the evidence placed before the Parole Board and nothing more. The decisions are in fact made by the Parole Board in accordance with the statutory regime outlined in the CCRA.
[15] Mr. Little is appealing the April 26, 2019 decision of the Parole Board denying him parole to the Appeal Division of the Parole Board while concurrently pursuing this habeas corpus application in this court for his unconditional release back into the community. There is a pattern, I find, in relation to the two-year reviews of Mr. Little’s case by the Parole Board and the parallel applications for habeas corpus made by Mr. Little to the Superior Court of Ontario. This present application is the fourth time since 2013 that Mr. Little has brought an application for habeas corpus in the Superior Court of Ontario seeking an order for his unconditional release concurrently with reviews and appeals by the Parole Board:
On December 16, 2013, Mr. Little’s application for habeas corpus was dismissed by Belch, J. Justice Belch declined to exercise jurisdiction as there was an alternate comprehensive expert scheme in place for the review of Mr. Little’s case based on May v. Ferndale Institution. (See Little v. Bath (Warden), 2013 ONSC 7604).
On October 18, 2017 Mr. Little’s application for habeas corpus was dismissed by Hurley, J. as being without merit. Hurley, J found that the application was a collateral attack of the sentence imposed by the Court of Appeal on July 27, 2007 and the subsequent decisions of the Parole Board. (See Transcript of oral decision, Gary Little v. Attorney General of Canada, October 18, 2017, Court File CR-17-271-MO Kingston)
On May 31, 2018 Mr. Little’s application for habeas corpus was dismissed by Hurley, J on the same basis as on the October 18, 2017 application above as a collateral attack on the order of the Court of Appeal dated July 27, 2007 and that his application was without merit. The grounds stated were s. 7 and 12 of the Charter seeking a remedy under s. 24(1). Hurley, J. considered the issue of awarding costs against Mr. Little on the basis that the application was an abuse of process, but chose instead to warn Mr. Little that future similar applications based upon Mr. Little’s lack of acceptance of the order on the Court of Appeal, the indeterminate sentence imposed, and his Parole Board reviews could be the subject of a cost order against him in the future. (See Transcript of oral decision, Gary Little v. Attorney General of Canada, May 31, 2018, Court File CR-11-18-00MO Kingston)
[16] Mr. Little submits that this habeas corpus application is not a collateral attack on the Court of Appeal’s order of July 27, 2007 or the Parole Board’s decision of April 26, 2019 refusing his parole, but rather a legitimate attack on the actions of Corrections Canada and the assessments and recommendations that staff provided to the Parole Board in the consideration of his case. I find, there is no merit to this argument.
[17] In this application, I find, that Mr. Little is in essence again making an impermissible collateral attack on the order of the Court of Appeal dated July 27, 2007 and the designation of Mr. Little as a dangerous offender requiring him to serve an indeterminate sentence, and a continuing and further attack on the subsequent decisions of the Parole Board couched in terms of objecting to correctional staffs’ assessment and recommendations put as evidence before the Parole Board. Corrections Canada’s correctional officers do not make any decisions per se. Simply put, Mr. Little is saying that he does not like the assessments and recommendations made by correctional staff that are put into evidence before the Parole Board, which, I find, is not a “decision” reviewable by this court on a habeas corpus application.
[18] Correctional staff make recommendations only, not decisions, and those recommendations, while significant, are only one factor of many factors that the Parole Board is required to consider. There is nothing significantly new here about the true nature of this application for habeas corpus as compared to the previous three habeas corpus applications which were all dismissed. On this occasion, Mr. Little has included additional complaints about the assessments and recommendations made by Corrections Canada that were provided to the Parole Board for the consideration as evidence in the review of Mr. Little’s case. While Mr. Little argues that he is not attacking the decisions of the Parole Board, I find that in fact, he is doing exactly that. I can find no impropriety in the actions of Corrections Canada correctional staff or in fact the Parole Board in reviewing Mr. Little’s case.
[19] Mr. Little further submits that Corrections Canada has wrongly classified him as medium-security inmate and that to be eligible for parole he must be classified as a minimum-security inmate. Further, Mr. Little argues that as he has been declared a dangerous offender that he is not eligible for a minimum-security designation. This assertion is simply not correct. There is nothing in the CCRA stating that because he is declared a dangerous offender that Mr. Little is ineligible for a minimum-security classification. It is possible for Mr. Little to be classified as a minimum-security risk if he meets the requirements which include consideration of both static, and importantly, dynamic factors. Further, the record reveals that Mr. Little has not recently requested consideration for a minimum-security classification and prefers to stay in medium-security at Bath Institution. Dangerous offenders can be and are transferred to minimum-security institutions after due consideration of both static factors such as the age, the nature of the index offence and the criminal record of the offender, and dynamic factors such as progress in programs, and risk assessments for violent re-offending.
[20] The assertion that Mr. Little is ineligible for parole as a medium security inmate is also simply not correct. The Parole Board is not prevented or restricted from granting parole to a medium-security inmate. Offenders in medium-security institutions have been granted parole in the past.
[21] On August 27, 2015 and April 5, 2016, Mr. Little had previously requested a transfer to a minimum-security facility. Those requests were denied. Mr. Little withdrew a subsequent request for a transfer to a minimum-security facility when he was transferred back to Bath Institution, a medium-security facility, on June 25, 2019. There at present is no request from Mr. Little to be transferred to a minimum-security facility. In 2015, the refusal to transfer Mr. Little to a minimum-security institution was based upon his continued high risk to violently re-offend, despite completing numerous programs designed to re-habilitate Mr. Little and potentially reduce his security classification to minimum.
[22] The Supreme Court of Canada has held that habeas corpus jurisdiction should not be used to create a parallel system for challenging a Parole Board decision. (See Steele v. Mountain Institution, 1990 50 (SCC), [1990] 2 S.C.R. 1385). The Parole Board has properly determined that Mr. Little is not yet parole-ready as he remains at high risk to violently re-offend. I am not prepared to ignore or second guess the expertise of Corrections Canada or the Parole Board and accept Mr. Little’s bald assertion that due to the length of time that he has been in custody, that he is now cured and of no risk to violently re-offend in the community and to release him unconditionally. Time spent in prison may not in itself justify parole and release into the community. Several other factors must be and are considered by the Parole Board in deciding whether or not to grant parole and on what terms as statutorily required.
[23] The Ontario Court of Appeal has confirmed that the Parole Board’s review and appeal regime is sufficiently complete, comprehensive and expert such that in appropriate cases, this court should decline habeas corpus jurisdiction. I find that Mr. Little’s continued detention is properly governed by the Parole Board statutory scheme and it is consistent with the Charter. There are no exceptional circumstances here warranting any exceptional relief.
[24] There is no basis to depart from the precedent and binding caselaw that this court should decline to exercise habeas corpus jurisdiction in precisely Mr. Little’s situation. It has been held that the Parole Board’s statutory regime envisioned in the habeas corpus exception articulated in May v. Ferndale Institution as set out in the CCRA, is the very type of regime that fits within this exception. (See R. v. Graham, 2011 ONCA 138). Alternatively, I would find that in any event, Mr. Little has not suffered a deprivation of his residual liberty, and that his continued detention is lawful.
Conclusion:
[25] For the above reasons, Mr. Little’s application for habeas corpus with certiorari in aid is dismissed.
Costs:
[26] If the respondents seek costs against Mr. Little, the respondents shall have until March 5, 2020 to serve and file any written submissions only on the issue of costs. Mr. Little shall have until March 27, 2020 to serve and file any written responding submissions only on the issue of costs. The respondents shall have until April 3, 2020 to serve and file reply submissions is any, after which time the issue of costs will be determined upon the written material filed.
Other:
[27] By way of obiter, this is the fourth application for habeas corpus to be considered by this court based on similar and related grounds albeit not identical grounds for relief brought by Mr. Little. This application is exceedingly similar to the application before Belch, J. decided on December 16, 2013 and shares significant grounds for relief with the two applications before Hurley, J on October 18, 2017 and May 31, 2018.
[28] If Mr. Little brings further applications seeking habeas corpus relief on similar grounds as any of the four applications for habeas corpus made to this court to date, an abuse of process and/or a request for summary dismissal of the application, could be available to the respondents, together with an order for costs payable by Mr. Little, as previously warned about by Hurley, J in his decision of May 31, 2018.
[29] I note all four of Mr. Little’s applications for habeas corpus have been dismissed and have been found to be completely without merit.
Honourable Madam Justice Helen MacLeod-Beliveau
Released: February 7, 2020
COURT FILE NO.: CR-19-2-MO
DATE: 2020 February 07
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
GARY LITTLE
Applicant
– and –
ATTORNEY GENERAL OF CANADA and the
WARDEN OF BATH INSTITUTION
Respondents
habeas corpus decision
MacLeod-Beliveau, J.
Released: February 7, 2020