COBOURG COURT FILE NOS.: CV-76-20 CV-78-20 CV-79-20
DATE: 20210408
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
FRANK DORSEY COREY NEWTON GHASSAN SALAH Applicants
- and -
THE ATTORNEY GENERAL OF CANADA Respondent
- and -
JOHN HOWARD SOCIETY OF CANADA Moving Party (Proposed Intervenor)
John Provart and Benjamin Wong, for the Attorney General of Canada, respondent
Paul Quick, for the John Howard Society of Canada Simon Borys and Kate Mitchell for the applicants
HEARD: in writing
REASONS FOR RULING ON MOTION TO INTERVENE
J. SPEYER J.
A. Introduction
[1] The John Howard Society of Canada (“JHSC”) seeks leave to intervene as a party in habeas corpus applications brought by Frank Dorsey, Cory Newton and Ghassan Salah, pursuant to Rule 13.01 of the Rules of Civil Procedure. With the consent of the parties, I directed that this application be heard in writing. I have received and considered submissions from the JHSC and the respondent. The applicants support the proposed intervention by the JHSC.
[2] The applicants are inmates in penitentiaries operated by the Correctional Service of Canada (“CSC”). They have each applied, pursuant to the Habeus Corpus Act, R.S.O. 1990, c. H.1, and the Canadian Charter of Rights and Freedoms, ss. 7, 9, 10(c), and 12, for a writ of habeus corpus ad subjicendum, with certiorari in aid if necessary, for orders that they be transferred to minimum-security institutions unless the respondent, on behalf of the CSC, can justify their continued detention in a medium-security penitentiary.
[3] On January 25, 2021, pursuant to Rule 5.02 of the Rules of Civil Procedure, I ordered that these three habeus corpus applications be joined for the purpose of resolving a question of law common to each application. That question is whether habeus corpus is a remedy available to the applicants to challenge the denials of their applications for transfer to lower security prisons. The resolution of this question turns on whether denial of an inmate’s request to transfer to a lower-security institution constitutes a deprivation of liberty (“the threshold question”). The JHSC seeks to intervene in the applications only in relation to my consideration of this threshold question.
[4] Habeas corpus applications proceed in two stages. First, the applicants must show that they have been deprived of liberty and that there is a legitimate ground upon which to question the legality of their detention. If that is established, the onus shifts to the respondent to show that the deprivation of their liberty is lawful: Mission Institution v. Khela, 2014 SCC 24, [2014] 1 S.C.R. 502, at para. 30; Toure v. Canada (Public Safety & Emergency Preparedness), 2018 ONCA 681, at paras. 12 and 51.
[5] The JHSC says that if it is granted leave to intervene, it will limit its evidence and submissions to the issue of access to habeas corpus in the circumstances of denial-of-transfer cases. The JHSC does not seek leave to participate in the subsequent hearings (if any) on the individual merits of the habeas corpus applications. The JHSC will coordinate with the individual applicants to ensure that its submissions are not duplicative of those to be made by counsel for the applicants and that its intervention does not prejudice the parties or unduly delay the hearing of these matters.
B. The proposed intervenor
[6] The JHSC is an organization of over 60 local Societies dedicated to the rights, rehabilitation, and well-being of prisoners and those in conflict with the law. The JHSC has provided services and programs to assist offenders for over 30 years. One of the JHSC’s long-standing goals is to ensure that offenders successfully reintegrate into the community as law-abiding citizens.
[7] The JHSC has significant expertise in penal matters which it has acquired by working directly with prisoners, conducting research, and consulting with other criminal justice organizations. The JHSC’s role as an advocate for prisoner rights, and as an intervenor or public interest litigant in cases concerning penal justice, is longstanding and includes two of the leading Supreme Court of Canada cases on habeas corpus to review the legality of state actions that affect the residual liberty interests of prisoners: Khela v Mission Institution, 2014 SCC 24, [2014] 1 S.C.R. 502; May v Ferndale Institution, 2005 SCC 82, [2005] 3 S.C.R. 809.
C. The positions of the parties
[8] The JHSC submits that as an organization which has amassed significant institutional knowledge through decades of dedication to the human dignity and rehabilitation of prisoners, it is well positioned to provide this court with a broader perspective on the question common to these three cases than that provided by the parties. The JHSC submits that through its work with offenders, it understands the importance of prisoners’ ability to experience incremental increases in their residual liberty as their sentences move forward, and how such transfer decisions fit into the broader penal order. It is also familiar with the consequences such decisions may have for offenders, from the immediate impact on their residual liberty, to gradual institutionalization, erosion of community connections, undermining of rehabilitative potential, and ultimate loss of hope that may follow from the stagnation of an offender’s correctional progress.
[9] The applicants have advised, in writing, that they fully support the intervention of the JHSC as a party on the terms proposed by the JHSC.
[10] The respondent’s primary position is that the motion should be dismissed because the JHSC does not meet the requirements for party intervener status in this case. The respondent argues that the JHSC’s position on the actual legal issue, its evidence, and its perspective are all indistinguishable from the applicants’ position, evidence and perspective, and therefore will not be helpful to this court. The value of the JHSC’s minimal contribution will not outweigh the prejudice caused by an intervener seeking exceptional powers to act as a second voice to the applicant, or the delay associated with its proposed timelines. In the alternative, the respondent notes that the JHSC seeks an unrestricted right to introduce expert and fact affidavit evidence, participate in cross-examinations and motions, file a 30-page factum, make oral submissions, and engage in the right of reply in the first stage of these habeas corpus applications. The respondent says that if the JHSC is granted leave to intervene, it’s participation should be limited to filing a 10-page factum and brief oral argument.
D. The test to be applied on an application to intervene
[11] This application is brought pursuant to Rule 13.01 of the Rules of Civil Procedure. Rule 13.01 provides:
13.01 (1) A person who is not a party to a proceeding may move for leave to intervene as an added party if the person claims,
(a) an interest in the subject matter of the proceeding;
(b) that the person may be adversely affected by a judgment in the proceeding; or
(c) that there exists between the person and one or more of the parties to the proceeding a question of law or fact in common with one or more of the questions in issue in the proceeding.
(2) On the motion, the court shall consider whether the intervention will unduly delay or prejudice the determination of the rights of the parties to the proceeding and the court may add the person as a party to the proceeding and may make such order as is just.
[12] The onus is on the JHSC to demonstrate that it has met the requirements of the rule and should therefore be permitted to intervene in this proceeding: Halpern v. Toronto (City) Clerk (2000), 2000 CanLII 29029 (ON SCDC), 51 O.R. (3d) 742, 139 OAC 300 (Div.Ct.), at para. 6; Ontario (Attorney General) v. Dieleman (1993), 1993 CanLII 5478 (ON SC), 16 O.R. (3d) 32, 108 D.L.R. (4th) 458 (Gen. Div.) at p. 38; M. v. H. (1994), 1994 CanLII 7324 (ON SC), 20 O.R. (3d) 70, 9 R.F.L. (4th) 94 (Gen. Div.) at p. 79; Fontaine v. Canada (Attorney General), 2014 ONSC 3781, at para. 21.
[13] There is no dispute about the factors relevant to my determination of this application. They are:
Does the proposed intervener have a sufficient, direct "interest" in this case?
What useful contribution could the JHSC make to this proceeding?
If such interest and useful contribution are established, would the JHCS’s involvement either prejudice or delay the determination of the rights of the parties to the proceeding?
Is any such prejudice or delay counterbalanced by the useful contribution of the proposed intervener?
What terms or conditions might be imposed on the intervention to ensure that the goals are met of useful contribution without undue delay or prejudice?
See: Halpern v Toronto (City), at para 21.
[14] To answer these questions I must consider the nature of this case, the issues for determination in this case, whether the issues are essentially private, or whether they involve a public interest component, the likelihood that the JHSC will make a useful contribution to the resolution of the issues, and whether the JHSC’s participation would be unfair to the parties. See: Peel (Regional Municipality) v. Great Atlantic and Pacific Co of Canada Ltd. (1990), 1990 CanLII 6886 (ON CA), 74 O.R. (2d) 164 (C.A.); Fontaine v. Canada (Attorney General), at para. 23.
[15] In constitutional litigation there is a somewhat relaxed standard when it comes to interventions by public interest groups. The Ontario Court of Appeal provided guidance in Bedford v Canada (Attorney General), 2009 ONCA 669, 98 OR (3d) 792, at para 2:
Where the intervention is in a Charter case, usually at least one of three criteria is met by the intervenor: it has a real substantial and identifiable interest in the subject matter of the proceedings; it has an important perspective distinct from the immediate parties; or it is a well-recognized group with a special expertise and a broadly identifiable membership base.
[16] However, no matter its credentials as a public interest organization, “a proposed intervenor must still satisfy the basic requirement that their participation will result in them making a useful and distinct contribution not otherwise offered by the parties”: Trinity Western University v. Law Society of Upper Canada, 2014 ONSC 5541 (Div.Ct.), at para. 7. It is useful to recall, as noted by Nordheimer J. (as he then was) in Trinity Western, at para. 43, that “[t]he principle focus of the court is to resolve the issues that are in dispute between the parties in accordance with the applicable legal principles but, in doing so, to be guided by considerations of the broader impacts that the court’s decision may have, that is, impacts beyond just the interests that the parties present”.
E. Analysis
[17] The issue in dispute between the parties in this case in respect of which the JHSC seeks to intervene is the preliminary question whether the applicants have been deprived of liberty as a result of CSC’s denial of their request for transfer from medium-security institutions to minimum-security institutions. More generally, the issue in dispute involves consideration of the scope of habeus corpus. The applicants say that recent decisions of the Supreme Court of Canada and the Ontario Court of Appeal have broadened the scope of habeus corpus. The respondent maintains that those decisions have not changed the prevailing Ontario jurisprudence that denial of a request for transfer from a medium-security institution to a minimum-security institution does not constitute a deprivation of liberty.
(a) Does the JHSC have an interest in the subject matter of this proceeding?
[18] In Halpern, at para. 15, Lang J. (as she then was), noted that “the rule 13.01(1)(a) criterion of an “interest in the subject matter of the proceeding” has been interpreted to include a public interest in the proceeding, to the extent that the party's interest is over and above that of the general public. The party's interest must also be a genuine and direct interest in the outcome of the proceeding [citations omitted]”. The special circumstances of Charter litigation cause greater latitude to be given to “intervenor motions in cases involving Charter challenges because such challenges generally involve a greater public interest. However, the proposed intervenor in a Charter challenge case is not excused from satisfying the court that it has a direct interest and could make a useful contribution to the proceeding”: Halpern, at para. 16.
[19] I accept that the JHSC has an interest in the subject matter of this proceeding over and above that of the general public. The respondent does not argue otherwise.
[20] The JHSC is an organization that has significant knowledge about the importance of prisoners’ ability to experience incremental increases in their residual liberty as their sentences move forward, and how transfer decisions fit into the broader penal order. It is also familiar with the consequences such decisions may have for offenders. The JHSC is well positioned to provide this Court with a broader perspective on decisions about voluntary transfers of offenders from medium-security institutions to minimum-security institutions, and the impact of those decisions, than that which the parties can provide. Its constituency will be affected by the outcome of this proceeding.
[21] While the JHSC of Canada engages in lobbying activities to achieve policy or legislative changes in relation to the management of offenders, I am satisfied that its interest in these proceedings is not that of a lobbyist. See: Halpern, at paras. 24-26.
(b) What useful contribution could the JHSC make to this proceeding?
[22] If the proposed intervenor arguments mirror those to be presented by the applicants, and the intervenor merely repeats the same perspectives, without adding anything useful to the submissions, then the proposed intervenor makes no useful contribution.
[23] The positions of the individual applicants and the JHSC in relation to the threshold issue are the same. They both submit that the dominant line of cases denying prisoners access to habeas corpus to challenge a denial of a transfer request should be abandoned, in accordance with recent appellate authority emphasizing the expansive scope of the writ. They rely on the same authorities: Chhina, Chaudhary, Touré, Wang, and Bird.
[24] The individual applicants and the JHSC have acted collaboratively to prepare for the habeus corpus applications. They have jointly retained a proposed expert witness. Their retainer letter, written by counsel for the JHSC, was reviewed and approved by counsel for the individual applicants. The letter advised the proposed expert witness that his opinion would be relied upon by both the JHSC and the individual applicants.
[25] Notwithstanding their reliance on the same evidence to support the same result, I accept the submission of the JHSC that the correct resolution of this set of test cases will be assisted by submissions that provide a broader understanding of the historical, legal, policy and practical contexts that surround institutional transfer decisions. The JHSC’s submissions can address the proper scope of habeas corpus and its availability as a legal and constitutional remedy for offenders who remain detained at a higher level of security, in its practical and constitutional context. Those submissions can situate the kind of transfer decisions at issue in these habeas corpus applications in their broader constitutional context and will address the constitutional considerations that inform the proper scope of habeas corpus as a remedy for the safeguarding of liberty interests. The JHSC’s focus on the constitutional dimensions of habeus corpus will add value to the hearing and contribute to the proper determination of the threshold issue.
[26] The JHSC also seeks to contribute to the development of the evidentiary record for this application. Specifically, it submits that the JHSC will coordinate with applicants’ counsel to ensure the affidavits of Dr. Michael Jackson, Q.C., and Mr. Robert George Clark, relied on jointly by the applicants and JHSC, will be admitted into evidence. Additionally, the JHSC seeks leave to intervene as a party in order to defend the relevance and admissibility of such evidence relied upon by JHSC, if challenged by the Respondent, and to cross-examine any witnesses put forward by the Respondent. Whether the respondent will tender any affidavit evidence in relation to the threshold question is presently unknown.
[27] The contributions of the JHSC to the development of the evidentiary record would be duplicative of the submissions of the applicants’ counsel and would not make a useful contribution to the resolution of any issues that may arise in relation to the admissibility of that evidence. I reach this conclusion for three reasons. First, the relevance and admissibility of the affidavits of Dr. Jackson and Mr. Clark, if opposed, will be advanced by counsel for the individual applicants. Second, counsel for the applicants is experienced counsel accustomed to arguing issues related to the admissibility of evidence who will, I expect, ably present arguments in favour of the admissibility of the evidence. Finally, the JHSC does not assert that it has any special expertise in relation to the legal issues that govern the admissibility of evidence.
[28] To summarize, I conclude that submissions by the JHSC regarding the proper scope of habeas corpus and its availability as a remedy for offenders whose requests for transfer to an institution with a lesser security classification are denied, in its practical and constitutional context, will add value to this proceeding and the correct disposition of the question for decision. However, the participation of the JHSC in the development of the evidentiary record lacks such value.
(c) Would the JHCS’s involvement either prejudice or delay the determination of the rights of the parties to the proceeding?
[29] The respondent submits that permitting the JHSC full standing as a party to these applications will result in prejudice because the participation of the JHSC will expand the scope of the applications, making the proceedings unduly ponderous and unwieldy. The respondent further submits that it will be prejudiced by the intervention of the JHSC because its submissions will be identical to those of the applicants, thus giving the applicants “a second kick at the can”, and because some of its submissions will be irrelevant to the resolution of the legal issue.
[30] The scope of the application in relation to the threshold question, which is the only part of these applications for which the JHSC seeks intervenor status, will be the same whether or not the JHSC is granted standing as a party. While the JHSC will provide the court with a perspective different than that of the applicants, that does not amount to an expansion of the scope of the applications. Like any party to any proceeding, the JHSC will be constrained from making submissions that are irrelevant to the proper resolution of the question at hand. Relevant submissions cannot render proceedings unduly ponderous and unwieldy.
[31] Different considerations apply in relation to the request by the JHSC to contribute to the creation of the evidentiary record, a contribution that I have already concluded would be duplicative of the contribution that will be made by counsel for the applicants. I agree with the respondent that duplicative submissions about the admissibility of evidence, and cross-examination of witnesses, if any are tendered by the respondent, would be prejudicial because it would be an unproductive use of court time and would place the respondent in the position of having to respond to two submissions. This case does not raise the prospect of dramatic delay and expense for all parties such as that described by Lang, J. in Halpern, at para. 11, but there is a prospect of some delay, duplication and unproductive use of court time.
(d) Is any such prejudice or delay counterbalanced by the useful contribution of the proposed intervener?
[32] The respondent argues that given the duplication of the submissions, evidence and perspectives inherent in this proposed intervention, the resultant prejudice and delay is not counterbalanced by the JHSC’s contributions to this Court.
[33] I conclude that the proposed submissions of the JHSC will be relevant and will assist the court. To be clear, I should not be taken as having formed any opinion about the merits of the arguments the JHSC seeks to advance. At this point in time, my assessment of the value of the JHSC’s submissions is limited to determining whether hearing those submissions will provide me with a relevant perspective that is not duplicative of the submissions to be advanced by the applicants.
[34] I also understand the respondent’s concern that it will suffer prejudice if the JHSC and the applicants are both permitted to file lengthy factums, and that it may require leave to file a very lengthy factum to address the arguments of both the applicants and the JHSC. However, this is the sort of prejudice that may be readily addressed by imposing page limits on the factum and limits on the time permitted for oral argument by the JHSC.
[35] However, the prejudice or delay that would be caused by permitting the JHSC to participate in the formation of the evidentiary record in this case is not counterbalanced by the contribution that the JHSC could make to the formation of that record. The JHSC does not seek to introduce evidence in addition to that relied upon by the applicants. Counsel for the applicants is perfectly capable of dealing with any opposition that may arise to the admissibility of that evidence. Furthermore, there will be no impediment to the JHSC working with or assisting counsel for the applicants in relation to any issues that may arise regarding the evidentiary record. Counsel have worked collaboratively to this point, and I expect they will continue to do so.
(e) What terms or conditions might be imposed on the intervention to ensure that the goals of useful contribution without undue delay or prejudice are achieved?
[36] The JHSC has undertaken to work cooperatively with counsel for the applicants to avoid “repetition of submissions or duplication of evidence”. It appreciates its obligation as an intervenor to add value to the proceeding and not simply to repeat.
[37] It is possible to fashion conditions to govern the participation of the JHSC to ensure that the court receives the assistance it requires to appreciate the perspective and contribution of the JHSC while also avoiding duplication or unhelpfully lengthy submissions, either written or spoken.
F. Conclusion
[38] At its core, my decision whether or not to grant standing to the JHSC is concerned with balancing whether the contribution that might be made by the JHSC in this case is sufficient to outweigh the delay and prejudice and that may be caused by the intervention.
[39] The goal of useful contribution without undue delay or prejudice is best achieved by imposing conditions on the participation of the JHSC. The intervention by the JHSC can be structured to permit it to advance its perspective without undue delay or prejudice to the respondent. I am not concerned with undue delay or prejudice to the applicants as they support the JHSC’s motion.
[40] Rule 13.01(2) permits me to make such order as is just.
[41] Subject to further order, the JHSC is added as a party to this proceeding pursuant to Rule 13.01(1) on the following terms:
(1) The JHSC will be permitted to file a factum and to make oral submissions as to the threshold question whether the applicants have been deprived of their liberty as a result of the denial of their requests to transfer to minimum-security institutions.
(2) The written submissions of the JHSC will be limited to 15 pages, double-spaced, with standard margins and font size.
(3) The JHSC will file its factum within two weeks of when the applicants file their factum.
(4) The respondent will be permitted to file a factum of the same number of pages as the applicants and the JHSC combined.
(5) The JHSC will be permitted to present oral argument on the hearing of the application not to exceed two hours. The JHSC will be permitted to make reply submissions which are not to exceed 10 minutes.
(6) The JHSC will not seek or be required to pay costs in relation to the application.
[42] The parties are to consult with each other, and with the trial coordinator, following the release of this judgment, to arrange a case management hearing before me, for the purpose of setting the dates for the hearing of the threshold question, and for the purpose of seeking any further directions that may be required to permit that hearing to proceed smoothly.
Justice J. Speyer
Released: April 8, 2021
COBOURG COURT FILE NOS.: CV-76-20 CV-78-20 CV-79-20
DATE: 20210408
ONTARIO SUPERIOR COURT OF JUSTICE
FRANK DORSEY COREY NEWTON GHASSAN SALAH Applicants
- and -
THE ATTORNEY GENERAL OF CANADA Respondent
- and -
JOHN HOWARD SOCIETY OF CANADA Moving Party (Proposed Intervenor)
REASONS FOR RULING
Justice J. Speyer
Released: April 8, 2021