Court File and Parties

COURT FILE NO.: YC-23-90000087-00MO DATE: 20240111

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HIS MAJESTY THE KING – and – M.J.

COUNSEL: S. DeFillipis, for the Crown M. Singh, for the Ministry of Children, Community, and Social Services K. Gray, for M.J.

HEARD: 27 November 2023

S.A.Q. AKHTAR J.

Factual Background and Overview

Background Facts

[1] On 18 December 2022, Kenneth Lee was swarmed and murdered by a group of eight girls in a parkette at 1 University Avenue in Toronto. The Crown alleges that the applicant in this case, M.J., was one of the perpetrators.

[2] M.J. was arrested and held in custody pending a bail hearing. On 7 February 2023, Sirivar J., sitting as a youth court judge, ordered that M.J. be detained. The detention order specified that M.J. was to be held in an open custody facility. As a result, M.J. was housed at the Marjorie Amos Residence in Brampton, an institution operated by the Elizabeth Fry Society. On 15 April 2023, the facility was flooded and deemed unfit for habitation. As a result, M.J. was transferred to the Creighton Youth Centre, an open youth, custody and detention facility located in Kenora.

[3] On 23 April 2023, M.J. renewed her application for bail based on a material change of circumstances. That hearing was due to be heard on the 25 and 26 April 2023 in Toronto. In order to facilitate an in-person hearing, M.J. was taken to Craigwood, a secure facility located in London.

[4] M.J. alleged that this breached the terms of Sirivar J.’s order and brought an application for habeas corpus seeking Charter costs and damages against the Crown, the Ministry, and the Craigwood facility.

[5] On 26 April 2023, M.J.’s bail review was heard and she was released with conditions. In the meantime, the habeas corpus application had been scheduled and was set to be argued on 28 April 2023. The Crown and the Ministry of Children, Community and Social Services (MCCSS) argued that given M.J.’s release, the issue was moot and asked for the habeas corpus application to be summarily dismissed. The presiding judge, Moore J., concluded she did not have sufficient materials to decide the issue and at the request of the parties, remanded the habeas corpus and dismissal applications to Toronto.

[6] When the matter appeared in the Special Motions Assignment Court, all parties agreed upon a bifurcated procedure. The MCCSS and Crown would bring its summary dismissal application. If that was unsuccessful, a date would be selected to hear the habeas corpus application.

Positions of the Parties

[7] The MCCSS and the Crown repeat their request that the habeas corpus application be dismissed. They argue that:

• There is no authority to grant a declaration and Charter damages and costs under s. 24(1) of the Charter under the existing rules;
• The application of habeas corpus is moot; and
• The Court should decline to exercise its discretion to hear a moot application.

[8] On the other hand, M.J. submits that the test for summary dismissal set out in R. v. Haevischer, 2023 SCC 11, 480 D.L.R. (4th) 577, has not been met. She argues that the Court may grant Charter remedies in the habeas corpus context including damages; that the award of costs is independent of whether a detention is ongoing; and that there are sufficient grounds to justify this Court hearing a moot application.

[9] Moreover, M.J. argues that the Ministry’s own employee conceded at the bail review that the detention was unlawful and provided no explanation as to why the MCCSS had acted in the manner that it did. Accordingly, there is clearly a basis to award costs. The Crown and the MCCSS, on the other hand, deny M.J. was unlawfully detained.

Legal Principles

The Test for Summary Dismissal

[10] The test set out in Haevischer decrees that an application in a criminal proceeding should only be summarily dismissed if it is manifestly frivolous. The principles underlying summary dismissal are based on the twin values of trial efficiency and trial fairness. Efficiency promotes the use of judicial resources to ensure there is no unreasonable delay and that trials are completed within a reasonable period of time. Fairness protects the right of an accused to make full answer and defence which summary dismissal may impair: Haevischer, at para. 2.

[11] The Court in Haevischer held that a rigorous threshold should be applied in such motions to promote these values. It emphasised that judges should err on the side of caution when asked to summarily dismiss an application and explained that “manifestly frivolous” means that courts must weed out applications that will necessarily fail and that their frivolous nature must be obvious: at para. 69.

[12] The application of such a rigorous threshold permits trial judges to stave off applications that the summary dismissal power is “designed to exclude” – applications that would never succeed and waste court time: at para. 3. At the same time, an accused’s fair trial rights would be protected by deciding all other claims on their merits.

Habeas Corpus

[13] Traditionally, habeas corpus was a mechanism designed to ensure that an accused held in custody as a result of allegations made by the state could be brought to court to challenge the lawfulness of their detention. It is an ancient writ that protects a person from unlawful confinement.

[14] The Court in Khela outlined two criteria that must be satisfied before habeas corpus can issue. To be granted relief, an applicant must 1) establish that they have been deprived of liberty and 2) raise a legitimate ground upon which to question its legality. Once both are established, the onus shifts to the respondent to show that the deprivation of liberty is lawful: Mission Institution v. Khela, 2014 SCC 24, [2014] 1 S.C.R. 502, at para. 30; May v. Ferndale Institution, 2005 SCC 82, [2005] 3 S.C.R. 809, at para. 74. The Court observed that habeas corpus “is in fact the strongest tool a prisoner has to ensure that the deprivation of his or her liberty is not unlawful.”

[15] In May v. Ferndale Institution, at para. 21, the Court connected habeas corpus to the right to liberty of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice (s. 7 of the Charter) and the right not to be arbitrarily detained or imprisoned (s. 9 of the Charter).

[16] Indeed, habeas corpus – a right guaranteed under s. 10(c) of the Charter – is not intended to be a static, narrow, or formalistic remedy, but rather a purposive one designed to protect individuals against the erosion of their right to be free from wrongful restraints on their liberty: May v. Ferndale, at para. 21.

Analysis

[17] The Crown opposes the hearing of the habeas corpus application. The Crown argues that this case is simply one that is doomed to fail because there is no legal basis for habeas corpus.

[18] As the Crown points out, M.J. has provided no authority that a person who is no longer detained can launch a habeas corpus application. I agree. The authorities appear to indicate the opposite.

[19] In R. v. Barbour, 2016 ABCA 161, 37 Alta. L.R. (6th) 22, at paras. 16-19, Wakeling J.A. explicitly ruled that habeas corpus was not available for someone who was not detained:

There is good reason why Parliament would insist that an applicant for bail be in custody at the time he or she made the application. The whole purpose of the Bail Reform Act was to restore the liberty of persons who were either accused of a crime or convicted of a crime and detained in custody. If a person already has been released from gaol, why would Parliament devote any public resources to help persons who do not need any help restoring their liberty. An offender who is out on bail does not need another order granting him or her bail.

Habeas corpus case law is consistent with this determination.

The writ of habeas corpus is designed to assist a person who is someone's prisoner. "It is a common law writ directed to the person detaining the applicant ordering the detainer to bring the applicant before the court at a specified time so that the court may determine the legality of the applicant's detention".

If the applicant is not detained habeas corpus is not available. [Citations omitted.]

[20] The Court relied upon Re Isbell, [1930] S.C.R. 62, which stood for the proposition that for habeas corpus to apply there must be confinement or the present means of enforcing it.

[21] The purpose of the instant hearing appears to be the joinder of habeas corpus to a claim of damages based on M.J.’s claim that she was unlawfully detained when transported to Craigwood to await her bail hearing.

[22] These types of applications have been disapproved of at the appellate level. In Brown v. Canada (Public Safety), 2018 ONCA 14, 420 D.L.R. (4th) 124, at para. 52, Rouleau J.A. explained:

In my view, Charter damage claims cannot be joined to habeas corpus applications. As I have explained earlier habeas corpus is intended to be an expeditious process to determine whether a restriction on liberty of a person is legal at a given point in time. It is not, nor should it become, a potentially complex and protracted process in which entitlement to s. 24(1) damages is determined.

[23] I would add that these comments are apposite to this hearing. What M.J. seeks to do is mask a compensation claim as one that falls within the purview of the criminal law. The same question was considered by LaForme J., as he then was, in R. v. Reisher, [2002] O.J. No. 1793 (S.C.J.). There, as in the instant case, the applicant commenced an application for habeas corpus but his “foundational purpose” was to seek compensation and costs for a Charter violation. LaForme J. held that such claims should proceed as civil remedies in the civil courts rather than be determined in the criminal jurisdiction. In doing so, he relied upon comments made by LaForest J. in Mills v. The Queen, [1986] 1 S.C.R. 863, at p. 886 to the same effect.

[24] LaForme J. concluded that the jurisprudence dictated “that courts exercising a criminal function are not to mix and match criminal and civil jurisdictions when resolving Charter issues”: Reisher, at para. 18.

[25] Accordingly, I find that this application, which, in reality is one that seeks damages and financial compensation, should be brought in the civil courts under the Rules of Civil Procedure which explicitly permit Charter damages to be brought as a stand-alone action. The use of habeas corpus in the criminal setting is a fundamental remedy which seeks to protect the liberty of a detained person and cannot be used as a method to obtain financial compensation for an alleged past wrong.

[26] I also agree that M.J.’s reliance on R. v. Brown, 2009 ONCA 633, 247 C.C.C. (3d) 11, is misplaced. There, the Court of Appeal for Ontario upheld a costs award against the Crown in respect of a habeas corpus application brought by multiple accused arrested in the “take down” of a large-scale criminal organisation. Unlike this case, the habeas corpus application in Brown was a live issue. After being arrested, the detainees were not brought before a justice within 24 hours, as required by s. 503(1)(a) of the Criminal Code, and were still in custody at the time of the hearing. Bail hearing dates had been arranged but well into the future. The parties applied for habeas corpus to seek release or an earlier set of bail hearing dates. The application judge concluded that the Crown and police had failed to comply with specific Criminal Code provisions requiring a review of the applicant’s detention after arrest.

[27] Costs were ordered because the judge felt that the habeas corpus applications should not have been required and that the ensuing scenario could have been avoided if the Crown had properly planned and prepared bail hearings prior to arrest.

[28] Traditionally, an accused person in a criminal case, whether successful or not, is not entitled to costs. If awarded, it would be an exceptional remedy: R. v. M. (C.A.), [1996] 1 S.C.R. 500, at para. 97; R. v. Ciarniello (2006), 81 O.R. (3d) 561 (C.A.), at paras. 32-33; Canada (Attorney General) v. Foster (2006), 215 C.C.C. (3d) 59 (Ont. C.A.), at paras. 62-69; and R. v. Tiffin, 2008 ONCA 306, 90 O.R. (3d) 575, at paras. 94-98. Costs may only be ordered in cases where there has been a “marked and unacceptable departure from the reasonable standards expected of a prosecution”: R. v. 974649 Ontario Inc., 2001 SCC 81, [2001] 3 S.C.R. 575, at para. 87; Reisher, at para. 28; Ciarnello, at paras. 31-36; Tiffin, at paras. 93-101; R. v. Singh, 2016 ONCA 108, 129 O.R. (3d) 241, at para. 38.

[29] There are other clear differences between Brown and this case. Importantly, in Brown, the applicants were still in custody and seeking release whereas M.J. was released after her bail review on 26 April 2023. Moreover, in Brown, the Crown’s failure to secure bail hearings for the applicants within Criminal Code rules was not in dispute. Here, the Crown and the MCCSS do not agree that M.J.’s detention was unlawful. As I have already indicated, this is a question best left to the civil courts to determine. Costs would be decided at the same time.

[30] Finally, I am not convinced that a costs award is appropriate for a matter that has become moot: R. v. Martin, 2016 ONCA 840, 134 O.R. (3d) 781, at para. 36.

[31] For these reasons, I accede to the request of the Crown and the MCCSS and dismiss the habeas corpus application.

Mootness

[32] I have already decided that this Court should not entertain the application as it is more appropriately dealt with in the civil courts. However, I will address the issue of mootness as it was the subject of some discussion in this hearing.

[33] First, for the reasons set out above, the issue of habeas corpus is moot as M.J. is no longer detained having been released on bail.

[34] The question is whether this Court should exercise its discretion to hear the application based on the principles set out in Borowski v. Canada (Attorney General), [1989] 1 S.C.R. 342, at paras. 31-42. Three principles were identified by the Court:

1. The requirement for an adversarial context and the adversarial relationships will prevail despite the ending of a live controversy;
2. The concern for judicial economy; and
3. The need for the Court to demonstrate a measure of awareness of its proper law-making function such that it avoids pronouncing judgments in the absence of a dispute which may be viewed as encroaching into the role of the legislative branch.

[35] It is clear that there is still an adversarial context to the dispute between the parties. However, as I have already indicated, that context is more appropriately settled in the civil law courts. My concern is with the second and third set of principles. I agree with the MCCSS that there would be very little precedential value in dealing with the application as habeas corpus is a case specific remedy. Judicial resources are also at a premium at the Superior Court of Justice where criminal matters are subject to s. 11(b) Charter requirements. Nor is there a need for the Court to provide guidance on the use of habeas corpus in this context in the face of the jurisprudence discouraging the use of habeas corpus to claim compensation: Harjee v. Ontario, 2023 ONCA 716, at paras. 6-7.

[36] I find the Court’s comments in Haevischer, at para. 49, apply here:

Dismissing unmeritorious applications made in the criminal law context helps ensure that trials occur within a reasonable time, which is an “essential part of our criminal justice system’s commitment to treating presumptively innocent accused persons in a manner that protects their interests in liberty, security of the person, and a fair trial.” “Timely trials impact other people who play a role in and are affected by criminal trials, as well as the public’s confidence in the administration of justice”. [Citations omitted.]

[37] For these reasons, the application to dismiss is granted.

S.A.Q. Akhtar J. Released: 11 January 2024