Court File and Parties

COURT FILE NO.: CR-24-00000107-00MO DATE: 2024Dec12

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

GARY LITTLE Applicant – and – THE WARDEN OF BATH INSTITUTION CORRECTIONAL SERVICE OF CANADA and ATTORNEY GENERAL OF CANADA Respondents

Counsel: Self-represented Samaneh Frounchi and Clare Gover for the respondent, Attorney General of Canada

HEARD at Kingston: December 4, 2024

FLAHERTY J.

Habeas Corpus Decision

1Mr. Little brought this application for habeas corpus, alleging that Correctional Service Canada (“CSC”) failed to provide him with sufficient and meaningful rehabilitation opportunities. Mr. Little submits that this violates his liberty, because it deprives him of the opportunity to obtain a lower security level and/or parole. Mr. Little submits that he has been left to languish in custody and has reached a “rehabilitative impasse.” He seeks an unconditional release. In the alternative, he requests an order transferring him to a minimum-security institution.

2The Respondent submits that the application should be dismissed because a habeas corpus application cannot be used to review CSC’s rehabilitation programming. According to the Respondent, Mr. Little’s application is an improper attempt to circumvent the Parole Board’s exclusive jurisdiction.

3For the reasons that follow, the application is dismissed. First, many of Mr. Little’s arguments challenge the Parole Board’s decisions and decision-making. Applying May v. Ferndale Institution, 2005 SCC 82, I decline to exercise habeas corpus jurisdiction over matters within the Parole Board’s comprehensive and expert jurisdiction. Second, even assuming (without finding) that CSC programming is not within the Parole Board’s comprehensive jurisdiction, I would not grant relief in habeas corpus. Mr. Little has not shown that his residual liberty interests were deprived. There is no basis to conclude that his detention is unlawful.

Overview

4Mr. Little was declared a dangerous offender in 2007. He is serving an indeterminate sentence and currently resides at Bath Institution, a medium-security facility. This is the fifth habeas corpus application he has brought before the Ontario Superior Court of Justice since 2013.

5Mr. Little has a long history of violent, criminal behaviour. In 2004, when Mr. Little’s federal sentence commenced, he was assessed as a high risk and high needs offender. Since 2009, he has been in a medium-security institution. In 2022 and 2024, Mr. Little requested a transfer to a minimum-security institution. CSC denied these requests.

Parole Board Decisions

6As a dangerous offender serving an indeterminate sentence, Mr. Little is entitled to Parole Board review every two years under s 761(1) of the Criminal Code, (R.S.C., 1985, c. C-46), to determine whether parole should be granted in accordance with Part II of the Corrections and Conditional Release Act, (S.C. 1992, c. 20) (“CCRA”).

7In 2010, 2011, 2013, 2015, 2017, 2019, 2021, and 2023, the Parole Board denied Mr. Little’s requests for parole. At each review, the Parole Board found that Mr. Little continued to pose a high risk of violent recidivism if released.

Programming

8CSC has developed Correctional Plans for Mr. Little, which include treatment and programming recommendations. The Correctional Plans are designed to monitor Mr. Little’s progress and help him address factors related to risk to the community.

9Mr. Little states that, by 2011, he completed all the programming identified in his Correctional Plan. I accept that Mr. Little has experienced challenges in accessing CSC programming over the years. For example, between 2018 and 2021, CSC did not provide him with programming. In 2021, the Parole Board raised concerns that Mr. Little had not participated in programming. It wrote:

The Board cautions CSC that should [Mr. Little] continue to not participate in any programming or psychological counselling over the next period of review that CSC may be in breach of [Mr. Little’s] Section 12 Charter Rights.

10In 2022, Mr. Little participated in integrated correctional program model maintenance program and participated in a recovery group offered through mental health services.

11There is no dispute that Mr. Little has made “program gains” over the years. Both the Parole Board and CSC have recommended that he participate in Escorted Temporary Absences (“ETAs”) and be exposed to less structured environments.

12Mr. Little understands that reducing his risk assessment depends on his ability to participate in ETAs. In this respect, he relies on the Parole Board’s decision of 2013. The Parole Board noted that Mr. Little had applied for unescorted temporary absences as well as full parole. It commented, “you have not yet been approved for escorted temporary absences, and this is viewed by the Board as a necessary first step.”

13Article 17 of the CCRA provides that ETAs are discretionary and may be granted for reasons including rehabilitative purposes and personal development. The review of an inmate’s ETA application involves (among other things) meeting with the inmate, reviewing the Correctional Plan, and assessing the inmate’s progress and associated risks. The CCRA requires the institution to provide written reasons when authorizing or refusing an ETA request.

14Mr. Little has made seven ETA requests since 2014. The following four ETA requests were approved:

• for a court attendance.
• to attend his mother’s funeral
• to visit a community-based resource facility
• to visit his brothers’ gravesite.

15The last two ETAs were approved in late October 2024 and arrangements are being made to coordinate both visits on the same date.

16Mr. Little submits that there were significant delays in processing his requests for ETAs, no progress was made between March 2023 until sometime in the fall of 2024. For its part, the Respondent states that “the most significant impediment to successful ETAs is that Mr. Little has declined to participate in the process of developing an ETA application and instead considers them to be an entitlement.”

17By October 25th, 2024, all Mr. Little’s ETA requests had been processed and none were outstanding.

Mr. Little’s Behaviour

18While Mr. Little has made gains in his rehabilitation, there have also been setbacks.

a. In approximately 2017, Mr. Little was transferred from medium security at Bath Institution to medium security at Collins Bay Institution because of an inappropriate relationship between Mr. Little and a prison chaplain. b. He has been suspended from certain mental health programs for missing appointments.

19Mr. Little has also refused to participate in psychological risk assessments in November 2020 and January 2023.

20Mr. Little submits that psychological risk assessments and mental health programs are voluntary and that he should not be penalized for declining to participate. I agree that Mr. Little may decline to participate in voluntary programming. The difficulty with his position is that he cannot both decline to participate in available programs and also say that he has exhausted CSC’s programming to the point of impasse.

Issues

21The application raises the following issues:

a. Should the court exercise jurisdiction in habeas corpus? b. If so, has Mr. Little established that he has suffered a deprivation of residual liberty? c. If so, is Mr. Little’s detention unlawful?

Analysis

Habeas Corpus Jurisdiction

22Mr. Little submits that he is not challenging a decision of the Parole Board, but rather the lack of programming available through CSC. He states that programming issues fall outside of the Parole Board’s exclusive jurisdiction and can properly be the subject of a habeas corpus application.

23At the hearing, however, Mr. Little did take issue with how the Parole Board assessed his risk level, submitting that it relied on incorrect information and failed to appropriately consider his successful completion of the programming. These aspects of Mr. Little’s arguments are a challenge of the Parole Board’s decision and decision-making process.

24Courts have repeatedly held that habeas corpus jurisdiction should not be used to create a parallel system for challenging a Parole Board decision-making. Mr. Little’s arguments about the Parole Board’s decision-making fall within the second specified exception in May v. Ferndale Institution, 2005 SCC 82. On this basis, I decline to exercise habeas corpus jurisdiction over matters within the Parole Board’s comprehensive and expert jurisdiction: see Little v. Bath (Warden), 2013 ONSC 7604; Little v. Canada (Attorney General), 2022 ONCA 457 at para. 44.

No Deprivation of Residual Liberty

25The next issue is whether CSC’s programming also falls within the comprehensive Parole Board scheme. In my view, it is not necessary to decide this issue. Even assuming (without finding) that programming offered by CSC’s falls outside the comprehensive jurisdiction of the Parole Board, Mr. Little has not met the test and established that habeas corpus is warranted in this case.

26A successful application for habeas corpus requires establishing: (1) a deprivation of liberty; and (2) that the deprivation is unlawful. The onus of making out a deprivation of liberty rests on the inmate. The onus of establishing the lawfulness of that deprivation rests on the detaining authority: May v. Ferndale Institution, 2005 SCC 82, [2005] 3 S.C.R. 809 at para. 74.

27In habeas corpus, the court’s only remedial power is to order the applicant freed from the unlawful confinement: Mission Institution v. Khela, 2014 SCC 24, at para 39. It is not open to the court in a habeas corpus application to direct that more or different programming be made available to Mr. Little or that he be granted ETAs.

28According to the Supreme Court in Dumas v. Leclerc Institute at para. 10, there are three general ways in which deprivation of liberty may arise in the context of a detention. It may relate to: 1) the initial decision requiring the detention; 2) a restriction of residual liberty resulting from a change in the conditions of the detention; or 3) a restriction of residual liberty resulting from the continuation of the detention.

29In this case, Mr. Little submits that the continued denial of his liberty is unlawful. In essence, he says CSC had an obligation to offer meaningful and adequate programming to him, to allow him to reduce his risk level and achieve greater residual liberty.

30The Court of Appeal dealt with a similar argument in Dorsey v. Canada (Attorney General), 2023 ONCA 843. The issue in that case was whether inmates could use habeas corpus to challenge denials of their applications to transfer to lower-security prisons. The Court of Appeal held that they could not. It wrote (at para. 40):

The problem with the appellants’ argument is that it presumes they are entitled to reclassification to a minimum-security institution. This is misguided. There is no standalone entitlement to a minimum security classification simply because the CCRA directs CSC to take all reasonable steps to ensure inmates are placed into the “least restrictive environment”.

31This is consistent with the language of sections 3, 4, and 5 of the CCRA, which require CSC to provide programs to assist in rehabilitation. However, there is no statutory guarantee that rehabilitation must be effective or that alternatives to custody will, in fact, be achieved.

32In Dorsey, the Court of Appeal also found that maintaining a security classification is not a deprivation of residual liberty. The denial of transfers to minimum security institutions places an inmate in the same position they were before the request. The Court of Appeal held that the appellants had not satisfied the first prong of the habeas corpus test: their residual liberty was not further deprived, nor were they placed in a more restrictive form of confinement.

33Courts have also held that an inability to access rehabilitative programming is not a basis for habeas corpus: see Shea v Canada (Attorney General), 2022 ABQB 241 at para. 23; Lord v. Coulter, 2009 BCCA 62 paras. 8 and 5; Rain v Canada (Parole Board), 2015 ABQB 639 at para. 15; and Mapara v. Ferndale Institution (Warden), 2012 BCCA 127 at para. 22. The denial of an ETA, like the denial of parole, does not change an inmate’s liberty status and is, therefore, not subject to challenge by way of habeas corpus: see Mapara v. Ferndale Institution (Warden), 2014 BCSC 748 at para. 42.

34Applying these principles, I find that Mr. Little has not established a deprivation of his liberty. Rather, he says he has lost an opportunity to obtain greater residual liberty. This is not sufficient to meet the first prong of the test. As the Supreme Court explained in Dumas, supra, a decision that denies an inmate access to less restrictive conditions does not constitute a deprivation of liberty. On this basis, I would deny Mr. Little’s application.

35Mr. Little relies on R. v. Warren, 2024 ONSC 2785. However, that case is significantly different from the one at hand. After declaring Mr. Warren a dangerous offender, the court tailored his indeterminate sentence and held that it be served in a hospital rather than a penitentiary. In reaching this conclusion, Justice Pomerance considered Mr. Warren’s specific circumstances, including his complex needs, his cognitive and other disabilities, and his experiences in prison. She concluded that the treatment and programming Mr. Warren required were not available in a penitentiary and that Mr. Warren’s constitutional rights would likely be infringed if he served an indeterminate penalty of imprisonment in the correctional system.

36Importantly, the Warren case was not a habeas corpus application. It was about tailoring Mr. Warren’s indeterminate sentence to his particular needs. Mr. Little was sentenced in 2007. This habeas corpus application is not an appropriate means of challenging his sentence. In any event, there is no evidence to suggest that Mr. Little’s needs rival the complex and particular needs of Mr. Warren.

37In my view, the decision in Urbano v. Bowden Institution, 2015 ABQB 279 is more instructive in these circumstances of this case. In Urbano, an inmate applied for a writ of habeas corpus, alleging that CSC had arbitrarily and unreasonably deprived him of the programming necessary to complete his correctional plan. There, as here, the applicant alleged that the lack of programming was a basis for the Parole Board’s decision to deny him parole. At para. 59, the court in Urbano held:

If matters of sentence management and programming for an inmate could be shown to be justiciable and contrary to the duty to act fairly or the Charter, they relate to CSC’s operation of federal institutions and the remedies of certiorari and mandamus, falling squarely within the jurisdiction of the Federal Court.

The Detention is Lawful

38There is no basis to conclude that Mr. Little’s detention is unlawful. In addition, the evidence does not support Mr. Little’s contention that he had reached a “rehabilitative impasse” or that CSC is solely responsible for any such impasse. Mr. Little has been granted ETAs and at least one of those absences is upcoming. Moreover, he has declined to participate in certain assessments and programs.

39Mr. Little’s successful completion of programming is only one of many factors that impacted his security level and access to parole. While he has completed and received positive feedback about his participation in programming, the Parole Board and CSC considered and expressed concern about other factors, such as his behaviour, attitude, and ability to implement the skills he gained in programs. These factors in his rehabilitation are within Mr. Little’s control.

Disposition

40The application is dismissed. Mr. Little’s arguments about the appropriateness of the Parole Board’s decision-making fall squarely within the Parole Board’s comprehensive and exclusive jurisdiction to decide. As it relates to CSC programming, Mr. Little has not demonstrated that any failure on the part of CSC to provide adequate or meaningful programming deprived him of his residual liberty. There is also no basis to conclude that his detention is unlawful.

41Costs were not sought and they are not awarded.

Flaherty J.

Released: December 12, 2024