R v MacPherson, 2013 ABQB 672

Court of Queen ’ s Bench of Alberta Citation: R v MacPherson, 2013 ABQB 672 Date: 20131115 Docket: 120919055Q1 Registry: Edmonton Between: Her Majesty the Queen Respondent (Crown) - and - Mathew Alex MacPherson Applicant (Accused) Restriction on Publication Judicial Interim Release – See the Criminal Code ,

section 517. By Court Order, this decision and the evidence taken, information given or representations made may not be published, broadcast, or transmitted in any manner. NOTE: This decision is available from the court file. It may be published after the accused is discharged after a preliminary inquiry or, if the accused is committed to stand trial, after the end of the trial. Editorial Notice: The restriction on publication ended on March 10, 2015. _ ________________________________________ ______________

Reasons for Judgment of the Honourable Madam Justice M.G. Crighton _______________________________________________________ [1] Mr. MacPherson seeks the following relief from this Court: 1. A stay of proceedings on the basis his s. 11(

b) right to a trial within a reasonable time has been breached because of the delaybetween his arrest and his trial date which is scheduled to commence on March 10, 2014. He argues that delay is exacerbated becausehe is being deprived of proper medical treatment and proper nutrition while he is in custody; 2. A review of the Provincial Court’s denial of release; 3. An order for judicial review in the nature of a declaration that past deprivations of his liberty constituted a violation of his s. 7and s. 12 Charter rights; 4.

In the alternative to release, an order that the respondent remedy the breaches and to return to the Court thereafter to confirm theyhave done so; 5. Costs; and finally 6. Such other relief in the nature of habeas corpus or judicial review or otherwise as may be appropriate. [2] At the outset of this application, I observed that Justice Acton had been appointed to act as both the case management judgeand the trial judge in relation to this matter.

On that basis, I declined to exercise my jurisdiction as a motions judge to hear Mr.MacPherson’s applications for a judicial stay or for declaratory relief regarding past breaches of his s. 7 and s. 12 Charter rights. Asnoted in R v Smith, (SCC), [1989] 2 SCR 1120 while the Superior Court may hear a s. 11(

b) application as a motionscourt prior to trial in exceptional circumstances, the general rule is that the trial judge should hear a s. 11(

b) application. [3] That same principle is articulated in R v Mills, [1986] 1 SCR 836 wherein LaForest, J. agreed with Lamer, J. that as ageneral rule the trial court is the preferred source of original and supervisory jurisdiction in dealing with Charter violations.

He statedfurther that leaving the trial judge to deal with issues of unreasonable delay is consistent with the spirit of s. 24(1) of the Charter whichcontemplates that an appropriate remedy should be molded to fit the circumstances and only at trial will those circumstances be fullydissected and explored. [4] Recent amendments to the Criminal Code, R.S.C. 1970, c. C-34 resolve many of these issues by expressly conferring upon acase management judge the authority, when appointed, to rule on preliminary issues including Charter applications that would ordinarilybe heard by a trial judge.

Those amendments expressly contemplate a judge other than the trial judge hearing Charter applicationsbefore trial, but only where that judge is specifically appointed as a case management judge. [5] In my view, where a case management judge has in fact been appointed, the Superior Court should decline to takejurisdiction over Charter matters while sitting as a motions judge. I declined to do so in this case for that reason. [6] After resolving some confusion about the nature Mr. MacPherson’s application, I did agree that I could, as a motions judge,review the earlier denial of Mr.

MacPherson’s release and as well consider his application for habeas corpus on grounds that his remandconditions at the new Edmonton Remand Centre are affecting his liberty interests. [7] The Crown adopted in their entirety the arguments advanced in the lower court to oppose Mr. MacPherson’s release. Inaddition, the Crown argued that there is no change in circumstances that would cause this Court to revisit the lower court’s denial ofrelease and urges this Court to deny Mr.

MacPherson’s application. [8] Defence counsel conceded there are valid concerns on the secondary grounds and did not deal at all with the primarygrounds. Defence counsel focused instead on Mr. MacPherson’s remand conditions. [9] I have reviewed the record below and conclude no error was made by the Learned Provincial Court Judge when she deniedMr. MacPherson’s release on the primary and secondary grounds. According to the record below, Mr. MacPherson has a significantrecord and has spent the better part of the last decade in jail.

He has one dated failure to appear, and in addition, he has several offencesrelated to parole violations and one escape lawful custody. I agree with the learned Provincial Court Judge that the people of CambridgeBay, where it is again proposed he would live, are entitled to protection. I agree with the lower court that Mr. MacPherson’s history aspresented in the original bail application reflects a capacity for irrational and desperate behaviour. [10] Finally, the release plan is precisely the same plan that was before the lower court and Mr.

MacPherson’s brother, with whomhe will reside, has a lengthy criminal record. Additionally, he is currently on bail with respect to drug trafficking charges against him. [11] In my view, there is no change in circumstances from those articulated in the lower court that answer the Court’s concerns onthe primary and secondary grounds and the application for review of the lower court’s decision is accordingly denied. [12] That brings me to Mr. MacPherson’s application for habeas corpus. Defence counsel argued that Mr.

MacPherson’s remandconditions make his detention illegal and accordingly, that he should be released. Alternatively, counsel argued that the Remand Centreshould be directed to cease the offending conduct and confirm they have done so at a later date.

[13] Defence counsel relied on the decision of Veit, J. in R v De Elespp, 2001 ABQB 905 wherein she concluded that: “a breach ofthe Charter is a factor that must be considered when assessing bail issues.” She concluded further that: if the Court were satisfied that apretrial detainee were housed inhumanely, that would be grounds to release that detainee on bail”. Implicitly, she concluded there wasno Charter breach when she found the detainee’s conditions not to have been inhumane. Veit.

J. did not, however, indicate what specificCharter right might have been engaged. [14] As a preliminary point I note that the Supreme Court of Canada in R v Pearson, (SCC), [1992] 3 S.C.R. 665,144 N.R. 243 reviewed the application of the habeas corpus remedy to denial of bail, and concluded that habeas corpus is only availablein limited circumstances, such as where the legal validity of an aspect of the bail process was unconstitutional. Chief Justice Lamerstressed Outside the narrow circumstances of this case, habeas corpus is not a remedy for a denial of bail.

As Wilson J. noted in Gamble at p.642, “[u]nder section 24(1) of the Charter courts should not allow habeas corpus applications to be used to circumvent the appropriateappeal process”. In the context of bail, a s. 520 review is the “appropriate appeal process” which should not be circumvented by habeascorpus. ...

Allowing the use of habeas corpus as a general remedy for a bail review would create precisely this type of interlocutoryappeal (see s. 784(3) of the Criminal Code, which provides for an appeal against a refusal of habeas corpus). [15] I also observe that in R v Sarson, (SCC), [1996] 2 S.C.R. 223, 135 D.L.R. (4th) 402 the Supreme Court ofCanada permitted application of a habeas corpus remedy to a Charter, ss. 7, 11(

d) inquiry as to whether a murderer’s sentence may bereviewed when the form of murder under which the offender was sentenced was subsequently found to be unconstitutional. At paras. 21-36 Justice Sopinka reviews the common law character of the habeas corpus remedy, and explains that its role is restricted to issues ofjurisdiction (paras. 21-23). Justice Sopinka explains that an application of this kind would not have been possible in the pre-Charterperiod as it represents no more than a collateral attack on conviction and sentence of the prisoner; the appropriate remedy is insteadappeal.

I conclude the same is true where there is a valid route of appeal or review to a bail detention. I have already rejected thatalternative and instead confirmed the conclusion of the learned Provincial Court Judge. [16] Justice Sopinka in R v Sarson continues to review how the habeas corpus remedy operates in a Charter context. At para. 43Sopinka J. indicates the appropriate approach is to first identify whether a Charter breach has occurred, then evaluate whether thehabeas corpus remedy is appropriate, under s. 24(1). Operationally, this means Mr.

MacPherson’s alleged habeas corpus remedy isreally no more than a Charter, s. 12 cruel and unusual punishment application in disguise. [17] Since I have declined to conduct a Charter analysis on whether Mr. MacPherson’s prior detention history would warrant ajudicial stay I will restrict my analysis to whether the conditions of Mr. MacPherson’s detention warrant an order for release where hisdetention is otherwise statutorily lawful or, alternatively, a remedial order to the Edmonton Remand Centre. [18] My first step is to investigate whether Mr.

MacPherson’s allegation of mistreatment in the Edmonton Remand Centre is abreach of his Charter, s. 12 right to be free of cruel and unusual treatment or punishment. [19] His complaints are as follows: 1. That he has been cut off from his anxiety medication. That he is being prevented by Remand authorities from receiving his anti-anxiety medication and no alternatives have been provided; 2. That he has not been afforded an opportunity to consult with a psychiatrist to deal with his anxiety issues and possibly withalternative medication; 3.

That he has been receiving a pain medication in an improper form thereby eliminating or reducing its effectiveness; and 4. That he requires a special diet that is particular to his sect of Christianity, that for religious reasons he requires a special dietconsisting of no pork or processed meat of any kind and that he is receiving meals that are foul, rotting and inadequate for his and thatcontain an inadequate caloric content for his needs. [20] There was an earlier issue regarding his dental care, but none that are currently affecting Mr.

MacPherson. [21] Counsel for Alberta Health Services filed an affidavit responding to Mr. MacPherson’s allegations regarding the provision ofhealth services to him while in Remand. Crown counsel filed an affidavit from the Operations Director at the new Edmonton RemandCenter responding to Mr. MacPherson’s dietary concerns. Mr. MacPherson’s counsel cross-examined each of the affiant’s during thecourse of this motion. [22] Mr. MacPherson’s counsel urged this court to give little weight to these affidavits because their content is hearsay.

While Iagree that the information in the affidavits is hearsay, it is nevertheless admissible based on the Ares v Venner, SCC;[1970] SCR 608 exception to the hearsay rule.

The sources of information in these affidavits is either records generated by individualswho have an obligation to record information and to do so accurately or individuals themselves with a similar obligation to reportinformation accurately. [23] In my view the affidavits and the evidence given in cross-examination are admissible for the truth of their content and shouldbe given appropriate weight in these proceedings. [24] I accept the evidence of the Manager of Health Services at the new Edmonton Remand Center that Mr.

MacPherson has adocumented history of diverting medication and presently receives what medical professionals at the Remand Centre considerappropriate for his medical requirements. I also accept her evidence that his medications are being administered as directed havingregard to valid concerns regarding the minimization of diverted medication. [25] I accept the Operations Manager’s evidence that while he did not personally observe Mr. MacPherson’s meals at any time, he

observed no record of any breach of policy regarding the nutritional content or the observance of religious requests pertaining to meals atthe new Edmonton Remand Center. [26] In Mr. MacPherson’s May 7, 2013 affidavit, he deposed to an improvement in his Remand conditions once moved to the newEdmonton Remand Center. Specifically, he deposed to having received his first warm meal in months. In his affidavit dated October 4,2013 Mr. MacPherson complained of receiving a “brown, foul-smelling, chicken or turkey meat at least once per day”. He deposed to hisbelief that it is rotting.

It appears from his request forms that he takes issue with the institution’s practice of precooking, chilling andreheating meals. His request forms consist of complaints primarily relating to choice, flavour or lack thereof, temperature and caloriccontent of his meals. [27] The Operations Manager deposed that Mr. MacPherson receives the same caloric content that any other inmate receives anddescribed the cooking process that was explained to Mr. MacPherson. He also stated that Mr. MacPherson is receiving a meal that meetshis religion-based dietary restrictions and observed that Mr.

MacPherson could opt for a vegetarian meal that would eliminate entirelythe meat source he takes exception to. [28] Without in any way trying to trivialize Mr. MacPherson’s perception of his conditions, his complaints are, ultimately,expressions of preference. He would prefer better tasting food, better smelling food, better looking food and a greater quantity of food. Inaddition, he wants certain medications to be administered, but he continues to engage in behaviour that causes Centre medical staff tomake changes either to what Mr.

MacPherson medically requires or to the manner in which it is dispensed to him. [29] In my view, these complaints do not objectively rise to the necessary threshold, which has been described by the SupremeCourt of Canada in Miller et al v The Queen, (SCC), [1977] 2 SCR 680 as where “... punishment prescribed is soexcessive as to outrage standards of decency ...”, and subsequently in R v Smith, (SCC), [1987] 1 SCR 1045 at para. 54that “... the effect of that punishment must not be grossly disproportionate to what would have been appropriate”. The allegedmistreatment did not breach Mr.

MacPherson’s Charter s. 12 rights. There is therefore no need for me to continue to conduct a Charter,s. 24(1) analysis to determine whether Mr. MacPherson’s release would be the appropriate remedy in this instance. If I had taken thatstep I would not have ordered Mr. MacPherson’s release given my conclusion on the first and second grounds for his ongoing detention.An order of that kind would be a collateral attack on the order to deny bail that I have already confirmed. I would instead restrict myorder to remedy Mr.

MacPherson’s complaints concerning food and access to medical and psychiatric therapy. [30] I note in passing that Mr. MacPherson complains about administrative decisions made by corrections officials that he believeshave negatively affected him. Such complaints could invite a range of remedies from internal appeals to judicial review of those specificdecisions, but it appears as though none of those remedies have been pursued.

Accordingly, there appear to be remedies that were notexhausted before resorting to habeas corpus. [31] In addition, as stated in Mapara v Ferndalee Institution (Warden), 2012 BCCA 127, a decision from the British ColumbiaCourt of Appeal, the scope of habeas corpus is not every administrative decision made by corrections officials, but rather, only those thatresult in a substantial change in the conditions of an inmate’s confinement that adversely affects that inmate’s residual liberty interests.Because I am not satisfied anything Mr.

MacPherson currently complains about adversely affects his residual liberty interests, I am notconvinced this is a proper basis for a habeas corpus application in any event. [32] In conclusion, Mr. MacPherson’s application for release on either basis is dismissed. The applications for declaratory reliefand for a judicial stay are properly matters for the case management judge and I decline jurisdiction to consider those applications. Heard on the 12th day of November, 2013. Dated at the City of Edmonton, Alberta this 15th day of November, 2013. M.G. Crighton J.C.Q.B.A. Appearances: C. Downey

Alberta Justice for the Crown A. Hart-Dowhun Engel Law Office for the Accused D. McLaughlin Field LLP for Alberta Health Services