Rain v Canada (Parole Board), 2015 ABQB 747

Court of Queen ’ s Bench of Alberta Citation: Rain v Canada (Parole Board), 2015 ABQB 747 Date: 20151126 Docket: 151054038X1 Registry: Edmonton In the Matter of An Application for Habeas Corpus Between: Vincent Rain Respondent - and - The Parole Board of Canada and the Warden of Bowden Institution Applicant _______________________________________________________ Memorandum of Decision of the Honourable Madam Justice D.L. Shelley _______________________________________________________ I. Introduction [ 1 ] Mr. Rain is a prisoner at the Bowden Institution, where he is serving an eight year custodial sentence for sexual assault and

assault causing bodily harm, and a ten year Long Term Supervision Order [“ LTSO ”]. His LTSO was suspended on July 23, 2015, and he was subsequently returned to the Bowden Institution. Mr. Rain then made a habeas corpus application to this Court, which I rejected in a decision reported as Rain v Canada (Parole Board) , 2015 ABQB 639 . [ 2 ] I declined to take jurisdiction of Mr. Rain’s habeas corpus on two bases: 1. the Parole Board provides a complete, comprehensive, and expert procedure, and 2. the remedy Mr.

Rain sought did not represent a deprivation of liberty. [ 3 ] I therefore refused to examine the substance of Mr. Rain’s complaint, and invited submissions on costs. On Nov. 6, 2015, the Applicants applied for costs against Mr. Rain. II. The Positions of the Parties [ 4 ] The Applicants’ submission is that, as the successful party, they should receive costs. The Alberta Rules of Court , Alta Reg 124/2010 [the “ Rules ” or individually a “ Rule ”]

Schedule C tariff for an application with a written brief is $1,000.00. Disclosure of records, which in this case was voluminous, has a $500.00 tariff. [ 5 ] The Applicants noted that $250.00 cost awards had been made in Ewashko v Bowden Penitentiary (11 June 2014), Red Deer 140506619X1001 (Alta QB) and Alton v Bowden Penitentiary (16 June 2014), Red Deer 100596717U101001 (Alta QB), whose analysis and result was similar to Mr. Rain’s habeas corpus application.

Other recent and unsuccessful Alberta Court of Queen’s Bench habeas corpus applications have resulted in no cost award to either parties, or did not specify the quantum of costs awarded to the Parole Board. The Applicants suggested that, due to his incarceration and restricted income, Mr. Rain should pay $500.00. [ 6 ] Mr. Rain indicated he would be pursuing his complaint at the Federal Court, and suggested any cost award should be deferred until that action is resolved.

He said he was not informed of the option of pursuing a judicial review of the Parole Board’s decision, and he only discovered this correct alternative after his unsuccessful habeas corpus application. [ 7 ] Mr. Rain explained he receives $15.00 every two weeks. Inmates who are employed receive $26.00-$27.00 every two weeks but he is not currently employed. Mr. Rain is currently seeking bail on recently laid charges. III. Analysis and Conclusion [ 8 ] The Rules provide this Court’s authority to award costs in civil litigation matters.

Habeas corpus is a civil remedy: Mapara v Ferndale Institution , 2013 BCCA 120 at para 7 , 335 BCAC 142; Wood v Atlantic Institution (Warden) , 2014 NBQB 135 at para 64 , 427 NBR (2d) 205. [ 9 ] While the jurisdiction to award costs is very broad ( Rules , 10.29-10-33), a successful party is presumptively entitled to costs on a party-and-party basis. [ 10 ] I agree with the comments of Walsh J, in Wood v Atlantic Institution (Warden) at paras 66-71 , that unrestricted use of habeas corpus by incarcerated individuals risks unwarranted and expensive litigation paid out of the taxpayers’ purse.

On the other hand, “... costs cannot become a roadblock to accessing the writ of habeas corpus. ...”: para 69. Justice Walsh concluded the appropriate response is therefore a modest cost award (paras 70-71): ... the just balance is found in imposing more modest cost awards relative to the length of the hearings, the conduct of the party and the merits of the claim than might otherwise be imposed, recognizing an inmate’s special situation. This would not be an exercise in futility either. ...

In my opinion, the historical and societal policy considerations that inform costs awards should not stop at the outside of prison walls. ... [ 11 ] Here Mr. Rain’s habeas corpus claim was meritless. He now acknowledges that he had taken his complaint to the wrong court, and is seeking or plans to seek review of the Parole Board’s July 23, 2015 decision in the Federal Court of Canada. The result is that the Applicants incurred significant expenditure for no valid purpose.

That makes this a case where a substantial cost award is justified. [ 12 ] I therefore order the $500.00 amount sought by the Applicants, which is to be paid at the rate of $5.00 every two weeks. [ 13 ] I would have considered a higher cost award, given the lack of merit to this habeas corpus application.

Germain J recently, in Amer v Canada (Attorney General) (20 November 2015), Edmonton 1503 14586 (Alta QB), concluded that a modest cost award of $250.00 was appropriate for an unsuccessful habeas corpus application, given that the Court took jurisdiction of the matter and that the applicant had advanced a well argued and reasoned case. Where, as here, the opposite is true, as a general principle an unsuccessful habeas corpus applicant should face a higher and substantial costs penalty.

This is a reflection of the Rule 10.33 considerations that are relevant to a determination of costs, and the Rule 1.2 objectives of achieving efficient and timely resolution of legal disputes that incur the minimum expense to the participants and preserve court resources. Heard on the 24 nd day of November, 2015.

Dated at the City of Edmonton, Alberta this 26 th day of November, 2015. D.L. Shelley J.C.Q.B.A. Appearances: Mr. Rain Appearing on his own behalf Christine Ashcroft Department of Justice Canada for the Applicants