Voisey v Canada (Attorney General), 2016 ABQB 316

Court of Queen ’ s Bench of Alberta Citation: Voisey v Canada (Attorney General), 2016 ABQB 316 Date: 20160606 Docket: 160423141X1 Registry: Edmonton Between: Brandon Charles Voisey Petitioner - and - Attorney General of Canada Respondent _______________________________________________________ Memorandum of Decision of the Honourable Madam Justice M.G. Crighton _______________________________________________________ I. Introduction [ 1 ] Brandon Charles Voisey [“Mr.

Voisey”] is a prisoner at the Bowden Institution, where he is serving a two year, ten month sentence for multiple charges: • 8 x failure to comply with an undertaking or term of recognizance, • dangerous operation of a motor vehicle, • failure to comply with a probation order, • unauthorized possession of a firearm, • 2 x possession of a weapon for a dangerous purposes, and • 3 x possession of an illegal drug for the purposes of trafficking.

These convictions result from two incidents. In the first, Mr. Voisey was stopped in a motor vehicle where he was found with brass knuckles, a sawed-off shotgun, a switchblade, marijuana, cocaine, and methamphetamine. Two months later, he was found with a sawed- off shotgun, cocaine, and a large knife. At the time, Mr. Voisey was on probation. [ 2 ] On February 26, 2016, Mr. Voisey underwent an involuntary transfer from the Grierson Institution minimum security facility to Bowden Institution, a medium security level prison facility. [ 3 ] Mr.

Voisey, on April 11, 2016, filed a habeas corpus application that challenges this transfer. The Crown acknowledges that Mr. Voisey has undergone a restriction on his freedom as a consequence of this transfer: Mission Institution v Khela , 2014 SCC 24 , [2014] 1 SCR 502. That admission shifts the onus to the Crown to prove that Mr. Voisey’s transfer was reasonable. II. The Alleged Unjust Deprivation of Liberty [ 4 ] On February 7, 2016, an officer at the Grierson Institution who was conducting a walk outside noticed the smell of burning marijuana that got stronger as he got closer to a location where Mr.

Voisey and another inmate were standing. When located one said, “Oh shit”. They were found with items that could be used to mask that drug’s odor. Mr. Voisey denied using marijuana, but admitted to ingesting Tylenol-3. Subsequent urine testing of Mr. Voisey detected amphetamines and methamphetamine. On February 12, 2016, the Acting Director of the Grierson Institution decided to transfer Mr. Voisey to the Bowden Institution on an emergency basis. [ 5 ] As Mr.

Voisey’s room contents were packed for that transfer, corrections officers’ located contraband, including fans, PlayStation video game consoles and games, cigarettes, cigarette rolling paper, synthetic marijuana, condoms, medical gloves, wooden items and brackets taken from maintenance, a large quantity of pornographic magazines, and guava flavoured anal lube. [ 6 ] Prior to the February 7, 2016 incident, Mr. Voisey had been authorized to take escorted and unescorted temporary absences.

He had served approximately one-third of his sentence. [ 7 ] The February 12, 2016 involuntary transfer and reclassification is documented in an eight page decision. The decision reviews Mr. Voisey’s offences and identified him as a 22-year-old non-aboriginal Canadian citizen. Mr. Voisey was denied parole in May 2015. He was subsequently transferred from the Drumheller Institution to the Grierson Institution in June 2015. [ 8 ] The decision observes that while Mr.

Voisey had participated in some rehabilitation and education programming, he had apparently reverted to his “offence cycle” of using illegal substances and disregarding institutional rules. Mr. Voisey has not been the subject of a psychological assessment and was seen as a low risk for escape. His public safety risk is low, despite his being found in possession of weapons. [ 9 ] The February 12, 2016 decision was made on the basis of Mr. Voisey’s failed drug test and did not consider the additional contraband located when Mr. Voisey’s belongings were packed for transport. The decision indicates Mr.

Voisey had two days to provide a written rebuttal. The record does not indicate Mr. Voisey took that step. A final reassessment and transfer decision dated February 26, 2016 parallels the February 12, 2016 decision, noting that Mr. Voisey’s drug-related misconduct and the presence of contraband indicates that Mr. Voisey was not abiding by institutional rules. III. Mr. Voisey’s Submissions [ 10 ] Mr. Voisey alleges his Charter , ss 1, 7, 12, and 15 rights have been infringed, and demands a remedy under Charter , s 24.

He says he was: ... emotionally upset and crushed as a result of the Parole Board denying me day and full parole for the reasons that I pose an undue risk to the public when in fact I know that it is incontestable that I could be an undue risk when all prisoners know Corrections Canada will never send a prisoner to poses an undue risk to the public to a minimum. ... Important to note : I knew the Parole Board was untruthful.

As a result I began to use drugs to numb out the crushing emotional depress I was feeling as I was really emotionally hurt. ... [Sic, emphasis in original.] [ 11 ] He admits he likes drugs and smoking, but argues he is not violent. His weapons were only intended to intimidate others. He alleges that since he has no history of violence, any involuntary transfer “... is based on a guess, suspicion, and unproven circumstances ...” and that is unlawful and arbitrary. [ 12 ] His unlawful detention in the Bowden Institution breaches his Charter , ss 7-9, and 12 rights.

He is discriminated against in violation of his Charter , s 15 rights because he is “a second class citizen” as a consequence of his incarceration. [ 13 ] In his application, Mr. Voisey complained his room was searched without his knowledge and that is contrary to Charter , s 8. He did not pursue this argument in his oral submissions to the Court. [ 14 ] He self-identifies as a functional user/addict and says Canadian courts do not incarcerate persons of that type. He should have received the “least restrictive measure”, which would be discipline at the Grierson Institution, rather than transfer.

The decision to transfer is “arbitrary and unreasonable” because the decision is based on “static factors being factors that will never change”. IV. Prima Facie Unlawful Loss of Freedom

[15] In Mission Institution v Khela, the Supreme Court of Canada clarified the superior court’s authority to review state detentionvia habeas corpus and commented on the operation of habeas corpus in relation to incarcerated persons. The first step towards apotential habeas corpus proceeding is that an inmate must raise “... a legitimate ground upon which to question the legality of thedeprivation ...”: Mission Institution v Khela, at para 86; May v Ferndale Institution, 2005 SCC 82 at para 71, [2005] 3 SCR 809. [16] A number of Mr. Voisey’s complaints fail to meet this threshold.

His Charter, s 8 complaint concerning an allegedly illegalsearch of his Grierson Institution room that located contraband is irrelevant to this habeas corpus application since the decision toreclassify and transfer him to Bowden Institution was not based on what was found in his room. Even if it were relevant (which it is not),I would not classify the retrieval and documentation of the property in that room as a “search”. The contraband was instead discovered asa collateral result of corrections officers engaged in their proper duties, which included care for Mr. Voisey’s property.

The Crownargues, and I agree, that Mr. Voisey had a reduced expectation of privacy in the content of his prison room (Weatherall v Canada (AG), (SCC), [1993] 2 SCR 872 at 877, 105 DLR (4th) 210), and that searches of those spaces are authorized by theCorrections and Conditional Release Regulations, SOR/92-620. Mr. Voisey has not challenged the constitutional validity of thatlegislation. [17] A second complaint that fails to meet the “legitimate ground” threshold is the undeveloped allegation of prohibited Charter, s15 discrimination.

There is no question that incarcerated and non-incarcerated persons are treated differently in Canada, however Mr.Voisey has done nothing more than allege a distinction. [18] Mr. Voisey’s argument that Canadian courts do not incarcerate “functional users/addicts” is also rejected on two bases. First,this point is irrelevant since the issue for this court is not whether incarceration is or is not appropriate for “functional users/addicts”, butrather whether individuals who abuse illegal drugs warrant various levels of incarceration. Second, Mr.

Voisey is not a “functionaluser/addict”; he is a convicted drug trafficker. Drug trafficking is a serious type of offence that warrants social deterrence and sanction: Rv Pearson, (SCC), [1992] 3 SCR 665 at paras 60-61, 144 NR 243. He is wrong in law if he says he cannot beincarcerated for his misconduct. [19] Another argument by Mr. Voisey, that does not reach the necessary “legitimate ground” threshold, is that the reclassificationand transfer decision was based on “static factors being factors that will never change”. That is plainly false. The decision to reclassifyand transfer Mr.

Voisey was the result of him being detected using illegal narcotics. That is not a static factor but rather a newdevelopment. [20] This leaves Mr. Voisey’s allegations that the decision to reclassify and transfer him was unreasonable or legally incorrectbecause it was unlawful and arbitrary because: 1. he is not violent; 2. it “... is based on a guess, suspicion, and unproven circumstances ...”; and 3. he should have received the least restrictive measure. V. Was the Reclassification and Transfer Reasonable? [21] I conclude that Mr.

Voisey has met “legitimate ground” threshold for claiming that he was arbitrarily reclassified andtransferred in February 2016. That places the onus on the Crown to prove that decision was lawful and reasonable: Mission Institution vKhela, at paras 71-72. A reasonable decision is one that falls within the “range of possible, acceptable outcomes which are defensible inrespect of the facts and law”: Mission Institution v Khela, at para 73; Dunsmuir v New Brunswick, 2008 SCC 9 at para 47, [2008] 1SCR 190.

The decision’s reasoning must be transparent, justified, and intelligible, and logically connected to the result: MissionInstitution v Khela, at para 73; Newfoundland and Labrador Nurses’ Union v Newfoundland and Labrador (Treasury Board), 2011SCC 62 at para 12, [2011] 3 SCR 708. [22] The Crown’s argument is simple. Mr. Voisey engaged in prohibited activities and attempted to conceal and deny that. He didnot abide by the rules of the institution in which he was incarcerated. This illustrated that Mr. Voisey could not be managed in thatregime and needed to be returned to a stricter and more controlled setting.

Violence (or lack thereof) is only one factor that determines aprisoner’s security classification. The emergency and final reclassification and transfer decisions satisfy the procedural justicerequirements for those processes. [23] I agree. Mr. Voisey’s argument he should have received the least restrictive measure in response to his misconductmisunderstands the nature of a habeas corpus review of the lawfulness of the decision to reclassify and transfer him.

He has not proventhat a “least restrictive measure” is required by law, and my task is to consider whether Corrections Service Canada’s response was in the“range of possible ... outcomes”, which it clearly is. Nor was the decision “based on a guess, suspicion, and unproven circumstances”.The decision was instead based on eyewitness testimony by a corrections officer and by forensic drug testing. [24] Public risk due to escape and a potential for violence are not the only reasons why persons are incarcerated.

Other objectivesof the criminal justice and corrections apparatus are rehabilitation, denunciation, and deterrence. Mr. Voisey is a drug trafficker whoadmits he is also a drug user. He likes drugs. He was convicted, incarcerated, and kept separate from Canadian society to encourage himto end that misconduct. When placed in a minimum security facility, his response was to get drugs. Drug testing identifiedmethamphetamine use. The Court may take judicial notice of the severe personal and social consequences to use of that narcotic. Toleave Mr.

Voisey to continue to operate in an environment that permits him to continue his pattern of illegal activities and affiliationsdefeats the object of his incarceration. Mr. Voisey has no right to complain that Correctional Services Canada has taken steps so he isbeing separated from drugs. He knows they are illegal. He chose to break the rules. He now reaps the consequences, which I conclude,were not only reasonable, but correct on a balance of probabilities.

[ 25 ] I therefore reject Mr. Voisey’s habeas corpus challenge to his emergency transfer and reclassification. The additional evidence of Mr. Voisey’s refusal to follow institution rules that emerged when his property was inventoried merely underlines that Mr. Voisey’s reclassification and transfer was both reasonable and correct. [ 26 ] Last, I observe that Mr. Voisey’s habeas corpus application paints an unfavorable picture of this offender. He blames the Parole Board for his drug use, though he apparently did not appeal or otherwise challenge the result of that proceeding. [ 27 ] Similarly, Mr.

Voisey blames the contraband in his room on others: ... The items could have been put there by other prisoners who are using the Petitioner as an escape goat [sic] for something this other inmate has been caught for ... In his oral arguments he suggested the items in his room were things left by other inmates upon their release and stated that this reflected an economy to which the institutional population had simply adapted. These are additional excuses offered without supporting evidence. [ 28 ] While I do not base my decision on either Mr.

Voisey’s reaction to the Parole Board judgment or his excuses for being caught with contraband, I stress to him this failure to acknowledge wrongdoing is simply another factor that favours he is the subject of a greater level or degree of state action. If Mr. Voisey is to re-enter Canadian society and conduct himself lawfully, he needs to acknowledge his actions are wrong. He will ultimately face yet more difficulty if he continues to blame others when instead he is the one who is at fault. VI. Costs [ 29 ] The Attorney General seeks costs of $1,000.00. Mr. Voisey’s position on costs is, in

summary, that he should not be forced to pay costs for enforcing his rights. He also advices the Court that he earns $15 every two weeks. [ 30 ] Like any civil proceeding, an unsuccessful habeas corpus application presumptively leads to a cost award to the successful party, in this case the respondent: Alberta Rules of Court , Alta Reg 124/2010, Rule 10.29(1). [ 31 ] Further, where the application has no monetary value attached to it, costs are ordinarily awarded under Column 1 of

Schedule C.

Section 8 of that

Schedule contemplates an increased amount being awarded where the matter is complex. I observe that the materials Mr. Voisey filed are voluminous and resemble the materials filed in several other habeas corpus applications previously filed by others in this Court. For that reason, they are not particularly well focused, making it difficult for the Court and the Respondents to ascertain the real issues requiring response in the application . [ 32 ] Mr. Voisey’s application was entirely unsuccessful, and many aspects did not meet the “legitimate grounds” threshold that triggers a Crown onus to respond and prove Mr.

Voisey’s detention was lawful. His remaining grounds were very weak. [ 33 ] Shelley J in Rain v Canada (Parole Board) , 2015 ABQB 747 recently reviewed cost applications against prisoners who had advanced an unsuccessful habeas corpus application. She concluded, and I agree, that: ... unrestricted use of habeas corpus by incarcerated individuals risks unwarranted and expensive litigation paid out of the taxpayers’ purse. [ 34 ] Like Mr. Voisey, Mr. Rain’s habeas corpus application was meritless. Justice Shelley concluded: ... 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. [ 35 ] Taking all those factors into account, I accept the Crown’s submissions regarding the appropriate costs award, and order that Mr. Voisey pay the Respondent $1,000.00, payable at the rate of $5.00 every two weeks while Mr. Voisey remains incarcerated. Once Mr. Voisey is released, the balance will be payable immediately. Heard on the 3 rd day of June, 2016. Dated at the City of Edmonton, Alberta this 6 th day of June, 2016. M.G. Crighton J.C.Q.B.A.

Appearances: Brandon Charles Voisey for himself Christine Ashcroft Department of Justice Canada Prairie Region, Edmonton Office for the Respondent