R v Norman, 2016 ABQB 672

Court of Queen’s Bench of Alberta Citation: R v Norman, 2016 ABQB 672 Date: 20161201 Docket: 161065024X1 Registry: Edmonton Between: Her Majesty the Queen - and - Darren Norman _______________________________________________________ Reasons for Judgment of the Honourable Madam Justice D.L. Shelley _______________________________________________________ Nature of the Application [ 1 ] Mr. Norman filed an application for habeas corpus on September 16 th , 2016, requesting that he be “ordered released back onto parole supervision within five days of this Order”.

In addition, he sought “further remedies of compensation...in the form of costs for this application, and for costs lost for the time he has spent unnecessarily, loss of residual liberty, in custody under s 24 of the Charter ”. Background [ 2 ] On May 19 th , 2016, the Parole Board (the “Board”) had granted Mr. Norman day parole on certain conditions, including that he not consume, purchase or possess non-prescribed medication, and that he reside at a community correctional centre or residential facility for six months.

[ 3 ] Mr. Norman had been residing at the Stan Daniels Healing Centre (the “Centre”) when, on July 26 th , a person designated under the Corrections and Conditional Release Act (“ CCRA ”) suspended his day parole after receiving information that he had breached a condition of his parole (specifically, that he had taken morphine). [ 4 ] On August 17 th , the Centre referred the matter to the Board, recommending revocation of Mr. Norman’s day parole on the basis that his risk to reoffend in the community could not be managed. [ 5 ] The post-suspension review hearing was scheduled for October 18 th .

This habeas corpus application was scheduled to be heard three days later. [ 6 ] At the time of filing of its memorandum in connection with Mr. Norman’s application, the Respondent advised that the Board hearing the post-suspension review would render its decision immediately, with written reasons following within one to two days. It further advised that, should an appeal be filed, the Appeal Division would take an average of 75 days from submission of the appeal to a determination in a case such as Mr.

Norman’s. [ 7 ] By the time the parties appeared before me on October 21 st , the post-suspension review hearing had been conducted. A decision had been rendered by the Board, reinstating Mr. Norman’s day parole. Position of the Parties [ 8 ] The Respondent had originally argued, in its brief, that Mr. Norman’s application ought to be struck, because he had not availed himself of the review and appeal procedures under the CCRA . By the time of the hearing before me, the Respondent argued that the application had become moot and there was no need for it to proceed.

The Respondent indicated that it would not seek costs, however, because it had not been able to reach Mr. Norman between the rendering of the Board’s decision and the application before me, and therefore had not been able to request that Mr. Norman withdraw his application on a without-costs basis. [ 9 ] While acknowledging that his application for release had become moot by virtue of the Board’s decision, Mr. Norman nonetheless wished to proceed with his application.

He wished to seek $21,000 in lost wages, the costs of bringing his application, and damages for the negative personal consequences suffered by him as a result of the suspension of his day parole. He relied on the British Columbia Court of Appeal decision in Vukelich v Mission Institution , 2005 BCCA 75 . He took the position that this case also involved a moot habeas corpus application, and had resulted in an award of costs for every day that Mr. Vukelich had lost his liberty, on the basis that the decision reinstating his parole constituted “an admission of guilt”. [ 10 ] Mr.

Norman was also of the view that this Court had recently awarded someone (named Mr. Doll) $500 in costs in connection with a habeas corpus application. The Respondent advised that Mr. Norman was mistaken in his understanding and that, in the Doll matter, the Respondent had been awarded $500 in costs in its favour against Mr. Doll. Analysis and Disposition [ 11 ] Mr. Norman appears not to understand the nature of a habeas corpus application and, more particularly, what remedy is available in connection with this type of application. Habeas corpus is a common law right, now enshrined in s 10(

c) of the Charter , which affords detained persons access to the courts for the purposes of demanding that the state prove that the detention is lawful. [ 12 ] The applicant has the onus of making out a deprivation of liberty and the detaining authority has the onus of establishing the lawfulness of the deprivation: May v Ferndale Institution , 2005 SCC 82 at para 74 . If the Crown cannot establish on a habeas corpus application that the detention is lawful, the traditional remedy available to the applicant is his or her release. [ 13 ] Here, Mr.

Norman seeks remedies that are not available in a habeas corpus application. Mr. Norman’s day parole has been reinstated. He mistakenly believes, on the basis of a misunderstanding of Vukelich , that he can recover lost wages and damages in connection with this application. [ 14 ] Vukelich does not stand for the proposition advanced by Mr. Norman. In that case, Mr. Vukelich sought court costs of the habeas corpus application. Since a habeas corpus application is characterized as a civil matter, costs are potentially available to the successful party. When Mr.

Vukelich’s habeas corpus application became moot, an application was heard to determine whether costs, including enhanced costs, ought to be awarded in the circumstances of that case. Mr. Vukelich’s lawyer had provided detailed time records, indicating that he had spent considerable time working on both the habeas corpus application and parallel administrative proceedings before the Segregation Review Board. At no point in the Vukelich decision was there any discussion of, much less awarding of, amounts in respect of lost wages or compensation for loss of liberty.

The decision is confined solely to whether or not Mr. Vukelich would receive court costs for the habeas corpus application and, if so, the magnitude of those costs in light of the fact that his lawyer had also been providing legal services in parallel proceedings. The issue of enhanced costs arose out of a finding of reprehensible conduct on the part of the Warden. [ 15 ] The law is not clear as to whether damages can be awarded as a remedy in an application for habeas corpus , without more.

In appropriate situations, a wrongfully detained person may be entitled to claim damages in an appropriately initiated tort action: Genge v Canada (Attorney General) , 2007 NLCA 60 . As well, damages might be awarded as a remedy under s. 24(1) where a Charter breach is established.

Section 10(

c) of the Charter enshrines the right to have the validity of a detention determined by way of habeas corpus and to be released if the detention is not lawful. In Canada (AG) v Elguindy , 2009 ONCA 738 , the Court declined to address whether damages may be sought as ancillary relief to the prerogative remedy of habeas corpus . See also Trang v Alberta (Attorney General) ,

2014 ABCA 382 at para 5, where the Court cited R v RGF (1991), (NL SC), 90 Nfld & PEIR 113, 5 CRR (2d) 62 andR v Kenny (1992), (NL SC), 99 Nfld & PEIR 107, 11 CRR (2d) 82 as some authority for the proposition that Charterdamages could be awarded in criminal prerogative proceedings, at least where no other suitable remedy could be identified. [16] In this case, I need not decide whether damages are available in this prerogative proceeding. Mr. Norman proceeded with anapplication that was premature and, ultimately, unnecessary. Mr.

Norman exercised the rights he had under the administrative system thatis in place to deal with the suspension of day parole. The system worked. It worked faster than the proceedings before this Court. Mr.Norman obtained the remedy he sought through the procedures established under the CCRA. There is no basis on the information beforethe Court to find that the proper functioning of the system under the CCRA in this case somehow entitles Mr. Norman to payment ofdamages. [17] In the result, the application was moot and unmeritorious.

Costs consequences may well flow from frivolous or unmeritoriousapplications, as occurred in Doll. See also Elguindy, at para 5. [18] Rather than withdraw this application when it was no longer necessary, Mr. Norman proceeded with this application in orderto seek remedies that were not warranted in this context. This resulted in a half day of court time, as well as time necessary to prepare forit, being expended on an application that could only have provided Mr. Norman with something he had received three days earlier, andnot that which he was seeking. [19] Mr.

Norman advised that he did not have a lawyer represent him in this matter, although a non-lawyer did provide him withassistance in preparing his documentation and advised him concerning this application. [20] In the normal course, the Crown would be entitled to costs of this application and, in principle, I would have no hesitation inawarding costs against Mr. Norman. [21] However, given that the decision of the Board was issued very close in time to this application, the Crown had not had anopportunity to ask Mr. Norman to withdraw the application, and Mr.

Norman appears to have been misinformed by someone as to theviability of his application for damages, I decline to award costs against Mr. Norman in this particular instance. Heard on the 21st day of October, 2016. Dated at the City of Edmonton, Alberta this 1st day of December, 2016. D.L. Shelley J.C.Q.B.A. Appearances: Christine Ashcroft Department of Justice Canada Darren Norman Self-represented Litigant