Latham v Canada (Attorney General), 2017 ABQB 0338

Court of Queen’s Bench of Alberta Citation: Latham v Canada (Attorney General), 2017 ABQB 0338 Date: 20170523 Docket: 1702 00011 Registry: Drumheller In the Matter of an Application for Habeas Corpus Between: Bryan R. Latham Applicant - and - Her Majesty the Queen and Attorney General of Canada Respondent _______________________________________________________ Memorandum of Decision of the Honourable Madam Justice G.A. Campbell _______________________________________________________ [ 1 ] On January 9, 2017, the Applicant, Bryan R Latham, applied for habeas corpus (with certiorari in aid).

At the time of his application, Mr. Latham was a prisoner incarcerated at the Drumheller Institution, a medium-security federal correctional facility in Alberta. [ 2 ] In 1987, Mr. Latham was designated a dangerous offender and is serving an indeterminate sentence for various violent offences, including sexual offences.

Background [ 3 ] In March 2013, the Parole Board of Canada (the “PBC”) authorized Mr. Latham’s first release into the community on day parole. At the time of his release, Mr. Latham had been incarcerated in Riverbend Institution, a minimum-security institution in Saskatchewan. [ 4 ] After almost two years, on May 12, 2015, Mr. Latham’s parole supervisor suspended Mr. Latham’s parole (the “2015 Parole Suspension”). On his return to incarceration, Mr.

Latham’s penitentiary placement and security level was classified as medium security (the “2015 Re-entry Security Classification”) and he was placed in the Saskatchewan Penitentiary- Medium. Following his re- commitment, Mr. Latham made a number of allegations of impropriety regarding the 2015 Parole Suspension and his 2015 Re-entry Security Classification. [ 5 ] Mr.

Latham grieved his 2015 Re-entry Security Classification in June 2015 (the “2015 Classification Grievance”) to the National Headquarters (“NH-CSC”) of Correctional Services Canada (“CSC”) seeking to be classified as a minimum security offender, as he had been when initially released into the community. Mr. Latham alleges that the parole supervisor who had suspended his parole was biased towards him and that his bias had prompted these unlawful actions. Mr.

Latham points to the PBC decision to cancel the suspension of his parole in 2015 for reason that his risk had not escalated to an undue level, which in his view, would support a minimum and not a medium security classification. Mr. Latham also noted that the parole supervisor had wrongfully not considered his rebuttal because it was a few hours late. Mr. Latham further alleges that his security classification resulted from a CSC policy implemented in 2015 or 2016 that mandated that all inmates suspended from parole were to be classified as medium security offenders. [ 6 ] Mr.

Latham is still awaiting the results of the 2015 Classification Grievance. Mr. Latham had received correspondence from NH-CSC advising that his 2015 Classification Grievance was still in the process of being assigned to a grievance analyst due to current increases in the volume of complaints/grievances thereby delaying any decision on the grievance. On January 23, 2017, Mr.

Latham sent NH-CSC 36 additional pages of information as an addendum to his 2015 Classification Grievance, which incorporates his complaints about his recent 2016 re-entry penitentiary placement and classification as a medium security offender (“2016 Re-entry Classification Complaint”). Recent correspondence from NH-CSC advised Mr. Latham once again that a decision on his 2015 Classification Grievance had been delayed, projecting that a decision would be rendered by May 5, 2017. [ 7 ] It may be that Mr. Latham’s 2015 Re-entry Security Classification became a moot issue with the PBC’s decision to cancel Mr.

Latham’s 2015 Parole Suspension and he was released back into the community on day parole. [ 8 ] Mr. Latham’s 2015 Parole Suspension was referred for review to the PBC on June 10, 2015, in accordance with the Corrections and Conditional Release Act , RSC 1992, c C-30, and the regulations thereunder (the “ CCRA ”). [ 9 ] In the meantime, Mr. Latham also brought an application in the Court of Queen’s Bench of Saskatchewan seeking a writ of habeas corpus with certiorari in aid to declare the 2015 Parole Suspension illegal and return him to the place he had been prior to the suspension. Mr.

Latham then filed a “postponement report” with the PBC requesting postponement of their review until he received the decision from the court. [ 10 ] In August 2015, a justice of the Saskatchewan Court of Queen’s Bench declined to exercise habeas corpus jurisdiction in favour of the review process by the PBC under the CCRA . In February 2016, the Saskatchewan Court of Appeal dismissed Mr. Latham’s appeal of that decision. [ 11 ] On August 30, 2016, the PBC cancelled Mr. Latham’s parole suspension and he was released a second time into the community on day parole. [ 12 ] On October 21, 2016, Mr.

Latham’s parole supervisor suspended Mr. Latham’s day parole (the “2016 Parole Suspension”) after receipt of information that Mr. Latham had made threats to his ex-son-in-law, which resulted in a police report being filed by the ex-son-in-law. [ 13 ] On November 4, 2016, Mr. Latham’s 2016 Parole Suspension was referred to the PBC for review as required by the CCRA , which requires that the PBC review the suspension and render a decision within 90 days. Mr. Latham had requested that the PBC postpone its review of the 2016 Parole Suspension.

Ultimately, the post-suspension hearing was heard on May 10, 2017. [ 14 ] On re-commitment, Mr. Latham was again classified as an offender requiring a medium security institution and he was placed in the Saskatchewan Penitentiary – Medium. [ 15 ] On entry to the Saskatchewan Penitentiary, Mr. Latham advised personnel that he did not wish to remain in the Saskatchewan Penitentiary for safety reasons. Mr.

Latham also provided written information to the community parole office indicating that if he were held at the Saskatchewan Penitentiary, his safety and life would be in danger. [ 16 ] Based on this information, CSC contacted a number of other institutions, namely, Grande Cache Institutions, Drumheller Institution, Stony Mountain Institution and Bowden Institution, to determine whether they would accept Mr. Latham for placement. The Drumheller Institution was willing to accept Mr. Latham for placement. [ 17 ] On November 9, 2016, Mr.

Latham submitted a rebuttal to the Assessment of Decision (A4D) in respect of his security classification and penitentiary placement. Mr. Latham requested that he be classified as a minimum-security offender. Mr. Latham alleged that his parole supervisor was biased against him and had a second time unlawfully suspended his parole. Mr.

Latham contends that he had never threatened his ex-son-in-law, that his ex-son-in-law had threatened him, no charges were laid by police, he has no history of threatening anyone with physical harm and that in any event he posed no threat given his physical proximity in Saskatoon and his son-in-law was physically located mile away in Winnipeg.

[ 18 ] When Mr. Latham provided his rebuttal to CSC, he also requested that he be permitted to remain at the Saskatchewan Penitentiary and opposed any transfer from Saskatchewan Penitentiary. Reasons given by Mr. Latham were that he had successfully integrated at Saskatchewan Penitentiary, and “all that is necessary now is to stop the abuse of power and authority by CX” and that he had court proceedings that he believed would be delayed if he were placed to another institution. Mr.

Latham maintained in his rebuttal that he had been assaulted in the Saskatchewan Penitentiary and that “his life and security was threatened”. [ 19 ] After receipt of Mr. Latham’s rebuttal, a final decision was issued by the Area Director confirming Mr. Latham’s security classification as medium security (the “2016 Classification Decision”). Reasons given for the 2016 Classification Decision included that Mr. Latham had been released to parole in 2015 as a medium security offender, the CMT rated Mr. Latham’s Institutional Adjustment as moderate, Escape Risk as Low and Public Safety as moderate.

The CRS completed on Mr. Latham resulted in a maximum-security classification. The conclusion was that “taking the offender’s suspension and rebuttal into consideration, it is recommended that Latham’s security be classified as medium”. [ 20 ] The Area Director further decided that “based on all relevant information Penitentiary placements to the Drumheller Institution – Medium is appropriate and approved” and Mr. Latham was transferred to the Drumheller Institution (the “2016 Transfer Decision”). [ 21 ] It does not appear that Mr.

Latham has grieved either the 2016 Classification Decision or the 2016 Transfer Decision to the CSC. [ 22 ] In November 2016, Mr. Latham brought an application for habeas corpus (with certiorari in aid) before the Saskatchewan Court of Queen’s Bench seeking the court’s review of the 2016 Parole Suspension. [ 23 ] On December 8, 2016, Justice Meschishaick of the Saskatchewan Court of Queen’s Bench dismissed (the “2016 Court Dismissal Decision”) Mr.

Latham’s habeas corpus application (with certiorari in aid) for reason that Canadian courts and, in particular, the Saskatchewan Court of Appeal, has repeatedly determined that the Court is to decline to hear habeas corpus applications to review challenges to parole suspensions and terminations because these applications are appropriately dealt with by the PBC, which under the CCRA , provides parolees with a complete, comprehensive, and expert review process for challenging the suspension or cancellation of parole. [ 24 ] Mr.

Latham has appealed the 2016 Court Dismissal Decision to the Saskatchewan Court of Appeal. A decision has yet to issue on the appeal. [ 25 ] Mr. Latham brought the current habeas corpus application for review of the 2016 Classification Decision and the 2016 Transfer Decision. He seeks an order declaring the two decisions unlawful and directing that he be returned to a minimum-security federal correctional facility in Saskatchewan. In connection with this, Mr. Latham challenges a CSC policy mandating that all persons whose parole was revoked are to be classified as medium security inmates is unconstitutional.

Finally, Mr. Latham seeks to have set aside various determinations of his status as a dangerous offender. [ 26 ] At the hearing of Mr. Latham’s application, Mr. Latham invited the court to declare that his 2016 Parole Suspension unlawful and return him to day parole, which was where he was before the 2016 Parole Suspension. [ 27 ] On May 10, 2016, the PBC cancelled Mr. Latham’s parole suspension and he has been released into the community on day parole. [ 28 ] The Respondent submits that the relief sought by Mr.

Latham has become moot with his release from the Drumheller Institution into the community on day parole. [ 29 ] Mr. Latham has now requested that the Court consider new relief. He asks this court to order the Salvation Army in Saskatoon, which is apparently a Correctional Service of Canada’s Community Residential Facility be ordered to take Mr. Latham into their facility. Decision [ 30 ] The issues sought to be resolved by Mr. Latham’s habeas corpus application have been resolved with his release from the Drumheller Institution to the community and the relief he had sought is now moot.

More importantly, there is no longer any basis on which to take jurisdiction to determine his application for habeas corpus relief as the preconditions for the court to exercise its habeas corpus jurisdiction -- the establishment of a deprivation of liberty – no longer exists. The PBC’s decision to cancel Mr. Latham’s parole suspension and release him back into the community has resolved any issue in respect of any deprivation of Mr. Latham’s liberty. [ 31 ] With respect to the new relief sought by Mr. Latham, that matter is not properly the subject of this application and is not an issue before this court.

Should Mr. Latham wish to pursue his complaints regarding the refusal of the Salvation Army in Saskatoon to accept Mr. Latham in its Community Residential Facility, a new application will be required. [ 32 ] For these reasons, Mr. Latham’s application for habeas corpus (with certiorari in aid) filed January 9, 2017 in the Judicial Centre of Drumheller is moot and is hereby dismissed. Heard on the 30 th day of March, 2017. Dated at the Town of Drumheller, Alberta this 23 rd day of May, 2017.

G.A. Campbell J.C.Q.B.A. Appearances: Bryan R. Latham (self-represented) Robert Drummond for the Respondent