Hamm v Morgan (Last Name Unknown), 2017 ABQB 156

Court of Queen’s Bench of Alberta Citation: Hamm v Morgan (Last Name Unknown), 2017 ABQB 156 Date: 20170303 Docket: 1703 02609 Registry: Edmonton Between: Matthew Christopher Hamm Applicant - and - Morgan (Last Name Unknown), Kirsten Dubrui, Both of Catholic Social Services, Katherine Berry of Edmonton Region Parole Office, and the Attorney General of Canada on Behalf of Her Majesty the Queen Respondents _______________________________________________________ Memorandum of Decision of the Honourable Mr. Justice Don J. Manderscheid _______________________________________________________ I.

Introduction [ 1 ] On February 6, 2017, Matthew Christopher Hamm [“Hamm”] applied to have his detention in the Edmonton Remand Centre reviewed via habeas corpus . Hamm’s application reads en toto : Grounds: The decision for Detainment is Unreasonable

Section 7 of the Charter of rights and Freedoms

Section 7 of the Charter states: 7. Everyone has the right to life, liberty and security of the person not to be deprived thereof except in accordance with the principles of

fundamental justice.

Section 9 of the Charter of Rights and Freedoms

Section 9 of the Charter states: 9. Everyone has the right to not be arbitrarily detained or imprisoned Evidence: Affidavit of Matthew Christopher Hamm and any other to be presented to the court. [2] Hamm did not file an affidavit in support of his habeas corpus application. [3] On February 16, 2017 the Attorney General of Canada applied for an order dismissing Hamm’s habeas corpus applicationon the basis that the Court should refuse to take jurisdiction of this matter.

This application was supported by an affidavit of KathrynD’Aoust that documented the reason and basis for Hamm’s current detention. [4] I heard the Attorney General’s application to strike the habeas corpus proceeding on February 24, 2017. The Crown arguedin a written brief and oral submission that this Court should not take jurisdiction of Hamm’s application. I agreed, and dismissed thehabeas corpus application, awarded costs against Hamm, with written reasons to follow.

These are those written reasons. [5] Hamm’s application was futile, and unfortunately, as my reasons will explain, was at the expense of precious Courtresources involving half a day of Court time and accompanying preparation time and had virtually no chance of success. This applicationis yet another example of the increasingly common habeas corpus applications received by this Court from persons detained in thecriminal justice apparatus and for reasons discussed in this decision, are brought without any or little chance of success.

Unfortunately,the majority of these types of habeas corpus applications are disposed of via oral reasons and therefore are not reported. I have issued awritten decision to better illustrate how the resources of this Court are being unduly impacted upon by habeas corpus applications suchas the present proceedings. II. Facts [6] Hamm is presently serving a five year six month sentence for offences including robbery, uttering death threats, break andenter, possession of a weapon while prohibited, theft, and failure to attend court and comply with court orders.

The death threatconviction occurred while Hamm was incarcerated. He is facing an additional criminal charge for alleged misconduct in the EdmontonInstitution. [7] On October 21, 2016 Hamm was released on Statutory Release, with Residency Conditions imposed by the Parole Board ofCanada, including a prohibition against consumption, purchase, or possession of drugs other than prescribed medication and over-the-counter pharmaceuticals. [8] After engaging in suspicious behaviour Hamm on January 31, 2017 was directed to undergo urinalysis. He refused. AnApprehension and Suspension warrant was issued for Hamm’s arrest.

His room contained what appeared to be drug paraphernalia.Testing identified cocaine, hash, and oxycodone. [9] Hamm is currently detained in the Edmonton Remand Centre awaiting a post-suspension review of his parole, perCorrections and Conditional Release Act, SC 1992, c 20, s 135(3)(b). Corrections Service Canada has 30 days from the January 31, 2017warrant to refer Hamm to the Parole Board of Canada for additional steps. III.

Habeas Corpus [10] In Mission Institution v Khela, 2014 SCC 24, [2014] 1 SCR 502, the Supreme Court of Canada indicated habeas corpus hasbroad application to persons in detention, where a decision to detain is unreasonable.

A person applying for relief via habeas corpusmust: 1. identify a loss of freedom, and 2. a basis on which to allege that the loss of freedom was unlawful. [11] If this threshold is met then a superior court of inherent jurisdiction will in most circumstances take jurisdiction over thematter, and the Crown will be required to establish on a balance of probabilities that the detention is lawful. [12] Hamm’s arrest and detention in the Edmonton Remand Centre clearly meets the first criterion. Hamm in his oral submissionsargued that he considered his renewed detention unfair.

It interfered with his education and rehabilitation.

He considered the delays inresolving his status to be excessive, and stressed that Mission Institution v Khela created absolute rights to the habeas corpus procedure.He said any cases identified by the Attorney General were irrelevant. [13] The Attorney General, on behalf of the Respondents, argues that this Court should refuse to take jurisdiction over Hamm’shabeas corpus application on the basis that the Court’s jurisdiction has been displaced by a complete, comprehensive and expert scheme. [14] In Mission Institution v Khela at para 42, the Supreme Court of Canada confirmed that R v Miller, (SCC),[1985] 2 SCR 613, 24 DLR (4th) 9 identified two circumstances where a superior court of inherent jurisdiction should decline to hear ahabeas corpus application.

These arise where legislation:

1. confers jurisdiction on an appeal court to correct an error of a lower court and release an applicant, or 2. creates a complete, comprehensive and expert procedure for review of an administrative decision. [ 15 ] Habeas corpus is not required in these two scenarios because that common law authority has been replaced by another procedure that adequately supervises government ordered detention. [ 16 ] Counsel for the Attorney General says this Court’s habeas corpus jurisdiction has been displaced for persons whose detention is the subject of review by the Parole Board of Canada.

Hamm in his written submissions says there is no such case law to that effect. Hamm is wrong. [ 17 ] In Armaly v Canada (Parole Service), 2001 ABCA 280 , 299 AR 188, leave denied [2002] SCCA No 134, Fraser CJA said: [4] . . . The [ Corrections and Conditional Release Act ] provides a comprehensive statutory scheme for administering the parole review process. Sound policy reasons exist for not setting the threshold for habeas corpus so low that it effectively creates a parallel system for challenging revocation or termination of parole.

This very point was made by Cory, J. in Steele, supra, at p. 1418 where he stated the following: Since any error that may be committed occurs in the parole review process itself, an application challenging the decision should be made by means of judicial review from the National Parole Board decision, not by means of an application for habeas corpus. It would be wrong to sanction the establishment of a costly and unwieldy parallel system for challenging a Parole Board decision.

As well, it is important that the release of a long-term inmate should be supervised by those who are experts in this field. [5] We see no reason why Mr. Armaly should not follow the procedures prescribed in the [ Corrections and Conditional Release Act ], a course of action which had, prior to the judgment under review, been previously endorsed once by the Court of Queen’s Bench and twice by this Court. [ 18 ] This result was then confirmed in R v Marshall , 2002 ABCA 185 , 54 WCB (2d) 570.

The same conclusion that has been reached by many other Canadian Courts of Appeal: LRF v Canada (National Parole Board) , 2008 NSCA 56 , 266 NSR (2d) 337; Lord v Coulter , 2009 BCCA 62 , 266 BCAC 122; R v Latham , 2009 SKCA 26 , 324 Sask R 87; R v Ross , 2009 SKCA 24 at para 8 , 324 Sask R 80; John v Canada (National Parole Board) , 2011 BCCA 188 , 303 BCAC 264, leave denied [2011] SCCA No 256; R v Graham , 2011 ONCA 138 , 275 OAC 200; Lena v Donnacona Prison , 2011 QCCA 140 ; Blais v Canada (Attorney General) , 2012 NSCA 109 , 321 NSR (2d) 198, leave denied [2012] SCCA No 488; Woodhouse v Canada (Correctional Service) , 2012 BCCA 45 at para 15 , 316 BCAC 80; Chaudhary v Frontenac Institution , 2012 ONCA 313 , 292 OAC 333, leave denied [2012] SCCA No 331; PSL v Matsqui Institution , 2013 BCCA 390 at para 30 , 342 BCAC 104; R v Latham , 2016 SKCA 14 , 472 Sask R 288, leave denied [2016] SCCA No 144. [ 19 ] In DG v Bowden Institution (Warden) , 2016 ABCA 52 , 612 AR 231, in two separate decisions the majority concluded that habeas corpus is available as an alternative remedy for a detained person challenging a decision of the Parole Board of Canada via judicial review.

The decisions in DG v Bowden Institution (Warden) explicitly do not overrule Armaly v Canada (Parole Service) in relation to detention reviews by the Parole Board of Canada via the Corrections and Conditional Release Act . [ 20 ] The Alberta Court of Queen’s Bench has repeatedly followed the rule in Armaly v Canada (Parole Service) , that the Parole Board of Canada is a complete, comprehensive, and expert review process: Tuckanow v Bowden Penitentiary , 2014 ABQB 563 , 591 AR 348; Rain v Canada (Parole Board) , 2015 ABQB 639 ; LeBlanc v Canada (Attorney General) , 2016 ABQB 350 , 41 Alta LR (6th) 403; Blea v Warden of Bowden Institution (24 June 2016), Edmonton 160467759X1 (Alta QB); Doll v AGC and Warden of Bowden Institution (14 October 2016), Edmonton 161070743X1 (Alta QB); Melnick v AGC and Institutional Warden or Head of Bowden Institution (21 October 2016), Edmonton 160866208X1 (Alta QB). [ 21 ] There is therefore only one fact that is relevant to my inquiry, and that is whether Hamm’s detention is subject to review by the Parole Board of Canada.

It clearly is. That ends my analysis. I therefore decline to take jurisdiction over Hamm’s habeas corpus application on the basis there is an appropriate alternative detention review forum that has been enacted by legislation: the Parole Board of Canada. IV. Costs and Deterrence of Abuse of Court Processes [ 22 ] Hamm has been entirely unsuccessful in this application. In this regard, he chose to bring his habeas corpus application at any time when he knew that his application was placed in jeopardy given the fact that he had not provided any form of affidavit evidence to the Court to support his application.

To a certain extent, I can excuse his inattentiveness to this requirement given that he is a self represented litigant with supposedly limited knowledge of the law and court proceedings. However, in this particular case, Hamm is no stranger to the Court nor to what is required in bringing a habeas corpus application: R v Hamm , 2016 ABQB 440 , 41 Alta LR (6th) 29. In bringing his application at a time when Hamm knew that he lacked supporting evidence, his application was doomed from the start with remote success.

Furthermore, Hamm persisted with his habeas corpus application despite the fact the Attorney General provided a wealth of relevant and binding jurisprudence. [ 23 ] A habeas corpus application is a civil application. The successful party in a civil action is presumptively due their court costs: Alberta Rules of Court , Alta Reg 124/2010, Rule 10.29(1). The authority to order costs against unsuccessful habeas corpus applicants is well established in Alberta: Rain v Canada (Parole Board) , 2015 ABQB 747 ; Voisey v Canada (Attorney General) , 2016 ABQB 316 . [ 24 ] The Respondents seek $1,000.00.

As in Rain v Canada (Parole Board) and Voisey v Canada (Attorney General) there was no valid basis for this habeas corpus application, and so a substantial costs award is warranted. I therefore order Hamm to pay $500.00 in costs, with payment to be made by Hamm within one year from the date of his release, with no interest or penalty.

[ 25 ] Because of the process difficulties about which there was discussion during the hearing, and at the request of Hamm, I ask for the assistance of the Attorney General in ensuring that a copy of this decision be provided forthwith to Hamm. Heard on the 24 th day of February, 2017. Dated at the City of Edmonton, Alberta this 3 rd day of March, 2017. Don J. Manderscheid J.C.Q.B.A. Appearances: Matthew Christopher Hamm for himself James Elford Department of Justice Canada for the Respondents