Ewanchuk v Canada (Attorney General), 2017 ABQB 237

Court of Queen’s Bench of Alberta Citation: Ewanchuk v Canada (Attorney General), 2017 ABQB 237 Date: 20170403 Docket: 1603 17123 Registry: Edmonton Between: Steven Brian Ewanchuk Applicant - and - Attorney General of Canada and Correction Service of Canada Respondents _______________________________________________________ Memorandum of Decision of the Honourable Mr. Justice D.R.G. Thomas _______________________________________________________ Table of Contents I. Introduction . 3 II. The Positions of the Parties . 3 A. Canada . 3 B. Ewanchuk . 4 III. Analysis . 5 A. Preliminary Issue - Declaratory Relief . 7 B.

Ewanchuk’s Complaints and Alleged Loss of Residual Liberty . 8 1. Lock Downs . 8 2. Rude Staff and Dangerous Inmates . 8 3. In-Humane Food Preparation and Service . 9

4. Issues with Inmate Grievance Procedures . 11 5. Medical Service, Telephones, Closed Circuit Television Cameras and Mail 11 6. Guards Working 16 Hour Shifts . 12 7. Steps that Impede Ewanchuk’s Legal Work . 12 8. The Remedy . 13 IV. Conclusion . 14 V. Ewanchuk is a Vexatious Litigant 14 A. Court-Ordered Restriction on Court Filing . 15 1. Vexatious Litigation and Litigants . 15 2. Jurisdiction . 16 3. Notice and the Absence of Surprise . 18 4. Factors that Identify Vexatious Litigation . 18 B. Submissions . 19 1. Canada . 19 2. Ewanchuk . 20 C. Abusive Litigant Status . 22 1. Hopeless Proceedings . 22 2.

Escalating Proceedings . 23 3. Proceedings Brought for an Improper Purpose . 24 4. Failure to Comply with Court-Ordered Obligations . 24 5. Unsuccessful Appeals . 24 6. Allegations of Conspiracy and Fraud . 25 7. Scandalous and Inflammatory Language . 26 7. Conclusion . 28 D. Court Access Restrictions . 29 1. An Anticipated Need for Court Access Restrictions . 29 2. Proportional Restrictions of Ewanchuk’s Anticipated Misconduct 29 3. Abuse of Habeas Corpus Requires Strict Response . 30 E. Court Order 32 VI. Conclusion . 34 I.

Introduction [ 1 ] Steven Brian Ewanchuk [“Ewanchuk”] is a prisoner incarcerated in the Bowden Institution for sexual assault of a young female aged 8-9 years, which resulted in a 16.5 year sentence, reduced to 11.5 years for time spent in pre-trial detention: R v Ewanchuk , 2010 ABCA 298 , 490 AR 176, leave denied [2016] SCCA No 228. This was Ewanchuk’s fifth conviction for sexual assault. [ 2 ] In 2015 Ewanchuk made a habeas corpus application [ habeas corpus #1] which challenged two 2014 decisions of the Parole Board that denied Ewanchuk release. The Board had concluded that Ewanchuk was likely to reoffend.

On November 12, 2015 Graesser J in Ewanchuk v Canada (Parole Board) , 2015 ABQB 707 , dismissed Ewanchuk’s application because he had not challenged the legal correctness of a decision that had led to a loss of liberty (paras 53-54), and had ‘sat on his rights’ by not proceeding in a timely manner to challenge the Parole Board’s decision (paras 87-90). There is an outstanding and unresolved appeal of Justice Graesser’s decision to deny Ewanchuk habeas corpus : Canada (Parole Board) v Ewanchuk , 2016 ABCA 325 . [ 3 ] Graesser J awarded costs against Ewanchuk.

Ewanchuk objected to the Canada (Parole Board) bill of costs, complaining the

costs award “is unfair and is unjustified.” Ewanchuk demanded “counter costs” of $3,000.00 “... for all the unnecessary work that the CSC lawyer created through the motions that were totally unnecessary.” On October 31, 2016 the Assessment Officer confirmed a $2,669.91 cost award against Ewanchuk.

No “counter costs” were granted. [ 4 ] In the meantime, on September 28, 2016 Ewanchuk commenced a new proceeding [ habeas corpus #2] with a document titled “WRIT OF HABEAS CORPUS WITH CERTIORARI IN AID LOSS OF RESIDUAL LIBERTY - Statement of Claim” v the Attorney General of Canada and Correctional Service of Canada [“Canada”]. On November 4, 2016 Canada filed an application to strike out Ewanchuk’s “Writ” under Alberta Rules of Court , Alta Reg 124/2010 [the “ Rules ”, or individually a “ Rule ”] Rule 3.68 .

Canada also sought a lump sum award of costs of $500.00. [ 5 ] Canada in its written submissions argues that Ewanchuk’s habeas corpus #2 application should be dismissed because the Court has no jurisdiction to hear this application, or alternatively because the application is frivolous, improper, or an abuse of process. [ 6 ] I granted Canada’s application at a hearing on November 18, 2016 and gave a brief oral judgment, which is now supplemented by the written reasons that follow. II.

The Positions of the Parties [ 7 ] Both parties identify Mission Institution v Khela , 2014 SCC 24 , [2014] 1 SCR 502 as the key authority for this matter. A. Canada [ 8 ] Canada argues that I should strike out Ewanchuk’s habeas corpus #2 application for multiple reasons.

The Court may only take jurisdiction and inquire into the legality of a detention via habeas corpus where the applicant identifies: 1. a substantial change in conditions that amounts to a deprivation of liberty, or, in the case of an incarcerated criminal, in the prisoner’s residual liberty, 2. a decision that led to the deprivation of liberty, and 2. a basis to question the legality of the decision to reduce the prisoner’s liberty. [ 9 ] Canada argues the habeas corpus #2 application does not identify a substantial deprivation of liberty, or a decision that is potentially unlawful.

These are both bases for this Court to refuse to hear Ewanchuk’s application. [ 10 ] What Ewanchuk instead complains about are simply aspects of his incarceration and conditions at the Bowden Institution. These are properly addressed by the Corrections Service of Canada complaint and grievance processes, and then judicial review in Federal Court: Corrections and Conditional Release Act , SC 1992, c 20, ss 90-91.2; Federal Courts Act , RSC 1985, c F-7, ss 18-18.1. [ 11 ] Further, Ewanchuk does not seek a remedy provided for by habeas corpus .

Instead, his claim is for damages, rather than release from an allegedly illegal detention. This disconnect between Ewanchuk’s September 28, 2016 filing and its true character is illustrated by the fact his purported habeas corpus #2 application attaches an unfiled Statement of Claim. [ 12 ] Canada seeks a fixed cost award of $500.00. B. Ewanchuk [ 13 ] Ewanchuk throughout his materials and at the November 18, 2016 hearing described his habeas corpus #2 application as an application made by himself as a prisoner who had lost aspects of his residual liberty.

At the hearing I first received a document titled “WRIT OF HABEAS CORPUS WITH CERTIORARI IN AID FOR LOSS OF RESIDUAL LIBERTY BY THE APPLICANT - for declaratory relief under s. 24 of the Charter and or Statement of Claim”. This was filed as hearing Exhibit 1. [ 14 ] In his oral submissions Ewanchuk reinforced his complaints concerning his loss of liberty, but then announced he was also seeking “declaratory relief” for alleged misconduct.

He cited Trang v Edmonton Remand Centre , 2001 ABQB 884 , 304 AR 22 for the proposition that this Court has jurisdiction to issue declaratory relief in relation to a habeas corpus motion. [ 15 ] In Exhibit 1 this is described as “declaratory relief for your daily theft of residual liberty”. Much of Exhibit 1document is a complaint by Ewanchuk concerning his experiences at the Edmonton Remand Centre.

In his oral submissions Ewanchuk explained he had included that component of Exhibit 1 because he had also sent that to the Alberta Court of Appeal to explain why he would not appear before that tribunal in person. [ 16 ] Ewanchuk stresses his right to habeas corpus is protected by the Charter , and criticized Canada for its “impulsive motion to strike”. He argued the Corrections Service of Canada must be monitored by the courts.

He says it is a principle of law that only the least restrictive measures can legally be applied to a person. [ 17 ] I asked Ewanchuk about the costs awards against him that resulted from the habeas corpus #1 application. Ewanchuk confirmed he was aware of that cost order, that it was not stayed, but that he would not pay it, despite him having funds that he inherited from his mother’s estate. He argued the amount was unfair: other prisoners had only been assessed $500.00 costs awards for their unsuccessful habeas corpus applications.

III. Analysis [18] The “great writ” of habeas corpus is a common law right of persons who are detained by state actors to go to court anddemand that the state actor prove that detention is lawful; history and evolution reviewed in DG v Bowden Institution, 2016 ABCA 52 atparas 105-122, 612 AR 231. Canada has enshrined access to habeas corpus in Charter, s 10(c): Everyone has the right on arrest or detention ... to have the validity of the detention determined by way of habeas corpus and to bereleased if the detention is not lawful. [19] The process for habeas corpus is well established.

As Canada correctly indicated, the first step is the applicant must meet athreshold requirement that he or she is detained, and provides a basis to argue that detention is illegal. Mission Institution v Kheladescribes this requirement: ... First, the applicant must establish that he or she has been deprived of liberty. Once a deprivation of liberty is proven, the applicantmust raise a legitimate ground upon which to question its legality.... [20] If that threshold is met then Canada must prove to a balance of probabilities that the detention is legal: Mission Institution vKhela at para 30.

If Canada cannot establish that, then the Court must order the release of the detained person. That, in brief, is thefunction of habeas corpus; it is a highly specialized but very powerful tool. It shields the freedom of people from unauthorized stateaction. [21] Incarcerated persons are already detained, but habeas corpus may be employed to challenge a further loss of their “residualliberty”.

Mission Institution v Khela confirms R v Miller, (SCC), [1985] 2 SCR 613, 24 DLR (4th) 9, which providedexamples of the kinds of loss of residual liberty that may attract a habeas corpus remedy: administrative segregation, being confined in aspecial handling unit, and transfer to a higher security institution. Importantly, these identified categories represent a different physicalenvironment for the prisoner, and one which offers less freedom. [22] What is equally important for this application is to understand what habeas corpus is not. [23] Habeas corpus is only relevant to current and ongoing detention.

It does not apply to hypothetical future detention, or historicdetentions: Cundell v Bowden Institution, 2016 ABQB 348 at para 37, Dumas v Leclerc Institute, (SCC), [1986] 2SCR 459 at paras 12-14, 34 DLR (4th) 427; R v Latham, [2000] OJ No 3720 at paras 21-23 (QL), 2000 CarswellOnt 348 (Sup Ct J).Habeas corpus is only a remedy for the here and now. [24] Habeas corpus has no application where a person complains they were denied release or a reduced form of detention: Maparav Ferndale Institution (Warden), 2012 BCCA 127 at para 15-16, 318 BCAC 139, leave denied [2012] SCCA No 217; Biever v Alberta(Director of Edmonton Remand Centre), 2015 ABQB 609 at paras 33-35.

Habeas corpus cannot be sought where the detention or formof detention is voluntary or caused by the detained person: R v Blanchard, 2011 SKCA 60 at para 13, 371 Sask R 270; Biever v Alberta(Director of Edmonton Remand Centre), at para 32. Habeas corpus does not apply to persons who are under judicial interim release: Rv Barbour, 2016 ABCA 161, 336 CCC (3d) 542. [25] Many conditions and circumstances in prisons are also not a basis for habeas corpus as these do not amount to a loss ofliberty. Le Dain J in R v Miller, at para 35, stated habeas corpus does not apply to privileges: ...

I do not say that habeas corpus should lie to challenge any and all conditions of confinement in a penitentiary or prison, including theloss of any privilege enjoyed by the general inmate population.

But it should lie in my opinion to challenge the validity of a distinct formof confinement or detention in which the actual physical constraint or deprivation of liberty, as distinct from the mere loss of certainprivileges, is more restrictive or severe than the normal one in an institution. [Emphasis added.] [26] Deprivation of liberty also must be substantial. “The Charter does not protect against insignificant or “trivial” limitations onrights”: Cunningham v Canada, (SCC), [1993] 2 SCR 143, 80 CR (4th) 57; see also Canada (Attorney General) vWhaling, 2014 SCC 20 at para 57, [2014] 1 SCR 392; Lord v Coulter, 2007 BCSC 1758 at para 60, 72 Admin LR (4th) 264, affirmed2009 BCCA 62 at para 5, 266 BCAC 122. [27] Instead, what is required is a “substantial change in conditions amounting to a further deprivation of liberty”: Dumas vLeclerc Institute, at p 464; Cunningham v Canada, at p 151; Canada (Attorney General) v Whaling, at para 57. [28] Access to prison or rehabilitation programming is not a deprivation of liberty that attracts court scrutiny via habeas corpusscrutiny: Mapara v Ferndale Institution, 2012 BCCA 127 at paras 12-15, 318 BCAC 139, leave denied [2012] SCCA No 217; Lord vCoulter, 2007 BCSC 1758 at para 60-63, 72 Admin LR (4th) 264, affirmed 2009 BCCA 62 at para 5, 266 BCAC 122; Urbano vBowden Institution, 2015 ABQB 279 at para 59, 121 WCB (2d) 45; Rain v Canada (Parole Board), 2015 ABQB 639 at para 15. [29] Habeas corpus is a remedy that operates only within the geographic jurisdiction of the superior court of inherent jurisdiction:R v Gamble, (SCC), [1988] 2 SCR 595 at paras 48-50, 31 OAC 81; R v Bonamy, 1999 BCCA 487, 130 BCAC 11, butalso see Nodrick v Canada (Correctional Service), 2014 NSSC 93, 341 NSR (2d) 164l; Richards v Springhill Institution, 2015 NSCA40, 359 NSR (2d) 59. [30] The Supreme Court of Canada in R v Miller, confirmed in Mission Institution v Khela at para 42, identified twocircumstances where a superior court of inherent jurisdiction should decline to hear a habeas corpus application.

These arise wherelegislation: 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. [ 31 ] Habeas corpus is not required in these two scenarios because the common law authority has been replaced by another statutory procedure that adequately supervises government ordered detention. The Parole Board of Canada is a complete, comprehensive, and expert procedure authorized by the Corrections and Conditional Release Act , SC 1992, c 20: Armaly v Canada (Parole Service) , 2001 ABCA 280 , 299 AR 188, leave denied [2002] SCCA No 134; DG v Bowden Institution (Warden) , 2016 ABCA 52 , 612 AR 231. A.

Preliminary Issue - Declaratory Relief [ 32 ] Ewanchuk attempted to reframe his habeas corpus application as an application for declaratory relief on the basis of alleged various wrongdoing. This was in response to Canada’s application to strike out the habeas corpus #2 application. I reject that recharacterization. [ 33 ] Canada argued and I agree that habeas corpus has one purpose - to address illegal detention, or in this instance, losses of residual liberty. A court does not make declarations about illegal detention as a habeas corpus remedy.

The court orders release. [ 34 ] Second, the case cited by Ewanchuk, Trang v Edmonton Remand Centre , is of no assistance to him, and that is clear from the text of the decision itself. At para 4 Marceau J observes: The ordinary way to commence a proceeding is by statement of claim. Rule 6 of the Rules of Court stipulates that, unless otherwise provided for, proceedings are to be commenced by statement of claim. There are exceptions to this general rule in the Rules and in various statutes. One such exception is a proceeding seeking habeas corpus. Habeas corpus is an extraordinary remedy.

The wrongful detention of persons by the state is an injustice that demands immediate attention and response . As such, the law provides an expeditious procedure to review the legality of detentions.

Part 56 and

Part 60 of the Rules allow an application for an order of habeas corpus to be brought by notice of motion. There is no argument that the habeas corpus application was not properly brought. However, the Released Applicants are clearly no longer in need of the habeas corpus remedy . They do, however, seek a declaration their Charter rights have been infringed.

Does the court have the jurisdiction to grant such a declaration? [Emphasis added.] [ 35 ] Justice Marceau indicated, and I agree, that no-one has a right to bring a habeas corpus application where they are not alleging ongoing detention, and that detention is illegal. Ewanchuk can file a statement of claim concerning what he alleges is abuse. But he has no right to hijack the habeas corpus procedure and then request a remedy other than release from ongoing detention. [ 36 ] Last, I note that declaratory relief is a discretionary remedy.

In Trang v Alberta (Edmonton Remand Centre) , 2007 ABCA 263 at paras 24-25 , 412 AR 215, leave denied 2007 SCCA No 525 Slatter JA on a policy basis overturned a trial court decision concerning prisoner transport conditions and vans on the basis that complaints of this kind are not a suitable basis for Charter -based general declarations: The parties have failed to heed this Court's warning that these proceedings should not be turned into a public inquiry. ... It appears that these proceedings have been turned into a general inquiry into conditions at the Edmonton Remand Centre.

This is best illustrated by the observation of the trial judge at para. 150 of his reasons that "the parties did not invite me to redesign the seating, but I think they will find the following helpful". The trial judge then proceeded to give a number of recommendations about how prisoner vans might be better designed. This, with respect, would be more appropriate coming from a Royal Commission than it is from a judge who is charged with deciding discrete controversies between individual parties.

In all of these circumstances, this was not an appropriate case in which to grant the general declarations in issue, and the appeal should be allowed for that reason alone. [ 37 ] The same is true here. Ewanchuk has alternative mechanisms to raise his complaints, if he wishes to do so. B. Ewanchuk’s Complaints and Alleged Loss of Residual Liberty [ 38 ] It is helpful at this point to review in some detail precisely what Ewanchuk alleges in his habeas corpus #2 application. He is careful throughout that document to frame many complaints as a “deprivation of residual liberty”.

That, however, is not born out in review of those items. 1. Lock Downs [ 39 ] First, Ewanchuk complains about lock downs. These are allegedly intermittent periods of detention that occur through the day as guards count prisoners, rotating meal schedules, and when an inmate has no work assignment. Ewanchuk reports on periods of lockdown which followed violence between inmates.

Other “illegal” detentions are when staff are engaged in training, or “because of searches or for things the plaintiff is not responsible for.” Ewanchuk concludes he may bill on an hourly basis for these “illegal detentions” and calculates he is owed $280,000.00 in compensation per Charter , s 24 on this basis. [ 40 ] I reject this is a valid basis for a habeas corpus application. First, Ewanchuk is not seeking release from detention, which is the only remedy that can result from a habeas corpus application.

Instead, he is claiming damages, which are a potential remedy for a proven civil wrong. [ 41 ] Second, I conclude the kinds of detention identified in this category do not amount to a “substantial deprivation” of liberty. At most, these periods in-cell are a loss of privileges, as discussed in R v Miller . Life in prison may necessarily involve periods where a prisoner is required to remain in a cell or other individual space. That is a part of a normal prison setting. Ewanchuk has no legal or Charter right to a certain

schedule of activities. Ewanchuk’s complaint does not indicate he is being treated any differently than other

prisoners at the Bowden Institution. This application therefore is very different from the extended period of involuntary segregation that was challenged in Hamm v Attorney General of Canada (Edmonton Institution) , 2016 ABQB 440 , 41 Alta LR (6th) 29. [ 42 ] Further, habeas corpus is only relevant to current and ongoing detention. It does not apply to hypothetical future detention, or historic detentions: Cundell v Bowden Institution ; Dumas v Leclerc Institute ; R v Latham . Ewanchuk needs to point at an ongoing present detention and identify a basis why that detention is unlawful. He has not done so. 2.

Rude Staff and Dangerous Inmates [ 43 ] Ewanchuk also complains he is mistreated by Bowden Institution staff: ... The Plaintiff has asked [the Unit 3 Unit Manager] to stop yelling at me because he uses this as a form of intimidation to shut inmates down. He uses this as a form of control abuse to limit inmates from claiming their rights. In fact he will say things like; “you are a criminal, you have no rights”. Then he continues to berate the plaintiff and degrade you through verbal and emotional abuse.

He should be put on camera and audio and [Correction Service of Canada] would or should fire him for the abuse he commits in the way he addresses the plaintiff. His other controlling comment that he uses repeatedly is “shut up” or “we can find a place to settle this other ways”. He means physical. Many inmates have heard and been abused by this officer repeatedly. There are a minimum of four inmates just on the plaintiff’s unit that detest his manner of abuse of them. They have asked the plaintiff to make sure I include him in my claim application.

The plaintiff is doing that now. [ 44 ] He also indicates that sex offenders like him are assaulted in prison by other inmates. They are struck on the head with socks that contain rocks or tuna fish cans, which causes brain injury. For example: That at present there are at least two other inmates that are harassing and verbally abusing Paul [“a high profile sex offender”] and staff do nothing about it. Their job is to stop this and protect him not to encourage it against him. The two I am talking about is, one is a known “rat” and the other is a known “pimp” and both think they are better than Paul.

Staff must put a complete stop to this violence and put these abusers in place and move them if they continually cause this abuse. These are the types of inmates that damage what Bowden was set up to be. Staff should be diligent to stop this as it will reduce violence and more victims on the street. [ 45 ] This category of complaint does not involve detention or other loss of liberty, and therefore is not a subject for the Court’s habeas corpus authority. Habeas corpus is only a personal right. Ewanchuk’s complaints about the circumstances of other inmates are irrelevant. 3.

In-Humane Food Preparation and Service [ 46 ] The habeas corpus #2 application includes extensive complaints concerning food at the Bowden Institution. Ewanchuk complains he has been served pork, which is “abuse of his right to a religious diet.” He also claims the manner in which this food is served is improper: ... The meals are now so camouflaged with sauce (?) that it is hard to tell what it might be. This is a right for this applicant and yet it is abused.

He also indicates meals become irregular during lockdown and that is “extremely hard” on Ewanchuk as he is a diabetic. [ 47 ] Meal times are too short: The plaintiff only gets fifteen minutes to eat (always rushed) which is not healthy because of poor digestion for lack of proper chewing of food. Saliva is critical in mixing with eating so the food digests properly once it enters the stomach.

This is ignored by staff and the applicant is rushed for meals only to be locked up again until everyone else gets fed. ... [ 48 ] Food quality is criticized as “disgusting in taste and quality”: The food here at Bowden is atrociously under-cooked or over-cooked, and the spices were taken out of the Cafeteria’s kitchen. The Chicken drumsticks were taken off the menu. The food portions of meat do not meet the 8 ounces of meat, it is meagre portions. There were 5 pasta items on the menu, now there are 25 pasta items.

This is unhealthy for people, and it is done only to save costs, but who gets the money for the cost savings? Who is motivated to earn extra money at the expense of inmate people’s health? ... THE CHEFS OR STEWARDS here at Bowden over-cook the food in the plastic bags, past the recommended 3 hours which releases carcinogens into the food, and the soup. The same food is then frozen and later re-heated and served to the inmates. Menu’s are not followed so that those on special diets do not know what is being served. The goo-lash that is now considered meals is hard to decipher as to what it actually is.

Those who don’t eat pork cannot tell what they are getting unless they smell it or sometimes bite into it before realizing that it is against their diet of conscience. This has occurred to the plaintiff many times. [ 49 ] Food hygiene is also an issue. Serving ladles “... are touched by 700 inmates with cleanliness issues.” Condiments are mixed together.

Hats are not worn in the kitchen, which “... is a hygienic issue that inmate hair can fall on the tables if the plaintiff were to get really technical about this issue.” [ 50 ] There is a conspiracy to divert food for money: The food is outdated, because of so much skimming and cost saving of the allotted Federal Government funding that does not go to the inmates, so who does it go to? The food is outdated because it is not served to us in the amounts that we are supposed to receive. Is there a yearly bonus for so much skimming or cost savings?

... The Food is left out over-night and is in direct breach of Food Guidelines. Where does the money that the applicant earn and get deducted go? The plaintiff definitely does not receive what he pays for. The plaintiff wants to know who is the culpable person is by name and who gets the unjust enrichments? This is against the law and against the rights of proper and decent and healthy food to inmates. The butter is not served with the meals they are supposed to be served with, therefore it must be skimmed by the stewards to cost cut, so where is the money going?

The butter incrementally for each inmate, saves a lot of money ... The plaintiff wants to examine the food orders, the food disposal, who gives the orders to not give spices to mix with the food, and why he has gone days without salt and pepper, and any and all documentation that is in regards to the Bowden Institutions Cafeteria and food allotments. ... The plaintiff wants to know who is getting the yearly bonuses on their pay checks as a conflict of interest. This should be ordered to be paid back.

That person or group of persons should be fired and this corrected and ordered to be corrected at the highest level of government responsible for the care of inmates. [ 51 ] Once again, this category of complaint does not represent a deprivation of liberty and is not a basis for a habeas corpus application. The Charter does not protect against trivial complaints, such as the spicing of food, or allegedly missing butter. In any case, Ewanchuk does not seek the remedy of release provided by habeas corpus , but instead wishes to track down and sanction the food thieves.

He may have a legal right of some kind to pursue that objective, but it is not via habeas corpus . 4. Issues with Inmate Grievance Procedures [ 52 ] Ewanchuk complains the National Grievance Process takes too long. He has stopped filing grievances “... because they never are addressed in favour of the applicant.” Ewanchuk does not indicate a deprivation of liberty associated with this item. This is not a basis for a habeas corpus application. 5. Medical Service, Telephones, Closed Circuit Television Cameras and Mail [ 53 ] Ewanchuk also criticizes support services.

Mail was at one point delivered to the prisoner’s cells, but now has to be picked up at the unit control desk: ... Too many staff are handling mail and that needs to be returned to just the designated visits and correspondence staff only. This prevents the loss or destruction of some mail by staff that may want to cause retribution to some. The plaintiff has had his legal mail opened illegally and because too many handle it is hard to challenge who may be abusing this privacy. This is our right to receive mail on time and expediently.

A person can be charges with tampering or with holding mail, it is a criminal offence and the same application should be applied to whoever in the [Correctional Service Canada] delays or obstructs the delivery of mail. [ 54 ] When nurses attend cells they yell through the door to speak to inmates. This is “an abuse of privacy” since other inmates can hear “this privacy information”. Health products are passed under doors, which “is un-hygienically unacceptable.” [ 55 ] Ewanchuk indicates he does not get telephone calls during lockdowns.

The $8.40 monthly charge for telephone services is excessive, since Ewanchuk “hardly uses the phone”. Further, he says the fact telephone calls are recorded is allegedly a breach of his Charter , s 8 rights: The plaintiff is paying for the government to breach his s.8 of the chartered rights and freedoms, by allowing them to record his phone calls, without just or reasonable grounds and warrantless. The plaintiff uses these phones for talking to his legal assistants, family, to organize lawsuits and for his criminal defences.

This is breaching the plaintiff’s lawyer-client privileges if he is self-representing himself in these cases and as lawyer’s office is not to be listened too, nor should his phone calls as it gives away his defences and is an abuse of process for the government to listen to his calls. ... [ 56 ] The habeas corpus #2 application also appears to indicate Ewanchuk believes the fact he cannot access Closed Circuit Television Camera [“CCTV”] system recordings on demand is improper. [ 57 ] Again, none of these issues involve a loss of liberty for which Ewanchuk asks the Court to order his release. 6.

Guards Working 16 Hour Shifts [ 58 ] Another recurring theme in the habeas corpus #2 application is that Ewanchuk criticizes policies that result in guards working 16 hour shifts. This causes them to fall asleep, be unpleasant, and eat tasty food: That because they work 16 hour days they are tired near the end of the first eight hours at a job that mainly requires them to sit and observe. After eight hours the applicant has personally caught different officers asleep in their chairs. Near the end of the 16 hours they are not very pleasant to deal with.

A few of them are so miserable that it is hard to deal with them. The applicant has chosen many times not to try and ask for something during this time as it is not uncommon to get one’s head bitten off so to speak, if you choose to ask for assistance. The other thing that is practiced on the unit is they cook their own meals in the back room behind the area that they normally occupy to observe. They bring in foods that inmates no longer get on their menu. They cook up steaks for themselves, bacon or back bacon and eggs for breakfasts.

They spread that pleasant aroma onto the whole unit which is a real tease for the inmates. Inmates no longer are served bacon as regular menu option for any breakfasts. It has been cut out of the inmate menu. So during this time that inmates are arbitrarily locked up illegally and against the Commissioner’s Directive they have good feasts and then sleep.

[ 59 ] Once more, these complaints do not represent a loss of personal liberty that could justify habeas corpus relief from the Court. 7. Steps that Impede Ewanchuk’s Legal Work [ 60 ] Another category of alleged residual loss of liberty are issues that allegedly impeded Ewanchuk’s legal and litigation activities.

Computers are taken away during lockdowns and printer paper costs too much. [ 61 ] He claims a number of individuals including the warden “... have deliberately impeded the plaintiff’s Justice in numerous legal actions and civil matters.” An example of this misconduct is that Ewanchuk is “severely hindered” since he is only permitted to make one copy of legal documents on the library printer, and then must make photocopies. ... This not only hindered and delayed the applicants legal activities, it exposed it to others eyes when all legal work is to be private and confidential.

More people became involved in trying to get this done which is a right under the charter for every Canadian. [ 62 ] The facility librarian “... is ignorant and gives off an air of indifference to my case and other people’s cases.” Internet access to legal information sources should not be restricted. Another technology-related complaint is the use of older information media, such as 3.5 inch floppy disks. [ 63 ] This is characterized as a scheme to impede Ewanchuk from exercising his legal rights: ...

Inmates must be given back the right to have computers in their cells to do all the things that they can regarding protection of their legal rights; charter rights and residual living conditions. This has all been kept at bay to the inmate and the plaintiff so they don’t learn what is theirs to have and just what legal avenues they have in a free and democratic society. Right now because of limited access and restriction on all these laws and such, it is run as if inmates belong to Russia. I do not say this flippantly. I really mean this.

Russia a dictatorship behaves with these kinds of restrictions and limitations, why is Canada and their prisoners under the same restrictions and limitations? It is only for one reason; that inmates do not learn what is theirs so they can be abused just as the indigenous peoples of Canada were. It is absolutely the same mentality of the people in power of and over the less fortunate. Well the plaintiff has had enough of that and is fighting for what is rightly his to enjoy. ... [ 64 ] Here the remedy sought is more drastic: ...

The plaintiffs want the librarians and Susan Kennedy and the Warden Tracy Farmer criminally charged for these unlawful tortious actions. The plaintiff has to account for his criminalities, so should they? ... [ 65 ] Criminal prosecution is not a remedy that may result from a habeas corpus application, which is a civil proceeding. Again, the described alleged misconduct does not involve a loss of residual liberty. 8. The Remedy [ 66 ] The habeas corpus #2 application closes in an unusual manner.

Ewanchuk demands: 1. $129,600.00 for 48 days for residual loss during meal time lock-ups and $280,000.00 for 70 days that would include illegal lockdowns; 2. $100,000.00 for mental anguish; 3. special damages, 4. interest and judgment interest; and 5. litigation costs. He writes the respondents have 20 days to file a statement of defence or demand of notice.

If that does not occur then Canada may be found in default. [ 67 ] Also appended to the habeas corpus #2 application is a separate four page document that is both titled “AFFIDAVIT IN SUPPORT OF WRIT OF HABEAS CORPUS WITH CERTIORARI IN AID FOR LOSS OF RESIDUAL LIBERTY” and “Statement of Claim”. This repeats in

summary the primary application, but also demands a different amount of damages, and disclosure of CCTV and computer records. [ 68 ] Canada argues this application is a civil statement of claim in disguise. I agree. Ewanchuk has not sought any relief that could result from a habeas corpus application. Instead, this is an attempt to bypass normal civil litigation processes. This so-called habeas corpus application is unrelated to its name. [ 69 ] Instead, the habeas corpus #2 application is a nearly perfect illustration of ‘slippery slope’ abuse.

Ewanchuk has engaged in a purported exercise of his rights in a manner that trivializes the purpose of habeas corpus in the Commonwealth legal tradition and exploits the “Great Writ” for no good or valid purpose. His application is a mockery of a true habeas corpus application. He has wasted judicial resources and denied other persons access to this Court in a manner that is reprehensible. [ 70 ] I will say more about that later. IV. Conclusion

[71] Canada’s application is granted. Ewanchuk’s purported habeas corpus application is struck out. Ewanchuk has otheralternatives and legally appropriate methods to make his complaints. He can sue in the Alberta Provincial Court, Alberta Court ofQueen’s Bench and Federal Court.

He can take his complaints through the internal grievance and remedy process provided bylegislation, ultimately with the possibility of judicial review in the Federal Court. [72] This Court’s authority to award costs against an inmate who makes an unsuccessful habeas corpus applicants is wellestablished: Rain v Canada (Parole Board), 2015 ABQB 747 at paras 8-13; Voisey v Canada (Attorney General), 2016 ABQB 316 atparas 29-35; Hamm v Morgan (Last Name Unknown), 2017 ABQB 156 at paras 23-24. [73] The $500.00 cost award sought by Canada is granted.

I would have granted elevated and/or punitive costs if those had beensought by Canada given the frivolous and abusive nature of Ewanchuk’s habeas corpus #2 application. V. Ewanchuk is a Vexatious Litigant [74] After I granted Canada’s application on November 18, 2016 and struck out Ewanchuk’s purported habeas corpus application Iindicated that the Court on its own motion will investigate whether Ewanchuk’s access to this and other Alberta courts should berestricted. Ewanchuk appeared to have engaged in problematic conduct and had abused the courts’ processes.

I indicated the leadingauthority in Alberta for the indicia of misconduct that attract court scrutiny is Chutskoff v Bonora, 2014 ABQB 389, 590 AR 288,affirmed 2014 ABCA 444. Four items had already emerged: 1. Ewanchuk’s habeas corpus #2 application had no merit, and instead was an abuse of the Court’s processes. 2. Ewanchuk has made a hopelessly late Supreme Court of Canada leave application: [2016] SCCA No 228. 3. Ewanchuk’s “counter costs” claim in relation to habeas corpus #1 is abusive. He had no legal right to make that claim. 4.

Ewanchuk was the subject of an unpaid, unstayed costs order that resulted from habeas corpus #1. Ewanchuk said he had fundsto pay that costs award, but he would not do so. He rejects that costs award because he says it was unfair. [75] I invited Canada to file affidavit evidence and argument relevant to whether Ewanchuk had a pattern of litigation misconductin this or other proceedings, or other relevant evidence of abuse of the courts and other tribunals, and imposed a filing deadline ofNovember 30, 2016.

Ewanchuk was to appear before me on December 9, 2016 to respond to Canada’s evidence and argument, to enterhis own evidence, and make submissions on whether he should be the subject of court access restrictions [76] After the December 9 hearing I reserved my decision on this motion.

In the interim I ordered that Ewanchuk is prohibitedfrom filing any material on any court file, and that Ewanchuk may not continue or institute further court proceedings without thepermission of this Court, per R v Hok, 2016 ABQB 335 at para 105, enforced in Hok v Alberta (Justice & Solicitor General), 2016ABCA 356 at para 7. [77] Prior to my making the December 9 interim order Ewanchuk filed with the Alberta Court of Appeal an “Application” to staythe December 9, 2016 proceeding. On December 7, 2016 Crighton JA refused this premature and unauthorized appeal of my November18, 2016 decision. A.

Court-Ordered Restriction on Court Filing [78] Court restrictions on problematic and abusive litigants is a developing area of law in Alberta. I have therefore conducted areview of this subject. 1. Vexatious Litigation and Litigants [79] At the hearings in this matter I referred to Ewanchuk as a potential “vexatious litigant”.

Vexatious litigation is litigation thatmisuses or abuses court processes. “Vexatious” is synonymous with impropriety and abuse of process: Wong v Leung, 2011 ABQB 688at para 33, 530 AR 82; McMeekin v Alberta (Attorney General), 2012 ABQB 144 at para 11, 537 AR 136. [80] In R v Scott, (SCC), [1990] 3 SCR 979 at 1007, 116 NR 361 (cited by the Appeal Court of Appeal in Reece vEdmonton (City), 2011 ABCA 238 at para 18, 335 DLR (4th) 600), McLachlin J (as she then was) identified the close interrelationshipbetween vexatious and abusive litigation: ... abuse of process may be established where: (1) the proceedings are oppressive or vexatious; and, (2) violate the fundamentalprinciples of justice underlying the community's sense of fair play and decency.

The concepts of oppressiveness and vexatiousnessunderline the interest of the accused in a fair trial. ... [81] Reece v Edmonton (City) at para 16 stresses that abuse of process is a general purpose remedy with a functional objective, tocontrol misuse of the court apparatus: Abuse of process is a compendious principle that the courts use to control misuses of the judicial system.

Abuses of process can arise inmany different contexts, and there is no universal test or statement of law that encompasses all of the examples. [82] Abusive proceedings may be struck out on that basis: Reece v Edmonton (City), at para 14; Rule 3.68(2)(c-d). However, thatis not the only potential response available to a court which encounters a litigant who has abused the court’s processes. Anotheralternative is the court can order that a person shall not initiate a new action or continue an existing action, except where that person hasobtained leave of the Court.

[ 83 ] Orders of this kind are commonly called “vexatious litigant orders”.

For example, Judicature Act , RSA 2000, c J-2, ss 23-23.1 authorizes Alberta courts to intervene and restrict court access where a person engages in “persistent” misconduct and has instituted “vexatious proceedings” or is conducting “proceedings in a vexatious manner.” [ 84 ] Recently Chief Justice McLachlin in Trial Lawyers Association of British Columbia v British Columbia (Attorney General) , 2014 SCC 59 , [2014] 3 SCR 31 at paras 47-48 observed that a barrier which impedes frivolous or vexatious litigation is Charter - compliant as a mechanism to increase court efficiency and access to justice.

In other words, that barrier obstructs an abuse of process. [ 85 ] Several recent Alberta Court of Queen’s Bench decisions have stressed effect rather than intent is what is important. My colleague, Justice Shelley, in Kavanagh v Kavanagh , 2016 ABQB 107 at para 64 concluded what makes a person an appropriate target for judicial restriction is the effect of their litigation . People who have been the subject of court access restriction were identified not just by their intent, but more importantly because court processes are abused or misused: ...

All misuse legal procedure in a manner that has no valid purpose, and, as a consequence, causes harm to involved litigants and the waste of court resources. While non-legal dictionary

definitions of “vexatious” focus on

an act being wrongful, harassing, malicious, or intended to annoy, the legal meaning of this word is broader.

A vexatious proceeding is one that in effect abuses or misuses legal processes. [ 86 ] Similarly, in KE v CSM , 2016 ABQB 342 , Browne J concluded at para 15 that “[w]hat triggers court intervention is an abuse of its processes, and vexatious litigation is, by definition, abusive. ...”. [ 87 ] Justice Verville in Hok v Alberta , 2016 ABQB 651 at paras 26-29 , leave denied 2017 ABCA 63 links control of problematic litigants to the “culture shift” identified in Hryniak v Mauldin , 2014 SCC 7 , [2014] 1 SCR 87 and R v Jordan , 2016 SCC 27 , [2016] 1 SCR 631.

This is a case management reorientation away from “... the historical over-emphasis on procedural rights and exhaustive formality [which] has made civil litigation impractical and inaccessible.” As Karakatanis J observed in Hryniak v Mauldin at para 2 : ...

The balance between procedure and access struck by our justice system must come to reflect modern reality and recognize that new models of adjudication can be fair and just. [ 88 ] The “culture shift” applies to all court proceedings, but “especially those involving self-represented parties”: Trial Lawyers Association of British Columbia v British Columbia (Attorney General) , 2014 SCC 59 at para 110 , [2014] 3 SCR 31.

The “culture shift” includes control of litigation abuse: Chutskoff v Bonora , 2014 ABQB 628 at para 31 , 598 AR 55; Gao v Ontario (Workplace Safety and Insurance Board) , 2014 ONSC 6497 at para 5 , 37 CLR (4th) 7; Tupper v Nova Scotia (Attorney General) , 2015 NSCA 92 at paras 46-49 , 390 DLR (4th) 651, leave denied [2015] SCCA No 520; Raji v Borden Ladner Gervais LLP , 2015 ONSC 801 at para 8 ; Dias v WSIB , 2016 ONSC 5226 at para 7 ; Purcaru v Vacaru , 2016 ONSC 1609 at para 14 , 265 ACWS (3d) 710; Raitman v Medallion Developments (South Maple) Limited , 2014 ONSC 3380 at para 16-17 ; and Lelond v The Park West School Division , 2015 MBCA 116 at paras 79-84 , 323 Man R (2d) 188. 2.

Jurisdiction [ 89 ] The law in Alberta on court control of abusive litigation has undergone considerable development in the past several years.

Most recently Verville J in Hok v Alberta addressed the question of what forms the basis for this Court’s jurisdiction to implement limits and checks on abusive litigants. [ 90 ] There is no dispute that a provincial superior court of inherent jurisdiction, such as the Alberta Court of Queen’s Bench, has an inherent jurisdiction to control its own processes via a “reserve or fund of powers” or a “residual source of powers” which the Court “may draw upon as necessary whenever it is just or equitable to do so, and in particular to ensure the observance of the due process of law, to prevent improper vexation or oppression, to do justice between the parties and to secure a fair trial between them”: I H Jacob, “The Inherent Jurisdiction of the Court” (1970) 23 Current Legal Problems 23, most recently endorsed by the Supreme Court of Canada in Endean v British Columbia , 2016 SCC 42 at para 23 . [ 91 ] I believe there is no dispute that a trial judge may take steps to control parties to a particular dispute.

For example, a judge may limit filings prior to a particular hearing, require leave for further affidavits, or prohibit ex parte orders. What has been less certain is how a court obtains jurisdiction to control litigation outside a particular dispute, either ongoing or hypothetical. One theory is that the jurisdiction to take such a prospective step exists only where authorized by legislation, such as the Judicature Act , ss 23-23.1 procedure.

However, some Alberta Court of Queen’s Bench decisions have concluded this Court has its own independent authority to take these steps, and that the Judicature Act provisions, at most, codify a potential procedure to exercise that authority: see for example Re Boisjoli , 2015 ABQB 629 at para 9 , 29 Alta LR (6th) 334. [ 92 ] Justice Verville in Hok v Alberta conducted a detailed inquiry of this question at paras 14-25 and concludes this Court has a separate and inherent authority to restrict future litigation and court access by abusive litigants. [ 93 ] Verville J reviewed jurisprudence from the Alberta Court of Appeal and determined that Court has: 1. itself exercised an inherent jurisdiction to control future vexatious litigation (paras 19-20, referencing Dykun v Odishaw , 2001 ABCA 204 , 286 AR 392); 2. confirmed court access restrictions issued under the Alberta Court of Queen’s Bench’s inherent jurisdiction (para 24, referencing SG v Larochelle , 2005 ABCA 111 , 363 AR 326); and 3. explicitly indicated an inherent jurisdiction exists to address a “vexatious litigant” ( R v Grabowski , 2015 ABCA 391 , 609 AR 217).

[94] Hok v Alberta also addresses the idea that authority to control abusive litigation only flows from legislation, and is not anaspect of a court’s inherent jurisdiction. This is a misconception, based on a historical error. Ebert v Birch & Anor, [1999] EWCA Civ3043 (UK CA) reports that English courts exercised an inherent jurisdiction to restrict future litigation prior to passage of the first“vexatious litigation” statute, the Vexatious Litigants Act of 1896.

The UK Court of Appeal in Ebert v Birch & Anor concluded thismeans a judge in that jurisdiction had not only an inherent jurisdiction to control litigant activities in a dispute before that judge (a Grepev Loam, (1887) 37 Ch D 168 (UK CA) order) but also “... to prevent initiation of civil proceedings which are likely to constitute an abuseof the process of the court.” [95] Subsequently in Bhamjee v Forsdick & Ors (No 2), [2003] EWCA Civ 1113 (UK CA) the UK Court of Appeal developed aprincipled approach to guide exercise of that inherent jurisdiction.

I will return to Bhamjee v Forsdick & Ors (No 2) later in this decisionbecause that judgment has important implications for my response to Ewanchuk’s activities. Bhamjee v Forsdick & Ors (No 2)emphasizes a flexible and functional approach to controlling abusive litigants. Restrictions respond to anticipated future abuse in acreative, proportionate manner. [96] Justice Verville concluded on the basis of these authorities that the Alberta Court of Queen’s Bench has an inherentjurisdiction to control future abuse of its processes.

Hok v Alberta has subsequently been followed in Thompson v International Unionof Operating Engineers Local No. 955, 2016 ABQB 210 and Ellis v Wernick, 2017 ONSC 1461. I also adopt Justice Verville’s analysisand conclusion. I am not limited by the “vexatious proceedings” procedure in Judicature Act, ss 23-23.1 and cases that indicate this Courtis restricted by those provisions. In particular, I do not consider my analysis limited to where a litigant “persistently” engages inmisconduct.

Instead, I adopt the reasoning of Veit J in Sikora Estate (Re), 2015 ABQB 467 at paras 16-17 that the Judicature Actprovisions structure how litigants and other third parties may initiate a court’s review of whether court access restrictions are appropriatefor a potential “vexatious litigant”. 3.

Notice and the Absence of Surprise [97] In Lymer v Jonsson, 2016 ABCA 32, 612 AR 122, Costigan JA ruled that procedural justice requires that a person againstwhom court access restriction is being considered have the opportunity to make submissions as to whether any restriction is appropriate,or, if so, what the scope of that restriction should be.

The Alberta Court of Queen’s Bench has therefore adopted a two-step processwhere the Court identifies litigant misconduct, then offers the putative abusive litigant an opportunity to make submissions on possiblecourt access restrictions: Hok v Alberta at paras 10-11; Gauthier v Starr, 2016 ABQB 213 at para 50, 86 CPC (7th) 348; Kavanagh vKavanagh, 2016 ABQB 107 at para 162. [98] This two-step procedure is not, however, an absolute requirement. Lymer v Jonsson indicates a notice requirement is satisfiedwhere the abusive litigant is “... not taken by surprise ...” by the application of court access restrictions.

Verville J in Hok v Alberta atparas 12-13 concluded the ‘surprise test’ in Lymer v Jonsson is difficult to apply given the facts of that case and a contrasting decision,R v Grabowski. I also note that the Alberta Court of Appeal order issued in Kretschmer v Terrigno (3 May 2012), Calgary 1101-0112AC (Alta CA) does not meet the Lymer v Jonsson notice requirement. That order affected certain unnamed persons, “any related familymembers”, and restricted their capacity to institute new actions.

The “related family members” obviously could not have received noticesince they are not even identified. [99] I have followed the two-step process. Ewanchuk received Canada materials by the December 9, 2016 hearing. He heardCanada’s submissions at that hearing and Ewanchuk took the stand to give evidence. I then ordered a transcript prepared of theDecember 9, 2016 hearing which was provided to Ewanchuk. Ewanchuk was given an opportunity to make written submissions inresponse and he did later submit certain documents.

I conclude Ewanchuk has received more than adequate notice of the potential factthat his court access may be restricted. He has had an opportunity to reply to that. 4. Factors that Identify Vexatious Litigation [100] The characteristics of abusive litigation are well established. Chutskoff v Bonora is the leading authority on this subject, and atpara 92 identifies 11 separate stereotypic features of abusive litigation. Boisjoli (Re) at paras 98-103 identifies an additional indicium ofabusive litigation: where a person uses court processes to further a criminal activity.

Any of these features is a basis on which toconclude a litigant is abusive, and potentially warrants court access control. [101] Relevant evidence includes activities both inside and outside of court: Bishop v Bishop, 2011 ONCA 211 at para 9, leavedenied [2011] SCCA No 239; Henry v El, 2010 ABCA 312 at paras 2-3, 5, 193 ACWS (3d) 1099, leave denied [2011] SCCA No 138.A litigant’s entire court history is relevant, including litigation in other jurisdictions: McMeekin v Alberta (Attorney General), 2012ABQB 456, 543 AR 132; Curle v Curle, 2014 ONSC 1077 at para 24; Fearn v Canada Customs, 2014 ABQB 114.

That includes non-judicial proceedings, as those may establish a larger pattern of behaviour: Bishop v Bishop at para 9; Canada Post Corp. v Varma(2000), (FC), 192 FTR 278 at para 23; West Vancouver School District No. 45 v Callow, 2014 ONSC 2547 at para39.

A court may take judicial notice of public records when it evaluates the degree and kind of misconduct caused by a candidate abusivelitigant: Wong v Giannacopoulos, 2011 ABCA 277 at para 6, 515 AR 58. [102] The fact another court has concluded a court participant has engaged in abusive misconduct and was declared a “vexatiouslitigant” is, naturally, highly relevant: Canada Post Corp. v Varma at para 24. B.

Submissions [103] After I declined to take jurisdiction of Ewanchuk’s habeas corpus #2 application on November 18, 2016 I ordered Ewanchuk toreturn to court on December 9, 2016 to make submissions concerning his future access to Alberta courts. I invited Canada to makesubmissions and to file materials relevant to Ewanchuk’s litigation activities. Ewanchuk made submissions at the December 9, 2016proceeding and written submissions by January 31, 2017. Ewanchuk did provide some documents by that date, which I will discussbelow. The Crown had until February 15, 2017 to respond.

1. Canada [ 104 ] Canada reviewed Ewanchuk’s activities per Chutskoff v Bonora . His habeas corpus #2 application was hopeless and sought remedies that could not be obtained. He made duplicate applications, which are an abuse of process.

Ewanchuk’s complaints were accumulative, particularly in his Court of Appeal appeals where new and illegitimate subjects were added, such as: 1. an application to have provisions in the Corrections and Conditional Release Act declared unconstitutional; 2. complaints that psychological reports on Ewanchuk’s state and potential risk were incorrect; and 3. an unfiled civil action statement of claim. [ 105 ] Ewanchuk made a premature and unauthorized appeal of my November 18, 2016 decision on December 7, 2016, which was refused by Crighton JA. [ 106 ] While Canada had not pursued Ewanchuk’s costs awards he has not paid them.

Ewanchuk repeatedly and without basis accused Canada’s counsel of disobeying court directions and being in contempt of court. [ 107 ] Canada provided a number of what are, for lack of a better description, unfiled court documents. For example, on November 26, 2015 Ewanchuk sent the Alberta Court of Appeal and Canada a letter that attached what was purported to be a Notice of Appeal to the habeas corpus #1 decision and a supporting affidavit.

However, then Ewanchuk filed a formal Notice of Appeal on December 15, 2015, that document referenced “written submissions already sent to the Appeal Court Registrar”, which presumably meant the November 26, 2015 documents. [ 108 ] Other unfiled documents received by Canada included: 1. A January 12, 2016 document titled “For a Court Order” that complains about information technology and computer resources at the Bowden Institution and demands a right to purchase a personal computer and laser printer. Ewanchuk alleges not having this computer is a breach of his Charter ss 1, 2, 7, 9 and 15 rights. 2.

A “Statement of Claim” dated March 30, 2016 where Ewanchuk sues several employees at the Bowden Institution and the Commissioner of Corrections. This largely complains that Ewanchuk has not received appropriate food. In particular, he complains about a lack of bananas. He is served too much “processed foods”, tofu, and pastas, which led to years of “extreme bloating all the time and excessive gas”. Ewanchuk rejects treatment by drugs when “a healthy diet” is an alternative recourse. Muslim inmates allegedly receive better food than Ewanchuk.

All this is negligence: medical negligence, mental suffering, abuse of power, breach of care and duty. Ewanchuk demands $50,000.00 per year that he was been detained in the Bowden Institution, costs, and relief under Charter , s 24(1). 3. A “Statement of Claim” vs a Derek Anderson, who allegedly is a lawyer who Ewanchuk retained to assist with the habeas corpus #1 proceeding.

This is the lawyer who Ewanchuk complains mishandled that application which led to the duplicative Red Deer and Edmonton proceedings. [ 109 ] Canada’s position is that Ewanchuk should be subject to a vexatious litigant order to restrict his court access. Security for costs may also be warranted. Canada takes the position that Ewanchuk’s written reply documentation is irrelevant to the issue of whether his abuse of court processes warrants court access restrictions. 2. Ewanchuk [ 110 ] I gave Ewanchuk the opportunity to make submissions and give evidence at the December 9, 2016 hearing.

Ewanchuk stressed that once he learned about the Mission Institution v Khela decision he “grabbed this case law ... and found out we had more rights than we were being allowed.” He indicated he was familiar with the Alberta Court of Appeal decision in DG v Bowden Institution . Ewanchuk repeated many of the spurious complaints from the habeas corpus #2 application, which he characterizes as losses of residual liberty.

Ewanchuk maintains his position that Mission Institution v Khela applies to those complaints. [ 111 ] Ewanchuk was particularly upset at being compared to the vexatious litigant in Hok v Alberta : ... I’m insulted by being compared to her situation and mine. I mean, it’s not even close in comparison. I mean, I believe mine are worthy of going to the court with. I present them in a - in a logical manner and, I believe, in a fairly substantive manner. I don’t sort of beat around the bush.

I don’t - I don’t exaggerate. [ 112 ] In his opinion the Mission Institution v Khela is an excellent and very important decision, and that it permits habeas corpus to be “used more frequently in the courts”. Ewanchuk explained he hands out copies of that decision to as many inmates as possible, “... so they knew what their rights were.” He denied he acts as a lawyer.

He simply helps out others who file habeas corpus applications, for example by giving out his template documents, and polishing their materials. [ 113 ] Ewanchuk blamed the duplicate habeas corpus applications in 2015 on his former lawyer Derek Anderson, who Ewanchuk says filed the Red Deer application without informing Ewanchuk. Ewanchuk otherwise says he has always had the right to make his various applications and appeals. He claims he has always acted with good intentions.

Ewanchuk confirmed he is the author of all the materials provided by the Crown. [ 114 ] Ewanchuk’s written materials in response to the December 9, 2016 hearing focus on his complaints concerning the Bowden Institution, and only minimally relate to his litigation misconduct. These include: 1. A “Letter as Affidavit in additional information as notice of Charter violations for the appeal in front of the ABCA, and the matter before Justice Thomas presently in the Alberta Court of Queen’s Bench”. This document complains about information technology

and computer resources at the Bowden Institution, demands the Institution be fined, and that all Bowden Institution inmates receive computers and printers. 2. “Written submissions” dated January 17, 2017, which largely recaptured Ewanchuk’s complaints in the habeas corpus #2 application. Ewanchuk ends this document with a conclusion he should receive the remedies that I denied at the November 18, 2016 hearing. The “Written submissions” go on at some length on how God will punish persons Ewanchuk identifies as wrongdoers, including the Edmonton Remand Centre, and certain judges.

He says “There have been a lot of Ungodly decisions from our Courts ...”. There are, however, some relevant submissions. Ewanchuk argues that this Court cannot rely on any unfiled documents, except as evidence of Charter abuse, and that Ewanchuk’s litigation is an expression of his Charter -protected freedom of speech. He should not be denied his “fair and non-restricted day in court”. This Court should not via a vexatious litigant order interfere with or limit his basic rights, including habeas corpus . 3. A cryptic one page document titled “Affidavit in Support” which states: ...

I am presently in Federal custody at Bowden Institution. That the applicant was ordered detained by the National Parole Board and that he believes was under a statute that should never have been law and is in violation of the Charter and needs to be declared unconstitutional. THAT I MAKE THESE EXTRA SUBMISSIONS AND DEMAND THAT THE PRESENT BOWDEN INSTITUTION and Attorney General, provide full disclosure and reasons for their decision to order me detained. 4.

A “letter affidavit” dated both December 23, 2016 and January 24, 2017 which complains about the “torture” Ewanchuk has observed and experienced at the Edmonton Remand Centre. Ewanchuk warns that he “... is going to make sure the World court is aware of what occurs in the new Edmonton remand.” The “letter affidavit” concludes with a demand for a $50,000.00 (or more) “punitive damage award”. C. Abusive Litigant Status [ 115 ] I will address several evidentiary points before reviewing Ewanchuk’s litigation misconduct.

First, Ewanchuk is not correct that I cannot refer to or examine his unfiled materials that were provided by Canada. These items are relevant as they reference his litigation activities and complaints against the Bowden Institution, and therefore provide context to his litigation activities: Bishop v Bishop ; Henry v El . [ 116 ] Second, I accept Ewanchuk’s explanation for the duplicate habeas corpus #1 applications, and will not consider that as potential evidence of litigation misconduct. 1.

Hopeless Proceedings [ 117 ] As I have previously indicated Ewanchuk’s habeas corpus #2 application had no prospect for success. Ewanchuk’s application did not identify any actual detention or loss of liberty, though Ewanchuk framed his application (spuriously) in that manner: Judicature Act , s 23(2)(b); Dykun v Odinshaw at para 42.

He sought forms of relief that cannot be obtained: Fearn v Canada Customs , at para 106 ; McMeekin v Alberta (Attorney General) , 2012 ABQB 456 at paras 196 , 203, 543 AR 132; Onischuk v Alberta , 2013 ABQB 89 at paras 14 , 35, 555 AR 330. [ 118 ] Even if the relief sought could have been granted, his claims were grossly disproportionate to any plausible remedy: Stout v Track , 2013 ABQB 751 at paras 68-71 ; Arabi v Alberta , 2014 ABQB 295 at paras 101-103 ; McMeekin v Alberta (Attorney General) , 2012 ABQB 456 at paras 196 , 203, 543 AR 132.

Ewanchuk’s demand for $100,000.00 due to the “mental anguish” he experienced due to the short duration lockdowns, rude guards, and the indeterminable contents of the Bowden Institution “goo-lash” is entirely unwarranted. [ 119 ] To put Ewanchuk’s claim in perspective I note that in Blackwater v Plint , 2005 SCC 58 at para 88-89 , [2005] 3 SCR 3 the Supreme Court of Canada confirmed a $125,000.00 general damages award to an aboriginal plaintiff who had been the subject of repeated and brutal sexual assaults and other abuse while he was a resident of a residential school.

This illustrates, grimly, how Ewanchuk’s claimed damages are inconsistent with Canadian law, if not unrelated to it. [ 120 ] This is not the only one of Ewanchuk’s hopeless proceedings. I previously identified his late leave application to the Supreme Court of Canada: R v Ewanchuk , [2016] SCCA No 228.

He appealed his latest sexual assault conviction and sentence from 2010 to the Supreme Court of Canada in 2016, well outside the 60 day limitation period for that Court: Supreme Court Act , RSC 1985, c S-26, s 58(1)(a). [ 121 ] His current appeal of the habeas corpus #1 decision appears to have no prospects for success. In Ewanchuk v Canada (Parole Board) , 2015 ABQB 707 he challenged two decisions of the Parole Board of Canada: paras 1-2, 61-62.

In DG v Bowden Institution , 2016 ABCA 52 , 612 AR 231 the Alberta Court of Appeal confirmed that an earlier decision, Armaly v Canada (Parole Service) , meant the Alberta Court of Queen’s Bench should decline jurisdiction over a habeas corpus challenge to the Parole Board of Canada. See also Hamm v Morgan (Last Name Unknown) , 2017 ABQB 156 at paras 17-21 . [ 122 ] Ewanchuk had engaged in other dubious litigation activities.

He wanted a “counter costs” claim though there is no legal basis for him to do so. [ 123 ] Ewanchuk has also engaged in obviously hopeless proceedings in relation to this vexatious litigant application with his premature “Application” for a stay that was rejected by Crighton JA. Ewanchuk appears to argue that vexatious litigant restrictions are unconstitutional and explains that: ... To take away the right from someone to file legal documents is only done in Russia and should never occur in Canada.

He is wrong. That limitation is a necessary part of the Court’s inherent jurisdiction to control its own processes. [ 124 ] This pattern of hopeless proceedings is also reflected in Ewanchuk’s January 2017 documents where he makes demands for “punitive damages awards” outside any known legal process. [ 125 ] This is the first independent basis on which I conclude Ewanchuk is an abusive litigant whose court activities potentially require control. 2. Escalating Proceedings [ 126 ] Another basis to conclude litigation is vexatious is where legal proceedings “escalate” over time.

While escalation may take a number of forms, in Ewanchuk’s habeas corpus applications and their appeals this indicium involves unrelated issues and subjects being added to the original action: Chutskoff v Bonora , at para 92. [ 127 ] This happened in both of Ewanchuk’s habeas corpus applications. In the habeas corpus #1 appeal Ewanchuk on October 28, 2016 added an entirely new issue, applying to have provisions in the Corrections and Conditional Release Act declared unconstitutional.

Another document filed the same day demanded at least $10,000.00 or more because Ewanchuk was located in the Edmonton Remand Centre between October 17-27, 2016. He complains about doors banging loudly, food he had rejected, loud inmates, unhygienic conditions, and that lights were left on until late at night. He was unable to sleep, particularly after another inmate was roomed in his cell. This was “torture”.

The “torture” Ewanchuk claims he experienced in the Edmonton Remand Centre may be the basis for some form of civil litigation or a Correctional Service of Canada complaint, but it has no place in an appeal of a denied habeas corpus application. [ 128 ] Ewanchuk’s January 2017 documents, which should have been nothing but a reply on the vexatious litigation issue, instead add claims that he and other Bowden Institution inmates should have personal computers.

He also seeks a $50,000.00 damage award against the Edmonton Remand Centre for yet more “torture”. [ 129 ] It seems Ewanchuk simply attaches whatever new demands occur to him onto his purported habeas corpus proceedings. [ 130 ] This is a second independent basis on which I conclude Ewanchuk is a vexatious litigant. 3. Proceedings Brought for an Improper Purpose [ 131 ] I have previously observed that the habeas corpus #2 application is clearly an example of a civil claim that is dressed up as a habeas corpus application.

I concluded that Ewanchuk had purposefully structured his filing as a habeas corpus application so as to gain a tactical advantage. Ewanchuk is not a novice to the habeas corpus procedure; he has previously made and argued an application of this kind. I concluded, as the Crown suggests, that Ewanchuk chose this (purported) form of filing as a method to reverse the onus on the Crown to disprove his allegations, and to gain ‘priority’ over other persons attempting to access the Alberta Court of Queen’s Bench. [ 132 ] He knows what a civil action statement of claim looks like.

His materials include several documents of that kind. Ewanchuk has mislabelled his various civil and/or judicial review complaints as habeas corpus applications. [ 133 ] Chutskoff v Bonora at para 92 identifies many subcategories of improper purposes. I do not know whether Ewanchuk filed his habeas corpus #2 application out of revenge, to extort a benefit, or for a collateral advantage.

That question is immaterial since what is clear is that the habeas corpus #2 application has no merit, could not succeed, but was designed to force Canada and the Court to allocate scarce time to Ewanchuk’s complaints. [ 134 ] This is a third independent basis on which I find Ewanchuk engaged in abuse of court processes. 4. Failure to Comply with Court-Ordered Obligations [ 135 ] Ewanchuk has an outstanding and unpaid cost award relating to the habeas corpus #1 litigation. He says he will not pay it.

A failure to abide by court ordered obligations, including paying costs, is another basis to conclude Ewanchuk is engaged in vexatious litigation: Judicature Act , s 23(2)(e); Dykun v Odinshaw , at para 42. [ 136 ] Canada to date has not pursued this order, and Ewanchuk still has a live appeal of the habeas corpus #1 application. I therefore conclude this is a minor ‘aggravating’ factor as to whether Ewanchuk’s litigation conduct required court intervention. 5.

Unsuccessful Appeals [ 137 ] Another indicium of vexatious litigation are unsuccessful appeals from judicial decisions: Judicature Act , s 23(2)(f); Dykun v Odinshaw , at para 42. If those appeals have no explanation except to incur cost and cause delay then that is an aggravating factor: McMeekin v Alberta (Attorney General) , 2012 ABQB 625 at paras 38 , 41, 543 AR 11. [ 138 ] As I have previously discussed, Ewanchuk has made a futile, late appeal to the Supreme Court of Canada from his last criminal conviction and sentence.

He also initiated a premature appeal of my November 18, 2016 decision that was rejected by Crighton JA.

As I have previously indicated his habeas corpus #1 appeal appears to have no merit since the Parole Board of Canada represents a complete, comprehensive, and expert procedure to review Ewanchuk’s detention. [ 139 ] Ewanchuk is also explicit that it is his intention to continue his appeals no matter what, so that the Supreme Court of Canada will witness “the blatant disregard of the SCC in Khela”. [ 140 ] In fact, in one document Ewanchuk makes the curious claim to have the authority to bypass the Alberta Court of Appeal. In his

unfiled November 30, 2016 Notice of Appeal at para 112 Ewanchuk sets a timeline for that Court, or else it loses jurisdiction, and he can immediately proceed to the Supreme Court of Canada: I also demand that the Appeal Court of Alberta rule on this within ten days after this appeal of the dismissed writ is filed by the courts registrar in Edmonton, Alberta. If not decided within ten days, because this is a writ appeal, Mr. Ewanchuk will file directly to the SCC as this has gone on way too long as it is already.

The records prove procedural unfairness and therefore the decision to detain is unlawful and the detainment becomes unlawful. The SCC in Khela clearly states that produces loss of jurisdiction of that decision.

Charter breaches are serious and create denial of justice and the courts of all entities are required to protect inmates and all Canadians from this denial of justice because of procedural unfairness. [Emphasis in original.] This is obviously incorrect, but says much about Ewanchuk’s intentions. [ 141 ] Ewanchuk’s practice of spurious, late, and premature appeals is the fourth independent basis on which I conclude he has engaged in vexatious litigation that requires court intervention. 6.

Allegations of Conspiracy and Fraud [ 142 ] Another common feature of vexatious litigation is that such litigants make unsubstantiated claims of conspiracy and fraud: Chutskoff v Bonora at para 92. Ewanchuk’s litigation history provides many examples. [ 143 ] First, he complains about lawyers and judges. Counsel for Canada observed that he is the target of spurious allegations of contempt. This is amply documented in the records supplied to the Court. [ 144 ] Judges are equally suspect.

Ewanchuk also alleges that judges who “blatantly ignore” the Khela v Mission Hill decision manipulate the law to lessen the court case load, instead of protecting citizen’s rights. “The rich protect the rich and walk on the little guy and I pray now that God brings these people to their knees.” Ewanchuk states the residential schools tragedy would not have occurred “if we had honest and fair justices that respected our Canadian Charter and law.” [ 145 ] Ewanchuk’s unfiled November 30, 2016 Notice of Appeal in habeas corpus #1 at paras 37, 48 explicitly alleges trial courts attempt to deny persons their common law and constitutional rights: Its time the Alberta Superior court Justices stopped being road blocks to the charter and the many abuses that they fail to rule on properly.

That’s probably why habeas corpus got lost for so many years and was seldom used. Charter breaches certainly didn’t stop. Now that the SCC decided its time to use it for what it was created for there pops up some Justices that just don’t think the Charter is that important. ... It would be interesting to know just how many court of Queens Bench Justices don’t respect the charter. Someone should do an audit on how many charter enforcements are applied by every Justice in Canada.

Those with little or none should be removed off the bench. [ 146 ] I have previously reviewed Ewanchuk’s scandalous allegations of conspiracy and fraud at the Bowden Institution. He has no supporting evidence for that. He had asked for relief that I could not order, such as that certain Bowden staff members involved in this purported conspiracy be the target of criminal prosecution. His demand for damages was incompatible with the form of application he had made. [ 147 ] This misconduct ranges from sabotage of information resources, to stolen butter, to unqualified personnel.

Ewanchuk says the fact that psychologists at Bowden do not display their qualification certificates indicates these persons are unlicenced and unqualified. In his unfiled November 30, 2016 Notice of Appeal Ewanchuk observes that Bowden’s psychologist disappeared once Ewanchuk demanded to see her credentials in his court documents. [ 148 ] The conspiracies extend to Bowden Institution documentation; Ewanchuk says he is the target of cover-ups and fraud. For example, he alleged at the March 26, 2014 Parole Board hearing that the Board intentionally did not record part of the hearing.

This was purposeful: “bad faith and unfair procedure” conducted to “protect themselves”. Rather than a more mundane explanation, Ewanchuk concluded certain documents which showed a different inmate’s name were evidence of a malicious scheme. These are fabricated and forged documents: Ewanchuk v Canada (Parole Board) , 2015 ABQB 707 at para 79 . Graesser J instead concluded this was nothing but a typographical error, and there is no evidence of any document forgery. [ 149 ] Ewanchuk says that what he has experienced is all part of a yet greater conspiracy - the systematic abuse of incarcerated sex offenders.

In the habeas corpus #2 application Ewanchuk complains how dangerous violent criminals have been brought into the Bowden Institution, and the guards ignore what then happens next. Ewanchuk’s September 26, 2016 “Submissions to the Court of Appeal of Alberta” goes even further. It alleges he and other sex offenders receive inappropriate, unfair treatment. He claims the Correction Service of Canada has purposefully misclassified him to justify his ongoing detention. This is part of Prime Minister Stephen Harper’s ‘tough on crime’ initiative.

Ewanchuk complains that murderers are treated better than sex offenders such as himself, who are “the pariah of society”: ... Others hunt them down now as if they have some societal right to do so. They ostracize them and make their lives miserable in whatever way they can. Society is treating them worse than if they carried the most deadly disease. Society is hiding the problem by abusing some because they don’t want to admit that a lot of people are sex offenders all around them. It is a cultural thing and a spiritual sickness!! Jail traumatizes them through the violence and abuse they face nearly daily.

The applicant knows all too well what occurs daily. [ 150 ] This is a reason Ewanchuk says he should not have to pay court costs assessed against him.

[ 151 ] Ewanchuk’s unsubstantiated claims of conspiracy and fraud are yet another basis on which Ewanchuk’s litigation activities may be subject to court control. 7. Scandalous and Inflammatory Language [ 152 ] Use of scandalous or inflammatory language is another basis to conclude a litigant is vexatious: Chutskoff v Bonora , at para 92. [ 153 ] Ewanchuk reacts very negatively when judges do not find in his favour.

For example, Ewanchuk’s unfiled Notice of Appeal to Justice Graesser’s decision in the habeas corpus #1 proceeding includes negative and inflammatory comments about Justice Graesser and the court apparatus as a whole. Justice Graesser’s errors are “enormous”, and his judgment is a “ridiculous ruling”.

In Ewanchuk’s opinion the current Canadian court and government regime “... matches up closely with the most ruthless tyrant of our century, Hitler himself.” Ewanchuk frequently draws parallels between his experiences with the criminal justice system and historic mistreatment of aboriginal populations, which he calls “genocide”. [ 154 ] Perhap

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