McCargar v Canada, 2017 ABQB 416

Court of Queen’s Bench of Alberta Citation: McCargar v Canada, 2017 ABQB 416 Date: 20170630 Docket: 1703 08692 Registry: Edmonton Between: Brook McCargar, Cody Allen Joseph, and Murray Cardinal Applicants - and - Her Majesty the Queen, Correctional Services Canada (C.S.C.), Edmonton Institution, Correctional Manager of Segregation Unit 6 Chris Saint Respondents Corrected judgment: A corrigendum was issued on August 28, 2017; the corrections have been made to the text and the corrigendum is appended to this judgment. _______________________________________________________ Memorandum of Decision of the Honourable Mr.

Justice John T. Henderson _______________________________________________________ I. Introduction [ 1 ] On May 5, 2017 Brook McCargar, Jeffery Hernandez Cansanay, Cody Allen Joseph, and Murray Cardinal filed a joint

habeas corpus application in the Alberta Court of Queen’s Bench. These individuals are prisoners detained in federal prisons operated by Correctional Services Canada. Their application alleges that these individuals have experienced an unlawful loss of residual liberty, though their complaints range further than that. [ 2 ] The Attorney General of Canada on June 8, 2017, on behalf of the Respondents, applied to have this Court decline to take jurisdiction and dismiss the habeas corpus application because: 1. Mr. Cansanay had discontinued his application, 2. Mr. Cardinal’s application is moot, 3. Mr.

Joseph’s detention is voluntary, and 4. all the applications relate to prison conditions and not a decision that resulted in a deprivation of liberty. The Attorney General sought costs against the remaining Applicants. [ 3 ] At the conclusion of the June 22, 2017 hearing I granted part of the Respondents’ application, terminated the habeas corpus process initiated by Mr. McCargar, and awarded costs against Mr. McCargar.

I also found Brock McCargar in prima facie contempt of court, and concluded that he is a person who potentially should be subject to restrictions on his filings in Alberta courts under what is commonly called a vexatious litigant order. I indicated written reasons would follow; these are those reasons. [ 4 ] This decision involves a number of steps to parse this action, and review the history of this process, including: 1. whether Mr.

McCargar may represent the other participants; 2. if a joint habeas corpus application is appropriate, specifically and in general; 3. whether Jordan Keenan Quewezance may participate in this application; 4. whether the Court should take jurisdiction of the Applicants’ habeas corpus application(s); 5. if costs should be awarded against the Applicants; and 6. what future steps should be taken in relation to Mr.

McCargar. [ 5 ] In brief, this is another of the increasingly frequent frivolous, vexatious, and abusive habeas corpus applications that have been received by the Alberta Court of Queen’s Bench from incarcerated persons in Alberta. This pattern of abusive litigation and its powerfully deleterious effect on court functionality is discussed by Thomas J in Ewanchuk v Canada (Attorney General) , 2017 ABQB 237 at paras 170-187 . As this proceeding history illustrates, Mr.

McCargar has seized on the habeas corpus process as a basis to, without cost to himself, inflict unnecessary and inappropriate litigation demands on this Court, all in a manner which Watson J (as he then was), colourfully but accurately described in Peddle v Alberta Treasury Branches , 2004 ABQB 608 at para 30 , 133 ACWS (3d) 253 as “the beck and call, or the “peck the typewriter and fax”” of a disgruntled litigant. [ 6 ] The problem, as Justice Thomas observed in Ewanchuk v Canada (Attorney General) , is the fact that habeas corpus is a constitutionally protected remedy which is only effective when it is tested and enforced in a timely manner.

That, however, also means habeas corpus is easily abused by those who have no interest in the pursuit of justice. Mr. McCargar has engaged in just such abuse, and that means the Court’s next steps will be to evaluate what should be done about that. II. Litigation Events [ 7 ] This Court’s approach to habeas corpus is described in Ewanchuk v Canada (Attorney General) at paras 171-76 .

In brief, when this Court receives a habeas corpus application the typical procedure is that a hearing date is set at the first Queen’s Bench Appearance Court [“QBAC”] session for either the habeas corpus application to be heard, or (as happened here) if the Crown challenges the validity of that application, then two dates are set: one for an application to dismiss the habeas corpus application, the second date for the application proper, if necessary. [ 8 ] This habeas corpus application however involved some other atypical events which were initiated by Mr.

McCargar: May 9, 2017 : Brook McCargar, Jeffery Hernandez Cansanay, Cody Allen Joseph, and Murray Cardinal filed a joint habeas corpus application in the Alberta Court of Queen’s Bench. The application complains about administrative segregation detention in the Edmonton Institutional maximum security prison. At this point Mr. Cardinal is no longer in the Edmonton Institution; on April 2017 he was transferred to the Kent Institution in Agassiz, British Columbia, and was no longer in segregation but instead had been returned to the prison general population.

None of the Applicants paid any court filing fees since they filed fee waivers with the Court Clerks. May 19, 2017 : QBAC the Attorney General of Canada indicated it intended to apply to have the habeas corpus application dismissed. Two dates were therefore set: a hearing of the motion to dismiss, scheduled for June 22, 2017, and the habeas corpus application itself, set for August 28, 2017. May 30, 2017 : Mr. McCargar files on behalf of the Applicants an “Amended Amended Originating Application for Habeas Corpus”.

June 6, 2017 : Mr. Cansanay files a Discontinuance of Claim and exits the process. June 6, 2017 : Mr. McCargar on behalf of the four original applications files an “Emergency Ex Parte Interlocutory Application to Substitute Party Applicant for Conflicting Hostile Adverse Party Applicant, and Ancillary Relief” to be heard on June 9, 2017. This application seeks to have the Court apply Alberta Rules of Court , Alta Reg 124/2010 [the “ Rules ”, or individually a “ Rule ”] Rule 3.75 and order “removal and separation” of Mr.

Cansanay from the habeas corpus application, and that another inmate at the Edmonton Institution, Jordan Keenan Quewezance, take his place. June 8, 2017 : the Attorney General of Canada applies to have the Court refuse to take jurisdiction and dismiss the habeas corpus application. This application is supported by a June 7, 2017 Affidavit of Edmonton Institution Deputy Warden Albert Boucher. June 8, 2017 : Mr. McCargar files an “Ex Parte Application for Complete and Entire Access to Court File 1703-08692”, complaining he had not been provided file materials by the Court Clerks on demand. June 9, 2017 : Mr.

McCargar, Mr. Joseph, Mr. Cardinal, and Mr. Quewezance appeared before me for the “Emergency” hearing in response the June 6, 2017 application. This was not an “ex parte” application despite its title; the Crown was present. As an initial step I noted that Mr. McCargar appeared to be filing materials and acting on behalf of the entire group. This was not disputed, and Mr. Joseph, Mr. Cardinal, and Mr. Quewezance confirmed they wanted Mr. McCargar to act in that role.

I explained to the Applicants that Legal Profession Act , RSA 2000, c L-8, s 106 prohibits representation in the Alberta Court of Queen’s Bench by non-lawyers, and this is a rule that is strictly enforced: 908077 Alberta Ltd. (Escape & Relax) v 1313608 Alberta Ltd. , 2015 ABCA 117 , 20 Alta LR (6th) 430. I then ordered that Mr. McCargar was prohibited from any further filings or submissions on behalf of anyone except himself. Mr. McCargar repeatedly attempted to make arguments in relation to the other Applicants during this hearing and despite my warning. I again stressed Mr.

McCargar had no legal right to do so, and that he should stop. Mr. McCargar also complained that he (and the other applicants) had not received adequate notice under the Rules of Mr. Cansanay’s withdrawing from the action. Counsel for the Attorney General of Canada at this point provided Mr. McCargar with a copy of the June 6, 2017 Discontinuance of Claim document. I ordered that satisfied any obligation of the Respondents and Mr. Cansanay on this point.

At this hearing I raised with the parties two issues which would be the subject of full argument at the June 22, 2017 hearing: 1. whether the habeas corpus application may be heard collectively for the three remaining applicants, and 2. whether Mr. Quewezance should be added to the action. June 15, 2017 : Mr.

McCargar submitted a package of documents to Associate Chief Justice Rooke, demanding a hearing on June 20, 2017 to: 1. have a case management justice appointed per Rules 4.12-4.13, 2. have the Court appoint a litigation representative per Rule 2.16 or an amicus curiae , and 3. consider an “Interlocutory Application to Cure Rule Contravention and Non-Compliance With Procedural Requirement” that relates to Mr. Cansanay’s discontinuing his part of the habeas corpus application, and which returned to the same issue I had addressed in the June 9, 2017 hearing on this subject.

Associate Chief Justice Rooke dismissed all three applications, noting that per my order of June 9, 2017 Mr. McCargar had no authority to file materials on behalf of Mr. Cansanay, Mr. Joseph, and Mr. Cardinal. Those applications were a nullity, nunc pro tunc .

Rooke ACJ noted “that Brook McCargar has a persistent history in this action of filing frivolous and vexatious, and abuse of process applications in or in relation to the Docket 1703-08692 habeas corpus action” and on that basis ordered: Brook McCargar is prohibited from filing any further applications or other documents in Docket 1703-08692 or related to Docket 1703- 08692 prior to the June 22 hearing before Justice Henderson, without leave of Justice Henderson or Associate Chief Justice Rooke ... June 19, 2017 : Mr.

McCargar submitted to the Court a document titled “Written Representations of the Applicants (Respondents) on the Respondents (Applicants) Application to Dismiss”, which states the Attorney General should be barred from making further submissions, to exclude certain evidence, and that the motion to dismiss cannot succeed because of the high threshold required to end an action. Prior to June 22, 2017 : Mr. Joseph discontinued his claim and exited the process. III.

Preliminary Issue #1 - Joint Habeas Corpus Applications [ 9 ] At the June 22, 2017 hearing the Attorney General took the position that I should apply Rule 3.71(2) and separate the joint application into two (or three, considering Mr. Quewezance) separate processes. By that point Mr. Joseph had also discontinued his application. [ 10 ] I agree with the Attorney General and conclude that the habeas corpus detention of each Applicant should be considered on a separate and independent basis.

There are both legal and policy reasons why this should be done. [ 11 ] Habeas corpus is a historic UK common law right to challenge state ordered detention: DG v Bowden Institution , 2016 ABCA 52 at paras 105-122 , 612 AR 231. This important right was subsequently enshrined in the Canadian Charter of Rights and Freedoms , 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. [12] Appellate case law is consistent that habeas corpus is an individual right.

The classic and much quoted restatement of thepurpose of habeas corpus in Jones v Cunningham, 371 US 236 at 243 (1963) stresses this exact point: ... habeas corpus is “not now and never has been a static, narrow, formalistic remedy; its scope has grown to achieve its grand purpose —the protection of individuals against erosion of their right to be free from wrongful restraints upon their liberty ... [Emphasis added.] (for example cited in Mission Institution v Khela, 2014 SCC 24 at para 54, [2014] 1 SCR 502; May v Ferndale Institution, 2005 SCC82 at para 21, [2005] 3 SCR 809; Idziak v Canada (Minister of Justice), (SCC), [1992] 3 SCR 631 at 649, 97 DLR(4th) 577; R v Miller, (SCC), [1985] 2 SCR 613 at para 34, 24 DLR (4th) 9; R v Gamble, (SCC),[1988] 2 SCR 595 at 645, 45 CCC (3d) 204). [13] In May v Ferndale Institution at para 21 the Court cites R J Sharpe, The Law of Habeas Corpus, 2nd ed (Oxford: ClaredonPress, 1989) at 23 for this explanation of the habeas corpus process: The writ is directed to the gaoler or person having custody or control of the applicant.

It requires that person to return to the court, on theday specified, the body of the applicant and the cause of his detention. The process focuses upon the cause returned. If the returndiscloses a lawful cause, the prisoner is remanded; if the cause returned is insufficient or unlawful, the prisoner is released. The matterdirectly at issue is simply the excuse or reason given by the party who is exercising restraint over the applicant. This is a personal right. The prisoner may challenge the basis for his or her detention. [14] Similarly, in Mission Institution v Khela Lebel J at para 55 observed: “...

This Court has been reluctant to place limits on theavenues through which an individual may apply for the remedy. ...” [emphasis added]. [15] This observation is nothing extraordinary. It simply follows the pattern of other Charter rights. A Charter right is a personalright: R v Edwards, (SCC), [1996] 1 SCR 128 at paras 42-45, 132 DLR (4th) 31. Third parties cannot invoke or seekanother individual’s Charter rights for their benefit. [16] Habeas corpus is a challenge to a decision that led to a detention, or in the case of an incarcerated prisoner, a decision that ledto a further deprivation of liberty.

This means that in most instances a habeas corpus application is a unique application. For example,Prisoner X may challenge why Prisoner X was moved into segregation on the basis of elements such as the Prisoner X’s conduct, threatsto and by Prisoner X, Prisoner X’s history, the procedure that led a decision-maker to order the move, and so on. In almost everyinstance this will be an individualized analysis and result. [17] I conclude in almost every circumstance joint applications are improper for a number of reasons. The first is inefficiency.

Thehearing judge is confronted by multiple detainees and detention scenarios. This leads to lengthy, potentially confused applications.Habeas corpus is designed for timely relief, where appropriate. The Supreme Court of Canada has recently in R v Cody, 2017 SCC 31 atparas 36-39 stressed that Canadian courts have an obligation to develop and employ adaptive, effective procedures and pre-emptiveresponses to ensure ‘delay does not deny justice’. That is for criminal litigation.

This watchfulness and objective is even more true forhabeas corpus, which is an extraordinary remedy intended to ensure a timely response to potentially illegal detention. [18] Joint applications increase the logistical obligations on the Court and government actors who are required to produce therelevant record. Joint applications increase the risk of confusion between applicants and their respective facts. A delay relating to oneapplicant can spill over and affect the rights of others. Joint applications can be muddled or compromised by the actions of one of theapplicant set.

This risk became very apparent in this proceeding since Mr. McCargar attempted to drive and control the litigationactivities of the other habeas corpus Applicants in this habeas corpus application. He prepared and filed the application’s materials. Hewent so far as to turn inquisitor on Mr. Cansanay after Mr.

Cansanay made his own choice, in relation to his own rights, anddiscontinued his habeas corpus application. [19] Another issue with joint habeas corpus applications that is clearly illustrated in the present action is that a person with noprofessional obligations to act in the best interest of another litigant may end up driving or directing an application to the detriment ofothers. As I will later explore in more detail, here that is Mr. McCargar. Mr. McCargar has no legal right to speak for the others, thoughhe ignored that law and my direction to limit his litigation activities to himself.

His litigation misconduct will have deleteriousimplications to himself, but that has the potential to spill over to other participants. [20] Though it unnecessary for me decide whether to take jurisdiction of Mr. Joseph’s habeas corpus application since hewithdrew from this proceeding, I believe it is helpful and illustrative to at least briefly explain that the Attorney General was correctwhen it argued Mr. Joseph’s habeas corpus application was hopeless because his then current detention was voluntary. On April 25,2017 Mr.

Joseph refused a transfer out of administrative segregation into a general population unit. It is a well-established rule thathabeas corpus only applies to detentions that are imposed by government actors: Ewanchuk v Canada (Attorney General) at para 24;Biever v Alberta (Director of Edmonton Remand Centre), 2015 ABQB 609 at paras 33-35; R v Blanchard, 2011 SKCA 60 at para 13,371 Sask R 270. Mr. Joseph’s application was therefore hopeless from the start. If he had been represented by a lawyer then hisapplication would likely not have occurred. Mr. McCargar’s directing this joint application put Mr.

Joseph at risk of costs sanctions andpotentially other court-ordered penalties. Fortunately, Mr. Joseph discontinued his futile habeas corpus application and so those injurieswere avoided. [21] I therefore conclude that each of the Applicants to this habeas corpus application will be considered in isolation, as thougheach of their applications was a separate proceeding. I organized the June 22, 2017 hearing on that basis, and the same is true for theanalysis that follows. [22] The Alberta Court of Queen’s Bench has, in the past, entertained at least one joint habeas corpus application by four persons

incarcerated at the Edmonton Institution, which is reported as Hamm v Attorney General of Canada (Edmonton Institution) , 2016 ABQB 440 , 41 Alta LR (6th) 29. This case is distinguishable, if not unique, in that the four applicants were detained on an identical basis. [ 23 ] I conclude as a point of law that the Alberta Court of Queen’s Bench should not accept any habeas corpus application that includes two or more applicants. All habeas corpus applications must be made on an individual, person by person basis, in relation to that person’s alleged unlawful deprivation of liberty.

A habeas corpus application may only be made personally by the individual who alleges unlawful detention or loss of residual liberty, or a person authorized to represent others under the Legal Profession Act , RSA 2000, c L-8. [ 24 ] I acknowledge that once filed there is a possibility that applicants in two or more habeas corpus proceedings might apply to have their applications heard together provided: 1. the relevant facts are the same or closely related, 2. the alleged unlawful deprivation is the same and the result of the same or a factually parallel state decision or action, and 3 the applicants are represented by legal counsel. [ 25 ] For example, in May v Ferndale Institution five habeas corpus application appeals were considered together, however that appeal related to two discrete issues: 1) access to the habeas corpus jurisdiction of the British Columbia Supreme Court for persons detained in prison, and 2) the disclosure obligation on Canada to produce a specific detention scoring protocol used to evaluate prisoners.

This is very different from the contextual, individualized approach necessary in the present application and the usual habeas corpus scenarios. IV. Preliminary Issue #2 - The Status of Jordan Keenan Quewezance [ 26 ] The same principle of individual habeas corpus applications applies for the proposed replacement Applicant, Jordan Keenan Quewezance. However since a habeas corpus application is an individual application to protect an individual right, and Mr. Quewezance was not a participant in the initial application, I will simply dismiss the application to “remove” Mr. Cansanay and “replace” him with Mr.

Quewezance. [ 27 ] In any case Mr. Quewezance at the June 22, 2017 hearing indicated he had no interest in participating in the habeas corpus process. His statutory release date was only several weeks away. [ 28 ] As I explained to Mr. Quewezance at the June 22, 2017 hearing, this conclusion does not limit Mr. Quewezance from filing his own, personal habeas corpus application in relation to his current circumstances, if he alleges he is the subject of an unlawful detention or loss of residual liberty. V.

Should the Court Take Habeas Corpus Jurisdiction? [ 29 ] My next step is to individually review the habeas corpus applications of Mr. Cardinal and Mr. McCargar, and determine whether this Court should take jurisdiction to hear these matters. [ 30 ] The factors relevant to this analysis were recently reviewed by Thomas J in Ewanchuk v Canada (Attorney General) at paras 18-31 . A. Murray Cardinal [ 31 ] On April 26, 2017 Mr. Cardinal was transferred from the Edmonton Institution to the Kent Institution in British Columbia. The Attorney General argues that this means Mr.

Cardinal’s habeas corpus application is moot because he is no longer detained in the Edmonton Institution, and it is that detention that was challenged by the May 9, 2017 application. Habeas corpus only applies to current and ongoing detention. [ 32 ] At the June 22, 2017 hearing Mr. Cardinal applied to have the Attorney General’s application to dismiss his habeas corpus application adjourned. He explained he had misapprehended the date of the hearing and was not prepared to present his response. [ 33 ] I adjourned the Attorney General’s application in relation to Mr.

Cardinal’s habeas corpus application to August 28, 2017. B. Brook McCargar [ 34 ] This leaves Mr. McCargar, who responded to the Attorney General’s application with written materials supplemented by detailed oral arguments presented at the June 22, 2017 hearing. At that hearing he also provided a revised but unfiled set of written arguments, which he had provided to the Attorney General. I reviewed these materials during the June 22, 2017 hearing. 1. Arguments

[ 35 ] The Attorney General’s position is quite simple. Habeas corpus is an application by a person whose liberty is restricted by state action to challenge the reason for that detention. Another way of framing this point is that habeas corpus has the court review a decision by a state actor to restrict a person’s freedom. The Attorney General says though Mr. McCargar’s application and supporting material is voluminous (over 800 pages) and despite that Mr. McCargar says he has identified 96 separate bases for why his detention is unlawful, none on those complaints relate to a decision . Instead, Mr.

McCargar complains about the conditions of his detention in administrative segregation, not why he is in administrative segregation. The Attorney General acknowledges there very well may be issues, and even illegalities, in relation to those conditions, however habeas corpus is not a remedy available in that context. The Court should therefore decline to take jurisdiction. [ 36 ] Mr. McCargar’s written and oral arguments were largely similar. He objected to evidence contained in the Affidavit of Albert Boucher and demanded to cross-examine Mr. Boucher on his Affidavit, but I informed Mr.

McCargar that I would not be relying on that resource. Much of Mr. McCargar’s arguments related to the appropriate test for a Rule 3.68 application to strike, he stressed the high threshold required, and that the Court should not conclude that exploratory or novel arguments are necessarily hopeless and therefore subject to being struck out. The Court should consider the direction of the law’s development. Pleadings should be read in a broad and purposive manner. Habeas corpus is a flexible rather than narrow and formalistic remedy. As a self-represented litigant Mr.

McCargar says he is not bound to the same standards of procedural and evidentiary rules as other litigants, citing the Canadian Judicial Counsel’s “Statement of Principles on Self-Represented Litigants and Accused Persons”. [ 37 ] Mr. McCargar indicated the habeas corpus application includes no less than 96 different bases on which his detention is unlawful, and is supported by a large volume (800 pages) of unchallenged evidence. The Attorney General has failed to challenge some of these items, so the habeas corpus application should proceed.

Instead, the Attorney General should make an application for particulars under the Rules if it cannot respond to Mr. McCargar’s habeas corpus application allegations. [ 38 ] As for the Attorney General’s argument that Mr. McCargar has not challenged any specific decision that led to an illegal detention, Mr. McCargar responds that everything that has happened to him is the consequence of a decision, in one sense or another. There is always an ‘upstream’ decision, which then continues to have ‘downstream’ effects.

Thus the Attorney General has an obligation to prove each of those decisions. [ 39 ] Additionally, Mr. McCargar demands that I exclude from evidence orders dismissing two prior habeas corpus applications filed by Mr. McCargar. Mr. McCargar had not provided written notice it intended to include these items. I rejected this argument, noting the Court may always take judicial notice of its orders and decisions. 2. Remedies [ 40 ] Mr. McCargar makes many complaints, but I will first turn first to his remedies he seeks on page 22 of the Amended Amended Application: 1.

The Writ of Habeas Corpus to issue for this honorable Court to restore our liberty and relieve us the applicants of the aforementioned unlawful restrictions and deprivations of our rights, liberties, and freedoms; or in the alternative; 2. Declaratory Relief that the operation of Administrative Segregation violated our sections 2(a) (b), 7 , 8 , 9 , 15 Charter rights and Freedoms; and 4. Costs of this application, including special costs; 6. Any other remedy this honourable Court deems just and appropriate; Items 3 and 5 are absent from this list because they were struck out; Mr.

McCargar originally sought damages of $500.00 per each day he had spent in administrative segregation and an Anton Pillar order relating to his personal property. [ 41 ] I will first turn to item 2, a declaratory order. Alberta Courts reject that a declaratory order may result from a habeas corpus application: Ewanchuk v Canada (Attorney General) at paras 32-36 . The only remedy that may result from habeas corpus is that a person is release from detention or relief from a restriction on his or her liberty. [ 42 ] There is a good policy reason for this.

As Chief Justice Fraser explained in Armaly v Canada , 2001 ABCA 280 at para 2 , 299 AR 188, leave to the Supreme Court of Canada refused 29130 (15 August 2002), habeas corpus is “... an extraordinary and discretionary remedy and should not be granted where adequate alternative remedies are available ...”.

If the Court cannot order freedom, it has no business invoking habeas corpus at all. [ 43 ] The Supreme Court of Canada has directed that in conducting both civil and criminal litigation, Canadian Courts must engage in a “culture shift” that recognizes the modern realities of litigation ( Hryniak v Mauldin , 2014 SCC 7 at para 2 , [2014] 1 SCR 87) and to develop and deploy efficient and timely processes that change the historic “culture of delay” ( R v Jordan , 2016 SCC 27 at paras 29 , 40, 45, [2016] 1 SCR 631, reaffirmed R v Cody at paras 35-37 ).

In R v Cody at paras 38-39 the Supreme Court stressed this is a critical role for trial court judges, and “[t]rial judges should also be active in suggesting ways to improve efficiency in the conduct of legitimate applications and motions ...”. [ 44 ] Justice Thomas explained in Ewanchuk v Canada (Attorney General) at paras 176-183 that the increasingly common baseless habeas corpus application do not “come for free”, but instead will have deleterious downstream effects on all persons who attempt to use the Alberta Court of Queen’s Bench.

Habeas corpus applications take priority, because of their function and purpose. This means, among other things, that persons who face criminal charges have their trials delayed by these wasteful, purposeless proceedings. The Supreme Court of Canada in R v Cody has placed an institutional obligation on trial courts and judges to fight the “culture of complacency”. [ 45 ] An unusual feature of habeas corpus is that this process reverses the usual onus of proof. For Charter rights other than

Charter, s 10(

c) the person who claims a breach of their Charter rights must establish that on a balance of probabilities: R v Collins, (SCC), [1987] 1 SCR 265 at para 21, 38 DLR (4th) 508; R v Luong, 2000 ABCA 301 at para 12, 271 AR 368.However, a government actor whose activities are challenged by an application for habeas corpus must establish on a balance ofprobabilities that a detention or loss of liberty is lawful. Otherwise, the detainee must be released: Mission Institution v Khela at paras27-30. [46] I stress, release.

Not a declaration, or a finding of law or fact, or damages. [47] An interested party may sue in Canadian courts to challenge the illegality of a government action or inaction, or the validity oflegislation, including on the basis of an alleged breach of Charter rights. That option is open to Mr. McCargar, if he wishes to challengethe circumstances of his current detention, and he may seek a declaration on that basis.

He may file grievances and appeals per theCorrections and Conditional Release Act, SC 1992, c 20, and seek judicial review of any such decision at the Federal Court of Canada.However, he has no basis to invoke habeas corpus and reverse the onus of proof in relation to an alleged breach of his Charter rights,except where that breach relates specifically to the reason that he was detained, or experienced a loss of his residual liberty. [48] I therefore conclude that, in compliance with the direction in R v Cody, that as an opportunity for improved court efficiency ahabeas corpus application that only seeks a declaration or other remedies that do not potentially implicate a person’s liberty should beeither not accepted by the Court or struck without further consideration.

Similarly, any attempt to seek a declaration or other remedywhich does not affect the liberty of a habeas corpus applicant should be struck and not considered by the Court. [49] Mr. McCargar also seeks that this Court “restore our liberty”. That is a potentially valid remedy that might be obtained viahabeas corpus. However, his attacks on “unlawful restrictions and deprivations of our rights ... and freedoms” are not a part of habeascorpus. I will turn to that next. 2. Complaints about the Conditions of Institutional Segregation [50] The overwhelming majority of Mr.

McCargar’s complaints concerning “restrictions”, and “deprivations of ... rights ... andfreedoms” have nothing to do with liberty.

These are instead complaints concerning what he alleges are the conditions he hasexperienced while in administrative segregation in the Edmonton Institution. [51] There is no question that when an offender is moved from the general population of a prison or remand centre and into anenhanced detention facility, such as administrative segregation, then that is a deprivation of residual liberty: Cardinal v Director of KentInstitution, (SCC), [1985] 2 SCR 643, 24 DLR (4th) 44; Mission Institution v Khela, at para 34. [52] Justice Veit in Hamm v Attorney General of Canada (Edmonton Institution) ordered the return of a number of EdmontonInstitution inmates who were in administrative segregation back into the facility’s general population.

What distinguishes Mr.McCargar’s application from the scenario in Hamm v Attorney General of Canada (Edmonton Institution) is that Justice Veitconcluded that the Attorney Geenral had not on a balance of probabilities proven that the decision to place the inmates in administrativedetention was lawful. [53] Mr. McCargar does not identify an allegedly defective decision which led to him being placed in administrative detention.Instead, he generally complains about the conditions of administrative detention. In this sense Mr.

McCargar’s application has broadparallels to the habeas corpus application in Ewanchuk v Canada (Attorney General) where this Court refused to take jurisdictionsimply because there is no habeas corpus remedy for these complaints. [54] Many complaints simply do not fall into the habeas corpus remedy because they are not a deprivation of liberty, including: 1. a loss of privileges: R v Miller at para 35; Ewanchuk v Canada (Attorney General) at para 25; 2. an insignificant or trivial limitation on rights: Cunningham v Canada, (SCC), [1993] 2 SCR 143, 80 CR (4th)57; see also Canada (Attorney General) v Whaling, 2014 SCC 20 at para 57, [2014] 1 SCR 392; Lord v Coulter, 2007 BCSC 1758 atpara 60, 72 Admin LR (4th) 264, affirmed 2009 BCCA 62 at para 5, 266 BCAC 122; Ewanchuk v Canada (Attorney General) at para26; 3. denial of or inability to access rehabilitation programming: Mapara v Ferndale Institution, 2012 BCCA 127 at paras 12-15, 318BCAC 139, leave to the Supreme Court of Canada refused 34818 (27 September 2012); Lord v Coulter, 2007 BCSC 1758 at paras 60-63, 72 Admin LR (4th) 264, affirmed 2009 BCCA 62 at para 5, 266 BCAC 122; Urbano v Bowden Institution, 2015 ABQB 279 at para59, 121 WCB (2d) 45; Rain v Canada (Parole Board), 2015 ABQB 639 at para 15; Ewanchuk v Canada (Attorney General) at para 28; 4. lock downs and other intermittent forms of detention: Ewanchuk v Canada (Attorney General) at para 28; 5. rude, abusive, or inattentive staff: Ewanchuk v Canada (Attorney General) at paras 43, 45; 6. exposure to dangerous inmates: Ewanchuk v Canada (Attorney General) at paras 44-45; 7. complaints about food, medical services, and hygiene: Ewanchuk v Canada (Attorney General) at paras 46-51, 54; 8. complaints that the inmate grievance procedures are ineffective: Ewanchuk v Canada (Attorney General) at para 52; 9. inadequate mail services and searches of mail: Ewanchuk v Canada (Attorney General) at paras 53, 56; 10 inadequate access or excessively expensive telephone communications: Ewanchuk v Canada (Attorney General) at paras 55;and

11. restrictions that impede legal research, document preparation, and litigation: Ewanchuk v Canada (Attorney General) at paras 60-65 . Many of Mr. McCargar’s alleged bases for habeas corpus fall exactly into these categories. [ 55 ] I will not respond to all of Mr. McCargar’s specific complaints. The items that follow are a representative sample to illustrate the alleged unlawful defects and misconduct. a. Personal Dignity [ 56 ] At para 4 Mr.

McCargar complains: The respondents have failed or refused to take all reasonable steps to ensure ... the living conditions of the applicants ... are safe, healthful and free of practices that undermine the applicants ... sense of personal dignity. ... [ 57 ] A loss of personal dignity is not a loss of freedom. No habeas corpus remedy may result from this alleged unlawful circumstance. b. Breach of Personal or Professional Obligations [ 58 ] Mr. McCargar directs many complaints at Respondent Chris Saint. For example, at paras 7-8 Mr.

McCargar writes: The deficient, depraved, despotic, cruel and unusual conditions of confinement in [Edmonton Institution] administrative segregation ... is due to Saint’s abuse of discretion in bad faith, for improper purpose, or with irrelevant considerations, exercised in place of mandatory policy and law, as well as Saint misconstruing facts, relying on falsified information, fabricating evidence, relying on false pretences or other unethical, unlawful, capricious or illegal measures to mislead the [Edmonton Institution] Warden(

s) to exercise that Warden(

s) discretion with improper intent ... Saints oppressive operation of seg in connection with the duties of his office constitutes breaches of trust by Saint as a public official. [ 59 ] Mr. McCargar also complains that Mr. Saint’s activities are a breach of Mr. McCargar’s Charter , s 15 rights, because of “Saints political or social prejudice” which “constitutes discriminatory retaliation”: para 69. [ 60 ] Mr. Saint may have engaged in misconduct, but that is irrelevant to Mr. McCargar’s habeas corpus application because there is no claim here that Mr.

McCargar has experienced a loss of residual liberty on the basis of these allegations. Instead, the complaint is “breaches of trust”. That is not to say Mr. McCargar could not sue Mr. Saint (personally) and Correctional Services Canada (vicariously as Mr. Saint’s employer) on that basis, but he has no remedy via habeas corpus . c. Lockdowns [ 61 ] The habeas corpus application also complains about repeated and persistent “lockdowns” and “modified routines”, which “restrict access to showers, telephones, and visits”: para 9. Mr. McCargar claims these steps are conducted because Mr.

Saint uses them as “punishment in disguise”; these steps are unnecessary. These events cause “... hardships, adverse effects, cause tension and violence among inmates, cause stress, emotional problems, negative mental and physical effects, anxiety, depression, aggression, and acting out ...”. The lockdowns are imposed “without institutional justification”, in breach of Mr. McCargar’s Charter , s 9 rights: para 65. [ 62 ] While Mr.

McCargar says there is no excuse for these events, these temporary and transient losses of liberty are not a basis for a habeas corpus remedy: Ewanchuk v Canada (Attorney General) at para 28 . As Justice Thomas explained in Ewanchuk v Canada (Attorney General) at para 23 , “ Habeas corpus is only a remedy for the here and now.” [italics in original]. d. Programs and Facility Access [ 63 ] Mr.

McCargar complains that as an inmate in administrative segregation he is unable to access various programs and facilities, including: 1. education or school (para 10); 2. libraries and librarians (para 11); 3. “programs to address the needs of seg inmates and aboriginal seg inmates” (para 19); 4. nurses arriving to administer medication at inconvenient times (para 20); 5. support and services by a “Range Representative” (paras 31-32, 42); 6. providing inmates a role as consultants in decision-making (paras 30); 7. inadequate opportunities to exercise (para 39); and 8. failure “... to provide seg inmates with incentives or support to encourage them to make progress towards meeting the objectives of their Correction Plans ...” (para 40). [ 64 ] Restrictions on access to programming and privileges are not a basis for a habeas corpus order for release: Mapara v

Ferndale Institution, at paras 12-15; R v Miller at para 35. e. Inmate Property [65] Another category of complaint is that Mr. McCargar demands habeas corpus as a remedy to return property to inmates (paras12-13, 15): The respondents unlawfully seize items, including personal property, from seg inmates, that the respondents do not have the power orlawful authority to seize, including items and personal property that is not contraband or evidence relating to a disciplinary or criminaloffence, and does meet the definition of contraband ...

The respondents usually refuse to issue a receipt to the person from whom the itemis seized. ... The Respondents refuse to provide access to any post search report ... and the respondents refuse to return seized items andproperty to the owner(s) ... The respondents have repeatedly, arbitrarily, unlawfully, illegally and criminally seized, refused to return or deliver despite begindemanded and stolen seg inmate(

s) personal property ... The respondents have failed and refused to take all reasonable steps to ensure seg inmates personal property in the penitentiary areprotected from loss and damage ... [66] Once more this alleged basis for habeas corpus does not involve a loss of liberty. I also note it would be extraordinary ifhabeas corpus somehow applied to property when the Supreme Court of Canada has categorically excluded property from the rightsprotected by the Charter: Irwin Toy Ltd. v Quebec (Attorney General), (SCC), [1989] 1 SCR 927, 58 DLR (4th) 577. f.

Cell Conditions [67] Another repeating category of alleged unlawful activity relates to cells. Mr. McCargar claims a habeas corpus remedy on thebasis of: 1. barren cells (para 14); 2. being placed in “observation/strip/suicide cells” (para 16); and 3. inadequate cell cleaning (para 37). [68] These are obviously conditions of detention, rather than a loss of liberty, and therefore not a basis for a habeas corpusremedy. g. Religious Activities and Support [69] Mr.

McCargar also indicates at paras 18-19 his Charter rights have been breached because: The respondents unlawfully refused ... to allow seg inmates to have their prayer bundle in their cell, which is a violation of inmates rightto freedom of religion and infringement of

section 2(

a) of the Charter. Seg inmates are also deprived of access to sweats, sweetgrass,smudge (on the needed basis for religious practice) and other cultural and spiritual necessities ... The respondents unlawfully refuse to provide seg inmates with access to facilities for the expression of the inmates religion or spirituality... [70] Once more this alleged unlawful activity does not relate to detention or a deprivation of liberty. It is therefore not a basis forhabeas corpus. If, in fact, Mr. McCargar’s Charter, s 2(

a) right to “freedom of conscience and religion” has been breached then that ispotentially a basis for an administrative procedure, or a lawsuit. However, this is not a basis for the Court to order release. h. Access to Legal Counsel, Administrative and Legal Resources, and Litigation [71] Mr.

McCargar advances a collection of complaints that relate to access to lawyers and legal resources: 1. “... the respondents failed and refuse to provide seg inmates reasonable access to legal counsel ...” (para 23); 2. “The respondents fail and refuse to provide seg inmates reasonable access to legal, non-legal reading materials, Commissioner’sDirectives, regional instructions, institutional standing orders and other required legal reading materials ...” (para 24); and 3. “The respondents have repeatedly and persistently retaliated against seg inmates access to litigation, attempts at litigation andaccessing the Courts and other legal organizations, by restricting seg inmates access to litigation, the Courts, necessary requiredphotocopying and faxing services, and access to Commissioner for Oaths ...” (para 27). [72] In Ewanchuk v Canada (Attorney General) at paras 60-65 Thomas J rejected that an alleged deficiency in provision of legaland research resources is a basis for a habeas corpus.

I agree. i. Internal and External Communications [73] Another category of alleged unlawful conduct relates to communications between Mr. McCargar and others:

1. “The respondents open, seize, intercept, refused to forward and return to sender seg inmates personal and confidential mail ...” (para 25); 2. “The respondents refuse to add telephone numbers to seg inmates phone P.I.N. cards usually, and at best unduly delays any telephone number from being added for up to months, which unlawfully restricts seg inmates access to the community ...” (para 26); 3. “The respondents unlawfully deprive seg inmates of access to the Media and Press ... in attempt to censor inmates from getting the word out, expressing themselves and showing society what atrocities really occurred behind these corrupt poisoned penitentiary walls, in the lawless state called the C.S.C.

This is a serious violation of seg inmates freedom of expression and conscience, freedom of the press, and constitutionalism and the Rule-of-Law” (para 28); 4. “The Respondents have failed and refuse to promote relationships between seg inmates and the community, and instead deprive seg inmates of reasonable contact, including visits and correspondence, with family, friends and other persons from outside the penitentiary ...” (para 46); and 5. Mr. McCargar indicates he was unlawfully separated from other members of the administrative segregation unit when he was relocated to a cell distant from Mr.

Cardinal’s and Mr. Joseph’s cells (para 50). [ 74 ] Once more the alleged wrongdoing is not a deprivation of liberty: Ewanchuk v Canada (Attorney General) at paras 53, 55- 56 . j. Food and Clothing [ 75 ] Like Mr. Ewanchuk ( Ewanchuk v Canada (Attorney General) , at paras 46-51 ), Mr. McCargar criticizes prison food and food service (para 33): The respondents refuse to adequately feed seg inmates, by serving their meals cold, sometimes uncooked, and at other times with portions/servings of food missing. [ 76 ] This too is not a deprivation of liberty protected by habeas corpus . Mr.

McCargar makes parallel complaints relating to clothing and bedding (paras 34-36). This too is not a deprivation of residual liberty. k. Ineffective Grievance Processes [ 77 ] Another alleged basis for habeas corpus that appeared and was rejected in Ewanchuk v Canada (Attorney General) at para 52 are allegations that internal inmate grievance and complaint procedures are inadequate or ineffective. Mr. McCargar makes the same and related complaints at paras 43-45.

Once more, while these deficiencies may be a basis for a step under the Corrections and Conditional Release Act and a subsequent judicial review in the Federal Courts, this complaint does not relate to detention or a loss of liberty, and cannot be a basis for a court order via habeas corpus . [ 78 ] However, to be explicit, I am not concluding that this Court should refuse jurisdiction where a decision by Correctional Services Canada and its staff results in an inmate experiencing a substantial loss of residual liberty: Ewanchuk v Canada (Attorney General) at para 26 .

That is clearly a potential basis for habeas corpus . However, allegations that the grievance and complaint apparatus as a whole is in some way ineffective or unfair is not a basis for a Charter , s 10(

b) remedy. l. Conclusion [ 79 ] All of these categories of alleged deprivations of liberty, or deprivations of residual liberty are not a basis for a habeas corpus remedy. As the Attorney General has indicated, these are complaints concerning the character of Mr. McCargar’s detention, not the basis on which that detention was ordered. Mr. McCargar has not challenged a change in his detention, but instead the character of the detention itself. These complaints about the conditions in administrative segregation make up the overwhelming bulk of Mr. McCargar’s habeas corpus application and his arguments.

There are, however, two additional issues that warrant separate review and analysis. 3. Population Profiles [ 80 ] At the June 22, 2017 hearing I asked if Mr. McCargar could focus his argument on a particular example of a decision that had resulted in a loss of his residual liberty that could be the basis for a habeas corpus application. Mr. McCargar then identified an issue found in his application: “Population Profiles”. He alleged that the information in Population Profiles was inaccurate, and that the process that resulted in the Population Profiles was unlawful or unreasonable.

This complaint is found in the Amended Amended Application at paras 52-54, which also claims Mr. McCargar was defamed by this process. and the Respondents were “... obtuse, malicious, or lax in their Duty of Care, Duty of Act Fairly, and Duty to Assist ...”. [ 81 ] In his oral argument Mr. McCargar explained further what his issue is with Population Profiles. He indicated that Population Profiles are a tool used by Correctional Services Canada to identify compatible and incompatible groups of inmates, so that inmate populations may be housed safely. Mr.

McCargar said that in the Edmonton Institution there are nine Population Profiles. [ 82 ] Mr. McCargar was originally in the Edmonton Institution in administrative segregation, but then was transferred from the Stony Mountain Institution in Manitoba on March 2, 2017. He was in administrative segregation in the Stony Mountain Institution. On March 23, 2017 Mr. McCargar was transferred back to the Edmonton Institution and returned into the Edmonton Institution administrative segregation. The Stony Mountain to Edmonton transfer was so that Mr.

McCargar could personally appear in the Alberta Provincial Court to defend himself as a self-represented litigant in relation to several criminal charges.

[83] Mr. McCargar alleged the Edmonton Institution, and in particular Mr. Saint, have structured the Population Profiles in amanner which means Mr. McCargar cannot be housed with any of the nine groups, and he therefore is in segregation. [84] Mr. McCargar argues that is unfair and unreasonable. He should be permitted information about Population Profiles, and hasa right to complain on how they are structured. In his opinion, Edmonton Institution has ample resources and opportunities to restructurethe Population Profiles so that he is released into the general population.

He says this is the critical basis for his habeas corpusapplication. [85] This Population Profile question is also not one that is a basis for a habeas corpus remedy. First, Mr. McCargar is ultimatelyat the Edmonton Institution because he wants to conduct his own criminal defence litigation, and he wants to do that in person ratherthan appear by video teleconference. In effect, he has chosen to be in Edmonton, and given his status as a maximum security inmate(which he did not challenge), he chose this result.

A voluntary detention or form of detention is not a basis for habeas corpus becausethat detention is not imposed by government actors: Ewanchuk v Canada (Attorney General), at para 24; Biever v Alberta (Director ofEdmonton Remand Centre), at paras 33-35, R v Blanchard, at para 13. [86] Second, habeas corpus is not a basis to challenge a decision that denies a person release from detention, or which denies adecision that would result in an increase in residual liberty: Mapara v Ferndale Institution, at paras 15-17; LVR v Mountain Institution,2016 BCCA 467 at paras 25-35, 346 CCC (3d) 254; Biever v Alberta (Director of Edmonton Remand Centre), at paras 33-35.

Mr.McCargar was specific on this point. His complaint was that the Edmonton Institution had not followed the Correctional ServicesCanada policy of releasing inmates from segregation as soon as possible. He blamed that failure to release him on Mr. Saint’s malevolentinfluence and the defective and/or unfair Population Profiles. He argued he was being unlawfully kept in administrative segregation. [87] That is a challenge to a decision by a government actor to continue detention, and therefore deny release. Habeas corpus hasno application in this scenario.

Its function is to provide a mechanism for the Superior Courts in Canada to scrutinize how decision-makers take away personal liberty. This is not to say that Mr. McCargar is wrong about the operation of Population Profiles, or Mr.Saint. He can use internal Corrections and Conditional Release Act procedures, judicial review in the Federal Courts, he can file anaction alleging a Charter breach in an Alberta court. All that said, he simply has no right to challenge the alleged wrongdoing by habeascorpus, and thereby reverse the onus of proof. 4.

Unlawful Ongoing Detention [88] There is one narrow exception to the preceding conclusion, and that is indicated in R v Gamble, (SCC),[1988] 2 SCR 595, 45 CCC (3d). At para 69 Wilson J states that “a continuation of the deprivation of liberty that has become unlawful”[emphasis added] is a basis to invoke habeas corpus. She stresses at paras 66-68 that habeas corpus is a flexible and adaptive remedy.Mr. McCargar cited R v Gamble for this point. Mr. McCargar also claims to be the victim of cruel and unusual punishment that healleges breaches his Charter rights.

But is this a basis to conclude his detention has become unlawful in a manner that warrantsapplication of habeas corpus? [89] The facts of R v Gamble are very unusual. Ms. Gamble was convicted of murder, but then was sentenced under the wrongCriminal Code provisions. Her appeals were exhausted. In 1988 she made a habeas corpus application on the basis her continuingdetention was unlawful. Normally, a person who is illegally sentenced would simply appeal that error, but here the result had‘crystalized’ and was res judiciata.

Habeas corpus cannot be used to circumvent ordinary appeal procedures: R v Gamble at para 56.The solution adopted by Justice Wilson was to apply habeas corpus as a means to give Ms. Gamble a remedy to an admitted unlawfuldetention scenario. There was no other solution provided in Canadian law. [90] An analogous situation occurred in Steele v Mountain Institution, (SCC), [1990] 2 SCR 1385, 121 NR 198.In this case Justice Cory considered the circumstances of an inmate who had received an indeterminate sentence and now had beenincarcerated for 37 years.

Steele argued that continuing detention had become illegal, it was a cruel and unusual punishment. Decisionsof the Parole Board had led to a situation where Steele could not expect release. He was in a “Catch-22” situation, and “[t]he inordinatelength of his incarceration has long since become grossly disproportionate to the circumstances of this case.” Further, Steele’s conditionwas deteriorating: at para 70.

This breached Steele’s Charter, s 12 right to be free of cruel and unusual punishment. [91] Justice Cory reaffirmed that the correct approach to challenge a decision of the National Parole Board is judicial review, nothabeas corpus: para 83. However, in “these highly unusual circumstances” Steele instead was released.

The keystone May v FerndaleInstitution Supreme Court of Canada decision at para 42 emphasizes the exceptional nature of the Steele v Mountain Institutionoutcome, it “... was the product of a convergent set of unusual facts and should be understood in that light.” [92] In my view the situations in R v Gamble and Steele v Mountain Institution are anomalies where a Canadian court was facedwith an unusual situation where an ongoing and continuing detention was the result of an error of law (R v Gamble) or a breach of aCharter right (Steele v Mountain Institution), and the only meaningful remedy was to apply habeas corpus outside its usual context,which is to challenge a decision that had led to an unlawful detention or loss of residual liberty. [93] Further, the threshold required to obtain a Charter, s 12 remedy is very high, “whether the punishment prescribed is soexcessive as to outrage standards of decency”: R v Latimer, 2001 SCC 1 at paras 73-79, [2001] 1 SCR 3; R v Smith, (SCC), [1987] 1 SCR 1045 at 1072, 40 DLR (4th) 435.

As Justice Cory indicated in Steele v Mountain Institution, this remedy shouldonly be invoked in “rare and unique occasions” when testing detentions made under a lawful authority. [94] Justice Clackson recently in R v Adams, 2016 ABQB 648, 45 Alta LR (6th) 171 reviewed a Charter application of a personwho alleged cruel and unusual punishment had occurred in the Edmonton Remand Centre. Many of the complaints of bad conditionsparallel those made by Mr. McCargar. Justice Clackson observed at para 74 that public standards do not apply in a prison context, as“jails and remand centres are rough places”: ...

They are full of people who have or have had problems. They are full of men who are full of testosterone. The likelihood of conflict is

huge. In that environment control is maintained by guards and institutional rules. Control is not easily maintained. Therefore violenceerupts, events occur which cause safety concerns and life for both guard and inmate can be difficult and is stressful. Like police, guardshave a very difficult job. Both see us at our worse. Both get little respect from the people they arrest or guard. Both have exceedinglystressful and difficult jobs. In those circumstances, we must accept the occasional imperfect behaviour.

We cannot expect sainthood frompolice or guards any more than we can reasonably expect it from ourselves. ... [95] He concluded at para 68 that only allegations specific to a detainee and his or her experiences are relevant, since JusticeClackson accepted that the general practices of the Remand Centre were Charter-complaint, and “... an inquiry into the appropriatenessof any of the Centre’s general practices as, frankly, too remote”: para 68.

See also R v Blanchard, 2017 ABQB 271 at paras 15-25;Trang v Alberta (Edmonton Remand Centre), 2007 ABCA 263 at paras 24-25, 412 AR 215, leave to the Supreme Court of Canadarefused 32310 (21 February 2008). [96] I have the same concern, and think it is necessary that any evaluation of prison conditions in a facility such as the EdmontonInstitution involves evidence and countervailing policy considerations that are beyond this Court’s capacity to review in the presentcontext.

While it may be unfair to say a maximum security institution holds “the worst of the worst”, there is no question that its inmateswill be people with unusual and complicated needs, and whose misconduct and behaviours has warranted special state intervention andprecautions. [97] In addition, I am subject to binding appellate authority that habeas corpus is not an absolute right. Instead, in Armaly vCanada, at para 2, Chief Justice Fraser for a unanimous court indicated: ...

Habeas corpus is an extraordinary and discretionary remedy and should not be granted where adequate alternative remedies areavailable ... [Italics in original, underlining for emphasis.] [98] Armaly v Canada remains good law in Alberta, as was indicated in DG v Bowden Institution, 2016 ABCA 52, 612 AR 231,where neither of the concurring majority judgments overruled Armaly v Canada. See also R v Marshall, 2002 ABCA 185, 54 WCB (2d)570. [99] As I have previously indicated there are other ways for Mr.

McCargar to challenge the conditions of his detention, if heindeed believes those amount to cruel and unusual punishment. He is not like the prisoners in R v Gamble and Steele v MountainInstitution who had no other alternatives and faced exceptional and unique circumstances. Instead, the situation here is closer to PS vOntario, 2014 ONCA 900, 379 DLR (4th) 191 where what was initially styled as a habeas corpus application was, in substance, anallegation that conditions of a continuing detention breached Charter rights, and should be addressed in that context.

Similarly, in R vPearson, (SCC), [1992] 3 SCR 665, 144 NR 243, Lamer CJC rejected general application of habeas corpus as amechanism to review denying of bail. There the underlying substantial issue was the constitutionality of a specific Criminal Codeprovision, and so the Supreme Court proceeded to evaluate that issue. [100] In his Amended Amended Application Mr. McCargar often identified specific provisions of the Corrections and ConditionalRelease Act which he says were breached. He can grieve, sue, or seek judicial review on that basis.

He has ways other than habeascorpus to challenge what he says are cruel and unusual conditions. I therefore conclude the Court should not take jurisdiction in relationto his complaint that his detention conditions are unlawful. VI.

Costs [101] This Court’s authority to award costs against an inmate who makes an unsuccessful habeas corpus application 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; Ewanchuk v Canada (Attorney General) atpara 72. [102] The Attorney General seeks $500.00 cost awards from Mr. Cardinal and $1,000.00 from Mr. McCargar.

Counsel for theAttorney General explained that in addition to its own litigation costs, Correctional Services Canada assistance in preparation of Mr.McCargar’s application resulted in thousands of pages of photocopying and faxing. The Respondents do not seek disbursements, butmerely introduced those facts to illustrate the consequences of this litigation. [103] Since I have dismissed Mr. McCargar’s habeas corpus application I order Mr. McCargar pay the Respondents $1,000.00 incosts. Those costs are payable in full, immediately. In light of Mr.

McCargar’s conduct during this habeas corpus application proceedingI would have granted elevated and/or punitive costs against Mr. McCargar if those had been sought. VII. Mr. McCargar is in Contempt of Court [104] On June 15, 2017 the Court received several documents which were submitted by Mr. McCargar, and that are described in PartII, above.

The “Interlocutory Request for Case Management” and “Interlocutory Application To Cure Rule Contravention and Non-Compliance With Procedural Requirement” specifically name not only Brook McCargar but also Jeffrey Hernandez Cansanay, CodyAllen Joseph, and Murray Cardinal. [105] Associate Chief Justice Rooke restricted the operation of these documents to Mr. McCargar, ordering that the attempts toinvolve the other applications were “a nullity, nunc pro tunc” [italics in original]. He did so on the basis of my order on June 9, 2017 thatMr.

McCargar is prohibited from filing material or making arguments on behalf of anyone but himself. [106] I note this is not simply a question of a defect with the style of cause. In the “Interlocutory Request for Case management” Mr.McCargar invokes the Applicants as a whole.

[ 107 ] Similarly, the June 19, 2017 document which was submitted by Mr. McCargar indicates it is the “Written Representations of the Applicants ...” (emphasis added). This item clearly related to more than just Mr. McCargar’s applications. For example, at para 22 Mr. McCargar writes: Applicant Murray Cardinal case, although moot, should still be adjudicated upon, especially given the questionable conduct and ex parte dealings of the RESPONDENTS; [ 108 ] At the June 22, 2017 hearing Mr.

McCargar said he apologized for these activities, and that he was unaware that he was prohibited from acting on behalf of the other Applicants. He had not seen a written order to that effect. [ 109 ] I find Mr. McCargar in prima facie civil contempt of court. This is a situation where Mr. McCargar cannot cure his contempt since that misconduct has already crystalized. I will receive submissions from Mr. McCargar and the Attorney General of Canada as to what sanction, if any, should result from Mr. McCargar’s June 15, 2017 filings. Arguments are scheduled to be heard on August 28, 2017. VIII. Mr.

McCargar is a Candidate Vexatious Litigant [ 110 ] After I granted the Attorney General’s application in relation to Mr. McCargar and struck out his habeas corpus application, I indicated that the Court would on its own motion investigate whether Mr.

McCargar’s access to this Court and other Alberta courts should be restricted, per the Court’s inherent jurisdiction to control litigation abuse: Hok v Alberta , 2016 ABQB 651 at paras 14-25 , leave denied 2017 ABCA 63 [“ Hok #2 ”]; Thompson v International Union of Operating Engineers Local No. 955 , 2017 ABQB 210 at para 56 , affirmed 2017 ABCA 193 ; Ewanchuk v Canada (Attorney General) at paras 92-96 . [ 111 ] Chutskoff v Bonora , 2014 ABQB 389 , 590 AR 288, affirmed 2014 ABCA 444 is the leading Alberta authority for the types of litigation activity and other misconduct that are a potential basis to restrict a person’s access to Alberta courts by what is commonly called a vexatious litigant order.

These “established stereotypic features of vexatious litigation” are itemized at para 92. “ Any of these indicia are a basis to classify a legal action as vexatious.” [emphasis in original]. [ 112 ] By the June 22, 2017 hearing a number of these indicia had emerged: 1. Mr. McCargar’s June 15, 2017 “Interlocutory Application to Cure Rule Contravention and Non-Compliance With Procedural Requirement” is a collateral attack on my June 9, 2017 decision concerning Mr. Cansanay’s discontinuance notice. 2. Mr. McCargar’s June 15, 2017 application for a case management justice was an attempt as ‘judge shopping’.

He was seeking to displace me from my role as the justice hearing this habeas corpus proceeding. I note this might arguably be a novel indicium of vexatious litigation that is not found in Chutskoff v Bonora , but in a sense is simply a special variation on a collateral attack where the abusive litigant does not merely attempt to subvert the operation of a court decision but, here, the authority and jurisdiction of the court justice himself. 3. Mr. McCargar has disobeyed my order that he is prohibited from file materials and/or advancing arguments in relation to the other Applicants or Mr. Quewezance. 4 Mr.

McCargar was engaged in “busybody” litigation by attempting to act on behalf of other litigants, and to introduce a third party into the existing habeas corpus proceeding. 5. Mr. McCargar made scandalous and conspiratorial allegations in relation to Correctional Services Canada and Mr. Cansanay. Mr. Cansanay purportedly had been bribed to withdraw his habeas corpus application. 6. While Rooke ACJ identified Mr.

McCargar’s June 15, 2017 applications as frivolous, vexatious, and an abuse of process, I also note these applications demanded an unreasonable time line for their hearing which I conclude was intended to pre-empt the scheduled June 22, 2017 hearing. 7. Mr. McCargar’s habeas corpus application was a futile and hopeless proceeding; it had no possibility of success. Mr.

McCargar nevertheless chose to persist, despite his having prior (unsuccessful) exposure to the habeas corpus process and the legal principles that govern this procedure. [ 113 ] Lymer v Jonsson , 2016 ABCA 32 , 612 AR 122, indicates procedural justice requires that a person against whom 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. In the alternative, a court may proceed directly if the abusive litigant is not “surprised”.

That said, the manner in which the Alberta Court of Appeal has applied this test is difficult to reconcile ( Hok #2 at paras 12-13 ; Ewanchuk v Canada (Attorney General) at para 98 ), and in response the Alberta Court of Queen’s Bench has adopted a two-step process where the Court identifies litigant misconduct, then offers the putative abusive litigant an opportunity to make submissions on possible court access restrictions: Hok #2 , at paras 10-11 ; Gauthier v Starr , 2016 ABQB 213 at para 50 , 86 CPC (7th) 348; Kavanagh v Kavanagh , 2016 ABQB 107 at para 162 ; Ewanchuk v Canada (Attorney General) at para 97 . [ 114 ] I therefore order that Mr.

McCargar is to appear on August 28, 2017 to make submissions, if he chooses to do so, on whether: 1. his access to Alberta courts should be restricted, and 2. if so, what the scope of that restriction should be. [ 115 ] The Attorney General may, if it chooses to do so, make submissions on Mr. McCargar’s potential vexatious litigant status, and introduce additional evidence that is relevant to this question, see Chutskoff v Bonora at paras 87-90 and Ewanchuk v Canada

(Attorney General) at paras 100-102 . [ 116 ] At the end of the June 22, 2017 hearing I ordered that Mr. McCargar’s Alberta court filing activities would be restricted on an interim basis until the August 28, 2017 hearing. I subsequently investigated Mr. McCargar’s criminal litigation activities, and as a consequence make a modified direction that, in parallel with Hok v Alberta , 2016 ABQB 335 at para 105 , I order that Mr.

McCargar is prohibited from filing any material on any Alberta court file, or to institute or further any court proceedings, without the permission of the Chief Justice, Associate Chief Justice, or Chief Judge of the court in which the proceeding is conducted, or his or her designate. [ 117 ] This order does not apply to: 1. Provincial Court of Alberta actions R v McCargar , Docket 170049365P1, R v McCargar , Docket 170186589P1, and R v McCargar , Docket 131226995P1; 2. written submissions or affidavit evidence in relation to the scheduled August 28, 2017 hearing to consider Mr.

McCargar’s potential contempt of court and vexatious litigant status; and 3. any appeal from this decision. To be explicit, any attempt by Mr. McCargar to file any documents that are not written submissions or affidavit evidence in relation to the August 28, 2017 hearing shall be rejected by the Court Clerks. Heard on the 22 nd day of June, 2017. Dated at the City of Edmonton, Alberta this 30 th day of June, 2017. John T. Henderson J.C.Q.B.A. Appearances: Brook McCargar for himself Murray Cardinal For himself Jordan Keenan Quewezance (third party) For himself Cameron G.

Regehr for the Respondents _______________________________________________________ Corrigendum of the Memorandum of Decision

of The Honourable Mr. Justice John T. Henderson _______________________________________________________ A typographic correction was made in paragraph 45.