Chung v Alberta (Attorney General), 2017 ABQB 456

Court of Queen’s Bench of Alberta Citation: Chung v Alberta (Attorney General), 2017 ABQB 456 Date: 20170721 Docket: 1703 09870 Registry: Edmonton Between: Christopher Paul Chung Applicant - and - Alberta Justice and Attorney General Respondent _______________________________________________________ Memorandum of Decision of the Honourable Mr. Justice Don J. Manderscheid _______________________________________________________ I. Introduction [ 1 ] Christopher Paul Chung [“Mr. Chung” or the “Applicant”] is a detainee in the Edmonton Remand Centre. On May 24, 2017, Mr. Chung filed an originating notice claiming his Canadian Charter of Rights and Freedoms ,

Part 1, Constitution Act, 1982 , being

Schedule B to the Canada Act 1982 (UK), 1982, c 11 [the “ Charter ”] ss 7 and 9 rights had been breached and requesting: - A writ of habeas corpus with certiorari in aid. - A declaratory judgement or order from this court that the drycell decision made by Edmonton Remand Centre staff violated the Charter and is null and void due to lack of jurisdiction.

- Such further and other relief as the Court may deem just and appropriate pursuant to s 24(1) of the Charter - Costs of this application. [2] On June 15, 2017, Mr. Chung filed two separate habeas corpus applications. The first [“June 15 #1”] again alleges breach ofMr.

Chung’s Charter, ss 7, 9 rights, and seeks: - A writ of habeas corpus with certiorari in aid. - A declaratory judgement or order from this court that the Administrative Segregation decision made by Edmonton RemandCentre staff violated the Charter and is null and void due to lack of jurisdiction. - A declaratory judgement or order from this court that the Administrative Segregation decision made by the Edmonton RemandCentre staff was arbitrary. - Such further and other relief as the Court may deem just and appropriate pursuant to s 24(1) of the Charter. - Costs of this application. [3] The second June 15, 2017 application [“June 15 #2”] is more detailed and alleges a range of misconduct by EdmontonRemand Centre personnel, including that Mr.

Chung was placed in Administrative Segregation. This time the remedies sought are: 5. A writ of habeas corpus with certiorari in aid. 6. A declaration of judgement or order from this court that the [Edmonton Remand Centre] violated my Charter rights with thedecision to Administratively Segregate me and exercise me in full restraints. 7. A declaration of judgement or order from this court to have the [Edmonton Remand Centre] release me back into the generalpopulation. 8.

A declaration of judgement or order from this court to have the [Edmonton Remand Centre] administer a more humane,objective, and consistent policy with regards to High Profile inmate’s treatment and a shorter more even-handed, appropriate reviewperiod. 9. Such further and other reliefs as this court may deem just and appropriate pursuant to section 24(1) of the Charter. 10.

Costs of the application and a copy of the camera information. [4] The Attorney General of Alberta argues these habeas corpus applications should be denied. [5] An oral hearing of these habeas corpus applications was conducted on July 17, 2017. At that hearing Mr. Chung indicatedhe had abandoned the May 24, 2017 “dry cell” habeas corpus application. I reserved my decision on the June 15, 2017 applications, withreasons to follow. These are those reasons. II.

Habeas Corpus [6] The “great writ” of habeas corpus is a common law remedy that has been codified 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. [7] Habeas corpus serves as a mechanism to challenge state-ordered detention.

The procedure for a court to consider a habeascorpus application is clearly established, and was most recently reviewed by the Supreme Court of Canada in Mission Institution vKhela, 2014 SCC 24, [2014] 1 SCR 502. [8] A habeas corpus analysis involves a shifting onus.

An applicant who seeks to invoke habeas corpus must: 1. establish the person is detained by a state actor, and 2. advance a basis to argue that the decision or process of that state actor that led to the detention is illegal. [9] Once those two criteria are met the Crown is required to prove on a balance of probabilities that the detention was legal:Mission Institution v Khela at para 30. If the Crown fails to meet its onus, or the applicant enters additional rebuttal evidence thatestablishes the detention was illegal, then the detainee must be released.

Habeas corpus is therefore a highly specialized but powerfultool to shield individuals from unauthorized state action. [10] Persons who are incarcerated or detained may use habeas corpus as a method to challenge a further loss of their “residualliberty”: Mission Institution v Khela; R v Miller, (SCC), [1985] 2 SCR 613, 24 DLR (4th). Examples of residual lossesof liberty include transfer to a different institution with a higher security clearance, or being placed in administrative segregation, or aspecial handling unit.

A loss of residual liberty involves a different physical environment that offers less freedom (R v Miller at para 35): ... 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 certain

privileges, is more restrictive or severe than the normal one in an institution. [Emphasis added.] [11] Habeas corpus has no application outside this restricted context. It is not a form of appeal, or a basis for a damages claim, or amethod to challenge denial of release, or to complain about the conditions of detention: see Ewanchuk v Canada (Attorney General),2017 ABQB 237 at paras 22-31; McCargar v Canada, 2017 ABQB 416 at paras 40-87. Unfortunately, habeas corpus is increasinglyabused by meritless applications made by incarcerated and detained persons.

Thomas J in Ewanchuk v Canada (Attorney General) atparas 170-187 explains why these meritless applications have a disproportionate effect on the operation of the Alberta Court of Queen’sBench. Habeas corpus applications takes priority over other Court activities and proceedings, which displaces resources and causeslitigation delay. I note habeas corpus also imposes an unusual requirement on the state actor challenged by the “reverse onus” thatresults from the habeas corpus process itself. III. The “Dry Cell” Application [12] Though Mr.

Chung abandoned the May 24, 2017 “dry cell” habeas corpus application I will briefly comment on theapplication. Mr. Chung deposed that between March 2-4, 2017 he was placed in a restricted condition “dry cell” as part of a drugcontraband search. He sought a declaration that this step was unlawful. After receipt of the Attorney General’s arguments Mr. Chung concluded that this application had no prospect for success. As he indicted at the July 17, 2017 hearing, that application was “moot”. [13] Mr. Chung is correct.

Habeas corpus is only available to challenge current and ongoing detentions of losses of residualliberty: Dumas v Leclerc Institute, (SCC), [1986] 2 SCR 459 at paras 12-14, 34 DLR (4th) 427; Cundell v BowdenInstitution, 2016 ABQB 348 at para 37. As Thomas J observed in Ewanchuk v Canada (Attorney General) at para 23: “Habeas corpusis only a remedy for the here and now.” The only remedy that may be obtained via habeas corpus is release to the pre-detentioncondition, which had already occurred. Mr.

Chung’s application for Charter, s 24(1) relief is therefore futile. [14] In addition, Henderson J has recently in McCargar v Canada at paras 40-48 reviewed and rejected habeas corpus where theonly remedy sought is declaratory relief, and concluded that: ... a habeas corpus application that only seeks a declaration or other remedies that do not potentially implicate a person’s liberty shouldbe either 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. [15] I agree with Henderson J, and also note that the remedy possible for habeas corpus is, in fact, indicated in Charter, s 10(c)itself: “...to be released if the detention is not lawful.” This language is a clear and explicit indication of the limited and specific scope ofthis constitutional right. [16] These are bases on which I would have struck out Mr. Chung’s May 24, 2017 “dry cell” application, if he had pursued it.

As Ihave indicated above, Mr. Chung was correct to discontinue that application, and as a consequence avoided an unfavourable court costorder and potentially other court-ordered steps. IV. The Administrative Segregation Application [17] I will consider Mr. Chung’s two habeas corpus applications dated June 15, 2017 as a single application since both relate to thesame general subject, that Mr. Chung is currently in Administrative Segregation in the Edmonton Remand Centre. A.

Futile Elements of the June 15 Applications [18] Aspects of the Administrative Segregation applications are outside the scope of habeas corpus. Both June 15 applications seekdeclaratory relief and a Charter, s 24(1) remedy. I have previously indicated why neither is available. Mr. Chung also makes a numberof complaints that are outside the scope of habeas corpus. [19] The June 15 #2 application at para 1 complains that the restrictions on Mr. Chung means he cannot “file a statement of claimor press criminal charges against the [Edmonton Remand Centre] staff involved”.

Habeas corpus does not guarantee or protect a right tolitigate, consult with legal counsel, or access legal services and information: Ewanchuk v Canada (Attorney General) at paras 60-65;McCargar v Canada at paras 71-72. [20] The June 15 #2 application at paras 3-4 also complains that Mr. Chung was the target of unnecessary force and then did notreceive adequate medical attention. At para 4, Mr. Chung complains about the conditions of his detention after this incident, as that nighthe was left to sleep “on a cold plastic mattress”. Mr.

Chung says the conduct of Edmonton Remand Centre staff was unlawful: ... as their actions did not encourage the self respect of inmates, and aimed to torment or harass by being purposely unpleasant. Theiractions were cruel in nature and in aim and was an unusual punishment. Presumably this is the basis for the claim for declaratory relief that the Edmonton Remand Centre “... administer a more humane,objective, and consistent policy with regards to High Profile inmate’s treatment ...”. [21] The alleged assault is not a form of detention, and therefore not a basis for a habeas corpus application. Mr.

Chung may havea basis to advance a civil claim against the guards involved, and/or the Edmonton Remand Centre, but he has no right in the context of ahabeas corpus proceeding to seek remedies that belong in a civil action or Charter application. Medical care and services (Ewanchuk vCanada (Attorney General) at para 54; McCargar v Canada at para 54) and cell conditions (McCargar v Canada at paras 67-68) are

conditions of detention and not a loss of liberty. I have previously explained why the Court will not make declarations in response to a habeas corpus application. [ 22 ] However, the June 15 #2 application does explicitly request that the Court order Mr. Chung to be removed from Administrative Segregation and returned to the general population. This is a valid basis for a habeas corpus application, since this may relate to a deprivation of residual prisoner liberty. Mr.

Chung identifies specific defects in that process, he alleges the decision to place him in Administrative Segregation was: 1. arbitrary (June 15 #1 at para 2); 2. made without jurisdiction (June 15 #1 at para 2); 3. made without camera records (June 15 #2 at para 1); 4. made “in the absence of reliable evidence” (June 15 #2 at para 2); and 5. made “with a goal of achieving an extraneous subjective purpose”. [ 23 ] The June 15 applications are supported by two affidavits sworn by Mr. Chung. An affidavit dated April 5, 2017 indicates Mr.

Chung was arrested and transported to the Edmonton Remand Centre on April 8, 2016 and that Mr. Chung was placed in segregation (paras 2-3). Mr. Chung says he received no explanation for being placed in Administrative Segregation. Paragraphs 5-8 of the affidavit are struck out as being opinion and legal argument, and therefore not appropriate content for an affidavit. [ 24 ] The second Chung affidavit dated May 29, 2017 describes an incident on May 14, 2017 between Mr. Chung and a number of Edmonton Remand Centre guards. Mr.

Chung says this incident left him injured, and he was placed in a cell with a plastic mattress. Mr. Chung says this incident was the reason he was given a High Profile inmate designation and is now housed and exercised alone. Mr. Chung says he “... was not provided with the rationale for the designation, nor was I informed of my ability to consult with counsel.” (para 5). However, this statement is then apparently contradicted at para 8 where Mr. Chung indicates he on May 18 received “an official notice for my Administrative Segregation”.

I admit the May 29, 2017 affidavit since it swears to specific facts and events. [ 25 ] This does leave a potentially valid habeas corpus challenge to Mr. Chung’s current conditions in the Edmonton Remand Centre. Mr. Chung does not challenge his being in the Edmonton Remand Centre. He instead argues that the decision to place him Administrative Segregation is defective.

Assuming that Administrative Segregation status in the Edmonton Remand Centre does amount to a substantial loss of residual liberty, on the basis of Mission Institution v Khela ; R v Miller , the onus shifts to Edmonton Remand Centre to establish the decision that led to this loss of residual liberty is justified. B. Alberta’s Response [ 26 ] Counsel for the Attorney General of Alberta made representations on behalf of the Edmonton Remand Centre.

It noted that the Director of the Edmonton Remand Centre is broadly authorized by Corrections Act , RSA 2000, c C-29, s 7 to operate, manage, and administer the Edmonton Remand Centre, “... including matters of security, inmate control, staff discipline and the care, custody, treatment and training of inmates.” Placement of a detainee in Administrative Segregation or designating an inmate as “High Profile” is governed by policies developed by the Solicitor General. Placing a detainee in Administrative Segregation is not punitive and does not affect privileges such as access to telephones and canteens.

The Attorney General stresses that Administrative Segregation in that sense is distinct from disciplinary segregation. Persons are put in Administrative Segregation to protect the safety of detainees or Edmonton Remand Centre staff. [ 27 ] A “High Profile” designation is a security procedure in response to detainees who have committed assaults or pose a threat to staff and detainees. The Attorney General confirms that Mr. Chung is subject to special steps: • he is housed and exercised alone; • he exercises in full restraints except when showering; • staff interact with Mr.

Chung in groups of two or more, and carry pepper spray; and • Mr. Chung is escorted in handcuffs and leg irons. [ 28 ] The Attorney General confirms that Mr. Chung was given a High Profile designation after the incident that occurred on May 14, 2017. Mr. Chung was given notice he was placed on Administrative Segregation the same day. He was found guilty of assaulting a staff member, and unsuccessfully appealed that decision. Mr. Chung’s status is reviewed every 90 days. The Attorney General provided records indicating that in addition to the May 14, 2017 incident Mr.

Chung was belligerent, had assaulted other inmates on several occasions, inflicting facial bone damage injuries that required hospitalization, and had been found in a cell that contained contraband. [ 29 ] The Respondent’s brief identifies a number of bases for why habeas corpus should be denied. First, the Attorney General argues that Mr. Chung’s designation as a High Profile detainee and his placement in Administrative Segregation is justified by his record and what occurred on May 14, 2017.

Broad discretion is due to the Director in controlling detainees: Biever v Edmonton Remand Centre , 2015 ABQB 609 at para 45 . [ 30 ] Counsel for the Attorney General cautions that Mr. Chung’s commentary concerning the disciplinary review and appeal that followed from the May 14, 2017 incident is in many ways irrelevant, since that proceeding is separate and in a sense parallel to the

safety-related decision to place Mr. Chung in Administrative Segregation. Mr. Chung received reasons for those decisions, and can challenge the result under Corrections Act , s 15.3. [ 31 ] Mr. Chung’s status is warranted on a safety basis, and the record clearly substantiates that. While separate, the results of the disciplinary process hearing and appeal confirm Mr. Chung was not an innocent actor on May 14, 2017, but instead broke institution rules. C. Chung’s Argument [ 32 ] At the July 17, 2017 hearing, Mr.

Chung expanded on his written submissions and provided much more detail on the May 14, 2017 incident, and generally on his experiences at the Edmonton Remand Centre. It became very apparent that this is Mr. Chung’s chief concern. He believes his detention conditions since the May 14, 2017 incident are not justified by what occurred on that date. [ 33 ] Mr. Chung indicated his is well known by the Edmonton Remand Centre personnel and administration.

He explained that he has a reputation at that institution for being a detainee who does not cause problems, and in fact has historically been given the privileged and trusted “cleaner” role, which he explained involves a combination of housekeeping tasks and operating as a kind of ‘go between’ and facilitator for interactions between detainees and Centre staff. [ 34 ] Mr. Chung described the May 14, 2017 incident where he ended up in a conflict with a Remand Centre guard, and Mr. Chung says that guard then tried to punch him in Mr. Chung’s room. Mr.

Chung says he is an experienced professional boxer, and easily evaded that. He could have harmed the guard, if he chose to do so. Mr. Chung left his room and entered into a hallway. The confrontation continued, and ultimately escalated to a point where Mr. Chung was involved with several guards. Mr. Chung says he did not attack the guards, and instead it was him who was injured with blows to the face and arm. He says that video recordings of the incident support his narrative. [ 35 ] Mr. Chung was frank and acknowledged that he was in part at fault for what had happened.

He admitted his verbal exchanges with the first guard had in part provoked what occurred. He argued, however, that this confrontation was in some senses planned by the guards involved, and now the Edmonton Remand Centre is covering up who is at fault for the May 14, 2017 incident. He stressed that the first guard who tried to punch him never produced a written statement about what happened. [ 36 ] Mr. Chung took exception to the manner in which his institutional history was described by the Attorney General, and explained the various incidents identified.

He minimized his fault, but did not deny those events occurred. [ 37 ] As for the decision to place Mr. Chung in Administrative Segregation and give him High Profile detainee status, Mr. Chung criticizes the initial explanation he was given for those decisions to restrict his residual liberty. While Mr. Chung acknowledged there are periodic reviews of his status, Mr. Chung claimed these were essentially formalities. He knew that from sources within the institution; anyone who is in a fight with a guard always gets 90 days Administrative Segregation. Mr.

Chung questions whether he would ever be released from Administrative Segregation under the current Remand Centre administration. [ 38 ] He criticizes the process because it appears arbitrary to him. He does not receive insight into why his detention has been continued, at least outside the 90 day formal review. Mr. Chung says he has not received an explanation for why he has had his residual liberty restricted. That decision was arbitrary, irrational, and procedurally unfair. He complains about inadequate disclosure. Mr.

Chung says it is a matter of law that he receive the minimum restrictions possible, but provides no authority for that. He complains that the 90 day review period is excessive when it comes to continuing Administrative Segregation and High Profile designations. D. Analysis 1. The Standard of Review [ 39 ] In responding to Mr. Chung I must first stress the function of this Court when conducting a habeas corpus proceeding. While the Attorney General has the obligation to prove Mr. Chung’s ongoing detention is lawful, that proof is conducted in a manner analogous to a judicial review.

That means that I do not have the authority to substitute my own conclusion for what might be right or wrong in a given circumstance. Instead, the decisions made by authorities in relation to inmates and detainees is due deference by a reviewing court: Mission Institution v Khela at paras 65, 74-75 . This was a point stressed in Mission Institution v Khela , where at para 75 Lebel J explained that the reviewing court asks whether a decision is “reasonable, and therefore lawful”.

Any deeper intrusion would lead to “micromanagement of prisons by the courts”, which is not the Court’s function. [ 40 ] As Germain J observed in Biever v Alberta (Director of Edmonton Remand Centre) at para 41, this is discretion is exercised in a multifactorial manner, and balances many interests, practical restrictions, safety concerns, and logistical necessities: The Director, by statute, is entitled to place inmates as he sees fit, provided he does so reasonably. This is a multifaceted mandate.

The Director must protect the inmates, the physical plant of the institution, and the many people who are employed there. That is a difficult balancing task. It requires sensitivity, integrity, and ingenuity. The Court should be reluctant to micromanage through the prerogative writ of habeas corpus, or judicial declaration, the day-to-day workings of the ERC. [ 41 ] What is a reasonable decision?

A reasonable decision one that falls within the “range of possible, acceptable outcomes which are defensible in respect of the facts and law”: Mission Institution v Khela , at para 73 ; Dunsmuir v New Brunswick , 2008 SCC 9 at para 47 , [2008] 1 SCR 190. The decision’s reasoning must be transparent, justified, and intelligible, and logically connected to the result: Mission Institution v Khela , at para 73 ; Newfoundland and Labrador Nurses’ Union v Newfoundland and Labrador (Treasury Board), 2011 SCC 62 at para 12 , [2011] 3 SCR 708.

[42] A decision must also be correct in law, which has two parts in the present context. First, the decision must be one that isauthorized by the relevant legislation, here the Corrections Act, and which provides adequate procedural fairness. As counsel for theAttorney General observed, Baker v Canada (Minister of Citizenship and Immigration), (SCC), [1999] 2 SCR 817discusses how the later element is evaluated. 2. Jurisdiction [43] First, there is no question that Corrections Act, s 7 authorizes the Director of the Edmonton Remand Centre to take steps torestrict Mr.

Chung’s liberty in that institution within the legislation and policies that guide that process. Mr. Chung noted that federalprisons follow a quite different regime when it comes to reviews and documentation required when an inmate is placed in segregation.However, as Mr. Chung himself observed, these are different schemes for management of detainees in different institutions. [44] What matters here is that the Edmonton Remand Centre operated inside the guidelines set for it by the Alberta Legislature,and I have not identified any breaches of those requirements.

As the Attorney General noted, the Director has ‘carte blanche’ to makedecisions that are rationally connected to safety and security concerns. 3. Habeas Corpus does not Apply to Decisions that Refused Release [45] Second, Mr. Chung cannot use habeas corpus to challenge any decision other than the decision that led him to initially bedetained.

Habeas corpus is not a basis to challenge a decision that denies a person release from detention, or which denies a step thatwould result in an increase in residual liberty: Mapara v Ferndale Institution, at paras 15-17; LVR v Mountain Institution, 2016 BCCA467 at paras 25-35, 346 CCC (3d) 254; Biever v Alberta (Director of Edmonton Remand Centre), at paras 33-35; McCargar v Canada,at paras 86-87. [46] Mr. Chung expressed his belief that the processes that have reviewed his ongoing Administrative Segregation and HighProfile status are arbitrary, and conducted in bad faith.

That may be so, and perhaps the federal approach to how detention reviews areconducted and documented is superior or even required by the principles of procedural fairness, but habeas corpus is not a remedy for acomplaint of that kind. Mr. Chung could perhaps make a claim that his Charter right have been breached, or file a judicial review of thisdecision-making process and its results, but his concerns in relation to this subject are not ones that can be addressed via the habeascorpus remedy. 4. Cruel and Unusual Punishment [47] As for the degree to which Mr.

Chung styles his circumstances as “cruel and unusual”, these do not reach near the thresholdrequired to obtain a Charter, s 12 remedy, where “the punishment prescribed is so excessive as to outrage standards of decency”: R vLatimer, 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. Cory J in Steele v Mountain Institution indicates cruel and unusual punishment should only be invoked in “rare and uniqueoccasions” when testing detentions made under a lawful authority. I adopt the analysis of Henderson J in McCargar v Canada, at para88-100 on this issue. 5.

Disputed Facts [48] What remains are questions where the Director’s decision involves facts. This Court has a very limited capacity to review agovernment actor who has delegated authority and then on the basis of facts exercises that authority, and reaches a conclusion. Putanother way, a court reviewing a decision maker such as the Director cannot interfere with the Director where the Director’s decision is apossibly outcome. The Court cannot substitute its own conclusion for those circumstances, or

interpretation of or inferences made fromfacts or evidence. [49] Two of Mr. Chung’s other complaints can be grouped together under this subject. He alleges his is detained “with a goal ofachieving an extraneous subjective purpose”, and “in the absence of reliable evidence”. The problem is, there was evidence that Mr.Chung had been involved in incidents, conflicts, and violence during his period in the Edmonton Remand Centre in 2016-2017. Theseare documented in the record. Mr. Chung puts his own

interpretation on those events, but he nevertheless acknowledges that the May 14,2017 incident was in part his fault. This is a possible basis for a decision-maker such as the Director to take steps that affect Mr. Chung.The Edmonton Remand Centre Director responded to that evidence by taking steps to manage that risk: putting Mr. Chung inAdministrative Detention and designating Mr. Chung a High Profile detainee. There is no need to trace through cause and effect becausethat is self-evident.

Confrontational and violent conduct directed to other detainees and staff is a logical basis for the Edmonton RemandCentre to take steps to secure persons in that institution from a potential future threat by Mr. Chung. [50] Mr. Chung sees things differently, and thinks a different outcome would instead have been the correct choice. But it is not upto me to determine whether the Director was correct or incorrect, but rather that his conclusion was a logical and rational potentialresponse to the facts as they were understood by the Director - or in other words, reasonable.

That is the limit of what a reviewing Courtcan do. I conclude that the decisions to place Mr. Chung in Administrative Detention and to classify him as a High Profile individualwere in that sense reasonable. [51] Another point Mr. Chung stressed was that in his view the effects of his detention were disproportionate to their cause. I wasnot directed to any legislation or policy that required proportionality, or to a provision analogous to Criminal Code, RSC 1985, c C-46, s718.2(d-

e) that requires sentencing courts attempt to minimize incarceration and sanctions for criminal misconduct. [52] One could argue that any government organ that takes away an individual’s liberty is obliged to take the minimum possiblesteps, but that simply fails to recognize that government actors must engage in real-time decision-making where public and privateinterests, and security, health, and safety concerns compete. That is why legislation and policies are developed as mandatory guidelinesor ‘best practices’ for how restraints on freedom should occur. Mr. Chung has not identified any breach of that kind of rule. It is not for

the Courts to second-guess detention ordered within those guidelines. As Germain J observed in Biever v Alberta (Director of Edmonton Remand Centre) , this is a difficult balancing act. [ 53 ] I therefore reject Mr. Chung’s proposition that the decision to place him in Administrative Segregation and designate him a High Profile detainee is arbitrary, not based on relevant evidence, or disproportionate, and therefore unlawful. 6. Camera Evidence [ 54 ] Mr.

Chung’s last complaint, and the one which he developed in more detail, is that his loss of residual liberty is improper because that decision was made without consideration of camera evidence. As previously indicated, the May 14, 2017 incident was partially recorded, and the Court received that video evidence. [ 55 ] There are several issues with this argument. First, I personally reviewed the video record and observed Mr. Chung exiting his cell with his arms up in a submissive stance. He was then confronted by a member of the security staff who had followed Mr. Chung from his detention cell.

What happens next is that Mr. Chung uses evasive maneuvers to disengage himself from the security staff and on two occasions is seen pushing the security staff away from him. At no time did I view from the video record actions whereby Mr. Chung was seen striking the security staff. That is consistent with Mr. Chung’s narrative. [ 56 ] Mr. Chung says the video record means he should not have been reclassified and detained. However, it shows Mr. Chung did exert force again Edmonton Remand Centre personnel. That is relevant evidence and favours the Director’s decision to restrict Mr.

Chung and designate him a High Profile detainee. Mr. Chung may disagree with the specific result of the May 14, 2017 incident, but the video record confirms the May 14, 2017 incident is a potential basis Mr. Chung’s loss of residual liberty when combined with his other institutional history. [ 57 ] As I have previously explained, it is not up to me to choose a correct downstream consequence, but only weigh whether or not the Director’s choice was logical and rationally related to what happened on May 14, 2017.

I conclude it is. [ 58 ] Second, the results of the disciplinary hearing and appeal indicate that use of camera evidence would have not changed the result. The June 7, 2017 Disciplinary Hearing Report and June 16, 2017 written decision of K.L. Hurlburt Q.C. explicitly make reference to video recordings of the May 14, 2017 incident, and conclude that evidence does not completely exonerate Mr. Chung. Mr. Chung did not elect to challenge that result by judicial review per Corrections Act , s 15.3.

He instead at the July 17, 2017 hearing indicated I can rely on the disciplinary hearing proceedings as providing a fair result. [ 59 ] I have no jurisdiction to review a “crystallized” decision of another validly enacted tribunal which concluded the video recording evidence leads to the opposite conclusion than what Mr. Chung proposes. In making this observation I agree with the Attorney General’s caution that the safety-related and disciplinary processes at the Edmonton Remand Centre are two separate and distinct apparatuses. This is instead a question of issue estoppel and collateral attack. 7.

Conclusion [ 60 ] I therefore conclude that this Court should dismiss Mr. Chung’s habeas corpus application. Mr. Chung’s institutional record establishes a pattern of problematic conduct. The decisions taken by the Director are reasonable as in that they are a “possible, acceptable outcome”. [ 61 ] It seems to me that Mr. Chung’s chief concern at present is that his Administrative Detention and High Profile status will continue, indefinitely. As I have explained, habeas corpus is not a mechanism to challenge allegedly unfair decisions to deny him release, or unacceptable conditions.

He may use internal institutional procedures, or apply to this Court for Charter relief, or to review the Director’s decisions by judicial review. A critical difference, if Mr.

Chung chooses to follow those options, is that the onus will be on him to prove his constitutionally protected rights have been breached, or that the Court should review a decision of the Director. [ 62 ] Last, I note that in Paxton v Calgary Remand Centre , 2014 ABQB 438 at paras 59-71 , 590 AR 335 Tilleman J of this Court concluded that the Corrections Act is a complete, comprehensive, and expert process for the review of losses of residual liberty by persons detained in Alberta provincial institutions.

If correct, then this Court’s habeas corpus jurisdiction would be displaced, analogous to the scenarios discussed in Mission Institution v Khela at para 42 and Armaly v Canada (Parole Service) , 2001 ABCA 280 , 299 AR 188, leave denied [2002] SCCA No 134. The Paxton v Calgary Remand Centre case was not cited to me and I make no comment on whether its conclusion is or is not correct. I mention Paxton v Calgary Remand Centre to better survey Alberta jurisprudence on habeas corpus review of persons detained or incarcerated in Alberta institutions. V. Conclusion [ 63 ] Mr.

Chung’s habeas corpus applications are dismissed. Each party will bear their own costs. . Heard on the 17 th day of July, 2017. Dated at the City of Edmonton, Alberta thi s 21 st day of July, 2017.

Don J. Manderscheid J.C.Q.B.A. Appearances: Christopher Paul Chung for himself Ben Flanagan Alberta Justice and Solicitor General Legal Services, Civil Law Branch for the Respondent