Chan v Her Majesty the Queen, 2017 ABQB 480

Court of Queen’s Bench of Alberta Citation: Chan v Her Majesty the Queen, 2017 ABQB 480 Date: 20170801 Docket: 1701 07909 Registry: Calgary Between: Nicholas Cypui Chan Applicant - and - Her Majesty the Queen Respondent _______________________________________________________ Reasons for Decision of the Honourable Mr. Justice P.R. Jeffrey _______________________________________________________ [ 1 ] The applicant Nicholas Cypui Chan remains in custody at the Calgary Remand Centre (the “ CRC ”) awaiting his trial on criminal charges. He seeks a range of relief by writ of habeas corpus ; that application is pending.

In the interim, Mr. Chan also applies for more immediate partial relief, by way of an interlocutory injunction. That is the subject matter of this decision. [ 2 ] Mr. Chan asks the Court to order the Province to supply him with certain health products to address his medical condition while he continues in custody at the CRC. He received them under a prescription when initially in custody at the Edmonton Remand Centre (“ ERC ”), before his transfer to the CRC, but has been denied them at the CRC. [ 3 ] Mr. Chan suffers from a form of thalassemia.

Thalassemia affects hemoglobin in red blood cells, resulting in fatigue, among other things. Medical staff at the ERC prescribed for Mr. Chan Boost (a meal replacement drink), vitamin D, calcium and multi-vitamins (the “ Items ”). At the ERC, because they were prescribed, Mr. Chan received the Items free of charge.

[4] Mr. Chan transferred from the ERC to the CRC on January 8, 2016. Upon his arrival at the CRC, its medical staff againassessed Mr. Chan. This time the Items were not prescribed. According to Ms. Murray, the Items were discontinued because they are notprescription medications, they can easily be purchased over the counter, they are not typically part of the Alberta Health Services’“formulary”, and they are available for purchase in the “canteen” at the CRC. Ms. Murray explained that the formulary is a list ofmedication and implements that are approved for a corrections institution such as the CRC. [5] Ms.

Murray’s evidence is that the Items are not medically necessary to treat Mr. Chan’s thalassemia. Additionally, thecanteen at the CRC has similar supplement drinks and multivitamins available for purchase, if Mr. Chan wishes to purchase themhimself. [6] Mr. Chan attempted relentlessly to persuade authorities at the CRC to change their mind via the CRC’s internal process,without success. He now seeks the assistance of the Court to order the supply of the Items by the CRC. Preliminary Issue [7] The prime respondent, Alberta Health Services (“AHS”), says that I should not even consider this application.

It says, first,this application is an attempt to gain procedural advantage by resort to the test for an interim injunction, instead of addressing the test forhabeas corpus in the main application. Second, AHS says that because both applications are proceeding virtually concurrently and all theevidence is in on the main habeas corpus application, the matter should just be addressed once in the context of the original request. [8] I disagree. First, given Mr. Chan’s ongoing habeas corpus application, and its forecast duration, it is open to Mr. Chan as amatter of law to request this interlocutory injunction.

Part of Mr. Chan’s rationale for bringing forward this subset of his larger habeascorpus application, for more immediate attention of the Court, is that he says the effect of deprivation of the Items on his health cannotawait the outcome of the habeas corpus application. His position and arguments are entitled to audience. [9] Second, in the habeas corpus proceeding, the possibility of additional evidence remains, for example as rebuttal orsupplementary evidence. Mr. Chan represents himself in both applications and is in custody with the associated restrictions on his accessto legal and other resources.

It is conceivable that in light of such restrictions, or for other reasons, he may persuade the Court to allowadditional evidence. Law [10] The Supreme Court of Canada adopted a three part test for injunctive relief, in RJR MacDonald Inc v Canada (AG), (SCC), [1994] 1 SCR 311 at 334; see also Manitoba (AG) v Metropolitan Stores Ltd, (SCC), [1987] 1 SCR110 at 127-129. [11] First, the court must determine whether there is a serious issue to be tried.

Typically the first part of the test has a “relativelylow threshold” and “should be determined by a motions judge on the basis of common sense and an extremely limited review of the caseon the merits:” RJR MacDonald at 342 and 348.

In the typical case, the court need only be satisfied that “the claim is not frivolous orvexatious; in other words, that there is a serious question to be tried”: RJR MacDonald at 335. [12] When an applicant seeks a mandatory interlocutory injunction, however, the threshold on this first branch of the test is higher.There the first branch of the test requires a “strong prima facie” case: Medical Laboratory Consultants Inc v Calgary Health Region,2005 ABCA 97 at para 4. Mr. Chan seeks a mandatory interlocutory injunction; the order he seeks would require the CRC to carry out apositive act. The threshold for Mr.

Chan to satisfy is therefore not low on the first branch of the test. [13] In Modry v Alberta Health Services, 2015 ABCA 26, at para 37, the Alberta Court of Appeal explained: For a definition of “strong prima facie case”, see IBM Canada Ltd v Almond, 2015 ABQB 336 at para 29 (a strong prima facie case isone that will “probably prevail at trial” or is “likely to succeed at trial”), citing with approval BrettYoung Seeds Limited Partnership vDyck, 2013 ABQB 319 at para 13; see also B-Filer Inc. v TD Canada Trust, 2008 ABQB 749 at para 17. [14] The second part of the test is a determination of irreparable harm; it “consists in deciding whether the litigant who seeks theinterlocutory injunction would, unless the injunction is granted, suffer irreparable harm”: Metropolitan Stores at 128. “Irreparable harm”is defined as “harm which either cannot be quantified in monetary terms or which cannot be cured, usually because one party cannotcollect damages from the other”: RJR MacDonald at 341.

In cases where a Charter breach is alleged, “it is appropriate to assume that thefinancial damage which will be suffered by an applicant following a refusal of relief, even though capable of quantification, constitutesirreparable harm”: RJR MacDonald at 342. [15] The third part of the test, referred to as the balance of convenience, requires a determination of “which of the two parties willsuffer the greater harm from the granting or refusal of an interlocutory injunction, pending a decision on the merits”: Metropolitan Storesat 129.

The factors considered in making this determination will vary in each individual case: RJR MacDonald at 342. [16] When applying the tripartite test the court adopts a flexible and discretionary approach: British Columbia (AG) v Wale, (BC CA), [1987] 2 WWR 331, 9 BCLR (2d) 333 (BCCA), aff’d (SCC), [1991] 1 SCR 62. [17] An interlocutory injunction is ancillary and incidental to a pre-existing cause of action. Therefore, in respect of the firstbranch of the three-part test here, the strong prima facie case that Mr Chan must show is on his habeas corpus application (to which theinterlocutory injunction is ancillary).

Some comments on the law around habeas corpus applications are therefore also warranted. [18] Habeas corpus enables a challenge to the basis for one’s detention or a challenge to the loss of residual liberty while inprison. Justice Shelley recently summarized the law on habeas corpus in Badger v Canada, 2017 ABQB 457, at paras 6 to 8: [6] A habeas corpus application involves a shifting onus. An applicant who seeks to invoke habeas corpus must:

1. establish the person is detained by the state, and 2. advance a basis to argue that the detention is illegal. [7] If that threshold is met, the state actor involved must prove on a balance of probabilities that the decision or process that led tothat detention was legal: Mission Institution v Khela, [2014 SCC 24] at para 30. If the Crown fails to meet its onus, or the applicantenters additional rebuttal evidence that establishes the detention was illegal, then the detainee must be released. Habeas corpus istherefore a highly specialized but powerful tool to shield individuals from unauthorized state action.

It has no other application. [8] Losses of residual liberty for a detained person may include transfer to a different institution with a higher security clearance, orbeing placed in administrative segregation or a special handling unit: R v Miller, (SCC), [1985] 2 SCR 613, 24 DLR(4th): Mission Institution v Khela.

In R v Miller at para 35, Le Dain J stressed habeas corpus does not apply to “... any and all conditionsof confinement in a penitentiary or prison, including the loss of any privilege enjoyed by the general inmate population.” Instead, it isrestricted to: ... the validity of a distinct form of confinement or detention in which the actual physical constraint or deprivation of liberty ... is morerestrictive or severe than the normal one in an institution. [19] There is no deprivation of liberty when the form of detention is due to the inmate’s own volition: R v Blanchard, 2011 SKCA60 at para 13; Biever v Alberta (Director of Edmonton Remand Centre), 2015 ABQB 609 at para 32.

While Blanchard and Bieverconcerned a habeas corpus application with respect to voluntary segregation, the proposition still holds when it is the prisoner’s owndecisions that lead to her form of detention. In Biever this Court declined to hear the habeas corpus application on the basis that theapplicant caused his form of detention. [20] Habeas corpus does not apply to privileges or to many of the conditions and circumstances in prisons: Ewanchuk v Canada(AG), 2017 ABQB 237 at para 25.

In R v Miller, (SCC), [1985] 2 SCR 613 at para 35, the Supreme Court of Canadaheld that habeas corpus: ... should lie … to challenge the validity of a distinct form of confinement or detention in which the actual physical constraint ordeprivation of liberty, as distinct from the mere loss of certain privileges, is more restrictive or severe than the normal one in aninstitution. [21] The deprivation of liberty cannot be “insignificant or trivial”; it must be substantial: Ewanchuk at para 26; Cunningham vCanada, (SCC), [1993] 2 SCR 143 at 151; Canada (AG) v Whaling, 2014 SCC 20 at para 57. [22] In respect of the second and third branches of the three part test, as a consequence of the injunction application being ancillaryto the main habeas corpus application, the Court considers any irreparable harm and the balance of convenience for just the period oftime until that main habeas corpus application is likely to be determined.

Analysis 1. Strong Prima Facie Case [23] In Geary v Alberta (Edmonton Remand Centre), 2004 ABQB 19, a case relied upon heavily by Mr. Chan, this Court statedthat “[t]here is no doubt that the rights of detainees to medical treatment while incarcerated are serious issues to be tried”: Geary at para41. To succeed on this injunction application however, as explained above, Mr. Chan must demonstrate that his habeas corpusapplication constitutes a strong prima facie case, not just has a serious issue to be tried. I find that it is not a strong prima facie case. [24] Mr.

Chan does not have a strong prima facie case that his circumstances, in the evidence on this injunction record, aresufficiently substantial to warrant judicial intervention by writ of habeas corpus (see paragraphs 20 and 21 above). [25] Mr. Chan does not have a strong prima facie case that denial of the Items constitutes a “loss of residual liberty”. There is not astrong prima facie case that Mr. Chan’s issue is one of physical constraint or deprivation of liberty, since any residual loss of liberty isdue to his own volition (see paragraph 19 above). It remains within Mr.

Chan’s control to have access to products comparable to theItems and therefore it is unlikely that habeas corpus is available to Mr. Chan. AHS not supplying him the Items does not appear toprevent him from whatever benefit the Items might accord him. Products nutritionally comparable to the Items are available to Mr. Chanat the CRC canteen; he has the means to acquire them and that he did acquire some but cannot access them as readily as an ancillaryconsequence of his being in observational segregation. He is in observational segregation as a disciplinary measure.

It is within Mr.Chan’s ability to end its restrictions by changing his behaviour. Mr. Chan challenges this in his main habeas corpus application, but onthe record of this injunction application, a strong prima facie case of succeeding ultimately on that main application has not been madeout.

One of his concerns he raises in that broader main application, for example, appears to have been decided against him already in anearlier decision of this court: R v Chan, 2005 ABQB 615 at para 43. [26] Even if denial of the Items is found to constitute a loss of residual liberty and therefore the remedy of habeas corpus isavailable, Mr. Chan does not have a strong prima facie case of succeeding.

The Province has a very strong case that on a balance ofprobabilities the decision or process that led to that detention was legal. [27] The fact the Items were prescribed at the ERC does not bind the opinions of the medical professionals at the CRC to reach thesame conclusion. How things are done at one remand centre does not dictate how things are done at another: R v Chan, supra, at para 43.The fact that the ERC provided Mr. Chan with the items does not oblige the CRC to do likewise and override the medical opinions itreceives.

Upon arrival at the CRC, whether from off the street or from another institution, all inmates’ health condition and prescriptionsare assessed. Upon assessment in Mr. Chan’s case, which was at a later date than the ERC assessment, the AHS staff determined theItems would no longer be prescribed. There was no suggestion this conclusion was reached for improper reasons.

[28] I also do not consider Mr. Geary’s situation helpful to Mr. Chan. Mr. Geary suffered from burns he received in a workplaceexplosion. Prior to his detention, a family physician prescribed an opiate for him, which the ERC denied him during his detention. ThisCourt ordered the ERC to administer the medication on an interim basis, pending a consultation for Mr. Geary with a pain specialist. Mr.Geary also sought access to personal clothes, soap, cream and ointment as relief for his burns.

The Court did not grant this relief, even onan interim basis, because there was no evidence before the court demonstrating they were medically necessary. [29] Mr. Chan’s requested Items fall more into the category of the things Mr. Geary was denied, than the opiate he was grantedtemporarily. Here the medical information on Mr. Chan at the CRC indicates the Items are not medically necessary. [30] After concluding it unlikely that habeas corpus is available to Mr. Chan, since he does not have a strong prima facie case thathis situation constitutes a loss of residual liberty, and largely because Mr.

Chan is self-representing, I turned my mind to what theoutcome might have been on this injunction application if Mr. Chan had applied for a different remedy than habeas corpus originally,such as perhaps mandamus or judicial review of the decision denying him the Items. [31] A writ of mandamus compels a government actor to exercise a duty it has failed to exercise. It is more unusual, but stillavailable, for discretionary decisions.

See: Apotex Inc v Canada (Attorney General), (FCA), [1994] 1 FC 742 (CA),aff’d (SCC), [1994] 3 SCR 1100, summarized regarding discretionary decisions in Kainaiwa/Blood Tribe v Alberta(Energy), 2017 ABQB 107 at para 58. However, I concluded the record here also does not demonstrate a strong prima facie case formandamus. The record does not suggest that AHS (or the CRC) acted in a manner which can be characterized as “unfair”, “oppressive”or reflected “flagrant impropriety” or “bad faith”. The record suggests AHS acted on relevant considerations, in good faith.

The medicalopinion received by the decision maker was that the Items are not required to treat the symptoms of Mr. Chan’s thalassemia. [32] On an application for judicial review, the standard of review for AHS’ decision to discontinue Mr. Chan’s prescription wouldbe reasonableness, it not falling within the established categories for the more exacting correctness review. The AHS decision is withinthe range of possible, acceptable outcomes based on the record. Any judicial review of the merits of the decision denying him the Items,therefore, would most likely fail.

If the judicial review alleged instead a failure to accord Mr. Chan procedural fairness, it also wouldhave no hope. An extraordinary degree of paper exchanges and face to face meetings have repeatedly availed Mr. Chan opportunity to beheard, and reheard, and to respond to the views opposing his wishes. Therefore, even if Mr. Chan had applied for judicial review, hewould not have a strong prima facie case of succeeding. [33] The failure to demonstrate a strong prima facie case ends the application, since Mr. Chan must satisfy all three branches ofthe test.

Nevertheless some brief comments on the remaining two branches are warranted, given the arguments of the parties. 2. Irreparable Harm [34] Mr. Chan claims that the Items mitigate the symptoms of his thalassemia. Mr. Chan alleges that without these Items, hishealth suffers; he further claims that when he was provided the Items at the ERC, his health improved. He put on weight and had theenergy to exercise. These effects are not compensable monetarily – at least not satisfactorily compensable. [35] AHS submits that there is no irreparable harm here. Mr.

Chan has the funds to purchase similar items from the canteen if hewishes to do so. Therefore, it says, the issue is not one of Mr. Chan’s health but simply one of who will pay. In that sense, there is noirreparable harm. [36] I agree with the AHS. The record shows that Mr. Chan has available funds, which he is able to use to buy comparable items tothe ones he seeks at the canteen. Further, he has done so in the past. [37] The evidence on any possible benefit of the Items to Mr. Chan’s health is mixed. But the evidence of whether they arecurrently medically necessary is not mixed. Just because Mr.

Chan thinks the Items helpful does not mean they are medically necessaryor even medically advisable. In the opinions of the medical professionals who assessed Mr. Chan’s prescription upon his transfer to theCRC, the Items are not medically warranted for Mr. Chan’s condition. There is no medical evidence to the contrary. [38] Mr. Chan has not been able to demonstrate that the deprivation of the Items causes him irreparable harm. Any harm he sufferswithout the Items is monetary, since he can access comparable products by spending his own funds and by staying out of observationalsegregation. 3.

Balance of Convenience [39] The AHS has demonstrated, and without serious challenge from Mr. Chan, that it is charged with promoting and protecting anaspect of the public interest and has acted in accordance with it. In such cases the Court will be most wary to restrain that action: seeRJR-MacDonald Inc at para 76. [40] Mr. Chan is the source of his own inconvenience; the balance of convenience favours the Province. Mr. Chan will not sufferfrom the refusal of an interlocutory injunction. As previously stated, if this application is denied, Mr.

Chan has sufficient funds topurchase comparable products at the CRC canteen until determination of the habeas corpus application, if he wishes to do so. Whereas ifit is granted the Province will suffer from the restraint on its exclusive jurisdiction and discretion. [41] Therefore, the third part of the test is also not satisfied by Mr. Chan. Conclusion [42] For these reasons, the application is denied.

Dated at the City of Calgary, Alberta this 1 st day of August, 2017. P.R. Jeffrey J.C.Q.B.A. Appearances: Nicholas Chan, Applicant, Self Represented Lisa Friesenhan, for the Crown, Her Majesty the Queen Donald M. McLaughlin, for the Respondent, Alberta Health Services