Willis v Attorney General of Canada, 2017 ABQB 540

Court of Queen’s Bench of Alberta Citation: Willis v Attorney General of Canada, 2017 ABQB 540 Date: 20170907 Docket: 1703 11713 Registry: Edmonton Between: Michael Peter Willis Respondent / Applicant - and - Attorney General of Canada & Institutional Warden or Head of Bowden Institution Applicant / Respondents _______________________________________________________ Memorandum of Decision of the Honourable Mr. Justice Don J. Manderscheid _______________________________________________________ I.

Introduction [ 1 ] On June 20, 2017, Michael Peter Willis [“Willis”] filed an “Application for Habeas Corpus With Certiorari in Aid to Order the Release of the Applicant back onto Parole”, supported by an “Affidavit” dated May 17, 2017. At this time Willis was detained at the Bowden Institution, where he remains to the present. In

summary, the June 20, 2017 documents challenge the revocation of Willis’ day parole after he exhibited unusual behaviour and tested positive for cocaine. Willis’ parole conditions included a prohibition to not use drugs. [ 2 ] These documents are irregular in a number of senses. One, an “Affidavit”, identifies the Respondent as “Her Majesty the Queen”. The “Application”, however, names the “Attorney General of Canada Institutional Warden or Head of Bowden Institution”.

[ 3 ] The “Affidavit” states that Willis is currently in the Bowden Institution, that detention was ordered by his parole officer, and in this process Willis: ... was denied my right to council and was not given written reasons for my detainment and the right to contact my counsel immediately. [ 4 ] The “Affidavit” however attaches what are titled “Oral Submissions to the Court of Queen’s Bench Justice Hearing this Writ of Habeas Corpus”.

These state: • Willis was detained illegally and without procedural fairness; • his Charter , s 8 rights were violated by “an illegal urine sample order” obtained “under coercion or duress”, since “[t]he half-way house also coheres residents to consent to urinalysis tests under improper coercion and not proper unhindered consent.” • Willis is treated as a second or third class citizen whose rights “don’t count”, which is “prejudice at its highest level”; • he was not given his “Miranda rights”; • all his basic fundamental justice rights were totally ignored, which makes his detention arbitrary and illegal; and • that Canada “... is not a communist country and we need to protect these right before they slowly erode away because of improper respect of the charter and law”. [ 5 ] The “Application” document also incorporates much of what is better described as argument: • that the decision of Mission Institution v Khela , 2014 SCC 24 , [2014] 1 SCR 502 creates an absolute requirement that any habeas corpus application is heard in full, and that any pre-hearing steps that might end the habeas corpus application “is an abuse of process.” • that Willis was detained without reasons and adequate advice or “Miranda rights”, his Charter rights were breached; • there is no probable cause or informed consent for the order that Willis provide a urine sample, that breached his Charter , s 8 rights; • Willis has been subjected to duress, fatigue, and frustration as a consequence of his detention; • Willis has sought a review of his detention by the Parole Board, but he gave the Board a 30 day deadline, since “... that is approximately the time a habeas corpus could conclude before a Superior Court of Queen’s Bench Justice.”; any failure to meet that deadline would violate Willis’ Charter, s 10(

c) right to habeas corpus ; • that the DG v Bowden Institution , 2016 ABCA 52 , 612 AR 231 decision rules that the Parole Board of Canada “... is not a complete; comprehensive and expedient process”, forcing an inmate to use Parole Board procedures is unconstitutional, and an “absolute injustice”; and • as a point of law a detainee should only be subject to the least restrictive measures. [ 6 ] The “Application” at para 22 seeks three remedies: • release of Willis back into parole supervision within five days; • costs of the application; and • “costs lost for the time he has spent unnecessarily, loss of residual liberty, in custody under s. 24 of the charter as relief”. [ 7 ] On June 29, 2017 the Attorney General of Canada, as the representative of the Respondent(s), filed an “Application” to have Willis’ habeas corpus application struck out per Alberta Rules of Court , Alta Reg 124/2010 [the “ Rules ”, or individually, a “ Rule ”], arguing that the Court should decline to take jurisdiction over this matter since the Corrections and Conditional Release Act , SC 1992, c 20 creates a complete, comprehensive, and expert procedure for the review and suspension of day parole.

The Attorney General also seeks $500.00 in costs. That “Application” was supported by a “Memorandum of Fact and Law,” and a June 27, 2017 Affidavit of Corinne Weeks which attached records relating to Willis’ parole and its suspension. [ 8 ] The June 29, 2017 application was set to be heard on September 5, 2017. [ 9 ] Willis on July 27, 2017 replied by submitting an additional “Application” and “Affidavit”. The July 27, 2017 “Affidavit” and attached “Oral Submissions in the Court of Queen’s Bench Justice Hearing this Writ of Habeas Corpus” appear to duplicate the corresponding June 20 items.

However, the “Application” filed on July 27, 2017 is a somewhat augmented version of its June 20, 2017 counterpart. The additional material has a vitriolic tone and alleges judicial misfeasance, for example paragraph 20: The fact that some justices are not ruling heavily against parole officers and CSC employees that are violating the basic principles of Justice whenever they feel like it with no consequences to them, is allowing the principle of law to become tainted and distasteful, not to mention total disrespect of the Canadian Charter .

Then the justice system wonders why there is disrespect to the system that is supposed to deal with matters such as these violations fairly and justly when the parole officers and some CSC can literally do what they wish and ignore the rule of law and the charter because some justices are allowing them to get away with this behavior. The people creating these violations are the ones responsible for causing extra work to the courts and overloading the justice system. Stop the charter abuses and less habeas corpus writs will come through the courts because there will be no grounds to file them.

Dismissing some of these in error is not going to stop habeas corpus applications it will increase them until the SCC gets to see what lack of respect some justices are giving to their ruling within Khela v. Mission 2014 SCC. That case was intentionally written to clarify why habeas

corpus must be revived and that is to stop procedural and unreasonable and unfair decisions committed by CSC and the parole system.The courts need to monitor this and not ignore what the SCC said must STOP. (Emphasis added). [Formatting and text as in original.] II. The September 5, 2017 Hearing [10] At the September 5, 2017 hearing counsel for the Attorney General relied on its written submissions that Albertajurisprudence clearly establishes the Parole Board and Parole Board Appeal Division are a complete, comprehensive, and expertdetention review process.

The Court should refuse to take jurisdiction and instead should strike out Willis’ habeas corpus application. [11] The Attorney General further indicated that Willis’ appeal of his parole suspension had been heard by the Parole BoardAppeal Division and that a decision would be released shortly. The Attorney General had provided Willis with case law authorities thatclearly establish that his current habeas corpus application is hopeless.

It offered him the opportunity to withdraw the June 20, 2017application without costs. [12] In light of those facts the Attorney General seeks $500.00 in costs paid forthwith. [13] Willis in response argued the Parole Board and Corrections and Conditional Release Act apparatus is arbitrary andunreasonable. He, as a matter of law, must be only subjected to the least response. The Parole Board apparatus is too slow, his 30 daydeadline for that tribunal was reasonable, and the Parole Board should be held responsible for its deficient activities.

Habeas corpus isthe best process to evaluate a prisoner’s detention and therefore must always be used. III. Analysis [14] The Supreme Court of Canada in Mission Institution v Khela, 2014 SCC 24, [2014] 1 SCR 502 defined habeas corpus as abroad remedy available to persons in detention, where a decision to detain is unreasonable.

A person applying for relief via habeascorpus must: 1. identify a loss of freedom, and 2. a basis on which to allege that the loss of freedom was unlawful. [15] When this threshold is met then a superior court of inherent jurisdiction will in most circumstances take jurisdiction over thematter, and the Crown is then required to establish on a balance of probabilities that the detention is lawful. The limited exception to thisrule are two categories identified in R v Miller, (SCC), [1985] 2 SCR 613, 24 DLR (4th) where a superior court ofinherent jurisdiction should decline to hear a habeas corpus application.

These arise where legislation: 1. confers jurisdiction on an appeal court to correct an error of a lower court and release an applicant, or 2. creates a complete, comprehensive and expert procedure for review of an administrative decision. [16] Habeas corpus is not required in these two scenarios because that common law authority has been replaced by anotherprocedure that adequately supervises government ordered detention. [17] Willis has clearly been subjected to a loss of liberty; his day parole was revoked.

The keystone issue for this application isvery simple: is the Attorney General correct in its argument that the Parole Board is a complete, comprehensive, and expert apparatuswhich has displaced this Court’s inherent and Charter, s 10(

c) habeas corpus jurisdiction? [18] That answer is obvious. This issue has been re-litigated repeatedly in this province. My decision is predetermined by theexistence of binding authority. In Armaly v Canada (Parole Service), 2001 ABCA 280, 299 AR 188, leave denied [2002] SCCA No134, Fraser CJA said: [4] The [Corrections and Conditional Release Act] provides a comprehensive statutory scheme for administering the parole reviewprocess. Sound policy reasons exist for not setting the threshold for habeas corpus so low that it effectively creates a parallel system forchallenging revocation or termination of parole.

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

As well, it isimportant that the release of a long-term inmate should be supervised by those who are experts in this field. [5]We see no reason why Mr. Armaly should not follow the procedures prescribed in the [Corrections and Conditional Release Act], acourse of action which had, prior to the judgment under review, been previously endorsed once by the Court of Queen’s Bench and twiceby this Court. [19] This result was then confirmed in R v Marshall, 2002 ABCA 185, 54 WCB (2d) 570.

The same conclusion that has beenreached by many other Canadian Courts of Appeal: LRF v Canada (National Parole Board), 2008 NSCA 56, 266 NSR (2d) 337; Lordv Coulter, 2009 BCCA 62, 266 BCAC 122; R v Latham, 2009 SKCA 26, 324 Sask R 87; R v Ross, 2009 SKCA 24 at para 8, 324 SaskR 80; John v Canada (National Parole Board), 2011 BCCA 188, 303 BCAC 264, leave denied [2011] SCCA No 256; R v Graham,

2011 ONCA 138, 275 OAC 200; Lena v Donnacona Prison, 2011 QCCA 140; Blais v Canada (Attorney General), 2012 NSCA 109,321 NSR (2d) 198, leave denied [2012] SCCA No 488; Woodhouse v Canada (Correctional Service), 2012 BCCA 45 at para 15, 316BCAC 80; Chaudhary v Frontenac Institution, 2012 ONCA 313, 292 OAC 333, leave denied [2012] SCCA No 331; PSL v MatsquiInstitution, 2013 BCCA 390 at para 30, 342 BCAC 104; R v Latham, 2016 SKCA 14, 472 Sask R 288, leave denied [2016] SCCA No144. [20] In DG v Bowden Institution (Warden), 2016 ABCA 52, 612 AR 231, in two separate decisions the majority concluded thathabeas corpus is available as an alternative remedy for a detained person to challenge a decision of the Parole Board of Canada viajudicial review.

The decisions in DG v Bowden Institution (Warden) explicitly do not overrule Armaly v Canada (Parole Service) inrelation to detention reviews by the Parole Board of Canada via the Corrections and Conditional Release Act. [21] The Alberta Court of Queen’s Bench has repeatedly followed the rule in Armaly v Canada (Parole Service), that the ParoleBoard of Canada is a complete, comprehensive, and expert review process: Tuckanow v Bowden Penitentiary, 2014 ABQB 563, 591AR 348; Rain v Canada (Parole Board), 2015 ABQB 639; LeBlanc v Canada (Attorney General), 2016 ABQB 350, 41 Alta LR (6th)403; Blea v Warden of Bowden Institution (24 June 2016), Edmonton 160467759X1 (Alta QB); Doll v AGC and Warden of BowdenInstitution (14 October 2016), Edmonton 161070743X1 (Alta QB); Melnick v AGC and Institutional Warden or Head of BowdenInstitution (21 October 2016), Edmonton 160866208X1 (Alta QB); Hamm v Morgan (Last Name Unknown), 2017 ABQB 156. [22] I therefore refuse to take jurisdiction over Willis’ habeas corpus application and strike it out.

This application had nopossibility of success. Willis’ bald allegation that DG v Bowden Institution (Warden) concluded that the Parole Board apparatus is not acomplete, comprehensive, and expert procedure are false. I note Willis did not identify in his materials or oral submissions any specificpassage in that judgment which states otherwise. [23] I categorically reject Willis’ argument that Mission Institution v Khela and Charter, s 10(

c) requires that a court hear anyhabeas corpus application, no matter its subject or other deficiencies, and that any pre-hearing steps that might end the habeas corpusapplication “is an abuse of process.” Mission Institution v Khela at para 42 explicitly cites and confirms the R v Miller exceptions. [24] Further, a habeas corpus application that seeks any remedy other than release to a pre-detention condition is one made onimproper, abusive grounds: Ewanchuk v Canada (Attorney General), 2017 ABQB 237. Willis has no right to the Charter, s 24(1)remedy he sought via habeas corpus. He could only seek release. IV.

Costs [25] A habeas corpus application is a civil application. The successful party in a civil action is presumptively due their court costs:Rule 10.29(1).

This Court’s authority to award costs against an inmate who makes an unsuccessful habeas corpus applicants is wellestablished: Rain v Canada (Parole Board), 2015 ABQB 747 at paras 8-13; Voisey v Canada (Attorney General), 2016 ABQB 316 atparas 29-35; Hamm v Morgan (Last Name Unknown) at paras 23-24; Ewanchuk v Canada (Attorney General) at paras 72-73; R vMcCargar, 2017 ABQB 416 at paras 101-103; R v Badger, 2017 ABQB 457 at paras 44-45. [26] I conclude Willis was well aware that his habeas corpus filings were futile.

His original June 20, 2017 filings actuallyanticipate the Attorney General’s June 29, 2017 Application to strike. In the June 20, 2017 “Application” he claims: ...

For the CSC OR PARLOLE board to have their council apply to “strike” or file a motion to prevent the “hearing of habeas corpus withcertiorari in aid” is against the ruling of the SCC and is an abuse of process. ... [27] The same document makes a legally false and unsupported claim concerning the DG v Bowden Institution (Warden)decision: THAT AN ATTEMPT TO DECLARE THE parole appeal process as a complete, comprehensive and expedient process has beenargued as fully as possible in the D.G. v.

Bowden 2016 ABCA and that court ruled that it is not a complete; comprehensive andexpedient process. ... [Emphasis in original.] [28] Willis received the Attorney General’s written submissions and many of the relevant authorities which relate to this questionwell in advance of the September 5, 2017 hearing. Willis therefore had more than enough time to investigate and critically evaluate thelegal basis for his habeas corpus application. The Crown offered Willis the opportunity to withdraw his application without costsconsequences.

Willis nevertheless still carried this matter forward to the September 5, 2017 hearing. [29] A person may be presumed to intend the natural consequence of their actions: Starr v Houlden, (SCC),[1990] 1 SCR 1366, 68 DLR (4th) 641. Here, Willis persisted with a hopeless application despite being aware that his action being struckout on a preliminary basis was the probable, if not only possible result. Willis sought a habeas corpus remedy that he could neverreceive.

These are types of litigation abuse identified in the leading Alberta judgment on that subject: Chutskoff v Bonora, 2014 ABQB389 at para 92, 590 AR 288, aff’d 2014 ABCA. [30] Willis’ June 20, 2017 application is therefore yet another example of the hopeless and abusive habeas corpus applications thatare clogging this Court and disrupting its operation: Ewanchuk v Canada (Attorney General) at paras 170-184. [31] This is a more than adequate basis on which to order the $500.00 in costs sought by the Crown, which are ordered to be paidforthwith. [32] Misuse of the habeas corpus procedure is a very serious form of litigation abuse which will not be tolerated by the courts.Accordingly, should any individual, including Willis, contemplate entertaining this kind of misconduct, they may expect further andmore strict court sanctions: Ewanchuk v Canada (Attorney General).

Heard on the 5 th day of September, 2017. Dated at the City of Edmonton, Alberta this 7 th day of September, 2017. Don J. Manderscheid J.C.Q.B.A. Appearances: Michael Peter Willis Self-Represented Respondent / Applicant Jennifer Lee Department of Justice Canada Prairie Region, Edmonton Office for the Applicants / Respondents