MacKinnon v Bowden Institution, 2017 ABQB 574

Court of Queen’s Bench of Alberta Citation: MacKinnon v Bowden Institution, 2017 ABQB 574 Date: 20170926 Docket: 1703 08239 Registry: Edmonton Between: Kevin Charles MacKinnon Applicant - and - Bowden Institution Respondent _______________________________________________________ Memorandum of Decision of the Honourable Mr. Justice Don J. Manderscheid _______________________________________________________ I.

Introduction [ 1 ] An Originating Notice was filed with the Edmonton Court of Queen’s Bench on April 28, 2017 by Herman Jhangri, which lists the Applicant’s address for service as the eLaw Alliance on Jasper Avenue in Edmonton. The Law Society of Alberta membership records indicates Jhangri is a student-at-law, principled to a lawyer, Janan Jarrah, of eLaw Alliance. [ 2 ] The entire body of this application reads: Basis for this Claim: 1. Mr. MacKinnon is being involuntarily transferred to Edmonton Max by raising his status. There is no basis in raising his status

and his transfer does not need to be immediate for security of the penitentiary. 2. Mr. MacKinnon has been kept in segregation and has not been provided with reasons for this placement 3. The respondent has failed to observe a principle of natural justice, procedural fairness or other procedure that is required by law to observe 4. 3. The involuntary transfer of the applicant is believed to be a result of the applicant’s legal efforts rather than other justifiable grounds such as safety. Remedy sought: 5. Stay of enforcement of the said decision (the involuntary transfer) 6.

Writ of habeas corpus certiorari Affidavit or other evidence to be used in support of this application: 7. Affidavit of Kevin MacKinnon 8. Applicable Acts and regulations: 9. Alberta Rules of Court 10. Corrections and Conditional Release Act 11. Corrections and Conditional Release Regulations [ 3 ] The April 28, 2017 application was followed by a four page handwritten “AFFIDAVIT - 90” of Kevin Charles MacKinnon, sworn on April 27, 2017 and filed on May 6, 2017.

This document has a different style of cause, and names the applicant as Kevin Charles MacKinnon, “Applicant/Plaintiff/Victim”, suing “Correctional Service of Canada and Mrs. Katheryn Boyko & Ms. Tracy Farmer and other Staff”, “Respondents/Defendants”. [ 4 ] For clarity, throughout this decision I will refer to this matter and parties as identified in the Originating Application. [ 5 ] The MacKinnon “AFFIDAVIT 90” addresses a range of subjects: 1. MacKinnon says he is in the custody of the Correctional Service Canada [“CSC”], “whom have complete control over me and my living conditions etc.” 2.

He says he is indigent, and has been refused assistance by Alberta Legal Aid. He seeks appointment of counsel by the Court. MacKinnon indicates he lacks access to legal resources and needs representation because “... the legal issues etc involve Constitutional and other laws, etc, and is too complicated for me to do alone. ...”. 3. MacKinnon indicates he has received pro bono assistance from Janan Jarrah and Herman Jhangri. He alleges that he has received inadequate resources and opportunities to work and communicate with these individuals. 4. MacKinnon is on a hunger strike: I am only drinking water.

AND, emphasizing, I am prepared to end my life in this hunger strike/protest on the involved (and other) issues RE:CSC and their (various) attacks against me and my life, freedom, Liberties, future and other vital interest, and needs (including obstructing and interfering with my legal efforts and needs, etc); AS WELL AS in protect of Legal Aid and not being able to gain Legal counsel I despirately Need !! [Sic, emphasis in original.] 5. On April 7, 2017 he was put in segregation after allegedly having manufactured an alcoholic material, “brew”, in his sink. 6.

MacKinnon is subject to an involuntary transfer to the Edmonton Institution, a maximum security facility: On April 25, 2017 I was given/served with involuntary transfer, and to Edmonton penitentiary. I do not accept said service for several legal and ethical reasons. [Emphasis in original.] 7. MacKinnon alleges several defects in the segregation and transfer decisions.

A) MacKinnon complains the transfer was based on information that was not fully up-to-date, contrary to Corrections and Conditional Release Act , SC 1992, c 20, s 24(1). However, MacKinnon does not specify any actual defect in that information. Instead he claims: I firmly believe this (with good reason and long experience) to be malicious, unfair, oppressive, arbitrary or/and unconstitutional actions by the Respondents.

B) The transfer was conducted on 48 hours notice, which is the minimum amount required by the relevant legislation. This is unfair:

... obviously this self-servingly enables the Respondents to engage their agendas before outside influences may stop or pause it for full & fair review etc. This is extremely unfair to me!!

C) The “brew” was not subjected to testing to confirm its character.

D) MacKinnon was not charged with any offence. E) “[O]ther exculpatory and important information and evidences etc.” were “excluded” from the decisions, though this evidence is not identified. 8.

MacKinnon alleges that the Respondent is ignoring that the transfer puts MacKinnon’s life in danger: [Very Strongly Emphasizing] my life and personal safety is in danger at Edmonton Penitentiary, at the hands of prison staff, prison gangs and inmates - which staff have incited and otherwise encouraged to act against me and my life etc. ... the Respondents are all but completely ignoring , minimizing, and degradingly & unfairly dismissing all information related to that and falsely claiming they have no info regarding that (in their efforts to bully force involuntary transfer against me) despite I and others have raised this (my personal safety issues) previously and recently! - which they have also ignored in their decision making. [Text and emphasis in original.] 9.

MacKinnon also complains about inadequate disclosure, which he says means all his CSC records. He indicates that there are outstanding court orders which mandate that document production. 10. He complains about inadequate “personal help/support”, including “programs, (esp.) counselling etc”. 11. MacKinnon appears to allege he is the recipient of an illegal sentence: I am now in year 24 of a 10 year sentence life, and I am not designated as dangerous offender or anything else like that etc. I was/and have been eligible for parole since 2002! [Emphasis in original.] 12.

His treatment by Correctional Service Canada is analogous to that received by Ashley Smith. 13. MacKinnon has been subjected to “assaults”, which include involuntary transfers, interference in community and family relationships, segregation, and physical assaults.

This has caused him “serious negative mental health effects” and he “... cannot suffer/survive going through it & setbacks etc again ...”. [ 6 ] The Court has treated these filings as an application for habeas corpus . [ 7 ] There is no dispute that MacKinnon on April 28, 2017 was transferred from the Bowden Institution, a medium security federal prison, to the Edmonton Institution, a maximum security prison. This transfer is a substantial change in MacKinnon’s residual liberty, and that deprivation of residual liberty may be challenged by habeas corpus .

The Attorney General of Canada on behalf of the Respondent on June 8, 2017 filed a Certified Record that documents the decision to transfer MacKinnon to the Edmonton Institution. [ 8 ] On June 21, 2017 MacKinnon filed a “NOTICE OF MOTION” that seeks 12 categories of “Relief”, including a complaint concerning inadequate document disclosure. I note this occurred both after the transfer and MacKinnon having received the certified record. MacKinnon on the same date filed a document titled “AFFIDAVIT 57”, sworn on May 4, 2017. [ 9 ] This decision relates to the June 21, 2017 Notice.

However, to resolve the issues raised and relief sought in that document, I must first look closer at the April 28, 2017 Application, and MacKinnon’s AFFIDAVIT 90. This first step is necessary because if MacKinnon does need additional disclosure then that will necessarily relate to the issues raised in the pleading that initiated this process. Documents or information that are unrelated to MacKinnon’s habeas corpus application, naturally, need not be provided to MacKinnon. Those items are irrelevant to his application. II.

Pleadings and Habeas Corpus [ 10 ] The “great writ” of habeas corpus is a common law right of persons who are detained by state actors to go to court and demand that the state actor prove that a detention is lawful. The recent Mission Institution v Khela , 2014 SCC 24 , [2014] 1 SCR 502, decision of LeBel J is the key authority for this remedy in the present context. [ 11 ] The history and evolution of this unique element of the English common law is reviewed in DG v Bowden Institution , 2016 ABCA 52 at paras 105-22 , 612 AR 231.

Canada has enshrined access to habeas corpus in Charter , s 10(c): Everyone has the right on arrest or detention ... to have the validity of the detention determined by way of habeas corpus and to be released if the detention is not lawful. [ 12 ] Habeas corpus is a highly specialized tool to test the legality of a deprivation of liberty, and if that deprivation cannot be legally justified, then the detained person must be released. As indicated in Charter , s 10(c), this is the only remedy that may flow from a habeas corpus application. [ 13 ] Habeas corpus is a time-sensitive remedy.

As Wakeling JA observed in DG v Bowden Institution at paras 121-22 , habeas corpus “... gives a person a prompt hearing ...”, and “[t]he essential features of habeas corpus contribute to its expeditious processing ...”.

[14] In Alberta a habeas corpus application is initiated by a person filing an originating application for judicial review, per AlbertaRules of Court, Alta Reg 124/2010 [the “Rules”, or individually a “Rule”], Rule 3.15. Rule 3.16(1) mandates that an application forhabeas corpus must be served “as soon as practicable”. That is consistent with the requirement that this process operate in an expedientmanner.

Once filed, habeas corpus applications receive a special priority treatment in this Court due to the timeliness requirement that isintegral to the function of this special remedy, see Ewanchuk v Canada (Attorney General), 2017 ABQB 237 at para 176. [15] A second unique feature of habeas corpus is that applications of this kind involve a shifting onus: Mission Institution v Khelaat para 30.

A person who applies for relief via habeas corpus must identify: 1. a loss of freedom, and 2. a basis on which to allege that the loss of freedom was unlawful. [16] 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. [17] The function of pleadings is well established. Pleadings set out the case that a plaintiff or applicant says that the opposingparty must answer.

The Federal Court of Appeal recently in Mancuso v Canada (National Health and Welfare), 2015 FCA 227 at para16, 476 NR 219, summarized how pleadings give notice of the nature and subject of litigation: It is fundamental to the trial process that a plaintiff plead material facts in sufficient detail to support the claim and relief sought.

As thejudge noted “pleadings play an important role in providing notice and defining the issues to be tried and that the Court and opposingparties cannot be left to speculate as to how the facts might be variously arranged to support various causes of action.” [18] Rennie JA continues at paras 17-19: The latter part of this requirement – sufficient material facts – is the foundation of a proper pleading. If a court allowed parties to pleadbald allegations of fact, or mere conclusory statements of law, the pleadings would fail to perform their role in identifying the issues.

Theproper pleading of a statement of claim is necessary for a defendant to prepare a statement of defence. Material facts frame the discoveryprocess and allow counsel to advise their clients, to prepare their case and to map a trial strategy. Importantly, the pleadings establish theparameters of relevancy of evidence at discovery and trial. ... What constitutes a material fact is determined in light of the cause of action and the damages sought to be recovered. The plaintiff mustplead, in

summary form but with sufficient detail, the constituent elements of each cause of action or legal ground raised. The pleadingmust tell the defendant who, when, where, how and what gave rise to its liability. [Emphasis added.] [19] A pleading that discloses no reasonable cause of action may be struck out, immediately, so as to prevent misuse of courtresources: Hunt v Carey Canada Inc., (SCC), [1990] 2 SCR 959, 74 DLR (4th) 321.

See also GH v Alcock, 2013ABCA 24 at para 58. [20] One way that pleadings may be defective is where the pleadings fail to meet an informational threshold so that the respondingparty and court may evaluate and answer the alleged claim. A failure to do is fatal to a pleading; that filing is an abuse of process. SinderJ in kisikawpimootewin v Canada, 2004 FC 1426, 134 ACWS (3d) 396, expressed this principle in a colourful but accurate manner atparas 8-9.

A proceeding is frivolous, vexatious, and abusive where a “... defendant cannot know how to answer, and a court will beunable to regulate the proceedings ...”, and “bare assertions and bald statements” leave the defendant “... both embarrassed and unable todefend itself ...” and the court is unable to identify the intended argument and/or specific material facts. [21] In the recent Badger v Canada, 2017 ABQB 457 at para 43 decision, Shelley J concluded this principle is equally relevant tohabeas corpus applications: Habeas corpus applications that do nothing more than make general allegations (such as that a hearing was procedurally unfair, adecision was arbitrary, based on irrelevant facts, or that a decision-maker was biased) should not be a basis for a Court to takejurisdiction over a habeas corpus application.

A habeas corpus application cannot be a vague suggestion of some defect or unfairness inthe process or decision that led to a detention or loss of residual liberty. This approach is an application of well-developed jurisprudenceconcerning application of Rule 3.68 in civil court proceedings. At a minimum, habeas corpus applications must provide sufficient detailthat the state actor has a basis on which to identify the relevant decision and associated record, and respond to a specific complaint orcomplaints of alleged illegal conduct.

An application that fails to do so should be struck out under Rule 3.68, with costs against thehabeas corpus applicant. [22] While the requirement to plead adequate facts is important in any civil proceeding, the unusual structure and process of ahabeas corpus application elevates this requirement to a strict standard. First, habeas corpus must be dealt with in a timely manner.Attempts to tunnel into and redefine the substance of badly or incompletely framed allegations of unlawful detention-related decision-making are incompatible with the efficient, prioritized status of this remedy.

The court should in almost every case refuse anyapplications to amend a habeas corpus originating application which alters or expands allegations of illegality. [23] Second, the reverse onus against the Crown means it must disprove any alleged unlawful aspect of a detention or loss ofliberty. This is unlike any other Charter application where the onus falls on the applicant to prove its case 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 AR368.

That means the applicant’s threshold requirement to identify “... a legitimate ground upon which to question its legality ...” (MissionInstitution v Khela at para 30) must provide enough factual detail for the government actor to identify the detained person and the

allegedly illegal detention, the relevant decision that resulted in that deprivation of liberty, and to understand and respond to thesubstance of that alleged illegality. [24] This is an absolute requirement for a valid habeas corpus application. Vague, indeterminate, or general allegations are nobasis for an application of this type. Any failure to meet this standard, which leaves the respondent “both embarrassed and unable todefend itself” is an abusive, vexatious application.

Components of a habeas corpus application which fail to meet that threshold criterionshould be struck, immediately, so that potentially valid challenges to detention are adjudicated in the prompt manner demanded by thiscommon law right. III. The Function and Limits of Habeas Corpus [25] Habeas corpus has only one function, to challenge the legality of a decision that results in a loss of liberty.

In the context ofpersons who are already detained, habeas corpus may be used to challenge a further “loss of residual liberty” (Mission Institution vKhela; R v Miller, (SCC), [1985] 2 SCR 613, 24 DLR (4th) 9)), such as administrative segregation, confinement to aspecial handling unit, or transfer to a higher security institution.

A loss of residual liberty involves a new and different physicalenvironment for the prisoner which offers less freedom. [26] Habeas corpus has no application to hypothetical or historic detentions: Cundell v Bowden Institution, 2016 ABQB 348 atpara 37; Dumas v Leclerc Institute, (SCC), [1986] 2 SCR 459 at paras 12-14, 34 DLR (4th) 427; R v Latham, [2000]OJ No 3720 at paras 21-23 (QL), 2000 CarswellOnt 348 (Sup Ct J).

As Thomas J observed in Ewanchuk v Canada (Attorney General)at para 23, “Habeas corpus is only a remedy for the here and now.” [27] Habeas corpus cannot challenge a decision to refuse release or a reduced form of detention: Mapara v Ferndale Institution(Warden), 2012 BCCA 127 at para 15-16, 318 BCAC 139, leave to the SCC refused, 34818 (27 September 2012); Biever v Alberta(Director of Edmonton Remand Centre), 2015 ABQB 609 at paras 33-35.

Habeas corpus cannot be sought where the detention or formof detention is voluntary or caused by the detained person: R v Blanchard, 2011 SKCA 60 at para 13, 371 Sask R 270; Biever v Alberta(Director of Edmonton Remand Centre), 2015 ABQB 609 at para 32. [28] Habeas corpus requires a significant or substantial change in conditions (Dumas v Leclerc Institute, at p 464; Cunningham vCanada, (SCC), [1993] 2 SCR 143 at 151, 80 CR (4th) 57; Canada (Attorney General) v Whaling, 2014 SCC 20 atpara 57, [2014] 1 SCR 392) and does not apply to conditions of detention, including: 1. access to rehabilitation and training (Mapara v Ferndale Institution, at paras 12-15; Lord v Coulter, 2007 BCSC 1758 at para60-63, 72 Admin LR (4th) 264, affirmed 2009 BCCA 62 at para 5, 266 BCAC 122; Urbano v Bowden Institution, 2015 ABQB 279 atpara 59, 121 WCB (2d) 45; Rain v Canada (Parole Board), 2015 ABQB 639 at para 15; McCargar v Canada, 2017 ABQB 416 at para63-64); 2. rude staff and dangerous inmates (Ewanchuk v Canada (Attorney General) at paras 43-45); 3. allegations concerning grievance procedures (Ewanchuk v Canada (Attorney General), at para 52; McCargar v Canada, atparas 77-78; Badger v Canada, at paras 19-20); 4. communications into and out of an institution (Ewanchuk v Canada (Attorney General), at paras 53, 55; McCargar v Canada, atparas 73-74; Badger v Canada, at paras 19-20); 5. factors that allegedly impede legal work, research, or consultation with lawyers, and inadequate library and legal researchresources (Ewanchuk v Canada (Attorney General), at paras 60-65; McCargar v Canada, at paras 71-72; Badger v Canada, at paras19-20); and 6. complaints concerning inmate property (McCargar v Canada, at paras 65-66; Badger v Canada, at paras 19-20).

IV. Bases for MacKinnon to Challenge His Loss of ResidualLiberty [29] As I previously indicated, the potential scope of any order in response to MacKinnon’s June 21, 2017 Motion will necessarilyreflect the issues raised by his habeas corpus application. MacKinnon has clearly undergone a loss of residual liberty as a consequenceof his being transferred to the Edmonton Institution on April 28, 2017. [30] The next step is to define whether that habeas corpus application raises one or more legitimate grounds upon which toquestion the legality of the decision to make that transfer.

This involves review of the pleadings filed by the eLaw Alliance andMacKinnon on April 28, 2017 and May 6, 2017. In reviewing these materials I am mindful of the principle that pleadings should be readgenerously (Decock v Alberta, 2000 ABCA 122 at para 62, 186 DLR (4th) 265), and on that basis I will consider potentially valid issuesraised in the May 6, 2017 AFFIDAVIT 90, even though those possible issues were not properly put to the Respondent in the April 28,2017 Application. A. The April 28, 2017 Application [31] The April 28, 2017 application has several serious defects.

First, the complaint at paragraph 2 concerning an absence ofreasons relates to an irrelevant, historic detention. The legality of MacKinnon being in segregation in the Bowden Institution is irrelevant

to MacKinnon’s currently being in the Edmonton Institution. I therefore strike out that paragraph entirely. [ 32 ] Second, paragraph 3 alleges the Respondent “... has failed to observe a principle of natural justice, procedural fairness or other procedure that is required by law to observe”. This is a bald allegation that offers no specifics whatsoever. It is entirely impossible for the Respondent to reply to this allegation; as identified in kisikawpimootewin v Canada , this is a frivolous, vexatious, and abusive allegation.

Worse, this allegation is made in the face of the reverse onus structure of habeas corpus . I therefore strike out paragraph 3 of the application. [ 33 ] Similarly, paragraph 4 alleges the transfer of MacKinnon “... is believed to be the result of the applicant’s legal efforts ...”. While this claim offers some alleged factual basis it nevertheless is not an allegation that can be refuted because the allegation is open- ended and indefinite. “[L]egal efforts” could mean practically anything ranging from litigation, to Parole Board proceedings, to institutional complaints, to judicial reviews.

The application also does not say why this claim may be correct. It too is a bald allegation. Paragraph 4 is also struck out. [ 34 ] What remains is paragraph 1, which alleges the transfer had “no basis”. I permit the habeas corpus application to continue on the allegation that the Respondents had “no basis” for a transfer. That issue will then centre on the reasons provided by Bowden Institution for the transfer, as found in the Certified Record of Proceedings. [ 35 ] Paragraph 4 also alleges “his transfer does not need to be immediate for security of the penitentiary”.

I conclude this component of the Application is irrelevant since the timing of the transfer and associated loss of residual liberty is not a question that may be challenged via habeas corpus . Rather, the only issue is whether or not that transfer to the Edmonton Institution was legally justified or not. This part of paragraph 4 is struck out. [ 36 ] I therefore conclude the Application includes only one potential “... legitimate ground upon which to question [the transfer’s] legality”: was “no basis” provided in the reasons for transfer of MacKinnon from the Bowden Institution to the Edmonton Institution? B.

The May 6, 2017 AFFIDAVIT 90 [ 37 ] As with the April 27, 2017 application, the May 6, 2017 AFFIDAVIT 90 includes much that is irrelevant to a habeas corpus analysis. 1. MacKinnon complains he has received inadequate legal support and lacks access to certain lawyers, libraries and legal assistance in general. This is not a basis for a habeas corpus application, and is irrelevant: Ewanchuk v Canada (Attorney General) , at paras 60- 65 ; McCargar v Canada , at paras 71-72 ; Badger v Canada , at paras 19-20 . 2. He indicates he is on a hunger strike.

That fact is irrelevant to habeas corpus since he is the one who has caused that, and a hunger strike does not represent a loss of residual liberty. 3. MacKinnon says he did “... not accept said service [involuntary transfer] for several legal and ethical reasons.” Habeas corpus investigates whether a decision that results in a deprivation of liberty is or is not lawful.

MacKinnon has given no basis why his ‘not accepting service’ is relevant to the validity of the decision in question. 4 MacKinnon alleges the transfer was based on out-of-date information, but offers no specifics on what inaccurate or out-of-date information allegedly led to an improper decision. Instead, he makes a simple claim of conspiracy and malice: I firmly believe this (with good reason and long experience) to be malicious, unfair, oppressive, arbitrary or/and unconstitutional actions by the Respondents.

This is a bald and unsubstantiated allegation without the alleged facts that would permit the Respondent to make a resopnse. That too is no basis for a habeas corpus application. 5. MacKinnon claims he was transferred to the Edmonton Institution 48 hours after the decision to make the transfer. MacKinnon then acknowledges this is permitted by the relevant legislation. There was a lawful basis for MacKinnon’s transfer at this point. The timing of the transfer is therefore not a basis for a habeas corpus remedy. 6. MacKinnon alleges that the “brew” was not tested to verify it is a fermented product.

This alleged defect in the factual foundation for the transfer is a potential basis for a habeas corpus application because it alleges a specific defect, and that the decision to transfer MacKinnon to the Edmonton Institution may have been conducted on an incomplete factual basis. 7. MacKinnon complains he cannot be transferred because he was not charged with any offence. MacKinnon offers no basis or rule that there is a legal requirement that a prisoner who is transferred to a higher security institution must also be charged with the alleged misconduct that led to this transfer.

I reject this allegation as a basis for habeas corpus . 8. MacKinnon alleges there is “other exculpatory and important information and evidences etc.” that were not considered when the transfer decision was made. MacKinnon offers no specific facts to accompany this allegation. Again, the Respondent cannot reply or respond to this bald allegation; this is not a basis for a habeas corpus application. 9. MacKinnon alleges the decision to transfer MacKinnon ignored evidence that puts his life in danger.

If MacKinnon is correct and the Bowden Institution decision makers did not consider his safety in the destination institution, then that is a potential basis for a habeas corpus remedy, since that would mean the decision-maker had ignored a relevant consideration. 10. MacKinnon complains about inadequate disclosure, but does not specify the information he is missing. This could potentially be a basis for a habeas corpus application, but MacKinnon has failed to provide the particulars to support his complaint.

11. MacKinnon complains about a lack of support, programs, and counselling. These are irrelevant to habeas corpus: Mapara vFerndale Institution, at paras 12-15; Lord v Coulter, at para 60-63; Urbano v Bowden Institution, at para 59; Rain v Canada (ParoleBoard), at para 15; McCargar v Canada at para 63-64. 12. MacKinnon says he is “... now in year 24 of a 10 year life sentence”, and implies he is serving an illegal sentence. If that were truethen he may be able to obtain a remedy via habeas corpus (R v Gamble, (SCC), [1988] 2 SCR 595, 45 CCC (3d) 204),but instead MacKinnon has mischaracterized his sentence.

He was convicted by a jury of second degree murder (R v MacKinnon, 1997ABCA 115, 196 AR 228, leave to the SCC refused, 26641 (22 October 1998)), and is therefore subject to a life sentence, without thepossibility of parole for 10 years. The fact he has been denied parole is not a basis for a habeas corpus application (Mapara v FerndaleInstitution (Warden), at paras 15-16; Biever v Alberta (Director of Edmonton Remand Centre), at paras 33-35), but in any case thisclaim is unrelated to the allegedly improper transfer of MacKinnon to the Edmonton Institution. 13.

The amorphous allegations of “assaults” are also unrelated to the issue of whether or not the impugned transfer was lawful, so thattoo is not a basis for habeas corpus. [38] AFFIDAVIT 90 therefore provides two additional potential bases to challenge the legality of the decision to transferMacKinnon to the Edmonton Institution: 1. Could the decision maker who ordered the transfer make that transfer on the basis of alleged facts concerning the “brew”,although the alleged “brew” was not subjected to chemical testing? 2.

Did the decision maker ignore the issue of MacKinnon’s safety at the transfer destination, the Edmonton Institution? C. Valid Bases to Allege Improper and Unlawful Loss of Residual Liberty [39] I therefore conclude that after review of MacKinnon’s pleadings that only three specific and valid questions are raised by theApril 27, 2017 Application and May 6, 2017 Affidavit: 1. Do the reasons provided by the Respondent include “no basis” for transfer of MacKinnon from the Bowden Institution to theEdmonton Institution? 2.

Could the decision maker who ordered the transfer make that transfer on the basis of alleged facts concerning the “brew”,although the alleged “brew” was not subjected to chemical testing? 3. Did the decision maker ignore the issue of MacKinnon’s safety at the transfer destination, the Edmonton Institution? [40] I now turn to the June 21, 2017 Notice and the many remedies sought by MacKinnon in that application. V. June 21, 2017 Notice of Motion A. Events to Date [41] The June 21, 2017 Notice of Motion led to a succession of additional filings and appearances in this Court.

I will only brieflysummarize these steps because none of the hearings resolved the issues raised by the June 21, 2017 Notice. Further, many of the filings,largely from MacKinnon, are essentially irrelevant to his habeas corpus application. What follows will therefore only be a

summary. June 5, 2017 - MacKinnon argues he needs materials from his 28 boxes of property for his habeas corpus application. Shelley J instructsMacKinnon to prepare an application supported by sworn evidence as to the specific items in question. June 9, 2017 - The parties appeared before Gill J and again addressed the question of MacKinnon’s property. MacKinnon indicated hewanted further disclosure. When MacKinnon complained about legal research, Herman Jhangri of the eLaw Alliance indicated he wouldassist MacKinnon with that.

Gill J indicated MacKinnon should file a proper application if he sought additional disclosure. June 21, 2017 - MacKinnon files the Notice. June 23, 2017 - The Attorney General filed a Memorandum of Fact and Law in response to the June 21 Notice, and a June 21, 2017Affidavit of Diane Ozipko. June 29, 2017 - The parties appeared before Ouellette J. MacKinnon sought and was granted more time. Filing deadlines were set forMacKinnon (August 10, 2017) and the Attorney General (August 17, 2017).

August 10, 2017 - MacKinnon faxed a letter that indicated he was not adequately prepared and could not meet deadlines set by the Court. August 16, 2016 - The Attorney General files a Memorandum of Fact and Law of the Respondent in relation to the legality ofMacKinnon’s transfer. August 21, 2017 - The Court receives a document with the subjects “RE: Habeas Corpus Application #1703-08239 RE: Calling ofWitnesses”. This attaches “AFFIDAVIT 50”, sworn August 14, 2014, and pages 1-23 of “AFFIDAVIT 92”. August 24, 2017 - The parties appeared before Renke J, and were unable to resolve the Notice application at that time.

Renke J set filingdeadlines for any additional material. The matter was then adjourned to September 7, 2017.

August 24, 2017 - MacKinnon files a complete copy of “AFFIDAVIT 92”, which was sworn on June 2, 2017, and “AFFIDAVIT 98”, which was sworn on August 23, 2017. August 28, 2017 - The Court receives a document addressed to Renke J with the subject “RE: Problematic Circumstances Acting Against My Ability To Prepare and Make Submissions To The Honourable Court”. September 7, 2017 - The parties appeared before me to make submissions in relation to the June 21, 2017 Notice. At that hearing MacKinnon attempted to present the Court with additional late documents.

These were refused. [ 42 ] The court file also includes a document from MacKinnon titled “AFFIDAVIT 93”, which is dated June 8, 2017. It is unclear when and how AFFIDAVIT 93 was placed on the file. [ 43 ] I have reviewed all of the materials submitted by both MacKinnon and the Respondent, though I will generally not make reference to specific elements of MacKinnon’s documents, except for the Notice itself. MacKinnon also made extensive oral submissions at the September 7, 2017 hearing, and reviewed each of the 12 items in the Notice. B.

Analysis [ 44 ] The preceding analysis means that many of the remedies and steps sought by MacKinnon in the Notice may be dealt within a

summary manner. 1. Appointment of Legal Counsel [ 45 ] MacKinnon argues the Court should order state-funded representation due to the complexity and kinds of issues relating to his habeas corpus application. He stresses his inability to manage these tasks and the volume of information involved. He indicates there are “constitutional” issues. [ 46 ] MacKinnon says he has sought and been denied Legal Aid.

At the September 7, 2017 hearing MacKinnon suggested as an alternative that the Court appoint an amicus curiae . [ 47 ] The Respondent states that there is no authority to support that a prisoner is entitled to obtain publicly funded legal counsel while bringing a habeas corpus application, citing: Bradley v Canada (Attorney General) , 2011 NSSC 463 , 312 NSR (2d) 390; Blais v Canada (Attorney General) , 2012 NSCA 81 , 319 NSR (2d) 198, leave to the SCC refused, 35092 (14 February 2013).

An amicus curiae is not required since a judge hearing MacKinnon’s habeas corpus application will not require assistance to discharge his or her duties: Ontario v Criminal Lawyers’ Association of Ontario , 2013 SCC 43 at paras 44-47 , [2013] 3 SCR 3. [ 48 ] Furthermore, MacKinnon has had access to counsel, the eLaw Alliance.

I note that Janan Jarrah has recently represented MacKinnon before the Federal Court of Appeal in relation to a late, hopeless, and moot judicial review of a decision to transfer MacKinnon from the Bowden Institution to a different federal institution: MacKinnon v Warden of Bowden Institution , 2016 FCA 14 . Besides that, Wilkinson J in R v MacKinnon , 2011 SKQB 363 , 384 Sask R 1 concluded that MacKinnon’s “extensive written materials” and in-court arguments indicated MacKinnon had the ability to effectively represent himself.

My experience is the same, particularly in light of the simple issues that remain to be addressed. [ 49 ] MacKinnon’s application for appointment of counsel or an amicus is denied. The issues that remain to be resolved after clarification of the scope of his habeas corpus application are discrete questions of fact, or a simple application of facts and law to known standards of review as defined in Mission Institution v Khela . MacKinnon’s claims that this litigation and the relevant law are complex and beyond his capacity are false.

I would, in any case, adopt the case law cited by the Respondent and refuse to order counsel on that basis as well. 2. Access to Legal Research [ 50 ] MacKinnon claims he requires additional legal research resources to identify relevant authorities and prepare his submissions. The Attorney General notes this concern was addressed by a June 9, 2017 instruction of Justice Gill. MacKinnon was promised assistance from Herman Jhangri. Correctional Service Canada has also accommodated MacKinnon’s requests for assistance.

Counsel for the Respondent emphasized that at MacKinnon’s request he has received much material. [ 51 ] Much like the previous item, I conclude that MacKinnon’s research requirements are simple, given the true valid scope of his habeas corpus application. I refuse to order any additional steps to facilitate MacKinnon’s research or access to legal resources. 3.

Communications with the Media [ 52 ] MacKinnon seeks to have unrestricted contact to “news media outlets and personnel as he (or they) may request.” He says this is his right based on the Charter and the Canadian Bill of Rights . [ 53 ] The Attorney General responds that Correctional Service Canada has policies concerning communications and contact with the media. This is unrelated to the issues at play in a habeas corpus application. MacKinnon’s appropriate remedy is grievances and then judicial review at the Federal Court. [ 54 ] I agree.

The application for an order relating to communication with the media is denied. This had no place in or potential relevance to a habeas corpus application, and is therefore an abuse of court processes. 4. Scheduling of the Habeas Corpus Hearing and the Hearing Justice

[ 55 ] MacKinnon proposed an accelerated timeline for the hearing that would address whether his release should be ordered via habeas corpus . The Attorney General responds that this request was unreasonable as this would cause changes to already scheduled dates. I conclude this issue is moot since this matter has been rescheduled and delayed repeatedly, and I have seized myself to hear the habeas corpus application itself on October 12, 2017. [ 56 ] MacKinnon’s request to have Shelley J hear the application proper is also therefore moot. 5.

Property-Related Complaints [ 57 ] MacKinnon in the Notice, the additional post-June 21, 2017 filings, and at the September 7, 2017 hearing complained that he is unable to access his property. He alleges that this property had been mishandled by Correctional Service Canada. He wants an inventory of those materials, and stressed that his property includes items important to his challenge of his criminal conviction.

MacKinnon alleges a conspiracy in relation to these items: the Harper (conservative) government nationally (and quietly behind the scenes) directed for the arbitrary, unfair, malicious, oppressive or unconstitutional seizures (most unreported), like thefts, on an ongoing and persistent basis, of properties or people in custody - and with utter disrespect and disregard to laws, policies and other common laws etc ... in the national process/direction by the conservatives to “Make them suffer” for their crimes [through the removal of personal properties]; [ 58 ] The Respondent entered an Affidavit of Diane Ozipko, which describes MacKinnon’s property, over 28 boxes of paperwork, two pallet-loads in total, and how Edmonton Institution staff in May and June 2017 attempted to assist MacKinnon to locate and copy items from those boxes.

The result of those efforts amounted to seven laundry bags of paperwork. [ 59 ] Prisoner’s property is neither a right protected under habeas corpus , nor under the Charter : McCargar v Canada , at paras 65- 66 ; Badger v Canada , at paras 19-20 . This subject has no place in MacKinnon’s habeas corpus application. It too is an abuse of process. If MacKinnon has complaints concerning his property those should be directed to the Correctional Service Canada grievance process or judicial review in Federal Court. 6.

Disclosure of Prison Records [ 60 ] What probably is the most disputed point in relation to MacKinnon’s habeas corpus application is that he demands an order that Correctional Service Canada provide him with his entire records since his admission into prison.

He, in brief, says these materials are relevant because of the general pattern that he is certain will emerge from these materials, and that these items are important for his parole applications. [ 61 ] MacKinnon explained on September 7, 2017 that everything is connected, from his allegedly unjust conviction through to his experiences as an inmate, and to the present situation. He explained this interconnectivity as a series of dominos.

His present situation is a consequence of politics, flowing through his entire period of incarceration. [ 62 ] The Attorney General notes MacKinnon’s record is a massive amount of material, 43 volumes, and that these items would need to be vetted for security-related and private information. The Respondent’s position is that the Certified Record contains all necessary items, and in fact discloses more than what is required in the circumstance, per Mission Institution v Khela . The only relevant information for this habeas corpus application is that which relates to the specific decision that is being challenged.

Further, MacKinnon has not identified any specific items or materials that are missing from that record. [ 63 ] Since I have clarified the scope of MacKinnon’s valid bases to challenge his transfer it is obvious that the large-scale disclosure demanded by MacKinnon is unnecessary, since the mass volume of material is simply irrelevant to the grounds to challenge his loss of residual deprivation of liberty. The Certified Record contains all the necessary materials. I therefore refuse his application for additional disclosure. The same is true for MacKinnon’s claims that Correctional Service Canada is in contempt.

If MacKinnon wishes to allege that, he should bring a contempt application in the appropriate court. [ 64 ] To be clear, I vacate any previous direction made in this matter to Correctional Service Canada and/or the Attorney General to disclose additional materials or documents to MacKinnon or to assist MacKinnon to locate any items in his property. He has had an adequate opportunity to identify what he needs, particularly in light of the true scope of his challenge to the inter-prison transfer. 7.

Issues of Safety and MacKinnon’s Location in the Edmonton Institution [ 65 ] MacKinnon makes an ill-defined demand that this Court make directions concerning his safety, health, and in relation to his hunger strike and its “... debilitating effects upon him spiritually & especially physically ...”. He should be housed in a specific cell in the Healthcare unit of the Edmonton Institution. [ 66 ] This application is unrelated to habeas corpus and its being included in the June 21, 2017 Motion is an abuse of court processes.

MacKinnon should direct his complaints to Correctional Service Canada, the Edmonton Institution, and the Federal Courts. 8.

Encouraging the Respondents [ 67 ] Another remedy sought by MacKinnon is better reproduced in full than described: encouragement by this Honourable Court upon the Respondents to, without any further ignoring, nor delays, nor difference(s); address, with the Applicant, each itemized issue set out by the Applicant as base/core reasons/issues behind his starvation/Hunger strike; [in hopes of some resolve thereto, and which may lead to his ending said strike - before it is too late, in said strike]; [Emphasis in original.] [ 68 ] This too is unrelated to habeas corpus and its being included in the June 21, 2017 Motion is an abuse of court processes.

This

Court has no role in structuring MacKinnon’s interactions with Correctional Service Canada and the Edmonton Institution. 9. Amendments [ 69 ] MacKinnon seeks to have the style of cause for this application amended and to add latin terminology to the original habeas corpus application. These amendments are unnecessary since: 1. the Respondent to this action is adequately identified and 2. this Court will not fail to grant an adequate and appropriate remedy due to technical deficiencies in the Originating Application. C.

Conclusion [ 70 ] I therefore deny MacKinnon’s applications for relief and court orders advanced in the June 21, 2017 Notice. No further steps are necessary or appropriate prior to the October 12, 2017 hearing to determine whether the Court should invoke habeas corpus and order that MacKinnon is returned to the Bowden Institution. [ 71 ] As I have previously explained, habeas corpus is only effective as a remedy when that procedure operates in an expedient manner. In that sense this proceeding has been a failure. This has not been a timely habeas corpus procedure.

By the October 12, 2017 hearing date this application will have been before the Court for over five months. Bluntly, this slow progress to resolution defeats the purpose of this Charter remedy, and means the prioritized treatment received by this application was a waste. [ 72 ] There have been multiple hearings before judges of this court, most of which resolved nothing. The cause of that delay is MacKinnon alone. His demands for additional disclosure, legal representation, additional time, and then the June 21, 2017 Notice are what has dragged out this process.

So has the bad drafting in the original habeas corpus application; that document imposed an impossible claim on the Respondent to which it could not provide an answer. [ 73 ] It would have been helpful if the steps I have taken to clarify the actual valid issues in play had occurred at an earlier point. Without intending any criticism of brother and sister Justices, I agree with Shelley J who in Badger v Canada at para 43 concluded that a judge who reviews a habeas corpus application should immediately strike out aspects of that application that are improperly composed or which do not plead the necessary facts.

I note that this proactive approach to habeas corpus has already been indicated for other fatal defects in these applications, such as for habeas corpus applications that have multiple applicants ( McCargar v Canada , at paras 9-25 ; Badger v Canada , at paras 10-15 ), or which relate to persons detained outside of Alberta ( R v Gamble , at paras 48-50 ; Ewanchuk v Canada (Attorney General) , at para 28 ; R v Blanchard , 2011 ABCA 89 at para 7 , 502 AR 154). [ 74 ] Another issue is that many of the remedies sought by MacKinnon in the Notice were unrelated to his challenge to a loss of residual liberty and abused this Court’s processes.

Unfortunately, this is not so unusual. Many recent habeas corpus judgments of this Court involve applications where the habeas corpus process is being misused, or involve applicants who attempt to camouflage civil actions under the guise of habeas corpus , for example: Ewanchuk v Canada (Attorney General) ; McCargar v Canada ; Badger v Canada . [ 75 ] I am now taking strict steps to ensure that MacKinnon’s habeas corpus rights are discharged in as timely a manner as possible, and to provide focus to this application, which has unfortunately experienced unnecessary and inappropriate delays. VI.

The Next Steps [ 76 ] Moving forward in this action and in preparation for the October 12, 2017 hearing, I order that any argument made in relation to the legality of MacKinnon’s transfer to the Edmonton Institution must be limited to only three issues: 1. Do the reasons provided by the Respondent include “no basis” for transfer of MacKinnon from the Bowden Institution to the Edmonton Institution? 2. Could the decision maker who ordered the transfer make that transfer on the basis of alleged facts concerning the “brew”, although the alleged “brew” was not subjected to chemical testing? 3.

Did the decision maker ignore the issue of MacKinnon’s safety at the transfer destination, the Edmonton Institution? [ 77 ] The Attorney General may make additional written submissions, which must be filed by September 29, 2017. MacKinnon may make reply and rebuttal submissions to the Attorney General, with a filing deadline of October 6, 2017. [ 78 ] I stress to MacKinnon that any submissions he makes should relate to these three points only . He is prohibited from making any further applications prior to the October 12, 2017 hearing. I make this order to give effect to his Charter , s 10(

c) right to a timely review of his allegedly illegal detention. VII. Costs [ 79 ] The Respondent seeks costs of $1,000.00, payable forthwith, in the event I dismiss MacKinnon’s “Notice”. I have done so. [ 80 ] 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 application is well

established: Rain v Canada (Parole Board) , at paras 8-13 ; Voisey v Canada (Attorney General) , 2016 ABQB 316 at paras 29-35 ; Hamm v Morgan (Last Name Unknown) , 2017 ABQB 156 at paras 23-24 ; Ewanchuk v Canada (Attorney General) , at paras 72-73 ; R v McCargar , at paras 101-103; R v Badger , at paras 44-45; Willis v Attorney General of Canada , 2017 ABQB 540 at paras 25-26 . [ 81 ] MacKinnon’s Notice includes a number of remedies that not only were denied, but could never be made available via habeas corpus .

In this sense MacKinnon has ‘hotwired’ this proceeding in an attempt to obtained results unrelated to his transfer to the Edmonton Institution. For example, MacKinnon was quite forthright about why he wants his complete CSC records. He wants them to prepare for parole applications and for some form of challenge to his original second degree murder conviction. The Notice attempts to dragoon this Court into acting in relation to his hunger strike, and other complaints with Correctional Service Canada. [ 82 ] MacKinnon filed voluminous documents, most of which were irrelevant.

What should have been a simple, expedient procedure has required multiple hearings and appearances by counsel for the Attorney General. [ 83 ] I therefore have no difficulty in awarding the $1,000.00 in costs against MacKinnon that was sought by the Respondent. These costs are to be paid forthwith. VIII. Problematic Activities by eLaw Alliance [ 84 ] As I have previously explained, the April 28, 2017 Application filed by Herman Jhangri and the eLaw Alliance was problematic. The bald allegations in the April 28, 2017 Application were an abuse of court processes: kisikawpimootewin v Canada .

The fact that a badly defective document initiated a habeas corpus application makes that misstep that much more serious: Ewanchuk v Canada (Attorney General) at paras 170-87 ; Re Gauthier , 2017 ABQB 555 at para 82 . [ 85 ] Recently Thomas J of this Court in 1985 Sawridge Trust v Alberta (Public Trustee) , 2017 ABQB 530 , conducted a comprehensive review of the law concerning when a costs award should be paid by a lawyer, personally, rather than the lawyer’s client.

In that decision Justice Thomas concluded at para 109 that misuse of the habeas corpus procedure is presumptively “serious abuse” of court processes ... abuse of this procedure has a cascading negative effect on court function. Further, the potential basis and remedy for habeas corpus is extremely specific and specialized. Habeas corpus may only be used to challenge a decision to restrict a person’s liberty. The only remedy that may result is release. A lawyer who makes a habeas corpus application which does not meet those criteria can expect the possibility of a personal costs award.

This kind of application is “serious abuse” because of how it damages the court’s effective and efficient functioning. [ 86 ] I agree. I caution Mr. Jhangri and the eLaw Alliance that their duties to this Court include not filing documents that advance abusive claims, and recommend that in the future they exercise care when composing and filing an originating notice that initiates a habeas corpus proceeding. Heard on the 7 th day of September, 2017. Dated at the City of Edmonton, Alberta this 26 th day of September, 2017. Don J. Manderscheid J.C.Q.B.A.

Appearances: Kevin Charles MacKinnon for the Self-Represented Litigant Jennifer Lee Department of Justice Canada Prairie Region, Edmonton Office for the Respondent