Loughlin v Her Majesty the Queen, 2017 ABQB 677

Court of Queen’s Bench of Alberta Citation: Loughlin v Her Majesty the Queen, 2017 ABQB 677 Date: 20171108 Docket: 1703 16752 Registry: Edmonton Between: Ashlin James Dale Loughlin Applicant - and - Her Majesty the Queen Respondent _______________________________________________________ Memorandum of Decision of the Honourable Madam Justice D.L. Shelley _______________________________________________________ I.

Introduction [ 1 ] On August 22, 2017 Ashlin James Dale Loughlin, a prisoner at the Bowden Institution, filed three documents: • an “Application for Habeas Corpus With Certiorari in Aid to Order the Release of the Applicant back to minimum security. (Urgent and exceptional case that requires immediate release)” • an “Affidavit” that states Mr. Loughlin is detained at the Bowden Institution, and that he: ... was ordered back into custody by my parole officer.

I was denied my right to council and was not given written reasons for my detainment and the right to contact my counsel immediately. • one titled “Oral Submissions to the Court of Queen’s Bench Justice Hearing this Writ of Habeas Corpus.” [ 2 ] The content of these documents is confusing. The Affidavit seems to indicate that Mr. Loughlin was put into “custody”, and the Application title suggests a transfer from “minimum security” to some other condition or state. The Oral Submissions allege Mr.

Loughlin is “in fact treated as a second class citizen in that his rights don’t count”, “This is prejudice at its highest level because the applicant is considered a second or third class citizen.”, and:

That the procedural rights of the applicant were totally ignored as if this applicant had no rights. He received no immediate reasons as to why he was locked up and detained; he was not given written reasons as to why he was detained; he was not permitted to write a response to? (No reasons) whatever he was detained for; he was not read his Miranda rights or cautioned; he was not allowed to contact counsel nor cautioned that he had the right to contact counsel. That no new risk assessment or matrix was done before suspension. He was denied all these procedural rights.

On top of all his transfer was both called an involuntary and emergency. Which is it so he can properly address it? I note that “Miranda rights” are a US legal concept. [ 3 ] The Application contains many different complaints. Mr. Loughlin alleges that his parole officer, James Federley, takes urine samples for Bowden inmates in private cells: ... this has been a difficult time for this applicant because his parole officer Mr. James Federley has been improperly taking urine samples off of inmates while at the Bowden Medium setting.

He would go into private cells and take these samples without other guards present and not following protocol while at the Bowden Medium. Not only has it been difficult but that this parole officer was difficult to deal with and seemed angry with this applicant and unreasonable. The protocol for taking samples is done by staff well trained for this and in the proper setting. The inmate’s cell is never used for doing this as was done by James Federley. This just opens the door for abuse and now there are charges regarding this behavior that did not follow protocol.

No explanation is given as to why this is relevant. Mr. Loughlin does not, for example, say he was required to provide a urine sample by Mr. Federley. Nor does the Application indicate Mr. Loughlin was identified in this manner as having used drugs or other contraband. [ 4 ] Mr. Loughlin’s Application also mentions that a psychiatrist named “Doctor Levine” was “... sexually assaulting inmates and it took a smuggled in watch camera to get pictures of Levine sexually assaulting inmates.” The Application indicates this individual was found guilty and sentenced to 4.5 years. In fact, Dr.

Levin was convicted of some charges and sentenced to five years’ incarceration: R v Levin , 2014 ABCA 142 , 572 AR 382, leave to appeal to SCC refused, 35930 (23 October 2014). However, there is no explanation of why Dr. Levin would be relevant to Mr. Loughlin or how Mr. Loughlin ended up in “custody” or was transferred from “minimum security”. [ 5 ] The Application complains that Correctional Service Canada ‘illegally labeled’ Mr. Loughlin’s community support person as a criminal. Mr. Loughlin says that was not true.

Further: THAT THERE WAS NO legal right to exclude this common law spouse from his phone card and by doing so they created a volatile situation to force the applicant to use other methods to contact his community support. He tried to get phone calls set up by staff to call his community support (common-law) but they all refused and made his situation emotionally charged for no valid reason. This was a complete set up for failure for this applicant by CSC arbitrarily removing his community support from his phone card.

They acted unreasonably and illegally violating s. 2; s. 7; s. 9; s. 10; s.11 of the Charter. [Emphasis in original.] [ 6 ] No explanation is provided on how this communications restriction by Correctional Service Canada had breached Mr. Loughlin’s Charter rights as set out in the sections referenced by Mr. Loughlin. [ 7 ] This occurs at other times in the Application, where Mr.

Loughlin claims his Charter rights are breached but does not particularize how, and the breaches complained of are difficult or impossible to align with the complaint. [ 8 ] Other complaints in the Application seem to be that something is unconstitutional (paras 17-20, 24): That deprivation of residual liberty is for the habeas corpus writ, and not for some other process that would delay and keep someone in custody longer than a habeas corpus order that would and could be granted in 10 to fifteen days after it is filed with the courts.

That is the whole purpose of the Writ of Habeas corpus, is to free someone expediently from an unlawful decision; unlawful detention or detainment. That means just days and not months or a year that could easily occur under a process such as a parole appeal or FCC judicial review. That because some Justices are forcing applications to go the process of grievance process, that process must be declared unconstitutional because of their illegal rulings that violate the very purpose habeas corpus was designed to accomplish for someone whose liberty is at stake.

Expediency here is the key and anything short of that cannot replace habeas corpus and its intended purpose. To do another process first is against the right of habeas corpus that is guaranteed under the Charter. THAT THIS ARGUMENT THAT THE grievance process and parole appeal process and judicial review of the FCC in unlawful detainments or unlawful detention through those avenues are not a complete; comprehensive and expedient process, and those processes must be declared unconstitutional when they attempt to compete with the total completeness of habeas corpus with certiorari in aid.

THAT SOME JUSTICES ARE RULING THAT INMATES that have their parole suspended or minimum security suspended, must first follow the process of a grievance or the appeal through the parole appeal process, before an application for Habeas corpus can be heard. In the D.G. v. Bowden 2016 ABCA ruled that both the FCC and the grievance appeal process is not a complete, comprehensive and expedient process.

My submissions and strong argument to those decisions is that then the grievance process and the Judicial review process to the FCC must be declared unconstitutional if that is the way rulings are going to abuse the charter right of Habeas corpus right under s. 10, c, of the charter.

To rule that the parole appeal or grievance process which is not complete; comprehensive or expert and expedient must precede before habeas corpus can be applied for, under the charter, is against s. 10, c, of the charter and therefore the grievance and the parole appeal process must be declared unconstitutional. In fact in Khela the SCC at [42] clearly state that the Attorney General in that decision did not even attempt to prove that there existed a complete; comprehensive and expert procedure. The same has not been done for the grievance process or the parole appeal process. ...

THAT THIS APPLICANT DEMANDS THAT THE STATUTES THAT ARE TEMPORARILY DELAYING THE RIGHT OF HABEAS CORPUS TO BE HEARD, BECAUSE OF SOME JUSTICE’S RULINGS THAT FIRST THE GRIEVANCE PROCESS MUST GO THROUGH or THE PAROLE APPEAL PROCESS OR TO GO THROUGH JUDICIAL REVIEW OF THE FCC, THAT THEY BE DECLARED UNCONSITUTIONAL.( emphasis added) This quoted passage reproduces the formatting of the Application, including the “emphasis added” notation. [ 9 ] The Application later indicates Mr. Loughlin “... is however being gracious to the parole board and giving them only the same time frame to correct this. ...”.

Then, in the next paragraph, Mr. Loughlin says he is “... NONE THE LESS, giving the Warden at Bowden 30 days to respond even though his arguments state that the grievance process is unconstitutional if forced to go through it first. ...” [emphasis in original]. [ 10 ] The Application closes with a request for a Remedy: The applicant asks that the writ be granted and that the applicant be ordered released back into minimum within five days of this order.

That he also be ordered back to the same minimum security as before and that further remedies of compensation be granted in the form of costs for this application, and for costs of lost residual liberty for the time he has spent unnecessarily in medium security, deprivation of contact with his community support that caused this issue, under s. 24 of the charter as relief. [ 11 ] The Attorney General of Canada [Attorney General] responded on behalf of the Respondent. On September 15, 2017, it filed a Certified Record in relation to Mr. Loughlin’s complaint, followed by a written argument on October 5, 2017.

The Attorney General’s materials provided a more detailed narrative of the events which might had been the factual basis for Mr. Loughlin’s habeas corpus application: 1. Mr. Loughlin was held in minimum security at the Bowden Institution. 2. In March 2017, Correctional Service Canada security intelligence determined that Mr. Loughlin was communicating by phone with his common-law spouse and a former Bowden Institution inmate and gang member. The former inmate and Mr. Loughlin’s common-law spouse were cohabiting.

Both were arrested after a raid of the common-law spouse’s residence located stolen firearms and a range of illegal narcotics. Telephone intercepts showed Mr. Loughlin knew there were drugs in the residence. 3. When confronted with this information, Mr. Loughlin first lied, saying he knew nothing about these illegal activities, but confessed he had lied after being confronted with the intercepts. 4. Mr. Loughlin was also informed that he had been detected using three-way calls and other inmates’ phone accounts in breach of institutional rules. Mr. Loughlin admitted he had done that.

His phone privileges were suspended for 30 days. Mr. Loughlin apologized for his misconduct and promised he would follow institutional rules. 5. Within one week, Mr. Loughlin was detected continuing to use three-way calls and another inmate’s phone account to circumvent the phone privilege suspension. Those phone intercepts indicated Mr. Loughlin was engaged in illegal activities, trading in contraband in the Bowden Institution, and gang activities. 6. On April 5, 2017, Mr. Loughlin was reclassified as a medium security risk and transferred to the medium security unit of the Bowden Institution. The next day, Mr.

Loughlin received documentation which explained the reclassification and transfer. That documentation indicates that Mr. Loughlin was notified of his rights. He was given a reasonable opportunity to retain and instruct counsel, and to make an in-person rebuttal of the reclassification and transfer. 7. Mr. Loughlin presented an in-person rebuttal to the Warden and Deputy Warden on April 10, 2017, and a written rebuttal three days later. The reclassification and transfer were made final on April 19, 2017. Mr. Loughlin received written reasons the following day. The final transfer decision notes that Mr.

Loughlin is a convicted drug trafficker, and that gang association is a risk factor for him. Mr. Loughlin had re-established gang connections, and then evaded steps to control his telephone restrictions. This warranted him being placed into medium security. [ 12 ] The Attorney General acknowledges that Mr. Loughlin experienced a deprivation of residual liberty when he was transferred from minimum to medium security in the Bowden Institution. The Attorney General interpreted Mr. Loughlin’s habeas corpus application as a challenge that the decision to take that step was correct in law.

The Attorney General acknowledges the onus is therefore on the Respondent to prove that Mr. Loughlin’s loss of residual liberty was lawful. [ 13 ] The Respondent’s position is that the reclassification was procedurally fair, conforms to the requirements of Corrections and Conditional Release Act , SC 1992, c 20, ss, 27(1), 30 and Corrections and Conditional Release Regulations , SOR/92-620, ss 13(2), 17- 18, and was reasonable. Correctional Service Canada decision-makers are due deference given their knowledge and expertise: Mission Institution v Khela , 2014 SCC 24 at para 75-76 , [2014] 1 SCR 502.

[ 14 ] The Respondent submits that the s 24 Charter relief sought by Mr. Loughlin is not possible. His only remedy is release into the pre-detention state: Mission Institution v Khela at paras 1, 38-39 ; Ewanchuk v Canada (Attorney General) , 2017 ABQB 237 at para 35 , 54 Alta LR (6th) 135, appeal abandoned, Edmonton 1603-0287AC (Alta CA). Mr. Loughlin’s habeas corpus application should be dismissed with costs. II. The October 13, 2017 Hearing [ 15 ] Mr. Loughlin and counsel for the Attorney General appeared before me on October 13, 2017. At the beginning of the hearing I inquired as to an earlier request by Mr.

Loughlin for an adjournment. He indicated he had instead decided to proceed. [ 16 ] Given the nature of his written materials, at the October 13, 2017 hearing I attempted to clarify the exact nature of Mr. Loughlin’s complaint. Several facts became apparent. One was that the Attorney General had correctly identified the detention that Mr. Loughlin had sought to challenge; that is, his move in April 2017 from minimum to medium security within the Bowden Institution. [ 17 ] Mr. Loughlin argued the evidence against him was just “hearsay”, and cannot be relied upon: that is “evidence that isn’t evidence.” Mr.

Loughlin, however, admitted his misuse of telephone calls. He agreed that was wrong and against the institutional rules. He also admitted he told his correctional officer that he would disobey those rules unless he could phone his common-law partner. Mr. Loughlin acknowledged he was caught breaking those rules, had apologized, but then did continue to make unauthorized telephone calls. He denied his partner was a criminal. He maintains she is not a criminal because she had not been convicted of offences relating to the raid on her residence. [ 18 ] Mr.

Loughlin argued his admitted misconduct was not serious enough to warrant reclassification. He submitted that his actions could not result in the number of ‘points’ that would justify medium security detention. [ 19 ] Mr. Loughlin also complained that he had not been handcuffed when he was transferred from minimum to medium security. Mr. Loughlin says he should have been handcuffed. He argued the fact he was not handcuffed meant the transfer must have been improper; the Bowden Institution had not followed procedure in conducting an “emergency transfer”. This “confused” Mr.

Loughlin as to what was really going on and breached his rights. [ 20 ] Mr. Loughlin also submitted he was denied a right to access counsel, but could not explain the basis for why that was his legal right. In any case, he argued that defect made the transfer decision unfair and uninformed. He did acknowledge he had completed a form acknowledging he had been informed of his right to access counsel and was given an opportunity to do that. In Mr. Loughlin’s rebuttal it came to light that Mr.

Loughlin had another inmate call a Red Deer lawyer, and that lawyer had allegedly said that the right to access counsel must precede a transfer. Mr. Loughlin admitted that advice might be wrong, or that the message he received might have been wrong. I note Mr. Loughlin’s evidence on this point is hearsay and presumptively inadmissible. [ 21 ] I attempted to clarify the many confusing aspects of the Application. For example, when I asked Mr. Loughlin why Dr. Levin was relevant, Mr.

Loughlin answered: It was just to be based as an example that there its not the first time that somebody with similar charges upholding with them in the court, or in the institution. When I inquired further he then admitted, “I guess it doesn’t.” [ 22 ] When I asked about the Application seeking some kind of constitutional relief, that some legislation be declared unconstitutional, Mr. Loughlin replied: I don’t even know how to phrase it. ...

Well, like I said it’s an application that I had help with from another institutional inmate who had done them in the past, cause I didn’t have the funds to retain a lawyer and be able to take this the proper route. So, I’m kinda at a loss for some of the things that you are saying, like when you’re saying the statures [sic], like it doesn’t makes sense to me. [ 23 ] I asked how I and the Attorney General could respond to these materials. Mr. Loughlin said he didn’t know. Mr. Loughlin asked where the constitutional complaints were found in his documents. I pointed out the relevant paragraphs and reminded Mr.

Loughlin that this was his application. Mr. Loughlin then disclosed someone else had “typed out” the application into this format. That led to this exchange: Q: So you decided on your own that you wanted the court to strike down as unconstitutional certain statutes or certain procedures under statutes? How’d you come up with that? Can you point me to the legislation you were looking at when you wanted it to be declared unconstitutional? ... A: I don’t even know what you mean by that. [ 24 ] I inquired: “If you can’t explain that to me, how can I possibly entertain your application?” Mr.

Loughlin gave no answer. [ 25 ] I then read out paragraph 24 of the “Application” (reproduced above) and asked what Mr. Loughlin wanted. Mr. Loughlin replied it meant he should be returned to minimum security. I pointed out that had nothing to do with paragraph 24. Mr. Loughlin replied: A. I honestly don’t understand this. Q. You don’t understand it.

A. The last few paragraphs, no. Q. You don’t understand a whole bunch of this? A. Like, the first 15 paragraphs is all stuff relating towards me, and the rest of it is, in my eyes, is thought it was more of what I was asking for, I thought that I was describing it in some sense. Q. But you don’t actually know what it meant. A. I don’t understand the law terms towards a lot of the things. [ 26 ] I read out paragraph 20, and asked Mr. Loughlin if he knew what that meant. He answered “Not exactly.” I asked why he mentioned the Parole Board of Canada, and was being gracious to it.

He said: I think that was along the lines of I was pushing along my parole, because of this. Mr. Loughlin then acknowledged this application had nothing to do with the Parole Board, or parole-related issues. [ 27 ] I observed this was Mr. Loughlin’s habeas corpus application, but: “You can’t tell what large chunks of it even mean?” He answered “I guess so.” [ 28 ] The Attorney General explained that a tip had led to the investigation of Mr. Loughlin’s telephone activities, but the intercepts that followed were concrete evidence. The same process occurred later and detected Mr.

Loughlin bypassing his ban on telephone calls. This was not “hearsay”. [ 29 ] As for the issue of being informed of a right to access and consult counsel, the emergency transfer form included data that Mr. Loughlin had indicated he had been informed of that right. Section 97(2) of the Corrections and Conditional Release Regulations requires in this circumstance that an “inmate is given a reasonable opportunity to retain and instruct legal counsel without delay”, but there is no 48 hour requirement. [ 30 ] The Respondent noted that Mr.

Loughlin knew he had been caught breaking institutional rules when he made three-way calls. He was sanctioned for that. He had his phone privileges suspended. Mr. Loughlin clearly knew that his continued breach of those rules could have consequences. He was warned of that. Mr. Loughlin cannot now reasonably complain about this decision and result. [ 31 ] Deference should be owed to the decision-maker. Here there was a clear basis for Mr. Loughlin to be reclassified and transferred. Gang affiliation was a key issue with Mr. Loughlin. The ‘points’ system that Mr.

Loughlin identifies is simply a classification tool, but not the only relevant and determinative mechanism to classify an inmate. [ 32 ] The Attorney General pointed out that Mr. Loughlin has not used the Correctional Service Canada grievance process to challenge the issues that he has identified in his habeas corpus application. Mr. Loughlin had, however, used the rebuttal process provided for in the transfer process. The Attorney General recognized that Mr.

Loughlin’s right to habeas corpus is not dependent on him exhausting those ‘internal’ grievance and judicial review processes. [ 33 ] The question of costs was reserved until after I issued my decision. III. Analysis [ 34 ] I will not respond to Mr. Loughlin’s constitutional challenges and Charter complaints as he provided no notice of those and because he could not explain what he sought in these parts of his “Application”. That leaves the issue of whether the Respondent has proven the legality of the admitted loss of residual liberty experienced by Mr.

Loughlin. [ 35 ] The law concerning habeas corpus as a remedy for prison inmates is set in Mission Institution v Khela . A person applying for relief via habeas corpus must: 1. prove on a balance of probabilities that the applicant has experienced a loss of freedom, and 2. identify a basis on which to allege that the loss of freedom was unlawful. [ 36 ] Where those preconditions are met, the onus shifts to the government body to prove on a balance of probabilities that a detention is lawful.

If that does not occur, then the detained individual must be released or re-instated to his prior position. [ 37 ] This Court’s review of detention is analogous to a judicial review. A judge hearing a habeas corpus application does not have the authority to substitute his or her own conclusion for what might be right or wrong in a given circumstance. Instead, decisions made by Correctional Service Canada in relation to inmates and detainees are due deference by a reviewing court: Mission Institution v Khela at paras 65, 74-75 .

Justice Lebel stressed the reviewing court tests whether a decision is “reasonable, and therefore lawful”. Any deeper intrusion into the operations of Correctional Service Canada would lead to “micromanagement of prisons by the courts”. That is not the Court’s function.

[38] A reasonable decision is one that falls within the “range of possible, acceptable outcomes which are defensible in respect ofthe 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, intelligible, and logically connected to the result: Mission Institution v Khela, atpara 73; Newfoundland and Labrador Nurses’ Union v Newfoundland and Labrador (Treasury Board), 2011 SCC 62 at para 12,[2011] 3 SCR 708.

Any review of a decision of this kind should view the decision as “an organic whole, without a line-by-line treasurehunt for error”, and whether that decision is reasonable given the record: Communications, Energy and Paperworkers Union ofCanada, Local 30 v Irving Pulp & Paper, Ltd, 2013 SCC 34 at para 54, [2013] 2 SCR 458. [39] In Biever v Edmonton Remand Centre, 2015 ABQB 609 at para 41, Germain J explained that the discretion of those whomanage incarcerated persons 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. TheDirector must protect the inmates, the physical plant of the institution, and the many people who are employed there. That is a difficultbalancing task. It requires sensitivity, integrity, and ingenuity.

The Court should be reluctant to micromanage through the prerogativewrit of habeas corpus, or judicial declaration, the day-to-day workings of the ERC. [40] A decision must also be correct in law, which has two parts: 1. the decision must be one that is authorized by the relevant legislation, here the Corrections and Conditional Release Act, and 2. the decision must have been made in a manner that provides adequate procedural fairness: Baker v Canada (Minister ofCitizenship and Immigration), (SCC), [1999] 2 SCR 817, 174 DLR (4th) 193. [41] Habeas corpus is only relevant to current and ongoing detention.

It does not apply to hypothetical future detention, or historicdetentions: Cundell v Bowden Institution, 2016 ABQB 348 at para 37, Dumas v Leclerc Institute, (SCC), [1986] 2SCR 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).“Habeas corpus is only a remedy for the here and now.”: Ewanchuk v Canada (Attorney General), at para 23. [42] Mr. Loughlin is in a medium security facility as a consequence of the final April 19, 2017 decision.

That means Mr.Loughlin’s complaints concerning ‘upstream’ decisions or reasons are irrelevant. [43] In relation to Mr. Loughlin’s argument he did not have the Corrections and Conditional Release Regulations, s 97 notice ofthe right to counsel, or the opportunity to exercise that right, I conclude that Mr. Loughlin was informed of that right, and given theopportunity to exercise it. The documentary records supports this conclusion, and Mr. Loughlin admitted it. Mr.

Loughlin alsoacknowledged he had no basis to claim that the process followed by the Bowden Institution staff was contrary to legislation. [44] As for his claim that the transfer procedure was not followed because he was not handcuffed, this is no basis for complaint.Instead, that is a courtesy, which was extended to Mr. Loughlin because he was not seen as a flight risk. While handcuffing is too trivialand transient to qualify as a detention that is protected via habeas corpus (Ewanchuk v Canada (Attorney General), at paras 39-41;Gogan v Attorney General of Canada, 2017 ABQB 609 at paras 43-62), what Mr.

Loughlin is complaining about is the absence ofrestriction. That is not a basis for habeas corpus. [45] This leaves one point, and that is whether the phone intercept record is a sufficient, reasonable basis for Mr. Loughlin to havebeen reclassified. Mr. Loughlin was caught breaking institutional rules. He was warned to stop doing that. Mr. Loughlin agrees heapologized for that misconduct, but then continued to breach institutional rules. Issues of weighing fact, and the choice of an appropriateresponse to an admitted breach of institutional rules is due deference.

I conclude the April 19, 2017 reclassification and transfer falls intothe “range of possible, acceptable outcomes which are defensible in respect of the facts and law”. [46] Mr. Loughlin’s habeas corpus application is therefore denied. IV. Observations [47] I am one of a number of judges of the Alberta Court of Queen’s Bench who have been tasked to receive and review habeascorpus applications. I am therefore generally aware of how the Charter, s 10(

c) right to habeas corpus is being exercised in this Court.The frequency of these applications from persons held in Alberta prisons and remand centres has undergone a dramatic increase since therelease of the Mission Institution v Khela decision. [48] The overwhelming majority of these applications have had no merit. Many complain about prison conditions such as allegedlybad food and rude guards, or demand services: e.g. Ewanchuk v Canada (Attorney General); McCargar v Canada, 2017 ABQB 416;Badger v Canada, 2017 ABQB 457.

Others are statements of claim disguised as habeas corpus applications. [49] As Thomas J observed in Ewanchuk v Canada (Attorney General) at paras 170-187, pointless applications of this kind are aserious abuse of court processes, because when a person makes a habeas corpus application that takes priority over all other Queen’sBench functions. The result is that other persons trying to access this Court are ‘bumped down the queue’. That is a very serious issuefor this Court, given its inadequate judicial complement and staffing.

[ 50 ] Since Justice Thomas made that observation, the issue of abusive habeas corpus applications has only become worse. One subsequent development is the appearance of ‘carbon copy’ applications. For example, in Badger v Canada , I observed that two inmates had filed essentially identical applications and supporting materials that were written in what appeared to be very similar handwriting. The inmates said that was a coincidence. I also noted in Badger v Canada that the complaints used duplicate language to other applications made from the same institution in McCargar v Canada .

McCargar v Canada reports that one inmate at the Edmonton Institution, Brook McCargar, openly admitted to preparing other inmates’ materials. Mr. McCargar sought to represent them and prepare and file their materials. He was found in contempt of court instructions that he cannot do that since Mr. McCargar is not a lawyer: McCargar v Canada , at paras 104-109 . Mr. McCargar is now facing court access restriction as a vexatious litigant. [ 51 ] This issue is not restricted to Alberta. Other courts are also encountering inmates who have turned habeas corpus into a kind of business or trade: e.g.

Jones v Mountain Institution (Warden) , 2017 BCSC 1304 . [ 52 ] As is apparent from my inquiries to Mr. Loughlin concerning his documents, and particularly the Application, he did not understand and could not explain the substance of much of what he seemed to demand. He openly acknowledged an unidentified inmate, who had made other habeas corpus applications, had helped in the preparation of these documents. It appears that Mr. Loughlin in not the only one being assisted in this manner at the Bowden Institution.

For example, on October 24, 2017, Hillier J struck out a meritless habeas corpus application in Hart v Her Majesty the Queen (24 October 2017), Edmonton 1703 18189 (Alta QB). Much of the text and formatting of the Hart and Loughlin documents is the same. For example, “Application” paragraphs 17-24, which Mr.

Loughlin could not explain, are duplicated almost word-for-word in paragraphs 30-32 of the corresponding Hart “Application” [ 53 ] Willis v Attorney General of Canada , 2017 ABQB 540 at paras 9 , 27 reproduces passages from an earlier and meritless habeas corpus where the applicant, another prisoner at Bowden Institution, had his habeas corpus application rejected. These also parallel the Hart and Loughlin documents.

Like the Hart and Loughlin applications, the Willis application attached a document titled “Oral Submissions in the Court of Queen’s Bench Justice Hearing this Writ of Habeas Corpus ”. [ 54 ] In his oral reasons, Justice Hillier stressed that the law being challenged in the Hart application is clear and not in dispute. Repeated applications from Bowden Institution have failed on the exact same point. Willis v Attorney General of Canada involved the same challenges.

In that decision, Justice Manderscheid concluded, at para 26, that the habeas corpus applicant “...was well aware that his habeas corpus filings were futile. ...”. He filed it anyway. This was “... therefore yet another example of the hopeless and abusive habeas corpus applications that are clogging this Court and disrupting its operation ...”. [ 55 ] There are other similar habeas corpus applications from the Bowden Institution still to be heard. [ 56 ] Mr. Loughlin’s application was in one sense more valid than the Willis and Hart applications. The Court did not even take jurisdiction in those matters.

However, that does not mean Mr. Loughlin’s application had merit. Mr. Loughlin openly acknowledged he had been informed of and had the right to consult a lawyer. The other factual complaints he made were, at best, weak. His claim that he ought to be returned to minimum security because he was not handcuffed during transfer out of minimum security is absurd on its face. [ 57 ] Further, Mr. Loughlin has attempted to obtain cash relief via habeas corpus .

In Ewanchuk v Canada (Attorney General) at para 68 , Justice Thomas denounced this abuse of court processes, and called this practice “a civil statement of claim in disguise” and “an attempt to bypass normal civil litigation processes”. Mr.

Loughlin has abused habeas corpus in the same manner. [ 58 ] At the end of the October 13, 2017, hearing I indicated I would take submissions from the parties in relation to costs, including whether elevated or indemnity costs are appropriate in this circumstance. [ 59 ] As the successful party, the Respondent has until November 23, 2017 to make written submissions on that point. Mr.

Loughlin may make written reply submissions that must be received by December 14, 2017. [ 60 ] I also invite the Respondent to make additional submissions concerning what other steps may be suitable to address the issue of meritless applications for habeas corpus . I note that, in Ellis v Wernick , 2017 ONSC 1461 , Associate Chief Justice Marrocco exercised the inherent jurisdiction of the Ontario Superior Court of Justice to revoke a fee waiver and place conditions on future fee waivers after Justice Marrocco dismissed a litigant’s application as frivolous. Heard on the 13 th day of October, 2017.

Dated at the City of Edmonton, Alberta this 8 th day of November, 2017. D.L. Shelley J.C.Q.B.A.

Appearances: Ashlin James Dale Loughlin for the Self-Represented Litigant Keelan Sinnott Department of Justice Canada for the Respondent