McCargar v Canada, 2017 ABQB 729

Court of Queen’s Bench of Alberta Citation: McCargar v Canada, 2017 ABQB 729 Date: 20171204 Docket: 1703 08692 Registry: Edmonton Between: Brook McCargar Applicant - and - Her Majesty the Queen, Correctional Services Canada (C.S.C.), Edmonton Institution, Correctional Manager of Segregation Unit 6 Chris Saint Respondents _______________________________________________________ Memorandum of Decision of the Honourable Mr. Justice John T. Henderson _______________________________________________________ I.

Introduction [ 1 ] This decision considers whether this Court should impose restrictions upon Brook McCargar (Mr. McCargar) in relation to his access to the Alberta Courts for the purpose of commencing or continuing litigation. [ 2 ] On May 5, 2017, Mr. McCargar, Jeffery Hernandez Cansanay, Cody Allen Joseph, and Murray Cardinal filed a joint habeas corpus application in the Court of Queen’s Bench of Alberta. These individuals are prisoners detained in federal prisons operated by Correctional Service Canada.

Their application alleged an unlawful loss of residual liberty, though the scope of their complaints was broader than that.

[ 3 ] Mr. Cansanay, Mr. Joseph, and Mr. Cardinal ultimately abandoned their habeas corpus applications, leaving Mr. McCargar as the only remaining applicant. [ 4 ] On June 6, 2017, Jordan Keenan Quewezance sought to be added to this action. I dismissed that application in a judgment reported as McCargar v Canada , 2017 ABQB 416 [ McCargar #1 ]. [ 5 ] I dismissed Mr. McCargar’s habeas corpus application on June 30, 2017, also documented in McCargar #1 . I concluded that: • Mr.

McCargar’s many complaints concerning his detention in administrative segregation at the Edmonton Institution were not of a character which could form a basis for the Court to order Mr. McCargar’s release to a lower-security state ( McCargar #1 , at paras 50- 100 ); • Mr. McCargar complaints were more properly addressed via internal Corrections and Conditional Release Act procedures, judicial review in the Federal Court, or a civil action alleging a Charter breach in an Alberta court: ( McCargar #1 , at paras 87 and 100 ); and • I would not accept jurisdiction to hear Mr.

McCargar’s application because “ habeas corpus is an extraordinary and discretionary remedy and should not be granted where adequate alternative remedies are available” [emphasis added] ( McCargar #1 , at paras 42, 97 , citing Armaly v Canada , 2001 ABCA 280 , at para 2 , 299 AR 188, leave to the Supreme Court of Canada refused 29130 (15 August, 2002)). [ 6 ] Mr. McCargar was ordered to pay $1,000.00 in costs, forthwith. [ 7 ] I also concluded that Mr.

McCargar was in contempt of my instruction that he is prohibited from preparing or filing materials for other persons, or representing those persons in court: McCargar # , 1 at paras 104-109 . On August 28, 2017, I received submissions from Mr. McCargar that he had not intended to conduct himself in a manner that was in contempt of court instructions. He apologized for having done so. I concluded that was an adequate response and therefore imposed no penalty in relation to Mr. McCargar’s contempt. [ 8 ] Last, in McCargar #1 at para 112 I concluded that Mr.

McCargar’s litigation activities disclosed features of abusive litigation, as reviewed in Chutskoff v Bonora , 2014 ABQB 389 , para 92 , 590 AR 288, aff’d 2014 ABCA 444 : 1. Mr. McCargar’s June 15, 2017, “Interlocutory Application to Cure Rule Contravention and Non-Compliance With Procedural Requirement” is a collateral attack on my June 9, 2017 decision concerning Mr. Cansanay’s discontinuance notice. 2. Mr. McCargar’s June 15, 2017 application for a case management justice was an attempt at ‘judge shopping’. He was seeking to displace me from my role as the justice hearing this habeas corpus proceeding.

I note this might arguably be a novel indicium of vexatious litigation that is not found in Chutskoff v Bonora , but in a sense is simply a special variation on a collateral attack where the abusive litigant does not merely attempt to subvert the operation of a court decision but, here, the authority and jurisdiction of the court justice himself. 3. Mr. McCargar has disobeyed my order that he is prohibited from filing materials and/or advancing arguments in relation to the other Applicants or Mr. Quewezance. 4 Mr.

McCargar was engaged in “busybody” litigation by attempting to act on behalf of other litigants, and to introduce a third party into the existing habeas corpus proceeding. 5. Mr. McCargar made scandalous and conspiratorial allegations in relation to Correctional Services Canada and Mr. Cansanay. Mr. McCargar alleged that Mr. Cansanay had been bribed to withdraw his habeas corpus application. 6. While Rooke ACJ identified Mr.

McCargar’s June 15, 2017 applications as frivolous, vexatious, and an abuse of process, I also note these applications demanded an unreasonable time line for their hearing which I conclude was intended to pre-empt the scheduled June 22, 2017 hearing. 7. Mr. McCargar’s habeas corpus application was a futile and hopeless proceeding; it had no possibility of success. Mr.

McCargar nevertheless chose to persist, despite his having prior (unsuccessful) exposure to the habeas corpus process and the legal principles that govern this procedure. [ 9 ] While the second class of litigation misconduct was novel at the time of McCargar #1 , I note that this indicium of abusive litigation was subsequently adopted by Rooke ACJ in Re Onischuk , 2017 ABQB 659 , at para 18 . [ 10 ] I therefore concluded in McCargar #1 that court access restrictions may be appropriate to manage Mr. McCargar’s Alberta Court activities.

Court access restrictions are sometimes referred to as a “vexatious litigant order”. [ 11 ] I instructed Mr. McCargar to appear on August 28, 2017 to make submissions as to whether his access to Alberta courts should be restricted, and if so, what the scope of those restrictions would be: McCargar #1 , at paras 110-114 . The Respondents were invited to also make submissions and/or introduce other potentially relevant evidence: McCargar #1 at para 115 . In the period up to my final decision I ordered that Mr.

McCargar was prohibited on an interim basis from initiating or continuing litigation in any Alberta court, except with the permission of the relevant Chief Justice, Associate Chief Justice, or Chief Judge: McCargar #1 , at para 116 . [ 12 ] On August 28, 2017, Mr. McCargar indicated he had applied to Legal Aid Alberta seeking appointment of a lawyer to assist in responding to the issue of whether he should be subject to court access restrictions. I therefore adjourned the hearing to November 1, 2017. On that date Mr. McCargar appeared but was unrepresented.

He explained he had been denied representation in relation to the issue of whether he should be subject to court access restrictions, but that Legal Aid Alberta was funding a lawyer to assist in an appeal

of McCargar #1 . II. Submissions [ 13 ] At the November 1, 2017 hearing, Mr. McCargar and the Attorney General of Canada [Attorney General], acting on behalf of the Respondents, made submissions on whether Mr. McCargar should be subject to court access restrictions. The Attorney General on August 10, 2017 filed an Affidavit of Cheryl Mancell to provide additional evidence relating to Mr. McCargar’s dispute-related activities. Mr. McCargar at the November 1, 2017 hearing presented an unfiled Affidavit, which he indicated provided relevant evidence.

I permitted that Affidavit to be admitted after providing the Attorney General an opportunity to review that document. A. Mr. McCargar [ 14 ] Mr. McCargar acknowledged he had made mistakes in his litigation activities; however, he characterized those as missteps rather than him being intentionally malicious or disruptive. He apologized for that. He disputed whether all of his alleged bases for habeas corpus were hopeless, though he acknowledged some were. Others he agreed were weak. Mr.

McCargar admitted he did not adequately research the relevant law before he began using the habeas corpus procedure. [ 15 ] He also said that his application for the appointment of a case management judge was not necessarily an attempt to replace me, and apologized if that appeared to be his intent. He explained he thought that procedure “seemed like a necessity at the time”, due to “all these misconduct with respect to the filings and the fax and stuff of my legal documents”. [ 16 ] Mr.

McCargar also acknowledged he had attempted to set unreasonable timelines in this proceeding, but he had thought his matter was urgent. [ 17 ] The unfiled Affidavit Mr. McCargar provided at the hearing attached a report on the state of affairs at the Edmonton Institution. He said this was evidence that allegedly “scandalous” allegations were, in fact, true. Mr. McCargar argued that the Attorney General’s evidence of him filing hundreds of institutional complaints and grievances was not relevant to his court activities.

Further, some of those complaints were identified as valid, while others were incomplete. [ 18 ] Mr. McCargar said he does not know enough to say what would be the appropriate steps to manage his litigation, though he hopes to not have his court access restricted. He promised that in the future he would be more careful to respect court resources and legal procedure. [ 19 ] Notably, Mr. McCargar did not deny he was the person who wrote and filed documents in a separate habeas corpus application, reported in Badger v Canada , 2017 ABQB 457 . B.

Attorney General [ 20 ] The Attorney General argued that the interim court access restrictions placed on Mr. McCargar should be made permanent. The interim order exempted certain identified actions; the Attorney General agreed those exceptions to court access control should continue. The Attorney General also submitted that an Alberta Court of Queen’s Bench civil action between Mr. McCargar and the Crown (Docket #1403-07989) should be exempted from any vexatious litigant order, but that the Federal Crown should have leave to apply to expand any court access restrictions imposed on Mr.

McCargar to include this civil proceeding. Mr. McCargar had been represented in that action, but his counsel subsequently withdrew. [ 21 ] The Respondents argue that Chutskoff v Bonora provides the relevant criteria to identify abusive litigation, but that a recent decision of the Federal Court of Appeal in Canada v Olumide , 2017 FCA 42 is helpful in several senses. In that decision, Stratas JA stressed at paras 26-27 that court access restrictions are not truly “extraordinary”, but rather are a minimally intrusive gatekeeping activity.

Second, Justice Stratas, at paras 16-20, concludes that the underlying reason for imposing court access restrictions is that courts are a form of limited community property. Abusive litigation squanders that resource, and denies court access and remedies to other litigants whose actions have merit. [ 22 ] Mr.

McCargar filed three unsuccessful habeas corpus applications in less than one year: • Brook McCargar v Her Majesty the Queen , Alberta Court of Queen’s Bench Docket #1603-15854, filed October 31, 2016, struck out January 24, 2017. • Brook McCargar v Her Majesty the Queen, Correctional Services Canada, Warden of the Edmonton Institution Clovis LaPointe, Crown Prosecutor Bert (sic) Malo , Alberta Court of Queen’s Bench Docket #1703-05559, filed March 22, 2017, dismissed May 17, 2017. • Brook McCargar v Her Majesty the Queen, Correctional Services Canada, Edmonton Institution, Correctional Manager of Segregation Unit 6 Chris Saint (current action), filed May 7, 2017, dismissed June 22, 2017. [ 23 ] The Respondents argued that Mr.

McCargar has engaged in “busybody” litigation which amounted to an abuse of court processes. They submit that the affidavit of Cheryl Mancell demonstrates Mr. McCargar’s “busybody litigation” was not limited to just the present habeas corpus application. The Respondents observed that Shelley J in Badger v Canada at paras 13-16, 18, 49 concluded that obviously related habeas corpus applications were being prepared and filed on behalf of others by an unknown actor. Justice Shelley struck out two practically identical habeas corpus applications.

The Attorney General submits that the Mancell Affidavit establishes that

person was Mr. McCargar. The Badger v Canada habeas corpus applications were dismissed as futile; they did not disclose a basis forthe Court to take jurisdiction. [24] The Respondents indicate that together the McCargar #1 and Badger v Canada actions show that Mr. McCargar was engagedin a broad-based abuse of the habeas corpus procedure and an ongoing pattern of “busybody” litigation and unlicensed legal practice. [25] The Attorney General submits this history of abuse of the habeas corpus procedure also illustrates expanding litigationsubject misconduct.

In particular, the second habeas corpus application names as a Respondent Mr. Malo, a Provincial CrownProsecutor, even though he had no possible connection to Mr. McCargar’s seeking release into less restrictive conditions. Namingunrelated persons in these actions implies an attempt to harass or intimidate. III. Court Access Restrictions A. The Law [26] The modern approach in the Court of Queen’s Bench of Alberta to court access restrictions is that the hearing judge evaluatesthe conduct of the problematic litigant in a broad-based and contextual manner.

The Court may consider: 1. activities both inside and outside of the courtroom (Bishop v Bishop, 2011 ONCA 211, at para 9, 200 ACWS (3d) 1021, leave toappeal to SCC refused, 34271 (20 November 2011); Henry v El, 2010 ABCA 312, at paras 2-3, 5, 193 ACWS (3d) 1099, leave to appealto SCC refused, 34172 (14 July, 2011)); 2. the litigant’s entire public dispute history (Thompson v International Union of Operating Engineers Local No 995, 2017 ABCA193, at para 25), including:

a) litigation in other jurisdictions (McMeekin v Alberta (Attorney General), 2012 ABQB 456 at paras 83-127, 543 AR 132; Curle vCurle, 2014 ONSC 1077 at para 24; Fearn v Canada Customs, 2014 ABQB 114, at paras 102-105, 586 AR 23);

b) non-judicial proceedings (Bishop v Bishop, at para 9; Thompson v International Union of Operating Engineers Local No 995, atparas 24-25; Canada Post Corp v Varma, , at para 23, 192 FTR 278 (FC); West Vancouver School District No 45 vCallow, 2014 ONSC 2547, at para 39); and

c) public records that are a basis for judicial notice (Wong v Giannacopoulos, 2011 ABCA 277, at para 6, 515 AR 58); and 3. whether the person has previously engaged in abusive litigation conduct and was declared a “vexatious litigant”: Canada PostCorp v Varma, at para 24. [27] Not all indicia and forms of litigation abuse are equal.

For example, abuse of the habeas corpus procedure is a particularlyserious form of litigation misconduct since that exploits a procedure that grants habeas corpus applications priority over other courtlitigation, which has a highly disruptive effect: Ewanchuk v Canada (Attorney General), 2017 ABQB 237, at paras 170-87; ReGauthier, 2017 ABQB 555, at para 82. Associate Chief Justice Rooke in the latter decision wrote: ... abuse of habeas corpus is a special aggravating factor.

If that appears in a history of vexatious litigation then stricter court accesscontrol is warranted. [28] That evidentiary foundation is then the basis to evaluate whether future abuse of court processes is foreseeable for thepotentially problematic litigant.

When a Court exercises its inherent jurisdiction to determine whether court access restrictions areappropriate the critical questions are identified in Hok v Alberta, 2016 ABQB 651, at para 36, 273 ACWS (3d) 533, leave denied 2017ABCA 63, leave to appeal to SCC refused, 37624 (2 November, 2017): I conclude that when a court considers limits to future court access by a person with a history of litigation misconduct the key questionsfor a court are: 1. Can the court determine the identity or type of persons who are likely to be the target of future abusive litigation? 2.

What litigation subject or subjects are likely involved in that abuse of court processes? 3.

In what forums will that abuse occur? [29] For example, Slatter JA recently indicated that where a problematic litigant promises further abuse of court processes then thatis an important element when evaluating possible court access restrictions: Lofstrom v Radke, 2017 ABCA 362, at para 8. [30] While the Alberta Court of Appeal in RO v DF, 2016 ABCA 170, at para 38, 36 Alta LR (6th) 282 seems to have focussed on“history”, very recent decisions of the Alberta Court of Appeal that place court access restrictions on litigants indicate an evolution in theapproach taken by that Court: R v Olumide, 2017 ABCA 366, at para 3; Bourque v Tensfeldt, 2017 ABCA 356, at para 6. [31] An appropriate court access restriction balances the effect of that restriction on the litigant, and the protective benefitsprovided to the Court and other litigants.

I agree with Stratas JA (Canada v Olumide, at paras 26-27) that a ‘gatekeeping’ process, suchas a requirement to obtained leave prior to initiating or continuing an action, is a minor and constitutionally valid infringement, see alsoHok v Alberta, at paras 30-33; Wong v Giannacopoulos, at para 8; Lofstrom v Radke, at para 3.

B. Evidence [32] I will first review certain evidence before evaluating what response, if any, is appropriate in light of Mr. McCargar’s historyof dispute-related misconduct. [33] First, Mr. McCargar at the November 1, 2017 hearing provided the Court with an Affidavit that attached a report prepared byTLS Enterprises on the status of the Edmonton Institution, dated March 12, 2017. Mr. McCargar indicated this report confirms hisallegations of widespread issues in the Edmonton Institution. I have read TLS Enterprises report.

That report reviews information fromemployee surveys at the Edmonton Institution and indicates that those workers often are very critical of the culture of the EdmontonInstitution and how the staff and management interact. Some staff are allegedly bullies. Management is described as ineffective. [34] Though I accept that the TLS Enterprises report offers some evidence that there are issues within the Edmonton Institution, Inote that the report has very little to do with inmates and alleged abuse of inmates.

Instead, the TLS Enterprise report describes how theofficers, management, and other employees of the Edmonton Institution operate in a “toxic” environment. That has very little relation toMr. McCargar’s allegations that he has been the subject of improper treatment. Further, the report provides no tangible evidence inrelation to Mr. McCargar, himself. I therefore put little weight on this document. [35] The Attorney General as part of the Mancell Affidavit provided an index of the 386 complaints and/or grievances made byMr. McCargar to Correctional Service Canada between March 20, 2012 and August 5, 2017.

Counsel for the Attorney General arguedthis record is relevant as that established a pattern. In a sense, I agree, as it does show Mr. McCargar has made many complaints withinthe Correctional Service Canada internal mechanisms. However, I put limited weight on this evidence because as Mr. McCargarobserved some of these complaints and grievances may have had merit. Further, in McCargar #1, I stressed that if his allegations arecorrect, then the internal Correctional Service Canada procedures are the appropriate avenue to obtain redress. I therefore put limitedweight on this record, which essentially indicates Mr.

McCargar is using the correct mechanism to address his complaints, rather thanwasting court resources. [36] The third evidence-related issue relates to court filings in the Badger v Canada action. At the November 1, 2017 hearing Mr.McCargar expressed concern regarding whether the documents attached as exhibits to the Mancell Affidavit were true copies of thedocuments on the court file in Badger v Canada. I promised at that hearing that I would obtain the Badger v Canada file, and review it.During that review I would compare the court documents in that file to the items in the Mancell Affidavit.

As I previously observed, Mr.McCargar did not deny he was the author of the Badger v Canada “ORIGINATING APPLICATION FOR HABEAS CORPUS”, northat he had faxed that material to the Alberta Court of Queen’s Bench clerks, as reported in the Mancell Affidavit. [37] I have confirmed that the documents in the Mancell Affidavit match the Court’s records. I find as fact that the Badger vCanada Application was faxed by the Edmonton Institution to the Court Clerks on the request of Mr. McCargar. [38] I also conclude on a balance of probabilities that Mr. McCargar is the individual who wrote the Badger v CanadaApplication.

I have many hundreds of pages of Mr. McCargar’s handwritten documents in this action. Mr. McCargar agreed he preparedthese documents, including those for other former applicants. There is a clear and strong resemblance between the printing in theMcCargar #1 and Badger v Canada documents. Many idiosyncrasies are common between the text of these documents. For example,the author in both cases marks the number “7” with a second horizontal dash mid-way down the number.

I am authorized to on my ownand without expert evidence compare handwriting with a sample from a known author: R v Abdi (1997), (ON CA),101 OAC 271, 34 OR (3d) 499 (Ont CA); R v CF, 2010 ONCA 424, at para 13, 88 WCB (2d) 452; R v Meer, 2015 ABCA 141, at para138, 401 DLR (4th) 417, aff’d on other grounds 2016 SCC 5, [2016] 1 SCR 23. After a cautious review of the handwriting in thesedocuments I conclude that it is more likely than not that the handwriting in these items is from the same person, Mr. McCargar. [39] There are also many formatting parallels. Title pages are organized in the same manner.

Page numbers exist in two locationson the bottom of documents. In the middle the page number is written, then circled. However, on the left bottom of the page the pagenumbers are indicated in a form of “[page X] of [Y pages]”. The McCargar #1 and Badger v Canada documents capitalize certain wordsin a parallel pattern. Citation patterns match. [40] Justice Shelley in Badger v Canada observed that there are parallels in the language and complaints of the McCargar #1 andBadger v Canada habeas corpus applications.

My review has confirmed that. [41] Something else interesting emerged from my review of the Badger v Canada file. In McCargar #1 I concluded that Mr.McCargar was in contempt of court by his composing and filing materials for other former participants in this action. At the June 22,2017 hearing Mr. McCargar apologized for these activities, and said that he was unaware that he was prohibited from acting on behalf ofthe other Applicants. Mr.

McCargar at the November 1, 2017 hearing was explicit that he intends to follow the Court’s instructions inthe future, and as evidence of that he said he discontinued providing unauthorized legal service when the Court’s prohibition on thatbecame clear to him. [42] Mr. McCargar was not being candid when he at the November 1, 2017 hearing said he had on June 22, 2017 stopped filingmaterials for other litigants In Badger v Canada, Justice Shelley, at paras 26-41, reviewed documents that were filed in that action onJuly 5-6, 2017. While Mr.

Badger claimed he had written the July 5-6, 2017 documents, Justice Shelley concluded at paras 13-15 thatthe same person had written all the documents in the Badger v Canada file, including both the original habeas corpus application andthe subsequent July 5-6, 2017 documents. [43] After reviewing the Badger v Canada file, including the July 5-6, 2017 documents, I also conclude all Badger v Canadadocuments, including the July 5-6, 2017 items, were prepared by Mr. McCargar. I therefore conclude Mr.

McCargar did continue toprepare and file documents in relation to other persons’ habeas corpus applications after the June 22, 2017 hearing. That obviouslysubverts Mr. McCargar’s claims of having turned over a new leaf. [44] However, that is not the end of the matter. In Badger v Canada Justice Shelley, at paras 39-43, concluded that since the July

5-6, 2017 filings represent a new and unrelated habeas corpus application, the issues raised in those documents would not be evaluated at that time. She ordered that Mr. Badger and Mr. Whitford may make individual habeas corpus applications to provide proper notice to the Respondent and a clear alleged factual basis for the Court to evaluate those claims. [ 45 ] The Court did receive individual follow-up applications for Mr. Badger and Mr.

Whitford: • Brandon Badger v Her Majesty the Queen, Correctional Service Canada, Edmonton Institution, Correctional Manager of Segregation Unit 6 Chris Saint, Alberta Court of Queen’s Bench Docket #1703-15587, filed August 3, 2017; and • Anthony Alan Whitford v The Attorney General of Canada, Alberta Court of Queen’s Bench Docket #1703-15672, filed August 4, 2017. [ 46 ] Mr. Badger discontinued the Docket #1703-15587 Action, on August 15, 2017. Mr. Whitford discontinued his Docket #1703- 15762 habeas corpus application on August 14, 2017.

In both instances the Attorney General waived costs. [ 47 ] The handwriting and format of the Docket #1703-15587 and #1703-15762 habeas corpus applications again matches those in the Badger v Canada and McCargar #1 applications. I conclude Mr. McCargar wrote the Docket #1703-15587 and #1703-15672 habeas corpus applications as well, despite Mr. McCargar having in court said he had abided by my instructions. C. An Appropriate Response to Mr. McCargar [ 48 ] Mr. McCargar’s record establishes a serious pattern of litigation misconduct. Mr.

McCargar admits he has engaged in inappropriate litigation steps, and though he disputes some of the indicia of litigation misconduct identified in McCargar #1 , at para 112 , I conclude that litigation misconduct I have identified establishes a clear basis on which court access restrictions are warranted. [ 49 ] I also accept the submissions of the Respondents that Mr. McCargar is engaging in hopeless and expanding litigation. [ 50 ] His misuse of the habeas corpus process is especially problematic.

This is an unusually disruptive and damaging form of litigation abuse: Ewanchuk v Canada (Attorney General) , at paras 170-87 ; Re Gauthier , at para 82 . [ 51 ] Worse, Mr. McCargar has coupled that with “busybody” litigation and appears to have prepared and filed habeas corpus applications on behalf of other Edmonton Institution inmates. In McCargar #1 , at para 19-20 , I stressed that when a non-lawyer directs someone else’s litigation, this puts others at risk of costs and other court-ordered sanctions. That is exactly what happened to Mr. Badger and Mr. Whitford.

They were ordered to pay costs for habeas corpus applications that they did not author or file: Badger v Canada , at paras 44-45 . [ 52 ] This is part of a growing and very troubling phenomenon. As Shelley J recently observed in Loughlin v Her Majesty the Queen , 2017 ABQB 677 , at paras 49-56 , courts in Alberta and elsewhere in Canada are “... encountering inmates who have turned habeas corpus into a kind of business or trade.” Inmates are preparing one another’s applications, and trying to act as lawyers: e.g.

McCargar #1 ; Loughlin v Her Majesty the Queen ; Badger v Canada ; Jones v Mountain Institution (Warden) , 2017 BCSC 1304 . [ 53 ] In the Loughlin action, the habeas corpus application was obviously derived from another template, and similar to other applications from the Bowden Institution in content and format.

Many of these apparently related actions were absolutely hopeless, and made despite there being binding judgments that would block any possibility that release might be ordered via habeas corpus : Willis v Attorney General of Canada , 2017 ABQB 540 ; Hart v Her Majesty the Queen (24 October 2017), Edmonton 1703-18189 (Alta QB). [ 54 ] In the Loughlin action, Mr. Loughlin was not even able to explain much of his own application.

Though that application apparently demanded that legislation should be struck out, Loughlin could not identify what he was challenging: “I don’t even know what you mean by that.” Loughlin was asked why he was challenging the Parole Board of Canada, but he admitted that tribunal had nothing to do with his situation or alleged wrongful loss of residual liberty. Ultimately Loughlin admitted he had no basis for his application, except that he had been “confused” when he was not handcuffed during a prison transfer. [ 55 ] I stress that in examining this phenomenon I am not suggesting that Mr.

McCargar is involved in these other actions, except for the Badger v Canada litigation. This review is to help explain why I conclude that Mr. McCargar’s litigation conduct is very problematic and requires control. He is part of a larger pattern where the conduct of certain inmates preparing habeas corpus applications for others may amount to an unauthorized legal practice.

This is leading to serious abuse of court processes, waste of state resources, and has resulted in their ‘customers’ being required to pay significant and unfavourable cost awards. [ 56 ] I conclude that the interim court access restrictions ordered in McCargar #1 should be confirmed and made permanent. It is foreseeable that Mr. McCargar will abuse of Alberta court processes. While most of his litigation has been in the habeas corpus context, he also makes similar complaints in a civil context. He has identified Correctional Service Canada employees and Crown Prosecutors who he considers to have acted illegally.

This warrants broad-based control. [ 57 ] The Attorney General submits, and I agree, that the exceptions to the permanent court access restrictions made in the McCargar #1 interim order, at paras 9 (

i) and 9(ii), should be continued. In accordance with the Attorney General’s submissions I also exempt the McCargar v Hartle , Alberta Court of Queen’s Bench Docket #1403-07989 action, but grant the Attorney General leave to apply in the future to expand the court access restrictions against Mr. McCargar to include this action. [ 58 ] I therefore order, effective immediately, that: 1.

Brook McCargar is prohibited, under the inherent jurisdiction of the Court of Queen’s Bench of Alberta, from commencing, or attempting to commence, or continuing any appeal, action, application, or proceeding in the Alberta Court of Appeal, Court of Queen’s Bench of Alberta, or the Provincial Court of Alberta, on his own behalf or on behalf of any other person or estate, without an order of the

Chief Justice or Associate Chief Justice, or Chief Judge, of the Court in which the proceeding is conducted, or his or her designate. 2. The Chief Justice or Associate Chief Justice, or Chief Judge, or his or her designate, may, at any time, direct that notice of an application to commence or continue an appeal, action, application, or proceeding be given to any other person. 3. Brook McCargar must describe himself, in the application or document to which this Order applies, as “Brook McCargar”, and not by using initials, an alternative name structure, or a pseudonym. 4.

Any application to commence or continue any appeal, action, application, or proceeding must be accompanied by an affidavit: (

i) attaching a copy of the Order arising from this Decision, restricting Brook McCargar’s access to the Alberta Court of Appeal, Court of Queen’s Bench of Alberta, and Provincial Court of Alberta; (ii) attaching a copy of the appeal, pleading, application, or process that Brook McCargar proposes to issue or file or continue; (iii) deposing fully and completely to the facts and circumstances surrounding the proposed claim or proceeding, so as to demonstrate that the proceeding is not an abuse of process, and that there are reasonable grounds for it; (iv) indicating whether Brook McCargar has ever sued some or all of the defendants or respondents previously in any jurisdiction or Court, and if so providing full particulars; (

v) undertaking that, if leave is granted, the authorized appeal, pleading, application or process, the Order granting leave to proceed, and the affidavit in support of the Order will promptly be served on the defendants or respondents; and (vi) undertaking to diligently prosecute the proceeding. 5. Any application referenced herein shall be made in writing. 6. The Chief Justice or Associate Chief Justice, or Chief Judge, or his or her designate, may: (

i) give notice of the proposed claim or proceeding and the opportunity to make submissions on the proposed claim or proceeding, if they so choose, to:

a) the involved potential parties;

b) other relevant persons identified by the Court; and

c) the Attorney Generals of Alberta and Canada; (ii) respond to the leave application in writing; and (iii) hold the application in open Court where it shall be recorded. 7. Leave to commence or continue proceedings may be given on conditions, including the posting of security for costs. 8. An application that is dismissed may not be made again, directly or indirectly. 9. This Order does not apply to: (

i) Provincial Court of Alberta Actions: • R v McCargar , Docket #170049365P1 • R v McCargar , Docket #170186589P1 • R v McCargar , Docket #131226995P1 (ii) an appeal from this Court’s June 22, 2017 decision reported as McCargar v Canada , 2017 ABQB 416 (iii) an appeal from this decision that declares Brook McCargar a vexatious litigant (iv) Alberta Court of Queen’s Bench proceeding McCargar v Hartle , Docket #1403-07989 (

v) Alberta Court of Appeal proceeding R v McCargar , Docket #1603-0260A 10. The Attorney General shall prepare the Order arising from this decision. The approval of Brook McCargar as to the form and content of the Order is not required. [ 59 ] Mr. McCargar appears to have acted in breach of the strict prohibition in Legal Profession Act , RSA 2000, c L-8, s 106 against unauthorized practice in the Alberta Court of Queen’s Bench by non-lawyers: 908077 Alberta Ltd. (Escape & Relax) v 1313608 Alberta Ltd , 2015 ABCA 117 , 20 Alta LR (6th) 430.

There is no inherent right to represent others in courts and court proceedings: Gauthier v Starr , 2016 ABQB 213 , at paras 54-56 , 86 CPC (7th) 348. As Nash J observed in R v Main , 2000 ABQB 56 , at para 36 , 259 AR 163, an advocate who “... has demonstrated an intention not to be bound by rules and governing procedures in court ...” should not be permitted to represent a litigant. [ 60 ] I therefore also order:

1. Brook McCargar is prohibited from providing legal advice, preparing documents intended to be filed in court for any person other than himself, and filing or otherwise communicating with any court, except on his own behalf. 2. Brook McCargar is ordered to identify himself only by his legally correct name, “Brook McCargar”, in any future communications, documents, filings, or other interactions with the Alberta Provincial Court, Court of Queen’s Bench of Alberta, and Alberta Court of Appeal. 3.

Brook McCargar is prohibited from acting as an agent, next friend, McKenzie Friend (from McKenzie v McKenzie , [1970] 3 All ER 1034 (UK CA) and Alberta Rules of Court , Alta Reg 124/2010, s 2.22-2.23), or any other form of representative in court proceedings before the Alberta Provincial Court, Court of Queen’s Bench of Alberta, and Alberta Court of Appeal. 4.

The Clerks of the Alberta Provincial Court, Court of Queen’s Bench of Alberta, and Alberta Court of Appeal shall refuse to accept or file any documents or other materials from Brook McCargar unless Brook McCargar is a named party in the action in question, and then only if leave has been granted by the Chief Justice, Associate Chief Justice, Chief Judge or their designate. [ 61 ] These prohibitions take effect immediately. [ 62 ] Mr. McCargar, in his November 1, 2017 submissions, acknowledged he has engaged in illegal and improper court activities.

That is an important first step to him operating in an appropriate way within the Canadian court system. I strongly encourage him to follow on what he identified to me as positive steps he has taken, such as engaging in legal research before involving the court, setting reasonable timelines, and respecting judicial authority. I encourage he continue that progression. [ 63 ] Earlier I explained that court access restrictions are designed in a prospective sense. They anticipate that a potentially problematic litigant might do. That means that a litigant is not defined only by their history. Mr.

McCargar said to me that he hopes he will not be subject to court access restrictions. The best way to achieve that is for him to manage the actions he currently has in all three Alberta Courts in a responsible, diligent manner. If he establishes a pattern of good litigation conduct then I see no reason why this order cannot be varied or vacated to account for that. His next objective should be to establish that good litigation pattern. [ 64 ] Ultimately that is the central objective of this exercise. Mr. McCargar has a constitutional but personal right to have the validity of his detention determined.

He also has a constitutional right to access Alberta Courts: Trial Lawyers Association of British Columbia v British Columbia (Attorney General) , 2014 SCC 59 , [2014] 3 SCR 31. The court access restrictions I have put in place do not deny either right, however they are intended to help Mr. McCargar to make better use of the Courts while obtaining the remedies he is owed in law. This screening or gatekeeping process ultimately is to his benefit, since this will better focus his court activities and also decrease the likelihood of negative litigation consequences, such as cost awards. V. Conclusion [ 65 ] Mr.

McCargar is declared a vexatious litigant and subject to broad court access controls in all Alberta Courts, with certain specific exceptions. [ 66 ] Mr. McCargar is also globally prohibited from engaging in unauthorized legal practice, including giving advice to any person, preparing and filing court documents, and acting or appearing on behalf of any person in Alberta courts. Heard on the 1 st day of November, 2017. Dated at the City of Edmonton, Alberta this 4 th day of December, 2017. John T. Henderson J.C.Q.B.A. Appearances: Brook McCargar for himself Cameron G. Regehr

for the Respondents