Bruce v Bowden Institution, 2018 ABQB 970

Court of Queen’s Bench of Alberta Citation: Bruce v Bowden Institution, 2018 ABQB 970 Date: 20181203 Docket: 1803 21860 Registry: Edmonton Between: Daniel William Bruce Applicant - and - Bowden Institution Respondent _______________________________________________________ Memorandum of Decision of the Honourable Mr. Justice John T. Henderson _______________________________________________________ [ 1 ] On October 30, 2018, the Court received a package of materials from Daniel William Bruce [Mr.

Bruce], a 50 year old inmate detained in the Bowden Institution serving a seven year and three month sentence for sexual interference, incest, and child pornography offenses. These materials include an “Originating Application” for habeas corpus , a supporting Affidavit, and a Fee Waiver Application. [ 2 ] After review of Mr. Bruce’s Originating Application and Affidavit I concluded in a decision reported as Bruce v Bowden Institution , 2018 ABQB 903 [ Bruce #2 ] that Mr. Bruce’s habeas corpus application exhibited two apparently fatal defects:

1. Mr. Bruce’s habeas corpus application did not assert that Mr. Bruce had experienced a loss of residual liberty (paras 5-9); and 2 that Mr. Bruce alleged that his original medium security classification during intake was made in error, however habeas corpus does not provide relief from an alleged defect at that step (paras 10-14). [ 3 ] I therefore initiated a “show cause” procedure authorized by Civil Practice Note No. 7 to evaluate whether Mr. Bruce’s application should be struck out per Alberta Rules of Court , Alta Reg 124/2010, Rule 3.68: Unrau v National Dental Examining Board , 2018 ABQB 874 . [ 4 ] Mr.

Bruce had two weeks from the date Bruce #2 was served on him to make a Written Submission of up to 10 pages to establish whether his habeas corpus application had a valid basis: Bruce #2 , at para 19 . [ 5 ] Mr. Bruce on November 13, 2018 wrote to the Court to indicate he had received Bruce #2 on November 8, 2018, and would make a reply by November 22, 2018. Mr. Bruce’s 10 page Written Submission was received by the Court on November 21, 2018. [ 6 ] Bruce #2 at para 19 indicated that the Respondent Bowden Institution had up to seven days to prepare a Written Reply to Mr. Bruce’s Written Submission.

After review of Mr. Bruce’s Written Submission I concluded and communicated to the parties by letter that no Written Reply was required. The Court would proceed directly to issue in due course its final decision on whether Mr. Bruce’s habeas corpus application had potential merit, or should be struck out per Rule 3.68 . [ 7 ] This is that decision. I conclude that Mr. Bruce’s habeas corpus application has no basis in law, and should be struck out, forthwith. [ 8 ] Mr. Bruce advances two potentially relevant responses to Bruce #2 . [ 9 ] First, Mr.

Bruce’s Written Submission disagrees with my conclusion in Bruce #2 that his application was flawed. Mr. Bruce argues Chief Justice Moreau of this Court has previously concluded that Mr. Bruce had a meritorious basis to conduct a review of his detention at the Bowden Institution by habeas corpus . [ 10 ] Mr. Bruce here is relying on Re Bruce , 2018 ABQB 283 [ Bruce #1 ], an endorsement of Moreau CJ which responded to documents that were received from Mr. Bruce on March 16, 2018. After review of that material, Chief Justice Moreau concluded that Mr.

Bruce’s abuse of court processes, improper document filing attempts, and inappropriate communication warranted Mr. Bruce being made subject to court access restrictions by what is sometimes called a “vexatious litigant order”: Bruce #1 , at paras 8-12 . Mr. Bruce was prohibited from initiating or continuing litigation in Alberta Courts, except where Mr. Bruce obtained permission - “leave” - from the Courts. [ 11 ] The April 11, 2018 court access restriction order which implemented Bruce #1 includes a specific exception to the pre-filing leave gatekeeping requirement.

Para 13 states: This Order does not apply to an Originating Application and supporting affidavit by Daniel William Bruce filed in the Edmonton judicial district of the Alberta Court of Queen's Bench for an order for habeas corpus in relation to Daniel William Bruce being allegedly unlawfully detained in medium security in the Bowden Institution. [ 12 ] Bruce #1 , paras 2, 17-18 indicates the basis on which Chief Justice Moreau concluded that Mr. Bruce might have a potential basis to challenge his medium security detention in the Bowden Institution: [2] Mr.

Bruce’s document is difficult to follow, however several points are apparent. Mr. Bruce appears to say he was at one point a minimum security inmate. He alleges that he was illegally or incorrectly reclassified as a medium security risk ... ... [17] Though I conclude that Mr. Bruce has no basis to obtain court-ordered publicly funded counsel, he has raised a potentially valid basis to argue he should be released via habeas corpus.

He says he is detained in medium security detention in the Bowden Institution, and has identified what he says is a false statement by the Warden of that institution in relation to his risk classification. Mr. Bruce says he should be held in minimum security. [18] ... In light of Mr. Bruce’s potentially valid allegation that he is unlawfully detained I therefore grant leave to Mr.

Bruce to file an application for habeas corpus in the Edmonton judicial district in relation to his claim that he is incorrectly or illegally detained in the medium security component of the Bowden Institution. [Emphasis added.] [ 13 ] Mr. Bruce says that if the defects identified in Bruce #2 were correct, then Chief Justice Moreau in Bruce #1 would have not have permitted Mr. Bruce to file his current habeas corpus application.

Our Chief Justice clearly saw a much deeper issue within this that needs to be heard before the court; or she would not have wasted your time or the Courts Time in granting me leave. ... the Chief Justice does seem to say that had my letter to her requested the actual “Writ of Habeas Corpus”, directly seeking the court order, and not the assistance of a lawyer, she would have granted it and had me placed in a “reduced detention condition”. [ 14 ] I reject Mr. Bruce’s argument that I am bound to conclude Mr.

Bruce has a valid habeas corpus application due to the Bruce #1 decision of Chief Justice Moreau to grant leave to Mr. Bruce’s habeas corpus application. Chief Justice Moreau’s decision was based on a false premise: that Mr. Bruce was at one point detained in minimum security, and then experienced a loss of residual liberty when

he was transferred to medium security. In Bruce #2, at para 7 I indicated that “Mr. Bruce’s materials indicate when he was firstincarcerated in 2016 he was placed in medium security at the Bowden Institution. That is where he remains.” Mr. Bruce has not rebuttedthat conclusion. [15] Mr. Bruce has no right to access habeas corpus, since he has not experienced a reduction in liberty that was the result of adecision of the Bowden Institution: Bruce #2, at paras 8-9. [16] Second, Mr. Bruce cites Musitano v Canada (Attorney General), [2006] OTC 291, (Ont Sup Ct

J) for theproposition that: ... the writ of Habeas Corpus is able to work in reverse, that besides being used to restore an inmate’s previous status it can be appliedforward to place an inmate properly when there have been unlawful administrative decisions which have denied what should haveoccurred without reason. ... [17] The decision identified by Mr.

Bruce does indeed see the Ontario Superior Court of Justice decide that a Correctional ServiceCanada decision which blocked a transfer of an inmate from medium to minimum security clearance was a nullity due to breaches of theCharter, s 7. [18] I conclude, however, that Musitano v Canada (Attorney General) is inconsistent with settled and binding Alberta law. [19] Ewanchuk v Canada (Parole Board), 2015 ABQB 707 is the only Alberta decision that explicitly evaluates Musitano vCanada (Attorney General).

In that judgment at paras 37-55, Graesser J rejected Musitano v Canada (Attorney General), and insteadadopted the reasoning of the British Columbia Court of Appeal in Mapara v Ferndale Institution, 2012 BCCA 127, 318 BCAC 139,leave to appeal to SCC refused, 34818 (27 September 2012) and other Alberta Court of Queen’s Bench decisions, that the Supreme Courtof Canada in Dumas v Leclerc Institute, (SCC), [1986] 2 SCR 459, 34 DLR (4th) 427 had determined that habeascorpus is not available to challenge a decision that denied a potential increase in residual liberty or release. [20] The Alberta Court of Appeal in Ewanchuk v Canada (Parole Board), 2017 ABCA 145 at paras 19-20, 355 CCC (3d) 418confirmed Justice Graesser’s analysis on this point. [21] I was unable to locate any Canadian Court of Appeal decision that adopted the reasoning in Musitano v Canada (AttorneyGeneral).

Instead Musitano v Canada (Attorney General) was explicitly considered by the British Columbia Court of Appeal andrejected as wrongly decided in LVR v Mountain Institution (Warden), 2016 BCCA 467 at paras 31-35, 370 CRR (2d) 63 because it isinconsistent with Dumas v Leclerc Institute. [22] I therefore conclude that Musitano v Canada (Attorney General) does not assist Mr. Bruce. The analysis and result in thatcase is in conflict with binding Supreme Court of Canada and Alberta Court of Appeal jurisprudence. [23] The remainder of Mr.

Bruce’s submissions do not relate or respond to the apparently fatal defects identified in Bruce #2. Mr.Bruce does not respond to the jurisprudence I cited which concludes that habeas corpus is not available to challenge the initial securityclassification of a newly incarcerated inmate. [24] Mr. Bruce’s habeas corpus application is therefore struck out per Rule 3.68.

His application has no basis in law. [25] In light of the fact the Civil Practice Note No. 7 show cause procedure was initiated by the Court, and the Bowden Institutionwas not obliged to take any steps in response to his habeas corpus application, I conclude that Mr. Bruce should not be liable for costs. [26] I also conclude that the exception in paragraph 13 of the April 11, 2018 Bruce #1 court access restriction order is nowexhausted. Mr. Bruce must obtain leave of this Court prior to filing any future habeas corpus application, or, for that matter, any otheraction in Alberta Courts.

Dated at the City of Edmonton, Alberta this 3rd day of December, 2018. John T. Henderson J.C.Q.B.A.

Appearances: Daniel William Bruce for the Self-Represented Litigant None for the Respondent