Pervez v Correctional Service of Canada (Grande Cache Institution), 2019 ABQB 962

Court of Queen’s Bench of Alberta Citation: Pervez v Correctional Service of Canada (Grande Cache Institution), 2019 ABQB 962 Date: 20191216 Docket: 1903 24605 Registry: Edmonton Between: Usman Pervez Applicant - and - Warden of Grande Cache Institution, Correctional Service of Canada Respondent _______________________________________________________ Memorandum of Decision of the Honourable Mr. Justice John T. Henderson _______________________________________________________ I. Introduction [ 1 ] Mr. Usman Pervez [Mr.

Pervez or Applicant] is an inmate serving a life sentence at the Edmonton Institution, a maximum- security federal institution located in Edmonton, Alberta and operated by the Respondent, Correctional Service of Canada. [ 2 ] On December 3, 2019, Mr. Pervez filed an Originating Application and his own affidavit, sworn on November 21, 2019, as well as a Fee Waiver Application. The substance of the concern expressed by Mr. Pervez in his materials is that he was recently denied

a transfer to the medium-security Grande Cache Institution, also operated by the Respondent, Correctional Service of Canada. While not stated, it is likely that he is also concerned about a decision refusing to reclassify him to a medium-security status to permit a transfer to a medium-security institution such as the Grande Cache Institution. [ 3 ] The Originating Application reads: Basis For This Claim 1. “Grande Cache are making up baseless claims. They are using” 2. “my past history. That I do not fit the profile to the population of” 3. “Grande Cache my Charter of rights are being violated.

I have a right to reside close to my family and community support” [Sic] Remedies sought : 4. “Im doing a Life Sentence. I would like to remain in alberta close” 5. “to my family. So I can continue to have open visits on a weekly” 6. “basis.” • “IM REQUESTING YOU TO REVIEW MY CASE AND GRANT ME PERMISSION TO BE SENT TO GRAND CACHE INSTITUTION” (Exhibit ‘A’ of Applicant’s Affidavit). [Sic] [ 4 ] Mr. Pervez relies on the following Acts and regulation: (

i) Sections 10(

c) and 24(1) of the Canadian Charter of Rights and Freedoms ; (ii) the Corrections and Conditional Release Act , SC 1992, c 20 ; (iii) the Corrections and Conditional Release Regulations , SOR/92-620 ; and (iv) the Alberta Rules of Court , Alta Reg 124/2010 , rr 3.15 – 3.24. [ 5 ]

Section 10(

c) of the Charter provides that: “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. [ 6 ] Section 24(1) of the Charter reads: “Anyone whose rights or freedoms, as guaranteed by this Charter , have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances.” [ 7 ] Mr. Pervez’s Originating Application did not clearly specify the nature of remedy being sought.

Nevertheless, his substantive complaint about being denied transfer to Grande Cache Institution from Edmonton Institution, in the context of the constitutional and statutory provisions he referenced, leads me to conclude that Mr. Pervez sought to file an application for habeas corpus . [ 8 ] The Originating Application and the Affidavit of Mr. Pervez were brought to my attention. I have determined that this is an appropriate case to be reviewed in accordance with Civil Practice Note 7 (“CPN7”). II.

CPN7 [ 9 ] CPN7 is a document-based “show cause” process that provides a timely, proportionate, and cost-effective response to litigants and enables this Court to review relevant filings pursuant to r 3.68 of the Alberta Rules of Court : Unrau v National Dental Examining Board , 2018 ABQB 874 , 79 Alta LR (6th) 411 [ Unrau #1 ]. [ 10 ] If, on initial review by the Court, the pleading appears to be unmeritorious or has no prospect of success, the Court issues a first written decision that identifies the apparent issue(

s) which may be a basis to stay or dismiss the application. The party who filed the Originating Application is then given an opportunity to, within 14 days, provide the Court a Written Submission of up to a total of ten pages in length that responds to, and demonstrates why, the pleading is a legitimate action and should be permitted to continue.

The Written Submission must be served on the other parties to the litigation. [ 11 ] In that context, CPN7 is a mechanism that permits the Court to intervene when the defects are “apparent on the face” of the application’s commencement document: Unrau #1 , at paras 22, 24 . Subject to a few exceptions, only restricted forms of evidence are considered by the Court when it conducts a CPN7 review, since this process has a very narrow focus, and operates to examine a single document and its content: Ubah v Canadian Natural Resources Limited , 2019 ABQB 347 at paras 24-48 , 2019 CarswellAlta 903. III.

Potential Issue with Mr. Pervez’s Application [ 12 ] I have concluded that the habeas corpus application and affidavit filed by Mr. Pervez do not meet the minimum criteria required for the motion to proceed to a hearing.

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a) No Change in Residual Liberty [13] A habeas corpus remedy may be available to a serving prisoner where the incarcerated person is placed into a “newdetention” under a “legal authority” that results in a “distinct form of confinement or detention” which is “a significant reduction in theresidual liberty of the inmate”: R v Miller, (SCC), [1985] 2 SCR 613 at 640-641; May v Ferndale Institution, 2005 SCC82 at paras 27-28; and Gogan v Attorney General of Canada, 2017 ABQB 609 at paras 41-52; cited in Hamm v Canada (AttorneyGeneral), 2019 ABQB 247 at para 108(4). [14] The Originating Application and the Affidavit of Mr.

Pervez do not identify any “new detention” which has had a “significantreduction in the residual liberty of the inmate.” As far as the materials disclose, Mr. Pervez is currently, and has been for some time, in amaximum-security setting. Even assuming that he was denied a reclassification to a medium-security status or denied transfer to GrandeCache Institution, that does not amount to a change in his residual liberty: May v Ferndale Institution at para 28. [15] Mr.

Pervez was in the Edmonton Institution at the time he was denied reclassification to a medium-security status (assumingthat this is a decision he complains of) and at the time of the denial of the transfer. Mr. Pervez continues to be in the EdmontonInstitution. There has been no change of his liberty status. [16] This is the first concern with respect to the viability of Mr. Pervez’s application. (

b) Why is the Warden of Grande Cache Institution a Proper Respondent? [17] Furthermore, Mr. Pervez is an inmate detained at the Edmonton Institution. Despite this, his habeas corpus application ismade against the Warden of the Grande Cache Institution. Since the Warden of the Grande Cache Intuition does not now have, andapparently has never had, custody of Mr. Pervez, it is unclear how a habeas corpus remedy can be legitimately advanced against theWarden of Grande Cache Institution. [18] This is the second concern with respect to the viability of Mr. Pervez’s application. (

c) Who Made the Decision that Denied Transfer? [19] A related concern is that the Applicant’s Originating Application and Affidavit do not include a copy of the impugnedWarden’s administrative decision that he challenges, nor are particulars provided. Thus, it is unclear from the filed materials whichInstitution’s Warden made the decision that denied Mr. Pervez transfer from a maximum-security institution into a medium securityprison. [20] This is the third concern with respect to the viability of Mr. Pervez’s application. (

d) Why Was the Decision Unreasonable or Procedurally Unfair? [21] The final concern with respect to the viability of Mr. Pervez’s application is that the materials provide no indication as to alegitimate ground for why the transfer decision was unreasonable or why the decision was procedurally unfair. IV. Disposition [22] On a preliminary review, Mr. Pervez’s application has a basis for CPN7 review, and this Court seeks response from himregarding the following concerns: i.

Does the denial of transfer from maximum to medium-security level constitute a “more restrictive or severe” form ofconfinement, thus resulting in a residual deprivation of liberty? ii. On what basis is the Warden of Grande Cache Institution a proper party to this habeas corpus application? iii. Who made the decision being challenged by Mr. Perevez? Was it the Warden of Grande Cache Institution or the Wardenof Edmonton Institution? Were written reasons given for the decision? iv. On what basis does Mr.

Pervez suggest that the denial of transfer (or the denial of reclassification) was unreasonable orwas procedurally unfair? [23] The CPN7 process now moves to its second step. [24] Mr. Pervez has 14 days, after this decision is filed and served, to prepare a Written Submission of no more than a total of 10pages to respond to the concerns identified in these Reasons. The Written Submission must be filed and served on the Respondents in

accordance with CPN7, para 3(b). [ 25 ] If no Written Submission is received by the Court by that deadline, the Court will proceed to render its final decision on whether the Application should be stayed or dismissed, per Rule 3.68 (CPN7, para 3(c)). [ 26 ] If Mr. Pervez provides and serves a Written Submission, then the Respondents have seven days to make a Written Reply of up to a total of 10 pages in length (CPN7, para 3(d)). [ 27 ] After receipt of Mr.

Pervez’s Written Submission and the Respondents’ Written Reply, if any, the Court will render its final decision on the Application, per CPN7, para 3(e). [ 28 ] This matter was scheduled to be spoken to on December 20, 2019 at the Queen’s Bench Appearance Court. That scheduling is cancelled. Dated at the City of Edmonton, Alberta this 16 th day of December, 2019. John T. Henderson J.C.Q.B.A. Appearances: Usman Pervez Self-Represented Litigant Alexander Brooker for the Respondent