Heiser v Bowden Institution, 2021 ABQB 1007

Court of Queen’s Bench of Alberta Citation: Heiser v Bowden Institution, 2021 ABQB 1007 Date: 20211216 Docket: 2103 17224 Registry: Edmonton Between: Chancey Brent Heiser Applicant - and - Warden of Bowden Institution, the Parole Board of Canada, Correctional Service Canada, and Attorney General of Canada Respondents _______________________________________________________ Memorandum of Decision of the Honourable Mr. Justice John T. Henderson _______________________________________________________ I. Introduction [ 1 ] On December 14, 2021, Counsel for Chancey, Brent Heiser [Mr.

Heiser] filed an “Originating Application for a Writ of Habeas Corpus As Subjiciendum” [Application] and an Affidavit of Mr. Heiser, affirmed on November 5, 2021. Mr. Heiser is an inmate at the Correctional Service Canada medium security Bowden Institution. The Application seeks two alternative remedies: ... An Order for Judicial Review in the nature of habeas corpus quashing the September 17, 2020 decision of the [Parole Board of

Canada] depriving the Applicant of his liberty to remain on parole; ... In the alternative, an Order for Judicial Review in the nature of habeas corpus quashing the July 9, 2021 decision of the [Parole Boardof Canada Appeal Division] confirming the ongoing deprivation of the Applicant's liberty; [2] I note that the Application does not make any allegations of wrongdoing or involvement by the Respondents; the Warden ofBowden Institution, Correctional Services Canada, or the Attorney General of Canada. The Application does not name the Parole Boardof Canada Appeal Division as a party, though it is clear that Mr.

Heiser seeks a remedy against that Tribunal. [3] The Application was identified by Counsel for Mr. Heiser as “Urgent” and that it should proceed as an emergency matter.The Application has been set down for a first appearance on December 17, 2021, in the Edmonton Queen’s Bench Appearance Court[QBCA]. [4] This Court is required by law to place a special priority on any application for habeas corpus, given the unique status of thisremedy in the UK common law tradition as a swift,

summary mechanism by which to evaluate the alleged illegality of a detention: In ReStorgoff, (SCC), [1945] SCR 526 at 590-591; Mission Institution v Khela, 2014 SCC 24 at para 3; DG v BowdenInstitution, 2016 ABCA 52 at paras 41, 124. [5] In light of this Court’s obligation to advance habeas corpus matters in a prioritized manner, Mr. Heiser’s Application wasimmediately reviewed. That review has identified what appear to be potential issues with Mr. Heiser’s Application.

On that basis, theCourt is implementing a Civil Practice Note No. 7 [CPN7] document-based “show cause” process pursuant to CPN7, para 5 to evaluatewhether Mr. Heiser’s Application should be struck out per Rule 3.68. II. CPN7 [6] CPN7 is a practice implemented by the Court to better manage litigation that, on its face, appears to be unmeritorious, has noprospect of success, or is otherwise abusive and vexatious.

This practice is intended to provide a timely, proportionate, and cost-effectiveresponse to the litigants: Unrau v National Dental Examining Board, 2018 ABQB 874 [Unrau #1]. [7] If, on initial review by the Court, the pleading appears to be unmeritorious, has no prospect of success, or is otherwiseabusive and vexatious, then the Court issues a first written decision that identifies the apparent issue(

s) that may be a basis to apply Rule3.68 and strike out the pleading. The party who filed the pleading is then given an opportunity to, within 14 days, provide the Court aWritten Submission of up to a total of ten pages in length that responds to, and demonstrates why, the pleading is a legitimate action andshould be permitted to continue. The Written Submission must be served on the other parties to the litigation. [8] CPN7 is not for “close calls”, but instead the Court intervenes by this mechanism when the defect(

s) in question are“apparent on the face of the pleading”, and the suspect pleadings are “clearer cases of abuse”: Unrau #1, at paras 22, 24. Only restrictedforms of evidence are considered by the Court when it conducts a CPN7 review, since this process has a very narrow focus, and operatesto examine a single document and its content: Ubah v Canadian Natural Resources Limited, 2019 ABQB 347 at paras 24-48 [Ubah #2].One exception to that rule is the Court may examine other documents in the same proceeding which are related to the suspect filing:Ubah #2, at para 35. III. Analysis [9] Mr.

Heiser is seeking two different alternative habeas corpus applications. I will address each separately, but first review theevents that appear to be relevant, as extracted from Mr. Heiser’s filed materials. A. Timeline [10] The relevant events appear to be: • May 23, 2014 - Mr. Heiser is incarcerated for sexual assault, impersonating a peace officer, assault, unlawful confinement, utterdeath threats, and choking. • January 18, 2018 - Mr. Heiser files two habeas corpus applications. In one application Mr. Heiser challenges the legality of Mr.Heiser being denied day parole by the Parole Board of Canada.

On March 29, 2018, Mr. Heiser’s habeas corpus application was struckout as the Alberta Court of Queen’s Bench had no jurisdiction to conduct habeas corpus review of a decision of the Parole Board ofCanada (Heiser v Bowden Institution, 2018 ABQB 114, habeas corpus application struck out, 2018 ABQB 244) and Mr. Heiser wasordered to pay $500 in costs (Heiser v Bowden Institution, 2018 ABQB 340). Mr. Heiser did not appeal these decisions. • January 8, 2020 - Mr. Heiser is released into the community on full parole. • June 25, 2020 - Mr. Heiser’s parole is suspended by Parole Officers after Mr.

Heiser is charged with assault and forcibleconfinement. Mr. Heiser’s detention in Bowden Institution resumed. • June 29, 2020 - Mr. Heiser files a habeas corpus application demanding release because he claimed the actions of the ParoleOfficers in suspending his parole were illegal. • August 11, 2020 - Ho J (as she then was) in a decision reported as Heiser v Canada (Attorney General), 2020 ABQB 456 ruledthat the Alberta Court of Queen’s Bench has no jurisdiction to hear a habeas corpus application that targets a decision of the Parole

Board of Canada. Mr. Heiser’s June 29, 2020 application was “a futile application and an abuse of court processes”. Mr. Heiser did not appeal this decision. • September 17, 2020 - The Parole Board of Canada in a written decision revoked Mr. Heiser’s parole. Mr. Heiser continued to be detained in the Bowden Institution. • December 17, 2020 - The deadline for Mr. Heiser to appeal the September 17, 2020 Parole Board of Canada decision before the Parole Board of Canada Appeal Division lapses. • April 14, 2021 - The Parole Board of Canada denies Mr. Heiser’s Application for day parole. Mr.

Heiser’s detention in the Bowden Institution continued. • July 9, 2021 - The Parole Board of Canada Appeal Division dismissed Mr. Heiser’s appeal of the April 14, 2021 decision of the Parole Board of Canada. Mr. Heiser does not seek Federal Court judicial review of this decision. Mr. Heiser remains detained at the Bowden Institution. • December 14, 2021 - Mr. Heiser filed the current habeas corpus Application that targets the September 17, 2020 Parole Board of Canada and July 9, 2021 Parole Board of Canada Appeal Division decisions. B. September 17, 2020 Parole Board of Canada Decision [ 11 ] Mr.

Heiser’s Application is explicit that it seeks to quash the September 17, 2020 decision of the Parole Board of Canada. The law in Alberta is that the Alberta Court of Queen’s Bench has no jurisdiction to conduct habeas corpus proceedings to review decisions of the Parole Board of Canada because the Parole Board of Canada is a complete, comprehensive and expert procedure.

In El Sayed v Canada (Minister of Justice and Solicitor General) , 2021 ABQB 823 at paras 14-17 , I reviewed the relevant binding case law: [13] In Armaly v Canada , 2001 ABCA 280 at para 4 , Chief Justice Fraser explicitly concluded that proceedings before the Parole Board of Canada constitute a complete, comprehensive, and expert procedure: We are satisfied that Parliament did not intend a breach of procedural fairness, as has occurred here, to result in a non-remediable loss of jurisdiction. The CCRA provides a comprehensive statutory scheme for administering the parole review process .

Sound policy reasons exist for not setting the threshold for habeas corpus so low that it effectively creates a parallel system for challenging revocation or termination of parole. ... [Emphasis added.] [14] Slatter JA recently confirmed the binding status of Armaly v Canada in R v Latham , 2018 ABCA 267 at paras 9-10 , leave to appeal to SCC refused, 38437 (14 March 2019): ... The writ of habeas corpus is a fundamental constitutional remedy designed to review the legality of detentions.

It is not intended to be used as an all-purpose remedy to allow serving prisoners to raise any and all complaints and grievances they have about the condition of their detention, or their parole status. There are specialized procedures in place to deal with those complaints . ... As this Court has held, issues respecting parole should be dealt with under the specialized provisions available for that purpose, not by habeas corpus: Armaly v Canada (Parole Service), 2001 ABCA 280 , 299 AR 188.

The applicant argues that some of the persons who have suspended his parole are employees of Correctional Services Canada, not the Parole Board, and that the Parole Board has declined jurisdiction over them. Under s. 135(1) of the Corrections and Conditional Release Act, SC 1992, c. 20 , “designated persons” may suspend parole when they suspect there has been a breach. The persons so designated may be employees of Correctional Services Canada, but when dealing with parole status they are acting as delegates of the Parole Board. Under s. 135(3)(

b) a suspension of parole must either be cancelled or referred to the Board within thirty days, and under s. 135(5) the Board must review the suspension. Section 147(1) provides for a further appeal to the Appeal Board. It is therefore clear that the applicant has available to him specialized remedies to address the suspension of his parole. [Emphasis added.] [15] Slatter JA subsequently, in R v Latham , 2018 ABCA 308 at para 7 , leave to appeal to SCC refused, 38437 (14 March 2019), repeated that the Alberta Court of Queen’s Bench should not take habeas corpus jurisdiction over parole matters: “...

The applicant’s attempt to use habeas corpus to invite the superior courts to review the management of the corrections and parole systems is inappropriate.” R v Latham , 2018 ABCA 308 rejected claims by the applicant prisoner that decisions of Parole Officers are distinct from decisions of the Parole Board itself and therefore subject to habeas corpus review: para 6. [16] Nor is the position held by the Alberta Court of Appeal in some sense anomalous.

Instead, over 20 years, every Court of Appeal in Canada that has evaluated this question has concluded that the Parole Board of Canada is a complete, comprehensive and expert apparatus: R v Marshall , 2002 ABCA 185 ; LRF v Canada (National Parole Board) , 2008 NSCA 56 ; Lord v Coulter , 2009 BCCA 62 ; R v Latham , 2009 SKCA 26 ; R v Ross , 2009 SKCA 24 at para 8 ; John v Canada (National Parole Board) , 2011 BCCA 188 , leave to appeal to SCC refused, 34309 (1 December 2011); R v Graham , 2011 ONCA 138 ; Lena v Donnacona Prison , 2011 QCCA 140 ; Blais v Canada (Attorney General) , 2012 NSCA 109 , leave to appeal to SCC refused, 35092 (14 February 2013); Woodhouse v Canada (Correctional Service) , 2012 BCCA 45 at para 15 ; Chaudhary v Frontenac Institution , 2012 ONCA 313 , leave to appeal to SCC refused, 34917 (15 November 2012); PSL v Matsqui Institution , 2013 BCCA 390 at para 30 ; R v Latham , 2016 SKCA 14 , leave to appeal to SCC refused, 36947 (8 September 2016). [17] Furthermore, there are no dissenting decisions of the Alberta Court of Queen’s Bench.

Instead, this Court has consistently rejected jurisdiction over habeas corpus applications that challenge decisions of the Parole Board of Canada, including: Tuckanow v Bowden Penitentiary , 2014 ABQB 563 ; Rain v Canada (Parole Board) , 2015 ABQB 639 ; LeBlanc v Canada (Attorney General) , 2016 ABQB 350 ; Blea v Warden of Bowden Institution (24 June 2016), Edmonton 160467759X1 (Alta QB); Doll v AGC and Warden of

Bowden Institution (14 October 2016), Edmonton 161070743X1 (Alta QB); Melnick v AGC and Institutional Warden or Head ofBowden Institution (21 October 2016), Edmonton 160866208X1 (Alta QB); Hamm v Morgan (Last Name Unknown), 2017 ABQB156; Willis v Attorney General of Canada, 2017 ABQB 540; Hart v Her Majesty the Queen (24 October 2017), Edmonton 1703-18189(Alta QB); Lee v Canada (Attorney General), 2018 ABQB 40; Latham (Re), 2018 ABQB 906; Heiser v Canada (Attorney General),2020 ABQB 456; Dombroskie v Canada (Parole Board), 2020 ABQB 625, habeas corpus application struck as an abuse of court, 2020ABQB 699; Littlejohn v Her Majesty the Queen (#2), 2020 ABQB 762; R v Mahoney, 2021 ABQB 118, habeas corpus applicationstruck out as an abuse of court, R v Mahoney, 2021 ABQB 163. [12] I request Mr.

Heiser explain why this Court is not subject to binding jurisprudence of the Alberta Court of Appeal thatprohibits this Court from engaging habeas corpus to review any decision of the Parole Board of Canada. [13] Habeas corpus is only relevant to current and ongoing detention.

Habeas corpus does not apply to hypothetical futuredetention, or historic detentions: Cundell v Bowden Institution, 2016 ABQB 348 at para 37, Dumas v Leclerc Institute, (SCC), [1986] 2 SCR 459 at paras 12-14, 34 DLR (4th) 427; R v Latham, [2000] OJ No 3720 at paras 21-23 (QL), 2000 CarswellOnt348 (Sup Ct J). “Habeas corpus is only a remedy for the here and now.”: Ewanchuk v Canada (Attorney General), 2017 ABQB 237 atpara 23, appeal abandoned, Edmonton 1603-0287AC (Alta CA). [14] Mr. Heiser’s current detention in the Bowden Institution appears to be the consequence of Mr.

Heiser’s unsuccessful April 14,2021 Parole Board of Canada application that denied Mr. Heiser day parole. Mr. Heiser is asked to indicate why his challenge to theSeptember 17, 2020 Parole Board of Canada decision is not a prohibited attempt to conduct a habeas corpus review of a historicdetention. C. July 9, 2021 Parole Board of Canada Appeal Division Decision [15] The July 9, 2021 Parole Board of Canada Appeal Division decision confirmed the Parole Board of Canada’s April 14, 2021decision to reject Mr. Heiser’s application for day parole. Prior to and after the April 14, 2021 and July 9, 2021 decisions, Mr.

Heiserwas incarcerated in the Bowden Institution medium security facility. [16] 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. [17] A valid habeas corpus application must: 1. identify the specific decision that caused a detention or a loss of residual liberty; 2. prove detention or loss of residual liberty on a balance of probabilities; and 3. establish “a basis,” or a “legitimate ground,” for why that decision is unlawful. (Badger v Canada, 2017 ABQB 457 at para 43; MacKinnon v Bowden Institution, 2017 ABQB 574 at para 23, 92 Alta LR (6th) 345,appeal struck as abandoned, 1703 0273AC (28 November 2017); Gogan v Attorney General of Canada at para 27; Loughlin v HerMajesty the Queen, 2018 ABQB 45 at para 33, 74 Alta LR (6th) 171; Lee v Canada (Attorney General), 2018 ABQB 40 at para 132;Boviz v Canada (Attorney General), 2018 ABQB 110 at paras 11-17, confirmed 2018 ABQB 215; Getschel v Canada (AttorneyGeneral), 2018 ABQB 409 at paras 44-46; Shoemaker v Canada (Drumheller Institution), 2018 ABQB 851 at paras 45-51, rev’d onother grounds 2019 ABCA 266; Latham (Re), 2018 ABQB 906 at para 16; Leslie v Edmonton Institution, 2020 ABQB 430 at para 14.) [18] Mr.

Heiser does not appear to have established on a balance of probabilities a detention or loss of residual liberty that resultedfrom the July 9, 2021 decision of the Parole Board of Canada Appeal Division. I also note that in Dumas v Leclerc Institute, (SCC), [1986] 2 SCR 459, 34 DLR (4th) 427, the Court refused habeas corpus relief where an inmate was denied day paroleby the National Parole Board, the precursor to the current Parole Board of Canada and Parole Board of Canada Appeal Division. [19] Mr.

Heiser is asked to identify what detention or loss of residual liberty resulted from the July 9, 2021 Parole Board ofCanada Appeal Division decision that establishes Mr. Heiser’s Application is a valid habeas corpus proceeding. IV. Conclusion [20] Mr. Heiser’s Application appears to be an appropriate candidate for review per CPN7. The Court, therefore, seeks a responsefrom Mr.

Heiser to: 1. explain why this Court is not bound by Armaly v Canada, 2001 ABCA 280, R v Latham, 2018 ABCA 267, and R v Latham,2018 ABCA 308; 2. explain why his Application’s challenge to the September 17, 2020 Parole Board of Canada decision is not a prohibited attempt toconduct a habeas corpus review of a historic detention; and 3. identify the detention or loss of residual liberty that resulted from the July 9, 2021 Parole Board of Canada Appeal Divisiondecision. [21] Since I have concluded that Mr.

Heiser’s Application warrants review per CPN7, the Application is stayed until further notice.The December 17, 2021 QBAC appearance is cancelled.

[ 22 ] CPN7 now advances to its second step. 1. Mr. Heiser has until January 7, 2022 to prepare a Written Submission of no more than a total of 10 pages, to be filed and served to the Court, the Respondents, and the Parole Board of Canada Appeal Division, per CPN7, para 3(b). The Written Submission should be clearly addressed: “To the Attention of Justice Henderson”. 2. 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 struck out in whole or in part, per Rule 3.68 (CPN7, para 3(c)). 3. If Mr.

Heiser provides and serves a Written Submission, then the Respondents and the Parole Board of Canada Appeal Division each have until January 14, 2022 to make a Written Reply of up to a total of 10 pages in length (CPN7, para 3(d)). The Written Replies should be clearly addressed: “To the Attention of Justice Henderson”. 4. After receipt of Mr.

Heiser’s Written Submission, and the Respondents’ and the Parole Board of Canada Appeal Division’s Written Replies, if any, the Court will render its final decision on whether the Application should be struck out in whole or in part, per Rule 3.68 (CPN7, para 3(e)). [ 23 ] The Court will prepare and serve the Order staying this action. Mr. Heiser’s approval of that Order is dispensed with, pursuant to Rule 9.4(2)(c). Dated at the City of Edmonton, Alberta this 16 th day of December, 2021. John T. Henderson J.C.Q.B.A. Appearances: Amy Matychuk Lawyer, Prison & Police Law for the Applicant