R v Mahoney, 2021 ABQB 118

Court of Queen’s Bench of Alberta Citation: R v Mahoney, 2021 ABQB 118 Date: 20210216 Docket: 2102 00005 Registry: Drumheller Between: Clinton Mahoney Applicant - and - Her Majesty the Queen, Drumheller Institution, and Parole Board of Canada Respondents _______________________________________________________ Memorandum of Decision of the Honourable Mr. Justice C.M. Jones _______________________________________________________ I. Introduction [ 1 ] Clinton Mahoney [Mr.

Mahoney] is currently serving a life sentence for first degree murder and is detained in the Correctional Service Canada [CSC] Drumheller Institution. On May 8, 2020, the Parole Board of Canada refused Mr. Mahoney parole. On August 17, 2020 the Parole Board of Canada Appeal Division confirmed the May 8, 2020 decision. [ 2 ] Mr. Mahoney on January 21, 2021 filed with the Alberta Court of Queen’s Bench an “Application for Habeas Corpus

Certiorari in Aid” [“Application”], along with a document titled “Legal Arguement Supporting Relief Claims and Supporting Documentsper

part 2 Division 1 Criminal procedure rules and Draft of orders sought.” [sic]. The Application seeks that the Court: 1. Quash the May 8th and/or August 17th 2020 Parole Board of Canada (PBC) and PBC appeal division’s decisions on theapplicant’s risk to reoffend and Day and Full parole application 2. Grant the applicants Day and Full parole Transition house Elpida North 3. Any other order the Court may see fit. [Sic.] Mr. Mahoney has many complaints that he directs at the CSC and the Parole Board of Canada and Parole Board of Canada AppealDivision. [3] Mr.

Mahoney’s habeas corpus application is a civil proceeding since Mr. Mahoney is detained by the CSC and hiscomplaint relates to post-conviction events: Ross v Riverbend Institution, 2008 SKCA 19; Lee v Canada (Attorney General), 2018ABQB 40 at 118-129. The first hearing of Mr. Mahoney’s application is set for February 18, 2021. [4] On February 11, 2021 counsel for the Respondents by letter to me referred Mr. Mahoney’s application as a candidateApparently Vexatious Application or Proceeding [AVAP] pursuant to Civil Practice Note No. 7 [CPN7], paragraph 6. Counsel for theRespondents indicated two defects in Mr.

Mahoney’s Application: 1. this Court has no basis to review decisions of the Parole Board of Canada and Parole Board of Canada Appeal Divisions byhabeas corpus since Mr. Mahoney did not identify a deprivation of liberty that resulted from those decisions, and 2. Mr. Mahoney’s current habeas corpus application is duplicate litigation to a judicial review underway in the Federal Court(Mahoney v Her Majesty the Queen, Federal Court docket T-1078-20), and the habeas corpus application is therefore an abuse ofprocess. The Respondents attach a copy of Mr.

Mahoney’s Federal Court T-1078-20 application and the electronic docket record for that matter. [5] I have reviewed Mr. Mahoney’s court filings and have concluded on multiple bases that this filing is an AVAP that shouldbe reviewed under the CPN7 document-based “show cause” procedure. [6] Mr. Mahoney on February 12, 2021 wrote a letter in response to the Respondents’ CPN7 referral. This decision does notrespond to Mr. Mahoney’s February 12, 2021 correspondence, and I will not discuss these premature submissions further.

Instead, Mr.Mahoney will have a full opportunity to respond to this CPN7 procedure as discussed later in the decision. II. CPN7 [7] 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]. [8] 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) which may be a basis to applyRule 3.68 and strikes out the pleading. The party who filed the pleading is then given an opportunity to, within 14 days, provide theCourt a Written Submission of up to a total of ten pages in length that responds to, and demonstrates why, the pleading is a legitimateaction and should be permitted to continue. The Written Submission must be served on the other parties to the litigation. [9] 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 #2 at paras 24-48. There are exceptions to that rule.

For example, the Court mayexamine other documents in the same proceeding that are related to the suspect filing (Ubah #2 at para 35), or documents and recordsthat are evidence that the AVAP is an attempt to litigate an issue that has already been decided or closed (Ubah #2 at para 45). III. CPN7 Analysis [10] As a preliminary point, I admit and have considered the Federal Court docket T-1078-20 documents provided by theRespondents as evidence that an AVAP is an attempt to re-litigate an issue: Ubah #2 at para 45. My review of Mr. Mahoney’s materialsand the Federal Court materials indicates Mr.

Mahoney’s Application appears to exhibit a number of issues. A. No Deprivation of Liberty [11] 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.

[ 12 ] Mr. Mahoney’s application is explicit that what he seeks is that the Court reverse and overrule the Parole Board of Canada and Parole Board of Canada Appeal Division decisions that denied him parole. He seeks to have the Court review a decision that denied release , and not a decision that imposed a “new detention” that is “a distinct form of confinement or detention”. [ 13 ] I therefore request that Mr. Mahoney identify a legal basis for this Court to engage habeas corpus and overturn a decision that denied Mr. Mahoney parole. B. No Habeas Corpus Review of Parole Board of Canada Proceedings [ 14 ] Mr.

Mahoney appears to challenge both the Parole Board of Canada and Parole Board of Canada Appeal Division decisions. In Armaly v Canada (Parole Service) , 2001 ABCA 280 at para 4 , Chief Justice Fraser ruled: ... The [ Corrections and Conditional Release Act, SC 1992, c 20 ] 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. ... [ 15 ] Subsequently, Slatter JA in R v Latham , 2018 ABCA 267 at paras 9-10 confirmed that the Parole Board of Canada is a complete, comprehensive, and expert procedure, and that Armaly v Canada (Parole Service) is a binding authority for that rule: ... 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. ... [Emphasis added.] [ 16 ] I therefore ask Mr.

Mahoney to explain why Armaly v Canada (Parole Service) is not a binding authority that prohibits this Court from reviewing the May 8, 2020 Parole Board of Canada decision. C. Duplicate Federal Court and Alberta Court of Queen’s Bench Proceedings [ 17 ] This Court has an authority to receive habeas corpus applications of decisions of the Parole Board of Canada Appeal Division as an alternative to judicial review before the Federal Court: DG v Bowden Institution , 2016 ABCA 52 . I note paragraph 1(

A) of Mr. Mahoney’s judicial review application seeks this remedy: Declare invalid, unlawful, quash, set-aside and refer back for determination the PBC appeal Divisions Decision with Directions prohibiting the appeal Division from relying on 1.) The May 8 2020 PBC Decision or findings. Mr. Mahoney’s Alberta Court of Queen’s Bench habeas corpus application also seeks to “quash” the August 17, 2020 Parole Board of Canada Appeal Division decision. [ 18 ] Mr. Mahoney appears to be conducting two proceedings relating to the same tribunal decision, and he is seeking, at a minimum, related remedies.

Conducting multiple proceedings with the same purpose is an abuse of court: Unrau v National Dental Examining Board , 2019 ABQB 283 at para 613 [ Unrau #2 ]. I therefore request Mr. Mahoney explain how he is not conducting duplicate and abusive proceedings. [ 19 ] Mr. Mahoney is currently subject to court access restrictions in the Federal Court as a vexatious litigant: Mahoney v Canada , 2020 FC 975 . Mr.

Mahoney now has initiated a new proceeding that appears to duplicate his Federal Court docket T-1078-20 proceeding in a jurisdiction where he is not subject to court access restrictions. “Forum shopping” is when an abusive litigant switches between jurisdictions to evade the litigant management steps, and is a very serious form of litigation misconduct that demonstrates bad intent: Unrau #2 at paras 679-685, 695-697 . Mr. Mahoney is requested to explain how he is not engaged in forum shopping his litigation. IV. CPN7 Analysis [ 20 ] Mr.

Mahoney’s habeas corpus Application appears to be a suitable candidate for review pursuant to CPN7. The Court therefore seeks a response from Mr. Mahoney on these questions: 1. What is the legal basis for this Court to engage habeas corpus to overturn a decision that denied Mr. Mahoney parole? 2. Why is Armaly v Canada (Parole Service) not a binding authority that prohibits this Court from reviewing the May 8, 2020 Parole Board of Canada decision? 3. How is Mr. Mahoney’s habeas corpus Application not:

a) a duplicate proceeding to the Federal Court docket T-1078-20 judicial review, and

b) abusive forum shopping? [ 21 ] Mr. Mahoney’s Alberta Court of Queen’s Bench Action 2102 00005 habeas corpus Application is stayed. The February 18,

2021 hearing is cancelled. CPN7 now advances to its second step. 1. Mr. Mahoney has until 14 days after this decision is filed to file and serve a Written Submission of no more than a total of 10 pages, pursuant to CPN7, para 3(b). The Written Submission should be clearly addressed: “To the Attention of Justice Jones”. 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, pursuant to Rule 3.68 (CPN7, para 3(c)). 3. If Mr.

Mahoney 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)). The Written Reply should be clearly addressed: “To the Attention of Justice Jones”. 4. After receipt of Mr.

Mahoney’s Written Submission, and the Respondents’ Written Reply, if any, the Court will render its final decision on whether the Alberta Court of Queen’s Bench Action 2102 00005 habeas corpus Application should be struck out in whole or in part, pursuant to Rule 3.68 (CPN7, para 3(e)). [ 22 ] The Court will prepare and serve the Order staying this action. Mr. Mahoney’s approval of that Order is dispensed with, pursuant to Rule 9.4(2)(c). Dated at the Town of Drumheller, Alberta this 16 th day of February, 2021. C.M. Jones J.C.Q.B.A.

Appearances: Clinton Mahoney Self-represented Litigant Keelan Sinnott Prairie Region Department of Justice Canada for the Respondents