R v Mahoney, 2021 ABQB 163

Court of Queen’s Bench of Alberta Citation: R v Mahoney, 2021 ABQB 163 Date: 20210302 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 Documents per

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 the

applicant’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] 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. [4] After review of Mr. Mahoney’s habeas corpus Application, and the materials provided by the Respondents, I concluded in adecision reported as R v Mahoney, 2021 ABQB 118 [Mahoney #1] that Mr. Mahoney’s Application exhibited multiple prima faciedefects that warranted a CPN7 document-based “show cause” review. I requested Mr. Mahoney submit to the Court an up to ten-pageWritten Submission that responded to three 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, 2020Parole 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? [5] A five-page Written Submission was received from Mr. Mahoney on February 22, 2021. Counsel for the Respondentssubmitted a four-page Written Reply on February 25, 2021. The next step in the CPN7 process is now to determine whether Mr.Mahoney’s habeas corpus applications should proceed or not, in whole or in part. II. CPN7 Analysis [6] As indicated in Mahoney #1 at para 10, the Court admitted and considered documents relating to Mahoney v Her Majestythe Queen, Federal Court docket T-1078-20.

These items were admissible as evidence that an AVAP is an attempt to re-litigate an issue:Ubah v Canadian Natural Resources Limited, 2019 ABQB 347 at para 45. Otherwise, the analysis that follows relies on thesubmissions of the parties, and Mr. Mahoney’s filed habeas corpus application materials. A. No Deprivation of Liberty [7] Mr. Mahoney’s complaint is that the Parole Board of Canada and Parole Board of Canada Appeal Division erred when hewas not released on parole. In his habeas corpus Application, Mr.

Mahoney explicitly seeks as a remedy that he is released from theDrumheller Institution: “Grant the applicants Day and Full parole Transition house Elpida North”. Mahoney #1 at paras 11-13 observedthat habeas corpus is only available to challenge a detention. Mr.

Mahoney was asked to identify what “new detention” under a “legalauthority” that results in a “distinct form of confinement or detention” which is “a significant reduction in the residual liberty of theinmate” (R v Miller, (SCC), [1985] 2 SCR 613 at 640-641; May v Ferndale Institution, 2005 SCC 82 at paras 27-28;and Gogan v Attorney General of Canada, 2017 ABQB 609 at paras 41-52) resulted from the decisions of the Parole Board apparatus. [8] Mr. Mahoney’s Written Submission advances two points in response to this question. First, Mr.

Mahoney submits that inMission Institution v Khela, 2014 SCC 24, the Supreme Court of Canada: ... recognized that “Habeas Corpus Should develop over time to ensure ... no one should be deprived of their liberty without lawfulAuthority” ... [Sic.] [9] This argument is non-responsive and irrelevant. While the Supreme Court of Canada has stated habeas corpus as an adaptiveremedy, habeas corpus still first requires that the applicant, in this case Mr.

Mahoney, as a preliminary step establish on a balance ofprobabilities that the applicant has experienced a deprivation of liberty: Mission Institution v Khela at para 30. [10] Mr. Mahoney’s second point is:

When you Consider this fact a denial of Parole is indeed essentially or effectively a new detention, under a legal Authority, that results ina distinct form of Confinement or detention, which is a Significant reduction in the residual liberty of the offender; and this is true notonly in the eyes of the reviewing Court but also in the eyes of the offender. [Sic, emphasis in original.] [11] Prior to his Parole Board of Canada and Parole Board of Canada Appeal Division decisions, Mr. Mahoney was detained in theDrumheller Institution, a medium security facility. Mr.

Mahoney was still detained in the Drumheller Institution, under the samecircumstances, after he was denied parole by the Parole Board of Canada and Parole Board of Canada Appeal Decision proceedings. Thefact is nothing has changed in Mr.

Mahoney’s detention circumstances. [12] The Respondents in their Written Reply identify numerous Canadian court decisions that are explicit that habeas corpus hasno application when habeas corpus is advanced to challenge a decision that denies release or reduced detention: Littlejohn v HerMajesty the Queen (#2), 2020 ABQB 762 at para 10; Dumas v Leclerc Institute, (SCC), [1986] 2 SCR 459, 34 DLR(4th) 427; Ewanchuk v Canada, 2017 ABCA 145 at paras 19-20; Heiser v Bowden Institution, 2018 ABQB 114 at paras 33-34; Bieverv Alberta (Director of Edmonton Remand Centre), 2015 ABQB 609 at paras 33-35; Mapara v Ferndale Institution (Warden), 2012BCCA 127 at paras 15-16, leave to appeal to SCC refused, 34818 (27 September 2012). [13] The authorities identified in Mahoney #1 and by the Respondents make it absolutely clear that Mr.

Mahoney’s argument isincorrect. A new and more restrictive detention is required to trigger habeas corpus review. More specifically, Lamer J in Dumas vLeclerc Institute stated: ... if parole is refused, it is obvious that the inmate has not become a parolee and he cannot have recourse to habeas corpus to challengethe decision. [14] This is a first basis on which I find that Mr. Mahoney’s habeas corpus Application is hopeless, an abuse of the Court’sprocesses, and should be struck out on that basis. B. No Habeas Corpus Review of Parole Board of Canada Proceedings [15] Mr.

Mahoney challenged decisions of the Parole Board of Canada and Parole Board of Canada Appeal Division decisions. InMahoney #1 at paras 14-16, I noted that the Alberta Court of Appeal has ruled that habeas corpus is not available to review decisions ofthe Parole Board of Canada: Armaly v Canada (Parole Service), 2001 ABCA 280 at para 4, R v Latham, 2018 ABCA 267 at paras 9-10.Mr. Mahoney was asked to explain why Armaly v Canada (Parole Service) is not a binding authority that prohibits this Court fromreviewing the May 8, 2020 Parole Board of Canada decision. [16] Mr.

Mahoney’s Written Submission is non-responsive to this question. The Written Reply by the Respondents identifies afurther factor: that any Alberta Court of Queen’s Bench habeas corpus review of a Parole Board of Canada Appeal Division decisionhas, as a precondition, that 1) the Parole Board of Canada revoked the applicant’s parole, and 2) that the Parole Board of Canada AppealDivision confirmed that outcome: Heiser v Canada (Attorney General), 2020 ABQB 456 at paras 23-24. That is factually not whatoccurred with Mr. Mahoney. [17] I agree with the Respondents’ analysis.

Armaly v Canada (Parole Service) prohibits Mr. Mahoney from challenging both thedecisions of the Parole Board of Canada, and the Parole Board of Canada Appeal Division. This conclusion is a second independent basiswhy Mr. Mahoney’s habeas corpus Application should be struck out as an abusive proceeding. C. Duplicate Federal Court and Alberta Court of Queen’s Bench Proceedings [18] A third issue with Mr. Mahoney’s habeas corpus Application is identified in Mahoney #1 at paras 17-19: Mr.

Mahoney’sFederal Court docket T-1078-20 judicial review and the current Alberta Court of Queen’s Bench habeas corpus Application appear to beduplicate proceedings that seek the same remedy. [19] Mr. Mahoney’s Written Submission makes two points. First, Mr. Mahoney claims: Certiorari in Aid is not available at the Federal Court J Review, therefore without the full and complete record the Federal Court wouldnot be in a position to grant any such orders. (An order substituting its decisions for that of the original decision maker). [Sic.] This statement is simply false.

Federal Courts Act, RSC 1985, c F-7, s 18(1) gives the Federal Courts exclusive jurisdiction to issue awrit of certiorari in relation to federal boards, commissions, or other tribunals. In fact, in Mission Institution v Khela at paras 31-32,Lebel J is explicit that any “decisions made within federal prison walls” are the sole domain of the Federal Courts - including “writs ofcertiorari” - except for habeas corpus which is omitted from the relevant Federal Courts Act provisions. [20] Second, Mr.

Mahoney claims habeas corpus at the Alberta Court of Queen’s Bench has as its “sole purpose ... a swift ordergranting Day and full parole and an order transferring the application “immediately” to a halfway house ...”. As I have previouslyexplained, Mr. Mahoney is wrong. Habeas corpus does not have this function. Mr. Mahoney has abused this Court’s processes byattempting to misapply habeas corpus in this manner. [21] Third, Mr. Mahoney now claims that in his Federal Court docket T-1078-20 action “... the Sole purpose there is to obtainmonetary relief ...”. This claim is an ex post facto fabrication.

The docket T-1078-20 application makes no claim for money, but insteadseeks that the Federal Court quash the same parole decisions that Mr. Mahoney has also targeted in his Alberta Court of Queen’s Benchhabeas corpus proceedings. [22] The Respondents claim, and I agree, that Mr. Mahoney’s Federal Court and Alberta Court of Queen’s Bench applications areduplicative, wasteful, and abusive proceedings. The Application should be struck out on that basis: Unrau v National Dental Examining

Board , 2019 ABQB 283 at para 613 [ Unrau #2 ]. [ 23 ] The Respondents also argue that, in general, abuse of habeas corpus is a particularly serious form of litigation misconduct given the unusual harm these proceedings inflict on provincial superior courts: Jonsrud v Fader , 2021 ABQB 48 at para 6 ; Ewanchuk v Canada (Attorney General) , 2017 ABQB 237 at paras 170-187 ; Hamm v Canada (Attorney General) , 2019 ABQB 247 at paras 183- 265 . Again, I agree. [ 24 ] Mr.

Mahoney did not respond to the Mahoney #1 para 19 question of why his Alberta Application was not “forum shopping”, abusive litigation conduct where a person subject to court access restrictions in one jurisdiction (for Mr. Mahoney, the Federal Court: Mahoney v Canada , 2020 FC 975 ) evades those gatekeeping steps by switching to litigate in a different jurisdiction. The Respondents’ Written Reply argues that Mr. Mahoney is engaged in forum shopping since Mr.

Mahoney: ... is simply attempting to initiate new litigation concerning the very same Parole Board decisions at issue in his Federal Court judicial review in a forum in which he is not subject to court access restrictions. [ 25 ] I find on a balance of probabilities that Mr. Mahoney’s Alberta Court of Queen’s Bench habeas corpus application is not only a duplicate proceeding and abusive litigation on that basis, but also that Mr. Mahoney is an abusive litigant. When Mr. Mahoney filed his habeas corpus Application with the Alberta Court of Queen’s Bench, Mr.

Mahoney attempted to evade litigation management in the Federal Court by “forum shopping” his challenges to the Parole Board of Canada and Parole Board of Canada Appeal Division decisions into a jurisdiction where Mr. Mahoney is not subject to prospective case management gatekeeping. Mr. Mahoney’s “forum shopping” is a very serious form of litigation misconduct that demonstrates bad intent: Unrau #2 at paras 679-685, 695-697 . [ 26 ] These are both additional independent reasons to terminate Mr. Mahoney’s habeas corpus litigation as an abuse of court processes. III. Conclusion [ 27 ] Mr.

Mahoney’s habeas corpus Application is struck out on four independent bases as abusive litigation. When an action is terminated via the CPN7 process, the usual practice of this Court is to award costs in favour of the litigant who referred the matter to the Court: e.g. Ahad v Calgary Housing Company , 2020 ABQB 450 at para 9 ; Phillips v Kenney , 2020 ABQB 452 at para 9 ; Skrypichayko v Law Society of Alberta , 2020 ABQB 604 at para 43 ; Feeney v Alberta , 2020 ABQB 633 at para 6 . Counsel for the Respondents requested $250 in costs. I would have awarded more, given the abusive character of Mr.

Mahoney’s Application. Mr. Mahoney is ordered to pay the Respondents $250 in costs, forthwith. [ 28 ] Counsel for the Respondents will prepare and serve the Order giving effect to this decision. Mr. Mahoney’s approval of that Order is dispensed with, pursuant to Rule 9.4(2)(c). Mr. Mahoney may be served this decision and the corresponding Order by email to the address identified in his Written Submission. Dated at the Town of Drumheller, Alberta this 2 nd day of March, 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