Oughton v Bowden Institution, 2021 ABQB 183

Court of Queen’s Bench of Alberta Citation: Oughton v Bowden Institution, 2021 ABQB 183 Date: 20210308 Docket: 2103 00126 Registry: Edmonton Between: John Oughton Applicant - and - Commissioner of Corrections Anne Kelly and Warden of Bowden Institution Respondents _______________________________________________________ Memorandum of Decision of the Honourable Mr. Justice John T. Henderson _______________________________________________________ I. Introduction [ 1 ] On February 22, 2021, the Court received a fax from John Oughton [Mr.

Oughton], who is an offender detained in the Correctional Service Canada [CSC] medium security Bowden Institution. The fax included: 1. a fee waiver, 2. a 15-page document titled “Habeas Corpus with Certiorari and Mandamus in Aid” [Application], and

3. a ten-page Affidavit of Mr. Oughton, sworn on December 30, 2020. [2] The Application is actually a hybrid document that is less a pleading than an argument, and for example includes many “cutand paste” excerpts from case law. The Application and the supporting Affidavit were read together to fully evaluate Mr. Oughton’sclaims: MacKinnon v Bowden Institution, 2017 ABQB 574; Gogan v Attorney General of Canada, 2017 ABQB 609. [3] I distilled that the relevant alleged facts are: 1. Mr.

Oughton says he is an elderly man who is mentally ill, handicapped, requires a wheelchair, and who is suffering otherailments, including heart issues. He calls his conditions of incarceration “torture” that breaches Charter s 12. 2. Mr. Oughton has been refused release in 16 Parole Board of Canada hearings. 3. Mr. Oughton rejects the Parole Board of Canada’s decisions, says they are “meaningless”, and claims that the Parole Board ofCanada has failed to recognize Mr. Oughton’s rehabilitation and reintegration. 4. “Mr.

Oughton, the applicant, upon entering into the Federal penal system and to current date has been diagnosed as incompetent.It is incontestable that applicant could ever have a fair parole hearing. It’s just not possible.” 5. Prison guards are harsh, and constantly abuse Mr. Oughton. The guards issue institutional charges against Mr. Oughton, andinstruct mental health nurses to disrespect and verbally abuse Mr. Oughton. 6. Mr. Oughton has been denied access to his case file and legal resources, which breaches his Charter s 7 “right to make fullanswer and defence”. I note Mr.

Oughton does not indicate he is charged with any offence. 7. Mr. Oughton has been denied access to a lawyer, which is his legal right “without delay”. [4] Mr. Oughton argues that these facts mean “Corrections and the Parole Board have lost jurisdiction ...”, and that “... thesentence of the Petitioner has now become illegal ...”. Mr. Oughton says his Charter ss 1, 7, 9 and 12 rights have been breached, and thatshould result in a Charter s 24(1) remedy. On this basis Mr.

Oughton seeks an order: [1]- An order for the production of witnesses being all nurses on Unit-1 health ranges to be summoned before the court to give evidenceto how abusive and negligent I and other mentally and physically ill prisoners are abused, and [2]- An order for the production of witnesses being all doctors from outside hospitals to be summoned before the court to give evidenceof my colon cancer and heart condition and that this colon cancer could not have gone unnoticed, and [3]-An order for an absolute unconditional release from Corrections and Parole Services as per Gallichon v. and as identified as Khela v.as a compassionate release. [Sic, emphasis in original.] [5] Mr.

Oughton also seeks a court-appointed lawyer. [6] 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, [1945] 3 DLR 673; Mission Institution v Khela, 2014 SCC 24 at para 3;DG v Bowden Institution, 2016 ABCA 52 at paras 41, 124. [7] In light of this Court’s obligation to advance habeas corpus matters in a prioritized manner, Mr. Oughton’s Application wasimmediately reviewed. That review has identified what appears to be potential issues with Mr. Oughton’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. Oughton’s Application should be struck out per Rule 3.68. II. CPN7 [8] 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, 79 Alta LR (6th) 411 [Unrau #1]. [9] 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 strike out the pleading. The party who filed the pleading is then given an opportunity to, within 14 days, provide the Courta Written Submission of up to a total of ten pages in length that responds to, and demonstrates why, the pleading is a legitimate actionand should be permitted to continue. The Written Submission must be served on the other parties to the litigation. [10] CPN7 is not for “close calls”, but instead the Court intervenes by this mechanism when the defect(

s) in question are “apparenton the face of the pleading”, and the suspect pleadings are “clearer cases of abuse”: Unrau #1, at paras 22, 24. Only restricted forms ofevidence are considered by the Court when it conducts a CPN7 review, since this process has a very narrow focus, and operates toexamine 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 [11] Mr. Oughton’s Application, which he calls a habeas corpus application, does not identify a decision that caused Mr. Oughtonto experience a deprivation of residual liberty, and that Mr. Oughton alleges is illegal and therefore ought to subject to habeas corpusreview. Mr.

Oughton is therefore not claiming to be an incarcerated person who is placed into a “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 at paras 41-52. That means the procedure and reversal of onus identified in MissionInstitution v Khela, 2014 SCC 24 at para 30 does not apply. [12] Instead, Mr.

Oughton’s application appears to claim that his evolving personal circumstances mean that Mr. Oughton’sdetention has, at present, become illegal, and Mr. Oughton should have been released by the Parole Board of Canada on this basis forcompassionate grounds. This scenario has been called “a lawful detention gone bad”: Lee v Canada (Attorney General), 2018 ABQB40.

In Dumas v Leclerc Institute, (SCC), [1986] 2 SCR 459, 34 DLR (4th) 427, habeas corpus relief of this type isdescribed this way: “The continuation of an initially valid deprivation of liberty can be challenged by way of habeas corpus only if itbecomes unlawful.” [13] Given the nature of Mr. Oughton’s Application that leads to a several potential issues. A. Collateral Attack on Parole Board of Canada Proceedings [14] Mr. Oughton indicates he has sought and been denied parole by the Parole Board of Canada.

The Parole Board of Canada hasthe jurisdiction to evaluate the circumstances and characteristics of prisoners, and what form of detention or release is appropriate.Administrative bodies, such as the Parole Board of Canada, may evaluate constitutional issues if “... the empowering legislationimplicitly or explicitly grants to the tribunal the jurisdiction to interpret or decide any question of law. ...”: Paul v British Columbia(Forest Appeals Commission), 2003 SCC 55 at para 39. [15] Mr.

Oughton appears to be asking the Court evaluate issues that were already addressed by the Parole Board of Canada.Litigation that challenges, directly or indirectly, a prior court or tribunal result is a collateral attack, and a very serious form of abusivelitigation: British Columbia (Workers’ Compensation Board) v Figliola, 2011 SCC 52 at para 28; Unrau v National Dental ExaminingBoard, 2019 ABQB 283 at paras 612-617. I therefore request Mr. Oughton explain how his Application is not a prohibited collateralattack on Parole Board of Canada proceedings, and an abuse of the Court. B.

Parolee Status [16] Lamer J in Dumas v Leclerc Institute provides a specific criterion for “a lawful detention gone bad” where the parole issuesare in play: The continuation of an initially valid deprivation of liberty can be challenged by way of habeas corpus only if it becomes unlawful. Inthe context of parole, the continued detention of an inmate will only become unlawful if he has acquired the status of a parolee. ...[Emphasis added.] [17] In light of this binding instruction, I request Mr. Oughton indicate when he was a parolee. C.

Failure to Exhaust Alternative Administrative Proceedings [18] Pursuing judicial proceedings without first exhausting an administrative regime is an abuse of process: Al-Ghamdi v Alberta,2017 ABQB 684 at paras 126-128, aff’d 2020 ABCA 81. Mr. Oughton’s complaint is that his continued detention in Bowden Institutionis a breach of his Charter rights, that the Parole Board of Canada ought to have recognized that, and then ordered some kind ofcompassionate release or parole. [19] The law is well established in Alberta that this Court cannot review decisions of the Parole Board of Canada.

In Armaly vCanada (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 theparole review process.

Sound policy reasons exist for not setting the threshold for habeas corpus so low that it effectively creates aparallel system for challenging revocation or termination of parole. ... [20] Subsequently, Slatter JA in R v Latham, 2018 ABCA 267 at paras 9-10 confirmed that the Parole Board of Canada is acomplete, 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 beused as an all-purpose remedy to allow serving prisoners to raise any and all complaints and grievances they have about the condition oftheir 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 byhabeas corpus: Armaly v Canada (Parole Service), 2001 ABCA 280, 299 AR 188. ... [Emphasis added.]

[ 21 ] While in DG v Bowden Institution , the majority of the Alberta Court of Appeal concluded that this Court has jurisdiction to conduct habeas corpus reviews of decisions of the Parole Board of Canada Appeal Division, that authority only exists where: 1) the Parole Board of Canada revoked the applicant’s parole, and 2) then the Parole Board of Canada Appeal Division confirmed that outcome: Heiser v Canada (Attorney General) , 2020 ABQB 456 at paras 23-24 . That is factually not apparently what occurred with Mr. Oughton. [ 22 ] I therefore request Mr.

Oughton indicate how his Application is not an abuse of process because Mr. Oughton has not exhausted the administrative regime that evaluates when an offender should be released on parole or on compassionate grounds. D. Incorrect Application Type [ 23 ] It appears that Mr. Oughton is arguing that his circumstances and treatment in the Bowden Institution are a breach of his Charter 7, 9, and 12 rights. He seeks a remedy of “absolute, unconditional release” on that basis. [ 24 ] The arguments and case authorities that Mr.

Oughton has cited are identical to those that were rejected in the detailed reasons of Shelley J in Lee v Canada (Attorney General) , 2018 ABQB 40 . Justice Shelley at para 184 made the following conclusions concerning “lawful detentions gone bad”: 1. Habeas corpus is available to challenge an initially legal detention that has allegedly become illegal: Dumas v Leclerc Institute, at paras 11-12 . 2. A challenge to an initially legal detention that has allegedly become illegal is conducted by a mechanism different from the Mission Institution v Khela habeas corpus Charter, 10(

c) methodology. 3. A challenge to an initially legal detention that has allegedly become illegal is initiated by a civil application, either a statement of claim or an originating notice, as applicable. 4. Where a person alleges that they are detained, and that their detention is unlawful because an ongoing detention is illegal, the applicant has the onus to prove on a balance of probabilities both the detention or a loss of residual liberty, and that the detention is illegal. 5.

The onus then shifts to the government actor to rebut that, and/or to establish that a detention based on legislation where breaches to the Charter are a “reasonable limit” which is “demonstrably justified in a free and democratic society”, per Charter, s 1. [ 25 ] Justice Shelley at para 186 concluded the proper procedure for the Bowden Institution inmate, John Mark Lee Jr, who advanced a “lawful detention gone bad” habeas corpus claim: ... would have been for Mr.

Lee to have filed a civil application to establish his allegation that his Charter, ss 7, 9, and 12 rights have been breached by a development that has caused his initially lawful detention to become illegal. This Court has jurisdiction to hear such an application via habeas corpus, unless the Federal Court or another tribunal has exclusive jurisdiction, such as was found in Steele v Mountain Institution for complaints concerning the Parole Board of Canada. If Mr. Lee established that illegality, he could seek a remedy or remedies under Charter, s 24(1), including release. [ 26 ] I therefore request that Mr.

Oughton explain how his Application is the appropriate form to pursue the alleged Charter ss 7, 9 and 12 breaches, and why Lee v Canada (Attorney General) was wrongly decided. IV. Conclusion [ 27 ] Mr. Oughton’s Application appears to be an appropriate candidate for review per CPN7. The Court therefore seeks a response from Mr. Oughton to these four questions: 1. How is the Application not a collateral attack on decisions of the Parole Board of Canada? 2. How did Mr. Oughton obtain parolee status, per Dumas v Leclerc Institute ? 3. How is Mr.

Oughton’s Application not an abuse of process for failing to exhaust alternative administrative remedies? 4. How is Mr. Oughton’s Application the appropriate mechanism to allege Charter ss 7, 9 and 12 breaches, and why was Lee v Canada (Attorney General) wrongly decided. [ 28 ] Since I have concluded that Mr. Oughton’s Application warrants review per CPN7, the Application is stayed until further notice. The Application is currently set to be heard in Queen’s Bench Appearance Court. That appearance is cancelled. [ 29 ] CPN7 now advances to its second step. 1. Mr.

Oughton has until 14 days after this decision is filed and served to prepare a Written Submission of no more than a total of 10 pages, to be filed and served, 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. Oughton provides and serves a Written Submission, then the Respondent has 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 Henderson”. 4. After receipt of Mr. Oughton’s Written Submission and the Respondent’s Written Reply, 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)). [ 30 ] The Court will prepare and serve the Order staying this action. Mr.

Oughton’s approval of that Order is dispensed with, pursuant to Rule 9.4(2)(c). This decision and the corresponding Interim Stay Order may be served to Mr. Oughton by fax to the Bowden Institution. Dated at the City of Edmonton, Alberta this 8 th day of March, 2021. John T. Henderson J.C.Q.B.A. Appearances: None.