Allan John Woodhouse Petitioner And: The Warden, William Head Institution, a penitentiary operated by the Correctional Service of Canada Respondent, 2010 BCSC 1897

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: Woodhouse v. Canada (Correctional Service), 2010 BCSC 1897 Date: 20101129 Docket: 09-2543 Registry: Victoria Between: Allan John Woodhouse Petitioner And: The Warden, William Head Institution, a penitentiary operated by the Correctional Service of Canada Respondent Before: The Honourable Mr. Justice Walker Oral Ruling on Application to Amend Petition In Chambers Counsel for the Petitioner: M. Redgwell Counsel for the Respondent: C. Mah for Banafsheh Sokhansanj Place and Date of Trial/Hearing: Vancouver, B.C.

November 29, 2010 Place and Date of Judgment: Victoria, B.C. November 29, 2010 [ 1 ] THE COURT: This is an application by the petitioner, Mr. Woodhouse, to amend his petition where he seeks habeas corpus relief. [ 2 ] The proposed amendments follow upon a previous habeas corpus application brought by Mr. Woodhouse regarding his parole suspension on March 19, 2009 (“March 19 Parole Suspension”). My reasons for judgment in respect of that application are indexed at 2010 BCSC 754 . There, I determined that Mr.

Woodhouse's March 19 Parole Suspension was unlawful. [ 3 ] In the course of hearing that habeas corpus application, counsel for Mr. Woodhouse argued that Mr. Woodhouse's subsequent parole suspension on November 10, 2009 (“November 10 Parole Suspension”) was unlawful because it was so unreasonable on its face as to result in a loss of jurisdiction and because it was made in bad faith.

He also argued that the March 19 Parole Suspension was also made in bad faith. [ 4 ] During the hearing, and following those allegations, counsel for the respondent took the position that it was inappropriate for me to determine the lawfulness of the November 10 Parole Suspension because there was no lis in the proceedings. [ 5 ] Counsel for the respondent also took the position that she needed an opportunity to file further evidence to deal with allegations of bad faith, even though Mr.

Woodhouse had raised the allegation of bad faith in his petition (as it was originally filed) and in respect of the March 19 Parole Suspension. [ 6 ] The circumstances surrounding and leading up to the March 19 and November 10 Parole Suspensions are described in my reasons for judgment. [ 7 ] On this application, the petitioner concedes mootness, inasmuch as Mr. Woodhouse is no longer in custody. He was released on parole at the end of November 2009.

The petitioner submits, however, that the amendments be allowed because the circumstances surrounding the November 10 Parole Suspension will affect his ongoing relationship with the Correctional Service of Canada (“CSC”) authorities. [ 8 ] The respondent submits that the present application should not be allowed because the matter is moot and it has been more than one year since Mr. Woodhouse was released from custody. They also argue that the allegations of bad faith are bound to fail. [ 9 ] In my reasons for judgment, I said:

[348] Should Mr. Woodhouse wish to pursue his allegations in respect of the November 10 Parole Suspension and his allegations of badfaith, then he must apply to amend his petition. Mr. Woodhouse should, within 30 days, advise the Respondent and the Court if heintends to make that application. [349] Counsel should arrange to attend before me to argue the issue of costs. [10] Counsel appearing for the respondent on today’s application told me that: (

a) she was not aware that the petition was to be argued on its merits; (

b) the merits of the application concern allegations of bad faith and unlawfulness; and (

c) she thought that the hearing scheduled to proceed today only concerned the amendments application. [11] Counsel's misapprehension arises from the fact that she is new to the case and not aware of the submissions made by herpredecessor during the previous hearing, and because counsel for the petitioner forgot to serve the notice of application on therespondent. [12] I reject the respondent’s submissions that there is no evidence to support the petitioner's submission that the documentspresently in existence in the CSC files concerning the November 19 Parole Suspension will affect his relationship with CSC authorities.That submission was made by the respondent during the previous hearing and I dealt with it in my previous reasons for judgment. [13] I am satisfied, on the totality of the evidence, that the circumstances surrounding a parolee’s prior parole suspensions doimpact upon subsequent decisions made by parole officers to recommend parole suspension to a supervisor or to other persons clothedwith the authority to suspend parole. [14] I am also satisfied that the circumstances that were present on the previous application which were sufficient to satisfy thefactors set out by the Supreme Court of Canada in Borowski v.

Canada (Attorney General), (SCC), [1989] 1 S.C.R.342, are present on this application. [15] At para. 214 of my reasons for judgment, I said: Many of the policy considerations raised by Sopinka J. in Borowski are met on this application. In my opinion, a decision of this Court inrespect of Mr. Woodhouse’s habeas corpus application will have an important practical effect on Mr. Woodhouse’s ongoing dealingswith CSC officials including parole officers.

Events surrounding the November 10 Parole Suspension demonstrate the need for guidance.In addition, determining whether there is a complete, comprehensive, expert procedure in relation to a parole officer’s decisions tosuspend parole, whether Canadian superior courts should decline to exercise their habeas corpus jurisdiction in all but the mostexceptional circumstances, whether suspensions of parole should be tied to the statutory criteria, and whether reasons are required byparole officers for those decisions (and if so, the nature and extent of those reasons), will have important precedential effect obviatingconcerns for an unwarranted use of judicial resources.

Finally, it is, in my opinion, important to determine whether parole suspensionsmust be tied to the statutory criteria since parole officers need not refer a parole suspension to the NPB, and may suspend parole on ashort term basis for up to 30 days, and on a recurring basis. [16] While I dealt with those issues in my previous reasons for judgment, I did not, at the specific request of counsel for therespondent, deal with them in relation to the November 10 Parole Suspension. [17] Amendments are to be granted liberally unless they are bound to fail, amount to an abuse of process, or result in prejudice thatcannot be remedied.

The respondent has not led any evidence nor made any submissions concerning prejudice or abuse of process. [18] In Victoria Grey Metro Trust Co. v. Fort Gary Trust Co. (1982), (BC SC), 30 B.C.L.R. (2d) 45 (S.C.),Madam Justice McLachlin (as she then was) said at 46-47: The basic rule, set out expressly in the former rules and no doubt still applicable, is that such amendments should be permitted as arenecessary to determine the real question in issue between the parties. Rule 1(5) requires an

interpretation of the rules which permit thejust and speedy determination of the dispute on its merits. Similarly, the Law and Equity Act, R.S.B.C. 1979, c. 224, s. 10, requires thecourt to grant all such remedies as any of the parties may appear to be entitled to "so that, as far as possible, all matters in controversybetween the parties may be completely and finally determined …" These provisions arguably support a generous approach to thequestion of amendments. However, the court will not allow useless amendments . . .

Similarly, it seems to me obvious that the court willnot give its sanction to amendments which violate the rules which govern pleadings. These include the requirements relating toconciseness . . . material facts . . . particulars . . . and the prohibition against pleadings which disclose no reasonable claim or areotherwise scandalous, frivolous or vexatious . . .

With respect to the latter, it may be noted that it is only in the clearest cases that apleading will be struck out as disclosing no reasonable claim; where there is doubt on either the facts or law, the matter should beallowed to proceed for determination at trial . . . While these cases [cited in original, but here omitted] deal with striking out claimsalready pleaded, consistency demands that the same considerations apply to the question of amendment to permit new claims. [19] I am satisfied that the amendments sought by Mr.

Woodhouse should be allowed, except for paras. 57-59 which concern thealleged effect of the March 19 and November 10 Parole Suspensions upon him. The effect of those suspensions on Mr.

Woodhouse is notrelevant to a habeas corpus application; any claim in that respect would thus fall into the “scandalous, frivolous, or vexatious” categorydefined by Madam Justice McLachlin in Victoria Grey. [20] In my opinion, and for the same reasons I identified in my previous reasons for judgment, I am satisfied that parole officerswill, in reaching their decisions to suspend parole, continue to consider as a factor reports and documents prepared by their predecessorspertaining to previous parole suspensions. The CSC documents currently in existence will have an effect on the ongoing relationshipbetween Mr.

Woodhouse and the CSC.

[ 21 ] Counsel for the respondent objected to arguing the merits today, i.e., the issues of whether the November 10 Parole Suspension was unreasonable on its face or made in bad faith, because she did not have the opportunity to prepare and file evidence. The hearing of the merits of the petition will be argued at a later time. The respondent will have an opportunity to file evidence and to prepare submissions in accordance with a case planning

schedule to be determined. “P. Walker J.” __________________________________ The Honourable Mr. Justice Paul Walker