R. v. Hawco, 2017 NSSC 346

Supreme Court of Nova Scotia Citation: R. v. Hawco , 2017 NSSC 346 Date: 20170510 Registry: Sydney Between: Patrick Hawco Applicant v. Her Majesty the Queen Respondent Library Heading Judge: The Honourable Justice Patrick J. Murray Heard: May 1 & 8, 2017, in Sydney, Nova Scotia Oral Decision: May 10, 2017 Subject: Habeas Corpus.

Summary: [ 1 ] The Applicant filed an Application for Habeas Corpus claiming he was not being prescribed his proper medication. [ 2 ] The Attorney General of Nova Scotia responded to the Application by Counsel, Mr. Glenn Anderson. [ 3 ] Crown position is that the matter was one of a professional judgement of the physician and that the recourse was to file a complaint with the Health Authority. Applicant is not being deprived of any rights.

Capital Health administers health care within the correctional facility has a policy limiting certain types of medications for the safety and security of offenders, and to provide alternative medication to those that are restricted. [ 4 ] Result: [ 5 ] Unable to use the writ of habeas corpus to address a matter of professional judgment. Court found that this denial of services complained of does not rise to the level of being cruel and unusual treatment, pursuant to s. 12 of the Charter of Rights and Freedoms . (See paragraph 4) [ 6 ] Court declined to accept jurisdiction.

Application dismissed. [ 7 ] Cases cited: R v. MacPherson , 2013 ABQB 672 ; Gogan v. Canada (Attorney General) , 2017 NSCA 4 ; R v. Farrell , 2011 ONSC 2160 ; Rain v. Canada (Parole Board) , 2015 ABQB 639 . THIS INFORMATION SHEET DOES NOT FORM PART OF THE COURT'S DECISION. QUOTES MUST BE FROM THE DECISION, NOT THIS LIBRARY SHEET. SUPREME COURT OF Nova Scotia Citation: R. v. Hawco , 2017 NSSC 346 Date: 20170510 Registry: Sydney Between:

Patrick Hawco Applicant v. Her Majesty the Queen Respondent Judge: The Honourable Justice Patrick J. Murray Heard: May 1 & 8, 2017, in Sydney, Nova Scotia Oral Decision: May 10, 2017 Counsel: Patrick Hawco, Self-represented Applicant Glenn Anderson, for Her Majesty the Queen By the Court (Orally): Introduction [ 8 ] Mr. Patrick Hawco filed a Notice of Habeas Corpus with the Court on April 11, 2017. I received briefs with caselaw on May 4 and 5, 2017. [ 9 ] Mr. Hawco’s primary concern about his detention at the Northeast Nova Correctional Facility is that he is not being prescribed his proper medication.

Medication he said he needs to deal with pain, and which has been previously prescribed for him prior to him being remanded to this facility. [ 10 ] Mr. Hawco is 61 years of age and is facing four charges, two counts involving assault and two counts of breaching a recognizance. He was arrested on March 31, 2017 and pled not guilty on April 10, 2017. Mr. Hawco has waived his right to bail until his trial which is set for May 12, 2017. [ 11 ] Mr.

Hawco in his grounds for seeking habeas corpus filed by fax on April 11, 2017 claims that he is the subject to cruel and unusual treatment, contrary to s. 12 of the Canadian Charter of Rights and Freedoms , resulting from what he describes as the negligent actions of Dr. Patrice A. Menard in failing in her duty of care to provide him with the drug “hydro-morphine” that he has been prescribed for the past 10 years. [ 12 ] Mr. Hawco claims this to be a loss as well of his right to life, liberty and security of the person by being left in a contestant state of pain. Mr.

Hawco asserts this is also a result of institutional policy which impacts on his residual liberty. [ 13 ] Mr. Hawco is represented by Mr. Matthieu Boutet on the charges scheduled for trial. Mr. Boutet has generously appeared for his client on this application as f friend of the Court. As amicus curiae he has filed a legal brief on behalf of Mr. Hawco and as a friend of the Court, which I have read and considered. [ 14 ] The Attorney General of Nova Scotia has responded to the Application and are represented by Mr. Glenn Anderson.

The Court’s initial response to this application was to request the Attorney General to investigate several matters. These included: 1) the status of Mr. Hawco’s requests to the Nova Scotia Health Authority; 2) the procedure for Mr. Hawco to obtain his medical records; and 3) whether Mr. Hawco would be able to obtain a second medical opinion. [ 15 ] The Attorney General’s response is contained in a letter from Mr. Anderson dated April 28, 2017. It was determined by Mr. Anderson that Mr. Hawco had made health care requests, which documentation are with the Health Authority.

In addition, the letters to the Court by Mr. Hawco dated April 20 and 22, 2017 included a requested dated April 16, 2017 for him to “be seen by a qualified medical doctor who is not negligent”. [ 16 ] The Attorney General has filed considerable documentation with the Court including their letter of April 28, 2017 and their legal brief dated May 4, 2017. [ 17 ] The positon of the Attorney General is essentially that this is a matter of professional judgement of the physician and that the recourse for Mr.

Hawco is to pursue his complaint through the procedures with the Health Authority or the College of Physicians and Surgeons of Nova Scotia. [ 18 ] As shown in the documentation filed with the Court by Mr. Hawco, he has chosen to avail himself of certain remedies by filing an Offender Health Care Request/Complaint form which Capital Health. He has also pursued a similar procedure with the College. [ 19 ] The Attorney General says further that Mr.

Hawco is not being deprived of any rights or privileges available to other inmates. [ 20 ] Capital Health who administers health care within the correctional facility does have a policy limiting certain types of

medications for the safety and security of offenders, and to provide alternative medication to those that are restricted. [ 21 ] It does appear that hydro morphine is not prescribed at the facility. According to the Attorney General, it is understood that a physician is not prevented from prescribing medication included in the list of those restricted. [ 22 ] I have considered the submissions of Mr. Anderson and Mr. Boutet, as friend of the Court, and Mr. Hawco, and I have considered the grounds and supporting documentation filed with the Court. [ 23 ] In his brief on behalf of Mr. Hawco, Mr.

Boutet claims that when Mr. Hawco waived his bail he assumed he would be provided with appropriate medical treatment while in detention until May 12, 2017. [ 24 ] Mr. Boutet has submitted the first step must be to determine whether there has been a charter breach, and then determine whether the writ of habeas corpus is available. [ 25 ] I have carefully considered these arguments and the entire circumstances. [ 26 ] With great respect to the Applicant, Mr. Hawco, and his counsel, Mr. Hawco sought to be seen by another physician. He did not seek a review of his bail. In the case of R v.

MacPherson , 2013 ABQB 672 , the Court stated at para. 14 that …“the habeas corpus remedy to the denial of bail,…is only available in limited circumstances, such as where the legal validity of an aspect of the bail process was unconstitutional. [ 27 ] This brings us to the charter breach alleged. I find that Mr. Hawco has not been denied medical services by the institution.

His essential complaint is that he disagrees with the medication policy put in place for all inmates as well as the professional judgment of the attending physician. [ 28 ] I have difficulty with the use of habeas corpus to address what appears to be a matter of professional judgment. Even if it could be characterized as an administrative decision, not every administrative decision is open to challenge by way of habeas corpus . [ 29 ] In the case of Gogan v.

Canada (Attorney General) , 2017 NSCA 4 , at page 28, at para 83 Justice Scanlan, in decent described habeas corpus as being the “Great Writs”, 83. … employed as a legal procedure to keep government from holding citizens indefinitely without showing cause. … The greatest threat to the continued existence of that Great Writ may well be the transformation of it from the extraordinary to the ordinary. [ 30 ] I have considered whether a denial of services of the type complained of rises to the level of being cruel and unusual treatment.

I recognize this is not a trivial matter but having reviewed the cases on such complaints, I have concluded that Mr. Hawco’s substantive complaints do not warrant this extraordinary remedy. Here, I refer in particular to R v. Farrell , 2011 ONSC 2160 . In addition in Rain v. Canada (Parole Board) , 2015 ABQB 639 , for example the Court stated at paragraph 15: 15. The second basis on which I reject jurisdiction is that Mr. Rain’s application is essentially not for release but for court-ordered drug treatment.

Access to prison or rehabilitation programming is not a deprivation of liberty that attracts the habeas corpus scrutiny of the Court. [ 31 ] Lastly, may I say there are courses of action available which are being pursued by Mr. Hawco. I acknowledge they are not always be timely in terms of his need but this is a further consideration as submitted by the Attorney General. Conclusion [ 32 ] In closing, his brief Mr. Boutet left me with the notion of Mr. Hawco having his day in Court, a solid argument.

I have considered this and whether declining jurisdiction is putting “the cart before the horse” so to speak and whether the Applicant has the ability to support his Charter challenge. In this regard, I return to the proper scope the writ of habeas corpus and the view that the scope should not be diminished. [ 33 ] I emphasize that this is a determination based on jurisdiction not on the specifics of the evidence that the Applicant might lead. [ 34 ] For all of these reasons, I am declining to accept jurisdiction in this matter. Murray, J.