Giroux v Canada (Correctional Service Canada), 2022 ABKB 760

Court of King’s Bench of Alberta Citation: Giroux v Canada (Correctional Service Canada), 2022 ABKB 760 Date: 20221116 Docket: 2203 15985 Registry: Edmonton Between: Nicholas Clifford Giroux Applicant - and - Correctional Services Canada Respondent _______________________________________________________ Memorandum of Decision of the Honourable Justice John T. Henderson _______________________________________________________ I. Introduction [ 1 ] On October 14, 2022 Nicholas Clifford Giroux [Mr. Giroux] filed: 1. an Originating Application [Application] that seeks a habeas corpus remedy, 2. an Affidavit of Mr. Giroux, and

3. a fee waiver for that Application. The fee waiver was granted by the Clerk of the Court. Mr. Giroux is a self-represented litigant. [2] 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; Mission Institution v Khela, 2014 SCC 24 at para 3; DG v BowdenInstitution, 2016 ABCA 52 at paras 41, 124. As a consequence, Mr. Giroux’s Application was immediately reviewed, and in responsethis Court issued a preliminary decision, reported as Giroux v Canada (Correctional Service Canada), 2022 ABKB 687 [Giroux #1]. [3] Mr. Giroux is an inmate at the Correctional Service Canada [CSC] maximum security Edmonton Institution. TheApplication reads: Basis for this claim: 1.

Unlawful and unreasonable Raise in the Inmate Security and Involuntary Transfers to Edmonton Institution in Edmonton, AB, andto Millhaven Institution in Bath, Ont. Remedy sought: 2. The Immediate lowering of my Inmate Security rating from Maximum to Medium Security and Transfer to a Medium Security Inst. ... Basis for this Claim: Habeas Corpus Application to relieve me from an Unlawful and Unreasonable Raise in Security and InvoluntaryTransfers to Millhouse and Edmonton Inst.

Remedy sought Reduction in Security and Transfer to a medium Security Institution [Sic.] [4] This Court considers the content of affidavits of self-represented applicants when evaluating habeas corpus applications:MacKinnon v Bowden Institution, 2017 ABQB 574 at para 30; Gogan v Attorney General of Canada, 2017 ABQB 609 at paras 26-31.After review of Mr. Giroux’s Affidavit and its Exhibits, some of which are CSC records and decisions, the following information wasextracted and summarized in this way in Giroux #1 at para 4: 1. Mr.

Giroux is currently detained in the Edmonton Institution, where he is a maximum security classification offender. 2. Mr. Giroux is serving a life sentence for second degree murder. That sentence commenced in 2015. He initially was incarcerated asa maximum security inmate in the Saskatchewan Penitentiary. There he assaulted another inmate, and subsequently underwent severaltransfers, all to maximum security institutions. 3. In February 2018, Mr. Giroux was transferred to the Grande Cache Institution as a medium security inmate. Mr.

Giroux then inMay 2018 was transferred to the Springhill Institution due to threats to Mr. Giroux. Next, Mr. Giroux subsequently voluntarilytransferred to the Dorchester Penitentiary, a medium security CSC facility. Mr. Giroux was placed in enhanced detention segregation inthe Dorchester Penitentiary. 4. In November 2019, Mr. Giroux was transferred to the Atlantic Institution Structured Intervention Unit [SIU], a form of enhanceddetention. Mr. Giroux was at this point reclassified as a maximum security inmate. The Atlantic Institution is a maximum securityinstitution. Mr.

Giroux was then released into the maximum security Atlantic Institution general population in January-February 2020,but was subsequently returned to the SIU. 5. Mr. Giroux was then reclassified to medium security in April 2020, and transferred back to the Dorchester Penitentiary. However,following threats and risk behaviour directed towards staff and inmates, Mr. Giroux on October 2020, was involuntarily transferred tothe Springhill Institution, a medium security facility, and then, on December 2020, Mr.

Giroux was reclassified as a maximum securityinmate, and returned to the Atlantic Institution in January 2021, in general population. Mr. Giroux appears then to have periodically beenplaced in enhanced SIU detention, and also to have voluntarily entered a Voluntary Limited Association Range [VLAR], while at theAtlantic Institution. Following a threat to a CSC Correctional Officer, Mr. Giroux was returned to the Atlantic Institution SIU on May 3,2022. 6. CSC records indicate during May 2022, while detained in the SIU, Mr. Giroux engaged in self-harm and his mental healthcondition deteriorated. Mr.

Giroux was, on that basis, involuntarily transferred to the Shepody Healing Centre for mental healthtreatment, then to the CSC maximum security Millhaven Institution. Throughout this process Mr. Giroux remained classified as amaximum security risk inmate. The June 6, 2022 CSC Decision that resulted in the Millhaven Institution transfer explicitly rejected Mr.Giroux’s argument that he should be reduced in security classification, and placed in a medium security facility. 7. Sometime after that Mr. Giroux was apparently transferred from the Millhaven Institution to the Edmonton Institution.

Noinformation concerning that transfer is available. [5] Mr. Giroux in his Affidavit disagrees with certain information in a Psychological/Psychiatric Assessment Report datedOctober 26, 2021, and other downstream documents. Mr. Giroux also made complaints that are unrelated to transfer and security threatlevel decisions. For example, he asserts that legal documents connected to an unrelated civil proceeding were not properly handled byCSC staff.

[ 6 ] Mr. Giroux’s Affidavit makes explicit that his current complaint is that he was refused a transfer to medium security: ... I have provided with this materials proves that C.S.C. staff at Atlantic Institution (and also Millhaven Institution for repeatedly writing the same information in my Transfer papers to Edmonton) has blatantly used false information and withheld at all the information that counteracts their arguements, to raise my security instead of lowering it like my good behaviour warranted .

They also used their unethical tactics to have me transferred to a Maximum Security Inst. (Millhaven Inst.) in the Province of Ontario, instead of granting me my Medium Security and sending me to medium security Institution in either the Atlantic Region or somewhere else. ... [Sic, emphasis added.] [ 7 ] The Court’s immediate review of Mr. Giroux’s habeas corpus Application identified what appeared to be prima facie fatal defects with Mr. Giroux’s Application.

On that basis, the Court in Giroux #1 implemented a Civil Practice Note No. 7 [CPN7] document-based “show cause” process pursuant to CPN7, para 5 to evaluate whether Mr. Giroux’s Application should be struck out per Alberta Rules of Court , Alta Reg 124/2010, Rule 3.68 . Mr.

Giroux was instructed to submit an up to ten-page Written Submission to answer three questions: 1. how his Application challenges a deprivation of residual liberty; 2. why his Application does not challenge a historic decision that did not cause his current deprivation of liberty, and 3. why habeas corpus can be available to challenge a decision that refuses to modify a security classification. [ Giroux #1 at para 23 .] [ 8 ] Mr. Giroux’s Written Submission was received on November 7, 2022. Counsel for the Attorney General of Canada [Canada], on behalf of CSC, provided a Written Reply on November 10, 2022.

That completes the CPN7 process. The Court now moves to evaluate whether Mr. Giroux’s habeas corpus Application should be struck out pursuant to Rule 3.68 . II. The Parties’ Submissions A. Mr. Giroux [ 9 ] Mr. Giroux’s Written Submission is inconsistent with the materials that he filed on October 14, 2022. In Giroux #1 at para 14 , I observed that Mr. Giroux appears to complain about two different alleged illegalities: 1. Mr. Giroux’s transfer from the maximum security Millhaven Institution to the maximum security Edmonton Institution was illegal, but Mr.

Giroux provided no explanation why that decision was wrong or illegal. 2. when Mr. Giroux in June 2022 sought to be reclassified as a medium security inmate, that reclassification was improperly rejected. [ 10 ] In his Written Submission, Mr. Giroux makes a different allegation of how he was illegally detained. He now complains that the process that resulted in him being moved from the general population in the Atlantic Institution, to the Atlantic SIU on May 3, 2022, was procedurally unfair. The transfer from general population to the SIU is what Mr.

Giroux identifies as the deprivation of liberty that he now challenges in this habeas corpus proceeding: When Atlantic Institution brought me from my living unit to their more restrictive S.I.U., using false information that was too vague for me to prove my innocence, I was deprived of my liberty. ... The accusations of my disruptive and threatening behaviour, that were made by Atlantic Institution and used to bring me to the S.I.U.’s more restrictive environment, can be found in the A4D to raise my security and Involuntary Transfer ... me.

These allegations are clearly vague and leave me unable to properly prove my innocence. That vague accusation used to send me to the more restrictive S.I.U., along with my being denied sufficient information when I was deprived ... of my liberty when placed in the more restrictive S.I.U., are breaches of: Sec. 24(1), where the C.C.R.A. requires Correctional Service of Canada (CSC) to take all reasonable steps to ensure any information about an offender that it uses is as accurate, up, to date and complete as possible. and:

Section 27 places an onerous burden on C.S.C. to disclose information to offenders which has been utilized in making decisions ... ... Telling me I was being sent to the S.I.U. because some random inmate said something, is not proper treatment and a breach of the C.C.R.A’s. ... My liberty was impinged upon when I was brought to the Atlantic Inst S.I.U. for these reasons, as well as the multiple breaches of the C.C.R.As by those in charge of my Case Management. Those users of inaccurate information and my being denied proper information about my transfer to the SIU impinged my liberty and therefore violated

Section 7 of the Charter. ... I can prove the breaches of procedural fairness in relation to my being brought to the more restrictive S.I.U at Atlantic Inst. On May 3, 2022, and I can prove many breaches of the C.C.Ras in the way my security was reviewed and determined in the information used to decided my Involuntary Transfer. That transfer, and my later transfer to Edmonton Inst. was unlawful and my raise in security was procedurally unfair. ... [Sic, underlying for emphasis.] [ 11 ] In his Written Submission, Mr. Giroux is explicit that what he is complaining about is his transfer while in the Atlantic

Institution from general population to the SIU facility in the Atlantic Institution. Mr. Giroux makes no specific complaints about his transfer to the Edmonton Institution, aside from the bald allegation in the above passage, that is underlined. B. Canada [ 12 ] Canada notes that Mr. Giroux now appears to be advancing a completely separate allegedly illegal deprivation of residual liberty than in his Application and Affidavit. Mr. Giroux now seems to claim that his transfer within the Atlantic Institution from general population to the SIU is what is illegal. In these circumstances, Canada submits that Mr.

Giroux’s complaint is moot. Mr. Giroux was released from that detention and is no longer either at the Atlantic Institution, or detained in “prison in a prison” conditions. [ 13 ] Second, Canada observes that Mr. Giroux has not responded to the Court’s request in Giroux #1 at paras 15-16 to identify a deprivation of liberty.

First, Canada notes that this parallels the situation in Crane v Canada (Grande Cache Institution) , 2020 ABQB 677 , where this Court concluded that placement in an SIU is not an automatic deprivation of residual liberty, and so is different from the administrative segregation mechanism previously applied by the CSC. Other than that, Mr.

Giroux has been held in maximum security facilities, without any increase in detention conditions. [ 14 ] Canada also provided the Court with documents in a Nova Scotia Supreme Court proceeding: Giroux v Canada (Attorney General) , Amhurst 506182 (NSSC): 1. a May 20, 2021 fax indicating scheduling is underway for a habeas corpus application by Mr. Giroux; 2. Mr. Giroux’s May 20, 2021, “Notice for Habeas Corpus”, that asserts that his transfer from Springhill Institution to the Atlantic Institution on November 27, 2020 was illegal as arbitrary, having no reasonable basis, and was procedurally unfair. Mr.

Giroux sought to be returned to a medium security state. 3. A corresponding Affidavit sworn by Mr. Giroux on May 18, 2021 that asserts that the transfer to the Atlantic Institution was based on inadequate and unreliable evidence, unsubstantiated allegations, and does not accord with Mr. Giroux’s medical treatment, and mental health status. 4. An incomplete letter to the “Court Administration” of the Nova Scotia Supreme Court, dated April 29, 2021. 5.

An August 24, 2021 Order of Hunt J of the Nova Scotia Supreme Court that “... the Applicant’s application for habeas corpus is dismissed without costs. ...”. [ 15 ] Succinctly, Canada argues that Mr. Giroux has already litigated whether his reclassification from medium to maximum security, and transfer to the Atlantic institution was illegal. The Nova Scotia Supreme Court evaluated Mr. Giroux’s complaints, and rejected those. [ 16 ] Counsel for Canada seeks that Mr. Giroux’s habeas corpus application is struck out as an abuse of processes, and that Mr. Giroux pay $250 in costs. III.

Analysis and Conclusion [ 17 ] Mr. Giroux’s Application and Written Submissions raise three separate and distinct bases for habeas corpus . I will examine each separately, but first, I will address the status of the Nova Scotia litigation documents provided by Canada. A. Preliminary Issue - Prior Litigation Evidence [ 18 ] CPN7 is a method to conduct a document-based Rule 3.68 process. The materials that are reviewed in a CPN7 procedure are usually limited to the subject filing itself, here Mr. Giroux’s Application.

However, one exception to that rule is where other documentation establishes that the applicant has re-litigated or targeted a settled issue: Ubah v Canadian Natural Resources Limited , 2019 ABQB 347 at paras 24-48 . That is the case for the Nova Scotia Supreme Court filings provided by Canada. I, therefore, have examined and considered the Giroux v Canada (Attorney General) , Amhurst 506182 (NSSC) documents in preparing this Decision. B. Three Alternative Habeas Corpus Claims [ 19 ] As previously noted, Mr. Giroux has now made three claims that invoke habeas corpus .

I will address the three bases for habeas corpus below. 1. Illegal Transfers from the Atlantic Institution to the Millhaven and Edmonton Institutions [ 20 ] First, Mr. Giroux’s Application appears to say that the involuntary transfers to the Millhaven and Edmonton Institutions were “Unlawful and unreasonable Raise in the Inmate Security”. In Giroux #1 at paras 15-16 , I requested Mr. Giroux explain how there was a “Raise in the Inmate Security” when what had occurred was a transfer from one maximum security CSC facility to other maximum security CSC facilities.

Canada argues there was no deprivation or residual liberty. Mr. Giroux has not responded to this issue. [ 21 ] I therefore conclude Mr. Giroux has not identified any basis for habeas corpus review by this allegation. No deprivation of residual liberty was involved in those processes. 2. Reclassification from Medium to Maximum Security in 2020

[ 22 ] Mr. Giroux was at one point classified as medium security level prisoner, then reclassified to maximum security, and placed in the Atlantic Institution. In law that is a clear deprivation of residual liberty. Mr. Giroux has made various claims about that process, in his Affidavit, and indirectly in his Written Submission. In Giroux #1 at paras 17-18 , the Court requested that Mr. Giroux explain why that reclassification was not a historic change in detention conditions, and, therefore, not a potential subject for habeas corpus review. Mr.

Giroux’s Written Submission is non-responsive to this issue. [ 23 ] Second, Mr. Giroux’s Affidavit alleges that what was illegal was that Mr. Giroux was not returned to medium security clearance by a June 6, 2022 CSC decision, and instead he was maintained as a maximum security classification offender: Giroux #1 at paras 19-22 . I requested in Giroux #1 that Mr.

Giroux explain how habeas corpus applies when release is denied, citing Mapara v Ferndale Institution (Warden) , 2012 BCCA 127 at para 15-16 , 318 BCAC 139, leave to the SCC refused, 34818 (27 September 2012); Biever v Alberta (Director of Edmonton Remand Centre) , 2015 ABQB 609 at paras 33-35 . Mr. Giroux’s Written Submission is unresponsive on this point. [ 24 ] Third, I conclude that the Giroux v Canada (Attorney General) , Amhurst 506182 (NSSC) materials provided by Canada establish that Mr. Giroux has already made a habeas corpus application on this issue in 2021.

That application was rejected by the Nova Scotia Supreme Court. I adopt Canada’s argument on this point. Any challenge based upon Mr. Giroux being reclassified and placed in a maximum security facility in December 2020 is improper because that issue was previously decided by the Nova Scotia Supreme Court and cannot be re-litigated in Alberta. [ 25 ] Mr. Giroux’s habeas corpus claim concerning the December 2020 reclassification to maximum security and transfer to a maximum security institution cannot proceed. 3. Written Submission Argument - Detention in an SIU [ 26 ] In his Written Submission, Mr.

Giroux submits that, on May 3, 2022, he was illegally placed in the Atlantic Institution SIU. However, his stay in the Atlantic Institution SIU has long since ended. Mr. Giroux is now in the Edmonton Institution. Canada submits that this issue is moot. [ 27 ] The Alberta Court of Appeal in Heiser v Bowden Institution , 2022 ABCA 300 at para 25 has adopted Thomas J’s conclusion in Ewanchuk v Canada (Attorney General) , 2017 ABQB 237 at para. 23 that habeas corpus is only for the “here and now”, and “... not historical deprivations of liberty that have ended ...”.

I, therefore, reject this basis for habeas corpus made by Mr. Giroux in his Written Submission. IV. Conclusion [ 28 ] I conclude that Mr. Giroux’s Application and his Written Submissions do not set out any basis for habeas corpus . His application has fatal defects that were identified in Giroux #1 . In addition, to the extent that the application is based upon his reclassification to maximum security, that issue has been decided by the Nova Scotia Supreme Court. [ 29 ] Pursuant to Rule 3.68 of the Alberta Rules of Court , and CPN7, para 3(c), Mr.

Giroux’s habeas corpus Application is struck out as hopeless. [ 30 ] Following this Court’s usual practice ( Loughlin v Her Majesty the Queen , 2018 ABQB 45 ), Mr. Giroux is ordered to pay costs. The amount sought by Canada, $250, is reasonable. I order Mr. Giroux make that payment, forthwith. [ 31 ] Counsel for Canada shall prepare the order giving effect to this Decision. Mr. Giroux’s approval of the Order is not required, pursuant to Rule 9.4(2)(c). Dated at the City of Edmonton, Alberta this 16 th day of November, 2022. John T. Henderson J.C.K.B.A. Appearances: Nicholas Clifford Giroux

Self-represented Litigant Matthew Chao Attorney General of Canada Department of Justice Canada Prairie Region, Edmonton Office For the Respondent