Bradley v. Canada (Correctional Service), 2011 NSSC 463

SUPREME COURT OF NOVA SCOTIA Citation: Bradley v. Canada (Correctional Service), 2011 NSSC 463 Date: 20111206 Docket: Amh. No. 357720 Registry: Amherst Between: James Bradley Applicant v. Attorney General of Canada (Correctional Service Canada) Respondent LIBRARY HEADING Judge: The Honourable Justice Cindy A. Bourgeois Heard: December 6, 2011 at Amherst, Nova Scotia Written Decision: December 13, 2011

Summary: Mr. Bradley, a Federally incarcerated inmate, made a Rowbotham application seeking State-funded counsel in relation to a habeas corpus application. He submitted he was unable to adequately present his application for habeas corpus without legal assistance. Issue: Should the Court order Mr. Bradley be provided with State-funded counsel? Result: The application was dismissed. Mr. Bradley was unable to establish that his circumstances fell within the narrow category of matters for which State-funded counsel ought to be provided.

The test as applied in the prison context advanced in Saskatchewan authorities was adopted by this Court. 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: Bradley v. Canada (Correctional Service), 2011 NSSC 463 Date: 20111206 Docket: Amh. No. 357720 Registry: Amherst Between: James Bradley Applicant v. Attorney General of Canada (Correctional Service Canada) Respondent Judge: The Honourable Justice Cindy A. Bourgeois Heard: December 6, 2011 at Amherst, Nova Scotia Written Decision: December 13, 2011 Counsel: James Bradley, Applicant on his own behalf Sandra Doucette, for the Respondent By the Court : [ 1 ] I am prepared to render an oral decision today. I think it is important that both parties, in particular Mr.

Bradley, know how this matter is going to unfold and whether or not his motion is going to be successful. At the end of the decision, I want to discuss returning this matter to court as soon as possible to make sure an early hearing date is set in relation to Mr. Bradley’s habeas corpus motion. [ 2 ] Today we are dealing with a motion brought by James Bradley seeking the appointment of legal counsel.

This type of application is commonly referred to as a Rowbotham application, that name being derived from an Ontario Court of Appeal decision which opened the door in appropriate circumstances for the provision of State-funded Counsel.

[3] Mr. Bradley testified today and provided an affidavit in support of his motion. He is an inmate at the Springhill Institutionand is presently detained in administrative segregation. He indicates he has been there in excess of 70 days. He has brought a habeascorpus application pursuant to Civil Procedure Rule 7, challenging the legitimacy of that detention. He has been before this court on atleast two previous appearances.

He has made it abundantly clear that he feels his efforts to put forward his habeas corpus application arebeing hampered by the non-disclosure of essential documents and other information by Correctional Service Canada. That is his viewand his belief. [4] Today is not about ordering disclosure, but that issue is illustrative of the difficulties Mr. Bradley says he is encounteringwhich would be addressed more productively if he had a lawyer representing his interests. Mr. Bradley is 63 years of age and he has agrade 6 education.

He testified that he believes he suffers from dyslexia which makes reading and writing difficult for him. Mr. Bradleywas, however, able to clearly and forcefully articulate his position and concerns to this court, notwithstanding his limited, formaleducation. Mr. Bradley indicates that his attempts to present his case before this court are being impeded by Corrections Canada. Healleges that he does not regularly receive mail, including most notably, legal briefs filed for this and other hearings.

He alleges thatinmates have access to legal materials through the prison library but he is not being given full access to this resource. He had personalfiles removed from his possession when he went into segregation which contain information which he asserts would be helpful to hishabeas corpus application. He says a lawyer would help him obtain this information, advocate for him in getting this information and isneeded due to the concerns that he has been raising. [5] I am not required, nor will I today, make any factual findings about the accuracy of Mr.

Bradley’s allegations as it relates tothe conduct of Corrections Canada. What I will indicate, however, is that should such allegations be found to have any legitimacy, thecourt would be very, very concerned. Mr. Bradley is not without rights. He has residual liberties notwithstanding the fact that he isincarcerated and paying a debt to society for a very serious offence. He should not be unreasonably impeded in gaining access to legal orpersonal materials which would be of assistance to him in presenting his matter before the Court. [6] I trust that Ms.

Doucette as counsel for Corrections Canada will pass along those concerns to your client and I hope that theywill be taken into consideration in the future conduct of this matter. [7] I return now to the motion which is before me today, and that is whether this court should order that Mr. Bradley be providedwith state-funded legal counsel. Mr. Bradley as noted above, states he needs legal counsel given the complexities of the matter and thedifficulties he is encountering. Ms.

Doucette argues that case authorities make it clear that the present circumstances do not fall withinthe small category of cases where the appointment of legal counsel is warranted. [8] I have reviewed the case authorities in relation to this matter. This court has been unable to find any reported decision wherean application for appointed counsel has been successful in a habeas corpus or prison disciplinary situation. However, there is authoritywhere such has been declined. I note in particular the recent decision from the Saskatchewan Court of Appeal in R. v. Blanchard, 2011SKCA 60.

There it was determined that state-funded counsel was not available to an inmate bringing a habeas corpus application. [9] More recently, the Saskatchewan Court of Queen’s Bench addressed a request for state-funded counsel arising in the contextof prison disciplinary proceedings in R. v. MacKinnon, 2011 SKQB 363. There an inmate was accused of serious infractions of adisciplinary nature in the prison setting and made an application for state-funded counsel. The comments of Justice Wilkinson areparticularly helpful in that decision.

The court writes at paragraphs 6 and 7: 6 The Attorney General of Canada submits that the right to state-funded legal representation has never been extended beyond thecontext of criminal proceedings, the only exception being for parents facing permanent removal of a child from their care in childprotection proceedings as was the case in New Brunswick (Minister of Health & Community Services) v.

G. (J.), (SCC), [1999] 3 S.C.R. 46 (referred to herein as "G.(J)"). 7 The Crown submits this is the prevailing legal position, and it has been definitively stated as such by the Saskatchewan Court ofAppeal in two cases, the first being Canada v. Kahnapace, 2008 SKCA 15, 307 Sask. R. 258, the second being R. v. Blanchard, 2011

SKCA 60, [2011] S.J. No. 315 (QL). In both cases, and notwithstanding that an inmate's residual liberty was at stake, the Court held thatthere was no entitlement to state-funded counsel unless significant public interests were at stake in the matter, apart from the litigant'sinterest, and the issues were sufficiently significant or complex that a fair hearing required representation by counsel.

The only otherjustification for appointing state-funded counsel in a civil matter involved an order for advanced costs against the Crown, or the childprotection matters outlined in "G.(J)". [10] Justice Wilkinson addresses this issue in more detail in paragraphs 18 through 20 of the decision. They read: 18 The decisive answer to the applicant's claim for relief rests in para. 22 of the Saskatchewan Court of Appeal's decision in R. v.Kahnapace, supra. There, Justice Smith prefaced her comments with a reference to the decision in New Brunswick (Minister of Health &Community Services) v.

G. (J.), the case that conferred a constitutional right to state-funded counsel in child protection proceedings.Justice Smith said this: [22] ... I note that since the decision in G.(J.) issued, in November, 1999, the right to state funded counsel to protect constitutional rightspursuant to s. 7 of the Charter, or any other provision, has not been expanded beyond the narrow context of that case. The residual libertyinterest of the respondent at issue in the instant case is indistinct from that at issue in many prison discipline contexts. In no such contexthave the courts ordered state funded counsel.

As the chambers judge pointed out, s. 97(2) of the Corrections and Conditional ReleaseRegulations provides for the right to consult and retain counsel in these contexts. This right, however, is quite distinct from the right to beprovided with state funded counsel. As the Ontario Court of Appeal pointed out in Rowbotham, supra, the right to retain counsel and theright to have counsel provided at the expense of the state are not the same thing.

For this reason, the Court in that case noted that s. 10(b)of the Charter does not in its terms constitutionalize the right of an indigent accused to be provided with funded counsel. See also R. v.Prosper, (SCC), [1994] 3 S.C.R. 236. By the same token, not every infringement of liberty by the state will raise issuesof sufficient significance or complexity that the right to a fair hearing will entail a right to state funded counsel. [Emphasis added] 19 In R. v. Blanchard, supra, the Court of Appeal applied the reasoning in Kahnapace and upheld the decision of a Queen's Benchjudge, [2010] S.J.

No. 576, who had refused to provide state-funded counsel in a civil matter involving a federal inmate's application fora writ of habeas corpus with certiorari in aid. At issue was his opposition to a proposed involuntary transfer to another penitentiary. Atpara. 10, the Court stated: [10] Mr. Justice Maher found that counsel funded by the state in civil proceedings was not warranted in the circumstances of this case. Inso finding, he relied on decisions of this Court including R. v. Kahnapace, 2008 SKCA 15, [2008] 5 W.W.R. 142; and R. v. Ross and R.v. Latham, both cited at 2008 SKCA 19, 310 Sask. R. 9.

In Kahnapace, Madam Justice Smith, speaking for the Court, stated that, in civilmatters, there are very few circumstances for the appointment of state funded counsel. Specifically, she stated "such an order is availableonly, if at all, in the limited context of an order for advanced costs against the Crown" and, in any other cases, "only when significantinterests not only of the litigant, but also of the public, were at stake." In our opinion, Mr. Justice Maher made no error in refusing statefunded counsel for Mr.

Blanchard. 20 Unquestionably, there are significant interests at stake from the applicant's perspective. However, while potential penalties mayinvolve solitary confinement, delayed parole eligibility, security reclassification, loss of privileges or other consequences impacting onthe applicant's residual liberty interests, it is clear from the case law that the prospect of serious penalty is not, of itself, a determiningfactor. The applicant has not argued or established that there are significant public interests at stake in the matter.

The applicant has notestablished that the issue is of sufficient significance or complexity to warrant an order for publicly-funded legal representation. ... [11] In reviewing this matter before me today, I am convinced that this matter is of great importance to Mr. Bradley. I am alsoconvinced, as in all cases, that as a litigant before this court, he would be assisted and helped by legal counsel. That however is not thetest as to whether or not state-funded counsel should be ordered.

There is nothing before the Court in this particular matter, thatestablishes that the issues involved are those where significant public interests are at stake or the issues involved are sufficiently complexto warrant an order for publically-funded legal representation. [12] I specifically adopt the reasoning of the Courts in R. v. Kahnapace, 2008 SKCA 15, R. v. Blanchard, 2011 SKCA 60; and R.v. MacKinnon, 2011 SKQB 363, and on that basis, I find that the motion must be dismissed.

J.