Ewanchuk v Oksana Community Correctional Centre, 2021 SKCA 102

Court of Appeal for Saskatchewan Docket: CACV3426 Citation: Ewanchuk v Oksana Community Correctional Centre , 2021 SKCA 102 Date: 2021-07-28 Between: Steven Brian Ewanchuk Applicant/Appellant (Applicant) And Director of Oskana Community Correctional Centre, Correctional Service of Canada and National Parole Board Respondents/Respondents (Respondents) Before: Richards C.J.S., Schwann and Tholl JJ.A. Disposition: Fresh evidence application dismissed, appeal dismissed Written reasons by: The Honourable Mr.

Justice Tholl In concurrence: The Honourable Chief Justice Richards The Honourable Madam Justice Schwann On appeal from: CRM 256 of 2020 (QB), Regina Appeal heard: June 10, 2021 Counsel: Steven Ewanchuk on his own behalf Marcia Jackson and Candace Almightyvoice for the Respondents Tholl J.A. I. INTRODUCTION [ 1 ] Steven Ewanchuk is currently subject to a long-term supervision order [LTSO] that requires him to reside in a community correctional centre [CCC], a community residential facility [CRF] or another residential facility approved by Correctional Service of Canada [CSC].

Due to alleged non-compliance with the rules of a facility in Alberta where he was residing, Mr. Ewanchuk’s LTSO was suspended and he was placed in a medium-security penitentiary. When that suspension was cancelled, his former residential facility refused to take him back and the only facility that would take him was the Oskana Community Correctional Centre [Oskana] in Regina. At Oskana, Mr. Ewanchuk is subject to electronic monitoring and a curfew. [ 2 ] Dissatisfied with being placed in a CCC in Saskatchewan, and being subject to electronic monitoring and a curfew, Mr.

Ewanchuk filed a habeas corpus application with certiorari in aid with the Court of Queen’s Bench. While his material sought an extensive variety of relief, Mr. Ewanchuk subsequently retained counsel who limited the application to arguing that he was being forced to reside in a penitentiary and that requirement, along with the electronic monitoring and imposition of a curfew, constituted a deprivation of his liberty. He asked that the residency, electronic monitoring and curfew conditions be quashed.

His application was dismissed in Chambers: Ewanchuk v Oskana Community Correctional Centre (27 January 2021) Regina, CRM 256 of 2020 (Sask QB) [ Chambers Decision ]. [ 3 ] Mr. Ewanchuk is self-represented on this appeal and has raised numerous issues, most of which are not properly before this Court. He also seeks to file fresh evidence. The issues that will be addressed in this appeal consist only of a review of the alleged errors in the Chambers Decision , which are directly related to the status of Oskana, the alleged deprivation of Mr.

Ewanchuk’s residual liberty and the lawful authority for any such deprivation. [ 4 ] For the reasons that follow, the appeal and the application to adduce fresh evidence are dismissed. II. BACKGROUND [ 5 ] Mr. Ewanchuk has a lengthy, violent criminal history, which includes numerous convictions for sexual offences. Most recently, in 2007, he was convicted of sexual assault, sexual interference and invitation to sexual touching and was sentenced to 11 years of incarceration, followed by a ten-year LTSO.

He was held in custody until his warrant of committal expired on February 21, 2018, at which point the LTSO commenced. In its January 24, 2018, decision regarding the conditions to be placed in Mr. Ewanchuk’s LTSO upon his release, the Parole Board of Canada stated as follows: Due to the above factors, the Board is concurring with CSC’s six recommended special conditions, which includes a residency condition in respect of your LTSO. The Board is restricting overnight privileges due to your risk level and history of non-compliance, and to enable the CSC to closely monitor you upon release.

The Board is imposing the following special conditions as they will assist you in self managing your risk while you are on your LTSO … . … You must reside at a Community Correctional Centre or a Community Residential Facility or other residential facility approved by the CSC. [ 6 ] CSC is responsible for supervising Mr. Ewanchuk in the community, under the Corrections and Conditional Release Act , SC

1992, c 20 , and for placing him in a residential facility. The conditions in the LTSO remain in force unless modified or deleted by the Parole Board of Canada, with the exception of the residency condition, which is only imposed for 365 days at a time. The residency condition has been renewed annually by the Parole Board of Canada. [ 7 ] Upon his release in 2018, CSC required Mr. Ewanchuk to reside at the 101 Street Apartments, which is a CRF in Edmonton. During the time he was there, Mr. Ewanchuk was required to wear an electronic monitoring device.

There were numerous difficulties with his compliance, including his tampering with the device. On July 25, 2019, the electronic monitoring system detected that he appeared to be near a playground, park and school, which would be a violation of one of the other special conditions of his LTSO. After allegedly failing to follow his parole officer’s instructions regarding his presence at the site, Mr. Ewanchuk’s LTSO was suspended and he was arrested. Mr.

Ewanchuk was returned to the Bowden Institution, a medium-security penitentiary, and remained there until the suspension of his LTSO was cancelled and he was placed back at the 101 Street Apartments on October 23, 2019. The requirement that he comply with electronic monitoring continued. [ 8 ] On November 16, 2019, Mr. Ewanchuk was stabbed multiple times by another resident at the 101 Street Apartments. After being released from the hospital later that month, he was placed at the Stan Daniels Healing Centre [Stan Daniels] in Edmonton. He remained subject to electronic monitoring. [ 9 ] In his material, Mr.

Ewanchuk alleges that the director of Stan Daniels did not adequately consider his safety concerns and lied about his conduct in her report. He characterizes the exchanges between him and the director at Stan Daniels as him merely asserting his rights under the Charter of Rights and Freedoms and her reacting angrily to his reasonable assertions. The Director obviously saw it differently and, alleging that he continually breached the rules of the facility, withdrew her support for his continued residence at Stan Daniels. As a result, on April 2, 2020, Mr.

Ewanchuk’s LTSO was suspended and he was returned to the Bowden Institution. [ 10 ] CSC was unsuccessful in finding a residential facility in Alberta that would accept Mr. Ewanchuk. Facilities in Edmonton, Red Deer, Calgary and Lethbridge were asked to take him and they all refused. Unable to find a residence in Alberta that was willing to accept Mr. Ewanchuk, CSC placed him at Oskana, in Regina, on June 10, 2020. [ 11 ] Oskana is a 30-bedroom CCC located in downtown Regina.

The amenities include a cultural room, an exercise room, a laundry room, vending machines, a living room/dining area, and a common kitchen area where residents prepare their own meals from groceries they personally purchase. Residents are assigned their own private bedrooms, but double occupancy is occasionally required on a short- term, temporary basis. Residents are allowed to have a vehicle and a parking area is provided. Computers and cell phones are permitted, subject to certain rules. Full-time, outside employment is encouraged and expected. A sign-out sheet is used to monitor the residents.

Visitors are allowed if they are on an approved list. [ 12 ] As a resident of Oskana, Mr. Ewanchuk is required to abide by its rules, which are set out in a handbook. One of those rules is a curfew. After a three-day stabilization period, the curfew is from 6:00 p.m. to 8:00 a.m., which is gradually changed over a three-month period until it is midnight to 6:00 a.m. for residents who are fully employed. Violations of a resident’s special conditions may result in the curfew being reset to its starting point. [ 13 ] Pursuant to Commissioner’s Directive 566-11, and a written demand by a CSC manager at Oskana, Mr.

Ewanchuk is required to wear an electronic monitoring device if he wishes to leave the facility unattended. The purpose of such monitoring is to supervise his compliance with the conditions that prohibit him from being in an area where children congregate and not to be in the presence of female children. Mr. Ewanchuk refused to wear the electronic monitoring device. As a result, he was confined to Oskana 24 hours per day, unless he had an escorted absence. [ 14 ] Mr. Ewanchuk has repeatedly asked that he be permitted to reside in his own private residence in Edmonton.

Such a request does not accord with the special condition in his LTSO regarding residency and the Parole Board of Canada’s annual renewals of that condition. He asserts that his four sons, business contacts, carpentry tools and trailers, vehicle, church, support network and all of his other community connections are in Edmonton. Mr. Ewanchuk disagrees with CSC’s risk assessment and, based on his own self-assessment and his personal

interpretation of the assessment tools used by CSC, he has deemed himself to be at a nil to low-risk to re-offend. He believes that this low-risk should result in him residing in a private residence of his own choosing. He is currently 72 years old. [ 15 ] Mr. Ewanchuk, acting on his own behalf, filed a habeas corpus application with certiorari in aid seeking a variety of relief. In his application, Mr. Ewanchuk asked for the following: (

a) a direction that the misuse of the sexual offender risk assessment tools by CSC be corrected, with compensation provided to him for such misuse; (

b) an order retroactively correcting all of his risk assessments; (

c) a ruling that the most recent suspension of his LTSO was illegal, unreasonable and arbitrary and in violation of s. 2 , s. 7 , s. 9 and s. 11 of the Charter ; (

d) an order forcing an inquiry into why two “sex-offender haters” were placed in his apartment in Edmonton and why he continues to be in danger in Regina; (

e) cancellation of the remainder of his LTSO; (

f) a ruling that he should never have been placed in any residency by CSC, that his risk to sexually re-offend is low, that CSC must correct all facts to conform to the version set out in his material and that he receive financial compensation in relation to these concerns; (

g) immediate release from Oskana, with an immediate return to Edmonton; (

h) an order that he cannot be placed in another CCC or CRF;

(

i) an order permitting him to reside in a personal residence of his own choice in the Edmonton area, with the rental costs for anentire year of that residency to be paid by CSC; (

j) an order awarding him damages for being placed on the medication Lupron and for being stabbed, along with damages forthe associated trauma; (

k) an order providing compensation of $1,400 per day for the latest suspension of his LTSO and the previous suspension of hisLTSO; (

l) an order providing compensation of $1,400 per day for every day he was required to reside in Saskatchewan; (

m) an order providing compensation of $1,400 per day for every day he was confined to the Bowden Institution after warrantexpiry; (

n) an order providing compensation for a lost job in Regina for three months at $30.00 per hour; (

o) damages for the profit from a lost renovation contract; (

p) an order awarding damages of one million dollars; and (

q) other declarations and remedies under s. 2, s. 7, s. 9, s. 11 and s. 24 of the Charter. [16] Subsequent to filing this application, Mr. Ewanchuk obtained counsel. His counsel wrote to the Court of Queen’s Benchlimiting the application to the following issues and requested remedy: 1. The purpose of the application is to challenge the deprivations of Mr. Ewanchuk’s liberty on the basis that: (

a) Mr. Ewanchuk wastransferred to the Oskana Community Correctional Centre in Saskatchewan, and therefore forced to reside in a penitentiary past hisstatutory release date; (

b) Mr. Ewanchuk is subject to a 24 hour curfew condition while at Oksana; and (

c) Mr. Ewanchuk is being forcedto wear an ankle monitor while at Oksana. The applicant’s submission will be that these conditions constitute deprivations of his liberty. 2. The applicant will further submit that the impugned conditions are deprivations of Mr. Ewanchuk’s liberty that have become unlawful.Conditions imposed as part of a long-term supervision order are made pursuant to

section 134.1(2) of the Corrections and ConditionalRelease Act. Under that provision, the Parole Board may establish conditions for the long-term supervision of the offender that itconsiders “reasonable and necessary in order to protect society and to facilitate the successful reintegration into society of the offender”.The application will argue that the conditions are no longer reasonable or necessary, and therefore unlawful. … 5. The appropriate remedy would be to quash the residency, curfew, and electronic monitoring conditions imposed on the applicant. 6.

Subject to the above, the applicant will not be advancing any other argument found in his original application, including Charterdeclarations, damages, or unconditional release. The applicant is not pursuing an application for court-appointed counsel. [17] After filing his application with the Court of Queen’s Bench, Mr. Ewanchuk also applied to the Parole Board of Canada to,inter alia, delete the residency condition from his LTSO. That request was denied on August 15, 2020, with the Parole Board of Canadawriting as follows: Therefore, there are elements of your risk to re-offend that are still assessed as high.

In addition, when considering other possibleaccommodations that could support your level of need and risk, there were no alternatives to a residency condition that were proposed ordeemed sufficient. You are also assessed with low reintegration potential. Therefore, this condition continues to be assessed as reasonableand necessary to manage your risk to re-offend. The Board takes no action to remove this condition. You continue to require the structureand support of a CRF/CCC in order for your risk to be managed and to ensure community safety.

Overall, the previously imposed conditions remain assessed as reasonable and necessary to manage your risk to re-offend and contribute tothe public safety and will remain in effect for the duration of your LTSO unless changed or modified by the Board. Leave privilegescontinue to be restricted and you are to return to the facility nightly. There is no indication in the material that Mr. Ewanchuk sought judicial review of that decision. [18] The parties agreed that Mr.

Ewanchuk was transferred out of Oskana subsequent to the Chambers Decision, but was latertransferred back and remained there as of the date of the argument of the appeal. The respondents submit that, while the appeal wouldtechnically be moot because the placement at Oskana had ended and there is now a new placement, the appeal should nonetheless beconsidered because all of the issues remain the same. This is a pragmatic position that I agree with. III. The Chambers DECISION [19] The Chambers judge reviewed the background of the matter and set out Mr. Ewanchuk’s position.

He noted the test for habeascorpus applications described in May v Ferndale Institution, 2005 SCC 82, [2005] 3 SCR 809 [May], and quoted the following excerpt:“A successful application for habeas corpus requires two elements: (1) a deprivation of liberty and (2) that the deprivation be unlawful.The onus of making out a deprivation of liberty rests on the applicant. The onus of establishing the lawfulness of that deprivation rests onthe detaining authority” (at para 74). [20] Beginning his analysis, the Chambers judge addressed the question of whether Mr.

Ewanchuk had been deprived of his liberty.In doing so, he relied on Dumas v Leclerc Institute, (SCC), [1986] 2 SCR 459 at 464 [Dumas], to determine that not every

constraint on a person amounts to a deprivation of liberty. He cited Mapara v Ferndale Institution, 2012 BCCA 127 at paras 15–16, 318BCAC 139 [Mapara], for the proposition that habeas corpus is “available to challenge only those decisions that result in a substantialchange in the conditions of an inmate’s confinement that adversely affects his or her residual liberty interests” (at para 15). [21] The Chambers judge rejected Mr. Ewanchuk’s argument that Oskana was solely a penitentiary and decided that it was a CCC.He then determined that Mr.

Ewanchuk had not been transferred to a more restrictive setting, finding that he had been transferred from amedium-security penitentiary, the Bowden Institution, to a CCC. He concluded as follows: [11] As the court in Robinson [2013 ONSC 7992] held, and as is the case here, “[t]here has been no deprivation of his liberty because hisstatus remains unchanged”. Ewanchuk has not been moved to a higher-security institution. Rather, he has been moved to a facility asmandated by the conditions of his LTSO. It was Ewanchuk’s doing which resulted in his transfer having to occur.

Therefore, Ewanchukhas not met the first step of the habeas corpus application. [22] With regard to the second part of the test – whether the deprivation of liberty is lawful – the Chambers judge concluded asfollows: [12] Even if Ewanchuk had satisfied the first part of the analysis in May, that his liberty had been deprived, I would nonetheless havefound that such deprivation is lawful and reasonable on the facts of this case. [13] As previously touched upon, the lawfulness of the [Parole Board of Canada] imposing residency conditions was decided inNormandin v Canada (Attorney General) 2005 FCA 345 , [2006] 2 FCR 112. [14] Further, Ewanchuk has not argued any bases for the transfer being unlawful beyond stating that Oskana is a penitentiary.

Thatargument has already been addressed and dismissed. [15] If Ewanchuk wants to have the residency condition removed in its entirety, this is the [Parole Board of Canada’s] jurisdiction andaccordingly, an application should be made with them. [23] Mr. Ewanchuk’s application was dismissed in its entirety. IV. ISSUES [24] On appeal, Mr. Ewanchuk indicated that he has not abandoned his request for the full range of relief set out in his application tothe Court of Queen’s Bench.

However, the majority of the relief he sought could not have been granted on a habeas corpus application.For example, the Court of Queen’s Bench had no jurisdiction to cancel the LTSO or award damages on a habeas corpus application. Thiswas correctly recognized by Mr. Ewanchuk’s counsel when he wrote to the Court of Queen’s Bench informing the court, and therespondents, that the application would be confined to the areas described in his letter excerpted above. In addition, Mr.

Ewanchuk’snotice of appeal does not list any grounds of appeal that do not arise out of the issues that were identified and argued by his counsel in theCourt of Queen’s Bench. As such, I would limit the issues to those that are raised in the notice of appeal and frame them as follows: (

a) Should fresh evidence be admitted on this appeal? (

b) Did the Chambers judge err by determining that Oskana is a CCC? (

c) Did the Chambers judge err by determining that the transfer to Oskana did not represent a loss of residual liberty? (

d) Did the Chambers judge err by determining that the deprivation of Mr. Ewanchuk’s liberty was lawful? V. ANALYSIS A. Fresh evidence application [25] Mr. Ewanchuk applied to admit fresh evidence on appeal. The proposed evidence comes in the form of an affidavit, plus fiveletters to this Court dated April 4, 2021, April 15, 2021, May 11, 2021, May 12, 2021, and May 25, 2021, which, he submitted, should allbe admitted for the Court’s consideration.

I will not attempt to summarize the proposed evidence, but note that it contains a description ofhis transfer out of Oskana in April of 2021, a brief return to Stan Daniels and the associated conflict that resulted, medical issues, a shortreturn to the Bowden Institution, the eventual transfer back to Oskana on approximately May 6, 2021, and his continued concern aboutactions taken and decisions made by CSC. The factual assertions are interspersed with argument. [26] In response, the respondents provided an affidavit from Michelle Bakke, Mr.

Ewanchuk’s current parole officer, setting out theevents that had occurred with regard to his transfers and the events at each facility. As the respondents did not apply to have freshevidence admitted, this affidavit will only be considered for admission if Mr. Ewanchuk’s fresh evidence is admitted. [27] The test for the admission of fresh evidence on appeal, in the context of a habeas corpus application, was recently summarizedby this Court in Cannon v Saskatchewan, 2021 SKCA 77: [46] The decision to admit further evidence in this Court is a discretionary one.

The principles applicable to the exercise of that discretiondepend on whether the evidence existed before the hearing or arose thereafter … . …

[48] In

summary, evidence in existence at the time of a hearing must meet the test set out by the Supreme Court of Canada in R v Palmer, (SCC), [1980] 1 SCR 759 at 775:

(1) The evidence should generally not be admitted if, by due diligence, it could have been adduced at trial … .

(2) The evidence must be relevant in the sense that it bears upon a decisive or potentially decisive issue in the trial.

(3) The evidence must be credible in the sense that it is reasonably capable of belief.

(4) It must be such that if believed it could reasonably, when taken with the other evidence adduced at trial, be expected to have affectedthe result. [49] Evidence that arises after the hearing need not meet the Palmer test, but the Palmer factors are still relevant to the question ofwhether such evidence should be admitted … .

The evidence must be admissible and relevant to an issue under appeal “in the sense that itbears upon a decisive, or potentially decisive, issue in the proceeding”; it must be credible; and if believed, it must reasonably have thepotential, when taken with the other evidence adduced, to have affected the result … .

Further as stated in S.B. [2021 SKCA 18] atparagraph 8, “it must not violate the principle of public policy that favours finality to litigation”. [28] As usual, I have considered all of the proposed evidence in relation to each of the issues to determine if it should be admitted.After doing so, it is my view that none of the evidence bears upon a decisive or potentially decisive issue and could not reasonably, whentaken with the other evidence adduced at the application, be expected to have affected the result.

The proposed evidence of factualoccurrences merely provides additional narrative and descriptions of events that are not pertinent to the decision at hand. Therefore, theapplication to adduce fresh evidence is dismissed. In consequence, the affidavit of Ms. Bakke is not admitted as evidence on this appeal. [29] That said, I will take into account the arguments interwoven with the material that is not admitted as evidence as part of myconsideration of Mr. Ewanchuk’s appeal. B. Dual status of Oskana [30] Mr.

Ewanchuk asserts that he is being required to live in a penitentiary, Oskana, despite his warrant of committal havingexpired in 2018. Mr. Ewanchuk argues that no citizen can be required to reside in a penitentiary once the period of incarceration to whichthey were sentenced has been served. In reply, the respondents submit that Oskana is a dual-status facility, with one of those statuses beingthat of a CCC. [31] This ground of appeal is very straightforward. Oskana has dual status. While Oskana fits within the definition of penitentiaryfound in s. 2(1) of the Corrections and Conditional Release Act, that

section does not preclude a facility from holding concurrent or dualstatuses. As set out in the affidavit of Amy McCrae, Mr. Ewanchuk’s former parole officer, Oskana is both a minimum securitypenitentiary and a CCC. At several points in the various documents attached to Ms. McCrae’s affidavit – that were generated by CSC orthe Parole Board of Canada – Oskana is referenced as being a CCC. This Court has previously observed that Oskana is a CCC: R v Bird,2017 SKCA 32 at para 2, [2017] 8 WWR 684. Mr.

Ewanchuk’s strongly held personal beliefs that a facility cannot be a penitentiary and aCCC at the same time have no bearing on the determination of this issue. Oskana is a CCC as well as a penitentiary. [32] The LTSO requires Mr. Ewanchuk to reside in one of three types of residential facilities. Oskana, as a CCC, meets thatrequirement. This ground of appeal has no merit. C.

General habeas corpus principles [33] Habeas corpus applications have long been used to protect citizens from illegal detention and to restore them to their liberty, ifthey have been unlawfully deprived of it: Khela v Mission Institution, 2014 SCC 24 at paras 27–29, [2014] 1 SCR 502 [Khela]. Thefollowing general principles apply to an application for a writ of habeas corpus ad subjiciendum with certiorari in aid: (

a) the applicant must establish that they have been deprived of their liberty (Khela at paras 30 and 91 and May at para 74); (

b) a deprivation of liberty can consist of a change in conditions of confinement that adversely affects the applicant’s residualliberty interests (Khela at para 34, May at para 76, Mapara at paras 15–16 and Dumas at 464); (

c) once a deprivation of liberty is proven, the applicant must raise a legitimate ground upon which to question its legality; if sucha ground has been raised, the onus shifts to the respondent authorities to show that the deprivation of liberty was lawful (Khela at paras 30and 86 and May at paras 71 and 74). (

d) a review for lawfulness will sometimes require an assessment of the decision’s reasonableness (Khela at para 52); and (

e) the remedy arising from a successful application is not restricted to a complete liberation of the applicant (Dumas at 463–464). D. Loss of residual liberty [34] Mr. Ewanchuk contends that he suffered a loss of his residual liberty by being placed at Oskana. In my view, he has notestablished that any such deprivation occurred. [35] Mr. Ewanchuk was moved to Oskana directly from the Bowden Institution. It is beyond dispute that his liberty was morerestricted at the Bowden Institution, which is a medium-security penitentiary, than it was at Oskana.

This is the exact opposite of thesituation usually addressed by a habeas corpus application. As found by the Chambers’ judge, based on this comparator, Mr. Ewanchukdid not suffer any loss in relation to his residual liberty. In fact, the transfer to Oskana had a positive effect on his residual liberty as

compared to the Bowden Institution. If this is the suitable comparator, the application was properly dismissed at the first stage of the test. However, this conclusion presumes that the Bowden Institution, and its medium-security classification, is the appropriate facility for the comparison. [ 36 ] Although Mr. Ewanchuk was detained at the Bowden Institution immediately before his transfer to Oskana, the reason he was residing there at that time was due to the suspension of his LTSO because of the breakdown in his residency placement. The facility where Mr.

Ewanchuk resided immediately prior to his detention at the Bowden Institution was Stan Daniels, which is a residential facility designated under s. 81 of the Corrections and Conditional Release Act . Because Mr.

Ewanchuk was only residing at the Bowden Institution during the suspension of his LTSO, and while CSC was attempting to find a more permanent residence at an appropriate CCC or CRF, an issue arises as to whether the proper comparator facility and security status is the Bowden Institution or whether it would be more appropriate to compare Oskana to Stan Daniels. [ 37 ] A canvas of the jurisprudence – as it relates to habeas corpus applications arising from transfer decisions or changes in levels in security – supports the contention that the facility or security level used as a comparator in assessing a deprivation of liberty is the situation that existed immediately prior to transfer.

However, the circumstances examined in the cases invariably involve a transfer from a settled placement directly to a higher level of security. See, for example, May and Khela . Nonetheless, in my view, it makes no difference in the circumstances at hand whether Stan Daniels or the Bowden Institution is used as the comparator to determine if Mr. Ewanchuk’s residual liberty interests have been affected. In being moved from the Bowden Institution to Oskana, Mr. Ewanchuk’s liberty was restored to a certain extent and the move, therefore, could not be considered a deprivation of liberty.

But, even if his placement at Stan Daniels is the appropriate comparator, Mr. Ewanchuk still has not established that there was a change in the conditions of his confinement that affected his residual liberty interests. [ 38 ] The material filed by Mr. Ewanchuk reveals that he was subject to electronic monitoring, a curfew, sign-out sheets and institutional rules at Stan Daniels. He has provided no evidence that demonstrates any significant difference between his situation from a living condition and security aspect at Oskana versus Stan Daniels.

Instead, aside from his arguments that Oskana is exclusively a penitentiary and that he is required to live among inmates, this portion of his material focuses mainly on the negative aspects of being placed at a residential facility with rules and supervision as opposed to residing in his own private residence with a significantly lower level of supervision. This is unhelpful because the relevant analysis does not involve comparing Oskana to the private residential situation to which Mr. Ewanchuk believes he is entitled. [ 39 ] I can find no error in the Chambers judge’s determination that Mr.

Ewanchuk failed to establish a deprivation of his residual liberty, regardless of which placement is used for comparison purposes. If the comparator is the Bowden Institution, the effect on his residual liberty was ameliorated by his transfer to Oskana. If Stan Daniels is the baseline, Mr. Ewanchuk has failed to establish there was a change in the conditions of his confinement.

Given this determination – combined with the absence of submissions on the issue of the proper comparator facility or security level when there is an intervening short-term placement – I will leave the issue of the appropriate comparator for another day when it may be fully argued and might have an impact on the outcome of the case. [ 40 ] I cannot give effect to this ground of appeal. E. Lawful deprivation of liberty [ 41 ] Having found Mr. Ewanchuk had not been deprived of his liberty, it was unnecessary for the Chambers judge to continue further in his analysis.

Likewise, with my determination that there is no merit in the earlier grounds of appeal, it is not necessary to address this ground of appeal. However, like the Chambers judge, I will comment briefly on this issue. [ 42 ] Other than Mr. Ewanchuk’s contention that Oskana is a penitentiary, his general discontentment with not being able to reside in his own private residence in the Edmonton area, and his assertion that the LTSO residency condition is not necessary due to his level of risk, he offers no other arguments in support of his position that his placement at Oskana is illegal.

None of these submissions provide any basis for a finding that his placement is unlawful. Pursuant to the terms imposed in his LTSO by the Parole Board of Canada, Mr. Ewanchuk is required to reside at a CRF, a CCC or another residential facility approved by the CSC. Mr. Ewanchuk has been unsuccessful in his attempts to have the Parole Board of Canada remove this term from his LTSO. He cannot collaterally attack the Parole Board of Canada’s decision in this proceeding. As a result, CSC is required to place Mr. Ewanchuk in one of those three types of facilities.

After all possible placements in Alberta were exhausted, CSC had to resort to moving him out of his home province in order to find a facility where Mr. Ewanchuk could reside under the terms of his LTSO. These circumstances do not reveal anything unlawful. [ 43 ] I can find no error in the finding of the Chambers judge that Mr. Ewanchuk’s placement at Oskana was lawful and reasonable. VI. CONCLUSION [ 44 ] The appeal is dismissed.

Although the respondents requested costs, I do not find costs to be appropriate in the circumstances of this matter, either for the appeal or for the application to adduce fresh evidence. “Tholl J.A.” Tholl J.A. I concur. “Richards C.J.S.” Richards C.J.S. I concur. “Schwann J.A.” Schwann J.A.