



COURT OF APPEAL FOR ONTARIO

CITATION: Earhart v. Canada (Attorney General), 2018 ONCA 67

DATE: 20180125

DOCKET: C62584, C63325

Doherty, LaForme and Paciocco JJ.A.

BETWEEN

Donald Earhart

Appellant

and

The Attorney General of Canada

Respondent

Ian B. Kasper, for the appellant

Sanam Goudarzi and Korinda McLaine, for the respondent

Heard:  January 15, 2018

On appeal from the order of Justice Tranmer of the Superior
    Court of Justice, dated August 25, 2015, dismissing an application for
habeas
    corpus
.

REASONS FOR DECISION

[1]

This appeal was heard with the appeal in
R. v. Wong
(C63325).
    Like that appeal, this appeal is moot.

[2]

The appellant is serving a life sentence for first degree
    murder. In April 2015, he was reclassified from medium to maximum security. In
    June 2015, he was ordered transferred to a penitentiary outside of Ontario. He challenged
    both decisions by way of
habeas corpus
. His
application was dismissed in August 2015. A year
    later, in August 2016, this court, on consent, extended the time for filing a Notice
    of Appeal to August 26, 2016 and the appellant commenced this appeal.

[3]

Unbeknownst to counsel at the time of the application for an extension
    of time, the appellant had been transferred from maximum security back to
    medium security in June 2016. The appeal was moot when the extension was sought
    and granted. There can be no doubt that had the court been aware that the
    appellant had been transferred back to medium security, it would not have
    granted an extension of time to appeal.

[4]

The appellant remained in medium security from June 2016 to
    June 2017. In June 2017, he was transferred to the segregation unit at a different
    institution. In August 2017, he was ordered transferred to a different
    penitentiary outside of the province. In August 2017, the appellant commenced a
    new
habeas corpus
application
    challenging, both the transfer to segregation and the transfer to the
    penitentiary outside of Ontario. That application is to be heard in April of
    this year.

[5]

The appellant seeks to
    raise the same issues pertaining to s. 27 of the
Corrections and
    Conditional Release Act
, S.C. 1992, c.
    20 as are raised in
R. v. Wong
. In one respect, the appellant has a stronger case for the court
    hearing his appeal, despite its mootness, than does the appellant, Wong. The
    arguments raised on appeal, particularly as they relate to s. 27(3) of the Act,
    were raised, to some extent, before the application judge. He addressed those
    arguments in his reasons. The application judge purported to apply
Khela
. The appellant submits that the application judge
    misapplied
Khela
.

[6]

We are satisfied that we should not hear
    this appeal on its merits. As counsels oral argument made clear, any attempt
    to elucidate the principles identified in
Khela
drives one inevitably back to the specifics of the
    particular case. The specifics of the case as presented to the application
    judge are now irrelevant to the lawfulness of the appellants present detention.
    The lawfulness of that detention depends on the application of the
Khela
principles to the specifics of the appellants
    current detention. Consequently, the current
habeas corpus
proceeding is the preferable forum in which to
    address the application of the principles set down in
Khela
to the appellants claim that his detention is
    unlawful.


[7]

The appeal is dismissed as moot.

Doherty J.A.

H.S. LaForme J.A.

David M. Paciocco J.A.




