



COURT OF APPEAL FOR ONTARIO

CITATION: Canada (Attorney General) v. Samuel, 2019 ONCA 555

DATE: 20190702

DOCKET: C66024

Sharpe, Brown and Roberts JJ.A.

BETWEEN

Attorney General of Canada

Respondent (Respondent)

and

Shawn Samuel

Applicant (Appellant)

J. Todd Sloan, for the appellant

Stewart Phillips and Ani Mamikon, for the respondent

Heard: June 18, 2019

On appeal
    from the order of Justice Mary E. Vallee of the Superior Court of Justice,
    dated August 21, 2018, with reasons reported at 2018 ONSC 4961, and from the
    costs order, dated November 2, 2018, with reasons reported at 2018 ONSC 6596.

Sharpe J.A.:

FACTS

[1]

The appellant was serving a lengthy sentence on five counts of
    robbery, unauthorized possession of a firearm, and possession of a weapon
    contrary to a prohibition order. He was released from Beaver Creek Institution
    on day parole in April 2016. While in the community, he completed six months of
    residential substance abuse treatment and, in November 2016, the Parole Board
    of Canada extended his day parole. The appellant was relocated to Ottawa where
    he resided in a halfway house and in January 2017 he secured employment.

[2]

The appellant was subject to conditions that required he report
    to the Community Residential Facility (CRF) where he resided. He was also
    required to comply with conditions not to associate with any person he knew or
    had reason to believe was involved in criminal activity. His CRF caseworker
    reported to his parole officer that he had concerns regarding who the appellant
    was associating with. His parole officer scheduled a disciplinary meeting.
    Following the meeting, the Parole Officer Supervisor issued a warrant of
    apprehension and suspension of the appellants day parole for the protection
    of society and the appellants case was referred to the Parole Board of
    Canada. The Parole Board conducted a hearing and revoked the appellants day
    parole because he presented an undue risk to society, in a decision dated
    April 20, 2017. The Appeal Division affirmed the Parole Boards revocation
    decision on September 11, 2017.

[3]

The appellant was re-incarcerated on the original sentence as a
    result of the revocation of his parole. He contends that he was detained within
    the meaning of s. 10 of the
Canadian
Charter of Rights and Freedoms
during the parole disciplinary meeting and denied the right to be informed of
    his right to counsel.

[4]

While the respondent filed a fresh evidence application to prove
    that, on March 7, 2019, while this appeal was pending, the appellant was
    released from prison on statutory release, the application for fresh evidence
    did not find its way to the appellants counsel. However, the appellants
    counsel concedes that the appellant has been released.

ISSUES

[5]

The appellant raises two issues on appeal to this court.

[6]

First, he submits that the application judge erred by refusing
habeas
    corpus
as the Superior Court was better placed to deal with his
Charter
arguments than the Parole Board, the Appeal Division and the Federal Court on
    judicial review.

[7]

Second, he argues that his
habeas corpus
application was
    criminal in nature and that the application judge erred by characterizing his
habeas
    corpus
application as being civil in nature and ordering costs. In the
    alternative, he submits that if his
habeas corpus
application was
    civil in nature, the costs awarded were excessive and amount to a denial of
    access to justice given his circumstances.

[8]

The respondent resists the appeal on the merits, but also asks us
    to dismiss it as moot.

ANALYSIS

1.

Mootness

[9]

It is common ground that as the appellant is no
    longer in detention, his appeal from the refusal of
habeas corpus
is
    moot.

[10]

It is also common ground that this court has
    jurisdiction to consider a moot appeal where the appeal raises a legal issue
    that, in the interests of justice, the court can and should resolve. Cases
    falling into this category typically raise points that are evasive of review in
    that they are sufficiently important, and they come before appellate courts as
    live issues so rarely, that the law needs to be clarified in the instant
    case:

Mission Institution v. Khela
, 2014 SCC 24, [2014] S.C.R.
    502, at para. 14.

[11]

We agree with the respondent that this is not
    such a case. The appellant concedes that the Superior Court should ordinarily
    decline to
entertain
habeas
    corpus
in the face of a complete, comprehensive and expert procedure for
    review and that the Parole Board hearing and appeal process constitutes such a
    process:
May v. Ferndale Institution
, 2005 SCC 82, [2005] 3 S.C.R. 809,
    at para. 44;
R. v. Graham
, 2011 ONCA 138, 275
    O.A.C. 200, at para. 16. The appellants submission that the application judge
    erred by refusing
habeas corpus
rests on the contention that, in the
    particular circumstances of this case and the nature of the
Charter
issues it raises, the Superior Court was better placed to review the Parole
    Boards decision on
habeas corpus
than the Federal Court by way of
    judicial review.

[12]

In our view, the appellants case is fact-specific
    and raises no legal point that is evasive of review and that should be
    clarified despite mootness. As he has now been released, it would serve no
    purpose for us to entertain the appeal.

[13]

Accordingly the appeal is dismissed as moot.

2.

Costs

[14]

The authority to award costs in
habeas corpus
proceedings depends on whether the matter is characterized as civil or criminal
    in nature.
In Re Storgoff
, [1945] S.C.R. 526 states that it is the
    nature and character of the proceeding in which
habeas corpus

is
    sought which determines whether it is a criminal matter.

[15]

Re Ange
, [1970] 3 O.R. 153 (C.A.) establishes the
    principle that there is no jurisdiction to award costs for
habeas corpus
in criminal matters. The issue in that case was the expiry date of concurrent
    and overlapping periods of imprisonment, requiring interpretation of the
Criminal
    Code
and the
Parole Act
.

This court found that the determination of the expiry date was a criminal
    matter and the court did not have jurisdiction to award costs.

[16]

On the other hand, it is well-established that
habeas corpus
proceedings arising from prison discipline and transfer decisions are
    characterized as civil in nature and that costs may therefore be awarded:
Oliver
    v. Attorney General (Canada)
, 2010 ONSC 6431. A
habeas corpus
application arising from prison disciplinary proceedings is considered a civil
    matter, because it deals with an inmates obligation to conduct himself in
    accordance with prison rules rather than calling him to account to society for
    a crime violating the public interest and because it relates to the
    administration of the lawful sentence by public authorities, rather than the
    legality of the original conviction or indictment:
R. v. Campbell
,
    2010 ONSC 6619, at para. 1

[17]

Similarly, in
Karafa v. The Attorney General of Canada
,
    2016 ONSC 2604, the court awarded costs in a
habeas corpus

application
    relating to an involuntary transfer to medium security.
Habeas corpus
matters where inmates seek release from segregation have been found to be civil
    matters:
Vukelich v. Mission Institution
, 2005 BCCA 75, 38 B.C.L.R.
    (4th) 132, at paras. 33-38. Transfer decisions between institutions and decisions
    about re-classifications are also considered to be civil in nature:
Ross v.
    Riverbend Institution (Warden)
, 2008 SKCA 19, 310 Sask. R. 9;

Hertrich
    v. Her Majesty the Queen
, 2010 ONSC 6334, at para. 3;
Olivier
.

[18]

The appellant submits that as the impugned decision resulted in
    re-incarceration on his criminal sentence and was motivated by a penal intent,
    it ought to be regarded as criminal in nature.

[19]

The respondent argues that parole revocation is an administrative
    decision governed by a comprehensive administrative scheme in the
Corrections and Conditional Release Act
, S.C.
    1992, c. 20 (
CCRA
)

and therefore
    is more akin to disciplinary proceedings than to a criminal proceeding. The
    respondent argues that
habeas corpus
should only be regarded as
    criminal in nature if it arises from proceedings directly related to the
    criminal trial process, including a challenge to the warrant of committal, and
    that anything related to the execution or administration of the sentence is
    properly regarded as civil in nature.

[20]

Counsel were unable to point to any case law on the question of
    whether a
habeas corpus
application challenging the revocation of
    parole is characterized as criminal or civil in nature. The respondent relies
    on
Lee v. Canada (Attorney General)
,
2018 ABQB 40, 403 C.R.R.
    (2d) 194, where the court struck out a confused application alleging that the
    applicants detention on a life sentence for murder had become unlawful because
    the Parole Board refused to consider his application for parole and because he
    had not committed any violent act while in prison. The court described his
    application as badly framed, gibberish and an abuse of process and ordered
    him to pay $2,000 costs.

[21]

Lee
is not binding on this court and in any event I do
    not regard it as determinative of the issue before us. It was not even clear
    that the application the court struck out could be considered a
habeas
    corpus

application. If it was, in fact, a
habeas corpus
application, the case did not involve the revocation of parole and it presented
    many other features crying out for a costs award that are not present here.

[22]

The respondents submission that this is a civil matter has to be
    assessed in the light of the language and purpose of the statutory scheme
that governed the decision the appellant seeks to challenge. Section
    135(1) of the
CCRA
provides for the suspension of parole and
    re-incarceration of the offender when an offender breaches a condition of
    parole or statutory release or whenit is necessary and reasonable to suspend
    the parole or statutory release in order to prevent a breach of any condition
    thereof or to protect society. Section 135(7) provides wherethe continued
    parole or statutory release of an offender would constitute an undue risk to
    society by reason of the offender reoffending, parole may be terminated or
    revoked. Where the offender is returned to custody by virtue of these
    provisions, the offender continues to serve the offenders sentence: s.
    135(10).

[23]

In my view, s. 135 indicates that parole revocation
    has a criminal law purpose and rationale, namely, the protection of society.
    The
reason given for the warrant of apprehension and suspension of the
    appellants day parole was the protection of society and the Parole Board
    revoked the appellants day parole release because he presented an undue risk
    to society. These stated reasons track the criminal rationale of s. 135. The
    appellant was not, as in the case of the prison discipline and transfer cases,
    subjected to an administrative sanction in order the maintain control within a
    prison, but rather ordered to continue to serve the sentence that the court
    had imposed in order to protect society.

[24]

In the prison discipline and prison transfer cases, the criminal
    law sentence serves as merely part of the background. It is the reason why the
    applicant is in the institution and subject to prison discipline. The sanction an
    applicant would challenge is an administrative order that is quite distinct
    from the sentence imposed by the criminal court.

[25]

In the case of parole revocation, the purpose of the challenged
    decision is the protection of society, not maintaining order within the
    institution, and the justification for the detention that is at issue on the
habeas
    corpus
application is the re-institution of the criminal sentence imposed
    by the court. In my view, such an application is properly characterized as
    being criminal rather than civil in nature.

[26]

I conclude, accordingly, that the application judge
    erred by characterizing this as a civil case and awarding costs.

DISPOSITON

[27]

I would dismiss the appeal against the refusal of
habeas
    corpus
as moot, dismiss the fresh evidence application as unnecessary but
    set aside the costs order.

Released: July 2, 2019 RJS                                           
    Robert J. Sharpe J.A.

I agree. David Brown
    J.A.

I agree. L.B. Roberts J.A.


