



COURT OF APPEAL FOR
BRITISH COLUMBIA




Citation:



R. v. Gustavson,









2005 BCCA 32




Date: 20050119





Docket: CA030521; CA030538;
CA031174; CA031191; CA031977

Between:

Regina

Respondent

And

Orville John Gustavson

Appellant












Before:



The Honourable Mr. Justice
  Esson





The Honourable Madam
  Justice Rowles





The Honourable Madam
  Justice Prowse









A.H. Zipp



Counsel for the Appellant





C. Workin and M. Palmer



Counsel for the Respondent





Place and Date of Hearing:



Vancouver, British Columbia





October 22, 2004





Place and Date of Judgment:



Vancouver, British Columbia





January 19, 2005









Written Reasons by
:





The Honourable Madam
  Justice Prowse





Concurred in by:





The Honourable Mr. Justice
  Esson

The Honourable Madam
  Justice Rowles






Reasons
for Judgment of the Honourable Madam Justice Prowse:

INTRODUCTION

[1]

There are five appeals before the
Court (CA030521, CA030538, CA031174, CA031191, and CA031977) for determination
of a preliminary issue relating to the practice in
habeas corpus
proceedings in B.C. Supreme Court where the applicant is unrepresented.  By
order of this Court, dated October 9, 2003 (the "Order"), counsel was
appointed to represent Mr. Gustavson (the applicant/appellant):

.
. . solely in relation to the question of whether the practice of holding a
hearing in which counsel for the respondent to an application for
habeas
corpus
makes oral submissions on questions of law and the applicant is not
entitled to be present is a practice in accordance with the principles of 
natural justice, or whether either both should be allowed to be present in
person or by counsel or, alternatively, neither should be allowed to be present
in person or by counsel at that preliminary stage, with both being entitled to
make submissions in writing on the preliminary question of whether the
application is totally devoid of merit.

[2]

The Order made reference to only
two of the appeals which had been brought by Mr. Gustavson, acting in person. 
Three other appeals raise the same issue and have been added to the list so
that all outstanding appeals filed by Mr. Gustavson may be dealt with
together.

[3]

These appeals originally came on
for hearing on May 4, 2004, but were adjourned at the request of counsel to
permit them to make submissions concerning the application of s. 774.1 of the
Criminal
Code
, R.S.C. 1985, c. C-46 (the "Code") to the issue before
the Court.  At the hearing of the appeal, counsel also addressed the relevance
of s. 650.01 of the Code in that regard.

[4]

Two applications were filed by the
respondent in reply to the original appeals: one requesting that the appeals be
dismissed as frivolous and vexatious; the other requesting an order pursuant to
s. 29 of the
Court of Appeal Act
, R.S.B.C. 1996, c. 77

(the
"Act") that Mr. Gustavson be precluded from bringing further
proceedings in this Court without leave of a justice of this Court.  At the
outset of the appeal, both applications were adjourned generally pending the
determination of the preliminary issue.

[5]

I note that Mr. Gustavson attended
at the hearing of this appeal, but that submissions on his behalf were made by
his counsel, Mr. Zipp.

[6]

I also note that the Attorney
General for British Columbia was invited to make written submissions with
respect to the issue on appeal but declined to do so by letter dated December 6,
2004 on the basis that applications for
habeas corpus
by inmates of
provincial institutions are extremely rare, and that the usual practice is to
bring those applicants to court for their hearing.

BACKGROUND

[7]

Mr. Gustavson has an extensive
history of proceedings in the courts of British Columbia.  Because of the
limited nature of the preliminary issue, and because the issue affects not only
Mr. Gustavson but all unrepresented applicants for
habeas corpus
in
similar circumstances, there is little point in detailing his personal court
history.  Suffice it to say that Mr. Gustavson is the subject of a warrant of
committal issued January 11, 1983 upon the imposition of an indeterminate
sentence following his designation as a dangerous offender.  He is currently
serving his sentence at Kent Institution.

[8]

In each of the five appeals which
are before the Court, Mr. Gustavson applied in writing for an order of
habeas
corpus
seeking his release.  In each case, in accordance with the usual
practice, Mr. Gustavson was not permitted to attend at the hearing of the
application.  In each case, counsel for the respondent attended at the hearing
and made submissions.  In each case, Mr. Gustavson's application for an order
for
habeas corpus
was dismissed.

[9]

The merits of Mr. Gustavson's applications
for
habeas corpus
are not in issue at this time.  The narrow issue is
simply whether Mr. Gustavson, and other inmates serving time in federal
institutions who apply for an order of
habeas corpus
, are entitled to be
present when their applications come before the Supreme Court.  The more
general issue is whether the practice followed in the Supreme Court with
respect to applications for
habeas corpus
by unrepresented applicants
accords with the principles of natural justice and with the provisions of the
Code, and, if not, what modifications to that practice are required to ensure
compliance.

DISCUSSION

(a)
Sections 650.01 and 774.1 of
the Code

[10]

I will begin with the question of
whether ss. 650.01 and 774.1 of the Code, which specifically address the right
of appearance in matters of
habeas corpus,
are of any assistance in
resolving the preliminary issues before us.  These sections, proclaimed as part
of an omnibus bill (Bill C-15A) which came into force on July 23, 2002, provide,
in part, as follows:



Designation
of counsel of record

650.01   (1)  An
accused may appoint counsel to represent
the accused
for any proceedings
under this Act by filing a designation with the court.

* * *

Effect
of designation

(3)  If
a designation is filed,

(a)
the accused
may
appear by the designated counsel without being present for any part of the
proceedings, other than

* * *

(iii)  an
application for a writ of habeas corpus;

(b)  an appearance by the
designated counsel is equivalent to the accused's being present, unless the
court orders otherwise;

* * *

Appearance
in person  Habeas Corpus

774.1   Despite
any other provision of this Act,
the person
who is the subject of a writ
of habeas corpus must appear personally in court.

[Emphasis added.]

[11]

Since there is a question as to
whether the English and French versions of these sections bear the same meaning,
I will also set forth these provisions in French:

650.01
. . .

Effet
de la désignation

(3)  En
cas de dépôt d'un document de désignation:

(a)  l'accusé peut
comparaître par l'intermédiaire de son avocat dans le cadre de toute partie d'une
procédure, à l'exception de celle touchant à la présentation de la preuve
testimoniale, à la sélection des membres du jury ou à une demande de bref d'
habeas
corpus
;

* * *

Demande d'
habeas corpus

774.1 Malgré
les autres dispositions de la présente loi, la personne à l'égard de laquelle
une demande de bref d'
habeas corpus
a été présentée doit se présenter en
personne devant le tribunal.

[12]

As noted by the respondent, s.
650.01(3)(a)(iii) (s. 650.01(3)(a) in the French version) cannot apply to Mr.
Gustavson since he is not "an accused" applying for
habeas corpus
,
but rather a convicted and sentenced inmate.  Thus, while a plain reading of
that subsection would support an accused's right to appear in court on an
application for
habeas corpus
, it does not avail Mr. Gustavson or others
in his position.

[13]

I turn, then, to s. 774.1 of the
Code.  Both the English and French versions of this section appear to reflect
the historical two-stage approach to applications for
habeas corpus
which I will discuss in more detail later in these reasons.  In brief, the
first stage involved the court examining the application in the absence of the
applicant to determine if it had sufficient merit to justify the issuance of a writ. 
If it did, a writ would issue directing the applicant to be brought to court,
and the application would be dealt with on its merits on the return of the writ
(the second stage.)

[14]

The meaning of the English version
of s. 774.1 is clear and unambiguous.  It provides that a person "who is
the subject of a writ of habeas corpus must appear personally in court." 
Unlike s. 650.01, it is not restricted to an accused applicant. In my view, a
person can be the "subject" of a writ of
habeas corpus
only if
a writ has issued to which that person is subject.  (Unless and until a writ is
issued, an applicant can only be described as being the "subject" of
an application for
habeas corpus.
)  A writ is not issued unless and
until a judge has determined that the writ should issue.  If the judge decides
that the application for the writ is entirely without merit, then the writ will
not issue; that is, the application will be dismissed.  If the writ issues, the
applicant must appear personally in court on the return of the writ.

[15]

Does the French version of s.
774.1 give rise to a different interpretation?  In my view, it does not.  In translation,
the French version of s. 774.1 provides that, "Despite any other
provisions of this Act, the person with regard to whom an application for
habeas
corpus
was presented must appear in person before the court".  The
critical aspect of the French version is that it is expressed in the past
tense.  Rather than referring to a person with regard to whom an application
for
habeas corpus
"is presented", it refers to a person with
regard to whom an application for
habeas corpus
"was presented". 
It assumes that the application has been heard.  If the application resulted in
the issuance of a writ, the applicant must appear in court on the return of the
writ.

[16]

In summary, neither s. 650.01 nor
s. 774.1 supports an applicant's right to appear at the initial application for
a writ of
habeas corpus
, except under s. 650.01 where the applicant is
an "accused".

[17]

There are, however, other provisions
in effect with respect to applications for
habeas corpus
which are
relevant to the preliminary issue before the Court.


(b)
The
Criminal Rules and Rights of Appeal

[18]

Applications for
habeas corpus
are dealt with in the
Criminal Rules of the Supreme Court of British
Columbia
, SI/97-140 (the "Rules") passed pursuant to s. 482
of the Code.  Those rules apply to all criminal proceedings within the
jurisdiction of the Supreme Court.  The rules relevant to this discussion are Rules
1(4) and (9) and Rule 4.  Rules 1(4) and (9) provide:

(4)  These Rules are intended
to provide for the just determination of every criminal proceeding and shall be
liberally construed to secure simplicity in procedure, fairness in
administration and the elimination of unjustifiable expense and delay.

. . .

(9)  The court may, only
where and as necessary in the interests of justice, dispense with compliance
with any rule at any time.

[19]

Rule 4, headed "
Mandamus
,
Certiorari
,
Habeas Corpus
, Prohibition, Bail Applications and
Disposition of Exhibits", provides, in part:

(1)  (a)  No
writ of
mandamus
,
certiorari
,
habeas corpus
or prohibition
shall be issued, but all necessary directions shall be made by order.

(b)  A notice of application
for an order referred to in subrule (a) and all supporting material shall be
served on all persons who appear to be interested in or likely to be affected
by the proceedings and in particular, unless the court otherwise directs, the
notice of application shall also be served at least six days before the date
stated in the notice for the hearing of the application on the Attorney General
of British Columbia, and where it is sought to quash a conviction, order,
warrant or inquisition, the notice of application and all supporting material
shall be served on the judge, justice or justices who made the conviction or
order or issued the warrant or the coroner who held the inquisition.

(c)  Any person not served
with the notice of application may show that the person is affected by the
proceedings and thereupon may be permitted to take part in the proceedings as
though served.

* * *

(3)  On
the hearing of the application for
habeas corpus
, the court may direct
that an order be drawn up forthwith for the discharge of the prisoner, and such
order is a sufficient warrant for any jailer for the discharge of the prisoner.

[20]

Counsel agree that Rule 4, in
particular, provides for a one-stage application for
habeas corpus
in
which the applicant's right to be released is decided once-and-for-all on the
date set for the hearing of the application.

[21]

Rules similar to those in British
Columbia for one-stage hearings of applications for
habeas corpus
have
also been adopted in Alberta and Nova Scotia.  Prince Edward Island,
Newfoundland, Northwest Territories, Ontario and Saskatchewan  have adopted
criminal rules applying a two-stage procedure.  In the latter jurisdictions, the
court determines whether a writ of
habeas corpus
will issue at the first
stage.  If the writ issues, the merits of the application are heard at the
second stage on the return of the writ.  The one-stage approach "collapses"
these two stages into one.  The two-stage procedure more closely accords with
the historical approach to applications for
habeas corpus
.

[22]

The two-stage approach is also
reflected in the appeal provisions found in ss. 784(3)-(6) inclusive of the
Code, which provide:

(3)  Where
an application for a writ of
habeas corpus ad subjiciendum
is refused by
a judge of a court having jurisdiction therein, no application may again be
made on the same grounds, whether to the same or to another court or judge,
unless fresh evidence is adduced, but an appeal from that refusal shall lie to
the court of appeal, and where on the appeal the application is refused a
further appeal shall lie to the Supreme Court of Canada, with leave of that
Court.

(4)  Where
a writ of
habeas corpus ad subjiciendum
is granted by any judge, no
appeal therefrom shall lie at the instance of any party including the Attorney
General of the province concerned or the Attorney General of Canada.

(5)  Where
a judgment is issued on the return of a writ of
habeas corpus ad
subjiciendum
, an appeal therefrom lies to the court of appeal, and from a
judgment of the court of appeal to the Supreme Court of Canada, with the leave
of that Court, at the instance of the applicant or the Attorney General of the
province concerned or the Attorney General of Canada, but not at the instance
of any other party.

(6)  An
appeal in
habeas corpus
matters shall be heard by the court to which the
appeal is directed at an early date, whether in or out of the prescribed
sessions of the court.

[23]

Thus, there is a provision for an
appeal at each stage of the proceeding, except under ss. 784(4) where the
application for
habeas corpus
is granted.

(c)
"The Practice" in British
Columbia

[24]

The following discussion of the "practice"
in British Columbia is restricted to the practice in relation to applicants for
habeas corpus
brought by inmates of federal institutions.  As earlier stated,
counsel for the Attorney General of British Columbia has advised that the
practice with respect to inmates of provincial institutions is to bring them to
court for the hearing of the application.

[25]

The Court was advised that where
an inmate of a federal institution makes an application for
habeas corpus
,
it is the invariable practice that counsel for the respondent appears at the
hearing of the application.  If the inmate is represented by counsel, his
counsel appears on his or her behalf and the hearing proceeds in a "collapsed"
one-stage proceeding to determine whether the application should be granted and
the inmate released.  This accords with the Rules, and, in particular, Rule
4(3).  (Arguably it does not accord with s. 774.1 which states that the
applicant "must appear personally in court.")

[26]

Under the B.C. practice, if the
inmate is unrepresented only counsel for the respondent appears on the
application.  This is so even where the inmate specifically asks to appear, as
Mr. Gustavson did on his applications.  The
habeas corpus
proceeding is
then dealt with in two stages.  At the first stage, the judge hearing the
application determines the preliminary question of whether the application
meets a threshold of having some merit; or, on the other hand, if it is clearly
frivolous and vexatious.  This determination is now made on the basis of the
materials filed by the applicant and the respondent, together with the respondent's
oral submissions.

[27]

If the court determines that the
application is frivolous or vexatious, the application is dismissed.  If the
court determines that the application is not clearly frivolous or vexatious,
then an order is made to have the applicant brought before the court at a later
date to argue the merits.

[28]

Thus, if the applicant is
represented by counsel, his/her application is dealt with in a one-stage proceeding
which determines whether the application is worthy of being heard on the merits
and, if so, whether the application should be granted and the inmate released. 
The applicant is given the opportunity to make submissions through his or her
counsel.  If the applicant is unrepresented, he/she is subject to having
his/her application dismissed without having the opportunity to make oral
submissions.  The respondent, on the other hand, is permitted to appear and
make submissions in every case, whether or not the applicant is present or
represented.

[29]

Counsel for the respondent advised
the Court that the practice in these matters has been modified recently with
respect to applications by unrepresented applicants.  I will refer to the
significance of those changes later in these reasons.  Suffice it to say that
the usual practice continues to be that the respondent appears on the initial
hearing of the applications and that the unrepresented applicant does not.

[30]

The rationale offered by the respondent
for the difference in the practice followed with respect to represented and
unrepresented applicants is that it is unlikely that counsel representing
inmates seeking
habeas corpus
will bring applications which are clearly
frivolous or vexatious, whereas applications brought by inmates acting in
person are more likely to be frivolous and vexatious.  Respondent's counsel
submits that the present practice is essentially fair since the role played by respondent's
counsel on applications where the applicant is unrepresented and not present is
simply to ensure that the proper materials are placed before the court in a
comprehensible manner, to advise the court of its jurisdiction, and to address
the law with respect to the merits of the application to enable the judge to
determine if the application is clearly frivolous and vexatious.  This permits
the applications to be dealt with in an expeditious manner without wasting
valuable court time and sifts out those applications which have some merit from
those which have none.

[31]

Counsel for the respondent also
seeks to support the practice on the historical basis that, at common law, the
applicant for
habeas corpus
had no right to be present on the
application.

[32]

Not surprisingly, inmates who are
not allowed to be present for the determination of whether their application
should be permitted to proceed to the second stage do not take the same benign
view of the fact that respondent's counsel is entitled to address the court on
their applications in their absence.  They view the proceedings as being fundamentally
adversarial; they are challenging the validity of their detention and seeking
their release; and respondent's counsel is opposing it.  In answer to the respondent's
argument that this practice is a venerable one with deep historical roots, the
applicants' short answer is that the fact a practice may be rooted in history
is not determinative of whether it is fair, and that what may have been
regarded as fair historically, may not be so regarded from a post-Charter
perspective.

[33]

In that regard, I now turn to some
of the authorities to which we have been referred to determine whether they
assist in determining the legitimacy of the B.C. practice.

(d)
The Authorities

[34]

Counsel have referred the court to
several authorities which set forth the history of the writ of
habeas corpus
in some detail.  For the purposes of the specific issue before this Court,
however, I need refer to only a few of the more pertinent authorities,
including decisions of this Court.

[35]

In
Ex parte Durocher
,
[1966] 3 C.C.C. 397 (Ont. H.C.), the court was presented with a written
application by an inmate for a writ of
habeas corpus
.  The applicant did
not provide an affidavit in support of his application but requested that he be
allowed to make oral argument.  The respondent appeared and opposed the
application on two bases: first, that the writ disclosed no arguable ground
upon which the writ might issue, and, second, that an application for
habeas
corpus
brought by a prisoner in person must follow the procedure set forth
by the Divisional Court in
Re Wring; Re Cook
, [1960] 1 All E.R.
536 (Q.B.D.).  In
Re Wring
, the Divisional Court held that there
was no right of access by a prisoner to the court on such an application except
(at p. 537):

(a)  to
consult a solicitor about the possibility of instructing counsel to make
application on his behalf; or

(b)  to
ask someone to make an application for him or arrange for one to be made and in
either case to swear the necessary affidavits; or

(c)  to
apply to the local committee of the Law Society for the purpose of making an
application.

[36]

In
Durocher
, Mr.
Justice Brooke also referred to the decision in
Re Greene
(1941),
57 T.L.R. 533 (K.B.D.), which held that the court had the right to hear an
applicant for
habeas corpus
in person, but that it should not do so "unless
some sufficient ground is shown for a departure from established practice; and
the mere fact that an applicant prefers to act as his own advocate should not
be regarded as a good ground."

[37]

While Mr. Justice Brooke was not
prepared to find that the practice of the Divisional Court of England was the
practice in Ontario, he concluded that the inmate applicant had no right to
appear on the application.  Rather, he concluded (at p. 398) that:

It
is open to the Court to examine the application which it receives and if no
arguable point is raised therein upon which a Court might direct the issue of a
writ of
habeas corpus
, or if the application is not supported by any
proper material, the Court may dismiss the application or deal with it as
appears to be just in the circumstances.

[38]

In the result, Mr. Justice Brooke
dismissed the application on both grounds.  In so doing, he noted that the Ontario
courts had not then passed any criminal rules pursuant to then s. 424 of the
Code relevant to such applications.

[39]

Durocher
was considered by this Court in
Ex parte
Johnson
, [1968] 4 C.C.C. 225.  There, Mr. Johnson appealed from the
dismissal of his application for
habeas corpus
on the basis that he had
been denied the opportunity to be heard on the application.  The chambers judge
who dismissed his application relied on
Durocher
and
distinguished an unreported decision of this Court,
R. v. Pedersen
(24
October 1966), Vancouver No. 302/66, where the Court remitted an application
for
habeas corpus
to the Supreme Court to be heard on proper notice to
the applicant.

[40]

On appeal, this Court agreed that
the
Pedersen
decision was distinguishable and addressed the
question of whether an applicant was entitled to be brought to court to be
heard on his motion (at p. 227):

He
is entitled to be represented by counsel and if he wishes to be present in
person he must make an application through the Registrar to a Judge  not of
necessity the Judge who is to hear the motion  for an order that he be brought
from gaol.  The granting of such an order is discretionary with the learned
Judge who hears the application, such discretion to be exercised on the broad
principles stated in the judgments in
Evans v. Bartlam,
[1937] A.C.
473:  If such an order is made, it is my opinion that the applicant may be
permitted to argue the
habeas corpus
application personally, or he may
retain counsel.

[41]

In
Johnson
,

this
Court referred to the English authorities and the Ontario practice set forth in
Durocher
and opined that they reflected a more restricted
practice with respect to the right of an applicant to appear than that in
British Columbia.  However, in adopting the procedure referred to in the
passage quoted at para. 40,
supra
, the Court (at p. 228) approved the
language of Munroe J. in
R. v. Olson
(1968), 63 W.W.R. 446 (B.C.S.C.),
where he stated (at p. 447) that
Pedersen
:

.
. . did not hold that an inmate in a prison could ensure himself a day out for
a trip to a court house at will by the simple expedient of filing an
application for a Crown prerogative writ, however repetitious, frivolous or
lacking in merit the application may be.

[42]

In the result, this Court found
that the chambers judge in
Johnson
had erred in proceeding with
the
habeas corpus
application without notice to the applicant, but went
on to dismiss the application on the basis that it was without merit.

[43]

Durocher
and
Johnson
were considered by the
Ontario Court of Appeal in
R. v. Olson
(1987), 38 C.C.C. (3d)
534.  There, the applicant had brought an application for
habeas corpus

with
certiorari
in aid and claiming relief pursuant to s. 24(1) of the
Canadian
Charter of Rights and Freedoms
(the "Charter").  The
application was dismissed in the absence of the applicant on the basis of
affidavits filed by the applicant and the Warden of the institution in which
the applicant was incarcerated.  On appeal, the appellant argued, amongst other
things, that the chambers judge had erred in dismissing his application in his
absence.

[44]

Mr. Justice Brooke, speaking for
the court, addressed this argument at p. 542 of the decision:

At
common law, and before the Charter, the court was not bound to require that a
prisoner be transferred from custody to the court in order that he might make
his application for a writ of
habeas corpus
personally:  see
Ex parte
Durocher
[
supra
];
Ex parte Johnson
[
supra
].  The
nature of the writ assumes the applicant is in custody and cannot be before the
court.  If the court issues the writ, it commands the jailer, in the name of the
sovereign, to bring the prisoner before the court and to prove the lawfulness
of the detention.  At one time the court was limited to an inquiry upon the
face of the warrant.  Today, the scope of the court's authority has been
broadened by the use of
certiorari
in aid and affidavit evidence.  On
the application for the writ the court will consider any written submissions
the applicant may make and if some arguable issue or
prima facie
case is
suggested, the writ should issue.

[45]

Mr. Justice Brooke did not accept
that the Charter had changed the procedures with respect to the writ of
habeas
corpus
.  He found that the chambers judge had the jurisdiction to proceed
in the absence of the applicant.  In the result, however, Mr. Justice Brooke
found that the appellant had raised an arguable issue as to whether he had been
lawfully detained in segregation.  For that reason, he held (at p. 543) that:

.
. . Maloney J. should either have directed that the appellant be brought before
him to argue the case as though the writ had been issued or, alternatively, to
issue the writ and afford the applicant the opportunity to appear and respond
to the submissions of his jailer on the hearing upon the return of the writ. 
It was not good enough to leave this matter by denying the applicant an
opportunity to be heard.

[46]

Rather than remit the application
to the High Court, the Court of Appeal went on to dismiss the application on
the merits, after hearing from the appellant.

[47]

Mr. Olson appealed to the Supreme
Court of Canada.  He argued that, in light of the two-stage
habeas corpus
proceedings in effect in Ontario, the Court of Appeal had no jurisdiction to
deal with the application on the merits, but should have remitted the
application to the High Court.

[48]

The Supreme Court of Canada
dismissed the appeal:  [1989] 1 S.C.R. 296.  In so doing, the Court
described the Ontario practice in dealing with
habeas corpus
proceedings
(at p. 298) of the decision:

By virtue of the combined effect of the
Act for
more effectually securing the Liberty of Subject,
S. Prov. C. 1866, 29
& 30 Vict., c. 45 (the
Habeas Corpus Act
), and Rules 9 and 11 of the
Ontario Supreme Court Rules Respecting Criminal Proceedings  Part I,
SI/85-152, as amended, the application for a writ of
habeas corpus
is a
two-stage process.  In the first stage the judge to whom the application is
made must determine whether "probable and reasonable ground" for the
complaint exists as provided in s. 1 of the
Habeas Corpus Act
. If such
grounds are present, the writ issues and the merits are determined on the
return of the writ.  However, Rule 11 provides a mechanism for collapsing these
two stages into one.
Rule 11 provides that on consent the issue of the
writ, the return thereto and the presence of the detainee may be dispensed
with.
This is the usual practice where the applicant is represented by
counsel.  Where a written application by a prisoner proceeds to the second
stage of detailed consideration of the merits, it is common practice to
dispense with the formality of actually issuing the writ by simply ordering the
prisoner to be brought before the court to make submissions.

[Emphasis added.]

[49]

The Supreme Court of Canada
concluded that, even if the Court of Appeal had erred in determining the
application on the merits rather than sending it back to the High Court, the
appeal should be dismissed pursuant to what are now ss. 686(1)(b)(iii) or (iv)
of the Code.  (I note that this case was decided prior to the enactment of s.
774.1.)

[50]

In a subsequent decision of the
Supreme Court of Canada,
United States of America v. Desfossés
,
[1997] 2 S.C.R. 326, the Court referred to the "modern practice" on
applications for
habeas corpus
at para. 10 of the decision:

The modern practice, especially where the applicant is
represented by counsel, is to collapse the two stages into one.  The formal
issue of the writ and the return are dispensed with and the merits are argued
on the basis of the material relevant to the lawfulness of the detention which
the parties choose to file.  In some jurisdictions, the rules of court provide
a mechanism for the collapse of the two stages.  In others it is done on
consent of the parties.  In my opinion, what is important is that where the
appropriate grounds exist there be a hearing on the merits with respect to the
lawfulness of the detention.  The mechanics of obtaining such a hearing are not
a matter of substance.  See [
R. v.
]
Olson
, [[1989] 1 S.C.R. 296] at
p. 299.

[51]

This Court has referred to the issue
of an unrepresented applicant's right to appear on an application for
habeas
corpus
in two more recent decisions:
Woodhouse v. William Head
Institution
(1999), 126 B.C.A.C. 305, 1999 BCCA 432, and
R.
v. Sowa
(2000), 143 B.C.A.C. 223, 2000 BCCA 558.

[52]

In
Woodhouse
, the
applicant applied for
habeas corpus,
challenging the revocation of his
parole by the Parole Board.  The chambers judge dismissed the petition, without
hearing from the applicant, on the basis that the applicant had not exhausted
the internal remedies available to him under the
Corrections and
Conditional Release Act
, S.C. 1992, c. 20.

[53]

At the hearing, the chambers judge
relied on an affidavit of the respondent addressing the merits of the
application which was not served on the applicant until the day before the
hearing.  The applicant was not given the opportunity to respond to the
affidavit in writing; nor was he permitted to attend the hearing in person. 
Mr. Justice Mackenzie (with whom Mr. Justice Esson was in substantial
agreement) found that the failure to provide the applicant with an opportunity
to make a written response gave rise to "a fundamental breach of due
process", but that the appropriate remedy was a fresh petition by the
applicant before the Appeal Division of the Parole Board.  He, therefore,
dismissed the appeal.  In so doing, he observed that the practice whereby an
unrepresented applicant for
habeas corpus
is not present at the hearing
of the application was not questioned on the appeal.

[54]

Madam Justice Ryan agreed with Mr.
Justice Mackenzie that the appeal should be dismissed, but for somewhat
different reasons.  At para. 15 of the decision, Ryan J.A. stated:

I
agree with my colleague that the application for
habeas corpus
as it was
presented in the Supreme Court Chambers was not heard in accordance with the
principles set down in
R. v. Olson
(1968), 63 W.W.R. 446 (B.C.S.C.);
and,
ex parte Johnson
[
supra
].  These cases approve of the
practice that a Chambers judge may dismiss an application for
habeas corpus
by an unrepresented prisoner without requiring his attendance where, on the
face of
his
materials, the prisoner's application is frivolous,
repetitious or without merit.  Failing that, where the affidavit of the gaoler,
on the notional return to the writ, demonstrates that the application is
without merit a Chambers judge may dismiss the application without requiring
the attendance of the prisoner once the prisoner has been given the opportunity
to respond in writing to the gaoler's materials.  But where the materials
disclose that there is an issue to consider with respect to the lawfulness of
the prisoner's detention, then the prisoner must be given the opportunity to
make his submissions in person before the court.  (See also
R. v. Olson
(1987) 38 C.C.C. (3d) 534.)

[Emphasis added.]

[55]

Madam Justice Ryan concluded that,
although there had been a "serious procedural error" in the manner in
which the chambers judge had dealt with the application, the applicant had had
a full hearing before this Court and there was no basis for finding that his
detention was unlawful.

[56]

Subsequently, in
Sowa
,
at para. 14, this Court reiterated that a Supreme Court judge may dismiss an
application by an unrepresented prisoner for an order in the nature of
habeas
corpus
without requiring his or her attendance "where the justice is
satisfied that, on the face of the materials, the application is frivolous,
repetitious or without merit."  The Court did not refer to the
Woodhouse
decision, but I do not interpret the
Sowa
decision as inconsistent
with it.

[57]

In summary, although the
Woodhouse
decision recognizes the potential for procedural unfairness where applicants
for
habeas corpus
are not given the opportunity to reply to the respondent's
position on the application, none of the decisions to which I have referred supports
a right of an unrepresented applicant to appear at the "first stage"
of such an application.  Rather, they endorse the two-stage procedure for unrepresented
applicants, who are only brought from their place of detention to speak to
their applications for release at the second stage if the court has decided
that, on the face of the applicant's materials, the application is not "frivolous,
repetitious or without merit."

[58]

In that respect, these authorities
distinguish between the rights of represented and unrepresented applicants, and
between unrepresented applicants and the respondent.  Both represented
litigants (through their counsel) and the respondent's counsel are granted the
right to make oral submissions on the initial application; the unrepresented
applicant is not.

[59]

In
Woodhouse,
Mackenzie
J.A. observed that the very issue which is before this Court on these
applications was not raised.  While Madam Justice Ryan commented on the practice,
she did not address the specific question of whether the respondent had a right
to be present and address the court with respect to applications for
habeas
corpus
made by unrepresented applicants in the absence of the applicants. 
Nor was this question specifically addressed in the other decisions to which I
have referred.

[60]

I return then, to the question of
whether the practice followed by the courts in British Columbia with respect to
applications for
habeas corpus
made by unrepresented applicants (described
at paras. 26 to 29 of these reasons) offends the principles of natural justice. 
In particular, does it offend the
audi alteram partem
principle, and have
the effect of depriving unrepresented applicants of procedural protections
available to both represented applicants and to the respondent?


(e)
The
Respondent's Revised Practice

[61]

In answering these questions, I reiterate
that the respondent has recently amended its own practice for dealing with applications
for
habeas corpus
made by unrepresented applicants.  Under its present
practice, where an unrepresented applicant properly files and serves the respondent
with his/her application for
habeas corpus
, the respondent notifies the
applicant by letter in advance of the hearing date of:

a)   the
position of the Respondent with respect to whether there is merit in the
application;

b)   the
legal and, if required, factual basis for that conclusion;

c)   the
fact that the Applicant will not be brought to court as a matter of course
unless a judge so orders; and

d)   the
Respondent's position with respect to whether the inmate should be permitted to
attend.

[62]

The Court was advised that the respondent
usually takes the position that the applicant's attendance in court is
unnecessary.  The revised practice assumes that if applicants wish to reply to
the respondent's materials, they will do so in writing.  Whether or not a reply
is filed, the respondent will appear to provide assistance to the court in the
same way as under the respondent's former practice.

[63]

The respondent's revised practice takes
into account the comments made by this Court in
Woodhouse
to the
extent of ensuring that an unrepresented litigant is given the opportunity to
respond to all written materials filed by the respondent.  However, it does not
fully address the underlying principles of natural justice which this Court has
been asked to consider and, in particular, the
audi alteram partem
principle.  I turn, therefore, to that principle and its application in these
circumstances.


(f)
Audi
Alteram Partem

[64]

While the
audi alteram partem
principle is most often discussed in the administrative law context, it is not
limited to that context.  Rather, it has been described as a basic tenet of our
legal system.  In
A.(L.L.) v. B.(A.)
, [1995] 4 S.C.R. 536, for
example, Madam Justice L'Heureux-Dubé, speaking for the court on this point),
stated at para. 27:

The
audi alteram partem
principle, which is a rule of natural justice and
one of the tenets of our legal system, requires that courts provide an
opportunity to be heard to those who will be affected by the decisions.
The rules of natural justice or of procedural
fairness are most often discussed in the context of judicial review of the
decisions of administrative bodies, but they were originally developed in the
criminal law context.  In
Blackstone's Criminal Practice
(Murphy rev.
1993), the authors remark at p. 1529:

Traditionally, the rules of
natural justice have been defined with a little more precision, and are said to
involve two main principles  no man may be a judge in his own cause, and
the
tribunal must hear both sides of the case
. [Emphasis added by L'Heureux-Dubé
J.]

[Emphasis added.]

[65]

The
audi alteram partem
principle
does not necessarily require that both sides be heard in person, but it does
contemplate that both sides will have an equal opportunity to be heard, whether
in person, in writing, or, with the benefit of modern technology, through
teleconference or videoconference.  The emphasis is on an equal opportunity to
be heard, rather than on a particular mode of hearing.

[66]

In my view, there are two
alternative methods for dealing with applications for
habeas corpus
made
by unrepresented litigants in a manner which accords not only with the Code and
Rules, but also with the
audi alteram partem
principle.  Both of these
alternatives assume that the unrepresented applicant has filed an application
for
habeas corpus
and supporting materials, and has served interested
parties in accordance with the Rules.

[67]

The first alternative is to
provide that all applications for
habeas corpus
be dealt with in a
one-stage procedure in which the applicants are brought to court, whether or
not they are represented by counsel.  Submissions would be made by or on behalf
of the applicants, and by the respondent, and the applications would be dealt
with on the merits.  This alternative accords in most respects with the
practice currently followed with respect to represented applicants and
applicants seeking their release from provincial institutions, except that
represented applicants currently appear by their counsel, rather than in
person.  (I have already expressed a concern that the failure to bring
represented applicants to court for the hearing may offend s. 774.1 of the
Code.)

[68]

The advantage of the first
alternative is that a hearing attended by the applicants and the respondent
would permit both parties to address the court, and would enable the court to
obtain the assistance it requires from the respondent with respect to
jurisdictional and procedural matters, and from the applicants with respect to
any relevant information or circumstances which they may have omitted to
provide in their materials.  It would also take cognizance of the fact that
inmates do not always have ready access to materials necessary to make written
submissions, and, even where they do, many may be unable to express themselves
effectively in writing, or in English.  Further, for those inmates who
apparently have ready access to photocopiers, much of the material they produce
is of limited assistance.  While the oral communication skills of some
applicants may also be poor, the court has considerable experience in dealing
with in-person litigants.

[69]

On the other hand, this one-stage
procedure for unrepresented litigants would likely involve additional costs to
the state in transporting these applicants to and from court.  It is also
reasonable to assume that the hearing would take longer if the applicants made
oral submissions, although this is not necessarily true. (It may take more
time, for example, for the court to review copious materials than for the court
to simply ask the applicants to state their case.)

[70]

Counsel for the respondent also
referred to the potential for some inmates abusing the process by making
frivolous applications with a view to getting a day away from the institution
in which they are incarcerated.  One of the main reasons for dealing with the
initial application in the absence of the inmate was to screen such
applications without incurring unnecessary public expense.  One answer to this
concern may be to have the applicants appear by videoconference where those
facilities are available. (There is, however, a nice question of whether
appearing before the court by videoconference would comply with s. 774.1 of the
Code.)

[71]

The second alternative is to
provide for a two-stage procedure whereby both the applicant and the respondent
file materials and make written submissions which are considered by a Supreme
Court judge in the absence of the parties at the first stage.  The judge may
dismiss the application based solely on those materials if the application is
entirely without merit.  The judge, if satisfied that the merits threshold has
been met, may make an order requiring the attendance of the applicant at a
second-stage hearing.  Both the respondent and the unrepresented applicant
would be entitled to be present and make submissions at that hearing.

[72]

This alternative is similar to the
present two-stage practice with respect to unrepresented applicants, except
that the respondent would not be entitled to appear at the first stage, but
would be limited to written submissions.

[73]

The principal drawback to this
alternative is that the initial question of whether there is merit to the
application may not be readily ascertainable without the assistance of the respondent. 
Since some applicants file substantial materials, this could result in an
increase in judicial time and attendant delay in dealing with the applications at
the first stage.  In that regard, it is important to note that, since
applicants are challenging the lawfulness of their detention, it is essential
that their applications be dealt with as expeditiously as possible.

[74]

While I consider the first
alternative to be the preferred alternative in most cases, I do not find it
necessary to state categorically that it must govern the practice in every case. 
Rather, I prefer to leave both alternatives available to enable the Supreme Court
to determine which procedure is appropriate in any particular case.  Although
Rule 4 contemplates a one-stage procedure for applications for
habeas corpus
(see para. 19,
supra
), Rules 1(4) and (9) were clearly intended to
permit the court to adapt its procedures as necessary taking into account
several factors including "the elimination of unjustifiable expense and
delay" and, more importantly, "the interests of justice".  In
these circumstances, the interests of justice include the application of the
audi
alteram partem
principle.

[75]

While flexibility in the
application of these rules may still result in differential treatment as
between represented and unrepresented applicants, and between applicants from
federal and provincial institutions, differential treatment does not
necessarily equate with unfair treatment.  The goal of the
audi alteram
partem principle
is to ensure that both sides are given the opportunity to
be heard.  That goal is met by each of the alternatives to which I have
referred.

[76]

In my view, the revised practice
currently followed by the respondent (described at para. 61,
supra
) does
not accord with the
audi alteram partem
principle since it permits the respondent
to make submissions to the court at the first stage in the absence of the
applicant.  Nor is the issue resolved by adopting a one-stage procedure whereby
all submissions are made in writing without the appearance of the parties. 
This would result in a final resolution of the application on the merits in the
absence of the applicant and, in my view, would offend s. s. 774.1 of the Code
(at least in those cases where there was sufficient merit in the application to
proceed to the notional second stage of the proceeding).  As earlier noted, s.
774.1 requires that the applicant "appear personally in court" at the
second stage.

CONCLUSION

[77]

In the result, I am satisfied that
the practice currently followed in British Columbia on applications for
habeas
corpus
by unrepresented applicants in federal institutions, including the
practice followed with respect to the five applications made by Mr. Gustavson
which are the subject of this appeal, offends the
audi alteram partem
principle.

[78]

Since this appeal was restricted
to considering that preliminary question, I conclude that the appropriate
disposition of these appeals is to allow the appeals to the extent of remitting
the applications to the Supreme Court to be dealt with in accordance with these
reasons.

The Honourable
Madam Justice Prowse

I Agree:

The Honourable
Mr. Justice Esson

I Agree:

The Honourable
Madam
Justice Rowles


