



COURT OF APPEAL FOR ONTARIO

CITATION: Forster v. Canada (Correctional Service), 2019 ONCA
    91

DATE: 20190208

DOCKET: C63786

Simmons, Lauwers and Trotter JJ.A.

BETWEEN

Steven Forster

Appellant

and

The Institutional Head of Millhaven Penitentiary
    as Directed by the Commissioner of Corrections

Respondent

Paul Slansky, for the appellant

Max Binnie and Stephen Kurelek, for the respondent

Heard: January 17, 2019

On appeal from the order entered on May 11, 2017 by
    Justice Gary W. Tranmer of the Superior Court of Justice, sitting without a
    jury, with reasons reported at 2017 ONSC 2865.

Trotter J.A.:

A.

introduction

[1]

Steven Forster has been imprisoned as a dangerous offender for more than
    30 years. He launched a
habeas corpus
application to test the validity
    of his detention. However, on a motion by the respondent, the application was
    summarily dismissed because it was plain and obvious that it could not
    succeed. Mr. Forster appeals from this preliminary decision.

[2]

I would allow the appeal. The appellants
habeas corpus
application should not have been dismissed without a full hearing on the merits.

B.

factual background

(1)

The Dangerous Offender Proceedings

[3]

On February 23, 1988, the appellant pled guilty to numerous sexual
    offences. The trial judge, Dilks C.C.J., ordered that the appellant undergo a
    psychiatric assessment. On December 23, 1988, he declared the appellant to be a
    dangerous offender and imposed an indeterminate sentence. Dilks C.C.J. also
    made a recommendation that the appellant be admitted immediately to such
    courses of treatment for his disorders as can be made available to him.

[4]

The appellant appealed to this court. On June 23, 1995, his appeal was
    dismissed: see
R. v. Forster
(1995), 82 O.A.C. 78. At that time, it was
    brought to the attention of the panel that the appellant had thus far received
    no treatment. The court said, at para. 11: The situation is intolerable. This
    court supports the recommendation of the trial judge and urges the correctional
    authorities to provide the appropriate treatment on an urgent basis.

(2)

The First
Habeas Corpus
Application

[5]

On November 15, 2001, the appellant commenced his first
habeas corpus
application, seeking relief under many different heads, and invoking numerous
    sections of the
Charter
(i.e., ss. 7, 9, 10, 11, 12, 15(1), 24(1), and
    26). The appellant was self-represented. It would appear that the nub of his
    complaint concerned a transfer between institutions. After nine appearances,
    the application was dismissed by MacLeod J. (now MacLeod-Beliveau J.). At the
    terminal appearance, counsel appeared and informed the court that the appellant
    may have a basis to challenge his indeterminate sentence. In dismissing the
    application, MacLeod J. wrote: The application is dismissed, without prejudice
    to the applicant commencing a new application, citing proper grounds for
habeas
    corpus
for the court to consider.

[6]

The appellant appealed to this court. On June 21, 2005, his appeal was
    dismissed without prejudice to the appellants right to commence proceedings
    in the Superior Court or in the Federal Court, as may be appropriate, with
    regard to his various grievances.

(3)

The Current
Habeas Corpus
Proceedings

[7]

The appellant commenced the current proceedings on October 5, 2014. His
    Notice of Application requested a writ of
habeas corpus
with
certiorari
in aid, and relief under s. 24(1) of the
Charter
. The appellant
    challenges the validity of the warrant of committal, asserting a lack of
    jurisdiction to make the dangerous offender finding. He alleges that his psychiatric
    remand was unlawful; that the Crown failed to give the required notice of the
    dangerous offender application; that he was improperly excluded from parts of the
    hearing; and that the trial judge failed to recognize that he had a discretion
    to decline to make the dangerous offender designation.

[8]

On May 28, 2015, the respondent filed a motion to have the application
    dismissed. The respondent purported to rely upon r. 21.01(3)(a) of the
Rules
    of Civil Procedure
, R.R.O. 1990, Reg. 194 (the civil rules), which permits
    a defendant to move before a judge to have an action dismissed or stayed
    because the court has no jurisdiction over the subject matter of the action.

[9]

In written reasons, the application judge dismissed the
habeas
    corpus
application. The application judge accepted that he had the authority
    to dismiss these proceedings on a motion to strike (para. 10), citing the following
    authorities relied upon by the respondent:
Debrocke v. Canada
(8
    October 2015, CR-15-231-MO (ONSC));
Firbank v. Canada (Attorney General)
,
2016 ONSC 6592; and
Nome v.
    Attorney General of Canada
, Kingston Court File CR-15-583-MO. Although
    each of these cases resulted in the summary dismissal of
habeas corpus
proceedings, the jurisdictional basis for doing so was unclear.

[10]

The
    application judge considered the viability of the appellants claim for relief
    through the lens of the Supreme Court of Canadas decisions in
R. v. Lyons
,
    [1987] 2 S.C.R. 309,

R. v. Gamble
, [1988] 2 S.C.R. 595, and
R.
    v. Sarson
, [1996] 2 S.C.R. 223, as well as this courts judgment in
Gallichon
    v. Canada (Commissioner of Corrections)
(1995), 101 C.C.C. (3d) 414 (Ont.
    C.A.). Ultimately, he determined, at para. 70, that the appellants application
    was an attempt to circumvent the appeal rights that were available to him, and
    which he has exercised. The application judge concluded that it was plain and
    obvious that the application cannot succeed. It has no possibility of success. Therefore,
    I exercise this courts discretion to dismiss it at this stage.

C.

analysis

[11]

The
    importance of
habeas corpus
can hardly be understated. The right to
    test the validity of ones detention by
habeas corpus
is guaranteed by
    s. 10(c) of the

Charter
. The scope of the protection afforded
    by this right is complex and has required guidance from the Supreme Court of
    Canada on many occasions. In
May v. Ferndale Institution
, 2005 SCC 82,
    [2005] 3 S.C.R. 809, the Court held that there is a limited power in the
    Superior Courts to decline to exercise
habeas corpus
jurisdiction.
    LeBel and Fish JJ. wrote, at para. 44:

Habeas

corpus
should not be declined merely because another alternative remedy exists and
    would appear as or more convenient in the eyes of the court.
Only in limited
    circumstances will it be appropriate for a provincial superior court to decline
    to exercise its jurisdiction.
For instance, in criminal law, where a
    statute confers jurisdiction on a court of appeal to correct a lower court and
    release the applicant if need be, habeas corpus will not be
    availableJurisdiction should also be declined where there is in place a
    complete, comprehensive and expert procedure for review of an administrative
    decision. [Emphasis added.]

In para. 68 of his reasons, the application judge
    relied on
May

as a basis for declining to hear this case.

[12]

Declining
    to exercise
habeas

corpus
jurisdiction is different from striking out an application on a summary basis.
    In
Mission Institution v. Khela
, 2014 SCC 24, [2014] 1 S.C.R. 502, at
    para. 78, the Court held that [u]nlike the Federal Court in the context of an
    application for judicial review, a provincial superior court hearing a
habeas
    corpus
application has no inherent discretion to refuse to review the case.
    Stated differently, if the prisoner does raise an arguable issue there is no
    room for discretion: the matter should proceed to hearing so that a full and
    proper determination can be made. The non-discretionary nature of
habeas
    corpus
is an important difference between it and other prerogative writs:
    Judith Farbey, Robert J. Sharpe and Simon Atrill,
The Law of Habeas Corpus
,
    3rd ed. (New York: Oxford University Press, 2011), at p. 53.

[13]

As
    noted above, the respondent relied on the civil rules as the foundation for its
    pre-emptive motion to strike this
habeas corpus

application.
    However, this reliance was misplaced in a number of respects. First, the
    respondent relied on r. 21.01(3)(a)  lack of jurisdiction over the subject
    matter. However, it would appear that the application judge did not apply this
    sub-rule. Instead, he found that it was plain and obvious that the
    appellants claim could not succeed. This language  plain and obvious  is
    more appropriate to r. 21.01(1)(b), which governs a motion to strike out a
    pleading on the ground that it discloses no reasonable cause of action or
    defence: see
Paton Estate v. Ontario Lottery and Gaming Commission
,
    2016 ONCA 458, 131 O.R. (3d) 273, at para. 12; and
R. v. Imperial Tobacco
    Canada Ltd
.
, 2011 SCC 42, [2011] 3 S.C.R. 45, at paras. 17-22.

[14]

More
    profoundly, neither civil rule was applicable in the circumstances of this case.
    This
habeas corpus
application was criminal in nature; it arises
    directly from the imposition of a penal sanction under the
Criminal Code
:
    see
Vukelich v. Mission Institution
, 2005 BCCA 75, 252 D.L.R. (4th)
    634, at para. 32. Accordingly, this application was governed by the
Criminal
    Proceedings Rules for the Superior Court of Justice (Ontario)
, SI/2012-7
    (the criminal rules). Rule 43 provides the foundation for prerogative relief
    applications, including
habeas corpus
.

[15]

On
    appeal, the respondents position has shifted. It now relies on a number of
    criminal rules (rr. 1.04(1), (2), 2.01, and 6.11). Moreover, the respondent
    attempts to fortify its position by invoking
R. v. Jordan
, 2016 SCC
    27, [2016] 1 S.C.R. 631, stressing the need to prevent the criminal courts from
    becoming clogged by unmeritorious cases such as the appellants.

[16]

The
    criminal rule that is most applicable to these proceedings is r. 6.11(2), which
    provides:

Upon application by the respondent that a notice of
    application
does not show a substantial ground for the order sought
, a
    judge of the court
may
,
if he or she considers that the matter is
    frivolous or vexatious and can be determined without a full hearing
,
    dismiss the application summarily and cause the applicant to be advised
    accordingly.
[1]
[Emphasis added.]

[17]

This
    rule sets the bar quite high. The application must fail to show a substantial
    ground for the order sought; it must be frivolous and vexatious;
and
it must be capable of being determined without a full hearing. Even if these
    criteria are met, the power to dismiss remains discretionary. The test for
    dismissal under r. 6.11(2) differs substantially from, and is more onerous
    than, the tests under r. 21.01(1)(b) and r. 21.01(3)(a) of the civil rules.
    Moreover, unlike the r. 21.01 tests, the test under s. 6.11(2) contemplates
    summary dismissal without notice to the applicant  in other words, an
    application so devoid of merit it can be disposed of
ex parte
.

[18]

In
    my view, it cannot be said that the appellants claim does not show a
    substantial ground or that it is frivolous or vexatious, for the following
    three reasons. First, when his previous
habeas corpus
application was
    terminated, it was without prejudice to commencing a new application. The
    appellant did just that by launching his new application. The new application
    is not, therefore, vexatious.

[19]

Second,
    the appellant raises grounds that are arguably unique, operating outside of the
Lyons/Gamble/Sarson/Gallichon
framework. The appellants
habeas
    corpus
claims do not challenge the legality of his continued detention on
    the basis of legislative shifts; instead, he argues that the initial warrant of
    committal was invalid at the time it was issued.

[20]

Third,
    whether the appellant could have raised these complaints at his 1995 appeal
    from sentence is not a foregone conclusion; it is a live issue, the resolution
    of which may well turn on the scope of this courts dispositional powers under s.
    759 of the
Criminal Code
that were in force at the time of the 1995
    appeal.

[21]

I
    return to the authorities (in para. 9, above) that were urged on the
    application judge by the respondent in support of its motion to strike. They have
    no application to this case. Those decisions involved prisoners
seeking
habeas corpus

relief
    in response to lateral transfers between maximum security institutions. In each
    case, it was determined that there was no cognizable deprivation of liberty for
habeas corpus

purposes. This is very different from the
    situation faced by the appellant who, after 30 years, seeks to challenge the
    legality of his initial and continued detention as a dangerous offender.

[22]

I
    acknowledge that the application judge provided detailed reasons for his
    decision. He grappled with the merits of the application. However, his judgment
    was rendered in response to a motion for summary dismissal, predicated on
    inapplicable civil rules. Given the unique nature of the appellants
habeas
    corpus
application, it was neither expedient nor in the interests of justice
    to short circuit his application through a procedure not contemplated by the
    criminal rules.

[23]

The
    appellant argues that, if the application judge erred in striking his application,
    this court should consider the
habeas corpus
claim on the merits and
    grant him the relief that he seeks. The respondent resists this approach. It
    claims that the case cannot be decided on the merits because the record is
    incomplete. The respondent wishes to adduce evidence in support of its
    position.

[24]

Even
    though the record is incomplete as a result of the respondents misplaced
    motion to strike, I would not be prepared to adjudicate on the merits of the
    appellants claim on the record that is presently before this court, and
    without the benefit of any further findings that a judge may make after a full
    hearing on the merits.

D.

disposition

[25]

I would allow the appeal, set aside the decision of the application
    judge, and remit the case to the Superior Court of Justice for a full hearing
    on the merits.

Released: PL FEB 8
    2019

Gary T. Trotter
    J.A.

I agree. Janet
    Simmons J.A.

I agree. P. Lauwers
    J.A.





[1]

See
Severin v. Bath Institution
, 2018 ONSC 6096, in
    which Mew J. (the same judge who decided
Firbank
) considered an
    application to dismiss a
habeas corpus
proceeding under r. 6.11(2). The
    application was brought
ex parte
. Mew J. refused to dismiss the
    application summarily, without the attendance in court of Mr. Severin.


