SUPREME COURT OF NOVA SCOTIA
Citation: Eric Gallant v. The Attorney General of Canada and Warden of
Springhill Institution, 2016 NSSC 135
Date: 2016-05-24
Docket: CRAM No. 449670
Registry: Amherst
Between:
Eric Gallant
Applicant
v.
The Attorney General of Canada and
Warden of Springhill Institution
Respondents
Judge:
The Honourable Justice Joshua Arnold
Heard:
April 19, 2016, in Amherst, Nova Scotia
Written
Submissions:
Filed by the Respondent April 29, 2016
Filed by the Applicant May 10, 2016
Counsel:
Eric Gallant, Self-represented Applicant
Susanna Ashley, for the Respondents
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By the Court:
[1] This decision addresses the issue of mootness in a habeas corpus application
heard by a provincial superior court.
Overview
[2] On October 17, 2007, following guilty pleas tendered mid-way through a
trial, Eric Gallant was sentenced to a total of ten years in prison, less 24.2 months
of pre-trial custody, for aggravated assault, kidnapping, robbery and extortion.
[3] In addition to the ten-year prison sentence, Mr. Gallant was found to be a
long-term offender and was ordered to be supervised in the community following
his release from prison for a period of eight years (R. v. Gallant, 2007 NBQB 342).
[4] Mr. Gallant attempted to appeal his guilty pleas, but his application for an
extension of time within which to appeal was rejected (R. v. Gallant, 2008
CarswellNB 422 (NBCA)). Mr. Gallant did not appeal his sentence.
[5] Mr. Gallant was eventually released on parole. His statutory release was
revoked, he was taken back into custody, and he made an application for habeas
corpus on February 24, 2014. His application for habeas corpus in relation to the
parole matter was dismissed on April 3, 2014, by Van Den Eyden, J. (as she was
then) as she declined jurisdiction (Gallant v. Springhill Institution, 2014 NSSC
122).
[6]
Mr. Gallant was released on long-term supervision on October 10, 2015.
[7] On March 22, 2016, his long-term supervision was suspended by his parole
officer, and Mr. Gallant was re-incarcerated.
[8] On March 31, 2016, Mr. Gallant filed an application for habeas corpus
challenging his committal to custody.
[9] On April 19, 2016, the Crown and Mr. Gallant argued the preliminary
jurisdictional question of whether a suspension of long-term supervision can be
challenged by way of habeas corpus or whether the court should decline to
exercise jurisdiction to hear such an application.
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[10] Following submissions I reserved my decision.
[11] Two days later, on April 21, 2016, the Crown advised the court that Mr.
Gallant had been released into the community after the suspension of his long-term
supervision was cancelled.
[12] On April 25, 2016, a recorded telephone conference was held, the
participants being myself, Mr. Gallant and Susanna Ashley on behalf of the Crown.
Since Mr. Gallant was no longer in custody, the issue of mootness was discussed.
Mr. Gallant urged the court to render a decision in spite of his release. The Crown
objected to my rendering a decision. Written submissions on the issue of mootness
were provided by the Crown on April 29, 2016, and Mr. Gallant on May 10, 2016.
[13] In the meantime on April 26, 2016, Mr. Gallant was again committed to
custody following another suspension of his long-term supervision.
[14] On April 27, 2016, Mr. Gallant filed a new application for habeas corpus.
[15] The Crown again objects to this court taking jurisdiction on the April habeas
corpus application for the same reasons as they argued during the March
application. Arguments on the issue of jurisdiction in relation to the April habeas
corpus application began on May 10, 2016, were scheduled to continue on May 25,
2016, and have now been adjourned to June 20, 2016.
Mootness
[16] The issue of mootness was considered in Borowski v. Canada (AG), [1989]
1 SCR 342, where Sopinka J. stated for the unanimous court at p. 353:
Mootness
The doctrine of mootness is an aspect of a general policy or practice that a court
may decline to decide a case which raises merely a hypothetical or abstract
question. The general principle applies when the decision of the court will not
have the effect of resolving some controversy which affects or may affect the
rights of the parties. If the decision of the court will have no practical effect on
such rights, the court will decline to decide the case. This essential ingredient
must be present not only when the action or proceeding is commenced but at the
time when the court is called upon to reach a decision. Accordingly if,
subsequent to the initiation of the action or proceeding, events occur which affect
the relationship of the parties so that no present live controversy exists which
affects the rights of the parties, the case is said to be moot. The general policy or
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practice is enforced in moot cases unless the court exercises its discretion to
depart from its policy or practice. The relevant factors relating to the exercise of
the court's discretion are discussed hereinafter.
The approach in recent cases involves a two-step analysis. First it is necessary
to determine whether the required tangible and concrete dispute has disappeared
and the issues have become academic. Second, if the response to the first
question is affirmative, it is necessary to decide if the court should exercise its
discretion to hear the case. The cases do not always make it clear whether the
term "moot" applies to cases that do not present a concrete controversy or whether
the term applies only to such of those cases as the court declines to hear. In the
interest of clarity, I consider that a case is moot if it fails to meet the "live
controversy" test. A court may nonetheless elect to address a moot issue if the
circumstances warrant.
[17] Justice Sopinka went on to discuss the courts’ discretion to render a
decision if a case fails to meet the “live controversy” test at pp. 358-359:
The first rationale for the policy and practice referred to above is that a court's
competence to resolve legal disputes is rooted in the adversary system. The
requirement of an adversarial context is a fundamental tenet of our legal system
and helps guarantee that issues are well and fully argued by parties who have a
stake in the outcome. It is apparent that this requirement may be satisfied if,
despite the cessation of a live controversy, the necessary adversarial relationships
will nevertheless prevail. For example, although the litigant bringing the
proceeding may no longer have a direct interest in the outcome, there may be
collateral consequences of the outcome that will provide the necessary adversarial
context. This was one of the factors which played a role in the exercise of this
Court's discretion in Vic Restaurant Inc. v. City of Montreal, supra. The
restaurant, for which a renewal of permits to sell liquor and operate a restaurant
was sought, had been sold and therefore no mandamus for a licence could be
given. Nevertheless, there were prosecutions outstanding against the appellant for
violation of the municipal by-law which was the subject of the legal challenge.
Determination of the validity of this by-law was a collateral consequence which
provided the appellant with a necessary interest which otherwise would have been
lacking.
[18] The second rationale on which the mootness doctrine is based, concern for
judicial economy, was described by Sopinka J. at pp. 360-361:
The second broad rationale on which the mootness doctrine is based is the
concern for judicial economy. … It is an unfortunate reality that there is a need to
ration scarce judicial resources among competing claimants. The fact that in this
Court the number of live controversies in respect of which leave is granted is a
small percentage of those that are refused is sufficient to highlight this
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observation. The concern for judicial economy as a factor in the decision not to
hear moot cases will be answered if the special circumstances of the case make it
worthwhile to apply scarce judicial resources to resolve it.
The concern for conserving judicial resources is partially answered in cases that
have become moot if the court's decision will have some practical effect on the
rights of the parties notwithstanding that it will not have the effect of determining
the controversy which gave rise to the action. …
Similarly an expenditure of judicial resources is considered warranted in cases
which although moot are of a recurring nature but brief duration. In order to
ensure that an important question which might independently evade review be
heard by the court, the mootness doctrine is not applied strictly. This was the
situation in International Brotherhood of Electrical Workers, Local Union 2085 v.
Winnipeg Builders' Exchange, supra. The issue was the validity of an
interlocutory injunction prohibiting certain strike action. By the time the case
reached this Court the strike had been settled. This is the usual result of the
operation of a temporary injunction in labour cases. If the point was ever to be
tested, it almost had to be in a case that was moot. Accordingly, this Court
exercised its discretion to hear the case. … The mere fact, however, that a case
raising the same point is likely to recur even frequently should not by itself be a
reason for hearing an appeal which is moot. It is preferable to wait and determine
the point in a genuine adversarial context unless the circumstances suggest that
the dispute will have always disappeared before it is ultimately resolved.
There also exists a rather ill-defined basis for justifying the deployment of
judicial resources in cases which raise an issue of public importance of which a
resolution is in the public interest. The economics of judicial involvement are
weighed against the social cost of continued uncertainty in the law. …
[19] The third underlying rationale for the mootness doctrine, the need for the
court to demonstrate a measure of awareness of its proper lawmaking function, was
described by Sopinka J. at pp. 362-363:
The third underlying rationale of the mootness doctrine is the need for the Court
to demonstrate a measure of awareness of its proper law-making function. The
Court must be sensitive to its role as the adjudicative branch in our political
framework. Pronouncing judgments in the absence of a dispute affecting the
rights of the parties may be viewed as intruding into the role of the legislative
branch. This need to maintain some flexibility in this regard has been more
clearly identified in the United States where mootness is one aspect of a larger
concept of justiciability. …
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In my opinion, it is also one of the three basic purposes of the mootness doctrine
in Canada and a most important factor in this case. I generally agree with the
following statement in P. Macklem and E. Gertner: "Re Skapinker and Mootness
Doctrine" (1984), 6 Sup. Ct. L. Rev. 369, at p. 373:
The latter function of the mootness doctrine -- political flexibility -- can be
understood as the added degree of flexibility, in an allegedly moot dispute, in the
law-making function of the Court. The mootness doctrine permits the Court not
to hear a case on the ground that there no longer exists a dispute between the
parties, notwithstanding the fact that it is of the opinion that it is a matter of public
importance. Though related to the factor of judicial economy, insofar as it
implies a determination of whether deciding the case will lead to unnecessary
precedent, political flexibility enables the Court to be sensitive to its role within
the Canadian constitutional framework, and at the same time reflects the degree to
which the Court can control the development of the law.
[20] Justice Sopinka went on to say, at p. 363:
I prefer, however, not to use the term "political flexibility" in order to avoid
confusion with the political questions doctrine. In considering the exercise of its
discretion to hear a moot case, the Court should be sensitive to the extent that it
may be departing from its traditional role.
In exercising its discretion in an appeal which is moot, the Court should
consider the extent to which each of the three basic rationalia for enforcement of
the mootness doctrine is present. This is not to suggest that it is a mechanical
process. The principles identified above may not all support the same
conclusion. The presence of one or two of the factors may be overborne by the
absence of the third, and vice versa.
Habeas Corpus Applications
[21] In order to determine whether there is a live controversy before the court, an
understanding of a habeas corpus application is required. The Supreme Court of
Canada considered the history and nature of habeas corpus in Mission Institution v.
Khela, 2014 SCC 24, where LeBel J. said, for the court:
[27]
W. Blackstone, in his Commentaries on the Laws of
England (1768), vol. III, c. 8, at p. 131, asserted that habeas corpus is “the great
and efficacious writ in all manner of illegal confinement”… In an earlier
incarnation, habeas corpus was a means to ensure that the defendant in an action
was brought physically before the Court… Over time, however, the writ was
transformed into a vehicle for reviewing the justification for a person’s
imprisonment … Indeed, by the late 17th century, Vaughan C.J. of the Court of
Common Pleas stated that “[t]he Writ of habeas corpus is now the most usual
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remedy by which a man is restored again to his liberty, if he have been against
law deprived of it”…
[28]
The first legislation respecting habeas corpus was enacted in
1641. The remedy was subsequently codified a second time in the Habeas Corpus
Act of 1679 … the many purposes of which included addressing problematic
delays in obtaining the writ, ensuring that prisoners were provided with copies of
their warrants so that they would know the grounds for their detention, and
ensuring that prisoners “would not be taken to places beyond the reach of the
writ…
[29]
Through both the Charter and the common law, Canada has
attempted to maintain and uphold many of the goals of the Habeas Corpus Act,
which embodied the evolving purposes and principles of the writ. Habeas corpus
has become an essential remedy in Canadian law. In May, this Court emphasized
the importance of habeas corpus in the protection of two of our fundamental
rights:
(1) the right to liberty of the person and the right not to be deprived thereof except
in accordance with the principles of fundamental justice (s. 7of the Charter); and
(2) the right not to be arbitrarily detained or imprisoned (s. 9 of the Charter).
[para. 22]
These rights belong to everyone in Canada, including those serving prison
sentences … Habeas corpus is in fact the strongest tool a prisoner has to ensure
that the deprivation of his or her liberty is not unlawful. In articulating the scope
of the writ both in the Miller trilogy and in May, the Court has ensured that the
rule of law continues to run within penitentiary walls … and that any deprivation
of a prisoner’s liberty is justified.
[30]
To be successful, an application for habeas corpus must
satisfy the following criteria. First, the applicant must establish that he or she has
been deprived of liberty. Once a deprivation of liberty is proven, the applicant
must raise a legitimate ground upon which to question its legality. If the applicant
has raised such a ground, the onus shifts to the respondent authorities to show that
the deprivation of liberty was lawful…
[22] In D.G. v. Bowden Institution (Warden), 2016 ABCA 52, Bielby J.A.
provided an excellent overview of habeas corpus:
105 In 1758 Justice Wilmot characterized the writ of habeas corpus as the
"birthright of the people". It champions the liberty interest of those who live in a
state governed by the rule of law. Almost 200 years later Chief Justice Rinfret
declared that habeas corpus is the "Charter of British Liberty, and ... the greatest
of all Civil Rights".
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106 More recently, Justices LeBel and Fish declared that the
"[Canadian] Charter [of Rights and Freedoms] guarantees the right to habeas
corpus". Professor Hogg has commented on the significance of this constitutional
guarantee: "[The] inclusion [of s. 10(c)] in the Charter ... mean[s] that ... [habeas
corpus] could not be denied or suspended by legislation unless s. 1 (the limitation
clause) ... [was] held applicable, or unless s. 33 (the override clause) ... [was]
invoked". The Canadian Bill of Rights also recognized the primacy of habeas
corpus.
107 Given its constitutional status, both legislators and the courts must ensure
that, in the absence of compelling reasons defined by the values which shape s. 1
of theCharter, the writ's role as the champion of liberty is not abridged.
108 In order to appreciate why habeas corpus is of transcendent importance and
to establish the benchmark against which the remedial structure created by
the Corrections and Conditional Release Act and the Federal Courts Act can be
measured, it is necessary to have a clear understanding of the essential features of
the writ of habeas corpus. One must remember that the alternative structure must
undoubtedly provide the habeas corpus applicant with an equally efficacious
remedy as that presented by habeas corpus before a provincial superior court
should consider declining to hear the application.
109
First, what is a writ of habeas corpus?
110 It is a common law writ directed to the person detaining the applicant
ordering the detainer to bring the applicant before the court at a specified time so
that the court may determine the legality of the applicant's detention. Justice
Wilmot, in answering questions posed by the House of Lords about habeas corpus
in 1758, explained the leading features of the writ:
[A writ of habeas corpus] is a remedial mandatory writ by which the
King's Supreme Court of Justice, and the judges of that Court, at the
instance of a subject aggrieved, commands the production of the subject,
and inquires after the cause of his imprisonment; and it is a writ of such a
sovereign and transcendent authority, that no privilege of person or place
can stand against it. ... It is accommodated to all persons and places. ...
And, as all these remedial mandatory writs were ... the suits of the King
than of the subject; The King's Court of Justice should not suffer them to
issue upon a mere suggestion; put upon some proof of a wrong and injury
done to a subject.
111 A writ of habeas corpus is not part of a prosecution alleging criminal
conduct on the part of the applicant. "[I]t is a new suit brought by ... [the
applicant] to enforce a civil right ... as against those who are holding him in
custody, under the criminal process".
112
Second, how does it work?
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113
Professor Harvey gave this explanation in his monograph:
Habeas corpus proceedings historically consisted of two stages. First ...,
an ex parte application was made for an order issuing the writ. If this was
obtained, the writ was issued and served upon the detainor who was
thereby ordered to make a return. On the return, the court considered the
detainor's return in conjunction with the applicant's motion for discharge.
It has become possible, and the practice in some provinces, to telescope
the proceedings on consent, so that the whole matter is completed at one
hearing ...
…
At the hearing on the return of the writ of habeas corpus the applicant
makes a motion for the discharge of the prisoner. The order of argument is
well established, namely that the prisoner or his counsel argues first, the
detainor or his counsel is then heard, and finally the prisoner or his
counsel can reply.
114 Justice LeBel in Warden of Mission Institution v. Khela, explained the
burdens which each of the participants had to discharge to advance their interests:
[A]n applicant must establish that he or she has been deprived of liberty.
Once a deprivation of liberty is proven, the applicant must raise a
legitimate ground upon which to question its legality. If the applicant has
raised such a ground, the onus shifts to the respondent authorities to show
that the deprivation was lawful [i.e.] ...
...
... reasonable in light of all the circumstances.
115 Third, are there some circumstances when at common law habeas corpus is
not available?
116 Habeas corpus is an extraordinary remedy. As such, it should not be issued
if the applicant has access to another equally efficacious remedy.
117 The Supreme Court of Canada has declared that an equally efficacious
remedy exists in two specific circumstances.
118 First, a person convicted of a criminal offence who has a statutory right to
appeal against conviction and sentence has access to an adequate remedy and is
not entitled to a writ of habeas corpus.
119 The second arises, according to Justices LeBel and Fish, if "the legislator
has put in place complete, comprehensive and expert procedure for review of an
administrative decision". But this exception is not an invitation to eviscerate the
writ of habeas corpus. "The exceptions to habeas corpus jurisdiction and the
circumstances under which a superior court may decline jurisdiction should be
well defined and limited".
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120 Fourth, how long does it take to secure the judgment of the provincial
superior court on this extraordinarily important question? This is a very important
criterion for a person incarcerated in a penitentiary. Processes that take a
considerable amount of time to navigate are of questionable value to those who
invoke them. The passage of time may make the offender's complaint moot or
diminish the value of the remedy. "The importance of the interests at stake
militates in favour of a quick resolution of the issues".
121 A writ of habeas corpus gives a person a prompt hearing before a superior
court that has the jurisdiction to review the lawfulness of the applicant's detention.
InSecretary of State for Home Affairs v. O'Brien, the Earl of Birkenhead
emphasized the value of a timely disposition:
[The writ of habeas corpus] is perhaps the most important writ known to
the constitutional law of England, affording as it does a swift and
imperative remedy in all cases of illegal restraint or confinement. It is of
immemorial antiquity, an instance of its use occurring in [1258] the thirtythird year of Edward I. It has through the ages been jealously maintained
by Courts of Law as a check upon the illegal usurpation of the power by
the Executive at the cost of the liege.
122 The essential features of habeas corpus contribute to its expeditious
processing:
The right to an instant determination as to the lawfulness of an existing
imprisonment ... have ... been pointed out by Judges as securing in a
marked and exceptional manner the personal freedom of the subject. It
was not a proceeding in a suit but was a summary application by the
person detained. No other party to the proceeding was necessary before or
represented before the Judge except the person detaining, and that person
only because he had the custody of the applicant and was bound to bring
him before the Judge to explain and justify, if he could, the fact of
imprisonment. ...
...
... The essential and leading theory of the whole procedure is the
immediate determination of the right to the applicant's freedom.
123 The fact that provincial superior courts have a presence throughout the
province reduces the likelihood that an applicant for habeas corpus will be
disadvantaged by the Court's sitting schedules. Accessibility is important.
Application to Eric Gallant
[23] Once Mr. Gallant was released from custody on April 21, 2016, in relation
to the March habeas corpus application, there was no longer a live controversy as
to the lawfulness of his incarceration.
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[24] In Khela, where the lawfulness of the applicant’s incarceration was no
longer at issue by the time the case reached the Supreme Court of Canada, the
court considered the issue of mootness. Justice LeBel said:
[13]
It is important to note that this appeal is now factually moot.
On July 23, 2010, the Warden of Mission Institution made another decision to
reclassify Mr. Khela as requiring maximum security. As a result of that decision,
Mr. Khela was transferred back to Kent Institution, the maximum security facility.
This second transfer was the subject of another habeas corpus application, which
was dismissed by a judge of the British Columbia Supreme Court… Mr. Khela
did not appeal the dismissal of that application. The lawfulness of his current
incarceration is therefore not before this Court.
[14]
Despite being moot, this appeal merits a decision in the
circumstances of this case. The nature of habeas corpus applications involving the
transfer and segregation of inmates is such that the factual circumstances of a
given application can change quickly, before an appellate court can review the
application judge’s decision. This means that such cases will often be moot before
making it to the appellate level, and are therefore “capable of repetition, yet
evasive of review” (Borowski v. Canada (Attorney General), 1989 CanLII 123
(SCC), [1989] 1 S.C.R. 342, at p. 364). As was true in May v. Ferndale
Institution, 2005 SCC 82 (CanLII), [2005] 3 S.C.R. 809, at para. 14, and Cardinal
v. Director of Kent Institution, 1985 CanLII 23 (SCC), [1985] 2 S.C.R. 643, at p.
652, the points in issue here 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.
[25] Habeas corpus matters are heard in the first instance either by the superior
court of each province or by the Federal Court. In this case, I sit as a judge of first
instance. Therefore, any decision I render in relation to this issue is not binding on
other members of this court who may have to consider the same jurisdictional
question in subsequent cases.
[26] I am in the midst of hearing evidence and argument in relation to the same
jurisdictional issue in Mr. Gallant’s April habeas corpus application as was argued
in the instant case. Review of the issue is not being evaded.
[27] I heard arguments in relation to Mr. Gallant’s March habeas corpus
application, but I did not make a decision prior to his release from custody on April
21, 2016. This is not a situation where I made a bottom-line decision on the heels
of argument, with detailed reasons to follow.
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Conclusion
[28] This matter is moot. Expending judicial resources when there is no live issue
to resolve and when Mr. Gallant is arguing the exact same legal issue in another
habeas corpus proceeding is neither necessary, nor advisable.
Arnold, J.