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Habeas Corpus - Civil versus Criminal

. Canada (Attorney General) v. Samuel

In Canada (Attorney General) v. Samuel (Ont CA, 2019) the Court of Appeal considers for cost purposes whether habeas corpus proceedings are civil or criminal:
[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 CanLII 17 (SCC), [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 CanLII 275 (ON CA), [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 (CanLII). A habeas corpus application arising from prison disciplinary proceedings is considered a civil matter, “because it deals with an inmate’s 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 (CanLII), at para. 1

[17] Similarly, in Karafa v. The Attorney General of Canada, 2016 ONSC 2604 (CanLII), 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 (CanLII), 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 (CanLII), 310 Sask. R. 9; Hertrich v. Her Majesty the Queen, 2010 ONSC 6334 (CanLII), 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 (CanLII), 403 C.R.R. (2d) 194, where the court struck out a confused application alleging that the applicant’s 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 respondent’s 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 when…it 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 “where…the 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 offender’s 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 appellant’s day parole was “the protection of society” and the Parole Board revoked the appellant’s 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.


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Last modified: 08-01-23
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