Haug v. Kent Institute (Warden)

2013 BCCA 152 Haug v. Kent Institution (Warden)

COURT OF APPEAL FOR BRITISH COLUMBIA Citation: Haug v. Kent Institution (Warden), 2013 BCCA 152 Date: 20130404 Docket: CA039976 Between: Daryle William Haug Appellant And Warden of Kent Institution Respondent Before: The Honourable Madam Justice Newbury (In Chambers) On appeal from the Supreme Court of British Columbia, January 27, 2012 (Haug v. Kent Institution (Warden) Chilliwack Registry Docket 59678) Appellant appearing on his own behalf In custody, via videoconference: D.W. Haug Counsel for the Respondent: E.L. Burnet Place and Date of Hearing: Vancouver, British Columbia March 26, 2013 Place and Date of Judgment: Vancouver, British Columbia April 4, 2013 Reasons for Judgment of the Honourable Madam Justice Newbury: [1] Mr. Haug has applied for an extension of time in which to appeal the dismissal of his application for habeas corpus (as it related to his designation as a dangerous offender and the concomitant indeterminate sentence). The application for habeas corpus was dismissed by Mr. Justice Grist on January 27, 2012 (see Chilliwack Registry, Docket 59678-1). [2] At the time the application was heard, Mr. Haug was incarcerated at Kent Institution in this province. However, his connection with British Columbia was only temporary. In fact, he had been committed to federal custody upon being convicted by the Saskatchewan Court of Queen's Bench in February 2005 on two

counts of sexual assault. At the time of sentencing, that court ruled that he met the criteria for designation as a dangerous offender, but instead found him to be a long-term offender and imposed a ten-year long term supervision order (for reasons indexed as 2006 SKQB 140). On appeal, the trial judge's order was set aside and Court of Appeal for Saskatchewan determined that Mr. Haug was a dangerous offender and imposed an indeterminate sentence of imprisonment: see 2008 SKCA 23. Importantly, Mr. Haug did not attempt to appeal the Court of Appeal's decision and the time for doing so expired long ago. [3] Mr. Haug has been incarcerated in several correctional institutions and as I have already noted, was at Kent Institution in this province between July 15, 2011 and February 23, 2012. On the latter date, he was transferred to Atlantic Institution in New Brunswick in order to alleviate his segregated status at Kent Institution. He is now at the medium-security Dorchester Institution in New Brunswick. Nevertheless, he applied to this court to appeal Mr. Justice Grist's order. [4] Mr. Haug was given the opportunity to file, and did file, fairly voluminous materials setting forth various arguments as to why he believes his application for habeas corpus is meritorious. In my opinion, none of these arguments has merit. However, it is not necessary to describe and analyze them, given

the fact that Mr. Haug is now incarcerated in New Brunswick and must therefore seek his writ from a superior court in that jurisdiction. This is because if a writ of habeas corpus were granted, it would be directed to the gaoler in the province of British Columbia and would thus have no effect on Mr. Haug's detention in New Brunswick. As was held by the Supreme Court of Canada in R. v. Gamble [1988] 2 S.C.R. 595: The remedy of habeas corpus ad subjiciendum has traditionally run from the courts of the jurisdiction in which the person seeking review of the legality of his or her detention is confined: R. v. Riel (1885), 2 Man. L.R. 302 (Man. Q.B.); Ex parte Stather (1886), 25 N.B.R. 374 (N.B.S.C.); R. v. Holmes, [1932] 3 W.W.R. 76 (Man. K.B.); Laflamme v. Renaud (1945), 84 C.C.C. 153 (Que. S.C.) In Ex parte Stather the New Brunswick Court of Appeal rejected the submission that an accused convicted and sentenced by the courts of Nova Scotia could not have the legality of his detention in Dorchester Penitentiary, New Brunswick, reviewed by way of habeas corpus in the courts of New Brunswick. As Palmer J. noted at p. 378: It would appear to be absurd that a person could be deprived of his personal liberty illegally, merely because he was placed in the Dominion Penitentiary and be without remedy. It is clear he could not apply to the Court of Nova Scotia, for it has no officers here,

and its process would have no force in this Province and could not be executed here. The commentators seem to agree that habeas corpus proceedings can be pursued in the courts of the province of the alleged illegal detention: see G. Letourneau, The Prerogative Writs in Canadian Criminal Law and Procedure (1976), at pp. 310-12; D. A. Cameron Harvey, The Law of Habeas Corpus in Canada (1974), at pp. 66 ff.; R. J. Sharpe, The Law of Habeas Corpus (1976), at p. 191, note 5. Moreover, allowing the courts of the jurisdiction in which the prisoner is confined to entertain an application for the writ makes good practical sense because the writ will be served on those responsible for the confinement of the prisoner so that he or she can be brought before the court: see R. v. Holmes, supra. [At 632-32; emphasis added.] I note that this principle was recently applied by Madam Justice Gropper in the Supreme Court of British Columbia in Toodlican v. Warden Mark Kemball and The Attorney General of Canada (Vancouver Registry, Docket 25934), dated February 17, 2012. [5] There being no jurisdiction in this court to make an order affecting or directed to the Warden of the Institution in which Mr. Haug is now confined, the application for an extension of time must be dismissed. "The Honourable Madam Justice Newbury"