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A prison justice group in Alberta says the province’s trial court is denying inmates their right to challenge the conditions of their incarceration, including the use of solitary confinement, by being too quick to dismiss their claims as frivolous.

In a letter to the head of the Court of King’s Bench of Alberta, the group, an organization of lawyers and law students known as the Alberta Prison Justice Society, says its members have lost faith in the court’s handling of habeas corpus applications.

Habeas corpus is a centuries-old avenue of recourse that allows people to argue they are being wrongly deprived of their liberty. These petitions take priority in the court system. Through them, prisoners can challenge solitary confinement, parole conditions or relocation to higher-security prisons.

The letter says the Alberta court routinely dismisses habeas corpus applications as abuses of process, denying applicants the chance to have their cases heard and making it more difficult for them to find lawyers willing to take the cases on.

“Whether inadvertently or by design, the current approach to deciding habeas corpus applications has created a chill among Alberta’s prison justice bar,” says the letter, dated Oct. 27 and addressed to Chief Justice Mary Moreau. A copy was obtained by The Globe and Mail.

The letter also accuses judges of making life difficult for lawyers and prisoners who bring habeas corpus cases. “The targeting of counsel through inflammatory language and threats of personal sanctions, refusal to recognize and apply the law of habeas corpus and dismissive attitude to habeas corpus applications has resulted in a dwindling pool of lawyers in Alberta willing to act for prisoners in these proceedings,” it says.

Alberta established an accelerated process for reviewing habeas corpus applications in 2018 that subjected them to what is called Civil Practice Note 7, a special judicial procedure used to deal with problem litigants who waste the court’s time.

The Alberta Prison Justice Society’s letter says this has resulted in worthy petitions being deemed “frivolous” and “vexatious.” The group says these problems have persisted for more than four years.

The letter points to two Court of Appeal of Alberta rulings. In each instance, the higher court objected to the way the Court of King’s Bench had handled the case.

One of the rulings dealt with Wayne Wilcox, who served nearly 500 days in solitary confinement at the Edmonton Remand Centre, where he was given just one hour per day outside of his cell. The inmate said he was placed in segregation when he was arrested, because he was injured and staff at the facility believed he was “unable to defend himself.” Mr. Wilcox said the confinement caused his mental health to deteriorate.

He put forward a habeas corpus application in January, 2019, but a chamber judge deemed it “an abusive, vexatious proceeding” and the case wasn’t heard. The court said he had not been deprived of his liberty, because he was placed directly into solitary confinement, rather than being moved there from the general population, meaning there was no change in his circumstances. Mr. Wilcox was ordered to pay $1,500 in court fees.

The Court of Appeal overruled the decision later in 2019. Mr. Wilcox had already been released from custody by then, but a three-judge panel said the issue needed to be decided regardless, because it was of “significant importance.”

“The chamber judge erred in holding that the pleadings are defective and constituted an independent basis to strike them, and equally that they amounted to an abusive, vexatious filing,” the appeal decision said. The panel also criticized the lower court for threatening to impose costs on Mr. Wilcox’s counsel, which it said could have a chilling effect on lawyers taking such cases.

In the other case, Chancey Heiser was out on parole following a sexual assault conviction, only to have his parole revoked after he faced new charges. He brought a habeas corpus application, arguing against the revocation, but a judge concluded that the case was a matter for the parole board, not the court.

The Court of Appeal dismissed Mr. Heiser’s appeal, but also concluded that the lower court should have heard the case as a habeas corpus application, and that it wasn’t an abuse of process.

In that decision, a three-judge panel decried Alberta’s overall approach to handling habeas corpus applications. The judges said the writ of habeas corpus is a constitutionally protected right, which “cannot be taken away by court decision or practice direction,” and that there is “no basis” for dealing with applications under Civil Practice Note 7 in Alberta.

In its letter, the legal society says dozens of applications have been rejected on similar grounds and notes that many of the litigants were self-represented and marginalized. One of the reasons Mr. Heiser and Mr. Wilcox were able to appeal is that they had representation.

The society did not immediately respond to a request for comment on the letter.

Darryl Ruether, a spokesperson for the Court of King’s Bench of Alberta, said in a statement that the court plans to address these concerns with the society directly. He said the current process allows the court to bring habeas corpus applications to judges as quickly as possible.

“All such applications are heard and decided by a justice of the court weighing the facts, the appropriate process and the applicable law,” he said. “The Court does not comment on the merits of individual decisions, but it goes without saying that the Court of King’s Bench of Alberta is bound by the decisions of the Court of Appeal of Alberta.”

Diane Carter, a spokesperson for Alberta Justice, said in a statement that the government is aware of the letter and is reviewing its contents.

Mark Mancini, a PhD student at the University of British Columbia’s Allard School of Law who specializes in administrative law, said the Court of King’s Bench is “drastically overusing” the ability to label someone as a vexatious litigant. He said this denies prisoners an avenue for challenging the conditions of their incarceration.

He said having controls in place to limit problem litigants from clogging the court system is necessary, but that those controls can’t erode legal protections. “It kind of tears apart the patchwork of our legal heritage,” he said. “It’s closing the courtroom doors on people before they even start.”

Gerard Kennedy, an assistant professor at the University of Manitoba’s law department, said the Court of King’s Bench has been more willing, and more likely, to dismiss actions as abusive than any other trial court in Canada, and not just in the case of habeas corpus.

Dr. Kennedy said the Manitoba equivalent of Alberta’s Civil Practice Note 7 is hardly ever used. To his knowledge, he added, similar procedures have not been used to deal with habeas corpus applications outside Alberta.

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