SUPREME COURT OF NOVA SCOTIA
Citation: Bradley v. Canada (Correctional Service), 2011 NSSC 463
Date: 20111206
Docket: Amh. No. 357720
Registry: Amherst
Between:
James Bradley
Applicant
v.
Attorney General of Canada
(Correctional Service Canada)
Respondent
Judge: The Honourable Justice Cindy A. Bourgeois
Heard: December 6, 2011 at Amherst, Nova Scotia
Written Decision: December 13, 2011
Counsel: James Bradley, Applicant on his own behalf
Sandra Doucette, for the Respondent
By the Court:
[1] I am prepared to render an oral decision today. I think it is important that both parties, in particular Mr. Bradley, know how this matter is going to unfold and whether or not his motion is going to be successful. At the end of the decision, I want to discuss returning this matter to court as soon as possible to make sure an early hearing date is set in relation to Mr. Bradley’s habeas corpus motion.
[2] Today we are dealing with a motion brought by James Bradley seeking the appointment of legal counsel. This type of application is commonly referred to as a Rowbotham application, that name being derived from an Ontario Court of Appeal decision which opened the door in appropriate circumstances for the provision of State-funded Counsel.
[3] Mr. Bradley testified today and provided an affidavit in support of his motion. He is an inmate at the Springhill Institution and is presently detained in administrative segregation. He indicates he has been there in excess of 70 days. He has brought a habeas corpus application pursuant to Civil Procedure Rule 7, challenging the legitimacy of that detention. He has been before this court on at least two previous appearances. He has made it abundantly clear that he feels his efforts to put forward his habeas corpus application are being hampered by the non-disclosure of essential documents and other information by Correctional Service Canada. That is his view and his belief.
[4] Today is not about ordering disclosure, but that issue is illustrative of the difficulties Mr. Bradley says he is encountering which would be addressed more productively if he had a lawyer representing his interests. Mr. Bradley is 63 years of age and he has a grade 6 education. He testified that he believes he suffers from dyslexia which makes reading and writing difficult for him. Mr. Bradley was, however, able to clearly and forcefully articulate his position and concerns to this court, notwithstanding his limited, formal education. Mr. Bradley indicates that his attempts to present his case before this court are being impeded by Corrections Canada. He alleges that he does not regularly receive mail, including most notably, legal briefs filed for this and other hearings. He alleges that inmates have access to legal materials through the prison library but he is not being given full access to this resource. He had personal files removed from his possession when he went into segregation which contain information which he asserts would be helpful to his habeas corpus application. He says a lawyer would help him obtain this information, advocate for him in getting this information and is needed due to the concerns that he has been raising.
[5] I am not required, nor will I today, make any factual findings about the accuracy of Mr. Bradley’s allegations as it relates to the conduct of Corrections Canada. What I will indicate, however, is that should such allegations be found to have any legitimacy, the court would be very, very concerned. Mr. Bradley is not without rights. He has residual liberties notwithstanding the fact that he is incarcerated and paying a debt to society for a very serious offence. He should not be unreasonably impeded in gaining access to legal or personal materials which would be of assistance to him in presenting his matter before the Court.
[6] I trust that Ms. Doucette as counsel for Corrections Canada will pass along those concerns to your client and I hope that they will be taken into consideration in the future conduct of this matter.
[7] I return now to the motion which is before me today, and that is whether this court should order that Mr. Bradley be provided with state-funded legal counsel. Mr. Bradley as noted above, states he needs legal counsel given the complexities of the matter and the difficulties he is encountering. Ms. Doucette argues that case authorities make it clear that the present circumstances do not fall within the small category of cases where the appointment of legal counsel is warranted.
[8] I have reviewed the case authorities in relation to this matter. This court has been unable to find any reported decision where an application for appointed counsel has been successful in a habeas corpus or prison disciplinary situation. However, there is authority where such has been declined. I note in particular the recent decision from the Saskatchewan Court of Appeal in R. v. Blanchard, 2011 SKCA 60. There it was determined that state-funded counsel was not available to an inmate bringing a habeas corpus application.
[9] More recently, the Saskatchewan Court of Queen’s Bench addressed a request for state-funded counsel arising in the context of prison disciplinary proceedings in R. v. MacKinnon, 2011 SKQB 363. There an inmate was accused of serious infractions of a disciplinary nature in the prison setting and made an application for state-funded counsel. The comments of Justice Wilkinson are particularly helpful in that decision. The court writes at paragraphs 6 and 7:
6 The Attorney General of Canada submits that the right to state‑funded legal representation has never been extended beyond the context of criminal proceedings, the only exception being for parents facing permanent removal of a child from their care in child protection proceedings as was the case in New Brunswick (Minister of Health & Community Services) v. G. (J.), [1999] 3 S.C.R. 46 (referred to herein as "G.(J)").
7 The Crown submits this is the prevailing legal position, and it has been definitively stated as such by the Saskatchewan Court of Appeal in two cases, the first being Canada v. Kahnapace, 2008 SKCA 15, 307 Sask. R. 258, the second being R. v. Blanchard, 2011 SKCA 60, [2011] S.J. No. 315 (QL). In both cases, and notwithstanding that an inmate's residual liberty was at stake, the Court held that there was no entitlement to state‑funded counsel unless significant public interests were at stake in the matter, apart from the litigant's interest, and the issues were sufficiently significant or complex that a fair hearing required representation by counsel. The only other justification for appointing state‑funded counsel in a civil matter involved an order for advanced costs against the Crown, or the child protection matters outlined in "G.(J)".
[10] Justice Wilkinson addresses this issue in more detail in paragraphs 18 through 20 of the decision. They read:
18 The decisive answer to the applicant's claim for relief rests in para. 22 of the Saskatchewan Court of Appeal's decision in R. v. Kahnapace, supra. There, Justice Smith prefaced her comments with a reference to the decision in New Brunswick (Minister of Health & Community Services) v. G. (J.), the case that conferred a constitutional right to state‑funded counsel in child protection proceedings. Justice Smith said this:
[22] ... I note that since the decision in G.(J.) issued, in November, 1999, the right to state funded counsel to protect constitutional rights pursuant to s. 7 of the Charter, or any other provision, has not been expanded beyond the narrow context of that case. The residual liberty interest of the respondent at issue in the instant case is indistinct from that at issue in many prison discipline contexts. In no such context have the courts ordered state funded counsel. As the chambers judge pointed out, s. 97(2) of the Corrections and Conditional Release Regulations provides for the right to consult and retain counsel in these contexts. This right, however, is quite distinct from the right to be provided with state funded counsel. As the Ontario Court of Appeal pointed out in Rowbotham, supra, the right to retain counsel and the right to have counsel provided at the expense of the state are not the same thing. For this reason, the Court in that case noted that s. 10(b) of the Charter does not in its terms constitutionalize the right of an indigent accused to be provided with funded counsel. See also R. v. Prosper, [1994] 3 S.C.R. 236. By the same token, not every infringement of liberty by the state will raise issues of sufficient significance or complexity that the right to a fair hearing will entail a right to state funded counsel. [Emphasis added]
19 In R. v. Blanchard, supra, the Court of Appeal applied the reasoning in Kahnapace and upheld the decision of a Queen's Bench judge, [2010] S.J. No. 576, who had refused to provide state‑funded counsel in a civil matter involving a federal inmate's application for a writ of habeas corpus with certiorari in aid. At issue was his opposition to a proposed involuntary transfer to another penitentiary. At para. 10, the Court stated:
[10] Mr. Justice Maher found that counsel funded by the state in civil proceedings was not warranted in the circumstances of this case. In so finding, he relied on decisions of this Court including R. v. Kahnapace, 2008 SKCA 15, [2008] 5 W.W.R. 142; and R. v. Ross and R. v. Latham, both cited at 2008 SKCA 19, 310 Sask. R. 9. In Kahnapace, Madam Justice Smith, speaking for the Court, stated that, in civil matters, there are very few circumstances for the appointment of state funded counsel. Specifically, she stated "such an order is available only, if at all, in the limited context of an order for advanced costs against the Crown" and, in any other cases, "only when significant interests not only of the litigant, but also of the public, were at stake." In our opinion, Mr. Justice Maher made no error in refusing state funded counsel for Mr. Blanchard.
20 Unquestionably, there are significant interests at stake from the applicant's perspective. However, while potential penalties may involve solitary confinement, delayed parole eligibility, security reclassification, loss of privileges or other consequences impacting on the applicant's residual liberty interests, it is clear from the case law that the prospect of serious penalty is not, of itself, a determining factor. The applicant has not argued or established that there are significant public interests at stake in the matter. The applicant has not established that the issue is of sufficient significance or complexity to warrant an order for publicly‑funded legal representation. ...
[11] In reviewing this matter before me today, I am convinced that this matter is of great importance to Mr. Bradley. I am also convinced, as in all cases, that as a litigant before this court, he would be assisted and helped by legal counsel. That however is not the test as to whether or not state-funded counsel should be ordered. There is nothing before the Court in this particular matter, that establishes that the issues involved are those where significant public interests are at stake or the issues involved are sufficiently complex to warrant an order for publically-funded legal representation.
[12] I specifically adopt the reasoning of the Courts in R. v. Kahnapace, 2008 SKCA 15, R. v. Blanchard, 2011 SKCA 60; and R. v. MacKinnon, 2011 SKQB 363, and on that basis, I find that the motion must be dismissed.
J.