Court of Appeal of Quebec

Ewert c. Lalande


Mainville, Fournier, Moore

Application to extend the time limit for appeal. Granted. Appeal from a judgment of the Superior Court dismissing an application for habeas corpus with certiorari in aid. Dismissed.

The appellant contests his transfer subsequent to an incident from the minimum security unit of a detention facility to a multi-level security unit in another facility. He had hoped to be transferred to that facility’s minimum security unit. In his opinion, the transfer resulted in the loss of his residual liberty and was unreasonable in the circumstances.

The appellant filed a notice of appeal on December 27, 2019, which was within the 30 days set out in s. 784(1) of the Criminal Code (R.S.C. 1985, c. C-46) (Cr. C). On April 24, 2020, in Snooks c. Procureur général du Canada (C.A., 2020-04-24), 2020 QCCA 586, SOQUIJ AZ-51684237, 2020EXP-1076, the Court stated that an application for habeas corpus resulting from a judgment for a transfer not requested by a detainee was a matter subject to civil procedure, not criminal procedure, and therefore to the ten-day time limit for appeal under article 361 of the Code of Civil Procedure (CQLR, c. C-25.01) (C.C.P.). Accordingly, on June 28, 2020, the appellant submitted an application to extend the time limit under article 363 C.C.P.

The time limits to appeal under the Code of Civil Procedure, including the six-month limit under article 363 C.C.P. to authorize an appeal after the time limit has expired, were suspended on March 15, 2020, by the Order concerning the suspension of prescription and procedural periods and the use of another means of communication by reason of the public health emergency declared on 13 March 2020, M.O. 2020-4251, 15 March 2020, (2020) 152 G.O. II 1105A of the Chief Justice of Quebec and the Minister of Justice of Quebec, adopted after the state of health emergency was declared by the Government of Quebec on March 13, 2020. This suspension was lifted on August 31, 2020, by the Order concerning the lifting of the suspension of prescription and procedural periods and extension of certain procedural periods in civil matters owing to the public health emergency declared on 13 March 2020, M.O. 2020-4303, 31 August 2020, (2020) 152 G.O. II 3607B. That said, the suspension of the six-month time limit does not exempt a party from meeting the other criteria set out in article 363 C.C.P., i.e., establishing an impossibility to act earlier and the reasonable chance of success of the appeal. Though the health emergency may be deemed an impossibility to act during the period of suspension of the time limits, this is not the case for periods prior to March 15, 2020, and subsequent to September 1, 2020. In this case, the appellant established that he met the criteria in article 363 C.C.P.

On the merits of the appeal, the judge did not err in finding that the evidence did not establish a substantial change in the appellant’s conditions of detention equivalent to a loss of his residual liberty after his transfer. The differences raised by the appellant are related more to a loss of privilege than a deprivation of liberty, as was the case in Dodd v. Isabel McNeill House (C.A. (Ont.), 2008-09-22 (judgment corrected 2008-10-31)), 2008 ONCA 654, SOQUIJ AZ-50514136. The judge did not err in referring to the principles applicable to the habeas corpus remedy in correctional matters and to Dodd in particular, because the analytical framework of the deprivation of residual liberty has not been changed in the recent case law.

Finally, it would be difficult to conclude that the judge was unreasonable in finding that the decision leading to the appellant’s transfer was reasonable, given the deference the owed to that decision and the fact that it was made further to conduct on the part of the appellant that could be related to the offences that led to his imprisonment.

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