Henderson J

3.68: Court options to deal with significant deficiencies

Case Summary

On January 18, 2019, Wayne Wilcox (“Mr. Wilcox”), a person detained in the Edmonton Remand Centre (“ERC”), filed a document titled “Originating Application for a Writ of Habeas Corpus Ad Subjiciedum” (the “Originating Application”). The Originating Application was grounded in the argument that, since his admittance into ERC, Mr. Wilcox had been held in administrative segregation. Mr. Wilcox asserted that this status caused his liberties to be further restricted at ERC from that of the other ERC inmates.

The Originating Application made considerable allegations against the ERC and its operators, but failed to attach a supporting Affidavit. Justice Henderson emphasized the importance and requirement of the Court to give priority to any application for habeas corpus, given the unique status of this remedy in the UK common law tradition as a swift, summary mechanism by which to evaluate the alleged illegality of a detention. Henderson J. reviewed the applicable Rule 3.68 and the implications of Civil Practice Note No. 7, a document-based “show cause” process (“The Procedure”), by which to evaluate whether Mr. Wilcox’s Originating Application should be struck out per Rule 3.68.

The Procedure, as outlined by Justice Henderson, permits a document-only “show cause” mechanism where a Court filing may be reviewed per Rule 3.68 to evaluate whether that filing constitutes an “Apparently Vexatious Application or Proceeding” (“AVAP”) as that term is defined in Civil Practice Note No. 7. Henderson J. explained that if a pleading is determined to be an AVAP the Court issues a first written Decision that identifies the apparent defect(s) which may be a basis to apply Rule 3.68 and strike out the AVAP filing. The party who filed the AVAP is then given an opportunity to, within 14 days, provide the Court with a written submission to demonstrate why the AVAP is a legitimate Action and should be permitted to continue.

Justice Henderson reviewed the facts surrounding the Originating Application and concluded that the Originating Application did not appear to identify a deprivation of liberty that is subject to review by habeas corpus, and therefore should be struck per Rule 3.68 as a hopeless proceeding. Additionally, His Lordship found that the Originating Application was not supported by any evidence as Mr. Wilcox failed to file an Affidavit.

Justice Henderson concluded by finding that the Originating Application appeared to be futile and an abuse of Court processes. Accordingly, Henderson J. provided Mr. Wilcox with 14 days to prepare a written submission, per Civil Practice Note No. 7.

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