K.L.M. v. R., (1999) 248 A.R. 215 (QB)

• Judge: Sullivan, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: August 06, 1999
• Citations: (1999), 248 A.R. 215 (QB)

K.L.M. v. R. (1999), 248 A.R. 215 (QB)

MLB headnote and full text

Temp. Cite: [1999] A.R. TBEd. AU.066

K.L.M. (applicant) v. Her Majesty the Queen (respondent)

(Action No. 9901-0414-C1)

Indexed As: K.L.M. v. R.

Alberta Court of Queen's Bench

Judicial District of Calgary

Sullivan, J.

August 6, 1999.

Summary:

The applicant young offender was sen­tenced at trial to a term of open custody. She was held in the Castle Unit of the Calgary Young Offender Centre, a facility designated as providing both open and closed custody. She applied for a declaration that the Castle Unit was not an open custody facility, argu­ing that her custody there was effectively closed custody.

The Alberta Court of Queen's Bench ruled that the Castle Unit was not an open custody facility as defined under the Young Offen­der's Act, and ordered that the applicant be placed into open custody or released.

Criminal Law - Topic 8807

Young offenders - Decisions (incl. punish­ments) - Committal or placement of young offender - [See Crimi­nal Law - Topic 8815 ].

Criminal Law - Topic 8815

Young offenders - Decisions (incl. punish­ments) - Open custody - A young offender was sen­tenced at trial to a term of open custody - She was held in a facility desig­nated as providing both open and closed custody - She applied for a declar­ation that it was not an open custody facil­ity, arguing that her custody there was effectively closed custody - The Alberta Court of Queen's Bench ruled that it was not an open cus­tody facility as defined under the Young Offender's Act, and ordered that the appli­cant be placed into open custody or released - See paragraphs 40 and 41.

Criminal Law - Topic 8817

Young offenders - Decisions (incl. punish­ments) - Custody - Place of - [See Crimi­nal Law - Topic 8815 ].

Habeas Corpus - Topic 507

Jurisdiction to issue writ - Conditions precedent - A young offender was sen­tenced at trial to a term of open custody - She was held in a facility desig­nated as providing both open and closed custody - She applied for an order of certiorari in aid of habeas corpus, seeking a declar­ation that it was not an open custody facil­ity - The Alberta Court of Queen's Bench stated that "the use of habeas corpus to release a person from a particular form of detention although the person will remain under some other restraint of lib­erty is consistent with the historical appli­cation of the rem­edy" - See para­graphs 16 to 20.

Cases Noticed:

R. v. Miller, [1985] 2 S.C.R. 613; 63 N.R. 321; 14 O.A.C. 33; 23 C.C.C.(3d) 97, refd to. [para. 17].

Cardinal and Oswald v. Kent Institution (Director), [1985] 2 S.C.R. 643; 63 N.R. 353; 23 C.C.C.(3d) 118; 49 C.R.(3d) 35; [1986] 1 W.W.R. 577; 24 D.L.R.(4th) 44, refd to. [para. 17].

Morin v. National Special Handling Unit Review Committee, [1985] 2 S.C.R. 662; 63 N.R. 363, refd to. [para. 17].

Idziak v. Canada (Minister of Justice), [1992] 3 S.C.R. 631; 144 N.R. 327; 59 O.A.C. 241; 97 D.L.R.(4th) 577, refd to. [para. 17].

R. v. Sarson (J.A.), [1996] 2 S.C.R. 223; 197 N.R. 125; 91 O.A.C. 124, refd to. [para. 18].

R. v. Sheldon S., [1990] 2 S.C.R. 254; 110 N.R. 321; 41 O.A.C. 81; 77 C.R.(3d) 273; 57 C.C.C.(3d) 115; 49 C.R.R. 79, refd to. [para. 23].

R. v. Ogg-Moss, [1984] 2 S.C.R. 173; 54 N.R. 81; 5 O.A.C. 81; 41 C.R.(3d) 297; 14 C.C.C.(3d) 116; 11 D.L.R.(4th) 549; 6 C.H.R.R. D/2498, refd to. [para. 27].

C.F. v. Canada and Manitoba et al. (1984), 30 Man.R.(2d) 297; 16 C.C.C.(3d) 258 (C.A.); reving. 30 Man.R.(2d) 120; 14 C.C.C.(3d) 161 (Q.B.), refd to. [para. 28].

F. and R. et al., Re - see C.F. v. Canada and Manitoba et al.

R. v. J.J.M., [1993] 2 S.C.R. 421; 152 N.R. 274; 85 Man.R.(2d) 161; 41 W.A.C. 161; 81 C.C.C.(3d) 487, refd to. [para. 31].

D.B., Re (1986), 72 N.S.R.(2d) 354; 173 A.P.R. 354; 27 C.C.C.(3d) 468 (C.A.), refd to. [para. 32].

L.H.F., Re (1985), 57 Nfld. & P.E.I.R. 44; 170 A.P.R. 44; 24 C.C.C.(3d) 152 (P.E.I.S.C.), refd to. [para. 35].

Statutes Noticed:

Young Offenders Act, R.S.C. 1985, c. Y-1, sect. 24.1(1) [para. 24].

Authors and Works Noticed:

Oxford English Dictionary [para. 26].

Counsel:

Marija Bicanic and Ian McNish, for the applicant;

Neil R. Boyle, for the respondent/Crown.

This application was heard before Sullivan J., of the Alberta Court of Queen's Bench, Judicial District of Calgary, who delivered the following decision on August 6, 1999.