Date: 20021007
Docket: 02-T-58
Neutral Citation: 2002 FCT 1048
EDMONTON, ALBERTA, MONDAY, THE 7TH DAY OF OCTOBER, 2002
Present: THE HONOURABLE MR. JUSTICE O'KEEFE
BETWEEN:
KEVIN WILLIAM MACHELL
Applicant
- and -
HER MAJESTY THE QUEEN
Respondent
ORDER AND REASONS FOR ORDER
O'KEEFE, J.
Factual Background
- 1. This is a motion by the applicant, Kevin William Machell, for:
- 14) 1) an Order for leave with short notice pursuant to Rule 362;
- 15)
- 16) 2) an Order extending the time in which Kevin William Machell is allowed to file and serve an application for Judicial Review of the decision of Cheryl Fraser, Assistant Commissioner, Policy, Planning and Co-ordination (ACPPC), dated August 14, 2002;
- 17)
3) an application for a stay of the involuntary transfer of Kevin William Machell, a serving prisoner, from the Edmonton Institution to Kent Institution, such transfer presently being scheduled for October 7, 2002;
4) such further and other relief as this Honourable Court may deem just.
- 2. On June 20, 2002, the applicant was involuntarily transferred from Kent Institution in British Columbia, to Edmonton Institution. The move was subject to the applicant's ability to integrate into a population at Edmonton Institution.
- 3. The transfer to Edmonton Institution was based on the following:
"The Unit Board met and discussed Mr. Machell's case after reviewing all relevant documentation. He is now a long term segregation case, and has exhausted all possible options at Kent Institution. He has community support in Alberta, and a transfer to Edmonton will allow him to access programming required in an open population.
Transfer recommended."
- 4. The integration into the open population has not been successful in Edmonton.
- 5. The applicant is scheduled to be moved back to Kent Institution in British Columbia today.
- 7. The applicant filed a judicial review application in connection with the decision to move him back to Kent Institution. This judicial review application, if communicated to the applicant on August 14, 2002 was filed out of the time frame for filing such an application.
- 8. There was difficulty experienced by the applicant in obtaining counsel.
- 9. The applicant is currently serving a sentence of 20 years for murder.
- 10. Paragraph 5 of the applicant's affidavit sworn to on September 21, 2002 outlines the applicant's family connections in Edmonton:
"My family all live in Alberta. I have a brother who is a farmer at Busby, Alberta, who has been to visit me on five occasions since my transfer to Edmonton. My sister is a pastor with the Pentecostal Church. She has just returned to Canada after serving in Kenya. She has not yet had an opportunity to visit me although she was able to visit me many times at Kent. She was the only member of my family able to visit me with any frequency at Kent. My common law wife, Ana Nehring, lives in St. Albert, Alberta, with our 10 year old daughter. Since coming to Edmonton I have had approximately 15 visits with my wife and approximately 11 with my wife and daughter. My parents live in Airdrie Alberta and have visited me approximately 6 times since I have been transferred to Edmonton, Institution. My father is presently ill with cancer and has a life expectancy of 8 months. My parents visited me yesterday and due to pain, my father got up and took a walk outside. He is not well enough to go to Kent to visit. When my proposed transfer to Kent was mentioned my father got tears in his eyes as he too wants the visits to continue as long as possible. I have been told by the authorities at the Institution that when he dies I can get a compassionate leave to go to his funeral but I would prefer to have visits while he is alive. Also requests for compassionate leave can take up to 3 weeks to be approved and that is not fair to the rest of my family to wait that long for burial."
Issues
13. Should the stay be granted.
Analysis and Decision
14. I am prepared to grant an order extending the time to file the judicial review application to today's date.
15. The motion is governed by the tri-partite test set out by the Supreme Court of Canada in RJR-MacDonald Inc. v. Canada (Attorney General) [1994] 1 S.C.R. 311. The applicant must establish that there is a serious issue to be tried, that irreparable harm will result if the motion is refused and that the balance of convenience favours the applicant.
Serious Issue
16. A serious issue exists to be tried in this case and it is whether or not the applicant was afforded procedural fairness. In other words why was he being transferred - Did the safety of the employee enter into the determination?
Irreparable Harm
17. The applicant's father is dying with cancer and has approximately eight months to live. His father can visit him in Edmonton but not in British Columbia. The applicant was involuntarily transferred to Edmonton Institution on June 20, 2002 due to community support in Edmonton. The community support is family. A decision was reached on July 5, 2002 to send the applicant back to Kent Institution. I am persuaded that the applicant would suffer irreparable harm if the stay is not granted in the particular circumstances of this case.
Balance of Convenience
18. I am of the view that the balance of convenience favours the applicant. There is no indication of any behavioural problems on the part of the applicant while in Edmonton. The applicant will still be in prison and in segregation whether he is in Edmonton or Kent Institution.
19. The applicant's motion for a stay of the involuntary transfer of the applicant from the Edmonton Institution to the Kent Institution scheduled for today, October 7, 2002, is hereby stayed until his application for judicial review is dealt with by the Court.
ORDER
IT IS HEREBY ORDERED THAT:
14. 1. The applicant's motion for a stay of the involuntary transfer of the applicant from the Edmonton Institution to the Kent Institution scheduled for today, October 7, 2002, is hereby stayed until his application for judicial review is dealt with by the Court.
2. The time for filing the application for judicial review is extended to today's date.
"John A. O'Keefe"
Judge
EDMONTON, Alberta
October 7, 2002
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: 02-T-58
STYLE OF CAUSE: Kevin William Machell v. Her Majesty the Queen
PLACE OF HEARING: Edmonton, Alberta
DATE OF HEARING: October 07, 2002
ORDER AND REASONS FOR ORDER: The Honourable Mr. Justice O'Keefe
DATED: October 07, 2002
APPEARANCES:
Ms. Eileen Crane FOR APPLICANT
Mr. Rick Garvin FOR RESPONDENT
SOLICITORS OF RECORD:
Ms. Eileen Crane FOR APPLICANT
Edmonton, Alberta
Morris Rosenberg FOR RESPONDENT
Deputy Attorney General of Canada