Alexandra Gagnon
A tool meant to silence abusive litigants may now be muffling the voices of people who need the courts the most. Vexatious litigant provisions to curb abusive or repetitive filings have been applied in Alberta courts – but do vexatious litigant orders inadvertently block legitimate applications brought forward by incarcerated people? This blog post will examine how Alberta’s vexatious litigant regime intersects with access to the writ of habeas corpus for incarcerated people.
Habeas Corpus
Habeas corpus is a legal procedure that allows individuals to have a court review the lawfulness of their detention or imprisonment.[1] The ability to access this writ is enshrined in the Canadian Charter of Rights and Freedoms:
“Everyone has the right on arrest or detention […] to have the validity of the detention determined by way of habeas corpus and to be released if the detention is not lawful.”[2]
Access to the writ of habeas corpus is essential for all Canadians to ensure that people are not being unlawfully detained. Incarceration is a form of detainment. Habeas corpus ensures that this detention is lawful.
When an incarcerated person uses habeas corpus to challenge their detention, they must establish that they:
- Have been deprived of a liberty; and,
- Can raise a legitimate ground to question the legality of that deprivation.[3]
If an incarcerated individual can satisfy those two requirements, then the onus shifts to the Crown to demonstrate that the deprivation of liberty is lawful.[4] A deprivation of liberty will be unlawful if the decision(-maker) acts outside its jurisdiction, lacks procedural fairness, lacks an evidentiary foundation, or is illegal or arbitrary.[5] In a nutshell, if a decision-maker wants to deprive someone of their freedom, they must have the legal authority to make that decision, ensure that they follow the relevant procedures, and reasonably make the decision while relying on sound evidence.
The courts must hear habeas corpus applications promptly, and they often take priority over other court proceedings.[6] This promptness is due, in part, to the nature of carceral settings. People who are incarcerated are detained and can be subject to disciplinary segregation, administrative transfers, and placement in structured intervention units (formerly known as administrative segregation). While habeas corpus applications must be heard swiftly, this has also led to the courts raising concerns and issuing vexatious litigant orders.
Vexatious Litigant Orders
A vexatious litigant order deems a person or party appearing before the court as being a “vexatious litigant” and stops them from starting or continuing any action before the court without first obtaining leave.[7] The goal of a vexatious litigant order is to ensure that individuals have access to justice appropriately and do not waste court resources.[8] The court in Alberta ordering a vexatious litigant order must be satisfied that the person or party is “persistently” being vexatious.[9] There must be a problematic pattern of abuse to satisfy the requirements for a vexatious litigant order.[10]
Vexatious litigant orders are an important institutional judicial function. Courts have the task of managing limited judicial resources when they are responding to a high volume of urgent, and often procedurally flawed, filings. The courts will often rely on civil procedure mechanisms, such as striking pleadings, to preserve the orderly administration of justice and maintain docket efficiency. However, the Court’s institutional concern with efficiency can become problematic when civil procedure tools intended for ordinary actions are applied to the habeas corpus context.
Intersection Points for Incarcerated People
Incarcerated people often find themselves the subject of vexatious litigant orders for many reasons. The high frequency of complaints may be due, in part, to the harsh living conditions of Canadian carceral institutions.[11] Further, incarcerated individuals are often self-represented,[12] and there are often limited legal resources, including access to the internet, in institutional settings.[13] This lack of resources can lead to individuals making submissions that contain errors due to procedural misunderstandings rather than intentional misconduct.
Habeas corpus is not a conventional civil claim; rather, it is a constitutional mechanism for questioning the legality of detention.[14] The blanket treatment of habeas corpus applications as being abusive solely because they are often frequent, imperfect, or brought by a self-represented incarcerated individual risks confusing procedural non-compliance with substantive abuse. This slippage can result in civil procedural rules performing work they were not designed to do.
The intersection of habeas corpus and a vexatious litigant order occurred during the case of Wilcox v Alberta.[15] Mr. Wilcox was placed directly into administrative segregation upon his arrival at the Edmonton Remand Centre.[16] For 16 months, Mr. Wilcox was confined to a seven-by-eight-foot cell for 23 hours a day, which included only a bed and a desk with limited access to human interaction.[17] Mr. Wilcox was denied access to educational materials, the yard, and other programs.[18] At most, he was released for one hour each day into a small room with a barred window and a single exercise bike, provided it was not under maintenance.[19] The Alberta Court of Appeal noted that this type of confinement for such an extended period can cause serious, and potentially permanent, harm.[20]
Despite this blatant deprivation of liberty, Mr. Wilcox’s application for habeas corpus was struck by the chambers judge as an abusive and vexatious proceeding without being heard on its merits.[21] The Alberta Court of Appeal found that the chambers judge erred in several ways and determined that Mr. Wilcox suffered a deprivation of liberty by being placed in administrative segregation, ultimately allowing the appeal.[22] As a result, habeas corpus was determined to be a way for incarcerated people to challenge their direct placement in administrative segregation.[23] While Correctional Services Canada may place a person in administrative segregation, it must do so lawfully.[24]
The chambers judge’s decision in Wilcox v Alberta was not an isolated mistake, but rather representative of the broader judicial impulse to bar habeas corpus applications through civil procedure discipline without engaging with a meaningful review of the deprivation of liberty. That approach is particularly concerning within the habeas corpus context, given that liberty – not efficiency – is the primary interest at stake.
Access to Justice Considerations
Vexatious litigant orders can bar access to habeas corpus by making access to liberty a discretionary privilege governed by procedural gatekeeping. Alberta courts have emphasized that vexatious litigant orders must not bar access to habeas corpus because of its constitutional nature.[25] However, procedural requirements that may be defensible in ordinary civil litigation can reverse the traditional burden: instead of the state justifying the detention, the incarcerated person must first justify being heard.
Commencing an application in the face of a vexatious litigant order typically requires leave, which can delay urgently needed relief, as illustrated in Wilcox v Alberta. Further, incarcerated people may struggle to meet procedural expectations due to a lack of access to resources in institutions.[26] For individuals with limited literacy, restricted access to legal materials, and no counsel, this procedural burden can be insurmountable, resulting in meritorious claims being blocked.
An entrenched power imbalance exists between the state and a self-represented litigant in the judicial process. The state benefits from institutional expertise and legal representation, while an incarcerated person must often navigate complex procedural expectations under severe constraints. The aggressive deployment of vexatious litigant order logic does not promote efficiency; instead, it reshapes the procedural terrain in ways that systematically disadvantage those whose liberty is already curtailed. Taken together, these barriers highlight the urgent need to ensure that vexatious litigant orders are applied with caution, so they do not become a mechanism that prevents incarcerated people from challenging unlawful deprivations of their liberty.
It is of course possible that an application for habeas corpus—like any other legal proceeding—could be individually abusive. But if necessary, other summary procedures (such as Alberta’s Rule 3.68) can address these issues in a more tailored way than a vexatious litigant order.
Conclusion
Our legal system must strike a balance between efficiency and liberty. While the court’s concern with managing abusive litigation is understandable, using civil procedure rules to discipline habeas corpus applications risks creating a system where efficiency eclipses liberty. Vexatious litigant orders must not undermine the fundamental nature of habeas corpus. Without vigilant protection of this right, this approach renders a constitutional safeguard procedurally fragile, making it available in theory but increasingly inaccessible in practice to those who need it most.
[1] Mission Institution v Khela, 2014 SCC 24 at para 27 [Khela].
[2] Canadian Charter of Rights and Freedoms, Part 1 of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11, s 10(c).
[3] Khela at para 30.
[4] Ibid.
[5] Ibid at para 67.
[6] Ibid at para 3.
[7] Judicature Act, RSA 2000, c J-2, s. 23.1(1) [Judicature Act].
[8] Canada v Olumide, 2017 FCA 42 at para 45.
[9] Jonsson v Lymer, 2020 ABCA 167at paras 20 and 38 [Jonsson].
[10] Jonsson at paras 36-38.
[11] Sandra Bucerius, Luca Berardi, & Kevin Haggerty, “‘I’m in a Federal Prison, and I’ve Never Felt More Free’: The Multi-Faceted Pains Experienced by Incarcerated Indigenous Women in Canada” in Power and Pain in the Modern Prison, edited by Ben Crewe, Andrew Goldsmith, & Mark Halsey, 152-172 (Oxford, Oxford University Press, 2022) at 161.
[12] Robert Hann & Joan Nuffield, Court Site Study of Adult Unrepresented Accused in the Provincial Courts (Part 2: Site Reports) (Department of Justice Canada, 2003). https://www.justice.gc.ca/eng/rp-pr/csj-sjc/ccs-ajc/rr03_la3-rr03_aj3/index.html
[13] Naomi Berlyne & Stephanie Latty, Everyone should have a right to information, including people who are behind bars (Canadian Dimension, 2025). https://canadiandimension.com/articles/view/everyone-should-have-a-right-to-information-including-people-who-are-behind-bars
[14] Khela at para 29.
[15] Wilcox v Alberta, 2020 ABCA 104 [Wilcox v Alberta].
[16] Ibid at para 10.
[17] Ibid.
[18] Ibid.
[19] Ibid.
[20] Ibid at para 23.
[21] Ibid at para 2.
[22] Ibid at para 50.
[23] Ibid at para 45 and 51.
[24] Ibid at 50.
[25] Ibid at 75.
[26] Supra note 13.