Her Majesty the Queen v. Elguindy [Indexed as: R. v. Elguindy]

99 O.R. (3d) 137

Court of Appeal for Ontario,

Weiler, R.P. Armstrong and LaForme JJ.A.

October 22, 2009

Criminal law -- Appeals -- Mootness -- Appellant bringing application for habeas corpus arguing that his residual liberty interest affected after unsuccessfully bringing a grievance in respect of his security classification in federal penitentiary was dismissed -- Application dismissed and appellant appealing -- Appellant released on day parole while appeal pending -- Appeal dismissed -- Issue of appellant's security classification moot.

Criminal law -- Prisoners -- Accused arguing that correctional officials required to place inmates in security classification corresponding to their custody rating scoring -- Section 18 of Corrections and Conditional Release Regulation not depriving correctional authorities of discretion to consider factors other than score when determining inmate's security classification -- Corrections and Conditional Release Regulation, SOR/92-620, s. 18.

The appellant, who was then a prisoner in a federal penitentiary, grieved his classification as a medium security risk. He argued that based on his custody rating scoring, he should have been placed in minimum security. His grievance was unsuccessful, and he brought an application for habeas corpus. The application was dismissed. He appealed. While the appeal was pending, he was placed on day parole.

Held, the appeal should be dismissed.

Whether the appellant should have been classified as a minimum or medium security risk was now moot. Moreover, s. 18 of the Corrections and Conditional Release Regulation does not deprive the correctional authorities of discretion to consider factors other than the custody rating score when determining a prisoner's security classification. The accused also argued that the person who made the decision about his grievance had no authority to do so as the decision could not be delegated. A review of the legislation and regulations demonstrates that the accused is incorrect.

APPEAL from the judgment of Mulligan J. of the Superior Court of Justice dated July 22, 2009 dismissing the application for habeas corpus.

Statutes referred to Corrections and Conditional Release Act, S.C. 1992, c. 20, s. 4 Interpretation Act, R.S.C., 1985, c. I-21, s. 24(4) [as am.] Rules and regulations referred to Corrections and Conditional Release Regulations, SOR/92-620, ss. 17, 18

Emad Elguindy, acting in person. Nanette Rosen and David Tortell, for respondent. [page138]

[1] Endorsement BY THE COURT: -- The appellant appeals from the dismissal of his habeas corpus application.

[2] The background facts giving rise to this appeal are as follows. The appellant entered the federal penitentiary system to serve a six-year sentence. He was classified as a medium security risk. He grieved this classification on the basis that his custody rating score led to a minimum security classification and that, together with s. 4 of the Corrections and Conditional Release Act, S.C. 1992, c. 20 ("CCRA") and ss. 17 and 18 of the Corrections and Conditional Release Regulations, SOR/92-620 ("CCRR"), he was entitled to this classification. He submits that there was no discretion to override it.

[3] When the appellant's grievance was unsuccessful, he brought a habeas corpus application alleging that his residual liberty interest was affected and sought punitive damages in the amount of $50,000. The motion judge dismissed the appellant's habeas corpus application and request for ancillary relief and invited the Crown to make submissions as to costs.

[4] The appellant appealed. While this appeal was pending, the appellant was placed on day parole and is currently residing in a half-way house. Just before this appeal was to be heard, the motion judge awarded $2,000 in costs in favour of the Crown.

[5] On this appeal, the Crown advises that it will not seek to realize the award of costs in its favour and, thus, we need not deal with the question of whether a habeas corpus proceeding is a criminal proceeding for which no costs are ordinarily awarded or a civil proceeding in which costs follow the event.

[6] In our opinion, having regard to the appellant's current status and the Crown's concession, whether he should have been classified as a minimum or medium security risk is now moot.

[7] In any event, we are of the opinion that none of the grounds of appeal raised by the appellant have any merit. We propose to comment only briefly. The appellant submits that the person who made the decision respecting his grievance had no jurisdiction to do so because the decision-making authority in that regard cannot be delegated. Having regard to the CCRA, CCRR, Commissioner's Directive 18 and s. 24(4) of the Interpretation Act, R.S.C. 1985, c. I-21, we disagree. The person making the decision concerning the appellant's grievance had jurisdiction to do so.

[8] Further, we do not read s. 18 [of CCRR] as leaving the correctional authorities with no discretion to consider factors other than the custody rating score. The appellant was provided with all the reasons for his classification above minimum security. [page139]

[9] The appellant's proposed fresh evidence would not affect the result.

[10] The appellant is attempting to build a case for damages for deprivation of a residual security interest. No authority has been provided by the applicant concerning whether damages may be sought as ancillary relief to the prerogative remedy of habeas corpus. However, in light of our disposition of this appeal on the merits, we need not address this issue.

[11] Accordingly, the appeal is dismissed.

Appeal dismissed.