Court of Appeal for Ontario

Citation: R. v. Elguindy, 2009 ONCA 738

Date: 2009-10-22

Docket: C50879

Between:

Her Majesty the Queen

Respondent

and

Emad Elguindy

Appellant

Before: Weiler, Armstrong and LaForme JJ.A.

Counsel:

Emad Elguindy, acting in person

Nanette Rosen and David Tortell, for the respondent

Heard: October 19, 2009

On appeal from the judgment of Justice Gregory M. Mulligan of the Superior Court of Justice dated July 22, 2009, refusing the application for habeas corpus with certiorari in aid.

ENDORSEMENT

[1] 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 Correctional and Conditional Release Act, S.C. 1992 c. 20 (CCRA), and ss. 17 and 18 of the Correctional and Conditional Release Regulation (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 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.

[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.

“K.M. Weiler J.A.”

“Robert P. Armstrong J.A.”

“H.S. LaForme J.A.”