R. v. Graham, 2011 ONCA 138

CITATION: R. v. Graham, 2011 ONCA 138

DATE: 20110222

DOCKET: C52798

COURT OF APPEAL FOR ONTARIO

MacPherson, Blair and Rouleau JJ.A.

BETWEEN:

Scott Graham

Appellant

and

Her Majesty the Queen

Respondent

Scott Graham, in person Ian Smith, Duty Counsel Matthew Sullivan, for the Crown

Heard: February 9, 2011

On appeal from the judgment of Justice Albert Roy of the Superior Court of Justice, dated September 16, 2010, denying the appellant’s application for a writ of habeas corpus ad subjiciendum.

R.A. Blair J.A.:

Background and Facts

[1] The appellant seeks to set aside the judgment of Justice Roy of the Superior Court of Justice, dated September 16, 2010, denying his application for a writ of habeas corpus ad subjiciendum.

[2] On July 8, 2009 the appellant was sentenced to 26 months in prison for various drug-related offences. Because he was a first-time federal offender,[^1] he was granted accelerated day parole on December 1, 2009 and released into the community – subject to parole conditions – on January 8, 2010. Shortly thereafter, however, on January 28, 2010, the appellant’s parole privileges were suspended by his parole officer’s supervisor. Several reasons were cited for the suspension, including the appellant’s failure to comply with certain financial disclosure obligations that formed a condition of his parole, his failure to provide information regarding his associations, and his suspected involvement in drug-related conduct.

[3] The appellant challenged his parole suspension by way of habeas corpus in Superior Court. At the same time, the suspension was automatically under review pursuant to the National Parole Board (“NPB”) review process established under the Corrections and Conditional Release Act, S.C. 1992, c. 20 (“CCRA”).

[4] On September 16, 2010, the application judge denied the habeas corpus proceeding, concluding that the CCRA regime constituted “a complete, comprehensive and expert procedure” for review of the NPB’s administrative decision and that he should therefore decline habeas corpus jurisdiction. Subsequently, on October 7, 2010, the NPB affirmed the suspension and revoked the appellant’s parole. The appellant then appealed to the Appeal Division of the NPB, which dismissed his appeal on November 17, 2010.

[5] The appellant now seeks to overturn the decision of Justice Roy and to have this court quash the decision of his parole officer’s supervisor suspending his parole.

[6] For the reasons that follow, I would dismiss the appeal.

Law and Analysis

[7] There is no dispute that provincial superior courts retain an important jurisdiction to hear habeas corpus applications brought by a prisoner alleging unlawful restriction of his or her liberty, and do so in spite of the fact that such allegations may also be challenged elsewhere. As habeas corpus is not a discretionary remedy, but rather one that issues as of right on proper grounds being shown, Superior Courts are – and should be – reluctant to decline such jurisdiction when called upon to exercise it. However, they may do so in some circumstances, and one circumstance where the Supreme Court of Canada has indicated it is appropriate to decline jurisdiction is where “there is in place a complete, comprehensive and expert procedure for review of an administrative decision:” May v. Ferndale Institution, 2005 SCC 82, [2005] 3 S.C.R. 809.

[8] At para. 44 of that decision, Justices LeBel and Fish, for the majority, summarized their conclusions in this regard:

To sum up, therefore, the jurisprudence of this Court establishes that prisoners may choose to challenge the legality of a decision affecting their residual liberty either in a provincial superior court by way of habeas corpus or in the Federal Court by way of judicial review. As a matter of principle, a provincial superior court should exercise its jurisdiction when it is requested to do so. Habeas corpus jurisdiction should not be declined merely because another alternative remedy exists and would appear as or more convenient in the eyes of the court. The option belongs to the applicant. Only in limited circumstances will it be appropriate for a provincial superior court to decline to exercise its habeas corpus jurisdiction. For instance, in criminal law, where a statute confers jurisdiction on a court of appeal to correct the errors of a lower court and release the applicant if need be, habeas corpus will not be available (citation omitted). Jurisdiction should also be declined where there is in place a complete, comprehensive and expert procedure for review of an administrative decision (citations omitted).

(Emphasis added.)

[9] The rationale underlying the exceptions referred to above is rooted in the risks associated with parallel procedures and the ineffective use of public resources flowing from such procedures. Cory J. succinctly explained these policy reasons, in the NPB context, in Steele v. Mountain Institution, 1990 CanLII 50 (SCC), [1990] 2 S.C.R. 1385, at p. 1418:

Since any error that may be committed occurs in the parole review process itself, an application challenging the decision should be made by means of judicial review from the National Parole Board decision, not by means of an application for habeas corpus. It would be wrong to sanction the establishment of a costly and unwieldy parallel system for challenging a Parole Board decision. As well, it is important that the release of a long-term inmate should be supervised by those who are experts in the field.

[10] The question here, then, is whether the CCRA provides “a complete, comprehensive and expert procedure” for administering the parole review process. In my view, it does. In that respect, I agree with the application judge and with other Canadian appellate and lower courts that have come to the same conclusion: see Armaly v. Canada (Parole Services) (2001), 2001 ABCA 280, 299 A.R. 188 (C.A.); Lord v. Coulter (2009), 2009 BCCA 62, 266 B.C.A.C. 122 (C.A.); R v. Latham (2009), 2009 SKCA 26, 324 Sask. R. 87 (C.A.); Latham v. Canada (2006), 2006 FC 284, 288 F.T.R. 37 (F.C.T.D.); McGrayne v. Canada (Attorney General), [2002] O.T.C. 191 (Sup. Ct.); R v. Elguindy, 2010 ONSC 1757.

[11] The appellant relies on the decision of the British Columbia Supreme Court in Woodhouse v. William Head Institution, 2010 BCSC 754 to the contrary. In that case, Walker J. concluded that there was an impermissible gap in the CCRA procedure because it exposes an inmate to a period of detention of up to 30 days[^2] before his or her suspension must be referred to the NPB for review and, even then, does not specifically provide the NPB with the power to review the suspension for error of law nor specifically direct it to inquire into the merits of the parole officer supervisor’s decision at the review level. Here, the appellant argues, amongst other things, that there is no legal authorization for the imposition of financial terms of disclosure as a condition of his parole release.

[12] Respectfully, I do not accept the reasoning in Woodhouse.

[13] With respect to a suspension of parole, the statutory scheme works as follows. “A person designated by name or by position, by the Chairperson of the Board or by the Commissioner” may, by warrant, suspend the parole, authorize the apprehension of the offender, and authorize the recommitment of the offender until the suspension is cancelled, the parole is revoked or the sentence has expired: s. 135(1). A parole officer supervisor is such a person: Commissioner’s Directive No. 718: Designation of Persons With Authority for Suspension Under s. 135 of the Corrections and Conditional Release Act, s. 10, June 16, 2008 (available at http://www.csc-scc.gc.ca/text/plcy/cdshtm/718-cd-eng.shtml. Section 107(1) grants the NPB exclusive jurisdiction and absolute discretion to grant, terminate or revoke parole, or to cancel a suspension, termination or revocation of parole. Where the offender is recommitted, the parole officer supervisor must forthwith review the offender’s case and either cancel the suspension or refer the matter to the NPB for review within a tight statutorily defined time frame (within 14 days if the offender is serving a sentence of less than two years; within 30 days in any other case): s. 135(3). The NPB must then review the case (“the Board”, for review purposes) and, within the 90-day period prescribed by the regulations, either cancel the suspension or terminate or revoke the parole: s. 135(4) and (5).

[14] During this review process, where the offender is serving a sentence of two years or more – as the appellant is – the Board will take into account the offender’s conduct since his or her release, including whether the possibility of re-offending will pose an undue risk to society: s. 135(5). The process, then, is not simply point-in-time. It involves more than a review of whether the parole officer supervisor’s decision betrays an error of law or is otherwise wrong on its merits. But s. 135 is not to be read so narrowly as to preclude the Board from considering those factors, for – as the application judge noted – the decision of the parole officer supervisor is itself a part of the process transpiring since the offender’s release. The Board will undoubtedly take into account the substantive reasons for suspending parole as part of the overall review.

[15] The Board’s review decision is, in turn, subject to an appeal to the Appeal Division of the NPB, pursuant to s. 147. The statutory grounds for such an appeal are wide-ranging and include jurisdictional error, error in law, and the failure to observe the principles of fundamental justice. Finally, the decision of the Appeal Division is subject to judicial review in the Federal Court.

[16] This, in my view, is the very type of statutory regime envisioned in the habeas corpus exception articulated in May v. Ferndale Institution. The CCRA establishes a complete and comprehensive procedural regime for the review and appeal of a parole officer supervisor’s decision to suspend parole. In addition, the process is carried out at its various stages by experts in the parole field.

[17] True, there is a short timeframe during which the offender whose parole has been suspended may be detained while the parole officer supervisor decides whether to cancel the suspension or to refer the matter to the NPB. During that period of detention the offender's liberty is restricted in a way that would otherwise entitle him or her to challenge the legality of the detention by habeas corpus. That in itself is not sufficient to take the CCRA scheme out of the May exception, in my view. First, the delay is part of the regime allowing the parole officer supervisor to reconsider the decision. Further, as a practical matter, a habeas corpus application is unlikely to be determined more quickly than the 14-day/30-day timeframe within which the parole officer supervisor’s decision to suspend must either be cancelled or referred by the parole officer supervisor into the NPB process for review.

[18] As Brown R.S.J. recently noted in Elguindy, there may be exceptional circumstances where the statutory review and appeal regime established in the CCRA, comprehensive on its face, is so ineffective as to warrant the exercise of habeas corpus jurisdiction. However, this is not one of those cases.

[19] The decision whether to decline habeas corpus jurisdiction is discretionary.[^3] The application judge made no error in law or principle and, in my view, was correct in declining to exercise the Superior Court’s habeas corpus jurisdiction.

Disposition

[20] The appeal is therefore dismissed.

“R.A. Blair J.A.”

“I agree J.C. MacPherson J.A.”

“I agree Paul Rouleau J.A.”

RELEASED: February 22, 2011

[^1]: The appellant had a prior criminal record for a variety of offences, but had not previously been sentenced to a penitentiary term of imprisonment. [^2]: Where the sentence imposed was less than two years’ imprisonment, the detention is for a period of up to 14 days. [^3]: Although, once jurisdiction is accepted and it is established that the applicant’s detention is illegal, the decision whether to grant habeas corpus is not discretionary: May v. Ferndale Institution, at para. 33, citing Sharpe, Robert J., The Law of Habeas Corpus, 2nd ed. (Oxford: Clarendon Press, 1989) at 58.