Court of Appeal for Ontario

2012 ONCA 313

DATE: 20120511

DOCKET: C54342

Cronk, Juriansz and Epstein JJ.A.

BETWEEN

Anees Chaudhary

Applicant (Appellant)

and

Warden of Frontenac Institution

Respondent (Respondent)

Counsel:

Allan Manson, for the appellant

Brian Harvey and Abigail Martinez, for the respondent

Heard and released orally: May 8, 2012

On appeal from the order of Justice John McMunagle of the Superior Court of Justice dated August 5, 2011, with reasons reported at 2011 ONSC 4627.

ENDORSEMENT

[1] The appellant appeals the application judge’s dismissal of his habeas corpus application. The application judge declined to exercise jurisdiction in favour of a judicial review application before the Federal Court.

[2] The appellant was convicted of murder in 1988 and sentenced to life imprisonment with no parole for 14 years. He was granted full parole in 1998, subject to certain conditions. His parole was suspended on November 17, 2009 by a parole supervisor with the Correctional Service of Canada. On February 9, 2010, the National Parole Board (NPB) conducted a review of the suspension, holding in part that the appellant had failed to provide full financial disclosure to his parole officer and was unwilling to follow the conditions of his release. The NPB revoked his parole. This decision was subsequently upheld by the Appeal Division of the NPB.

[3] We have been advised that since June 2, 2011, the appellant has been on day parole.

[4] The appellant brought a habeas corpus application in Superior Court. This application was dismissed by McMunagle J. on August 5, 2011, on jurisdictional grounds.

[5] As the application judge observed, both parties agreed that the controlling authority in this matter is May v. Ferndale, 2005 SCC 82, [2005] 3 S.C.R. 809. There, the court held that the Superior Court should exercise its habeas corpus jurisdiction except in limited circumstances. These circumstances include “where there is in place a complete, comprehensive and expert procedure for review of an administrative decision” (at para. 44). If such circumstances are found to exist, the prescribed route to challenge a parole decision is by way of a judicial review application brought before the Federal Court.

[6] The application of May in the context of the parole review process under the Corrections and Conditional Release Act, S.C. 1992, c. 20, was considered by this court in R. v. Graham, 2011 ONCA 138, 275 O.A.C. 200. In that case, Blair J.A. indicated that the parole review process was the very type of statutory regime envisioned in the habeas corpus exceptions articulated in May. Accordingly, the appeal of the decision of the Superior Court to decline to exercise jurisdiction, was dismissed.

[7] The appellant’s argument is that Graham, in addition to a number of appellate decisions from other provinces that have reached the same conclusion, has incorrectly interpreted and applied May. In effect, the appellant invites this panel to rule that Graham was wrongly decided.

[8] We decline to do so. Graham was recently decided and is consistent with contemporary decisions of several other appellate courts in Canada. In our view, Graham is dispositive of this appeal. The appellant has not persuaded us that the decision in Graham is per incuriam. We note that the appellant’s application for a five-judge panel to hear this matter was refused.

[9] This appeal is therefore dismissed.

“E.A. Cronk J.A.”

“R.G. Juriansz J.A.”

“G.J. Epstein J.A.”