Bebi Moldovan v. The Attorney General of Canada et al.

COURT FILE NO.: 11-90000-00MO

DATE: 20120614

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

BEBI MOLDOVAN

Applicant

– and –

THE ATTORNEY GENERAL OF CANADA and THE WARDEN OF BATH INSTITUTION

Respondents

– and –

THE ATTORNEY GENERAL FOR ONTARIO

Intervener

Paul Slansky, for the Applicant

Matthew Sullivan and Jessica Winbaum , for the Respondents

Daniel Guttman, for the Intervener

HEARD: April 17, 2012

MacDonnell, J.

[1] This is an application by Bebi Moldovan for a writ of habeas corpus with certiorari in aid, for declaratory relief, and for orders pursuant to s. 24(1) of the Canadian Charter of Rights and Freedoms.

A. Overview

(i) The facts

[2] The applicant is an inmate at the Bath Institution, a medium security federal correctional facility. He is serving a sentence of four years and nine months for five offences arising out of the kidnapping of a man and a woman in Toronto on December 23, 2005.

[3] When the applicant appeared for trial in the Superior Court of Justice, he was facing an indictment containing nine counts: two counts of kidnapping, two counts of forcible confinement, two counts of threatening death, one count of aggravated assault, one count of assault causing bodily harm, and one count of sexual assault causing bodily harm. In the course of the pre-trial motions, counsel for the applicant and the Crown entered into plea discussions. As a result of those discussions, the parties agreed that the applicant would plead guilty to the two counts of kidnapping, the counts of aggravated assault and assault causing bodily harm, and one of the two counts of threatening. It was further agreed that the Crown would withdraw the remaining four counts, including the charge of sexual assault causing bodily harm, and that a joint submission would be presented for a sentence of five years imprisonment (less a credit of three months to reflect pre-trial custody.) On October 5, 2009 the agreement was carried into effect, and the jointly recommended sentence was imposed.

[4] On October 21, 2009, the applicant arrived at the Millhaven Assessment Unit. As part of the intake process, he was referred for a psychological risk assessment. In the course of the assessment, it was realized that one of the charges that had been withdrawn by the Crown was the charge of sexual assault causing bodily harm. A parole officer with Correctional Service of Canada (CSC) sought further information from Crown counsel as to the allegations underlying that charge and the reasons for its withdrawal, and the applicant was referred for a Sex Offender assessment.

[5] In response to the request for information, Crown counsel provided CSC with an outline of the allegations of sexual assault and the reasons why he had entered into an agreement that did not involve a plea to that charge. He stated that the applicant was not willing to admit that he had committed a sexual assault, but he also noted that “at no point did [the complainant] ever resile from the fact that she was sexually assaulted and for whatever it’s worth, I firmly believe her story.”

[6] The Sex Offender assessment was conducted under the direction of Dr. Fernandez (a psychologist). For the purposes of the assessment, Dr. Fernandez had available to her the police occurrence reports setting out the allegations of sexual assault as well as the information from Crown counsel. In Dr. Fernandez’s opinion, “the information about the sexual assault was an important element in psychologically assessing the future risk that Mr. Moldovan posed to the community.” In the end, she determined that the applicant’s correctional plan should include “a moderate intensity sexual offender treatment program” and that he should be placed at the Bath Institution (“Bath”). Bath primarily houses medium security sexual offenders.

[7] On March 3, 2010, the applicant’s counsel, Mr. Slansky, wrote to the Warden at Bath to demand that the applicant not be sent to that institution. He also demanded that sexual offender programming cease. Notwithstanding Mr. Slansky’s objections, the applicant was transferred to Bath.

[8] On the advice of Mr. Slansky, the applicant has refused to participate in sexual offender programming. Participation in sexual offender programming requires that the inmate admit being a sexual offender. However, for inmates such as the applicant who deny being sexual offenders, an alternative program – the “Deniers Program” – is available. The applicant initially agreed to the Deniers Program, but he subsequently changed his mind and he refuses to participate in it as well.

[9] The applicant’s full parole review was conducted by the National Parole Board on April 14, 2011. Mr. Slansky appeared at the hearing to assist the applicant. Mr. Slansky objected to the Board taking into account, in assessing the applicant’s risk, the allegations underlying the withdrawn charge of sexual assault causing bodily harm. The Board dismissed that objection. In the course of its reasons for denying full parole, the Board stated:

According to file information, you completed the voluntary Alternatives to Violence Program at Bath Institute. You have also completed English as a second language courses. You met the criteria for referral to the Moderate Intensity Sex Offender Treatment program, however you refused to participate. As an alternative you were offered the Sex Offender Deniers Program and you have refused to participate in it as well. You have made unsuccessful requests for the Anger Management Program and the National Substance Abuse Program. You have not completed any other programming set out in your Correctional plan and today your Parole Officer outlined that you have done nothing to address your identified risks…

…The Board is of the view that you have not completed programs to address the risk factors identified by CSC or the issues you have identified. In addition you have not provided a detailed or verified plan that is appropriate to manage your risk. Taking all the pertinent information into consideration, the Board concludes that the risk you pose for full parole is unmanageable. Therefore the Board finds, by reoffending, you will pose and [sic] risk to society before the expiration of you sentence. Full parole is denied

[10] On June 10, 2011, Mr. Slansky launched an appeal from the denial of parole to the Appeal Division of the National Parole Board. Among his grounds of appeal was a complaint that the National Parole Board had improperly taken into account the information from Crown counsel and the occurrence reports pertaining to the allegation of sexual assault. On October 25, 2011, the appeal was dismissed. The Appeal Division concluded:

We are satisfied that the Board conducted a fair risk assessment in accordance with the principles and criteria set out in the CCRA and reached a decision that is reasonable and supported by relevant, reliable and persuasive information. The Board’s decision to deny your full parole is the least restrictive determination consistent with the protection of society.

[11] A decision of the Appeal Division is subject to judicial review in the Federal Court. The applicant has not sought judicial review. Instead, he brought this application for habeas corpus and other relief in the Superior Court of Justice.

[12] The applicant remains at the Bath Institution. He continues to refuse to participate in sexual offender programming or the Deniers Program. On July 25, 2011, he requested a transfer to the minimum security facility at Beaver Creek. On September 20, 2011, the request for transfer was refused.

(ii) The applicant’s complaints

[13] Reduced to its essence, the applicant’s complaint with respect to the manner in which he has been treated by CSC concerns his correctional plan. His position is that the process by which it was determined that he requires sexual offender programming contravened the provisions of the Corrections and Conditional Release Act (CCRA), infringed principles of fundamental justice contrary to s. 7 of the Charter, and was based on conduct of Crown counsel that was an abuse of process. He submits that his unwillingness to comply with the unconstitutionally developed correctional plan was taken into account by the National Parole Board in denying him full parole in April 2011 and that it is one of the factors preventing him from being classified as a minimum-security risk and transferred to Beaver Creek. He fears that if he continues to refuse to participate in sexual offender programming he will be denied statutory release in December 2012.[^1]

(iii) The relief sought

[14] To remedy the violations of his rights, the applicant seeks the following:

(a) a declaration that the treatment of him as a sex offender “is unlawful and/or unconstitutional contrary to the proper interpretation and application of the Corrections and Conditional Release Act and is a denial of [his] constitutional rights under s. 7 of the Charter and the unwritten constitutional principle of the rule of law”;

(b) orders “by way of habeas corpus and/or s. 24(1) of the Charter that [his] correctional plan be changed so that he is not dealt with as a sex offender or a person who is a risk of committing sex offences and is permitted to participate in ordinary violence related programs, [that his] security classification be changed to minimum or low medium”; and

(c) transfer to a minimum security institution “that is not primarily an institution with sex offenders and sex offender programs”.[^2]

(iv) Disposition

[15] For the reasons that follow, I conclude:

(i) Insofar as the application for habeas corpus is based on the refusal of the applicant’s request to be transferred to a minimum security facility, it is dismissed. There has been no change in his security classification, the manner in which his sentence is being served, or the location where it is being served and accordingly there has been no deprivation of liberty that is reviewable by way of habeas corpus. Even if the refusal to transfer constituted a deprivation of liberty, the refusal was lawful and reasonable.

(ii) Decisions of CSC in relation to correctional plans for inmates do not constitute deprivations of liberty and are not reviewable by way of habeas corpus. They are reviewable under the scheme laid down in the CCRA, but by reason of ss. 18 of the Federal Courts Act, 1985, R.S.C., c. F-7, exclusive jurisdiction for judicial review in that respect is vested in the Federal Court.

(iii) Framing the relief sought as a remedy under s. 24(1) of the Charter does not provide an applicant with the means to circumvent s. 18 of the Federal Courts Act. A court that allows a habeas corpus application has broad authority under s. 24(1) of the Charter to grant remedies that would otherwise be within the exclusive preserve of the Federal Court – for example, declaratory relief – but that authority flows from and is not independent of the court’s habeas corpus jurisdiction. In the absence of a finding that the applicant has been unlawfully deprived of liberty and is entitled to a writ of habeas corpus, the Superior Court of Justice is not a court of competent jurisdiction in relation to remedies pertaining to the manner in which the applicant’s sentence is being administered.

(iv) Insofar as the application is based on the prospect that the National Parole Board may deny the applicant statutory release, the application is manifestly premature. Except in cases of an imminent deprivation of liberty, habeas corpus is not available to test the lawfulness of a deprivation that has not yet occurred and that may never occur. Even if the possibility that the National Parole Board might deny statutory release were a deprivation of liberty sufficient to found a habeas corpus application, settled authority strongly suggests that the Superior Court should decline jurisdiction in favor of the Federal Court.

[16] In light of those conclusions, it is unnecessary to consider the merits of the applicant’s submissions in relation to the manner by which CSC developed his correctional plan. The application is dismissed.

B. Discussion

(i) Is habeas corpus available to challenge a refusal to transfer

[17] The fundamental purpose of the writ of habeas corpus is to enable a person deprived of liberty to challenge the lawfulness of the deprivation of liberty. Traditionally, habeas corpus was only available where what was sought was the complete liberty of the subject and not merely an alteration in the manner in which the subject was being detained. In R. v. Miller, 1985 CanLII 22 (SCC), [1985] 2 S.C.R. 613, however, the Supreme Court of Canada adopted a more expansive approach to the availability of the writ. Although an inmate may be lawfully confined to prison pursuant to a valid warrant of committal, the Court held, he or she retains the right not to be unlawfully deprived of the “residual” liberty permitted to the general inmate population. Speaking for the Court, Justice LeDain held that any significant deprivation of that residual liberty brings the inmate within reach of the remedy of habeas corpus:

Confinement in a special handling unit, or in administrative segregation … involves a significant reduction in the residual liberty of the inmate. It is in fact a new detention of the inmate, purporting to rest on its own foundation of legal authority. It is that particular form of detention or deprivation of liberty which is the object of the challenge by habeas corpus. It is release from that form of detention that is sought. …I can see no sound reason in principle, having to do with the nature and role of habeas corpus, why habeas corpus should not be available for that purpose. I do not say that habeas corpus should lie to challenge any and all conditions of confinement in a penitentiary or prison, including the loss of any privilege enjoyed by the general inmate population. But it should lie in my opinion to challenge the validity of a distinct form of confinement or detention in which the actual physical constraint or deprivation of liberty, as distinct from the mere loss of certain privileges, is more restrictive or severe than the normal one in an institution.[^3]

[18] An expanded role for habeas corpus as a mechanism for reviewing the lawfulness of deprivations of the residual liberty of inmates was confirmed in Dumas v. LeClerc Institution, 1986 CanLII 38 (SCC), [1986] 2 S.C.R. 459. In Dumas, both the Quebec Superior Court and the Quebec Court of Appeal had held, prior to the Supreme Court’s decision in Miller, that habeas corpus was not available to challenge correctional decisions where the lawfulness of the warrant of committal was not in issue. Applying Miller, the Supreme Court disagreed. Speaking for the Court, Justice Lamer stated:

[With] respect, the lower courts erred in holding that habeas corpus was available to attack only the initial warrant of committal. Habeas corpus is available to challenge an unlawful deprivation of liberty. In the context of correctional law, there are three different deprivations of liberty: the initial deprivation of liberty, a substantial change in conditions amounting to a further deprivation of liberty, and a continuation of the deprivation of liberty.

[19] In Miller, the deprivation of liberty in issue was of the second kind referred to by Justice Lamer: it was a substantial change in the conditions of imprisonment amounting to a further deprivation of liberty. Other circumstances that may fall within that category include transfer from minimum security to maximum security institutions (May v. Ferndale, 2005 SCC 82, [2005] 3 S.C.R. 809), transfer to segregation (Lena v. Donnacona Prison, [2011] Q.J. No. 437 (C.A.)), and revocations or suspensions of parole (R. v. Graham, [2011] ONCA 138; John v. Canada (National Parole Board), 2011 BCCA 188, leave refused [2011] S.C.C.A. #256).

[20] While habeas corpus is available to review the lawfulness of a revocation or suspension of parole, it is not available to review a refusal to grant parole. In Dumas, the National Parole Board had decided to grant an inmate day parole, but the decision was reviewed and reversed before the inmate was actually released. Justice Lamer noted that the deprivation of liberty complained of was in the third category set out above:

In this case… there was no challenge to the validity of the initial deprivation of liberty. In addition, there was no substantial change in the conditions of detention, because the appellant was never actually released on parole. If the appellant had been released on parole and then reincarcerated pursuant to a decision of the NPB, there would have been a substantial change which could have been challenged by way of habeas corpus. What is being challenged in this case is the continuation of the deprivation of liberty.

[21] Justice Lamer held that the continuation of an initially valid deprivation of liberty can be challenged by way of habeas corpus only if it becomes unlawful and that in the context of parole it will only become unlawful if the inmate has acquired the status of a parolee. Because the decision to grant parole had been rescinded prior to the date on which it was to take effect, the appellant never became a parolee and thus he had no right to the remedy of habeas corpus.

[22] Justice Lamer was careful to point out that he was not suggesting that Mr. Dumas did not have a right to a review of the lawfulness of the reversal of the decision to grant him parole. His point was simply that habeas corpus was not the mechanism for exercising that right:

This does not mean that a detainee is left without recourse in an appropriate case. Indeed, this does not mean that the NPB had jurisdiction to review its earlier decision or that it could do so in a way that may have infringed the rules of natural justice or the appellant's rights under s. 7 or s. 9 of the Charter. These issues are not before the Court on an application for habeas corpus, but could be raised on an application under s. 18 of the Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10, or s. 24(1) of the Charter.[^4] [emphasis added]

[23] Perhaps mindful of Dumas, the applicant has been clear that he is not seeking a review of the lawfulness of the decision to refuse him full parole. As I understood it, his position is that whether or not Dumas remains good law insofar as parole is concerned, a denial of statutory release is reviewable by way of habeas corpus. He further submits that he is entitled to challenge the lawfulness of a denial of statutory release even before a denial occurs. For both of those propositions he relies on the decision of the Supreme Court of Canada in R. v. Cunningham, 1993 CanLII 139 (SCC), [1993] 2 S.C.R. 143.

[24] In Cunningham, the appellant was serving a 12-year sentence. Under the provisions of the Parole Act in force at the time he was sentenced, he was entitled to be released on mandatory supervision (the predecessor to statutory release) after serving two-thirds of his sentence, provided he was of good behaviour. Prior to reaching his mandatory supervision date, the Parole Act was amended and “gating” was introduced. “Gating” allowed CSC to apply to the National Parole Board for an order denying release on mandatory supervision. Shortly before his release date, the appellant received notice that CSC was making such an application. After a hearing, the National Parole Board granted the application. The Ontario Supreme Court held that habeas corpus was not available to review the gating decision. That determination was affirmed by the Ontario Court of Appeal.

[25] The Supreme Court of Canada disagreed. The Court was alive to its holding in Dumas that a refusal to grant parole could not be challenged on a habeas corpus application but it rejected the argument that this foreclosed a habeas corpus application to review the denial of Mr. Cunningham’s release on mandatory supervision. Speaking for the Court, McLachlin J. stated, at paragraphs 13-15:

[The] appellant was sentenced to twelve years and was required under his warrant of committal, both before and after the amendment of the Parole Act, to serve that sentence in its entirety. Thus the duration of the restriction of his liberty interest has not been affected. As Lamer J. held for the Court in Dumas, supra, at p. 464: "In the context of parole, the continued detention of an inmate will only become unlawful if he has acquired the status of a parolee." The appellant had never acquired parolee status, and his sentence, contrary to his counsel's submissions, has not been increased. However the manner in which he may serve a part of that sentence, the second liberty interest identified by Lamer J. in Dumas, supra, has been affected. One has "more" liberty, or a better quality of liberty, when one is serving time on mandatory supervision than when one is serving time in prison. The appellant had a high expectation, contingent on his good behaviour, that he would be released on mandatory supervision on April 8, 1989, had the Parole Act not been amended; indeed, he would automatically have been released on mandatory supervision given his good behaviour. The effect of the 1986 amendment of the Parole Act was to reduce that expectation of liberty, in the sense that it curtailed the probability of his release on mandatory supervision… As the British Columbia Court of Appeal put it in Re Ross and Warden of Kent Institution (1987), 1987 CanLII 163 (BC CA), 34 C.C.C. (3d) 452, at p. 454: "The effect of the 1986 amendments ... is to alter the right of an inmate to serve a portion of his sentence on mandatory supervision by qualifying that right." I conclude that the appellant has suffered deprivation of liberty. [emphasis added]

[26] As I have said, the applicant submits that Cunningham is authority for the proposition that an anticipatory habeas corpus application can be brought to challenge a decision to deny statutory release that has not yet been made. I will address that submission later in these reasons. The applicant also submits that Cunningham supports a distinction, for habeas corpus purposes, between refusals of parole and denials of statutory release. I disagree.

[27] The deprivation of liberty in Cunningham flowed from amendments to the Parole Act that introduced the prospect of ‘gating’ after the appellant had been sentenced. That is, at the time of the appellant’s committal to prison, he had “a high expectation” that with good behaviour he would be released after serving two-thirds of his sentence. The amendments trenched significantly on that high expectation of liberty. As I read the Court’s reasons, this was the foundation for the right to review the gating decision by way of habeas corpus. In the present case, the applicant has always been aware that he could be ‘gated’ after serving two-thirds of his sentence. The law governing statutory release is the same today as it was when he was sentenced. There has been no alteration in his expectation of liberty. He cannot argue, if he is denied statutory release, that he has been deprived of the high expectation of liberty that the appellant in Cunningham had, because he has always been aware that it is open to CSC to apply to the National Parole Board to deny him that liberty.

[28] However, even if this analysis is incorrect, and even if Cunningham does stand for the proposition that the lawfulness of a denial of statutory release can be challenged by way of habeas corpus, Cunningham offers no support for the applicant’s submission that habeas corpus lies to review a refusal to transfer a prisoner to a less secure institution. If there is a distinction, for habeas corpus purposes, between denials of parole and denials of statutory release, the distinction would appear to be that inmates eligible for parole have a lesser expectation of liberty than do inmates eligible for statutory release. Presumably, this is because the former will only be released if a determination is made that they should be released whereas the latter will only be detained if a determination is made that they should be detained.

[29] The decision to refuse the applicant’s request for a transfer to minimum security is more akin to a refusal of parole than to a denial of statutory release. From the time he left the Millhaven Assessment Unit, the applicant has been continuously classified as a medium security risk and he has been continuously housed in a medium security institution. Had he been transferred to a facility with a higher level of security, the impact of the transfer on his residual liberty could have given rise to a habeas corpus application, but that is not this case. In the circumstances here, only the third category of the expanded definition of deprivation of liberty could apply, namely the continuation of a deprivation. A decision as to whether to transfer an inmate to an institution with less security and correspondingly more liberty, however, seems to me to be of the same character as a decision as to whether parole should be granted. As with parole, an inmate may have the right to be considered for transfer but the decision to grant that request is discretionary and the structure of the CCRA does not create an expectation that it will be granted. In that respect, a prisoner who requests a transfer to a lower level of security is unlike a prisoner awaiting statutory release. The case that ought to guide the decision as to whether habeas corpus is available to challenge the refusal to transfer is Dumas, not Cunningham. On the basis of Dumas, habeas corpus is not available.[^5]

[30] In any event, even if habeas corpus does lie to review a refusal to transfer a prisoner to an institution like Beaver Creek, the refusal to transfer the applicant was both lawful and reasonable. The applicant does not challenge the right of CSC to make determinations with respect to the security classification of inmates and to determine whether inmates should be placed in minimum, medium or maximum security institutions.[^6] Nor does he challenge the lawfulness or reasonableness of s. 18 of the CCRA Regulations, SOR/92-620, which provides that an inmate “shall be classified as…medium security where the inmate is assessed by the Service as presenting a low to moderate probability of escape and a low to moderate risk to the safety of the public in the event of escape.” CSC takes the position that medium security inmates are not eligible for transfer to minimum security facilities. That position is manifestly reasonable and I do not understand the applicant to challenge it. His position, rather, is that he should not be classified as a medium security inmate.

[31] The applicant made extensive submissions attacking the process by which that classification occurred. It is unnecessary to set out those submissions in detail. When his security risk was initially assessed, in January 2010, the applicant was classified as a medium-security inmate with a low escape risk. At that time, however, he had not been ordered deported. On May 28, 2010, a deportation order was made, and the applicant’s appeal against that order was subsequently dismissed. Laura McKillen, the Acting Manager for Assessment and Intervention at the Bath Institution, and a senior parole officer, explained the effect of the deportation order at paragraphs 32 and 33 of her affidavit:

[The applicant] obtained a rating of “Moderate” escape risk because he is under a deportation order… Given his unwillingness to be deported to Romania and his indications of wanting to remain with his family in Canada, the CSC assessed him as...a moderate escape risk. This factor alone would prevent [him] from being placed in a minimum security institution, where there are no fences or barriers.

[32] Under cross-examination, Ms. McKillen explained that the fact that the applicant is challenging his deportation order makes him a moderate escape risk, because “at a minimum security, there is no fences, there’s no barriers, there’s no nothing, so if an offender doesn’t want to be returned back to their home country, then it’s quite – it’s very easy for an offender to walk away from a minimum security institution…” She added: “[He] was very adamant, and his family lives in Toronto, so his escape risk increases when he is being told he has to go back to his country even though his family will remain in the Toronto area”.

[33] Under re-examination, the following exchange occurred:

Q. Is the fact that Mr. Moldovan is facing a deportation order and that he has been adamant about not returning to Romania enough to retain him at a moderate escape risk, in and of itself?

A. Yes, it is.

Q. And is that enough to maintain him as a medium security offender?

A. Yes. Without – without having low, low, low, low institutional adjustment, low escape risk and low public safety, if he even has one moderate level of any one of those elements, he’s automatically deemed a medium security offender.

[34] Regardless of any other complaint that the applicant may have in relation to how his security classification was determined, the uncontradicted evidence is that he is ineligible for placement in minimum security because he is the subject of a valid deportation order to a country to which he has made it clear he does not want to return. In the circumstances the determination that he presents as a moderate flight risk was reasonable, and the classification of him as medium-security was lawful.

(ii) Is habeas corpus available to challenge the applicant’s correctional plan?

[35] The essence of the applicant’s complaint with respect to the manner in which he has been treated by CSC concerns the correctional plan that has been put in place for him. What he is seeking is to have this court change the plan to eliminate sexual offender programming and to replace it with programming of his choosing. Whether or not there is merit to his complaints about the process by which programming decisions were made in his case, habeas corpus is not the mechanism by which those complaints can be addressed and resolved.

[36] As discussed above, habeas corpus is a remedy for unlawful deprivations of liberty. While liberty in the correctional context has an expanded definition, not every decision made by CSC or the National Parole Board with which an inmate disagrees constitutes a deprivation of liberty. No doubt, the content of a correctional plan can indirectly lead to a deprivation of liberty, in that a failure to fulfill the plan can be a factor that persuades the Board that the inmate should be denied conditional release either by way of parole or statutory release. In Dumas, supra, however, the Supreme Court of Canada held that a refusal to grant parole did not constitute a deprivation of liberty giving rise to a right to habeas corpus, and it would be passing strange, in that light, that being required to comply with a correctional plan would give rise to review by way of habeas corpus simply because it could lead to a denial of parole.

[37] The issue of whether habeas corpus can be employed to challenge a correctional plan has been considered in a number of recent cases. In Lord v. Coulter, [2007] B.C.J. No. 2598 (S.C.), affirmed [2009] B.C.J. No. 486 (C.A.), a prisoner serving a life sentence for murder brought an application for habeas corpus, mandamus and certiorari to challenge the way that his sentence was being administered. Among other complaints, he claimed that he had been improperly screened out of programs that might have assisted him in gaining parole. He sought to have his correctional plan changed. With respect to that question, the application judge stated, at paragraphs 60-63:

Generally, the courts decline to micro-manage the day-to-day running of prisons, including the programming and treatment available to federal inmates. However, in the event that the applicant was properly able to document and structure an application to the court that he be permitted to take certain programs to facilitate his rehabilitation, or be exempt from such courses based on his personal skills or unique circumstances, the court with jurisdiction to hear such matters is the Federal Court of Canada.

While issues of sentence management and programming for the applicant may well influence how the National Parole Board views an application by him for parole, errors or unfairness in those regards pertain to his liberty interests via the parole process, and as such are not properly within the jurisdiction of this Court on an application for habeas corpus.

Similarly, if the matters of sentence management and programming for a particular inmate could be shown to be justiciable, and to be contrary to the duty to act fairly or the Canadian Charter of Rights and Freedoms, to my mind they relate to the remedies of certiorari and mandamus in relation to the CSC and its running of federal institutions. Thus, such matters would fall squarely within the jurisdiction of the Federal Court of Canada, and not this Court. For these reasons I find that the applicant is not entitled to any of the relief sought in relation to the alleged mismanagement of his sentence by the staff of the CSC or the alleged errors in relation to decisions taken by them as to what programs he ought to take or be entitled to take to facilitate his eventual release on parole.

[38] The determination of the application judge that habeas corpus was not available to review the manner in which the applicant’s sentence was being administered was affirmed by the British Columbia Court of Appeal.

[39] In Skulsh v. Katz, 2102 BCSC 350, the applicant brought a habeas corpus application to challenge a refusal to transfer him from a maximum security facility to a medium security facility. He also sought a declaration that he had not been provided with proper programming and an order “pursuant to s. 24(1) of the Charter and the general writ of habeas corpus” that he be provided with an appropriate correctional plan. For reasons that need not be canvassed here, the transfer issue became moot. In the application judge’s opinion, the basis for granting the other relief disappeared at that point. In her view, that is, habeas corpus was not available to challenge the content of the applicant’s correctional plan.

(iii) Framing the application under [s. 24(1)](https://www.canlii.org/en/ca/laws/stat/schedule-b-to-the-canada-act-1982-uk-1982-c-11/latest/schedule-b-to-the-canada-act-1982-uk-1982-c-11.html) of the [Charter](https://www.canlii.org/en/ca/laws/stat/schedule-b-to-the-canada-act-1982-uk-1982-c-11/latest/schedule-b-to-the-canada-act-1982-uk-1982-c-11.html)

[40] As Justice Lamer observed in Dumas, supra, the fact that habeas corpus is not available to rectify an improper decision in relation to the administration of an inmate’s sentence does not mean that the inmate is without a remedy. The inmate is entitled to bring an application for judicial review. Such an application, however, cannot be brought in the provincial superior courts. While the superior courts unquestionably have jurisdiction to hear habeas corpus applications brought by prisoners claiming to be unlawfully deprived of liberty by federal bodies, s. 18 of the Federal Courts Act provides that the Federal Court “has exclusive original jurisdiction to issue an injunction, writ of certiorari, writ of prohibition, writ of mandamus or writ of quo warranto, or grant declaratory relief, against any federal board, commission or other tribunal …” Accordingly, applications for judicial review of administrative decisions of bodies such as CSC or the National Parole Board that fall outside of the habeas corpus jurisdiction of provincial superior courts must be brought in the Federal Court.

[41] I accept that where an unlawful deprivation of liberty is found on a habeas corpus application, a provincial superior court has wide discretion in its selection of remedies. It may, for example, grant declaratory relief pursuant to s. 24(1) of the Charter notwithstanding s. 18 of the Federal Courts Act: see, for example, R. v. Gamble, 1988 CanLII 15 (SCC), [1988] 2 S.C.R. 595, at paragraph 81. However, the authority to make those kinds of ancillary orders is inextricably linked to the finding of an unlawful deprivation on a habeas corpus application. It is that finding that gives the court jurisdiction over the subject matter of the complaint and makes the court a court of competent jurisdiction for the purpose of s. 24(1) of the Charter. In the absence of that finding, jurisdiction over the subject matter rests with the Federal Court.

[42] It is quite true that a provincial superior court is always a court of competent jurisdiction for the purposes of s. 24(1) of the Charter, but the sense in which that is true must be borne in mind. Where the superior court would not have jurisdiction over the subject matter apart from the Charter, it is a court of competent jurisdiction only where there is no other court with jurisdiction to grant a remedy. With respect to federal correctional matters, there is another court with jurisdiction, namely the Federal Court. Accordingly, except while exercising its habeas corpus jurisdiction, a provincial superior court is not a court of competent jurisdiction in relation to violations of the Charter alleged by federal inmates. To put it another way, a federal inmate does not have a free-standing right to a judicial review of CSC or NPB decisions in the provincial superior courts simply because he or she alleges that those bodies have infringed his rights under the Charter in the course of administering his sentence.

[43] The relevant principles were recently reviewed in Skulsh v. Katz, supra. As I indicated above, the Mr. Skulsh brought a habeas corpus application to challenge a refusal to transfer him from a maximum security facility to a medium security facility. He also sought a declaration that he had not been provided with proper programming and an order pursuant to s. 24(1) of the Charter that CSC provide him with an appropriate correctional plan. The transfer issue became moot before the application was decided. The issue that remained was whether the other relief could be granted pursuant to s. 24(1) of the Charter. In the course of her discussion of the issue, Justice Smith stated:

[Tzeachten First Nation v. Canada (Attorney General), 2007 BCCA 133, [2007] B.C.J. No. 385 (C.A.)] supports the proposition that where the applicant claims that an administrative action by a federal board, commission or other tribunal fails to comply with the Charter, and seeks relief such as quashing the order, injunctive or declaratory relief, the matter is within the exclusive jurisdiction of the Federal Court. These cases are to be distinguished from those where the validity or applicability of federal legislation is challenged on Charter grounds, in which case the Federal Court and the B.C. Supreme Court exercise concurrent jurisdiction.

Mr. Skulsh does not challenge the constitutional validity or applicability of the statute under which [CSC] acted.… His application is solely directed at the actions of the prison administrators under otherwise constitutionally valid provisions. If Mr. Skulsh did not invoke habeas corpus but simply claimed that various acts in the administration of his sentence had infringed his Charter rights, the appropriate proceeding would be an application for declaratory and injunctive relief. Section 18 of the Federal Courts Act grants the Federal Court exclusive jurisdiction to hear actions for and issue declaratory and injunctive relief concerning the actions of federal boards or tribunals. This is the case even when those remedies are sought under s. 24(1) of the Charter. The jurisdiction to grant appropriate remedies for Charter breaches is afforded to "a court of competent jurisdiction"… [In] order for a court to be one of competent jurisdiction, it must have jurisdiction over the person, jurisdiction over the subject matter and jurisdiction to grant the remedies sought independent of the Charter… The only exception is that superior courts must step in to fill a remedial vacuum if there is no other court of competent jurisdiction to grant the right to a remedy conferred by s. 24(1) …Because of s. 18 of the Federal Courts Act, the provincial superior courts do not have jurisdiction to issue declaratory, mandatory or injunctive relief for breach of Charter rights by an administrative board or tribunal. Nor does s. 24(1) confer that jurisdiction on the provincial superior courts.[^7]

[44] Justice Smith noted that “the basis for jurisdiction of this court over this proceeding is the application for habeas corpus.” Because the application for habeas corpus had become moot, Justice Smith concluded that the superior court had no jurisdiction to deal with the ancillary Charter issues, and the application was dismissed.

[45] I agree with Justice Smith’s analysis and consider it directly applicable to the case at bar. The basis for jurisdiction of the Ontario Superior Court over the subject matter of this proceeding is the application for habeas corpus. In the absence of a finding that the applicant is entitled to a remedy on that application – that is, in the absence of a finding that an unlawful deprivation of liberty has occurred – this court has no jurisdiction over the complaints of Charter breaches. The court of competent jurisdiction to grant a remedy for those breaches is the Federal Court. Framing the request for relief as a s. 24(1) application does not enable the applicant to circumvent s. 18 of the Federal Courts Act.

(iv) Is habeas corpus available in anticipation of a denial of statutory release?

[46] In the course of oral argument, counsel for the applicant explicitly stated that he was not seeking to review the denial of parole by the National Parole Board or the affirmation of that denial by the Appeal Division. In light of the decision of the Supreme Court of Canada in Dumas, the applicant’s position is understandable. The applicant argues, however, that insofar as the availability of habeas corpus is concerned there is a distinction between a denial of parole and a denial of statutory release. He argues that the lawfulness of the latter be reviewed by way of habeas corpus, and that it can be reviewed not only before a denial comes into effect but before a decision to deny is even made.

[47] To succeed in that argument, the applicant must have the court accept three propositions: (a) decisions of the National Parole Board denying statutory release are reviewable by way of habeas corpus; (b) they are reviewable even before they are made; and (c) the provincial superior courts are the proper forum in which to conduct the review. I do not accept any of those propositions.

(a) are denials of statutory release reviewable by way of habeas corpus?

[48] The applicant relies on the decision of the Supreme Court of Canada in R. v. Cunningham, supra in support of his position that there is a distinction for habeas corpus purposes between refusals of parole and denials of statutory release. Earlier in these reasons, I explained why I do not agree that Cunningham supports that position.[^8]

(b) is the application premature?

[49] Even if Cunningham can be read as establishing that habeas corpus is available to challenge an unlawful denial of statutory release, I do not accept that it establishes that it is available not only before an inmate is eligible for statutory release but before the National Parole Board has had an opportunity to consider whether to deny release.

[50] There is nothing in the reasons of the Supreme Court in Cunningham that suggests that the application for habeas corpus was brought prior to Mr. Cunningham’s mandatory supervision date – what evidence there is supports a contrary inference – but in any event it is clear that the application was not brought until after the National Parole Board made its decision to refuse release. If Cunningham is to be resorted to for support for an anticipatory application for habeas corpus, it must be because of something else in the Supreme Court’s reasons that suggests that such an application can be brought. In my view, there nothing of that kind there.

[51] In holding that the applicant in Cunningham could bring a habeas corpus application, Justice McLachlin focused on the impact that the introduction of ‘gating’ had on the expectation of liberty that the applicant had at the time he was sentenced. At that time, the applicant had “a high expectation, contingent on his good behaviour” that he would be automatically released when he reached his mandatory supervision date. The amendments to the Parole Act reduced that expectation of liberty ex post facto. In those circumstances, the Court was satisfied that the applicant had suffered a deprivation of liberty reviewable by way of habeas corpus.

[52] In the case at bar, the applicant appears to have fastened on the concept of an “expectation of liberty” in arguing that he is entitled to bring a habeas corpus application to challenge a decision of the National Parole Board that has not yet been made. In my view, the applicant misreads Cunningham. The expectation that Mr. Cunningham had at the time he was sentenced was that, with good behavior, he would be automatically released when he reached his mandatory supervision date. In that sense, he was unlike the applicant in Dumas, who had no expectation of being automatically released on his full parole date. At the time when the habeas corpus application was brought, Mr. Cunningham’s expectation of liberty had crystallized, but he was nonetheless being detained in prison. Habeas corpus was available to challenge that deprivation of liberty, but I can find nothing in the Court’s reasons that suggests that habeas corpus can be a mechanism for dealing in advance with deprivations of liberty that an applicant merely expects may happen.

[53] I acknowledge that if habeas corpus does lie to challenge the lawfulness of a denial of statutory release, an inmate would not necessarily have to wait until his or her statutory release date before bringing the application. The prospect of an imminent deprivation of liberty may be sufficient to permit a habeas corpus application to be brought.

[54] For example, in Idziak v. Ontario (Minister of Justice), [1989] O.J. No. 1423 (H.C.J.), the applicant was in custody on the basis of the order made at the conclusion of his extradition hearing committing him to custody to await surrender to the United States. Challenges to the committal order had been previously litigated and the lawfulness of the committal order was no longer in dispute. At the conclusion of that earlier litigation, the Minister of Justice had made an order authorizing the applicant’s surrender, but the surrender order had not yet been executed. Doherty J. rejected the submission that the application for habeas corpus was premature. He stated:

Although Mr. Idziak is presently confined under the valid warrant issued by the extradition judge… I do not regard this application as premature for that reason…. Mr. Idziak is in a very real sense under the power of the Minister in that his continued detention is subject directly to execution of the Minister's order. He is detained pending that order. I presume, and there was no suggestion to the contrary, that these proceedings aside, the Minister has every intention of exerting that control by executing his order forthwith. Once the order is executed, Mr. Idziak will be both in the custody of, and under the power of, the Minister. The pendency of the execution of the order placed in the context of the statutory regime created by The Extradition Act necessitates the conclusion that Mr. Idziak is presently detained in part, at least, because of the Minister's order. He is also about to fall into the Minister's custody. Imminent custody can be challenged by habeas corpus…

[55] Justice Doherty’s determination that habeas corpus was available was affirmed by the Court of Appeal. A further appeal to the Supreme Court of Canada was dismissed: 1992 CanLII 51 (SCC), [1992] 3 S.C.R. 631. Writing for the Court, at pages 649-650, Justice Cory stated: “To be subject to the issuance of a warrant of surrender which will result in a loss of residual liberty when it is executed as a future date is certainly a sufficient basis to support an application for a writ of habeas corpus.”

[56] Idziak was applied by the Ontario Court of Appeal in Beaudry v. Canada, [1997] O.J. No. 5082. In that case, inmates who had been ordered transferred from the Prison for Women to the Regional Treatment Centre in Kingston Penitentiary challenged the transfer order by way of habeas corpus even though the transfer had not yet occurred. The Court of Appeal stated:

Applying the rationale of the decisions of the Supreme Court of Canada in Miller v. The Queen, 1985 CanLII 22 (SCC), [1985] 2 S.C.R. 613, Gamble v. The Queen, 1988 CanLII 15 (SCC), [1988] 2 S.C.R. 595, and Idziak v. Canada (Minister of Justice), 1992 CanLII 51 (SCC), [1992] 3 S.C.R. 631, we are of the opinion that the judge below did not err in holding that the applicants…are entitled to seek relief by way of habeas corpus even though they are not yet in the Regional Treatment Centre.

[57] Idziak was also applied by the British Columbia Court of Appeal in Hickey v. Kent Institution, [2003] B.C.J. No. 61 in holding that an inmate who was serving a life sentence in British Columbia could bring a habeas corpus application to challenge an order transferring him to the Special Handling Unit at a prison in Quebec “where transfer under such an order… is imminent”. [^9]

[58] Those cases might have been of some assistance to the applicant had an order been made by the National Parole Board denying him statutory release, but no such order has been made. Indeed, as of the date on which this application was argued, there had not even been an application by CSC for such an order. There is nothing in the cases I have mentioned that suggests that habeas corpus lies to challenge a discretionary decision prior to the exercise of the discretion.

[59] Even if the concept of imminent custody could be stretched to include the possibility that the Board will deny statutory release, habeas corpus would nonetheless be premature. Pursuant to s. 129 of the CCRA, CSC must begin the process of applying for a denial of statutory release six months before the statutory release date. As of the time when this application was argued, CSC had not done so. Even if they had, it would be premature to assume that they will pursue the application. The applicant’s position with respect to participation in programming may change. After all, while he was always opposed to sex offender programming, he was initially agreeable to the Deniers Program. He may once again change his mind and agree to participate. In any event, whether or not CSC applies to deny him statutory release, the decision rests exclusively with the Board, not CSC, and the Board may reject the request. Finally, even if the applicant is denied statutory release, the reasons for that decision are not yet known. There could be a multitude of reasons, any one of which would render the decision lawful. There is no basis for pre-empting the statutory jurisdiction of the National Parole Board to consider and decide the question.

(c) assuming habeas corpus lies, should jurisdiction be declined?

[60] There is no question that this court has jurisdiction to entertain a habeas corpus application brought by a federal prisoner alleging an unlawful restriction of his or her liberty. The question is whether the jurisdiction should be declined in favour of the review process set forth in the CCRA, which ultimately leads to judicial review in the Federal Court.

[61] The question arose in R. v. Graham, 2011 ONCA 138, in the context of parole. In that case the applicant was released on day parole, but shortly thereafter his parole was suspended by his parole supervisor. The CCRA provides a procedure for the review of such suspensions by the National Parole Board, but before the Board could hold a review the applicant brought an application for habeas corpus in the Superior Court. The application judge declined to hear the application because he concluded that the CCRA provided “a complete, comprehensive and expert procedure” for review of the National Parole Board’s administrative decisions.

[62] Shortly after the application judge’s decision, the National Parole Board affirmed the suspension and revoked the applicant’s parole. The Appeal Division of the Board affirmed that decision. The applicant then appealed to the Ontario Court of Appeal from the dismissal of his habeas corpus application, seeking to have the Court of Appeal quash the suspension of his parole.

[63] Writing for the Court of Appeal, Blair J.A. stated, at paragraphs 7 and 10:

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… 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.

[64] Justice Blair reviewed the procedures set out in the CCRA for a suspension of parole, for a review of the suspension by the National Parole Board, and for an appeal of the Board’s decision to the Appeal Division of the Board. He pointed out that “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”.[^10] He also note that “the decision of the Appeal Division is subject to judicial review in the Federal Court.” He concluded:

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.[^11]

[65] In the case at bar, the applicant asserted that Graham is inconsistent with May v. Ferndale and that it was wrongly decided. Subsequent to the hearing of this application, the same argument was made to the Court of Appeal: Chaudhary v. Warden of Frontenac Institution, 2012 ONCA 313. In rejecting the argument, the Court observed that Graham “is consistent with contemporary decisions of several other appellate courts in Canada.”[^12] That assessment was clearly accurate. Prior to the decision in Graham, the courts of appeal of British Columbia, Alberta, and Saskatchewan had already held that the CCRA provides a complete code for the review of administrative decisions in relation to parole. Further, the British Columbia and Saskatchewan courts had come to that conclusion after reviewing May v. Ferndale. So too had the Nova Scotia Court of Appeal in L.R.F. v. Canada, [2008] N.S.J. No. 252, at paragraph 15. Subsequent to the decision in Graham, the British Columbia Court of Appeal has twice affirmed its agreement with Graham on this point: see John v. Canada (National Parole Board), supra, at paragraph 34; Woodhouse v. Canada (Correctional Service), supra, at paragraph 14. Further, the Quebec Court of Appeal has come to the same conclusion, and it has done so in the very context in which the applicant here seeks to invoke habeas corpus, namely a denial of statutory release: Lena v. Donnacona Prison, [2011] Q.J. No. 437.

[66] The position taken by the Ontario Court of Appeal in Graham, in other words, is also the position of five other provincial courts of appeal. No provincial court of appeal has taken a different position.

[67] It is true that with the exception of Lena v. Donnacona Prison, all of the courts of appeal that have considered the issue have done so in the context of parole, not statutory release. As was recognized in Lena v. Donnacona Prison, however, the reasoning from the parole cases applies equally to those involving statutory release. Section 107(1) of the CCRA provides that the National Parole Board “has exclusive jurisdiction and absolute discretion” in relation to the decision to grant or cancel parole, to deny statutory release, to terminate or revoke parole or statutory release, or to cancel a suspension, termination or revocation of parole or statutory release. The CCRA sets out in some detail the procedures to be followed by the Board in making its decisions as to whether to grant parole or to deny statutory release. Importantly, s. 135 of the CCRA creates a single procedure to be followed in relation to the suspension of both forms of conditional release. In both situation, the matter must be brought before the Board (unless the suspension is cancelled earlier) and the Board must determine if the parole or statutory release should be terminated or revoked. Further, all other decision of the Board in relation to parole or statutory release are subject to the same process of appeal to the Appeal Division, and all of the Appeal Division’s decisions are subject to further review in the Federal Court.

[68] Earlier in these reasons I explained why I do not understand the decision of the Supreme Court of Canada in Cunningham to be authority for distinguishing between a denial of parole and a denial of statutory release for habeas corpus purposes. However, even if Cunningham supports such a distinction, the result would only be to put a denial of statutory release into the same category as, for example, a suspension of parole. That is, it would make a denial of statutory release a decision involving a deprivation of liberty. As such, it would fall within the habeas corpus jurisdiction of the Superior Court, but in view of the complete code for the review of that deprivation of liberty provided by the CCRA, the jurisdiction to review by way of habeas corpus should be declined.

C. Disposition

[69] For the foregoing reasons, the application is dismissed.

MacDonnell, J.

Released: June 14, 2012

[^1]: See paragraphs 19 and 22-24 of the applicant‘s affidavit, Application Record, vol. 1, Tab 2

[^2]: Notice of Application, page 10.

[^3]: At paragraph 36

[^4]: At paragraph 14

[^5]: I acknowledge that in Skulsh v. Katz, 2012 BCSC 350, one of the issues raised by the applicant was the refusal of CSC to transfer him from a medium-security institution to a minimum-security institution, and that in her well-reasoned judgment Smith J. did not reject the availability of habeas corpus to challenge that refusal. However, in the end Justice Smith did not have to determine the question because the application had become moot.

[^6]: See ss. 28 and 30 of the CCRA

[^7]: At paragraphs 71-80

[^8]: At paragraphs 26-27, supra

[^9]: At paragraph 48. The correctness of Hickey was questioned by the Supreme Court of Canada in May v. Ferndale, but not on this point.

[^10]: At paragraph15

[^11]: At paragraph 16

[^12]: At paragraph 8