Court File and Parties

COURT FILE NO.: CR-18-0006-MO DATE: 20180821

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

Attorney General of Canada, Respondent – and – Shawn Samuel, Applicant

Counsel: Stewart Phillips and Ani Mamikon, for the Respondent J. Todd Sloan, for the Applicant

HEARD: June 27, 2018

REASONS FOR DECISION

VALLEE J.:

Nature of the Application

[1] Mr. Samuel brings this application for habeas corpus with certiorari in aid. He alleges that he attended a disciplinary meeting while on day parole. At that meeting, he was detained. The outcome of that meeting was to suspend his day parole. This affected his liberty because he was returned to incarceration. He alleges that when he was detained at the meeting, he ought to have been advised of his s. 10 Charter rights, which he was not. He ought to have been given a meaningful opportunity to consult with counsel. He seeks an order that he be returned to day parole and that the decisions of the Parole Board and the Appeal Division of the Parole Board be overturned.

Background

[2] Mr. Samuel was granted day parole in April 2016. His parole officer was Erich Farrell. His conditions of release required him, among other things, to report to a halfway house where he would reside under the supervision of a case worker, Mr. Belleville. Mr. Samuel met with Parole Officer Farrell for the first time for a supervision interview on December 21, 2016 [1]. The purpose of the meeting was to ensure that Mr. Samuel complied with the conditions of his release. At that meeting, PO Farrell reviewed with the applicant one of his conditions, which was that he was not to associate with a person that he knew or had some reason to believe was involved in criminal activity.

[3] On January 25, 2017, Mr. Belleville learned that Mr. Samuel was going out and was intending to meet someone. He requested the identity of the person. Mr. Samuel refused to disclose it. According to his handwritten note of the interaction, Mr. Belleville explained to Mr. Samuel the possible consequences of ignoring his release conditions. Mr. Belleville then sent an email to PO Farrell to explain his concerns. PO Farrell made a decision to schedule a disciplinary interview based on this and some other concerns that he had.

[4] The interview proceeded on January 26, 2017. Lindsay Maahs, a Parole Officer Supervisor, Mr. Belleville, PO Farrell and Mr. Samuel were present. After the interview, POS Maahs, PO Farrell and Mr. Belleville decided that Mr. Samuel’s risk was no longer manageable. POS Maahs issued a warrant of apprehension and suspension of Mr. Samuel’s day parole.

[5] On April 20, 2017, the Parole Board of Canada revoked Mr. Samuel’s day parole. Mr. Samuel appealed this decision to the Parole Board Appeal Division. On September 11, 2017, the Appeal Division denied the appeal and affirmed the Parole Board’s decision. Mr. Samuel has not made an application to the Federal Court for judicial review.

Jurisdiction

[6] Although this is Mr. Samuel’s application, the Crown has raised a jurisdictional issue which I will address first.

The Crown’s Position

[7] The Crown states that Mr. Samuel’s application for habeas corpus at this time is a collateral attack on the decision of the Parole Board. He essentially wants the decision to be overturned. This application should have been brought at the same time when the Parole Board revoked Mr. Samuel’s day parole. Instead of doing that, he appealed the decision of the Parole Board.

[8] The Crown argues that this court should exercise its discretion and decline jurisdiction in this matter. The Crown states that while the Superior Court of Justice has jurisdiction to decide habeas corpus applications, it also has discretion to decline jurisdiction. The Crown states that the Corrections and Conditional Release Act, S.C. 1992, c. 20 (CCRA) provides a complete, comprehensive and expert process to deal with parole matters. The Crown states that pursuant to section 107(1) of the CCRA, the Parole Board has exclusive jurisdiction and absolute discretion to do the following:

(a) terminate or revoke the parole or statutory release of an offender, whether or not the offender is in custody under warrant of apprehension issued as a result of the suspension of the parole or statutory release; and,

(b) cancel a decision to grant parole to an offender or cancel the suspension, termination or revocation of the parole or statutory release of an offender. [2]

[9] The Crown outlined the process: A disciplinary interview/administrative meeting is held. If a decision is made to suspend parole then, pursuant to section 135(c), the Parole Officer Supervisor properly refers the matter to the Parole Board. The Parole Board conducts a hearing. If the decision to suspend is upheld and the Board revokes the parole, the applicant may appeal to the Appeal Division of the Parole Board which makes its decision based on materials and a transcript of the Parole Board’s hearing. If the Appeal Decision upholds the Parole Board’s decision, a further application may be made to the Federal Court for judicial review.

[10] The Crown states that while this court has jurisdiction to hear habeas corpus applications, in May v. Ferndale Institution, 2005 SCC 82, [2005] 3 SCR 809, para 44, the Supreme Court of Canada carved out two exceptions. It stated 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. A provincial superior court should decline to exercise its jurisdiction in two limited circumstances. The second applies here, being “where there is in place a complete, comprehensive and expert procedure for review of an administrative decision.” [3]

[11] The Crown also relies on R. v. Graham, 2011 ONCA 138, in which an offender was granted day parole. He was suspended for failure to comply with conditions, similar to the case at hand. In a 2010 habeas corpus application, Mr. Graham argued that the CCRA procedure would take too long, given the nature of his sentence. Justice would be denied. The application judge declined to exercise jurisdiction. (see R. v. Graham 2010 CarswellOnt 10727 ONSC) He stated in para 20 that he had not “seen any jurisprudence which states what the guidelines are, how much time should elapse [and] what would be fair or unfair” as set out in R. v. Askov, [1990] S.C.R. 1199.” He determined that the CCRA constituted a complete, comprehensive and expert procedure for review of the Parole Board’s administrative decision.

[12] In Graham, the Court of Appeal stated in paragraph 13 that the Parole Board has exclusive jurisdiction and absolute discretion to grant, terminate or revoke parole, or to cancel a suspension, termination or revocation of parole. Section 147 of the CCRA provides that the Appeal Division may (a) affirm the decision, (b) affirm the decision but order a further review of the case by the Board on a date earlier than the date otherwise provided for the next review, (c) order a new review of the case by the Board and order the continuation of the decision pending the review or reverse, cancel or (d) vary the decision.

[13] In para 15, the court stated 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. Finally, the decision of the Appeal Division is subject to judicial review in the Federal Court.”

[14] In para 16 and 19 the court stated,

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. …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.

[15] The Crown also relies on John v. Canada (National Parole Board), 2011 BCCA 188, a case with facts similar to those in Graham. In John, the offender also stated, among other things, that an application to the Federal Court for judicial review would take too long to be heard. In para 32, the court noted that in each of Graham, Latham and L.R.F., the Federal Court recognized that recourse to judicial review was “specifically recognized to be an integral part of the legislative scheme governing the review of the suspension and revocation of parole.” In para 35, it further stated, “With the oversight of the Federal Court, which affords relief no less advantageous than habeas corpus, the procedure is consistent with the aspects of the immigration scheme to which the majority in May attached significance. As such, it is a complete, comprehensive and expert procedure.”

[16] Furthermore, in para 42, the court stated,

The procedure, like most of its kind, can, given the demand on resources, be expected to take some considerable time. But that of itself cannot mean it is to be short-circuited, so to speak, by affording the inmate the option of seeking habeas corpus relief in a provincial superior court at any time during the administrative process, or, as the appellant contends, once that process is completed.

[17] The court considered the fact that the appellant had made no effort to seek judicial review in Federal Court. In para 43, it stated,

In Graham, the Ontario Court of Appeal endorsed the view expressed in Elguindy that there may be exceptional circumstances where a legislated procedure, complete and comprehensive on its face, is so ineffective as to warrant the exercise of habeas corpus jurisdiction. I accept such circumstances might arise if an inmate sought judicial review in the Federal Court but, despite reasonable effort on his part, was unable to have his application heard in a timely manner. But that is not this case. The appellant made no effort to seek judicial review in the Federal Court at all.

[18] The court dismissed the application for reasons similar to those set out in Graham.

[19] In Khela v. Mission Institution, 2014 SCC 24, the offender’s application for habeas corpus was granted by the British Columbia Supreme Court. The offender alleged that in making a transfer decision, the Warden had not disclosed to Mr. Khela all of the information that she considered. This resulted in procedural unfairness. The court agreed and stated that the statutory disclosure requirements had not been met. The Institution appealed. The British Columbia Court of Appeal upheld the application judge’s decision stating that an offender could choose either to bring a habeas corpus application to have the decision reviewed for reasonableness or challenge the reasonableness of the decision by applying for judicial review before the Federal Court. On appeal, in para 42, the court stated, “…the appellants have offered no argument to suggest that the transfer and review process of CSC has, since May, become “a complete, comprehensive and expert procedure””. The appeal was dismissed.

[20] In R. v. Latham, [2016] SKCA 14 [4], the offender brought an application for habeas corpus while the Parole Board’s review was pending. In para 5, the court stated that, “where there is a complete, comprehensive and expert procedure for the review of an administrative decision, a provincial court should decline to exercise its habeas corpus jurisdiction.” It also noted that “the Supreme Court has since confirmed this principle in Khela v. Mission Institution, 2014 SCC 24 at para 42, [2014] 1 SCR.

Mr. Samuel’s Position

[21] Mr. Samuel states that there is an important distinction between whether an entity or tribunal is considered to have a complete and comprehensive scheme and whether that entity is granted exclusive jurisdiction. In Pringle v. Fraser, [1972] S.C.R. 821, a 1972 decision, the court considered the provincial court’s jurisdiction to entertain certiorari proceedings to quash a deportation order made under the Immigration Act in contrast to the jurisdiction of the Immigration Appeal Board pursuant to what was then the new Immigration Appeal Board Act. The court held that the new Act provided sole and exclusive jurisdiction to the Board [5].

[22] Mr. Samuel states that the jurisdiction of the Parole Board is not exclusive in this matter. The Parole Board does not have jurisdiction to suspend parole [6]. Section 135(1) provides that a designated person, an Officer of Corrections Canada, may suspend parole, authorize apprehension of an offender and recommit to custody. This can result in a person’s detention and incarceration without any intervention or investigation for up to 90 days before the matter is heard and reviewed by the Parole Board. Mr. Samuel states that there was no intention for the Parole Board to have exclusive jurisdiction for this reason.

[23] Several weeks after this application was heard, on consent of the Crown, the appellant filed an additional factum in reply [7]. He also filed an affidavit which was not invited. No exhibits were attached. In his affidavit, Mr. Samuel states that he did not bring a habeas corpus application earlier because opinions were provided to Legal Aid stating that such an application would be premature [8].

[24] The Crown states that the court should give little weight to this affidavit which is improperly provided in reply.

[25] Mr. Samuel states that the leading cases in the post-revocation context appear to be G.(D.) v. Bowden Institution, 2016 ABCA 77, Ewanchuk v. Canada (Parole Board), 2017 ABCA 145 and Perron v. Tremblay, 2017 QCCA 1407.

[26] In G.(D.), the court held that once a Parole Board Appeal Division (PBAD) decision has been taken, habeas corpus should not be declined, considering the paramount importance of the remedy at common law. The Parole Board revoked G.D.’s parole. The PBAD upheld the decision. GD did not make an application to the Federal Court. He made an application for habeas corpus. The application judge exercised her jurisdiction to hear the application. She concluded that the May exception did not come into play as a reason for declining to hear the habeas corpus application proper. (see par 52) The Institution appealed. The Alberta Court of Appeal held that judicial review conducted by the Federal Court of Appeal was not equivalent to a habeas corpus application for the following reasons:

(a) the applicant continues to bear the onus of proof before the Federal Court;

(b) judicial review could be refused for discretionary reasons;

(c) there is no evidence to suggest that the Federal Court has similar experience to provincial superior courts;

(d) the Federal Court is comparatively inaccessible to an inmate and it is slow; and,

(e) on a habeas corpus application the burden of proof favours the applicant.

(see paras 39 and 40)

[27] The court further held that the application judge correctly concluded that the process for judicial review by the Federal Court is not a complete, comprehensive or expert procedure to that of an application for habeas corpus. (see para 53)

[28] In Ewanchuk, decided after G.(D.), Mr. Ewanchuk was convicted of a sexual offence involving a child. He was found to be a long term offender. He brought a habeas corpus application challenging the Parole Board’s 2015 decision to continue his detention beyond the statutory release date. The effect of the Parole Board’s decision was that he would serve every actual day of the sentence imposed. His position was that he had been denied procedural fairness by the Board because it failed to disclose material information about his assessment as high risk to reoffend sexually against children, among other things [9].

[29] In Ewanchuk, Graesser J. of the Court of Queen’s Bench, was satisfied that an appeal to the PBAD constituted “a complete, comprehensive and expert procedure for review of Parole Board decisions as discussed in cases such as Khela and May v. Canada” (see para 18). Graesser J. held that since Mr. Ewanchuk was not entitled to release from prison, there was no loss of residual liberty. Mr. Ewanchuk had been afforded reasonable procedural fairness.

[30] The Alberta Court of Appeal noted that, “the appeal process would appear to cover issues of evidence and procedure in a manner that exceeds that of a Superior Court under the rubric of habeas corpus”. (see para 17) The court was satisfied that “Graesser J. did not abridge any right of the appellant to adjudicative fairness, fundamental justice or natural justice either in his handling of the matter before him or in his decision.” (see para 26). The appeal was dismissed.

[31] In Perron, a 2017 decision of the QCCA, the applicant argued that there was delay in the CCRA procedure. The court held that the application judge correctly declined to exercise habeas corpus jurisdiction because “la partie II de la Loie prévoit un méchanisme d’examen complet exhaustif et spécialisé des décisions de la CLCC”. (see para 18) Furthermore, the court stated, “L’appelant ne démontre pas davantage que le juge a erré en retenant que les délais inhérents à un appel à la Section d’appel de la CLCC ne constituaient pas une circonstance exceptionelle justificant de décliner compétence.” (see para 19)

[32] In Massé v. Canada (Attorney General), 2017 FC 604, the court commented on its jurisdiction to consider the constitutionality of legislative provisions and its ability to order remedies regarding Charter breaches. At para 94, the court stated,

…where the offender has chosen to apply for a writ of habeas corpus, he may also apply to a provincial superior court for a ruling on the constitutionality of the legislative provisions at issue (Cunningham v. Canada, [1993] 2 SCR 143 [Cunningham]). Following the same logic, the Federal Court will be able to do the same when the offender chooses to apply for judicial review of an action of the Service [Correctional Service of Canada] or a final decision of the Board [Parole Board of Canada].

[33] At para 110, the court held that in the event of a Charter violation, the “Federal Court also has jurisdiction to order appropriate remedies with regard to the review of the lawfulness of any decision made by the government or a federal board” pursuant to s. 24(1) of the Charter.

Analysis

[34] As illustrated above, appeal courts view the jurisdiction issue differently.

[35] Khela (2014) was decided subsequent to Graham (2011). The court stated that an offender could choose between a habeas corpus application or judicial review in the Federal Court but noted that there was no evidence that the transfer process was a complete, comprehensive expert procedure.

[36] In G.D. (2016), the court stated that even where the PBAD has made a decision, a court should not decline to exercise its habeas corpus jurisdiction. This is because judicial review is not equivalent to a habeas corpus application for various reasons.

[37] In Graham (2011), John (2011), Latham (2016), Perron (2017) and Ewanchuk (2017), courts found that the CCRA contained a complete and comprehensive expert process so decisions to decline habeas corpus jurisdiction were correct. In fact, in Ewanchuk, the court stated that the Parole Board appeal process was more comprehensive than a habeas corpus application and that the appeal process would appear to cover issues of evidence and procedure in a manner that exceeds that of a Superior Court under the rubric of habeas corpus.

[38] I find that the review scheme set out in Part II of the CCRA, which includes an application for judicial review to the Federal Court, is a complete and comprehensive expert procedure. Judicial review has “specifically been recognized to be an integral part of the legislative scheme governing the review of the suspension and revocation of parole.” (see John para 32) Accordingly, this matter falls within the carved out exception in May. I am bound by Graham, which also concerned suspension of day parole for failure to comply with conditions. The court declined to exercise jurisdiction for reasons noted above. Graham has been followed in at least four Court of Appeal decisions in other provinces. As noted in Massé, the Federal Court can address the issues raised by Mr. Samuel including his alleged s.10 Charter right violation and order an appropriate remedy.

[39] I note that exceptional circumstances might arise if there is evidence that an applicant has been unable to have a judicial review application heard in a timely manner. This is not an issue here. Mr. Samuel did not seek judicial review in the Federal Court.

Conclusion

[40] For the reasons set out above, in my discretion, I decline to exercise habeas corpus jurisdiction. The application is dismissed.

Costs

[41] If the Crown seeks costs in this matter, the parties shall agree to a schedule for filing submissions and advise the court. Submissions shall be a maximum of 3 pages of text, exclusive of attachments. They shall be filed through the Barrie Trial Coordinator to the attention of my assistant, Jennifer Beattie.

Madam Justice M.E. Vallee

Released: August 21, 2018

Footnotes

[1] After his supervision was transferred from the Guelph Parole Office to the Ottawa Parole Office.

[2] This list is not exhaustive.

[3] Habeas corpus was granted in May because it concerned a grievance procedure in which prison authorities reviewed other prison authorities’ decisions. The court held that there was no independent review.

[4] Leave to appeal dismissed, [2016] SCCA No 14.

[5] With respect to the making of an order of deportation or application for admission to Canada. “… certiorari jurisdiction over deportation orders was therefore no longer exercisable”. (see paras 8 and 10)

[6] The Parole Board revoked Mr. Samuel’s parole after the Parole Officer Supervisor, a designated person, suspended his parole.

[7] During the hearing, prior to making reply submissions, counsel for the appellant requested additional time to carry out further research on the jurisdiction issue and to file further materials. On the consent of the Crown, his request was granted.

[8] These opinion letters were provided loose. There was no explanation as to why they were not made exhibits to the affidavit.

[9] It seems that there was an issue regarding whether Mr. Ewanchuk had been served with the documents and whether a signature was his own.