COURT FILE NO.: CR-18-102-00 MO
DATE: 2019 June 17
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
SEAN JOHNSTON
Applicant
– and –
ATTORNEY GENERAL OF CANADA
Respondent
J. Todd Sloan, for the Applicant
Elsa Michel, for the Respondent
HEARD at Kingston: May 23, 2019
Tranmer, J.
decision on application for habeas corpus
[1] Mr. Johnston is a first time offender serving 3 life - no parole for 25 years - sentences, which commenced in October 1993. He is incarcerated at Joyceville penitentiary, minimum security.
[2] By decision dated February 19, 2018, the Parole Board of Canada (“PBC”) authorized 3 unescorted temporary absence passes of 72 hours duration each, one for an administrative purpose and 2 personal development purposes.
[3] The first 2 unescorted temporary absence passes were completed without incident or issue.
[4] Following completion of these 2 passes, a community assessment team reviewed Mr. Johnston’s case on September 19, 2018. The decision reached is set out in the CSC community assessment form dated October 3, 2018. The decision was that support for Mr. Johnston’s admission to the halfway house on future release was withdrawn. The decision stated that the offender could not be accommodated at the residence due to resident dynamics. Based on the offender’s response to the issue, the community assessment team withdrew its support moving forward, anticipating an eventual change in dynamics, and encouraged the offender to develop a new release plan elsewhere. It recommended that the offender develop a release plan to an alternate destination.
[5] The CSC A4D dated November 19, 2018 noted that it was recommended that the third UTA be cancelled while the offender and CSC develop a suitable release plan.
[6] By decision dated December 12, 2018, the PBC cancelled Mr. Johnston’s third UTA to the Peterborough residence. Its decision stated, “the Board has no authority to compel Peterborough Parole to maintain support or the CRF to accommodate you. Without a release plan in place you no longer meet the statutory criteria for UTA authorization”.
Relief Sought
[7] Mr. Johnston seeks an order from this Court granting the writ of habeas corpus with certiorari in aid requiring the applicant be provided the third UTA that had been granted by the PBC.
Position of the Applicant
[8] Mr. Johnston submits that having been granted the entitlement to 3 UTAs, but then denied the third one, he has suffered a deprivation of liberty and therefore, he has the right to a hearing as to whether the respondent can satisfy the court that the decision to cancel his third UTA was a lawful one.
Position of the Respondent
[9] The AG Canada responds firstly, that the jurisdiction of this court in habeas corpus is ousted as a result of the existence of a complete and comprehensive code for the applicant to pursue as provided for in the CCRA, and, secondly, that there has been no deprivation of liberty so as to satisfy the first requirement on an application for habeas corpus.
Corrections and Conditional Release Act, SC 1992, c. 20
[10] The relevant sections of the CCRA are as follows:
Jurisdiction of Board
107 (1) … the Board has exclusive jurisdiction and absolute discretion
(a) to grant parole to an offender;
(b) to terminate or to revoke the parole …
(e) to authorize or to cancel a decision to authorize the unescorted temporary absence of an offender who is serving, in a penitentiary,
(i) a life sentence imposed as a minimum punishment or commuted from a sentence of death,
Unescorted Temporary Absence
Cancellation of absence
115 (10) The Board, the Commissioner or the institutional head, whichever authorized a particular unescorted temporary absence of an offender, may cancel that absence, either before or after its commencement,
(b) where the grounds for granting the absence have changed or no longer exist; or
(c) after a review of the offender’s case based on information that could not reasonably have been provided when the absence was authorized.
Effect of Parole, Statutory Release or Unescorted Temporary Absence
Continuation of sentence
128 (1) An offender who is released on parole, statutory release or unescorted temporary absence continues, while entitled to be at large, to serve the sentence until its expiration according to law.
Freedom to be at large
(2) Except to the extent required by the conditions of any day parole, an offender who is released on parole, statutory release or unescorted temporary absence is entitled, subject to this Part, to remain at large in accordance with the conditions of the parole, statutory release or unescorted temporary absence and is not liable to be returned to custody by reason of the sentence unless the parole, statutory release or unescorted temporary absence is suspended, cancelled, terminated or revoked.
Appeal to Appeal Division
Right of appeal
147 (1) An offender may appeal a decision of the Board to the Appeal Division on the ground that the Board, in making its decision,
(a) failed to observe a principle of fundamental justice;
(b) made an error of law;
(c) breached or failed to apply a policy adopted pursuant to subsection 151(2);
(d) based its decision on erroneous or incomplete information; or
(e) acted without jurisdiction or beyond its jurisdiction, or failed to exercise its jurisdiction.
Decision on appeal
(4) The Appeal Division, on the completion of a review of a decision appealed from, 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
(d) reverse, cancel or vary the decision.
Analysis
[11] The applicant relies on the decision in Dumas v. Leclerc Institute, 1986 CanLII 38 (SCC), [1986] 2 SCR 459 as authority for his position.
[12] With respect however, I find that that decision leads to a different result than that advanced by the applicant in this case.
[13] In my view, Mr. Johnston is in a similar position to that of the applicant in Dumas. In that case, the National Parole Board had granted day parole that was to take effect as soon as the appropriate arrangements could be made with the CRC. In effect, release on day parole was conditional on acceptance by the CRC. Before those appropriate arrangements were made, the applicant was accused of offenses and the NPB annulled the grant of parole. The court held that the applicant never became a parolee because the conditions were never fulfilled. The NPB cancelled day parole before the condition was fulfilled. The applicant never became a parolee.
[14] This is the same situation that Mr. Johnston was in with respect to the third UTA. He was not released on this third UTA because the condition of acceptance into the planned residence (the CRF in Peterborough), was withdrawn or not fulfilled. In Mr. Johnston’s case, the Parole Board of Canada decision, Tab D Respondent’s Record, granting the 3 UTAs was based on “You plan to connect with Indigenous resources and start preparing your plan for day parole while residing at the CRF. You have CRF support…”… “Your CMT and the Elder support your release on UTAs… The consensus from the clinician, your CMT, the community assessment team and the CRF is that you have successfully completed ETAs and the next logical step for you to reintegrate into society is by participating in UTAs… ”.
[15] The Community Assessment, Tab E Respondent’s Record, makes it clear that with respect to the third UTA “At this juncture, the offender cannot be accommodated at the CRF due to resident dynamics. Based on the offender’s response to the issue, members of CAT are withdrawing their support moving forward, anticipating an eventual change in dynamics, and encourage the offender to develop a new release plan elsewhere… The offender has been supported by Edmison CRF and CAT on prior occasions, however given recent developments as outlined above, support is now being withdrawn and it is recommended that the offender develop a release plan to an alternate destination”.
[16] The A4D, Tab F Respondent’s Record, states that “he no longer enjoys the support of the Peterborough community and therefore no longer has a structured plan in place to manage the (3rd UTA) as authorized. As such, the third UTA can no longer be supported by the CMT… The CMT recommends that the last 72 hour personal development UTA to Peterborough be cancelled while the offender and CSC develop a suitable release plan”.
[17] The Parole Board of Canada Decision, Tab G Respondent’s Record, cancels the third UTA, before Mr. Johnston was released on it, stating “it has no authority to compel Peterborough parole to maintain support or the CRF to accommodate you. Without a release plan in place, you no longer meet the statutory criteria for UTA authorization”.
[18] Mr. Johnston is in the same situation as was Mr. Dumas:
Now to deal with Dumas. The NPB made a decision to grant him day parole, but the terms used are not precise and there is some uncertainty as to whether his day parole was simply delayed until appropriate arrangements could be made or whether it was conditional on his acceptance by the Centre. However, the NPB subsequently delayed and later reversed this decision before the term arrived or the prerequisite condition was fulfilled. It is clear that the appellant never became a parolee, and he thus has no right to a habeas corpus. (page 465).
[19] For the same reasons, Mr. Johnston has no right to a habeas corpus.
[20] In addition, Mr. Johnston’s application must be dismissed on the authority of Latham v. R., 2009 SKCA 26 and Graham v. R., 2011 ONCA 138.
[21] These appellate decisions hold that the CCRA has put in place a complete, comprehensive and expert procedure for review of an administrative decision concerning parole and UTAs. Section 107 of the CCRA gives the PBC exclusive jurisdiction and absolute discretion to authorize or to cancel a decision to authorize the unescorted temporary absence of an offender. Accordingly, these cases hold that the Superior Court should decline to exercise its habeas corpus jurisdiction in cases such as Mr. Johnston’s.
[22] In Graham, the Court of Appeal noted that the PBC’s decision is subject to an appeal to the Appeal Division pursuant to section 147 of the CCRA. “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”. (para. 15).
[23] At para. 16, the Court states: “This, in my view, is a 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”.
[24] It is to be noted that Mr. Johnston has not appealed the decision of the PBC concerning his third UTA and there is no evidence that he has taken the steps to develop a “new release plan elsewhere” as was recommended.
Decision
[25] For these reasons, this application is dismissed.
Honourable Justice Gary W. Tranmer
Released: June 17, 2019
COURT FILE NO.: CR-18-102-00 MO
DATE: 2019 June 17
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
SEAN JOHNSTON
Applicant
– and –
ATTORNEY GENERAL OF CANADA
Respondent
habeas corpus dECISION
Tranmer J.
Released: June 17, 2019