Court File and Parties

COURT FILE NO.: CR-24-17-MO DATE: 2024-04-15 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: JOHN STONE – and – THE ATTORNEY GENERAL OF CANADA

Counsel: M. Barnes, for the Applicant A. Thirukesan, for the Respondent

HEARD: April 12, 2024

Reasons for Decision

J.E. MILLS J.

Overview

1The Applicant, Mr. Stone, seeks a writ of habeas corpus in respect of the decision by the Correctional Service of Canada (“CSC”) to suspend his day parole and return him to custody. Mr. Stone alleges the decision to suspend his day parole violated the principles of fundamental justice as the process was undertaken without procedural fairness. By ruling dated February 29, 2024, the Parole Board of Canada upheld the CSC decision to suspend Mr. Stone’s day parole.

Jurisdiction

2Jurisdiction to hear a habeas corpus application in this matter is a threshold issue. There is no question the Superior Court of Justice has the jurisdiction to hear such applications, and that the relief is available to incarcerated persons. [1] The question is whether jurisdiction ought to be declined in deference to the adjudicative process provided by the Corrections and Conditional Release Act (“CCRA”) , [2] or whether jurisdiction ought to be exercised by this Court as Mr. Stone’s personal situation constitutes an exceptional circumstance warranting intervention.

3The Supreme Court of Canada has directed that provincial superior courts should not exercise jurisdiction where Parliament has established a complete, comprehensive, and expert statutory scheme which provides for a review at least as broad and no less advantageous as that available by way of habeas corpus – the “ Peiroo exception”. [3] “A provincial superior court should decline to exercise its habeas corpus jurisdiction where the application is, in essence, a challenge to the exercise of a statutory power granted under a federal statute to a federally appointed tribunal.” [4] The Peiroo exception must be respected by provincial superior courts in all but exceptional circumstances.

4The Parole Board of Canada (“PBC”) is the body empowered by Parliament to review decisions taken by the CSC in respect of conditional release. This Court and the Ontario Court of Appeal have consistently recognized the PBC provides a competent, comprehensive, and expert procedure for review in accordance with its mandate under Part II of the CCRA . [5] While awaiting a hearing of this habeas corpus application, Mr. Stone participated in a review by the PBC of the decision to suspend his day parole. After a hearing, a two-member panel of the PBC revoked Mr. Stone’s day parole and denied full parole. It is unknown whether Mr. Stone has availed himself of the statutory appeal process.

Exceptional Circumstances

5Mr. Stone suffers with Type 1 diabetes and is insulin dependent. His evidence is that while incarcerated, his glucose levels are consistently elevated beyond medically acceptable levels and that he has been hospitalized at least twice as a result. He states that he is regularly deprived of his insulin, and he does not have access to a proper low-glycemic index diet, suitable for diabetics. He claims to be experiencing neuropathy in his hands and feet. Mr. Stone submits that the harmful consequences to his health related to his ongoing incarceration creates exceptional circumstances to take this matter outside of the Peiroo exception and to give this Court jurisdiction to hear his habeas corpus application.

6With great respect to Mr. Stone and the medical challenges he faces while incarcerated, I do not agree that the concerns he has raised give rise to exceptional circumstances to permit this Court to take jurisdiction in this matter. The review and appeal process established by Parliament under the CCRA is a competent, comprehensive, and expert procedure for review and offers relief as broad as that which is available on this application. Mr. Stone must seek his relief and exhaust his remedies with the PBC and then, if appropriate, seek judicial review by the Federal Court.

7Mr. Stone has not established that the treatment he receives for his medical condition and the negative consequences suffered while incarcerated gives rise to exceptional circumstances warranting this Court to take jurisdiction. To accept this argument would set a very dangerous precedent and would significantly diminish the exalted status in law the writ of habeas corpus is afforded, [6] and it would undermine the statutory authority of the PBC, a body with expertise in adjudicating conditional release matters. It would open the door for all inmates with medical conditions to initiate habeas corpus applications to claim exceptional circumstances warranting a challenge to their ongoing incarceration outside of the statutory regime for review. This cannot be the intention of the Supreme Court of Canada when it conceded there may be exceptional circumstances to permit provincial superior courts to exercise jurisdiction where the Peiroo exception would otherwise apply to a habeas corpus application.

8It is apparent from his affidavit evidence that Mr. Stone is displeased with the treatment he has received by his parole officer and the PBC. He is dissatisfied with the decision to suspend his day parole and the process taken to reach that decision. He disagrees with the finding he was in breach of his parole conditions. He calls into question the conduct of his parole officer and he appears to believe the PBC failed to do an adequate job of questioning his parole officer at the suspension review hearing. He accuses the board members of being disinterested, and of ignoring evidence that favoured Mr. Stone’s position. He disagrees with the decision rendered by the PBC to revoke his day parole and to deny pre-release full parole.

9This application is clearly a collateral attack on the PBC process. In his unsworn Reply affidavit (but relied upon at the hearing of this application), Mr. Stone reveals his true intentions when he states at paragraph 31 “The so called expert procedure of the parole board and the parole officers is called into question in my experience”.

10Mr. Stone appears to have lost confidence in the adjudicative process provided by the PBC and therefore he seeks intervention by this Court. There are no exceptional circumstances warranting a habeas corpus hearing. Mr. Stone must avail himself of the statutory review process provided by the CCRA .

Conclusion

11The application for habeas corpus is dismissed.

Costs

12The Attorney General seeks costs of this application. They shall have seven days to serve and file written submissions limited to two double-spaced pages together with a Bill of Costs. Mr. Stone shall have seven days thereafter to serve and file responding materials, subject to the same page limitation. There shall be no right of reply.

Released: April 15, 2024 J.E. Mills J.

Citations

[1] May v. Ferndale Institution, 2005 SCC 82, at paras. 22 and 72 [2] Corrections and Conditional Release Act, S.C. 1992, c. 20 [3] May v. Ferndale Institution, supra. at paras. 40, 44 and 50 [4] Ibid., at para. 49 [5] Elguindy v. The Warden of Warkworth Institution, 2011 ONSC 4670; R. v. Graham, 2011 ONCA 138; Chaudhary v. Canada (Correctional Services of Canada), 2012 ONCA 313; Little v. Canada (Attorney General), 2022 ONCA 457 [6] Brewer v. Her Majesty The Queen, 2020 NSSC 308 at para. 3