



COURT OF APPEAL FOR BRITISH COLUMBIA




Citation:



Woodhouse v. Canada (Correctional Service),









2012 BCCA 45




Date: 20120125

Docket: CA038246

Between:

John Woodhouse

Respondent

(Petitioner)

And

The Warden,
William Head Institution, a Penitentiary
operated by the Correctional Service of Canada

Appellant

(Respondent)




Before:



The Honourable Mr. Justice Lowry





The Honourable Madam Justice Neilson





The Honourable Mr. Justice Groberman




On appeal from: Supreme
Court of British Columbia, May 27, 2010
(
Woodhouse v. Canada (Correctional Service)
, 2010 BCSC 754,
Victoria Registry 09-2543

Oral Reasons for Judgment




Counsel for the Appellant:



B. Sokhansanj and
  L.M.C. Bell





Counsel for the Respondent:



M. Redgwell





Place and Date of Hearing:



Vancouver, British
  Columbia

January 25, 2012





Place and Date of Judgment:



Vancouver, British
  Columbia

January 25, 2012








[1]

LOWRY J.A.
: These appeals arise out of
habeas corpus
proceedings in the Supreme Court of British Columbia which led to two orders
being made for reasons indexed as 2010 BCSC 754 and 2010 BCSC 1897. The
proceedings were initiated by Allan Woodhouse, who commenced serving a life
sentence for murder in 1974. He was an inmate at William Head Institution. He
was granted full parole in 1990. It was twice suspended in 2009. The first of
the two orders granted Woodhouse
habeas corpus
relief in respect of his
parole for the first suspension; the second granted him leave to amend his
petition to seek relief in respect of the second suspension. The Warden
appeals.

[2]

Woodhouses parole was suspended in March 2009 after he appeared to have
breached the terms of his parole by consuming alcohol. He was taken into
custody. His case was referred to the National Parole Board (the Board)
within the 30-day period required by s. 135(3)(b) of the
Corrections and
Conditional Release Act
, S.C. 1992, c. 20. On June 4, 2009, the Board
revoked his parole.

[3]

Woodhouse challenged the Boards decision in two ways: he commenced the
habeas
corpus
proceeding in the Supreme Court and he appealed the decision to the
Appeal Division of the Board. The hearing of his petition in the Supreme Court
began before Mr. Justice Walker in September 2009 but was adjourned. Before the
hearing was concluded, the Appeal Division of the Board allowed his appeal and
ordered a new hearing before a new panel of the Board. The new hearing took
place in November 2009. The Board cancelled the suspension of parole and released
Woodhouse on full parole. He had been in custody for seven months.

[4]

Within a few days, still in November 2009, Woodhouses parole was again
suspended for reasons similar to the initial suspension. The suspension was,
however, cancelled soon after by his parole officers supervisor. He has since
then remained on full parole.

[5]

The hearing of the petition in the Supreme Court nonetheless continued.
Judgment was rendered in May 2010. The judges reasons run to almost 100 pages.

[6]

As a preliminary issue, the judge was required to decide whether it was
appropriate for a provincial superior court to exercise its
habeas corpus
jurisdiction. In this regard, he assessed whether the provisions of the
Act
provide for a complete, comprehensive and expert procedure for the
administration and review of decisions made by parole officers to suspend
parole. He did so because, in
May v. Ferndale Institution
, 2005 SCC 82,
[2005] 3 S.C.R. 809 at para. 44, the Supreme Court of Canada directed
provincial superior courts to decline to exercise
habeas corpus
jurisdiction where there is in place a complete, comprehensive and expert
procedure for review of an administrative decision.

[7]

The judge concluded the
Act
did not provide a complete and
comprehensive procedure because an offenders parole can be suspended for a
considerable period of time while the parole officers supervisor, the Board,
and the Appeal Division deal with the matter. He pointed to the fact that
Woodhouse remained in custody for seven months before the suspension of his
parole was cancelled. He expressed the view that the statutory procedure was
less advantageous than the availability of the
habeas corpus
remedy in
provincial superior courts.

[8]

The judge then decided that it was appropriate to address the merits of
the petition even though Woodhouse being on full parole rendered the issue of
whether he was entitled to
habeas corpus
relief moot. I do not consider
it necessary to outline the judges reasoning in this regard.

[9]

Although the petition had been restricted to the first suspension of
parole, arguments were also made with respect to the second suspension. The
judge said it was necessary there be an amendment to the petition in order to
deal with the latter suspension and, on further application made in November
2010, the judge granted leave for the amendments to be made.

[10]

The Warden raises four grounds of appeal. I consider it necessary to
address only the first:  the judge erred in deciding to exercise the courts
habeas
corpus
jurisdiction.

[11]

There have been several appellate court decisions on the issue of
whether the provisions of the
Act
contain a complete, comprehensive,
expert procedure for the review of decisions to suspend parole. This Court,
among others, has determined they do:
John v. Canada (National Parole Board)
,
2011 BCCA 188, 270 C.C.C. (3d) 355, leave to appeal refused, [2011] S.C.C.A.
No. 256. In
John
, after quoting from the Saskatchewan Court of Appeals
decision in
R. v.

Latham
, 2009 SKCA 26, 244 C.C.C. (3d) 196, and
the Ontario Court of Appeals decision in
R. v. Graham
, 2011 ONCA 138,
268 C.C.C. (3d) 517, in this regard, I said:

[21]      In addition to
Latham
and
Graham
, the conclusion that the
CCRA
[
Corrections and
Conditional Release Act
, S.C. 1992, c. 20] provides a complete,
comprehensive and expert procedure for the review of NPB [National Parole
Board] decisions is also to be found in the decisions of the Quebec Court of
Appeal in
Lena v. Donnacona Prison
, 2011 QCCA 140; the Saskatchewan
Court of Appeal in
R. v. Ross
, 2009 SKCA 24 (heard and released with
Latham
);
the Nova Scotia Court of Appeal in
L.R.F. v. Canada (National Parole Board)
,
2008 NSCA 56; as well as the decision of the Ontario Superior Court of Justice
in
Elguindy v. Canada (Attorney General)
, 2010 ONSC 1757. Before
May
was decided, the exercise of
habeas corpus
jurisdiction was declined,
because of the nature of the NPB procedure in place, by the Alberta Court of
Appeal in
Armaly v. Canada (Parole Service)
, 2001 ABCA 280, 299 A.R.
188, and by the Ontario Superior Court of Justice in
McGrayne v. Canada
(Attorney General)
, [2002] O.T.C. 191, where
Armaly
was followed.

[12]

I addressed the concern about the time the administrative process can
take as follows:

[42]      This is not to say that
incarceration without timely judicial intervention where warranted is not
always a concern. It is important to keep in mind, however, that, similar to a
detainee in the immigration context, an inmate such as the appellant whose full
parole has been suspended is not simply incarcerated and his liberty denied for
many months. He is engaged in a legislated procedure of review, the purpose of
which is to determine whether the suspension is justified. It consists of an
interview, shortly after the suspension, with the parole officer involved,
followed by a mandatory review by the NPB which is designed to ensure the
suspension is promptly quashed if it is not justified. Thereafter, if it is not
quashed and the inmate has the legislated grounds, there may be an appeal to
the Appeal Division and beyond that an application for judicial review in the
Federal Court. An appeal or judicial review may then lead to a further NPB
review. 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.

[13]

In
Graham
, the appellant relied on the decision that is the
subject of this appeal. The judges reasoning was articulated and specifically
rejected (paras. 11-12). The provisions of the
Act
were said to
constitute the very type of statutory regime envisioned in the
habeas
corpus
exception articulated in
May v. Ferndale Institution
 (para.
16).

[14]

The contention now is that the legislated regime is not complete and
comprehensive with respect to a suspension by a parole officer. This is said to
be so because the review is limited to the considerations set out in s.
135(5)(a) of the
Act.
This contention was addressed directly in
Graham
as follows:

[13]      With respect to a suspension of parole, the statutory
scheme works as follows. A person designated by name or by position, by the
Chairperson of the Board or by the Commissioner may, by warrant, suspend the
parole, authorize the apprehension of the offender, and authorize the
recommitment of the offender until the suspension is cancelled, the parole is
revoked or the sentence has expired: s. 135(1). A parole officer supervisor is
such a person:
Commissioners Directive No. 718: Designation of Persons With
Authority for Suspension Under s. 135 of the Corrections and Conditional
Release Act
, s. 10, June 16, 2008 (available at http://www.csc-scc.gc.ca/text/plcy/cdshtm/
718-cd-eng.shtml. Section 107(1) grants the NPB exclusive jurisdiction and
absolute discretion to grant, terminate or revoke parole, or to cancel a
suspension, termination or revocation of parole. Where the offender is
recommitted, the parole officer supervisor must forthwith review the offenders
case and either cancel the suspension or refer the matter to the NPB for review
within a tight statutorily defined time frame (within 14 days if the offender
is serving a sentence of less than two years; within 30 days in any other
case): s. 135(3). The NPB must then review the case (the Board, for review
purposes) and, within the 90-day period prescribed by the regulations, either
cancel the suspension or terminate or revoke the parole: s. 135(4) and
(5).

[14]      During this review
process, where the offender is serving a sentence of two years or more - as the
appellant is - the Board will take into account the offenders conduct since
his or her release, including whether the possibility of re-offending will pose
an undue risk to society: s. 135(5). The process, then, is not simply
point-in-time. It involves more than a review of whether the parole officer
supervisors decision betrays an error of law or is otherwise wrong on its
merits. But s. 135 is not to be read so narrowly as to preclude the Board from
considering those factors, for - as the application judge noted - the decision
of the parole officer supervisor is itself a part of the process transpiring
since the offenders release. The Board will undoubtedly take into account the
substantive reasons for suspending parole as part of the overall review.

I respectfully endorse what was said there.

[15]

Here, the judge erred when he concluded the provisions of the
Act
do not constitute a complete, comprehensive and expert procedure for the review
of parole decisions. The judge should have declined jurisdiction and should not
have granted Mr. Woodhouse leave to amend his petition.

[16]

I would allow the appeals, set aside the orders the judge made and
dismiss the petition.

[17]

NEILSON J.A.
: I agree.

[18]

GROBERMAN J.A.
: I agree

[19]

LOWRY J.A.
: There will be an order accordingly.

The Honourable Mr. Justice Lowry


