



COURT OF APPEAL FOR ONTARIO

CITATION:

Chaudhary v. Canada
    (Correctional Services of Canada),
2012 ONCA 313

DATE: 20120511

DOCKET: C54342

Cronk, Juriansz and Epstein JJ.A.

BETWEEN

Anees Chaudhary

Applicant (Appellant)

and

Warden of Frontenac Institution

Respondent (Respondent)

Allan Manson, for the appellant

Brian Harvey and Abigail Martinez, for the respondent

Heard and released orally: May 8, 2012

On appeal from the order of Justice John McMunagle of the
    Superior Court of Justice dated August 5, 2011, with reasons reported at 2011
    ONSC 4627.

ENDORSEMENT

[1]

The appellant appeals the application judges dismissal of his
habeas
    corpus
application. The application judge declined to exercise jurisdiction
    in favour of a judicial review application before the Federal Court.

[2]

The appellant was convicted of murder in 1988 and sentenced to
    life imprisonment with no parole for 14 years. He was granted full parole in
    1998, subject to certain conditions.  His parole was suspended on November 17,
    2009 by a parole supervisor with the Correctional Service of Canada.  On
    February 9, 2010, the National Parole Board (NPB) conducted a review of the
    suspension, holding in part that the appellant had failed to provide full
    financial disclosure to his parole officer and was unwilling to follow the
    conditions of his release.  The NPB revoked his parole. This decision was
    subsequently upheld by the Appeal Division of the NPB.

[3]

We have been advised that since June 2, 2011, the appellant has
    been on day parole.

[4]

The appellant brought a
habeas corpus
application in
    Superior Court.  This application was dismissed by McMunagle J. on August 5,
    2011, on jurisdictional grounds.

[5]

As the application judge observed, both parties agreed that the
    controlling authority in this matter is
May v. Ferndale
, 2005 SCC 82,
    [2005] 3 S.C.R. 809.  There, the court held that the Superior Court should
    exercise its
habeas corpus
jurisdiction except in limited
    circumstances. These circumstances include where there is in place a complete,
    comprehensive and expert procedure for review of an administrative decision
    (at para. 44).  If such circumstances are found to exist, the prescribed route to
    challenge a parole decision is by way of a judicial review application brought
    before the Federal Court.

[6]

The application of
May
in the context of the parole
    review process under the
Corrections and Conditional Release Act
, S.C.
    1992, c. 20, was considered by this court in
R. v. Graham
, 2011 ONCA
    138, 275 O.A.C. 200.  In that case, Blair J.A. indicated that the parole review
    process was the very type of statutory regime envisioned in the
habeas
    corpus
exceptions articulated in
May
. Accordingly, the appeal of
    the decision of the Superior Court to decline to exercise jurisdiction, was
    dismissed.

[7]

The appellants argument is that
Graham
, in addition to
    a number of appellate decisions from other provinces that have reached the same
    conclusion, has incorrectly interpreted and applied
May
.  In effect, the
    appellant invites this panel to rule that
Graham

was wrongly
    decided.

[8]

We decline to do so.
Graham
was recently decided and is
    consistent with contemporary decisions of several other appellate courts in
    Canada.  In our view,
Graham
is dispositive of this appeal. The
    appellant has not persuaded us that the decision in
Graham
is
per
    incuriam
. We note that the appellants application for a five-judge panel
    to hear this matter was refused.

[9]

This appeal is therefore dismissed.

E.A. Cronk
    J.A.

R.G.
    Juriansz J.A.

G.J.
    Epstein J.A.


