





CITATION:
R. v. Graham, 2011
          ONCA 138



DATE: 20110222



DOCKET: C52798



COURT OF APPEAL FOR ONTARIO



MacPherson, Blair and Rouleau JJ.A.



BETWEEN:`



Scott Graham



Appellant



and



Her Majesty the Queen



Respondent



Scott Graham, in person

Ian Smith, Duty Counsel

Matthew Sullivan, for the Crown



Heard: February 9, 2011



On appeal from the judgment of Justice Albert Roy of the
          Superior Court of Justice, dated September 16, 2010, denying the appellants
          application for a writ of
habeas corpus
          ad subjiciendum.



R.A. Blair J.A.:



Background and Facts

[1]

The appellant seeks to set aside the judgment of
    Justice Roy of the Superior Court
of
Justice, dated
    September 16, 2010, denying his application for a writ of
habeas corpus ad subjiciendum
.

[2]

On July 8, 2009 the appellant was sentenced to 26
    months in prison for various drug-related offences.  Because he was a first-time federal offender,
[1]
he was granted accelerated day parole on December 1, 2009 and released into the
    community  subject to parole conditions  on January 8, 2010.  Shortly thereafter, however, on January 28,
    2010, the appellants parole privileges were suspended by his parole officers
    supervisor.  Several reasons were cited
    for the suspension, including the appellants failure to comply with certain
    financial disclosure obligations that formed a condition of his parole, his
    failure to provide information regarding his associations, and his suspected
    involvement in drug-related conduct.

[3]

The appellant challenged his parole suspension by way
    of
habeas corpus
in Superior Court.  At the same time, the suspension was
    automatically under review pursuant to the National Parole Board (NPB) review
    process established under the
Corrections
    and Conditional Release Act
, S.C. 1992, c. 20 (CCRA).

[4]

On September 16, 2010, the application judge denied the
habeas corpus
proceeding, concluding
    that the CCRA regime constituted a complete, comprehensive and expert
    procedure for review of the NPBs administrative decision and that he should
    therefore decline
habeas corpus
jurisdiction.  Subsequently, on October 7, 2010, the NPB
    affirmed the suspension and revoked the appellants parole.  The appellant then appealed to the Appeal
    Division of the NPB, which dismissed his appeal on November 17, 2010.

[5]

The appellant now seeks to overturn the decision of
    Justice Roy and to have this court quash the decision of his parole officers supervisor
    suspending his parole.

[6]

For the reasons that follow, I would dismiss the
    appeal.

Law and
    Analysis

[7]

There is no dispute that provincial superior courts
    retain an important jurisdiction to hear
habeas
    corpus
applications brought by a prisoner alleging unlawful restriction of his
    or her liberty, and do so in spite of the fact that such allegations may also
    be challenged elsewhere.  As
habeas corpus
is not a discretionary
    remedy, but rather one that issues as of right on proper grounds being shown, Superior
    Courts are  and should be  reluctant to decline such jurisdiction when called
    upon to exercise it.  However, they may
    do so in some circumstances, and one circumstance where the Supreme Court of
    Canada has indicated it is appropriate to decline jurisdiction is where there
    is in place a complete, comprehensive and expert procedure for review of an
    administrative decision:
May v. Ferndale
    Institution
, [2005] 3 S.C.R. 809.

[8]

At para. 44 of that decision, Justices LeBel and Fish,
    for the majority, summarized their conclusions in this regard:

To
    sum up, therefore, the jurisprudence of this Court establishes 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.  As a matter of principle, a
    provincial superior court should exercise its jurisdiction when it is requested
    to do so.
Habeas corpus
jurisdiction should not be declined merely because
    another alternative remedy exists and would appear as or more convenient in the
    eyes of the court.  The option belongs to
    the applicant.  Only in limited circumstances
    will it be appropriate for a provincial superior court to decline to exercise
    its
habeas corpus
jurisdiction.  For instance, in criminal law, where a
    statute confers jurisdiction on a court of appeal to correct the errors of a
    lower court and release the applicant if need be,
habeas corpus
will not be available (citation omitted).
Jurisdiction should also be declined where
    there is in place a complete, comprehensive and expert procedure for review of
    an administrative decision
(citations omitted).

(Emphasis
    added.)

[9]

The rationale underlying the exceptions referred to
    above is rooted in the risks associated with parallel procedures and the
    ineffective use of public resources flowing from such procedures.  Cory J. succinctly explained these policy reasons,
    in the NPB context, in
Steele v. Mountain
    Institution
, [1990] 2 S.C.R. 1385, at p. 1418:

Since any error that may be committed occurs in the
    parole review process itself, an application challenging the decision should be
    made by means of judicial review from the National Parole Board decision, not
    by means of an application for habeas corpus.  It would be wrong to sanction the establishment of a costly and unwieldy
    parallel system for challenging a Parole Board decision.  As well, it is important that the release of
    a long-term inmate should be supervised by those who are experts in the field.

[10]

The question here, then, is whether the CCRA provides a
    complete, comprehensive and expert procedure for administering the parole
    review process.  In my view, it
    does.  In that respect, I agree with the
    application judge and with other Canadian appellate and lower courts that have
    come to the same conclusion:  see
Armaly v. Canada (Parole Services)
(2001), 299 A.R. 188 (C.A.);
Lord v.
    Coulter
(2009), 266 B.C.A.C. 122 (C.A.);
R v. Latham
(2009), 324 Sask. R. 87 (C.A.);
Latham v. Canada
(2006), 288 F.T.R. 37 (F.C.T.D.);
McGrayne v. Canada (Attorney General)
,
    [2002] O.T.C. 191 (Sup. Ct.);
R v.
Elguindy
, 2010 ONSC 1757.

[11]

The appellant relies on the decision of the British
    Columbia Supreme Court in
Woodhouse v.
    William Head Institution
, 2010 BCSC 754 to the contrary.  In that case, Walker J. concluded that there
    was an impermissible gap in the CCRA procedure because it exposes an inmate to a
    period of detention of up to 30 days
[2]
before his or her suspension must be referred to the NPB for review and, even
    then, does not specifically provide the NPB with the power to review the
    suspension for error of law nor specifically direct it to inquire into the
    merits of the parole officer supervisors decision at the review level.  Here, the appellant argues, amongst other
    things, that there is no legal authorization for the imposition of financial
    terms of disclosure as a condition of his parole release.

[12]

Respectfully, I do not accept the reasoning in
Woodhouse
.

[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.

[15]

The Boards review decision is, in turn, subject to an
    appeal to the Appeal Division of the NPB, pursuant to s. 147.  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.

[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 supervisors decision to suspend parole.  In addition, the process is carried out at
    its various stages by experts in the parole field.

[17]

True, there is a short timeframe during which the
    offender whose parole has been suspended may be detained while the parole officer
    supervisor decides whether to cancel the suspension or to refer the matter to
    the NPB.  During that period of detention
    the offender's liberty is restricted in a way that would otherwise entitle him
    or her to challenge the legality of the detention by
habeas corpus
.  That in
    itself is not sufficient to take the CCRA scheme out of the
May
exception, in my view.  First, the delay is part of the regime
    allowing the parole officer supervisor to reconsider the decision.  Further, as a practical matter, a
habeas corpus
application is unlikely to
    be determined more quickly than the 14-day/30-day timeframe within which the
    parole officer supervisors decision to suspend must either be cancelled or
    referred by the parole officer supervisor into the NPB process for review.

[18]

As Brown R.S.J. recently noted in
Elguindy
, there may be
    exceptional circumstances where the statutory review and appeal regime
    established in the CCRA, comprehensive on its face, is so ineffective as to
    warrant the exercise of
habeas corpus
jurisdiction.  However, this is not one
    of those cases.

[19]

The decision whether to decline
habeas corpus
jurisdiction is discretionary.
[3]
The application judge made no error in law or
    principle and, in my view, was correct in declining to exercise the Superior
    Courts
habeas corpus
jurisdiction.

Disposition

[20]

The appeal is therefore dismissed.

R.A. Blair J.A.

I agree J.C.
    MacPherson J.A.

I agree Paul Rouleau
    J.A.

RELEASED:  February
    22, 2011





[1]
The
    appellant had a prior criminal record for a variety of offences, but had not
    previously been sentenced to a penitentiary term of imprisonment.



[2]
Where
    the sentence imposed was less than two years imprisonment, the detention is
    for a period of up to 14 days.



[3]
Although, once jurisdiction is accepted and it is established that the
    applicants detention is illegal, the decision whether to grant
habeas corpus
is not discretionary:
May v. Ferndale Institution,
at para.
33, citing Sharpe, Robert J.,
The
    Law of Habeas Corpus
, 2
nd
ed. (Oxford: Clarendon Press, 1989) at
    58.


