LeBlanc v Canada (Attorney General), 2016 ABQB 350

Court of Queen ’ s Bench of Alberta Citation: LeBlanc v Canada (Attorney General), 2016 ABQB 350 Date: 20160624 Docket: 160529129X1 Registry: Edmonton Between: Luc Normand LeBlanc Applicant - and - Attorney General of Canada Institutional Warden or Head of Bowden Institution Respondents _______________________________________________________ Memorandum of Decision of the Honourable Madam Justice M.T. Moreau _______________________________________________________ I. Introduction [ 1 ] Mr. Leblanc is an inmate of Bowden Institution. He brought an application for habeas corpus because his day parole has

been revoked. He argues that the suspension and revocation of his parole were unreasonable, arbitrary and unlawful and that his dayparole should be reinstated. [2] The Respondents, the Attorney General of Canada and the Institutional Warden or Head of Bowden Institution, raised thepreliminary issue that this Court should decline to exercise its habeas corpus jurisdiction to review the decision of the National ParoleBoard of Canada (“the Board”) revoking the Applicant’s day parole. II.

Background Facts in relation to the Preliminary Issue [3] The Applicant is serving a federal sentence of two years, ten months and seven days for convictions involving propertyoffences, breach of undertaking or recognizance and failure to attend court. He was released from Drumheller Institution on day paroleon October 21, 2015 to a community-based residential facility, the Fresh Start Recovery Centre in Calgary (“Fresh Start”).

The Boardimposed the following special conditions on his day parole: - he not consume drugs or alcohol; - he report relationships with females; - he disclose his finances; - he seek employment or remain employed; and - he avoid negative associates. [4] On March 21, 2016, staff at Fresh Start informed the Applicant’s parole officer that he had tested positive formethamphetamine on urinalysis testing.

The parole officer reviewed video footage from March 15, 2016, in which the Applicant wasseen leaving and entering a room at Fresh Start in which it appeared he and three other residents were abusing substances together. [5] On March 21, 2016, the Applicant’s parole officer met with him at Fresh Start to discuss his drug use. He admitted havingused methamphetamine twice in the previous week, once on his own and once with other residents.

Corrections Services Canada(“CSC”) immediately issued a warrant suspending his day parole and he was taken into custody. [6] On March 29, 2016, the Applicant’s parole officer conducted a post-suspension hearing with him via telephone, duringwhich he again admitted that he had used methamphetamine with other residents at Fresh Start. [7] On March 31, 2016, the Applicant’s parole officer recommended to CSC that he be placed in Bowden Institution, a medium-security facility. He was transferred there that day. [8] On April 18, 2016, the Applicant’s parole officer recommended that the Board revoke his day parole.

The Applicant did notsubmit written submissions to the Board, nor request a hearing. He stated at the hearing that he sent a letter to the Board, however, didnot have a copy with him. Counsel for the Respondent indicated that a letter had not been received by the Board. [9] On May 17, 2016, the Board revoked the Applicant’s day parole.

The Board concluded: In spite of some positive progress, the Board has concluded that your relapse back into substance abuse and association with negativepeers, escalated your risk in the community for reasons within your control and, therefore, revokes your day parole. [10] The Board’s decision was appended to a letter dated May 17, 2016, notifying the Applicant that he could appeal its decision tothe Parole Board Appeal Division (“PBAD”) within two months. To date, the Applicant has not filed an appeal from the Board’sdecision. The time for filing such an appeal has not yet expired. III.

Arguments on the Preliminary Issue [11] The Applicant maintains that this Court should take jurisdiction, noting, firstly, that s 10(

c) of the Charter provides that: Everyone has the right on arrest or detention to have the validity of the detention determined by way of habeas corpus and to be releasedif the detention is not lawful. [12] He also referred to Dumas v LecLerc Institute, (SCC), [1986] 2 SCR 459, 34 DLR (4th) 427, where theCourt noted that habeas corpus is available on an initial deprivation of liberty, a substantial change in conditions amounting to a furtherdeprivation of liberty, and a continuation of the deprivation of the liberty and that in this case, the revocation of his day parole status hasresulted in a substantial change in conditions amounting to a further deprivation of liberty. [13] The Applicant also relies on the more recent decision of the Supreme Court of Canada in Mission Institution v Khela, 2014SCC 24, 455 NR 279 and our Court of Appeal’s post-Khela decision in D.G. v Bowden Institution (Warden), 2016 ABCA 52 asauthority for the proposition that parolees who have their parole suspended then revoked need not exhaust the remedies under theCorrections and Conditional Release Act, SC 1992, c 20 (the “CCRA”), in particular, an appeal to the PBAD, prior to applying forhabeas corpus. [14] The Applicant argues that the Board and PBAD fall within the ambit of “correctional authorities” referred to in May vFerndale, 2005 SCC 82, 261 DLR (4th) 541 from whose decisions habeas corpus can be accessed.

In May, the Court determined, at

para 50, that reviews of decisions of “correctional authorities” for reasonableness do not fall into either of the two exceptions the Courtidentified to the exercise of habeas corpus jurisdiction, namely: ... where (1) a statute such as the Criminal Code, R.S.C. 1985, c.

C-46, confers jurisdiction on a court of appeal to correct the errors of alower court and release the applicant if need be or (2) the legislator has put in place complete, comprehensive and expert procedure forreview of an administrative decision. [15] The Court concluded, at para 34: Thus, as a matter of general principle, habeas corpus jurisdiction should not be declined merely because of the existence of an alternativeremedy.

Whether the other remedy is still available or whether the applicant has foregone the right to use it, its existence should notpreclude or affect the right to apply for habeas corpus to the Superior Court of the province ... [16] The Respondent concedes that this Court has habeas corpus jurisdiction but submits that the Court should decline to exerciseit. The legislator has put in place a complete, comprehensive, and expert procedure for the review of the administrative decision of theBoard to revoke the Applicant’s day parole.

The Respondent referred to Peiroo v Canada (Minister of Employment & Immigration)(1989), (ON CA), 69 OR (2d) 253, 60 DLR (4th) 574 (Ont C.A.), leave denied [1989] SCCA No 322, at para 21, thatset out the elements of a comprehensive scheme, in that case, for the review of an immigration decision: - A legislative intention to grant jurisdictional exclusivity; - A review of decisions by an independent tribunal; - Prescribed remedies; - Stated grounds for review and a clear process; - The legal enforceability of decisions; - A detailed procedure for recourse to the federal court; and - A juridical review at least as broad as habeas corpus and no less advantageous. [17] The Respondent argues that Khela did not change the law respecting the circumstances in which a provincial superior courtshould decline to exercise jurisdiction to hear a habeas corpus application.

Declining jurisdiction averts risks associated with parallelprocedures and ineffective use of public resources. [18] The Respondent notes that provincial courts of appeal have consistently determined that

Part II of the CCRA constitutes acomplete, comprehensive and expert procedure in relation to parole matters and that the Supreme Court of Canada has refused leave toappeal in several of these cases. In R v Graham, 2011 ONCA 138, 275 OAC 200, the Ontario Court of Appeal concluded that the CCRAprovides a complete comprehensive and expert procedure for administering the parole review process.

However, I note that Blair J.A.,writing for the Court, allowed, at para 18, that there may be “exceptional circumstances where the statutory review and appeal regimeestablished in the Act, comprehensive on its face, is so ineffective as to warrant the exercise of habeas corpus jurisdiction”. [19] The Respondent referred to the recent decision of the Saskatchewan Court of Appeal in R v Latham, 2016 SKCA 14(application for leave to appeal filed April 7, 2016) where the Court affirmed the provincial superior court’s decision to declinejurisdiction in circumstances analogous to the present case (i.e. day parole suspension).

The Court determined, at paras 21-22, that theCCRA creates a comprehensive scheme for the review of Board decisions: the PBAD is an independent administrative tribunalcomposed of members with diverse backgrounds as required by s 105 of CCRA; the grounds for review are articulated in s 147(1) of theCCRA as are the PBAD’s powers in s 147(4), and the appeal process to the PBAD is clearly set out in s 168 of the CCRA Regulations. [20] The Respondent notes that Alberta Court of Queen’s Bench justices have declined to take jurisdiction in parole situations,citing those decisions at para 26 of its brief.

While D.G. was the exception, in that case, the inmate had exhausted his rights before thePBAD, which is not the case here. [21] The Respondent submits that this case falls squarely within the second exception identified in May and confirmed by ourCourt of Appeal in an analogous circumstances (revocation of full parole) in Armaly v Canada (Correctional Service), 2001 ABCA 280,299 AR 188, where the Court sent the case back to be dealt with in accordance with the CCRA. The appeal process to the PBAD isrelatively simple and accessible.

While no deadline is statutorily set for a PBAD decision, its processes are timely: Petrowski vMountain Institution (Warden), 2016 BCSC 1137, at para 9. Counsel for the Respondent, responding to an inquiry from the Court,advised that an expected wait time for the completion of an appeal to the PBAD, if the Applicant were to file an appeal, is three months.The Respondent maintains that the CCRA provides a “complete, comprehensive and expert procedure” to review Board decisions. III.

Discussion [22] As noted in Khela, at para 30, to be successful, an application for habeas corpus must satisfy the following criteria: theapplicant must establish that he or she has been deprived of liberty. Once a deprivation of liberty is proven, the applicant must raise alegitimate ground upon which to question its legality. If the applicant has raised such a ground, the onus shifts to the respondentauthorities to show that the deprivation of liberty was lawful. As noted at para 77:

Once an inmate has demonstrated that there was a deprivation of liberty and casts doubt on the reasonableness of the deprivation, the onus shifts to the respondent authorities to prove that the transfer [in that case] was reasonable in light of all the circumstances. [ 23 ] This Court has jurisdiction to entertain the Applicant’s habeas corpus application to review the validity of his continuing detention, despite the existence of alternative remedies under the CCRA , its regulations and the judicial review provisions of the Federal Court Act .

As noted in Khela , at para 42 , provincial superior courts cannot decline to hear an application for habeas corpus unless there is an alternative, which is either a court appeal or “a complete, comprehensive and expert procedure.” [ 24 ] In D.G. , the Board revoked the respondent’s day parole based on a belief that he had been in contact with his step-daughters in breach of the terms of his release and on other grounds. He unsuccessfully appealed the Board’s decision to the PBAD, then applied for habeas corpus . The Chambers judge exercised her habeas corpus jurisdiction and ultimately ruled on the application.

In the meantime, the respondent authorities appealed the Chambers justice’s decision to exercise her habeas corpus jurisdiction on the basis that the CCRA and the Federal Courts Act , RSC 1985, c F-7, provide a complete, comprehensive and expert procedure for the review of an administrative decision in parole matters. [ 25 ] The appeal was dismissed, with one dissent.

In Bielby J.A.’s reasons, concurred with in the result by Wakeling J.A. (but in separate reasons), she noted, at para 20, that the question of whether the right to appeal a decision of the PBAD upholding a revocation of parole meets the criteria of being a “complete, comprehensive and expert procedure” is in issue as a result of the Supreme Court of Canada’s decision in May .

Bielby J.A. noted, at paras 23-24, that the Saskatchewan Court of Appeal’s conclusion in Latham that the parole revocation process up to the conclusion of proceedings before the PBAD, but before any application to the Federal Court, is a complete, comprehensive and expert procedure and therefore precludes recourse to habeas corpus .

This was not the situation in D.G. ’s case as he had exhausted his PBAD appeal. [ 26 ] Bielby J.A. distinguished the Court of Appeal’s earlier decision in Armaly v Canada (Parole Service) , 2001 ABCA 280 , as it arose from an inmate’s attempt to seek habeas corpus before exhausting his right of appeal to the PBAD, precisely the situation before me in this case.

She noted, however, that Armaly should be interpreted with caution as it was decided before the release of May . [ 27 ] Importantly for this application, Bielby J.A. pointed out, at paras 42-43, that there was no evidence led as to the required, likely or average time to access a result in Federal Court, about 12 months having already elapsed between the apprehension of the respondent for his alleged parole violation and the dismissal of his appeal to the PBAD. She stated, at paras 45-46: Parole considerations apply to any sentence of incarceration of at least two years.

Obviously, that would occur sometime prior to the expiry of their sentences. Therefore, by way of example, an inmate serving a two year sentence who was paroled at the one-year mark, then breached and returned to custody after 3 months would have 9 months, or about 279 days remaining to serve on his or her sentence. To challenge revocation in the Federal Court, a process taking a minimum of 250 days, could see the hearing convened just days before sentence completion and well after the inmate was released as a result of mandatory statutory remission of sentence.

The judicial review process before the Federal Court could not thus fall within the May exception in this example, as a complete, comprehensive and expert procedure because it would not occur before release. That inmate would have no recourse if he had in fact been wrongfully re-imprisoned through improper revocation of his parole. [ 28 ] Wakeling J.A. also referred to Armaly in his reasons, at para 66 : In Armaly v.

National Parole Board , this Court held that a provincial superior court should not issue a writ of habeas corpus at the request of an offender who had his parole either suspended or terminated by the National Parole Board and had not appealed to the Appeal Division.

Not resolved was whether a provincial superior court should issue a writ of habeas corpus if an offender had appealed without success to the Appeal Division. [ 29 ] Wakeling J.A. observed, at para 73, that the Federal Court, generally speaking, takes much longer to adjudicate a judicial review application than a provincial superior court to rule on a habeas corpus application, and noted: “[a] prompt adjudication is one of the essential features of a writ of habeas corpus .” [ 30 ] He noted, at paras 116-119, that habeas corpus is an extraordinary remedy and as such, should not be issued if the applicant has access to another equally efficacious remedy.

An equally efficacious remedy exists according to the Supreme Court of Canada in two specific circumstances, one of which is that the legislator has put in place a complete, comprehensive and expert procedure for review of an administrative decision. He stated, at paras 120-21: ... Processes that take a considerable amount of time to navigate are of questionable value to those who invoke them.

The passage of time may make the offender’s complaint moot or diminish the value of the remedy. “The importance of the interests at stake militates in favour of a quick resolution of the issues.” [citing May , at para 69] A writ of habeas corpus gives a person a prompt hearing before a superior court that has the jurisdiction to review the lawfulness of the applicant’s detention. ... [ 31 ] While acknowledging, at paras 153-154, that several appeal courts across Canada have declared that provincial superior courts should let the Federal Court and the Federal Court of Appeal monitor the lawfulness of decisions of the Appeal Division, Wakeling J.A. did not agree that provincial superior courts should abandon the field and decline to assess the legality of Appeal Division decisions that adversely affect the liberty of an inmate. [ 32 ] In his dissenting reasons, McDonald J.A. determined, at para 162, that “correctional authorities” referred to in Khela did not include members and staff of the Parole Board.

He also noted, at para 178, that the Appeal Division is an independent administrative tribunal whose powers include refusing to hear an appeal without a full review of the case in the circumstances outlined in s 147(2) of the CCRA . Judicial review of Board decisions by the Federal Court is authorized under s 18.1 of the Federal Courts Act . He concluded that there is a complete, comprehensive and expert procedure for review of the Board’s decisions. He distinguished the situation in D.G. ,

which concerned the review procedure set out in

Part II of the CCRA, in which the Board has, pursuant to s 107(1) of the Act, exclusiveand absolute discretion regarding parole from the situation in Khela, which involved an inmate reclassification by prison authoritiesunder

Part I of the Act. He noted, at para 203, that there is nothing in the reasons in Khela to suggest that the analysis of Lebel J. appliesto

Part II of the Act as the issue in Khela arose solely out of the provisions of

Part I. He cited Latham, at para 204, in which the processbefore the Board was in play at the time the applicant applied for a writ of habeas corpus. The Chambers judge’s decision to declinejurisdiction was affirmed on appeal. [33] In Rain v Canada, 2015 ABQB 639, the applicant was released under a Long Term Supervision Order (“LTSO”) into asupervised residence. His release was suspended after cocaine was detected by urine screen and the Board subsequently suspended hisLTSO.

He sought habeas corpus to release him from Bowden Institution back into LTSO residency and that CSC provide him with adrug treatment program. [34] Shelley J. determined, at paras 10-11, that Armaly is binding authority on this Court and that a number of Alberta Court ofQueen’s Bench judgments have concluded that the rule in Armaly and its sister cases has not been implicitly overruled or otherwisealtered by the Supreme Court of Canada. She noted that a different conclusion was reached in DG v Bowden Institute, 2015 ABQB 373,337 CRR (2d) 55.

She declined to take jurisdiction based on the binding effect of Armaly and on the basis that access to drug treatment isnot a habeas corpus remedy. [35] In Armaly, Fraser C.J.A., for the Court, observed, at para 2, that “[h]abeas corpus ... should not be granted where adequatealternative remedies are available”.

This conclusion was overtaken by Khela, at para 42: … habeas corpus jurisdiction should not be declined merely because of the existence of an alternative remedy … [emphasis added] [36] The Court in Armaly went on, however, to determine that the parole review procedures in the CCRA are a “complete,comprehensive, and expert procedure”, and thus one of the two exceptions outlined in May at para 50, and Khela, at para 42, to theprovincial superior court exercising its habeas corpus jurisdiction. [37] The Supreme Court of Canada in Khela was dealing with the processes under

Part I of the CCRA. The Court did not expresslyoverrule Steele v Mountain Institution, (SCC), [1990] 2 SCR 1385. In that case, the Respondent, an inmate of almost37 years serving an indeterminate sentence, applied for habeas corpus and s 24(1) Charter relief.

While the Court determined that hislengthy incarceration constituted cruel and unusual treatment contrary to s 12 of the Charter which was caused by errors of the Boardand ordered his release, Cory J., writing for the Court, issued the following warning at para 83: Since any error that may be committed occurs in the parole review process itself, an application challenging the decision should be madeby means of judicial review from the National Parole Board decision, not by means of an application for habeas corpus.

It would bewrong to sanction the establishment of a costly and unwieldy parallel system for challenging a Parole Board decisions. As well, it isimportant that the release of a long term inmate should be supervised by those who are experts in this field. [38] If the Court had intended that its reasoning that habeas corpus is available in a reclassification context under

Part I of theCCRA apply generally to the parole review process under

Part II, one might have expected that it would have stated so.

Nonetheless,Steele is an example of a situation where habeas corpus jurisdiction was exercised in what the Court considered to be exceptionalcircumstances. [39] I note the comment in John v Canada (National Parole Board) (2001), 2011 BCCA 188 , 303 BCAC 264 leavedenied [2011] SCCA No. 256 at paras 43-44, in relation to an appeal from a Chambers judge’s decision to decline jurisdiction in ahabeas corpus application from a parole revocation: In Graham, the Ontario Court of Appeal endorsed the view expressed in Elguindy that there may be exceptional circumstances where alegislated procedure, complete and comprehensive on its face, is so ineffective as to warrant the exercise of habeas corpus jurisdiction.

Iaccept such circumstances might arise if an inmate sought judicial review in the Federal Court but, despite reasonable efforts on his part,was unable to have his application heard in a timely manner. But that is not this case. … In concluding the reasons he gave for dismissing the appellant’s application, as quoted above, the judge said what the appellant soughtwas to have him second-guess the NPB in respect of the management of parole during his life sentence.

This he declined to do, althoughhe recognized, as did the courts in Graham and Elguindy in particular, that there may be circumstances in which the exercise of habeascorpus jurisdiction would be appropriate. In so doing, he was following the direction of the Supreme Court of Canada in May, as appliedin the context of parole in the several trial and appellate court decisions discussed, that jurisdiction should be declined. In so doing, hewas giving effect to the limited discretion he had. I see no error in his having done so. [emphasis added] [40] I am of the view that jurisdiction should be declined in this case.

If the Applicant pursues a PBAD appeal immediately, it isexpected that his appeal will be heard within three months. His appeal will not be moot having regard to his December 2016 statutoryrelease date, mootness being a concern raised in Bielby J.A. in D.G., at paras 45-46, as regards the efficaciousness of the judicial reviewprocesses of the Federal Court. This is not one of those cases where the appeal apparatus under the CCRA has been shown to be soineffective as to warrant the exercise of this Court’s habeas corpus jurisdiction. IV. Conclusion

[ 41 ] For these reasons, the application for habeas corpus is dismissed. V. Costs [ 42 ] I decline to grant costs to the successful Respondent in this case for two reasons. First, there is a lack of clarity as to the impact of Khela and D.G. on

Part II procedures under the CCRA . Second, the information addressing the efficaciousness of the internal CCRA processes, arising from parallel concerns raised in D.G. as to the efficaciousness of the judicial review process in the Federal Court, was made available as a result of specific inquiries from the Court. It was not included in the Respondent’s original materials and was therefore not available to the Applicant prior to the hearing date. For these reasons, each party shall bear their own costs of the application. Heard on the 22 nd day of June, 2016.

Dated at the City of Edmonton, Alberta this 24 th day of June, 2016. M.T. Moreau J.C.Q.B.A. Appearances: Luc Normand LeBlanc Appeared on his own behalf for the Applicant Jennifer Lee Department of Justice Canada for the Respondent