El Sayed v Canada (Minister of Justice and Solicitor General), 2021 ABQB 823

Court of Queen’s Bench of Alberta Citation: El Sayed v Canada (Minister of Justice and Solicitor General), 2021 ABQB 823 Date: 20211018 Docket: 2103 14294 Registry: Edmonton Between: Ali El Sayed Applicant - and - Minister of Justice and Solicitor General, Attorney General of Canada, and Correctional Service of Canada, and Parole Board of Canada Respondents _______________________________________________________ Memorandum of Decision of the Honourable Mr. Justice John T. Henderson _______________________________________________________ I. Introduction [ 1 ] On October 6, 2021, Counsel for Ali El Sayed [Mr.

El Sayed] filed with this Court two documents: 1. an “Originating Application for Writ of Habeas Corpus Ad Subjiciedum, Writ of Habeas Corpus with Certiorari in Aid, Writ of Habeas Corpus Cum Causa” [Application], and

2. an undated 113-page Affidavit of Mr. El Sayed. [2] On that date Justice Grosse responded to an urgent review request and set Mr. El Sayed’s Application for a first hearing atQueen’s Bench Appearance Court [QBAC] in Edmonton on October 15, 2021. Simpson J then set the next appearance for Mr. ElSayed’s Application to QBAC on October 29, 2021. [3] This Court is required by law to place a special priority on any application for habeas corpus, given the unique status of thisremedy in the UK common law tradition as a swift,

summary mechanism by which to evaluate the alleged illegality of a detention: In ReStorgoff, (SCC), [1945] SCR 526 at 590-591; Mission Institution v Khela, 2014 SCC 24 at para 3; DG v BowdenInstitution, 2016 ABCA 52 at paras 41, 124. [4] In light of this Court’s obligation to advance habeas corpus matters in a prioritized manner, Mr. El Sayed’s Application wasimmediately reviewed. That review has identified what appears to be a potential issue with Mr. El Sayed’s Application.

On that basis, theCourt is implementing a Civil Practice Note No. 7 [CPN7] document-based “show cause” process pursuant to CPN7, para 5 to evaluatewhether Mr. El Sayed’s Application should be struck out per Rule 3.68. II. CPN7 [5] CPN7 is a practice implemented by the Court to better manage litigation that, on its face, appears to be unmeritorious, has noprospect of success, or is otherwise abusive and vexatious.

This practice is intended to provide a timely, proportionate, and cost-effectiveresponse to the litigants: Unrau v National Dental Examining Board, 2018 ABQB 874 [Unrau #1]. [6] If, on initial review by the Court, the pleading appears to be unmeritorious, has no prospect of success, or is otherwiseabusive and vexatious, then the Court issues a first written decision that identifies the apparent issue(

s) that may be a basis to apply Rule3.68 and strike out the pleading. The party who filed the pleading is then given an opportunity to, within 14 days, provide the Court aWritten Submission of up to a total of ten pages in length that responds to, and demonstrates why, the pleading is a legitimate action andshould be permitted to continue. The Written Submission must be served on the other parties to the litigation. [7] CPN7 is not for “close calls”, but instead the Court intervenes by this mechanism when the defect(

s) in question are“apparent on the face of the pleading”, and the suspect pleadings are “clearer cases of abuse”: Unrau #1, at paras 22, 24. Only restrictedforms of evidence are considered by the Court when it conducts a CPN7 review, since this process has a very narrow focus, and operatesto examine a single document and its content: Ubah v Canadian Natural Resources Limited, 2019 ABQB 347 at paras 24-48 [Ubah #2].One exception to that rule is the Court may examine other documents in the same proceeding which are related to the suspect filing:Ubah #2, at para 35. III. Analysis [8] Mr.

El Sayed’s Application and Affidavit indicate that Mr. El Sayed was found guilty of nine counts of fraud over $5,000contrary to s 380(1)(

a) of Criminal Code, RSC 1985, c C-46. He received a total sentence of nine years, three months. Mr. El Sayed isalso subject to 17 restitution orders totaling $4,596,676.97 for his role in a large-scale mortgage fraud scheme. [9] On November 16, 2020, Mr. El Sayed was released on Day Parole, and then Statutory Release on April 2, 2021. On July 29,2021, Mr. El Sayed’s parole was suspended by the Edmonton Parole Office. Mr. El Sayed was then was arrested and placed in theCorrectional Services Canada Bowden Institution medium security facility. An Assessment for Decision dated August 9, 2021 set Mr.

ElSayed’s current detention security level as medium. A Parole Officer review dated August 24, 2021 recommended Mr. El Sayed’s parolebe revoked. That revocation recommendation will be evaluated by the Parole Board of Canada. [10] The Application alleges Mr.

El Sayed’s detention is unlawful, and, at paragraph 1, specifically alleges: The Applicant was and remains the subject of unlawful arrest, suspension of parole, and re-incarceration (detention) on and after July29th 2021, all without any reasonable or proper disclosure, nor any reasonable or proper substantiation of any lawful grounds, andwithout any, or any reasonable, prompt fair hearing, leading to continued detention by the Parole Officer, the Parole Board and byCorrections Canada. Mr.

El Sayed is therefore explicitly challenging decisions of the Parole Board and its Officers. [11] The available record indicates that Mr. El Sayed experienced a loss of residual liberty when his parole was suspended and hewas placed in the Bowden Institution. That loss of residual liberty, and its continuation to the present, is the result of a decisions ofParole Officers.

These facts appear to satisfy the usual threshold requirement for a valid habeas corpus application by an incarceratedperson to a superior court of inherent jurisdiction, such as the Alberta Court of Queen’s Bench: the detainee has been placed into a “newdetention” under a “legal authority” that results in a “distinct form of confinement or detention” which is “a significant reduction in theresidual liberty of the inmate”: R v Miller, (SCC), [1985] 2 SCR 613 at 640-641; May v Ferndale Institution, 2005 SCC82 at paras 27-28; Gogan v Attorney General of Canada, 2017 ABQB 609 at paras 41-52.

In these circumstances state actors are usuallythen subject to a reverse onus and must establish on a balance of probabilities that an alleged illegal detention has a lawful basis: MissionInstitution v Khela, 2014 SCC 24 at para 30. [12] Canadian law recognizes a limited number of exceptions where an alternative scheme displaces the superior court’s habeascorpus authority. One is where Parliament or the Legislature has enacted a “... complete, comprehensive and expert procedure for reviewof an administrative decision ...” that resulted in a deprivation of liberty: Mission Institution v Khela, at para 42.

In that scenario “...provincial superior courts should decline jurisdiction to hear habeas corpus applications ...”: Mission Institution v Khela, at para 42. Thelegality of the state-imposed detention is instead reviewed by the complete, comprehensive and expert procedure.

[ 13 ] In Armaly v Canada , 2001 ABCA 280 at para 4 , Chief Justice Fraser explicitly identified the Parole Board of Canada is a complete, comprehensive, and expert procedure: We are satisfied that Parliament did not intend a breach of procedural fairness, as has occurred here, to result in a non-remediable loss of jurisdiction. The CCRA provides a comprehensive statutory scheme for administering the parole review process .

Sound policy reasons exist for not setting the threshold for habeas corpus so low that it effectively creates a parallel system for challenging revocation or termination of parole. ... [Emphasis added.] [ 14 ] Slatter JA recently confirmed the binding status of Armaly v Canada in R v Latham , 2018 ABCA 267 at paras 9-10 , leave to appeal to SCC refused, 38437 (14 March 2019): ... The writ of habeas corpus is a fundamental constitutional remedy designed to review the legality of detentions.

It is not intended to be used as an all-purpose remedy to allow serving prisoners to raise any and all complaints and grievances they have about the condition of their detention, or their parole status. There are specialized procedures in place to deal with those complaints . ... As this Court has held, issues respecting parole should be dealt with under the specialized provisions available for that purpose, not by habeas corpus: Armaly v Canada (Parole Service) , 2001 ABCA 280 , 299 AR 188.

The applicant argues that some of the persons who have suspended his parole are employees of Correctional Services Canada, not the Parole Board, and that the Parole Board has declined jurisdiction over them. Under s. 135(1) of the Corrections and Conditional Release Act, SC 1992, c. 20 , “designated persons” may suspend parole when they suspect there has been a breach. The persons so designated may be employees of Correctional Services Canada, but when dealing with parole status they are acting as delegates of the Parole Board. Under s. 135(3)(

b) a suspension of parole must either be cancelled or referred to the Board within thirty days, and under s. 135(5) the Board must review the suspension. Section 147(1) provides for a further appeal to the Appeal Board. It is therefore clear that the applicant has available to him specialized remedies to address the suspension of his parole . [Emphasis added.] [ 15 ] Slatter JA subsequently, in R v Latham , 2018 ABCA 308 at para 7 , leave to appeal to SCC refused, 38437 (14 March 2019), repeated that the Alberta Court of Queen’s Bench should not take habeas corpus jurisdiction over parole matters: “...

The applicant’s attempt to use habeas corpus to invite the superior courts to review the management of the corrections and parole systems is inappropriate.” R v Latham , 2018 ABCA 308 rejected claims by the applicant prisoner that decisions of Parole Officers are distinct from decisions of the Parole Board itself and therefore subject to habeas corpus review: para 6. [ 16 ] Nor is the position held by the Alberta Court of Appeal in some sense anomalous.

Instead, over 20 years, every Court of Appeal in Canada that has evaluated this question has concluded that the Parole Board of Canada is a complete, comprehensive and expert apparatus: R v Marshall , 2002 ABCA 185 ; LRF v Canada (National Parole Board) , 2008 NSCA 56 ; Lord v Coulter , 2009 BCCA 62 ; R v Latham , 2009 SKCA 26 ; R v Ross , 2009 SKCA 24 at para 8 ; John v Canada (National Parole Board) , 2011 BCCA 188 , leave to appeal to SCC refused, 34309 (1 December 2011); R v Graham , 2011 ONCA 138 ; Lena v Donnacona Prison , 2011 QCCA 140 ; Blais v Canada (Attorney General) , 2012 NSCA 109 , leave to appeal to SCC refused, 35092 (14 February 2013); Woodhouse v Canada (Correctional Service) , 2012 BCCA 45 at para 15 ; Chaudhary v Frontenac Institution , 2012 ONCA 313 , leave to appeal to SCC refused, 34917 (15 November 2012); PSL v Matsqui Institution , 2013 BCCA 390 at para 30 ; R v Latham , 2016 SKCA 14 , leave to appeal to SCC refused, 36947 (8 September 2016). [ 17 ] Furthermore, there are no dissenting decisions of the Alberta Court of Queen’s Bench.

Instead, this Court has consistently rejected jurisdiction over habeas corpus applications that challenge decisions of the Parole Board of Canada, including: Tuckanow v Bowden Penitentiary , 2014 ABQB 563 ; Rain v Canada (Parole Board) , 2015 ABQB 639 ; LeBlanc v Canada (Attorney General) , 2016 ABQB 350 ; Blea v Warden of Bowden Institution (24 June 2016), Edmonton 160467759X1 (Alta QB); Doll v AGC and Warden of Bowden Institution (14 October 2016), Edmonton 161070743X1 (Alta QB); Melnick v AGC and Institutional Warden or Head of Bowden Institution (21 October 2016), Edmonton 160866208X1 (Alta QB); Hamm v Morgan (Last Name Unknown) , 2017 ABQB 156 ; Willis v Attorney General of Canada , 2017 ABQB 540 ; Hart v Her Majesty the Queen (24 October 2017), Edmonton 1703-18189 (Alta QB); Lee v Canada (Attorney General) , 2018 ABQB 40 ; Latham (Re) , 2018 ABQB 906 ; Heiser v Canada (Attorney General) , 2020 ABQB 456 ; Dombroskie v Canada (Parole Board) , 2020 ABQB 625 , habeas corpus application struck as an abuse of court, 2020 ABQB 699 ; Littlejohn v Her Majesty the Queen (#2) , 2020 ABQB 762 ; R v Mahoney , 2021 ABQB 118 , habeas corpus application struck out as an abuse of court, R v Mahoney , 2021 ABQB 163 . [ 18 ] I therefore request Mr.

El Sayed explain why this Court is not subject to binding jurisprudence of the Alberta Court of Appeal that prohibits this Court from engaging habeas corpus to review any decision of the Parole Board of Canada, or its employees, that results in a deprivation of liberty, as a complete, comprehensive, and expert review apparatus. IV. Conclusion [ 19 ] Mr. El Sayed’s Application appears to be an appropriate candidate for review per CPN7. The Court, therefore, seeks a response from Mr.

El Sayed to explain why this Court is not bound by Armaly v Canada , 2001 ABCA 280 , R v Latham , 2018 ABCA 267 , and R v Latham , 2018 ABCA 308 . [ 20 ] Since I have concluded that Mr. El Sayed’s Application warrants review per CPN7, the Application is stayed until further notice. The Application is currently set to be heard in Queen’s Bench Appearance Court. That appearance is cancelled. [ 21 ] CPN7 now advances to its second step. 1. Mr.

El Sayed has until 14 days after this decision is filed and served to prepare a Written Submission of no more than a total of 10 pages, to be filed and served, per CPN7, para 3(b). The Written Submission should be clearly addressed: “To the Attention of Justice

Henderson”. 2. If no Written Submission is received by the Court by that deadline the Court will proceed to render its final decision on whether the Application should be struck out in whole or in part, per Rule 3.68 (CPN7, para 3(c)). 3. If Mr. El Sayed provides and serves a Written Submission, then the Respondents have seven days to make a Written Reply of up to a total of 10 pages in length (CPN7, para 3(d)). The Written Reply should be clearly addressed: “To the Attention of Justice Henderson”. 4. After receipt of Mr.

El Sayed’s Written Submission and the Respondents’ Written Reply, if any, the Court will render its final decision on whether the Application should be struck out in whole or in part, per Rule 3.68 (CPN7, para 3(e)). [ 22 ] The Court will prepare and serve the Order staying this action. Mr. El Sayed’s approval of that Order is dispensed with, pursuant to Rule 9.4(2)(c). Dated at the City of Edmonton, Alberta this 18 th day of October, 2021. John T. Henderson J.C.Q.B.A. Appearances: Clive O. Llewellyn Llewellyn Law for the Applicant