El Sayed v Canada (Minister of Justice and Solicitor General), 2021 ABQB 987

Court of Queen’s Bench of Alberta Citation: El Sayed v Canada (Minister of Justice and Solicitor General), 2021 ABQB 987 Date: 20211213 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, 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 ofHabeas Corpus Cum Causa” [Application], and 2. an Affidavit of Mr. El Sayed. [2] On the same day, October 6, 2021, Justice Grosse responded to an urgent review request and set Mr. El Sayed’s Applicationfor a first hearing at Queen’s Bench Appearance Court [QBAC] in Edmonton on October 15, 2021 where Simpson J. set the nextappearance for Mr.

El Sayed’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. In an October 18, 2021 decision reported as El Sayed v Canada (Minister of Justice and Solicitor General),2021 ABQB 823 [El Sayed #1], I concluded that Mr.

El Sayed’s habeas corpus application exhibited a prima facie defect that gave riseto a concern that this Court might need to refuse jurisdiction to receive and conduct Mr. El Sayed’s habeas corpus application. On thatbasis, the Court implemented a Civil Practice Note No. 7 [CPN7] document-based “show cause” process pursuant to CPN7, para 5 toevaluate whether Mr. El Sayed’s Application should be struck out per Rule 3.68. Mr.

El Sayed was given 14 days to submit a WrittenSubmission of up to ten-pages to explain why this Court is not bound by Armaly v Canada, 2001 ABCA 280, R v Latham, 2018 ABCA267, and R v Latham, 2018 ABCA 308. The Respondents then had seven days to submit a Written Reply, to a maximum of ten-pages. [5] The Application was stayed, and the October 29, 2021 QBAC appearance was cancelled. On October 26, 2021, Counsel forMr. El Sayed requested a time extension for the Written Submission, which was extended to November 10, 2021. A Written Submissionwas received from Counsel for Mr. El Sayed on November 10, 2021.

The Respondents’ Written Reply was received on November 17,2021. Mr. El Sayed submitted a two-page “Reply of Ali El Sayed” the same day. Counsel also appeared before me on December 8, 2021and made oral submission in relation to this matter. [6] The CPN7 process is now complete. For the reasons that follow, I conclude that this Court has no jurisdiction to conduct ahabeas corpus proceeding that challenges a decision of the Parole Board of Canada. Mr. El Sayed’s habeas corpus application istherefore a hopeless proceeding, an abuse of the Court, and is struck out on that basis. II.

Background [7] Prior to reviewing the parties’ submission and conducting my analysis, some background is necessary to better understandthe context of this matter. The facts and timeline outlined below are derived from the parties’ materials and do not appear to be indispute. A. Timeline [8] Mr. El Sayed is an inmate presently housed at the Correctional Service Canada Bowden Institution. In El Sayed #1 at para11, I concluded that Mr. El Sayed had identified a detention that might be a basis for habeas corpus. Mr.

El Sayed had been placed into a“new detention” under a “legal authority” that resulted in a “distinct form of confinement or detention” which is “a significant reductionin the residual liberty of the inmate”: R v Miller, (SCC), [1985] 2 SCR 613 at 640-641; May v Ferndale Institution,2005 SCC 82 at paras 27-28; Gogan v Attorney General of Canada, 2017 ABQB 609 at paras 41-52. This timeline reviews the basis forthat conclusion: • September 2013 - Mr. El Sayed was sentenced to nine years and three months incarceration after having being convicted of ninecounts of fraud over $5,000 contrary to s 380(1)(

a) of Criminal Code, RSC 1985, c C-46. Mr. El Sayed also became subject to 17restitution orders totaling $4,596,676.97 for his role in a large-scale mortgage fraud scheme. • 2016-2017 - Mr. El Sayed was granted accelerated day parole and then accelerated full parole. That release was suspended twice,and then cancelled for factors including noncompliance, deceitful behaviour, threats to a former colleague, and after Mr. El Sayed wasarrested for assaulting his wife. • March 2018 - Mr. El Sayed’s full parole was revoked by the Parole Board of Canada due to escalating risk.

That decision wasconfirmed by the Parole Board of Canada Appeal Division. • May 2019 - the Parole Board of Canada denied Mr. El Sayed’s application and refused to order parole of any type. • November 16, 2020 - Mr. El Sayed was granted day parole with conditions to avoid criminal activity, gangs, and drug subcultures. • April 2, 2021 - Mr. El Sayed transitioned to statutory release with the same conditions as he was subject to while on day parole. • July 28, 2021 - Police reported that Mr. El Sayed was observed attending the residence of a member of a motorcycle gang criminalorganization, a “gang clubhouse”.

As was made clear in Mr. El Sayed’s written submissions and again emphasized during oralsubmissions on December 8, 2021, these facts are seriously contested. He argues that the Respondents (including the Parole authorities)had an onus to prove that police made these observations but they have, thus far, failed to offer any such proof. Mr. El Sayed alsodisputed these allegations before the Parole Board of Canada. As I will describe later in these reasons, the Parole Board of Canada foundthat police did observe Mr. El Sayed attending at the “gang clubhouse”. The Parole Board of Canada did not accept Mr.

El Sayed’sposition in relation to these facts.

• July 29, 2021 - Mr. El Sayed’s Parole Officer suspended Mr. El Sayed’s statutory release for breach of his release conditions,pursuant to Corrections and Conditional Release Act, SC 1992, c 20 s 135(1) [CCRA]. Mr. El Sayed was arrested, and, ultimately,transferred to the Correctional Service Canada Bowden Institution medium security facility. • July 29, 2021 - Mr. El Sayed’s parole suspension was automatically and immediately referred to the Parole Board of Canadapursuant to CCRA s 135(5). That referral triggers a 90-day deadline for the Parole Board of Canada to review and issue a decisionconcerning Mr.

El Sayed’s status: Corrections and Conditional Release Regulations, SOR/92-620 s 163(3) [CCRR]. • August 9, 2021 - Mr. El Sayed was classified as requiring medium security detention by a written decision of Correctional ServiceCanada. • August 11, 2021 - A Parole Officer provided Mr. El Sayed with verbal notification of the reasons for his parole suspension. • August 12, 2021 - Mr. El Sayed submitted a rebuttal to being reclassified from minimum to medium security. • August 18, 2021 - Mr.

El Sayed’s medium security classification was confirmed by a written Correctional Service Canadadecision. • August 24, 2021 - A written decision of two Parole Officers recommended that the Parole Board of Canada revoke Mr. El Sayed’sstatutory release. • October 6, 2021 - Mr. El Sayed filed the current Application for habeas corpus relief with the Alberta Court of Queen’s Bench.Justice Grosse set Mr. El Sayed’s Application for a first Edmonton QBAC appearance on October 15, 2021. • October 15, 2021 - Simpson J then set the next appearance for Mr.

El Sayed’s Application to QBAC on October 29, 2021. • October 18, 2021 - El Sayed #1 was released in which I stayed Mr. El Sayed’s application, and cancelled the October 29, 2021appearance in QBAC. • October 18, 2021 - The Parole Board of Canada issued a detailed nine-page written decision that reviews Mr. El Sayed’s recordand background, and revoked Mr. El Sayed’s statutory release. Mr. El Sayed appeared by video conference at the hearing that led to thisdecision. The release of the Parole Board of Canada’s decision starts Mr.

El Sayed’s three months period to challenge the decision byappeal to the Parole Board of Canada Appeal Division.[1] • November 10, 2021 - Mr. Sayed’s Written Submission were received. • November 17, 2021 - The Respondents’ Written Reply was received. • November 17, 2021 - Mr. El Sayed submitted a two-page “Reply of Ali El Sayed”. • December 8, 2021 – Oral submissions were made in relation to this matter. [9] As is apparent from this timeline, there are two processes simultaneously underway by which Mr. El Sayed seeks releasefrom the Bowden Institution and resumption of his statutory release: 1.

Parole Board proceedings – Mr. Sayed disputed the basis of his statutory release suspension before the Parole Board of Canada,and 2. Habeas Corpus proceedings – Mr. Sayed filed the present Application, claiming he was unlawfully detained by order of theParole Board of Canada and its Parole Officers, and should be released via habeas corpus, unless that detention is proven to be lawful ona balance of probabilities. It appears that Mr. El Sayed is not disputing the lawfulness of the reclassification from minimum to medium security. Furthermore, atthis time, there is no evidence before me that Mr.

El Sayed has filed an appeal to the Parole Board of Canada Appeal Division from theOctober 18, 2021 Parole Board of Canada decision. B. Habeas Corpus Can Only Review Current Detention by Parole Board ofCanada [10] Habeas corpus is only relevant to current and ongoing detention.

Habeas corpus does not apply to hypothetical futuredetention, or historic detentions: Cundell v Bowden Institution, 2016 ABQB 348 at para 37, Dumas v Leclerc Institute, (SCC), [1986] 2 SCR 459 at paras 12-14, 34 DLR (4th) 427; R v Latham, [2000] OJ No 3720 at paras 21-23 (QL), 2000 CarswellOnt348 (Sup Ct J). “Habeas corpus is only a remedy for the here and now.”: Ewanchuk v Canada (Attorney General), 2017 ABQB 237 atpara 23, appeal abandoned, Edmonton 1603-0287AC (Alta CA). [11] It is clear from the record before me that Mr.

El Sayed’s current detention in the Bowden Institution is the result of decisionsof the Parole Board of Canada. The Alberta Court of Appeal in R v Latham, 2018 ABCA 308 at para 7, leave to appeal to SCC refused,38437 (14 March 2019) ruled that decisions made by Parole Officers are considered to be decisions of the Parole Board of Canada.Parole Officer decisions account for the period between July 29, 2021 and October 18, 2021. Mr. El Sayed’s post-October 18, 2021deprivation of residual liberty is the result of the Parole Board of Canada revoking Mr.

El Sayed’s statutory release. [12] Since habeas corpus only reviews the current decision that has resulted in a loss of residual liberty, that means that if thisCourt were to take jurisdiction over Mr. El Sayed’s Application, that review would evaluate the October 18, 2021 Parole Board of

Canada decision. C. Complete, Comprehensive, and Expert Process that Displaces Habeas Corpus [ 13 ] In El Sayed #1 at paras 13-17 , I reviewed Alberta and Canadian jurisprudence that has ruled provincial superior courts of inherent jurisdiction in Canada have no habeas corpus jurisdiction to review decisions of the Parole Board of Canada.

Since that is the keystone of this decision, I repeat my El Sayed #1 review of the relevant law on this point. [13] In Armaly v Canada , 2001 ABCA 280 at para 4 , Chief Justice Fraser explicitly concluded that proceedings before the Parole Board of Canada constitute 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 . [ 14 ] In El Sayed #1 at para 19 , I requested Mr.

El Sayed explain why this jurisprudence is wrong, and why I am not bound by the Armaly v Canada , 2001 ABCA 280 , R v Latham , 2018 ABCA 267 , and R v Latham , 2018 ABCA 308 . All are decisions of the Alberta Court of Appeal and all are binding upon me. III. Parties’ Submissions A. Mr. El Sayed

[15] The fundamental basis for Mr. El Sayed’s argument, which was made clear in his written materials and forcefully argued inoral submissions, is that this Court should take habeas corpus jurisdiction because, factually, the Respondents and the Parole authoritieshave offered no proof of the allegations against him. Mr. El Sayed argues that there is no proof that he attended at a “gang clubhouse”nor is there any proof that he has breached the terms of his statutory release/parole.

Therefore: ... the Parole Board of Canada had no grounds to embark upon any "apparatus" leading to his detention and revocation of parole, whichin such context, detention would be unlawful. [16] To emphasise this position, Mr. El Sayed argues that a higher standard of evidentiary proof was required than the informationrelied on by the Parole Board of Canada: ... the Parole Board acted, predicated solely upon unsubstantiated, said to be observations, without particulars, by unnamed officers, andby unspecified means, with inadequate unproven detail or disclosure. ...

Regardless of Armaly or Latham -the SCC has stated suchexercise of state power is subject to habeas corpus review. The Written Submission also express concerns including: allegations of inadequate disclosure; Parole authorities have provided noexplanation as to how Mr. El Sayed was observed at a rural acreage; and that Mr. El Sayed has made Freedom of Information andPrivacy requests to the Calgary Police Service, and is not satisfied with the response provided. [17] In his submission on the law, Mr.

El Sayed argues that decisions of the Supreme Court of Canada and the Alberta Court ofAppeal have effectively overruled Armaly v Canada and R v Latham.

On this basis he argues that any jurisprudence that indicates thatthe Parole Board of Canada is a complete, comprehensive, and expert procedure must “... be re-considered and applied very carefully, ifapplied at all.” Passages from the following decisions were referred to in support of this position: • Canada (Public Safety and Emergency Preparedness) v Chhina, 2019 SCC 29 at paras 3-8, 22-28, 35-36; • R v Shoemaker, 2019 ABCA 266 at paras 7-9, 12; • Wilcox v Alberta, 2020 ABCA 104 at paras 32, 34-35; • Dumas v Leclerc Institute, (SCC), [1986] 2 SCR 459 at paras 12-13; • Mooring v Canada (National Parole Board), (SCC), [1996] 1 SCR 75 at paras 34-36; • Steele v Mountain Institution, (SCC), [1990] 2 SCR 1385 at paras 63, 79; • May v Ferndale Institution, 2005 SCC 82 at paras 34, 41-42; • Mission Institution v Khela, 2014 SCC 24 at paras 29, 30, 54; and • DG v Bowden Institution, 2016 ABCA 52 at paras 27, 34-35, 45-46. [18] Mr.

El Sayed concludes that the jurisprudence identified in El Sayed #1 “... must be read in the context ...” of the decisionscited by Mr. El Sayed. Furthermore: ... by expressing the fundamental underlying goals of habeas corpus, these SCC and Court of Appeal decisions [referenced in thisresponse above] not only do not prohibit, but these SCC and Court of Appeal decisions clearly direct, that a habeas corpus application isjustified and appropriate.

Thus: These SCC and C of A decisions confirm that, before embarking on any "complete, comprehensive, and expert apparatus" by the ParoleBoard, the Parole Board must respond to this habeas corpus application, which challenges the grounds underlying the Parole Boardembarking on such process, by requiring the Parole Board to substantiate, in court, in this case, the claimed parole breach. B. The Respondents [19] Counsel for the Attorney General of Canada filed the Written Reply on behalf of the Respondents. The Written Reply focuseson a single critical point: Mr.

El Sayed’s Written Submissions simply do not respond to the question posed in El Sayed #1. TheRespondents stress that Armaly v Canada and R v Latham remain the law in Alberta. The Alberta Court of Appeal has ruled that theParole Board of Canada is a complete, comprehensive and expert procedure, and therefore falls outside habeas corpus review as aninstance of the “Peiroo” exception identified by the Supreme Court of Canada in Mission Institution v Khela, 2014 SCC 24 at paras 42,55. [20] The Respondents observe none of the passages cited by Mr.

El Sayed contradict or modify the Alberta Court of Appeal rulingthat the Parole Board of Canada is a complete, comprehensive, and expert procedure. The rationale for this legal position is that theParole Board of Canada’s process is at least as broad and advantageous as habeas corpus.

In commenting on this principle, the SupremeCourt of Canada in Canada (Public Safety and Emergency Preparedness) v Chhina at para 29 reaffirmed the validity of the complete,comprehensive, and expert procedure exception category, as protecting individual rights: ... while also realizing judicial economy, avoiding duplicative proceedings, and reducing the possibility of inconsistent decisions andforum shopping. [21] The Respondents also note that many of the authorities cited by Mr. El Sayed predate the Alberta Court of Appeal’s R v

Latham decisions, so what Justice Slatter ruled in the R v Latham decisions represents a statement of the existing law that currently binds the Alberta Court of Queen’s Bench. [ 22 ] As for the Dumas v Leclerc Institute and Steele v Mountain Institution decisions, the Respondents observe that in Mooring v Canada (National Parole Board) , Sopinka J at para 19 concluded these decisions predate how “... the granting of parole was substantially changed ...” with enactment of the CCRA : a complete, comprehensive, and expert statutory scheme.

The Respondents further note that DG v Bowden Institution only related to a competition between potential avenues of review in relation to decisions of the Parole Board of Canada Appeal Division: judicial review at the Federal Court of Canada vs habeas corpus at the Alberta Court of Queen’s Bench. That is unrelated to detention review by the Parole Board of Canada. [ 23 ] Other decisions identified by Mr.

El Sayed simply have nothing to do with the question of whether this Court has jurisdiction to conduct habeas corpus review of decisions of the Parole Board of Canada. [ 24 ] The Respondents indicate a second issue with Mr. El Sayed’s argument: he is attempting to parse out a part of the parole review process, a complaint about evidence and disclosure, and that falls squarely within the legislated function of the Parole Board of Canada. What habeas corpus does is tests detention. It does not test preliminary processes and procedures outside the reasons for why a person has experienced a reduction in liberty.

In short, Mr. El Sayed is not the target of a criminal proceeding, but something entirely different, that involves different rights, factors, and rules. [ 25 ] The Respondents submit that Mr. El Sayed’s habeas corpus application should be struck out per Rule 3.68, and seek $250 in costs. IV. Analysis [ 26 ] I accept and adopt the argument and conclusions of the Attorney General of Canada. Mr. El Sayed has not identified any basis for this Court to ignore or reject binding authority of the Alberta Court of Appeal. That ends this matter. The Alberta Court of Queen’s Bench has no jurisdiction to review Mr.

El Sayed’s current detention in Bowden Institution arising from the October 18, 2021 decision of the Parole Board of Canada. A. Allegedly Relevant and Determinative Jurisprudence [ 27 ] I will first address Mr. El Sayed’s claims that he has identified case law that means the Armaly v Canada and R v Latham decisions must “... be re-considered and applied very carefully, if applied at all.” [ 28 ] R v Shoemaker (ABCA) makes no mention of Armaly v Canada and addresses the legality of Correctional Service Canada’s transfer of a prisoner to a higher security level facility.

R v Shoemaker has nothing to do with the operation of the Parole Board of Canada and habeas corpus review of Parole Board of Canada decisions. R v Shoemaker is irrelevant. [ 29 ] Wilcox v Alberta (ABCA) addresses pre-trial detention of a prisoner in the Edmonton Remand Centre. Wilcox v Alberta does not cite Armaly v Canada and does not relate to the federal legislation and institutions that manage offenders and their interface with the Canadian public.

Wilcox v Alberta is irrelevant. [ 30 ] DG v Bowden Institution (ABCA) relates to the habeas corpus jurisdiction of this Court to evaluate decisions of the Parole Board of Canada Appeal Division. Another way to frame the result of DG v Bowden Institution is the Alberta Court of Appeal evaluated whether the Federal Court of Canada had exclusive jurisdiction to review decisions of the Parole Board of Canada Appeal Division, or whether that jurisdiction co-exists with a habeas corpus authority of the Alberta Court of Queen’s Bench.

Two of the judges hearing the appeal concluded that habeas corpus and judicial review co-exist. [ 31 ] Armaly v Canada was referred to in each of the three decisions of the DB court. Bielby JA at para 35 concludes Armaly v Canada “... is both distinguishable and has been overruled by the decision in [ May v Ferndale Institution ] ...”, thus providing at least some support for Mr. El Sayed’s position.

However, Wakeling JA concludes at para 103 that Armaly v Canada is irrelevant to the question of whether or not the Alberta Court of Queen’s Bench has habeas corpus jurisdiction to review decisions of the Parole Board of Canada Appeal Division. The third decision by Justice McDonald confirms Armaly v Canada and rejects habeas corpus review of Parole Board of Canada Appeal Division decisions. [ 32 ] The majority in DG v Bowden Institution did not reject Armaly v Canada . The question of how this Court and the Parole Board of Canada interact was never directly an issue.

Subsequently, in Ewanchuk v Canada (Parole Board) , 2017 ABCA 145 at para 22 , a full panel of the Alberta Court of Appeal instead questioned whether the result in DG v Bowden Institution was even correct, see also Perron v Tremblay , 2017 QCCA 1407 at para 14 . [ 33 ] I conclude that DG v Bowden Institution is either irrelevant, or does not overrule Armaly v Canada .

The subsequent R v Latham decisions of Slatter JA clearly reject that Armaly v Canada was overruled by DG v Bowden Institution . [ 34 ] In Dumas v Leclerc Institute (SCC), the Supreme Court of Canada rejected applying habeas corpus to a decision of the National Parole Board (the modern Parole Board of Canada’s precursor), instead observing that the remedy for the offender was judicial review by the Federal Court.

Furthermore, I agree with Counsel for the Attorney General that this decision is of limited relevance as it predates the current CCRA scheme. [ 35 ] Steele v Mountain Institution (SCC) contradicts the argument advanced by Mr. El Sayed. In this decision the Supreme Court of Canada did order habeas corpus relief after review of National Parole Board decisions, but then Justice Cory explicitly concluded that habeas corpus is the wrong mechanism to resolve the identified illegality :

... Since any error that may be committed occurs in the parole review process itself, an application challenging the decision should bemade by means of judicial review from the National Parole Board decision, not by means of an application for habeas corpus.

It wouldbe wrong to sanction the establishment of a costly and unwieldly parallel system for challenging a Parole Board decision ... [Emphasisadded.] [36] Cory J then explains that in Steele’s unusual situation, it would be wrong to “unwind” court review of the inmate’scircumstances, ... in view of Steele's age and the length of his detention, it would be unfair to require him to commence new proceedings by way ofjudicial review from the National Parole Board decision.

In these highly unusual circumstances, I would confirm Steele's release on thebasis of the application for habeas corpus. ... [37] I observe that Mr. El Sayed has not identified any case law from the Supreme Court of Canada that rejects this aspect of Steelev Mountain Institution.

I conclude that the primary instruction from Steele v Mountain Institution in relation to habeas corpusjurisdiction is that issues in relation to the parole review process must be assessed via judicial review and not habeas corpus. [38] Mooring v Canada (National Parole Board) (SCC) relates to the jurisdiction of tribunals to conduct Charter processes. Thisdecision is irrelevant to the question I posed to Mr.

El Sayed in El Sayed #1. [39] May v Ferndale Institution (SCC) evaluates whether provincial courts of superior inherent jurisdiction have a habeas corpusauthority to review transfer decisions of Correctional Service Canada inmates to higher security. This decision has nothing to do with theCanadian parole apparatus and its operation. Instead, the majority decision at paras 39-40 reaffirms that where legislation creates acomplete, comprehensive, and expert procedure, that displaces court habeas corpus authority.

Mission Institution v Khela (SCC)addresses the same general subject as May v Ferndale Institution, and never comments on operations of the Parole Board of Canada,and review of decisions of that tribunal. May v Ferndale Institution and Mission Institution v Khela are not directly relevant. [40] The final authority identified by Mr. El Sayed as countering Armaly v Canada is Canada (Public Safety and EmergencyPreparedness) v Chhina (SCC).

In one sense, this decision is relevant, because in that decision the Supreme Court of Canada examinedsituations where a gap may exist in an otherwise complete, comprehensive, and expert procedure. Those situations create a basis forhabeas corpus review by a superior provincial court of inherent jurisdiction. In Canada (Public Safety and Emergency Preparedness) vChhina the legislative scheme in question was the Immigration and Refugee Protection Act, SC 2001, c 27, rather than the parole systemthat balances public safety interests with the rehabilitation and reintegration of offenders like Mr. El Sayed.

Thus, Canada (Public Safetyand Emergency Preparedness) v Chhina has no direct relevance to Armaly v Canada, or to the question of whether or not the ParoleBoard of Canada is a complete, comprehensive, expert procedure. Canada (Public Safety and Emergency Preparedness) v Chhinanever mentions Armaly v Canada, or any parole-related issues. [41] I agree with the Respondents when they argue that Mr. El Sayed has not identified any jurisprudence that demonstrates thatArmaly v Canada and R v Latham are no longer good law in Alberta. Mr.

El Sayed provides no basis that would permit me to ignoreprecedent established by the Alberta Court of Appeal. Based on binding authority, this Court has no habeas corpus jurisdiction over theParole Board of Canada’s decision to revoke Mr. El Sayed’s statutory release on October 18, 2021. That ends the CPN7 process. Mr. ElSayed’s Application is struck pursuant to Rule 3.68. B.

Whether the Parole Board of Canada is a Complete, Comprehensive, andExpert Procedure. [42] While not necessary given the conclusion reached earlier, I will nevertheless comment on the broader principles identified byJustice Karakatsanis in Canada (Public Safety and Emergency Preparedness) v Chhina to determine whether this might provide someassistance to Mr. El Sayed.

More specifically I have considered whether the principles described in Chhina might be applicable todistinguish the Alberta Court of Appeal’s consistent conclusions that the Parole Board of Canada is a complete, comprehensive, andexpert procedure that displaces this Court’s habeas corpus jurisdiction. [43] The keystone of the decision in Canada (Public Safety and Emergency Preparedness) v Chhina was that the Supreme Courtagreed with the Ontario Court of Appeal’s conclusion that when someone is scheduled to be deported, and is detained for that purpose,then if that detention becomes indeterminate, that is a Charter s 7 breach. [44] Indeterminate detention is not an issue for Mr.

El Sayed, provided he does not re-offend so that his prison term is extended.Mr. El Sayed will be released into the public, no matter what else, on December 3, 2022. Until then, Mr. El Sayed remains subject to hiscriminal conviction and sentence, executed in compliance with the terms of the CCRA and CCRR. The law in Canada is clear that habeascorpus cannot be used to attack or unwind an unappealed criminal conviction and/or sentence: May v Ferndale Institution at para 36; Rv Sarson, (SCC), [1996] 2 SCR 223 at para 32. 1. No Basis for Statutory Release Suspension [45] Mr.

El Sayed, in his Affidavit of October 6, 2021, does make several complaints as to why he says the Parole Board ofCanada is an inferior mechanism for him to obtain release based on his complaint that he has never breached the terms of his statutoryrelease. Mr. El Sayed says the process that he experienced was unfair, and he disputes the Parole Board of Canada’s conclusion in hiscase. Mr. El Sayed says that the claims about his activities on July 28, 2021 are false. He insists that his account of the facts that hepresented to the Parole Board of Canada are the entire truth. [46] In the proceedings before me, Mr.

El Sayed is arguing a question of facts and credibility. The Parole Board of Canada’sdecision reviews how Mr. El Sayed obtained a travel permit to travel from Edmonton to Calgary on July 28-30, 2021, and that policeofficers observed Mr. El Sayed attend a known gang clubhouse on the evening of July 28, 2021. The Parole Board of Canada decision

carefully reviews the alibi provided by Mr. El Sayed’s girlfriend. The Parole Board of Canada carefully reviewed Mr. El Sayed’s explanation that the police report was a total fabrication. Mr. El Sayed, prior to and at his Parole Board of Canada hearing, disputed that he breached the terms of his statutory release. Mr. El Sayed at his hearing went further, and claimed police have a prior history of fabricating bad conduct claims about him. [ 47 ] The Parole Board of Canada decision explains why the tribunal preferred the police report over Mr.

El Sayed’s claims he was at the time walking down Elbow Drive in Calgary. The decision notes Mr. El Sayed’s lengthy history of associating and aligning with gang members. Mr. El Sayed had deviated from his travel pass plan. He was evasive, argumentative, and abusive when confronted by his breach of his release conditions. Mr. El Sayed’s final “last word” statement was that he denied everything.

The Parole Board of Canada conducted a careful review of the contested evidence, and concluded: ... it is overwhelmingly more likely that the police relayed the information to the [Correctional Service Canada] for public safety reasons than for any vengeful spiteful or retaliatory reasons. ... [ 48 ] Counsel for the Attorney General has called this fact and credibility analysis an ordinary precursor to a decision-maker coming to a ruling.

Courts do this, and so does the Parole Board of Canada, though the latter entity does operate in a distinct context, which Sopinka J in Mooring v Canada (National Parole Board) at para 26 described as: ... the Parole Board does not hear and assess evidence, but instead acts on information. The Parole Board acts in an inquisitorial capacity without contending parties -- the state's interests are not represented by counsel, and the parolee is not faced with a formal "case to meet". ... That approach reflects that the Parole Board of Canada function. The tribunal is not a Court.

It does not try and convict an accused, but instead deals with management of criminal offenders, persons that Canadian courts have already ruled must be separated and incarcerated for the public’s benefits and safety. [ 49 ] I conclude Mr. El Sayed’s complaints on credibility have nothing to do with whether the Parole Board of Canada is a complete, comprehensive, and expert procedure, and instead are all about Mr. Sayed failing in a credibility competition. The Parole Board of Canada’s conclusion might be wrong, but that is a question for the Parole Board of Canada Appeal Division.

Failure to exhaust administrative processes is an abuse of the Court: Al-Ghamdi v Alberta , 2017 ABQB 684 at paras 126-128 , aff’d 2020 ABCA 81 , leave to appeal to SCC refused, 39389 (February 5, 2021). [ 50 ] Furthermore, Mr. El Sayed is wrong when he characterizes the Parole Board of Canada’s decision to revoke his statutory release as having no basis at all, because the police report on Mr. Sayed’s July 28, 2021 activities is (purportedly) a malicious fabrication. Instead, the written decision of the Parole Board of Canada shows a careful review of Mr.

El Sayed’s entire background, his offenses, his entire detention and re-integration history, including how Mr. El Sayed had repeatedly failed to conform to release conditions and restitution orders, Mr. Sayed’s conflicts inside and outside Correctional Service Canada facilities, and many other relevant factors. In

summary, the procedure and analysis engaged by the Parole Board of Canada is a detailed, wide-spanning review of the offender and his record, and provided a high degree of procedural fairness. While the mechanics of the Parole Board of Canada and Canadian courts are different, I see no factual basis which would permit me to reject the Alberta Court of Appeal’s conclusion in Armaly v Canada that offenders subject to CCRA and CCRR parole and statutory release mechanisms are in any sense disadvantaged by the Parole Board of Canada, as a complete, comprehensive, and expert procedure. 2.

Courts are Faster than the Parole Board of Canada [ 51 ] The other complaint by Mr.

El Sayed in his Affidavit is that the Parole Board of Canada process is too slow: ... if I follow the grievance and review procedures through the Parole Board and Corrections Canada, that by the passage of time such as process will take, the matter will be largely moot because I will have been detained for a significant period of time before a final decision shall be reached. [ 52 ] Justice Karakatsanis in Canada (Public Safety and Emergency Preparedness) v Chhina concluded habeas corpus provides a timelier response than a Federal Court judicial review of an immigration detention.

However, in subsequent decisions of the Federal Court of Appeal this conclusion was demonstrated to be inaccurate: Teksavvy Solutions Inc v Bell Media Inc ., 2020 FCA 108 at para 66 ; Brown v Canada (Citizenship and Immigration) , 2020 FCA 130 at 156-161. In the later case, Rennie JA observed that the Federal Court responded to and disposed of Chinna’s judicial review claim in a week, which is less time than was required to conduct a habeas corpus process: para 157.

Justice Rennie continues to conclude that judicial review is a broader remedy than habeas corpus , and is at least as “robust”: para 161. [ 53 ] May v Ferndale Institution at paras 39-40 makes it clear that the test to evaluate whether legislation has created an alternative mechanism that is a complete, comprehensive, and expert procedure is whether the non- habeas corpus mechanism provides equivalent or better processes for a detained person.

Legislation requires the Parole Board of Canada deliver a decision to confirm or reject a parole or statutory release suspension within 90 days from the date of suspension: CCRA s 135(5), CCRR s 163(3). In Mr. El Sayed’s case, his Parole Board of Canada decision was issued in 81 days. [ 54 ] The Alberta Court of Queen’s Bench has been closely tracking habeas corpus activity since habeas corpus applications became more prevalent following the release of Mission Institution v Khela . This Court has received a total of 44 habeas corpus applications since 2018.

The very large majority were filed by persons incarcerated in Correctional Service Canada facilities. Of those applications, 10 were discontinued, and 26 were struck out via triage processes as hopeless and an abuse of the Court. Seven applications proceeded to a full hearing. The average time between the filing of the seven valid habeas corpus applications, and the post-hearing decision was 77 days. [ 55 ] I have excluded habeas corpus proceedings prior to 2018 since at that point the Alberta Court of Queen’s Bench had not

implemented a triage process for habeas corpus , like the current CPN7. If I had included pre-2018 habeas corpus applications that proceeded to a full hearing, then the average time between filing to the full hearing would be substantially longer. [ 56 ] The substantial time required to complete these habeas corpus processes through to a full hearing and decision is not because the Court does not attempt to prioritize these matters. Instead, it does exactly that: Ewanchuk v Canada (Attorney General) .

While many issues contribute to the typical habeas corpus application timeline, two major factors are limited court resources, and the often very substantial materials implicated in applications by offenders to challenge decisions related to their detention. [ 57 ] The certified records that result often amount to many hundreds, or sometimes thousands, of pages, which creates a substantial workload for Respondents and the Courts to review, prepare argument, and conduct analyses.

Habeas corpus complaints by criminal offenders concerning their incarceration are often large and complex matters, rather than the “swift,

summary” proceedings imagined by those unfamiliar with this category of litigation. [ 58 ] In any case, there is no evidence to support Mr. El Sayed’s claim that his prospects to have his statutory release reinstated are faster in Court than via the Parole Board of Canada. The Parole Board of Canada evaluated Mr. El Sayed’s statutory release in 81 days. Mr. El Sayed waited 69 days to file his habeas corpus application. If Mr. El Sayed’s matter had proceeded to a full habeas corpus hearing, then, on average, Mr.

El Sayed’s application would be decided at the Alberta Court of Queen’s Bench 146 days after his statutory release was suspended, almost twice the time required for the Parole Board of Canada to respond via a hearing with Mr. El Sayed’s personal appearance, and then detailed written reasons. [ 59 ] Given these facts, I conclude that the timeliness factor identified in Canada (Public Safety and Emergency Preparedness) v Chhina is not a basis to conclude the Alberta Court of Appeal decision in Armaly v Canada was wrong.

Habeas corpus is not a more rapid mechanism to evaluate parole-related detentions than review by the Parole Board of Canada. V. Conclusion [ 60 ] Mr. El Sayed’s Application is dismissed. Mr. El Sayed has not successfully argued that 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 .

I conclude the Alberta Court of Queen’s Bench is bound by the decisions of the Alberta Court of Appeal and has no jurisdiction to conduct habeas corpus reviews of decisions of the Parole Board of Canada and its delegates. [ 61 ] Costs are typically awarded against the applicant when this Court strikes out a habeas corpus application as an abuse of the Court’s processes: Loughlin v Her Majesty the Queen , 2018 ABQB 45 . The Respondents seek $250 in costs. Mr. El Sayed is ordered to pay that amount, forthwith. Written Submissions Received: November 10, 2021, November 17, 2021 and November 17, 2021.

Oral Submissions Heard on December 8, 2021 Dated at the City of Edmonton, Alberta this 13 th day of December, 2021. John T. Henderson J.C.Q.B.A. Appearances: Clive O. Llewellyn Llewellyn Law for the Applicant Matthew Chao & Katherine Starks Department of Justice Canada Prairie Region, Edmonton Office

for the Respondents