Blais v. Correction Service Canada, 2011 NSSC 508

SUPREME COURT OF NOVA SCOTIA Citation: Blais v. Correction Service Canada, 2011 NSSC 508 Date: 20111129 Docket: Amh. No. 354951 Registry: Amherst Between: Michel Joseph Blais Applicant - and - Correction Service Canada (Springhill Institution) Respondent Judge: The Honourable Justice Cindy A.

Bourgeois Heard: November 29, 2011, in Amherst, Nova Scotia Oral Decision: November 29, 2011 Written Decision: February 29, 2012 Counsel: Michel Joseph Blais, self-represented Sandra Doucette, for the respondent By the Court : [ 1 ] I am prepared this afternoon to render my decision in relation to the jurisdictional issue that has been brought forward by the Attorney General of Canada, seeking this court to decline its jurisdiction to hear Mr. Blais’ habeas corpus application. Again, I want to thank both Ms. Doucette and Mr. Blais for the helpful submissions that have been provided.

The material that has been provided, most notably the case law, has been considered by me in reaching my decision this afternoon. [ 2 ] Mr. Blais is currently an inmate at the Springhill Penitentiary which I understand is a medium security federal institution. He has brought an application before this court for habeas corpus with certiorari- in-aid. It appears to have been dated July 30 th , 2011 and filed September 2 nd , 2011. In a

section of the application entitled “Relief Sought”, Mr. Blais writes:

“The applicant requests that the Honourable court order a full complete record of OMS, Offender Management System, including ParoleBoard of Canada recordings, transcripts and e-mail communications in English of the following hearing dates, 20101109, 20101207 andfor Correction Services of Canada, Springhill, Nova Scotia to use all relevant, reliable and persuasive information to release Mr.

Blais inaccordance with the statutory release date 20110915 to a less restrictive sanction of liberty that is appropriate in the circumstances suchas the return to the Moncton community based residential facility to assist with his reintegration back into his community where he hasthe support of his family and which would enable him to work towards becoming a productive law abiding member of society.” [3] I understand from the material that Mr. Blais has also filed a Notice of Application for judicial review in the Federal Court of Canada.

That appears to be dated June 28th, 2011 and filed September 6th, 2011. [4] Although the relief sought before the Federal Court is worded somewhat differently than the relief sought in this Court, it isclear that both applications centre around a common set of facts and concerns consistently and repeatedly expressed by Mr. Blais. [5] It would appear that Mr. Blais had been granted day parole after having served federal time, I believe in the Westmorland Institution. He was in the Moncton area where he has family support. [6] Based on the materials that I have reviewed, Mr.

Blais while originally incarcerated, was described in very favourable termsby those in the prison community. He was described as being polite, respectful, a hard worker and a good student. All very good things. And likely those types of attributes contributed to him being granted originally day parole, which I understand was in or aroundSeptember of 2009. [7] I also understand that at some point his day parole was suspended, but then reinstated by the National Parole Board. However, on December 7th, 2010 Mr. Blais’ day parole was once again revoked by the National Parole Board. Mr.

Blais appealed this decision, as he is entitled to do, with the appeal division of the National Parole Board ultimately upholding the revocation on May 27th,2011. [8] Mr. Blais takes issue not only with those decisions, but with the information provided by Correction Canada personnel to theParole Board. He asserts, and he has consistently done so, that the information provided to the Parole Board was incomplete and muchof the information was inaccurate or misleading.

He has been diligently attempting to obtain full disclosure of documentation he feelswould be of assistance in establishing that the decision made by the National Parole Board was unjust. [9] Today I have to decide whether this court should exercise its jurisdiction to hear Mr. Blais’ habeas corpus application. It isclear, as acknowledged by counsel for the Attorney General of Canada, that this Court does have jurisdiction.

It is further clear thatprovincial superior courts do have a role, in fact an obligation to diligently guard against the erosion of the habeas corpus remedy and inparticular its continuing application in the prison context. [10] This mandate was made clear by the Supreme Court of Canada in the decision of May v. Ferndale Institution, 2005 SCC 82, [2005] 3 S.C.R. 809 which I know both Mr. Blais and Ms. Doucette are familiar with. It is the

interpretation of that decisionand that court’s direction as it relates to this Court’s role in habeas corpus applications which is central to the jurisdictional issue I haveto deal with today. [11] All of the recent cases acknowledge that long gone are the days that an inmate in an institution is viewed as being withoutrights. Inmates have residual freedoms and liberties, notwithstanding the fact of their incarceration. The Charter of Rights andFreedoms apply with respect to those residual rights and freedoms as much as they apply to any other citizen.

That has been taken intoconsideration and confirmed by many courts, and of course by the Supreme Court of Canada in May v. Ferndale. [12] How May, supra, is to be interpreted and what it means in terms of whether or nor a provincial superior court should exerciseits inherent jurisdiction has received a fair degree of

interpretation. It has recently been addressed by the Ontario Court of Appeal in thedecision R. v. Graham, 2011 ONCA 138. There writing for the court Justice Blair states:

“There is no dispute that provincial superior courts retain an important jurisdiction to hear habeas corpus applications brought by aprisoner alleging unlawful restriction of his or her liberty, and do so in spite of the fact that such allegations may also be challengedelsewhere. 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 insome circumstances, and one circumstance where the Supreme Court of Canada has indicated it is appropriate to decline jurisdiction iswhere “there is in place a complete, comprehensive and expert procedure for review of an administrative decision:” May v. FerndaleInstitution, 2005 SCC 82 , [2005] 3 S.C.R. 809. [13] At paragraph nine Justice Blair goes on and says: The rationale underlying the exceptions referred to above is rooted in the risks associated with parallel procedures and the ineffective useof public resources flowing from such procedures.

Cory J. succinctly explained these policy reasons, in the National Parole Boardcontext, in Steele v. Mountain Institution, (SCC), [1990] 2 S.C.R. 1385: 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 decision.

As well, it isimportant that the release of a long-term inmate should be supervised by those who are experts in the field. [14] Justice Blair goes on at paragraph 10 and states: The question here, then, is whether the CCRA provides “a complete, comprehensive and expert procedure” for administering the parolereview process. In my view, it does. [15] The Ontario Court of Appeal was also invited to consider and apply the reasoning of the British Columbia Supreme Court inWoodhouse v. William Head Institution, 2010 BCSC 754, a case which Mr. Blais has brought to the attention of this court.

He reliesupon Woodhouse in support of his argument that this Court should exercise jurisdiction, notwithstanding the fact that this is a parolematter.

The Ontario Court of Appeal in the Graham decision rejected the reasoning in Woodhouse. [16] The Ontario Court of Appeal also recognized that notwithstanding there being a complete and comprehensive parallel statutoryregime in existence, that there could be circumstances where a provincial superior court should still go ahead and exercise jurisdiction. [17] The Ontario Court of Appeal however indicates at paragraph 16 of its decision that: The CCRA establishes a complete and comprehensive procedural regime for the review and appeal of a parole officer supervisor’sdecision to suspend parole.

In addition, the process is carried out at its various stages by experts in the parole field. [18] The court goes on to indicate that because of that system that was put in place, habeas corpus matters could not be viewed as atype of exception that was being contemplated by the Supreme Court of Canada and other Court of Appeal authorities, in particular thosepointed out by Ms. Doucette this morning. I adopt and agree with the views of the Ontario Court of Appeal. [19] I further have reviewed a recent decision of this court in Wilson v.

Canada (Attorney General), 2011 NSSC 143 whereJustice Wright declined jurisdiction in a habeas corpus application brought by a federal inmate, also challenging the validity of aNational Parole Board decision in part based upon failure to provide full documentary disclosure. The Wilson case and the present one,in my view are virtually identical in terms of the legal issues under review. [20] I adopt the reasoning of Wright, J. in Wilson as being appropriate and further directly inline with the Ontario Court of Appeal’s

reasoning in Graham and the exception as outlined by the Supreme Court of Canada in May v. Ferndale Institution . [ 21 ] Mr. Blais has legitimate concerns that need to be addressed with respect to documentary disclosure. However, for the reasons stated above, those concerns should be, and are better addressed in the Federal Court. [ 22 ] The motion of the Attorney General requesting this Court to decline jurisdiction is granted. Ms. Doucette, I noted in the written submissions that your client was seeking costs in relation to this matter. In the circumstances, I am not inclined to consider costs in this matter. J.