R v Richer, 2019 SKCA 134

Court of Appeal for Saskatchewan Docket: CACR3299 Citation: R v Richer , 2019 SKCA 134 Date: 2019-12-16 Between: Jean Richer Appellant (Applicant) And Her Majesty the Queen Respondent (Respondent) Before: Richards C.J.S., Jackson and Kalmakoff JJ.A. Disposition: Appeal dismissed Written reasons by: The Honourable Chief Justice Richards In concurrence: The Honourable Madam Justice Jackson The Honourable Mr. Justice Kalmakoff On Appeal From: 2019 SKQB 193 , Prince Albert Appeal Heard: December 2, 2019 Counsel: Jean Richer appearing on his own behalf Sean Sass and Nicole Sample for the Respondent Richards C.J.S. I.

Introduction [ 1 ] Jean Richer appeals from a Queen’s Bench decision dismissing his application for a writ of habeas corpus . As explained below, his appeal must be dismissed. II. background [ 2 ] Mr. Richer is serving a life sentence in Saskatchewan Penitentiary. [ 3 ] Mr. Richer prepared an application for day parole and provided it to his parole officer on February 11, 2019. This was done in the expectation that the parole officer would deliver the application forthwith to the Parole Board [Board]. The parole officer forgot to send the application to the Board until May 23, 2019.

A review hearing was then scheduled by the Board for October of 2019. [ 4 ] Section 157(2) of the Corrections and Conditional Release Regulations , SOR/92-620 [ Regulations ], provides that the Board shall review the case of an offender who applies for day parole within six months after receiving the application. Mr. Richer took the position that the Board had received his application when it was delivered to his parole officer and that, because a review would not be conducted within six months of that date, the Board had “lost jurisdiction”.

He filed an application for a writ of habeas corpus and, by way of relief, asked that he be discharged unconditionally from custody. [ 5 ] The Chambers judge ruled against Mr. Richer. See: 2019 SKQB 193 . First, he found that delivery of the application to the parole officer was not delivery to the Board and that, as a result, there was no breach of s. 157(2) of the Regulations . Second, the Chambers judge concluded that, even if he was wrong about the alleged breach of s. 157(2), Mr. Richer was not entitled to a writ of habeas corpus because there had been no change to his residual liberty interests.

Third, and in any event, the Chambers judge concluded that ordering an unconditional release would not be an appropriate remedy even if Mr. Richer had experienced an unlawful deprivation of liberty by virtue of a breach of s. 157(2). III. analysis [ 6 ] Mr. Richer takes issue with each branch of the Chambers judge’s reasoning. He contends the Chambers judge erred in his consideration of (

a) whether s. 157(2) of the Regulations had been breached, (

b) whether he had suffered an unlawful deprivation of liberty, and (

c) whether the relief requested was appropriate. I will briefly address each of these points in turn. A. Breach of s. 157(2) of the Regulations [ 7 ] Mr. Richer’s argument concerning s. 157(2) of the Regulations reduces to a question about the status or role of his parole officer. The respondent stresses that the officer was an employee of Corrections Service Canada [CSC], an institution that is legally separate and distinct from the Board, and suggests he was no more than an administrative functionary who forwarded paperwork. Mr.

Richer, on the other hand, points to the Board’s website which, in explaining how to apply for parole, concludes by saying, “When you’re done, give [the application] to your Parole Officer who will give it to the Parole Board”. Second, Mr. Richer stresses that the Board’s “Application for Parole” form contains, at the bottom, a signature line over the words “Name of PO/Provincial/Territorial Case Worker” and that beside the signature line are the words “Application received by/demande reçu par”. Third, Mr.

Richer notes paragraph 10 of the affidavit he filed in the Court of Queen’s Bench which explains that, in 2013, he had been chastised by the CSC for sending a parole

application directly to the Board, rather than giving it to a parole officer. Taking all of these considerations into account, Mr. Richerargues that, in effect, his parole officer should have been seen to be an agent of the Board with the result that delivery of his application tothe parole officer was delivery to the Board for purposes of considering the operation of s. 157(2). [8] There is at least some merit in Mr. Richer’s position.

However, the evidentiary underpinnings of this issue were not welldeveloped in the Court of Queen’s Bench and the status of the parole officer is ultimately not something that has to be resolved in order todecide this appeal. As a result, I think it best to leave the question about the parole officer to another day. Accordingly, without actuallydeciding the point one way or the other, I will proceed on the assumption that the Board received Mr. Richer’s application when he gave itto his parole officer and that, when the Board hearing was not scheduled until October of 2019, Mr.

Richer faced a situation where,contrary to s. 157(2) of the Regulations, his application for day parole would not be heard within six months of the Board receiving it. B. Deprivation of liberty [9] Mr. Richer submits the Chambers judge erred in finding that, even if the Board had failed to comply with s. 157(2) of theRegulations, habeas corpus was not available because he was not deprived of residual liberty. Mr. Richer contends the loss of hisopportunity to seek day parole on a timely basis was itself a denial of liberty. [10] I am not persuaded by Mr. Richer’s submission.

The most helpful authority on this front is Dumas v Leclerc Institute, (SCC), [1986] 2 SCR 459 [Dumas]. There, the Supreme Court underlined that habeas corpus is available to challenge anunlawful deprivation of liberty. In the corrections context, the Court explained there are three different possible deprivations of liberty: theinitial deprivation; a substantial change in conditions amounting to a further deprivation; and a continuation of the deprivation.

Withrespect to that third category of deprivation of liberty, Lamer J. (as he then was) explained as follows at pages 464–465: The continuation of an initially valid deprivation of liberty can be challenged by way of habeas corpus only if it becomes unlawful. In thecontext of parole, the continued detention of an inmate will only become unlawful if he has acquired the status of a parolee. An inmateacquires that status as of the moment the decision to grant him parole takes effect. Thus, if parole is granted effective immediately, hebecomes a parolee when the decision is rendered.

If, for some reason, the restriction to his liberty continues, he may then have access tohabeas corpus. If parole is granted effective at some later date, then the inmate acquires the status of parolee at that date and not at thedate of the decision. Similarly, where a decision is made to grant parole but it is subject to the fulfilment of a condition, the inmate onlybecomes a parolee if and when the condition is fulfilled. If he is not released on parole when the term arrives or the condition is fulfilled,then he may resort to habeas corpus.

Finally, if parole is refused, it is obvious that the inmate has not become a parolee and he cannothave recourse to habeas corpus to challenge the decision. (Emphasis added) [11] In the circumstances here, Mr. Richer never acquired the status of a parolee. It follows that the continuation of his initialdeprivation of liberty, a deprivation which he does not suggest is invalid, cannot be challenged by way of habeas corpus. The merepossibility that he might be granted day parole when the Board hears his application is not enough to entitle Mr. Richer to the relief heseeks.

In short, there is no basis for this Court to take issue with the Chambers judge on this point. [12] I have reviewed the cases relied on by Mr. Richer in support of this aspect of his appeal. Gallichon v Canada (Commissioner ofCorrections) (1995), (ON CA), 101 CCC (3d) 414 (Ont CA) [Gallichon], concerned an application for a writ of habeascorpus aimed at challenging Mr. Gallichon’s ongoing incarceration based on a finding that he was a habitual criminal. The Courtconcluded that Mr. Gallichon did not meet the criteria for being found a habitual criminal and, as a result, ordered his unconditionalrelease.

This, obviously, was a different situation than the one here because Mr. Gallichon’s ongoing detention was unlawful. Mr. Richer’sis not. Woodhouse v Canada (Correctional Service), 2010 BCSC 754, is also unhelpful. Mr. Woodhouse was on full parole when heappeared before his parole officer in an apparent state of intoxication. His parole was suspended and he was incarcerated. Mr. Woodhousethen sought a writ of habeas corpus arguing that procedural fairness problems in relation to the parole suspension made it unlawful. TheChambers judge agreed with Mr. Woodhouse.

However, this was a situation where there was no doubt that Mr. Woodhouse’s libertyinterests had been affected when he was jailed. Therefore, his circumstance is clearly distinguishable from the one at issue here. TheChambers decision in Gallichon was overturned on appeal (2012 BCCA 45, 316 BCAC 80) when the British Columbia Court of Appealheld that, because the Corrections and Conditional Release Act, SC 1992, c 20, offered a complete, comprehensive and expert process forreviewing decisions concerning the suspension of parole, the Chambers judge had erred in deciding to exercise his habeas corpusjurisdiction.

The cases cited by Mr. Richer in the court below, Chiu v National Parole Board, 2007 BCCA 171, 238 BCAC 295, andFraser v Kent Institution, (BC CA), 130 CCC (3d) 393 (BCCA), are, as explained by the Chambers judge, alsodistinguishable. Thus, in short, the authorities relied on by Mr. Richer do not support his argument. [13] To be clear, the rejection of Mr. Richer’s submission on this point does not mean that an inmate faced with a failure by theBoard to act within statutorily prescribed timelines is without a remedy.

Any such failure can be addressed by way of an application to theFederal Court, pursuant to s. 18 of the Federal Courts Act, RSC 1985, c F-7, for a writ of mandamus to compel the Board to conduct ahearing within the prescribed time. A prisoner facing this sort of issue might also, in some circumstances, be able to claim relief under s.24(1) of the Charter compelling the Board to conduct a hearing. See: Dumas at page 465. C. Remedy [14] Mr. Richer seeks relief in the form of an order that he be unconditionally released from prison.

He also made reference in hisoral argument to damages pursuant to s. 24(1) of the Charter. [15] I agree with the Chambers judge that, even if it was possible to find that the Board had failed to comply with s. 157(2) of theRegulations, unconditional release would not be a proper remedy. As the Chambers judge observed, a more appropriate response to such aproblem would be an order directing the Board to hear the application for day parole in a timely fashion. [16] As for damages pursuant to s. 24(1) of the Charter, this is not relief that Mr. Richer claimed in his application in the court

below. He sought only to be released unconditionally. Charter damages are, therefore, not something that should be considered on appeal. IV. conclusion [ 17 ] I conclude that Mr. Richer’s appeal must be dismissed. [ 18 ] The Chambers judge declined to award costs in favour of the respondent because Mr. Richer’s application was not frivolous. Similar logic applies here. There will be no order with respect to costs. “Richards C.J.S.” Richards C.J.S. I concur. “Jackson J.A.” Jackson J.A. I concur. “Kalmakoff J.A.” Kalmakoff J.A.