The issue on this appeal was whether a parole suspension due to failure to comply with conditions of parole could be challenged by way of habeas corpus where automatic review of the suspension is available under the Corrections and Conditional Release Act, S.C. 1992, c. 20 (“CCRA”). The appellant had been sentenced to 26 months’ imprisonment for various drug offences. Three weeks after being released into the community on parole, his parole was suspended by his parole officer’s supervisor due to a lack of compliance with certain financial disclosure obligations, failure to provide information on his associations, and his suspected involvement in drug-related conduct. Although the suspension was under automatic review pursuant to the National Parole Board (“NPB”) review process under the CCRA, the appellant also challenged it by way of habeas corpus. The Superior Court justice hearing the application declined jurisdiction on the basis that the CCRA constituted a “complete, comprehensive and expert procedure” for review of the suspension. Subsequently, the NPB affirmed the suspension and revoked the appellant’s parole, and its Appeal Division dismissed his appeal.
A unanimous Court of Appeal dismissed the appellant’s appeal. Although noting that superior courts should be reluctant to decline jurisdiction to hear a habeas corpus application, the Court recognized that the Supreme Court of Canada had concluded it was appropriate to do so in instances where “there is in place a complete, comprehensive and expert procedure for review of an administrative decision”. The Court concluded that the NPB process for administering review of parole was such a procedure. It noted that following the recommitment of an offender after a breach of parole, s. 135 of the CCRA requires that the parole officer supervisor forthwith review the offender’s case and either cancel the suspension or refer the matter to the NPB for review within a tight statutorily defined time frame (within 14 days if the offender is serving a sentence of less than two years, and within 30 days in any other case). Pursuant to that same section, the NPB must then review the case and, within 90 days, either cancel the suspension or terminate or revoke the parole.
The Court declined to follow a decision of the British Columbia Supreme Court in which it was held that there was an impermissible gap in the CCRA procedure because an inmate could be imprisoned for up to 30 days before the suspension was required to be referred to the NPB, and the NPB did not specifically have the power to review the decision for errors of law nor was it directed to inquire specifically into the merits of the parole officer supervisor’s decision. The Court held that the possibility of detention without review for up to 14 or 30 days restricted the offender’s liberty in a manner that would otherwise entitle him or her to challenge the legality of this detention by way of habeas corpus, but that this was not sufficient to take the CCRA procedure outside a “complete, comprehensive and expert procedure for review”. It also noted that, as a practical matter, a habeas corpus application would be unlikely to be determined more quickly than this time period.
The Court also noted that s. 135 of the CCRA should not be read so narrowly as to preclude the considerations raised by the appellant, and stated that the NPB will “undoubtedly” take into account the substantive reasons for the suspension as part of the overall review. It also noted that there are wide-ranging statutory grounds of appeal to the Appeal Division of the NPB, including error of law, and that the decision of the Appeal Division is reviewable by the Federal Court.
February 22, 2011
Link to Decision
Julia Wilkes
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