D.G. v. Bowden Institution (Warden) et al., 2015 ABQB 373

• Judge: Pentelechuk, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: May 14, 2015
• Citations: 2015 ABQB 373;(2015), 611 A.R. 34 (QB)

D.G. v. Bowden Institution (Warden) (2015), 611 A.R. 34 (QB)

MLB headnote and full text

Temp. Cite: [2015] A.R. TBEd. JN.071

D.G. (applicant) v. Dave Pelham - Warden of Bowden Institution and the Parole Board of Canada (respondents)

(150254852X1; 2015 ABQB 373)

Indexed As: D.G. v. Bowden Institution (Warden) et al.

Alberta Court of Queen's Bench

Judicial District of Edmonton

Pentelechuk, J.

June 9, 2015.

Summary:

In January 2012, the applicant pleaded guilty to two counts of sexual interference and one count of inviting sexual touching respecting his stepdaughters. He was sentenced to five years' imprisonment. The Parole Board of Canada (PBC) granted the applicant day parole in May 2013 and revoked it in November 2013, finding that the applicant had breached the condition that prohibited him from having direct or indirect contact with his stepdaughters. The Appeal Division of the PBC upheld the revocation. The applicant applied for an order of habeas corpus with certiorari in aid, alleging that the revocation was unlawful and procedurally unfair. The Attorney General of Canada applied to dismiss the application, arguing that the court lacked jurisdiction because the Corrections and Conditional Release Act provided a comprehensive and complete statutory scheme for administering review of parole decisions. Pentelechuk, J., dismissed the application to dismiss with oral reasons. The Attorney General appealed Pentelechuk, J.'s decision to take jurisdiction and applied for a stay of the hearing scheduled for the applicant's application. Pentelechuk, J., dismissed the stay application with oral reasons.

The Alberta Court of Queen's Bench granted the applicant's application for habeas corpus. Under s. 24(1) of the Charter, the court ordered that the applicant be released into the community with conditions to be determined by the PBC. The court also provided written reasons for its dismissal of the Attorney General's earlier applications.

Editor's Note: Certain names in the following case have been initialized or the case otherwise edited to prevent the disclosure of identities where required by law, publication ban, Maritime Law Book's editorial policy or otherwise.

Administrative Law - Topic 2266

Natural justice - The duty of fairness - What constitutes procedural fairness - [See fourth Criminal Law - Topic 5667 ].

Administrative Law - Topic 9056

Boards and tribunals - Jurisdiction of particular boards and tribunals - National Parole Board - [See Habeas Corpus - Topic 510 ].

Civil Rights - Topic 1646

Property - Search and seizure - Unreasonable search and seizure defined - [See first, second and third Criminal Law - Topic 5667 ].

Civil Rights - Topic 3504

Detention and imprisonment - General - Right to habeas corpus - [See Habeas Corpus - Topic 510 ].

Civil Rights - Topic 8363

Canadian Charter of Rights and Freedoms - Denial of rights - Jurisdiction - [See Habeas Corpus - Topic 510 ].

Civil Rights - Topic 8380.11

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Habeas corpus - [See Habeas Corpus - Topic 510 ].

Civil Rights - Topic 8504

Canadian Charter of Rights and Freedoms - Enforcement - Jurisdiction - [See Habeas Corpus - Topic 510 ].

Criminal Law - Topic 5667

Punishments (sentence) - Imprisonment and parole - Parole - Forfeiture, revocation or termination of - D.G. was sentenced to five years' imprisonment for two counts of sexual interference and one count of inviting sexual touching - He was granted day parole in May 2013 - In August 2013, his parole officer confiscated his laptop from the trunk of his car and found that pornographic websites had been viewed - The Parole Board of Canada (PBC) relied on this information when it subsequently revoked D.G.'s day parole - The Appeal Division of the PBC upheld the revocation - The Alberta Court of Queen's Bench held that the search and seizure of D.G.'s laptop was arbitrary and not authorized by statute - The information seized was therefore unreliable and unpersuasive - It was also relevant that D.G.'s parole conditions did not preclude him from accessing pornography - Further, D.G. denied accessing pornography - The reliability of the information provided by the parole officer and D.G.'s response were impossible to assess because the required written report was never prepared and no steps were taken to preserve the information seized as required by Corrections and Conditional Release Act policies - The decision to revoke D.G.'s day parole was unreasonable - See paragraphs 64 to 72.

Criminal Law - Topic 5667

Punishments (sentence) - Imprisonment and parole - Parole - Forfeiture, revocation or termination of - D.G. was sentenced to five years' imprisonment for two counts of sexual interference and one count of inviting sexual touching - The victims were his stepdaughters - D.G. was granted day parole in May 2013 - His parole conditions prohibited him from having direct or indirect contact with his stepdaughters - In August 2013, D.G. reported that he was going to write letters to the stepdaughters and give them to a worker at the Restorative Opportunities Program - D.G.'s parole officer concluded that this report constituted reasonable grounds to suspect that D.G. was violating or had violated a parole condition, and the officer could therefore search D.G.'s room and its contents pursuant to s. 66 of the Corrections and Conditional Release Act - The Alberta Court of Queen's Bench held that D.G.'s report did not provide reasonable grounds to suspect that he had violated his parole conditions - See paragraphs 73 and 74.

Criminal Law - Topic 5667

Punishments (sentence) - Imprisonment and parole - Parole - Forfeiture, revocation or termination of - D.G. was sentenced to five years' imprisonment for two counts of sexual interference and one count of inviting sexual touching respecting his stepdaughters - D.G. was granted day parole in May 2013 - His parole conditions prohibited him from having direct or indirect contact with his stepdaughters - In August 2013, D.G.'s parole officer discovered that D.G. was recording his conversations with Correctional Service Canada staff - The parole officer felt that was a breach of privacy and seized D.G.'s phone - A search of the phone revealed texts and emails between D.G. and his wife in which they discussed the stepdaughters and a draft letter that D.G. was writing to the stepdaughters - The officer concluded that this was a breach of the no-contact condition - The Parole Board of Canada (PBC) revoked D.G.'s parole - The Appeal Division of the PBC upheld the revocation - The Alberta Court of Queen's Bench allowed D.G.'s application for an order of habeas corpus with certiorari in aid - First, the search of D.G.'s phone was unlawful because the officer lacked a reasonable suspicion that D.G. had breached his parole conditions - Even if the search was lawful, it was unreasonable to find that D.G. had breached his parole conditions - The Appeal Division failed to account for the fact that D.G. had been participating in the Restorative Opportunities Program, and that the draft letter was written at the request of a program worker - Receiving information about the victims or talking to a third party about them did not constitute indirect contact - Further, neither the PBC nor the Appeal Division had any source documentation before them - As such, they could not assess whether the parole officer's summary was relevant and reliable - See paragraphs 73 to 100.

Criminal Law - Topic 5667

Punishments (sentence) - Imprisonment and parole - Parole - Forfeiture, revocation or termination of - D.G.'s parole officer concluded that D.G. had breached his parole conditions based on searches of his laptop, phone and room - The parole officer prepared an Assessment for Decision (AFD) which the Parole Board of Canada (PBC) relied on to revoke D.G.'s parole - The Appeal Division of the PBC upheld the revocation - The Alberta Court of Queen's Bench held that the decision to revoke D.G.'s parole was procedurally unfair - The source information that formed the basis of the AFD was never secured or produced for the PBC or the Appeal Division - There was no indication that this information was provided to D.G. either - D.G. was deprived of the opportunity to respond directly to the concerning communications, to verify that the AFD was accurate and taken in the proper context, and to provide potentially exculpatory information - See paragraphs 101 to 109.

Criminal Law - Topic 5670.1

Punishments (sentence) - Imprisonment and parole - Parole - Conditions - [See second and third Criminal Law - Topic 5667 ].

Criminal Law - Topic 5670.9

Punishments (sentence) - Imprisonment and parole - Parole - Judicial review or appeal - [See Habeas Corpus - Topic 510 ].

Habeas Corpus - Topic 2

General - When available - [See third Criminal Law - Topic 5667 ].

Habeas Corpus - Topic 510

Jurisdiction to issue writ - Jurisdiction of provincial superior courts over inmates in federal penitentiaries - The Parole Board of Canada (PBC) revoked D.G.'s day parole - The Appeal Division of the PBC upheld the revocation - D.G. applied for an order of habeas corpus with certiorari in aid - The Attorney General of Canada applied to dismiss the application, arguing that the court lacked jurisdiction because the Corrections and Conditional Release Act provided a comprehensive and complete statutory scheme for administering review of parole decisions - The Alberta Court of Queen's Bench dismissed the application to dismiss - The remedy of habeas corpus aided in the protection of two fundamental rights: (1) the right to liberty of the person and the right not to be deprived of liberty except in accordance with the principles of fundamental justice (Charter, s. 7); and (2) the right not to be arbitrarily detained or imprisoned (Charter s. 9) - The PBC was not a court of competent jurisdiction for the purpose of hearing Charter arguments - Offenders were entitled to the protection of the Charter and were entitled to access habeas corpus to challenge the constitutionality of decisions made by correctional authorities - Given the PBC's limits of inquiry, the court did not accept that an offender who challenged a parole decision, particularly on constitutional grounds, was limited to judicial review through the Federal Courts - See paragraphs 5 to 24.

Practice - Topic 8952

Appeals - Stay of proceedings pending appeal - When appellant entitled to stay - The Parole Board of Canada (PBC) revoked D.G.'s day parole - The Appeal Division of the PBC upheld the revocation - D.G. applied for an order of habeas corpus with certiorari in aid - The Attorney General of Canada applied to dismiss the application, arguing that the court lacked jurisdiction because the Corrections and Conditional Release Act provided a comprehensive and complete statutory scheme for administering review of parole decisions - Pentelechuk, J., dismissed the application to dismiss - The Attorney General appealed Pentelechuk, J.'s decision to take jurisdiction and applied for a stay of the hearing scheduled for the applicant's application - The Alberta Court of Queen's Bench dismissed the application for a stay - Although there was a serious issue to be tried, the Attorney General failed to establish irreparable harm or that the balance of convenience favoured a stay - There was no evidence to substantiate the argument that potentially irreparable harm might be done to D.G.'s victims - Nor was any evidence proffered to demonstrate that the PBC's decision was reasonable and lawful - A decision affecting D.G.'s liberty was in question, the hearing was scheduled for the following week, and all supporting materials had been filed - See paragraphs 25 to 36.

Practice - Topic 8954

Appeals - Stay of proceedings pending appeal - What constitutes irreparable harm - [See Practice - Topic 8952 ].

Practice - Topic 8958

Appeals - Stay of proceedings pending appeal - Balance of convenience and justice - [See Practice - Topic 8952 ].

Cases Noticed:

May et al. v. Ferndale Institution et al., [2005] 3 S.C.R. 809; 343 N.R. 69; 220 B.C.A.C. 1; 362 W.A.C. 1; 2005 SCC 82, refd to. [para. 6].

Khela v. Mission Institution (Warden) et al., [2014] 1 S.C.R. 502; 455 N.R. 279; 351 B.C.A.C. 91; 599 W.A.C. 91; 2014 SCC 24, refd to. [para. 6].

Blais v. Corrections Service Canada (2012), 321 N.S.R.(2d) 198; 1018 A.P.R. 198; 2012 NSCA 109, leave to appeal denied (2013), 447 N.R. 394 (S.C.C.), refd to. [para. 10].

John v. National Parole Board (2011), 303 B.C.A.C. 264; 512 W.A.C. 264; 2011 BCCA 188, leave to appeal denied (2011), 430 N.R. 392 (S.C.C.), refd to. [para. 10].

Woodhouse v. William Head Institution (Warden) (2012), 316 B.C.A.C. 80; 537 W.A.C. 80; 2012 BCCA 45, refd to. [para. 10].

Graham (S.) v. R. (2011), 275 O.A.C. 200; 2011 ONCA 138, refd to. [para. 10].

Lord v. Coulter et al. (2009), 266 B.C.A.C. 122; 449 W.A.C. 122; 2009 BCCA 62, refd to. [para. 10].

R. v. Latham (B.R.) (2009), 324 Sask.R. 87; 451 W.A.C. 87; 2009 SKCA 26, refd to. [para. 10].

Finck et al. v. National Parole Board et al. (2008), 266 N.S.R.(2d) 337; 851 A.P.R. 337; 2008 NSCA 56, refd to. [para. 10].

Marshall v. National Parole Board et al., [2002] A.R. Uned. 169; 54 W.C.B.(2d) 570; 2002 ABCA 185, refd to. [para. 10].

Armaly v. Correctional Service of Canada et al. (2001), 299 A.R. 188; 266 W.A.C. 188; 2001 ABCA 280, leave to appeal denied (2002), 301 N.R. 390 (S.C.C.), refd to. [para. 10].

Gamble v. R., [1988] 2 S.C.R. 595; 89 N.R. 161; 31 O.A.C. 81, refd to. [para. 14].

Urbano v. Bowden Institution (Warden), [2015] A.R. TBEd. MY.026; 2015 ABQB 279, agreed with [para. 15].

Brazeau v. National Parole Board et al., [2015] A.R. TBEd. AP.095; 2015 ABQB 243, refd to. [para. 16].

Tuckanow v. Bowden Penitentiary (Institutional Head) (2014), 591 A.R. 348; 2014 ABQB 563, refd to. [para. 16].

Paxton v. Calgary Remand Centre et al. (2014), 590 A.R. 335; 2014 ABQB 438, refd to. [para. 16].

Mooring v. National Parole Board et al., [1996] 1 S.C.R. 75; 192 N.R. 161; 70 B.C.A.C. 1; 115 W.A.C. 1; 132 D.L.R.(4th) 45, refd to. [para. 21].

RJR-MacDonald Inc. et Imperial Tobacco Ltd. v. Canada (Procureur général), [1994] 1 S.C.R. 311; 164 N.R. 1; 60 Q.A.C. 241; 111 D.L.R.(4th) 385, refd to. [para. 29].

New Brunswick (Board of Management) v. Dunsmuir, [2008] 1 S.C.R. 190; 372 N.R. 1; 329 N.B.R.(2d) 1; 844 A.P.R. 1; 2008 SCC 9, refd to. [para. 56].

Newfoundland and Labrador Nurses' Union v. Newfoundland and Labrador (Treasury Board) et al., [2011] 3 S.C.R. 708; 424 N.R. 220; 317 Nfld. & P.E.I.R. 340; 986 A.P.R. 340; 2011 SCC 62, refd to. [para. 57].

Statutes Noticed:

Corrections and Conditional Release Act, S.C. 1992, c. 20, sect. 66 [para. 66].

Counsel:

Brad Bedard (Department of Justice Canada), for the respondents;

D.G., the applicant, was self-represented.

This application was heard on May 14, 2015, before Pentelechuk, J., of the Alberta Court of Queen's Bench, Judicial District of Edmonton, who delivered the following reasons for judgment on June 9, 2015.