Graham (S.) v. R.,

• Jurisdiction: Ontario
• Judge: MacPherson, Blair and Rouleau, JJ.A.
• Neutral Citation: 2011 ONCA 138
• Citation: (2011), 275 O.A.C. 200 (CA),2011 ONCA 138,268 CCC (3d) 517,275 OAC 200,(2011), 275 OAC 200 (CA),275 O.A.C. 200
• Date: 09 February 2011
• Court: Court of Appeal (Ontario)

Graham (S.) v. R. (2011), 275 O.A.C. 200 (CA)

MLB headnote and full text

Temp. Cite: [2011] O.A.C. TBEd. FE.055

Scott Graham (appellant) v. Her Majesty the Queen (respondent)

(C52798; 2011 ONCA 138)

Indexed As: Graham (S.) v. R.

Ontario Court of Appeal

MacPherson, Blair and Rouleau, JJ.A.

February 22, 2011.

Summary:

An inmate was granted accelerated day parole and was released into the community subject to parole conditions. Shortly thereafter, his parole officer's supervisor suspended his parole privileges. The inmate applied for a writ of habeas corpus ad subjiciendum.

The Ontario Superior Court dismissed the application, concluding that the Corrections and Conditional Release Act regime constituted a complete, comprehensive and expert procedure for review of the National Parole Board's administrative decision. The inmate appealed.

The Ontario Court of Appeal dismissed the appeal.

Habeas Corpus - Topic 621

Jurisdiction to issue writ - Ontario courts - General - An inmate was granted accelerated day parole and was released into the community subject to parole conditions - Shortly thereafter, his parole officer's supervisor suspended his parole privileges - The inmate applied for a writ of habeas corpus ad subjiciendum - The Ontario Court of Appeal affirmed the dismissal of the application - This was the type of statutory regime envisioned in the habeas corpus exception articulated in May et al. v. Ferndale Institution et al. (S.C.C.) - The Corrections and Conditional Release Act established a complete and comprehensive procedural regime for the review and appeal of a parole officer supervisor's decision to suspend parole - Additionally, the process was carried out at its various stages by experts in the parole field - There was a short period during which the inmate might be detained while the parole officer supervisor decided whether to cancel the suspension or to refer the matter to the National Parole Board - During that period the inmate's liberty was restricted in a way that would otherwise entitle him or her to challenge the detention's legality by habeas corpus - That in itself was not sufficient to take the Act's scheme out of the May exception - There might be exceptional circumstances where the Act's statutory review and appeal regime would be so ineffective as to warrant the exercise of habeas corpus jurisdiction - However, this was not one of those cases - The decision to decline habeas corpus jurisdiction was discretionary - The application judge made no error in law or principle and was correct in declining to exercise jurisdiction.

Habeas Corpus - Topic 1505

Bars to issue of writ - Existence of statutory appeals - [See Habeas Corpus - Topic 621 ].

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, folld. [para. 8].

Steele v. Mountain Institution, [1990] 2 S.C.R. 1385; 121 N.R. 198, refd to. [para. 9].

Armaly v. Correctional Service of Canada et al. (2002), 299 A.R. 188; 266 W.A.C. 188 (C.A.), agreed with [para. 10].

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

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

Latham v. Canada (Solicitor General) et al. (2006), 288 F.T.R. 37; 2006 FC 284, agreed with [para. 10].

McGrayne v. Canada (Attorney General), [2002] O.T.C. 191 (Sup. Ct.), agreed with [para. 10].

Elguindy v. Canada (Attorney General) et al., [2010] O.T.C. Uned. 1757; 2010 ONSC 1757, agreed with [para. 10].

Woodhouse v. William Head Institution (Warden), [2010] B.C.T.C. Uned. 754; 2010 BCSC 754, not folld. [para. 11].

Authors and Works Noticed:

Sharpe, Robert J., The Law of Habeas Corpus (2nd Ed. 1989), p. 58 [para. 19, footnote 3].

Counsel:

Scott Graham, in person;

Ian Smith, Duty Counsel;

Matthew Sullivan, for the Crown.

This appeal was heard on February 9, 2011, by MacPherson, Blair and Rouleau, JJ.A., of the Ontario Court of Appeal. Blair, J.A., released the following judgment for the court on February 22, 2011.