Lyding v. National Parole Board et al., (1998) 213 A.R. 323 (QB)

• Judge: Moreau, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: Monday February 09, 1998
• Citations: (1998), 213 A.R. 323 (QB)

Lyding v. Nat. Parole Bd. (1998), 213 A.R. 323 (QB)

MLB headnote and full text

Temp. Cite: [1998] A.R. TBEd. FE.055

In The Matter Of an application for an Order in the nature of Habeas Corpus with Certiorari in Aid pursuant to Part 60 of the Alberta Rules of Court and pursuant to Section 24(1) of the Canadian Charter of Rights and Freedoms to Order the Release of Lloyd Dennis Lyding

Lloyd Dennis Lyding (applicant) v. Her Majesty The Queen, The National Parole Board and the Warden of Drumheller Institution (respondent)

(Action No. 9803-0196C0)

Indexed As: Lyding v. National Parole Board et al.

Alberta Court of Queen's Bench

Judicial District of Drumheller

Moreau, J.

February 9, 1998.

Summary:

Lyding commenced serving a life sentence for murder in 1965. In 1974, he was released on parole. In 1996, parole authorities received information that a search warrant had been executed at Lyding's residence and that narcotics and firearms had been recovered. As a result, Lyding's parole was suspended and he was incarcerated. Lyding requested a post-suspension review hearing before the National Parole Board. After adjournments, the post-suspension hearing was held in December 1997 and the Board revoked Lyding's parole. Lyding applied for a writ of habeas corpus with certiorari in aid for his release from confinement.

The Alberta Court of Queen's Bench allowed the application and ordered Lyding's release from custody.

Administrative Law - Topic 7533

Delegated powers - Validity of delegated powers - Administrative acts - The Alberta Court of Queen's Bench held that the power to adjourn a post-suspension review hearing before the National Parole Board was not an administrative function and the Board could not sub-delegate that power to one of its employees - See paragraph 34.

Administrative Law - Topic 7565

Delegated powers - Sub-delegation of powers - Prohibition against delegation by delegate - Delegatus non potest delegare - [See Administrative Law - Topic 9056].

Administrative Law - Topic 9056

Boards and tribunals - Jurisdiction of particular boards and tribunals - National Parole Board - Lyding's parole was sus­pended and he was incarcerated - A post-suspension review hearing before the Na­tional Parole Board was scheduled for January 16, 1997 - However, Lyding requested a postponement and the hearing was adjourned - The post-suspension hear­ing was eventually held in December 1997 and the Board revoked Lyding's parole - The Alberta Court of Queen's Bench held that the Board breached the mandatory provisions of s. 135(5) of the Corrections and Conditional Release Act and Regula­tion 163(3) where it improperly delegated the responsibility for the adjournment of the January 16, 1997, hearing to one of its employees - The result was a loss of juris­diction which nullified the post-suspension review process - The Board could not exercise its power to revoke Lyding's parole under s. 135(7) of the Act - Lyd­ing's detention was illegal and he was entitled to a writ of habeas corpus - See paragraphs 34 to 46.

Civil Rights - Topic 4604

Right to counsel - Denial of, or interfer­ence with - What constitutes - Lyding's parole was suspended - A post-suspension review hearing before the National Parole Board was scheduled for January 16, 1997, but was postponed at Lyding's request - The post-suspension hearing was eventual­ly held in December 1997 and the Board revoked Lyding's parole - Lyding sub­mitted that the Board lost jurisdiction by failing to convene a post-suspension hear­ing within 90 days as required by s. 135(5) of the Corrections and Conditional Release Act and Regulation 163(3) - He argued that the postponement request form that he signed was not valid because, inter alia, he had not been informed of his right to counsel - The Alberta Court of Queen's Bench held that Lyding's right to counsel was not infringed as counsel had already corresponded with the Board on his behalf before he executed the postponement request - See paragraphs 27, 28 and 33.

Criminal Law - Topic 5666.4

Punishments (sentence) - Imprisonment and parole - Parole hearing - Evidence (incl. disclosure) - Lyding's parole was suspended - A post-suspension review hearing before the National Parole Board was scheduled for January 16, 1997, but was postponed at Lyding's request - The post-suspension hearing was eventually held in December 1997 and the Board revoked Lyding's parole - Lyding sub­mitted that the Board lost jurisdiction by failing to convene a post-suspension hear­ing within 90 days as required by s. 135(5) of the Corrections and Conditional Release Act and Regulation 163(3) - He argued that the postponement request form that he signed was not valid because, inter alia, he had not been provided with any documents in respect of the post-suspension hearing - The Alberta Court of Queen's Bench held that there was no requirement that Lyding be provided with disclosure for the hearing when he executed the postponement request because the 15 day period under s. 141 of the Act had not yet begun to run - See paragraphs 27, 28 and 33.

Criminal Law - Topic 5666.4

Punishments (sentence) - Imprisonment and parole - Parole hearing - Evidence (incl. disclosure) - Lyding commenced serving a life sentence in 1965 - In 1974, he was released on parole - In 1996, his parole was suspended - A post-suspension review hearing was held and the National Parole Board revoked Lyding's parole - Lyding argued that the Board breached s. 141 of the Corrections and Conditional Release Act and the principles of natural justice, fundamental justice and procedural fairness, by failing to provide him with information which was available to the Board at the hearing - The information included memos, reports, etc., dating back to the 1960's and 1970's - The Alberta Court of Queen's Bench held that there was a breach of s. 141 of the Act and a breach of Lyding's fundamental right to know the case he had to meet - It could not be said that the information was irrel­evant merely because the documents were not specifically referred to in the Board's decision - See paragraphs 50 to 72.

Criminal Law - Topic 5666.4

Punishments (sentence) - Imprisonment and parole - Parole hearing - Evidence (incl. disclosure) - Lyding commenced serving a life sentence in 1965 - In 1974, he was released on parole - In 1996, his parole was suspended - A post-suspension review hearing was held and the National Parole Board revoked Lyding's parole - The Board had information available to it at the hearing which included memos, reports, etc., dating back to the 1960's and 1970's (the historical information), which was not disclosed to Lyding - The Alberta Court of Queen's Bench held that a gen­eral reference to Lyding's original crime and to a 1987 parole breach in the materials shared with Lyding did not con­stitute a "summary" of the historical infor­mation within s. 141(1) of the Corrections and Conditional Release Act which would entitle the Board to review those docu­ments without sharing them with Lyding - Nor did permitting Lyding's counsel to review his file six months prior to the hearing relieve the Board of its disclosure obligations under s. 141(1) - See paragraph 67.

Criminal Law - Topic 5666.6

Punishments (sentence) - Imprisonment and parole - Parole hearing - Adjournments - [See Administrative Law - Topic 9056].

Criminal Law - Topic 5666.6

Punishments (sentence) - Imprisonment and parole - Parole hearing - Adjournments - Lyding's parole was suspended - A post-suspension review hearing before the Na­tional Parole Board was scheduled for January 16, 1997, but was postponed at Lyding's request - The post-suspension hearing was eventually held in December 1997 and the Board revoked Lyding's parole - Lyding submitted that the Board lost jurisdiction by failing to convene a post-suspension hearing within 90 days as required by s. 135(5) of the Corrections and Conditional Release Act and Regula­tion 163(3) - He argued that the postpone­ment request form that he signed was not valid because, inter alia, the postponement form was left blank as to the adjourned date of the hearing - The Alberta Court of Queen's Bench held that there was no statutory requirement that an adjournment date be provided - See paragraphs 27, 28 and 33.

Criminal Law - Topic 5667

Punishments (sentence) - Imprisonment and parole - Parole - Revocation - [See Administrative Law - Topic 9056].

Habeas Corpus - Topic 2

When available - [See Administrative Law - Topic 9056].

Habeas Corpus - Topic 1505

Bars to issue of writ - Existence of statu­tory appeals - Lyding's parole was sus­pended and he was arrested and incarcer­ated - A post-suspension review hearing was held and the National Parole Board revoked Lyding's parole - Lyding did not appeal the decision pursuant to s. 147(1) of the Corrections and Conditional Release Act as the appeal process would take six to nine months - Rather, Lyding applied for a writ of habeas corpus with certiorari in aid for his release from confinement - The Alberta Court of Queen's Bench held that it had jurisdiction to grant the relief sought notwithstanding the existence of an alterna­tive remedy and that it would exercise its discretion in favour of hearing the applica­tion - See paragraphs 17 to 26.

Cases Noticed:

R. v. Miller, [1985] 2 S.C.R. 613; 63 N.R. 321; 14 O.A.C. 33; 23 C.C.C.(3d) 97; 24 D.L.R.(4th) 9; 52 O.R. 585; 49 C.R.(3d) 1; 16 Admin. L.R. 184, refd to. [para. 17].

Dumas v. National Parole Board, [1986] 2 S.C.R 459; 72 N.R. 61; 3 Q.A.C. 133; 22 Admin. L.R. 205; 55 C.R.(3d) 83; 30 C.C.C.(3d) 129; 34 D.L.R.(4th) 427; 25 C.R.R. 307, refd to. [para. 17].

Dumas v. Director of LeClerc Institution of Laval et al. - see Dumas v. National Parole Board.

Steele v. Mountain Institution, [1990] 2 S.C.R. 1385; 121 N.R. 198; [1990] 6 W.W.R. 673; 60 C.C.C.(3d) 1; 51 B.C.L.R.(2d) 1; 80 C.R.(3d) 257; 2 C.R.R.(2d) 304, refd to. [para. 19].

Peiroo v. Minister of Employment and Immigration (1989), 34 O.A.C. 43; 69 O.R.(2d) 253 (C.A.), refd to. [para. 20].

Fraser v. Kent Institution (Warden) et al. (1997), 95 B.C.A.C. 312; 154 W.A.C. 312; 6 C.R.(5th) 293 (C.A.), refd to. [para. 22].

Gregory v. Edmonton Institution (Warden) et al. (1995), 164 A.R. 157 (Q.B.), dist. [para. 24].

Reza v. Minister of Employment and Im­migration, [1994] 2 S.C.R. 394; 167 N.R. 282; 72 O.A.C. 348; 21 C.R.R.(2d) 236; 24 Imm. L.R.(2d) 117, refd to. [para. 25].

Latham v. Canada (Solicitor General), [1984] 2 F.C. 734 (T.D.), refd to. [para. 29].

R. v. Doyle, [1977] 1 S.C.R. 597; 9 N.R. 285; 10 Nfld. & P.E.I.R. 45; 17 A.P.R. 45; 35 C.R.N.S. 1; 29 C.C.C.(2d) 177; 68 D.L.R.(3d) 270, refd to. [para. 37].

Cleary v. Correctional Service of Canada et al. (1990), 108 N.R. 225; 56 C.C.C.(3d) 157 (F.C.A.), refd to. [para. 37].

R. v. Elliott, [1976] 3 W.W.R. 264; 34 C.R.N.S. 117 (B.C.S.C.), refd to. [para. 39].

R. v. Grabina (1977), 34 C.C.C.(2d) 52 (Ont. H.C.), refd to. [para. 41].

Gorog, Re (1975), 23 C.C.C.(2d) 225 (Man. C.A.), refd to. [para. 41].

McClarty, Re (1988), 23 F.T.R. 127 (T.D.), refd to. [para. 41].

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; [1996] 3 W.W.R. 305, refd to. [para. 58].

Moore v. Matsqui Institution (1994), 29 C.R.(4th) 353 (B.C.S.C.), refd to. [para. 73].

Statutes Noticed:

Corrections and Conditional Release Act, S.C. 1992, c. 20, sect. 141 [para. 51].

Authors and Works Noticed:

Jones, David Phillip, and de Villars, Anne S., Principles of Administrative Law (2nd Ed. 1994), pp. 128 to 135 [para. 34].

Counsel:

Glen E. Luther, for the applicant;

Barbara Ritzen, for the respondent.

This application was heard before Moreau, J., of the Alberta Court of Queen's Bench, Judicial District of Drumheller, who delivered the following judgment on Febru­ary 9, 1998.