Case: Richer v. Parole Board of Canada, 2024 SKCA 37 (CanLII)

Keywords: habeas corpus; day parole; scope of “Peiroo exception”

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Synopsis:

The Appellant is convicted of first-degree murder and sentenced to life in prison, without the possibility of parole for 25 years. 10 years later, he is granted day parole while being held at the minimum-security unit at the Saskatchewan Penitentiary. He is later transferred to the “Salvation Army Community Residential Facility” in Saskatoon. (See para. 3).

The Appellant’s day parole is then suspended by his parole officer due to, among other things, “use of medical marijuana, the results of a urinalysis, his alleged oppositional and anti-social attitudes, [and] his inclination to question the legality and reasonableness of instructions”. (See para. 4).

The Parole Board of Canada (“PBC”) conducts a hearing to review the suspension. In a written decision, the PBC revokes the Appellant’s day parole. That decision is appealed to the Parole Board of Canada Appeal Division (“PBC Appeal Division”). Concurrently, the Appellant makes a habeas corpus application to the Court of King’s Bench. The application is declined on jurisdictional grounds by Justice Hildebrandt. (See para. 5). The Parole Board of Canada Appeal Division dismisses his appeal. No judicial review of that decision is sought. The Appellant declines to appeal Justice Hildebrandt’s decision, but subsequently files a further application for habeas corpus and certiorari. The application asks the Court to “examine and determine the validity of his detention and to release him on parole unconditionally or with conditions.” (See para. 6).

The Chambers Judge dismisses the application by applying the “Peiroo exception” (i.e., that a superior court can decline to exercise habeas corpus jurisdiction where there is a “complete, comprehensive and expert procedure for review of an administrative decision”). (See para. 8, citing the Chambers Judge’s decision at paras. 5, 9; see also May v. Ferndale, 2005 SCC 82). The Court of Appeal agrees. (See para. 59).

Importance:

As noted by the Court of Appeal, habeas corpus remains a “current and important remedy” despite being an “ancient” one tracing its roots back to the 13th century. The Supreme Court of Canada has confirmed that prisoners serving in federal penitentiary have a right to review administrative decisions that negatively affect their residual liberty by way of “habeas corpus in a superior court with certiorari in aid” or by judicial review to Federal Court. (See paras. 13-14; R v. Miller, 1985 CanLII 22 (SCC)).

Importantly, there are two exceptions in which a superior court may decline to hear a habeas corpus application:

  1. where the application is really a review of the criminal conviction “under the guise of” a habeas corpus application (see para. 15); and
  2. the “Peiroo exception”, which applies where Parliament has put in place a “complete, comprehensive and expert procedure for review” of the administrative decision that is “at least as broad” as habeas corpus and “no less advantageous”. (See para. 18).

This is a significant appeal as to the scope and availability of habeas corpus in Canada. Citing DG v. Bowden Institution, 2016 ABCA 52, Canada (Public Safety and Emergency Preparedness) v. Chhina, 2019 SCC 29 (CanLII), and R. v. Bird, 2019 SCC 7, the Appellant argued that the “Peiroo exception” had been overtaken. (See para. 23).

The Court of Appeal conducted a thorough, cross-country review of the jurisprudence to interrogate that argument. (See paras. 22-58). Of interest, the Court observed that it was “left uncertain” as to whether the law in Alberta departs from the established use of the “Peiroo exception”. (See para. 51). Ultimately, however, the Court determined that neither Bird nor Chhina (i.e., binding decisions of the Supreme Court of Canada) had overtaken the Saskatchewan Court of Appeal’s prior jurisprudence on this point (e.g., R v. Ross, 2009 SKCA 24 and R. v. Latham, 2009 SKCA 26). (See paras. 22, 54, 58).

In practical terms, this meant that the Court of Appeal followed the framework set out in the Chhina decision to determine whether the Chambers Judge was correct to decline to exercise habeas corpus jurisdiction. First, the Court identified the “basis” on which “the legality of the detention was being challenged”. In this case, the Appellant’s counsel confirmed the challenge was based on an “alleged failure by the PBC Appeal Division to properly assess the decisions made by the PBC and beneath the PBC by [the Appellant’s] parole officers”. (See para. 60).

Following Chhina, the Court of Appeal then considered the jurisdiction of the PBC Appeal Division and the Appellant’s ability to review that body’s decision (i.e., to determine whether the scheme is as broad and advantageous as habeas corpus in relation to the specific basis set out above). Looking to s. 147(1) of the Corrections and Conditional Release Act, SC 1992, c 20, the Court found there was no ground upon which the Appellant would seek to attack a decision by the PBC that “is not caught within the scope of its encompassing jurisdiction”. (See paras. 60-62). Moreover, the Court found that s. 147(4) provided the PBC Appeal Division “broad remedial authority”, which might have been exercised if it had agreed with the Appellant’s arguments in that forum. (See para. 63).

The Court found that the PBC Appeal Division’s authority “exceeds what was available to Mr. Richer through habeas corpus.” For this reason, the Court concluded that there is “a complete, comprehensive and expert scheme that is as broad and comprehensive as habeas corpus.” (See para. 64). As stated by the Court, the “weight of appellate jurisprudence from across Canada” dictates the result that an appeal to the PBC Appeal Division, with the availability of subsequent judicial review at the Federal Court is sufficient to meet the “Peiroo exception”. There were no exceptional circumstances that would have permitted the Chambers Judge below to exercise habeas corpus jurisdiction in this case. (See paras. 69-70).

Counsel for the Appellant: Pierre Hawkins (Pro Bono Law Saskatchewan, Regina)

Counsel for the Respondent: Robert Drummond, Michael Digout, and Emily Arthur (Justice Canada, Saskatoon)

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