Habeas corpus for denial of parole? Not appropriate

R. v. Graham, 2011 ONCA 138, holds that, in general, habeas corpus is not the proper route to challenge a decision of the parole board:

[7] There is no dispute that provincial superior courts retain an important jurisdiction to hear habeas corpus applications brought by a prisoner alleging unlawful restriction of his or her liberty, and do so in spite of the fact that such allegations may also be challenged elsewhere. As habeas corpus is not a discretionary remedy, but rather one that issues as of right on proper grounds being shown, Superior Courts are – and should be – reluctant to decline such jurisdiction when called upon to exercise it. However, they may do so in some circumstances, and one circumstance where the Supreme Court of Canada has indicated it is appropriate to decline jurisdiction is where "there is in place a complete, comprehensive and expert procedure for review of an administrative decision:" May v. Ferndale Institution, [2005] 3 S.C.R. 809.

[8] At para. 44 of that decision, Justices LeBel and Fish, for the majority, summarized their conclusions in this regard:

To sum up, therefore, the jurisprudence of this Court establishes that prisoners may choose to challenge the legality of a decision affecting their residual liberty either in a provincial superior court by way of habeas corpus or in the Federal Court by way of judicial review. As a matter of principle, a provincial superior court should exercise its jurisdiction when it is requested to do so. Habeas corpus jurisdiction should not be declined merely because another alternative remedy exists and would appear as or more convenient in the eyes of the court. The option belongs to the applicant. Only in limited circumstances will it be appropriate for a provincial superior court to decline to exercise its habeas corpus jurisdiction. For instance, in criminal law, where a statute confers jurisdiction on a court of appeal to correct the errors of a lower court and release the applicant if need be, habeas corpus will not be available (citation omitted). Jurisdiction should also be declined where there is in place a complete, comprehensive and expert procedure for review of an administrative decision (citations omitted).

(Emphasis added.)

[9] The rationale underlying the exceptions referred to above is rooted in the risks associated with parallel procedures and the ineffective use of public resources flowing from such procedures. Cory J. succinctly explained these policy reasons, in the NPB context, in Steele v. Mountain Institution, [1990] 2 S.C.R. 1385, at p. 1418:

Since any error that may be committed occurs in the parole review process itself, an application challenging the decision should be made by means of judicial review from the National Parole Board decision, not by means of an application for habeas corpus. It would be wrong to sanction the establishment of a costly and unwieldy parallel system for challenging a Parole Board decision. As well, it is important that the release of a long-term inmate should be supervised by those who are experts in the field.

[10] The question here, then, is whether the CCRA provides "a complete, comprehensive and expert procedure" for administering the parole review process. In my view, it does. In that respect, I agree with the application judge and with other Canadian appellate and lower courts that have come to the same conclusion: see Armaly v. Canada (Parole Services) (2001), 299 A.R. 188 (C.A.); Lord v. Coulter (2009), 266 B.C.A.C. 122 (C.A.); R v. Latham (2009), 324 Sask. R. 87 (C.A.); Latham v. Canada (2006), 288 F.T.R. 37 (F.C.T.D.); McGrayne v. Canada (Attorney General), [2002] O.T.C. 191 (Sup. Ct.); R v. Elguindy, 2010 ONSC 1757