Hamidu v. Canada (Attorney General), 2007 FC 373

 

Date: 20070411

Docket: T-533-06

Citation: 2007 FC 373

OTTAWA, Ontario, April 11, 2007

PRESENT:     The Honourable Maurice E. Lagacé

 

BETWEEN:

PAUL HAMIDU

Applicant

and

 

THE ATTORNEY GENERAL OF CANADA

Respondent

 

REASONS FOR JUDGMENT AND JUDGMENT

 

[1]               The Applicant is seeking judicial review of a decision of the National Parole Board (NPB), dated February 21, 2006, refusing to consider his application for parole within Canada due to an outstanding removal order against him.

 

Facts

 

[2]               The Applicant is a federal inmate, at Bath Institution in Ontario, serving 5 years 5 months for robbery using a firearm and forcible confinement. He became eligible for parole on February 22, 2006.

[3]               On that date he appeared before the NPB in respect of his application for full parole within Canada. Prior to that hearing he informed the NPB that he wanted to be considered for regular full parole to a Canadian community and that he had a plan for release into the Canadian community to reside with his wife and children.

 

[4]               Due to the outstanding removal order against the Applicant, the NPB concluded that it had no jurisdiction to hear his request for full parole release in Canada, and could only consider full parole for deportation.

 

[5]               Following this ruling of the NPB, the Applicant’s representative asked the Board: “…is this a policy that the Board is relying on or statutory provision that the Board would be relying on (?)”. And the answer was: “No it is the law…The law changed with immigration a few years ago and we are no longer allowed to any release when there is a removal order on file”. Thus the reasons indicated by the Board are clear: the decision does not appear to be have been dictated by a Board policy but from an interpretation of the provisions of the Corrections and Conditional Release Act (the Act) as amended by the Immigration and Refugee Protection Act on November 1^st, 2001.

 

[6]               Furthermore and before the Board rendered said ruling, the Applicant was informed of his right to appeal. Consequently, the Applicant requested a two-month postponement of his review for full parole until April 16, 2006.

 

[7]               Following this decision, John B. Wilson, Regional Manager, Conditional Release Programmes, NPB, Ontario, informed the Applicant’s counsel by email that the only practical decision that the NPB could make was either to grant or deny full parole for deportation and explained why. The information provided by a NPB’s employee is irrelevant to the issue since Mr. Wilson is not a Board member and the Court cannot imply from such explanation that the Board’s decision was based on a Board’s policy rather than an interpretation of the Law.

 

[8]               On March 22, 2006, the Applicant commenced this application for judicial review and requested further postponement of his review for full parole until October 2006.

 

 

Impugned Decision

 

[9]               The NPB noted that the Applicant had an immigration removal order in his file and consequently concluded in the terms cited above that it only had jurisdiction to conduct a hearing for full parole for deportation and no jurisdiction to hear the Applicant’s request for full parole release in Canada.

 

The issue

 

[10]           The Respondent invites the Federal Court to decline to hear the Applicant’s request for judicial review since he failed to exhaust the appeal mechanism set out in the Act.

 

[11]           The threshold issue is therefore whether the Applicant must exhaust all internal remedies, in this case an appeal to the Appeal Division of the NPB, before the Federal Court will hear the case. If so, there would be no need for further analysis of the substantive issues.

 

[12]           The Applicant argues that internal remedies are not adequate where the policy of the internal reviewing body would be at issue. In support he cites Marachelian v. Canada (Attorney General) (T.D.), [2001] 1 F.C. 17.

 

[13]           In that case it was decided that the applicant did not have to exhaust all internal remedies before bringing the application to the Federal Court. The applicant was in prison for the murder of a security guard, which occurred during an attack on the Turkish Embassy in Ottawa. The warden decided to deny his request for a security reclassification. The evidence showed the Correctional Service had the applicant's security classification dictated to it by another agency. In the Court’s view, a grievance which puts such an issue into question cannot credibly be adjudicated by the Correctional Service since it is the Correctional Service itself which is implicated.

 

[14]           The Respondent is well founded to submit that the Marachelian decision does not apply since it concerns the refusal dictated by another agency of a warden to reclassify and transfer an inmate, while in the present case we are dealing with a decision of the NPB who had full authority to interpret the Act in order to decide on the extent of its jurisdiction.

 

[15]           According to s. 147 of the Act, a decision of the NPB may be appealed to the Appeal Division on the ground that the NPB made an error of law or failed to exercise its jurisdiction. This is precisely the reproach addressed to the NPB. And there is no evidence that the impugned decision was dictated by a Board’s policy rather than its understanding of the Law.

 

[16]           Since there is no evidence to suggest the Appeal Division would reach the same conclusion as the Board, this is certainly a case where all appeal routes should be exhausted before bringing an application to the Federal Court. Although informed of his right to appeal the ruling made by the NPB, the applicant preferred to address this Court for relief.

 

[17]           The applicant has not convinced this Court to ignore several valid reasons also set out in Marachelian for him to exhaust his internal remedies before approaching this Court for relief. And, unlike Marachelian where the Correctional Service itself was implicated, the decision here was rendered by the NPB and appears to flow from its interpretation of s. 128 of the Act rather than an internal policy. And the Act is quite clear in stating that, where errors in law or failures to exercise jurisdiction are concerned, the proper venue for appeal is the Appeal Division.

 

[18]           Applicant has shown no reason for an exception to the principle that applicants must exhaust their internal remedies before approaching this Court for remedy. Consequently, it would be premature at this stage for this Court to analyze the substantive issues.

 

 

 

 

JUDGMENT

 

THIS COURT ADJUDGES that for these reasons the application is dismissed.

 

 

 

"Maurice E. Lagacé"

FEDERAL COURT

 

SOLICITORS OF RECORD

 

 

 

DOCKET:                                          T-533-06

 

STYLE OF CAUSE:                          PAUL HAMIDU v. ATTORNEY GENERAL OF CANADA

 

PLACE OF HEARING:                    OTTAWA, Ontario

 

DATE OF HEARING:                      April 10, 2007

 

REASONS FOR JUDGMENT:       The Honourable Maurice E. Lagacé

 

DATED:                                             April 11, 2007

 

 

 

APPEARANCES:

 

Mr. Brian A. Callender	FOR THE APPLICANT
Mr. Richard Casanova	FOR THE RESPONDENT

 

SOLICITORS OF RECORD:

 

Brian Callender Kingston, Ontario	FOR THE APPLICANT
John H. Sims, Q.C. Deputy Attorney General of Canada	FOR THE RESPONDENT