Date: 20090514
Docket: A-163-08
Citation: 2009 FCA 156
CORAM: RICHARD
C.J.
LÉTOURNEAU J.A.
BLAIS
J.A.
BETWEEN:
NICHOLAS BONAMY
Appellant
and
THE ATTORNEY GENERAL OF CANADA
Respondent
REASONS FOR JUDGMENT
LÉTOURNEAU J.A.
[1]
The self-represented
appellant is appealing against a decision of Beaudry J. of the Federal Court
(judge) in which he upheld two decisions of prothonotary Lafrenière
(prothonotary).
[2]
The first
of these two decisions dismissed the appellant’s application for judicial
review of a decision of the National Parole Board (Board) denying full parole
to the appellant. The second dismissed the appellant’s motion to reconsider and
vary the earlier dismissal decision.
[3]
The
appellant is a layman. He raises a number of issues which are beyond the scope
of the decisions rendered by the judge and the prothonotary and consequently of
this appeal. I shall therefore limit my assessment of the appellant’s arguments
to the two issues ruled upon by the judge.
Whether
the judge erred in upholding the decision of the prothonotary dismissing the appellant’s
application for judicial review
[4]
By way of
judicial review, the appellant sought to set aside the decision of the Board.
The prothonotary dismissed it on the basis that the application was premature
in light of the statutory appeal available to the appellant pursuant to
subsection 147(1) of the Corrections and Conditional Release Act, S.C.
1992, c. 20 (Act).
[5]
At the
time of rendering his decision, the prothonotary had not received the
appellant’s material in response to the motion to dismiss. The appellant
complains of a lack of procedural fairness.
[6]
On the
motion to reconsider and vary his decision, the prothonotary ruled that his
decision would not have been different even if he had possession of the
appellant’s argument at the time of the initial decision.
[7]
There is a
debate as to who is responsible for the late delivery of the appellant’s
material in violation of the time-frame set up by the Federal Courts Rules
(Rules). However, whether it is the appellant who did not file it on time or
the Correctional Services which failed to act diligently in forwarding it is
irrelevant. This is because the judge who reviewed the prothonotary’s decision
proceeded de novo and the appellant’s submissions and arguments were
duly considered at that time. Any breach of procedural fairness which may have
occurred at the earlier stage was then remedied.
[8]
In Fehr
v. Canada National Parole Board) (1995), 93 F.T.R. 161, at
paragraphs 29-30, McKeown J. emphasized the importance of exhausting the
statutory appeal route prior to bringing an application for judicial review. He
wrote:
29 The
purpose of having an appeal route is to avoid a multiplicity of proceedings
before the Court. As such, where an appeal route exists, it should, in general,
be pursued to the extent that it may be, before seeking judicial review. I
wish to make clear, however, that a decision may only be appealed to the extent
provided for in the legislation. Judicial review may still be available for
issues which may not be properly appealed.
30 Counsel
for the applicant argued before me that the applicant should not be required to
go to the Appeal Division of the Board prior to bringing an application for
judicial review, on the grounds that she is unable to raise her Charter
arguments at the Appeal Division. As such, she should not have to wait for
the results of the internal appeal process before being able to come to this
Court; she should be able to argue all of her case at once. As mentioned
earlier, all appeal routes should be pursued to the extent possible prior to
bringing an application to this Court. There is no prejudice to the
applicant in requiring this, as, while it is clear that no deference will be
awarded to the decisions of an administrative body regarding the Charter, the
applicant is not precluded from raising Charter arguments before the Appeal
Division. It should be noted, however, that I am not foreclosing the
availability of judicial review should the Appeal Division refuse to hear
Charter arguments. [my emphasis. See also to the same effect Diamond
v. Canada (National
Parole Board), [1995] F.C.J. No. 424 at para. 14]
[9]
The
Alberta Court of Appeal came to the same conclusion in a decision for which
leave to appeal to the Supreme Court of Canada was denied: Armaly v. Canada
(Parole Service), 2001 ABCA 280, [2002] S.C.C.A. No. 134. The decision
stresses the importance of resorting to a comprehensive and expert statutory
scheme of review where it exists. The Court held:
…It is clear that an
alternate remedy exists in this case, the appeal procedures set forth in s. 147
of the Corrections and Conditional Release Act.
…
We are satisfied that
Parliament did not intend a breach of procedural fairness, as has occurred
here, to result in a non-remediable loss of jurisdiction. The CCRA
provides a comprehensive statutory scheme for administering the parole review
process. Sound policy reasons exist for not setting the threshold for habeas
corpus so low that it effectively creates a parallel system for challenging
revocation or termination of parole. This very point was made by Cory, J. in Steele,
supra, at p. 1418 where he stated the following:
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 this field.
[Emphasis added]
[10]
I see no
error in the decisions of the prothonotary and the judge to dismiss the
application for judicial review as premature in the circumstances.
[11]
Relying
upon Rule 64 of the Federal Courts Rules, the appellant submits that he
also sought a declaration that the procedures and policies established by the
Board to review applications for parole violate the principles of fundamental
justice guaranteed by section 7 of the Charter of Rights and Freedoms. As
a result, his application for judicial review should not have been dismissed.
There are two short answers to this submission.
[12]
The first
comes from the decision of the Federal Court in Pieters v. Canada (Attorney General), 2004 F.C. 27 where, at
paragraph 17, it wrote:
17 … the
Rule cannot operate in the absence of an underlying application. Rule 64
speaks to relief and not to the proceedings. In other words, there must be
some basis on which the application is brought and not merely some abstract
desire to obtain clarification or a hammer with which to negotiate further.
[Emphasis added]
[13]
More
recently in Democracy Watch v. Canada (Conflict of Interest and Ethics
Commissioner),
2009 FCA 15, our Court reasserted the same view. At paragraph 15, Chief Justice
Richard stated:
15 With
respect to the applicant’s request for a declaration that subsections 44(1) to
44(6) [of the Conflict of Interest Act, S.C. 2006, c. 9] violate their
section 2(b) and 2(d) Charter rights, we find that while this
Court can properly hear constitutional challenges within applications for
judicial review, the applicant cannot simply tack a constitutional challenge onto
an application for judicial review which was inappropriately brought.
[Emphasis added]
[14]
Since the
appellant’s application for judicial review was improperly brought, there was
no proceeding on which “to tack a constitutional challenge”.
[15]
In any
event, there was another valid reason to dismiss the appellant’s application
for judicial review.
[16]
The
appellant had also appealed the Board’s decision to the Appeal Division
pursuant to section 147. The appeal was successful. A new hearing before two
members who did not participate in the impugned decision was held to remedy the
alleged breaches of procedural fairness. By the time the matter was decided de
novo by the judge, the appellant’s application for judicial review had
become moot and could also have been dismissed on that basis.
Whether
the judge erred in upholding the prothonotary’s decision to dismiss the
appellant’s application to reconsider and vary the earlier dismissal decision
[17]
For the
reasons given with respect to the first issue, I see no error in the judge’s
decision on this second ground of complaint. I should add that I agree with the
prothonotary that Rules 397(1)(b) and 399 found no application in this
case.
[18]
For these
reasons, I would dismiss the appeal with costs.
“Gilles
Létourneau”
“I
agree
J.
Richard C.J.”
“I
agree
Pierre
Blais J.A.”
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