Dumas v. Leclerc Institute,  2 S.C.R. 459
Alain Dumas Appellant
The Director of the Leclerc Institute of Laval and the National Parole Board Respondents
The Attorney General of Quebec and the Attorney General of Canada Mis en cause
indexed as: dumas v. leclerc institute
File No.: 19153.
1985: May 24; 1986: November 6.
Present: Dickson C.J. and Beetz, Estey, McIntyre, Lamer, Wilson and Le Dain JJ.
on appeal from the court of appeal for quebec
Prerogative writs ‑‑ Habeas corpus ‑‑ Availability of remedy ‑‑ Parole ‑‑ National Parole Board reversing its decision granting inmate day parole ‑‑ Decision annulling parole made before inmate acquired the status of parolee ‑‑ Whether habeas corpus available in these circumstances to challenge the continuation of the deprivation of liberty.
The National Parole Board granted appellant day parole. The day parole was to take effect as soon as the appropriate arrangements could be made with the Amos Community Residential Centre. His release was thus conditional on his acceptance by the Centre. Before his interview at the Centre, he was accused of certain disciplinary offences and informed by the Board that his day parole would be delayed and his case reviewed. The Board, on review, annulled its earlier decision. Appellant's application for habeas corpus and certiorari in aid, which was made prior to the review of his case, was dismissed by the Quebec Superior Court and the judgment affirmed by the Court of Appeal. This appeal is to determine whether habeas corpus is available in these particular circumstances.
Held: The appeal should be dismissed.
The continuation of an initially valid deprivation of liberty can only be challenged by way of habeas corpus if it becomes unlawful. In the context of parole, the continued detention of an inmate will only become unlawful if he has acquired the status of a parolee. An inmate acquires that status as of the moment the decision to grant him parole takes effect. Therefore, where a decision is made to grant parole but it is subject to the fulfilment of a condition, the inmate only becomes a parolee if and when the condition is fulfilled. If he is not released on parole when the condition is fulfilled, then he may resort to habeas corpus. Here, appellant had no right to habeas corpus since he clearly never became a parolee. Indeed, the National Parole Board reversed its decision granting him day parole before the prerequisite condition was fulfilled.
Referred to: R. v. Miller,  2 S.C.R. 613; Cardinal v. Director of Kent Institution,  2 S.C.R. 643; Morin v. National Special Handling Unit Review Committee,  2 S.C.R. 662.
Statutes and Regulations Cited
Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10, s. 18.
Parole Act, R.S.C. 1970, c. P‑2 as amended.
APPEAL from a judgment of the Quebec Court of Appeal,  R.D.J. 197, affirming a judgment of the Superior Court, dismissing appellant's application for habeas corpus. Appeal dismissed.
Élaine Bissonnette, for the appellant.
Jacques Letellier, Q.C., for the respondents and the mis en cause the Attorney General of Canada.
The judgment of the Court was delivered by
1. Lamer J.‑‑The issues in this appeal are to be governed by the Parole Act, R.S.C. 1970, c. P‑2 as amended, as it stood prior to its amendment by S.C. 1986, c. 42 and 43.
2. The appellant was sentenced to five years and ten months' imprisonment. On his full parole eligibility date, the National Parole Board (hereinafter NPB) refused to grant him parole. At a second hearing one year later, the NPB again refused to grant him full parole, but decided to grant him day parole. This day parole was to take effect as soon as the appropriate arrangements could be made and it appears that these arrangements were to be made with the Amos Community Residential Centre, such that his release was conditional on his acceptance by the Centre.
3. Before the date of his interview at the Centre, he was accused of certain disciplinary offences, and he was later convicted of one of these offences. As a result, the NPB informed the appellant that his day parole would be delayed by six weeks, so that his case could be reviewed. When he was informed of this decision, he committed certain major disciplinary offences.
4. At this point, the appellant proceeded by way of application for a writ of habeas corpus with certiorari in aid before the Superior Court of Quebec. I should stress here that the appellant did not apply to the Superior Court judge for a remedy under s. 24(1) of the Canadian Charter of Rights and Freedoms. His only reference to the Charter was to assert his right to habeas corpus.
5. To complete this review of the facts, I would add that, following the six week delay, the appellant was informed that the decision taken by the NPB to grant him day parole was being reviewed. He was advised of the grounds for this review, namely the disciplinary offences, and he was invited to make submissions. Three weeks later, the NPB decided to refuse him day parole thus annul‑ling their earlier decision.
6. The Superior Court refused to issue a writ of habeas corpus. In a short judgment quoted at  R.D.J. 198, Meyer J. held:
[TRANSLATION] Since the purpose of the motion is to attack the decision of the National Parole Board to delay the applicant's day parole;
Since the warrant pursuant to which the applicant is detained is not attacked;
Since habeas corpus is not the appropriate recourse, but rather mandamus;
Since the latter writ is a matter for the Federal Court (see the case of Morin and Yeomans);
For these reasons, the Court refuses the issuance of the writ of habeas corpus.
7. The Court of Appeal unanimously dismissed his appeal:  R.D.J. 197. The Court held at p. 198:
[TRANSLATION] Considering that the appellant does not in any way attack the warrant pursuant to which he is detained, but he challenges only the decision of the National Parole Board;
Considering in these circumstances that the writ of habeas corpus is not the appropriate procedure;
Considering also that the judgment of our Court in the case of Morin v. Comité national chargé de l'examen des cas d'U.S.D. (Unité spéciale de détention),  C.A. 464, decided `that proceedings attacking the internal administrative procedure of penitentiaries are within the exclusive competence of the Federal Court of Canada';
For these reasons:
Dismiss the appeal.
8. In all fairness to the courts below, it should be mentioned that their decisions in this case were rendered prior to this Court's judgments in R. v. Miller,  2 S.C.R. 613; Cardinal v. Director of Kent Institution,  2 S.C.R. 643, and Morin v. National Special Handling Unit Review Committee,  2 S.C.R. 662.
9. The jurisdictional issue was settled by this Court in Miller, supra, when Le Dain J. concluded at p. 626:
... a provincial superior court has jurisdiction to issue certiorari in aid of habeas corpus to review the validity of a detention authorized or imposed by a federal board, commission or other tribunal as defined by s. 2 of the Federal Court Act....
Thus, the only issue that remains to be decided in this case is whether habeas corpus is available in these particular circumstances.
10. This Court widened the availability of habeas corpus in Miller, supra. The traditional preconditions to the availability of the remedy were: (a) that there be a deprivation of liberty; and (b) that what is sought is the complete liberty of the applicant. This Court gave a wide interpretation of "deprivation of liberty", holding, at pp. 640‑41:
...I am of the opinion that the better view is that habeas corpus should lie to determine the validity of a particular form of confinement in a penitentiary notwithstanding that the same issue may be determined upon certiorari in the Federal Court.... Confinement in a special handling unit, or in administrative segregation as in Cardinal, is a form of detention that is distinct and separate from that imposed on the general inmate population. It involves a significant reduction in the residual liberty of the inmate. It is in fact a new detention of the inmate, purporting to rest on its own foundation of legal authority. It is that particular form of detention or deprivation of liberty which is the object of the challenge by habeas corpus. It is release from that form of detention that is sought. For the reasons indicated above, I can see no sound reason in principle, having to do with the nature and role of habeas corpus, why habeas corpus should not be available for that purpose. I do not say that habeas corpus should lie to challenge any and all conditions of confinement in a penitentiary or prison, including the loss of any privilege enjoyed by the general inmate population. But it should lie in my opinion to challenge the validity of a distinct form of confinement or detention in which the actual physical constraint or deprivation of liberty, as distinct from the mere loss of certain privileges, is more restrictive or severe than the normal one in an institution.
In addition, this Court rejected the all or nothing approach of the second precondition and held that habeas corpus was available to release a person from a particular aggravated form of detention although the person will lawfully remain under some other restraint of liberty.
11. Thus, with respect, the lower courts erred in holding that habeas corpus was available to attack only the initial warrant of committal. Habeas corpus is available to challenge an unlawful deprivation of liberty. In the context of correctional law, there are three different deprivations of liberty: the initial deprivation of liberty, a substantial change in conditions amounting to a further deprivation of liberty, and a continuation of the deprivation of liberty. In this case, as was pointed out in the lower courts, there was no challenge to the validity of the initial deprivation of liberty. In addition, there was no substantial change in the conditions of detention, because the appellant was never actually released on parole. If the appellant had been released on parole and then reincarcerated pursuant to a decision of the NPB, there would have been a substantial change which could have been challenged by way of habeas corpus. What is being challenged in this case is the continuation of the deprivation of liberty.
12. The continuation of an initially valid deprivation of liberty can be challenged by way of habeas corpus only if it becomes unlawful. In the context of parole, the continued detention of an inmate will only become unlawful if he has acquired the status of a parolee. An inmate acquires that status as of the moment the decision to grant him parole takes effect. Thus, if parole is granted effective immediately, he becomes a parolee when the decision is rendered. If, for some reason, the restriction to his liberty continues, he may then have access to habeas corpus. If parole is granted effective at some later date, then the inmate acquires the status of parolee at that date and not at the date of the decision. Similarly, where a decision is made to grant parole but it is subject to the fulfilment of a condition, the inmate only becomes a parolee if and when the condition is fulfilled. If he is not released on parole when the term arrives or the condition is fulfilled, then he may resort to habeas corpus. Finally, if parole is refused, it is obvious that the inmate has not become a parolee and he cannot have recourse to habeas corpus to challenge the decision.
13. Now to deal with Dumas. The NPB made a decision to grant him day parole, but the terms used are not precise and there is some uncertainty as to whether his day parole was simply delayed until appropriate arrangements could be made or whether it was conditional on his acceptance by the Centre. However, the NPB subsequently delayed and later reversed this decision before the term arrived or the prerequisite condition was fulfilled. It is clear that the appellant never became a parolee, and he thus has no right to a habeas corpus.
14. This does not mean that a detainee is left without recourse in an appropriate case. Indeed, this does not mean that the NPB had jurisdiction to review its earlier decision or that it could do so in a way that may have infringed the rules of natural justice or the appellant's rights under s. 7 or s. 9 of the Charter. These issues are not before the Court on an application for habeas corpus, but could be raised on an application under s. 18 of the Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10, or s. 24(1) of the Charter.
15. I would dismiss this appeal. There shall be no disposition as to costs.
Solicitors for the appellant: Howard, Gagné, Bissonnette & Thivierge, Montréal.
Solicitors for the respondents and the mis en cause the Attorney General of Canada: Roger Tassé, Ottawa; Jacques Letellier, Montréal.