MCLEAN v CANADA (CORRECTIONAL SERVICE), 2016 ABQB 673
3.15: Originating application for judicial review
3.16: Originating application for judicial review: habeas corpus
3.17: Attorney General’s right to be heard
3.18: Notice to obtain record of proceedings
3.19: Sending in certified record of proceedings
3.20: Other circumstances when record of proceedings may be required
3.21: Limit on questioning
3.22: Evidence on judicial review
3.23: Stay of decision
3.24: Additional remedies on judicial review
The Applicant, McLean, was denied parole by the Parole Board and by the Appeal Division of the Parole Board, and applied to the Court of Queen’s Bench for an Order of habeas corpus. Henderson J. discussed the general principles the Court should consider when deciding an Application for habeas corpus, stating that an Application for an Order for habeas corpus is a form of Judicial Review of an administrative Decision; therefore, the Court of Queen’s Bench has inherent discretion to decide whether or not to exercise jurisdiction and undertake Judicial Review and can only decline to exercise its jurisdiction to hear an Application for habeas corpus in limited circumstances.
Henderson J. noted that generally the Rules that govern Applications for judicial review are Rules 3.15 to 3.24, the section titled Additional Rules Specific to Originating Applications for Judicial Review. Henderson J. referred to Rule 3.16 which provides that an Application for habeas corpus can be filed at any time and must be served as soon as practicable after filing. In addition, any Affidavit or other evidence that the party wishes to rely on must be served at least ten days before the Application. Justice Henderson also considered Rule 3.22 which provides that the evidence that can be heard on a Judicial Review Application is limited, and generally the Court should consider the Application based on the evidence that the Administrative Tribunal had before them. His Lordship stated that additional evidence or Affidavits on Judicial Review should be permitted only in exceptional circumstances, and that Rule 3.22 provides that any additional evidence to be used on a Judicial Review Application must be permitted either by the Court or by another Rule or enactment. The Respondents in the Application had filed two additional Affidavits but later conceded that there were no exceptional circumstances which would justify their review by the Court.
The Applicant, who was a self-represented litigant, filed additional sworn evidence not styled as an Affidavit. Henderson J. determined that the information in the additional filed evidence was already before the Parole Board and the Parole Board Appeal Division, and that there was no new information in the filed material. Justice Henderson concluded that the overarching principle of fairness meant that the Court should consider the new materials. Notwithstanding the Applicant’s new evidence, Henderson J. determined that the Parole Board and the Parole Board Appeal Division’s Decisions to revoke the Applicant’s parole were reasonable and lawful, and therefore dismissed the Application for habeas corpus.View CanLII Details