147. (1) Right of appeal - An offender may appeal a decision of the Board to the Appeal Division on the ground that the Board, in making its decision,

failed to observe a principle of fundamental justice;

made an error of law;

breached or failed to apply a policy adopted pursuant to subsection 151(2);

based its decision on erroneous or incomplete information; or

acted without jurisdiction or beyond its jurisdiction, or failed to exercise its jurisdiction.

         (2) Decision of Vice-Chairperson - The Vice-Chairperson, Appeal Division, may refuse to hear an appeal, without causing a full review of the case to be undertaken, where, in the opinion of the Vice-Chairperson,

the appeal is frivolous or vexatious;

the relief sought is beyond the jurisdiction of the Board;

the appeal is based on information or on a new parole or statutory release plan that was not before the Board when it rendered the decision appealed from; or

at the time the notice of appeal is received by the Appeal Division, the offender has ninety days or less to serve before being released from imprisonment.

         (3) Time and manner of appeal - The time within which and the manner in which a decision of the Board may be appealed shall be as pre- scribed by the regulations.

         (4) Decision on appeal - The Appeal Division, on the completion of a review of a decision appealed from, may

affirm the decision;

affirm the decision but order a further review of the case by the Board on a date earlier than the date otherwise provided for the next review;

order a new review of the case by the Board and order the continuation of the decision pending the review; or

reverse, cancel or vary the decision.

         (5) Conditions of immediate release - The Appeal Division shall not render a decision under subsection (4) that results in the immediate release of an offender from imprisonment unless it is satisfied that

the decision appealed from cannot reasonably be supported by law, under the applicable policies of the Board, or on the basis of the information available to the Board in its review of the case; and

a delay in releasing the offender from imprisonment would be unfair.

McFarlane v. Regional Psychiatric Centre - (1994), 24 W.C.B. (2d) 536 (B.C.C.A.)

- Subsection 147(1) provides that the Appeal Division is authorized to allow an appeal from an order of detention on grounds commonly invoked in an application for an order in the nature of certiorari but not on the grounds of having a different view of the evidence than the Board.

Aird v. Canada (National Parole Board) - (1994), 85 F.T.R. 290 (T.D.)
Fragaso v. Canada (National Parole Board) - (1995), 101 F.T.R. 131 (T.D.)
However, see also Fraser v. Kent Institution - (1997), 130 C.C.C. (3d) 393, 167 D.L.R.(4th) 457, 6 C.R. (5th) 293 (B.C.C.A.)

- Before seeking judicial review of a decision of the NPB in Court, the applicant should appeal to the Appeal Division of the NPB.

Clubb v. William Head Institution - (1995), 26 W.C.B. (2d) 460 (B.C.S.C.)

- This provision does not undermine the habeas corpus jurisdiction of the Provincial superior courts. However, the statutory remedies of review of parole revocation must be exhausted before seeking habeas corpus relief.

Diamond v. National Parole Board - (1995), 92 F.T.R. 291 (T.D.)

- Were the NPB denies early release and the decision is upheld by the Appeal Division, judicial review of the Appeal Division decision may be sought, but not review of the Board's original decision.

Schemmann v. Canada (National Parole Board) - (1995), 102 C.C.C. (3d) 273, 106 W.A.C. 177 (B.C.C.A.), leave to appeal to S.C.C. refused 102 C.C.C. (3d) vi, 132 W.A.C. 240n, 198 N.R. 398n

- It was argued that the NPB failed to hear an application for day parole within the time limit of s157 of the Regulations, and detention was therefore unlawful and the prisoner should be able to seek a habeas corpus remedy. The Court found that, since the applicant did not have the status of parolee, a habeas corpus application could not be considered. Access to habeas corpus is reserved for the most extreme and unusual cases. If a hearing was granted in this circumstance, it would create a duplication of review procedures and upset the parole scheme, regardless of the application of the Charter.

Pinkney v. Canada (Attorney General) - (1998), 145 F.T.R. 311 (F.C.T.D.)

- Where an applicant has not exhausted the appeal rights provided by this section, the Court will not exercise discretion to hear a judicial review application, unless there would be a grave injustice.

Lyding v. Canada (National Parole Board) - (1998), 213 A.R. 323 (Q.B.)

- Where a prisoner was detained beyond the scheduled review date, had spent a considerable amount of time in custody on parole suspension and where delay therefore made the internal appeal process inadequate, the Court found that it was not required for the applicant to exhaust appeal remedies under this section. The issues raised in the application for habeas corpus with certiorari in aid were jurisdictional in nature.