PAROLE |
Teneycke v. Canada (Attorney General)
T-830-03
2004 FC 397, Snider J.
16/3/04
14 pp.
Judicial review of decision of Appeal Division of National Parole Board (NPB) affirming detention order--Applicant serving aggregate sentence of 12 years at Kent Institution-- Commissioner of Corrections recommended to NPB applicant be detained beyond statutory release date and be required to reside in Community Correctional Centre or Community Residential Facility upon release (Commissioner's referral)-- NPB subsequently imposed conditions upon statutory release, including residence in halfway house, close supervision by parole officer--Appeal Division affirmed detention order-- Corrections and Conditional Release Act (CCRA), s. 129(3)(a) requiring Commissioner to refer case to NPB not later than six months before statutory release date where believes offender likely to commit offence causing serious harm, unless belief formed on basis of information obtained during those six months--Applicant submits only new information obtained during six months addendum to psychological report applicant had recently changed attitude and had indicated willingness to participate in appropriate treatment program--Thus, applicant contending, only new evidence demonstrated reduction in risk to reoffend-- Cunningham v. Canada, [1993] 2 S.C.R. 143 applied-- Information in question not indicating reduction in risk of recidivism--NPB, Appeal Division's finding that NPB had jurisdiction to consider Commissioner's referral reasonable-- As to alleged failure by NPB to comply with Act, s. 141(1), thereby breaching applicant's right to procedural fairness, applicant alleged his right to sufficiently prepare for hearing denied--Hearing scheduled for eight days after notification-- CCRA, s. 14(1) requiring NPB to provide information to be considered at least 15 days before review--Issue not properly before Court as not raised before NPB, Appeal Division-- Kane v. University of British Columbia (1979), 98 D.L.R. (3d) 726 (B.C.C.A.) distinguished--Furthermore as CCRA not providing remedy, certiorari appropriate remedy--Requires Court to determine whether applicant prejudiced--No evidence applicant prejudiced by any breach of statute-- Accordingly, certiorari denied at this stage of proceedings-- As to alleged error by Appeal Division in ignoring relevant evidence, applicant submits positive evidence of conduct before Appeal Division not referred to in its decision--Again not appropriate to raise issue not before Appeal Division-- Sole issue before Appeal Division was NPB's jurisdiction to hold hearing in first instance--Issue raised defined and narrow question of mixed fact and law--Sole question whether new reports, namely, psychological assessment report and assessment for decision, satisfied requirements under CCRA, s. 129(3)(a)--All relevant evidence presented to Appeal Division fairly reviewed--No reviewable error--Application dismissed--Corrections and Conditional Release Act, S.C. 1992, c. 20, ss. 129(3)(a), 141(1).