Digests

McMurray v. Canada (National Parole Board)

T-266-03

2004 FC 462, Russell J.

26/3/04

45 pp.

Judicial review of National Parole Board (NPB), Appeal Division decision to not hear appeal under Corrections and Conditional Release Act (CCRA), s. 147--Appeal concerned NPB decision imposing residency condition pursuant to claimed authority under CCRA--Applicant long-term offender within Criminal Code, ss. 753.1, 753.2, CCRA, Part II--First-time offender, convicted of five counts of sexual assault upon male teenagers--Sentenced to four years-- Allowed credit for time already served--Under Code, s. 753.2, Court ordered five year's supervision once released-- NPB panel imposed numerous special conditions, including residency condition, purportedly under CCRA, s. 134.1(2): required to reside at community correctional centre-- Reiterated in Long-Term Supervision Certificate--NPB's position: conditions imposed under long-term supervision not subject to review by Appeal Division--Purpose of residency condition: allow for closer supervision, enhance accountability --Residency condition restricted applicant's liberty by: having to reside at Keele Correctional Centre at night, curfew, compliance with onerous rules--Says modified form of reincarceration, stigmatized, intimidated by other institutional residents--One purpose of correctional system to assist offender's rehabilitation, reintegration into community-- Presumption in favour of liberty--General principle: offenders have access to review of NPB decisions--Under s. 134.1(2), Board empowered to impose conditions "which it considers reasonable and necessary in order to protect society and to facilitate the successful reintegration into society" in respect of offenders undergoing long-term supervision-- Legislation silent as to imposition of residency conditions-- Under s. 135.1(1)(c), Board may require long-term offender having breached, or about to breach, conditions of supervision to reside at specified place--Applicant relies upon maxim expressio unius est exclusio alterius--Parliament did confer statutory authority for imposition of residency conditions where offender on statutory release--Applicant having served sentence in full--Applicant also pointing to Charter, s. 7 in arguing residence choice quintessentially private decision going to heart of individual autonomy--Says Court empowered by Charter, s. 24(1) to remedy s. 7 infringement-- As for expresio unius argument, respondent cites R. v. V.M., [2003] O.J. No. 436 (QL), at paragraph 143 in which Wilson J. pointed out that it "would make little sense for the NPB to have the authority to order that ordinary offenders on parole be subject to residency conditions, and not have the authority to make similar orders for identified high risk, high need offenders"--Respondent argues statute's primary purpose is maintenance of just, peaceful, safe society and that s. 134.1(2) must be interpreted with that in mind--In V.M. case, Wilson J. suggested that if the NPB lacked jurisdiction to impose residency requirements in long-term supervision orders, risk presented by many such offenders would be such that they could not be managed within community and they would be classed as dangerous offenders--This, Judge concluded, would be absurd result--In R. v. Johnson, [2001] B.C.J. No. 2021 (QL), Ryan J.A. explained that, under current legislation, offender who, though incurable, can be safely controlled in the community, can qualify for long-term rather than dangerous offender status--Respondent submits that imposition of residency conditions upon long-term supervised offenders achieved the public protection goal while avoiding over-incarceration--Respondent argues CCRA, s. 99.1 makes it clear ss. 146, 147 (access to Appeal Division) unavailable to long-term offenders--Respondent says applicant's only right is to judicial review by Federal Court of long-term offender determination--Applicant argues for curial deference, application of reasonableness standard of review whereas respondent argues for application of patent unreasonableness review standard to NPB decision to impose residency condition--Residency condition was reasonable, necessary considering applicant's sexual deviance, phallometric test results that aroused by stimili involving adolescent males-- Highly likely to reoffend--As for applicant's Charter argument, if liberty interest engaged, Charter protection attracted, limit imposed in accordance with fundamental justice rules--Long-term supervision order not form of conditional release akin to parole--Runs after sentence where offender still considered risk to community--More akin to dangerous offender situation but not involving indeterminate sentence--Residency restriction directly related to protection of society--Risk to public of untreated sex offender must be addressed--Application denied--Application, by its terms, raises but one issue for Court's consideration: Appeal Division's decision not to hear applicant's appeal--Whether NPB has jurisdiction to impose residence requirements not relevant to review of Appeal Division's jurisdiction to hear appeal--Applicant out of time to seek judicial review of decision to impose residence condition and no ground advanced to justify time extension or amendment to this application--Correctness appropriate review standard--Long-term offenders do not meet CCRA, Part II definition of "offender" and reference must be made to s. 99.1--Court's conclusion: context, scheme, purpose, ordinary meaning of words reveal s. 99.1 refers to specific provisions to make clear, where not obvious, they are to be applied to long-term offenders "with such modifications as the circumstances require"--Had Parliament intended ss. 146, 147 to be available to long-term offenders, would have specifically said so in s. 99.1--Most telling: Part II review process provisions begin at s. 140, continue to s. 147--Appeal process part of normal review scheme, but s. 99.1 says ss. 140 to 145 apply to long-term offenders--Why would ss. 146, 147 have been omitted from s. 99.1 had Parliament intended Appeal Division review be available to long-term offenders?--Corrections and Conditional Release Act, S.C. 1992, c. 20, ss. 99.1, 134.1(2), 135.1(1)(c), 137, 140, 141, 142, 143, 144, 145, 146, 147-- Criminal Code, R.S.C., 1985, c. C-46, as am., ss 753.1, 753.2--Canadian Charter of Rights and Freedoms, being Part I of the Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44], ss. 7, 24.