PAROLE |
Coscia v. Canada (Attorney General)
T-308-04
2004 FC 1004, Phelan J.
20/7/04
11 pp.
Judicial review of National Parole Board Appeal Division's (Appeal Division) decision upholding decision of National Parole Board (Board) denying applicant parole for deportation pursuant to Corrections and Conditional Release Act (Act), s. 102--Applicant 44-year-old first-time federal offender serving aggregate of 14 years, 8 months for (a) conspiracy to import and traffic narcotic; (b) sale of prohibited weapon; (c) laundering proceeds of crime; (d) conspiracy of traffic; and (e) uttering death threats--Ordered deported and declared to be danger to public--Denied parole by Board due to involvement with "Traditional Organized Crime"--Appeal Division acknowledging perhaps not member of organized crime in legal sense, but involved in large-scale criminal activities of international nature--Applicant arguing Appeal Division considered and treated him as if participant in or contributor to, activities of criminal organization despite no conviction on this ground and no opportunity to adequately defend against that allegation--Criminal Code, s. 467(1) defining "criminal organization", "serious offence"--S. 467.11 making it a crime to participate in activity of criminal organization-- Correctional Services having internal policy dealing with membership in criminal gangs--Policy setting out criteria for identifying those involved in organized crime, including judicial finding, and procedural rights to allow challenge to finding person gang member--De Luca v. Canada (Attorney General) (2003), 231 F.T.R. 8 (F.C.T.D.) holding cannot be treated as member of "criminal organization" unless there is conviction--Board cannot do so either directly or indirectly unless there is such court finding--Loose use of term "organized crime" resulted in Board, Appeal Division treating applicant as if member of criminal organization, thus doing indirectly something could not do directly--No legal definition of "organized crime" in Act--Impossible to know what "organized crime" means in legal sense or what Appeal Division meant by use of term--Error of law in this case to inquire into, apply legal test of "member of organized crime" where no such definition exists or use of these words never made clear--Also error to apply or adopt such terms as "Traditional Organized Crime, and "Traditional Organized Crime Affiliation" without indicating what is understood by those terms--Unfair to use terms susceptible of different meanings, without indicating in what manner terms are understood--Applicant denied procedural fairness-- Application allowed--Corrections and Conditional Release Act, S.C. 1992, c. 20, s. 102--Criminal Code, R.S.C., 1985, c. C-46, ss. 467(1) "criminal organization", "serious offence", 467.11 (as enacted by S.C. 2001, c. 32, s. 27).