Larsen v. Canada ( National Parole Board )
T-292-99
Lutfy J.
18/10/99
16 pp.
Application for judicial review of National Parole Board (Board) community liaison officer's refusal to review applicant's case for purpose of day parole on ground Immigration Act, s. 105 detention order had been issued against applicant-Applicant foreign national currently serving 9 1/2-year sentence at Cowansville Institution as result of conviction on drug-trafficking related charges-Applicant had pleaded guilty in March 1997-Eligible for parole in October 1998, after serving one-sixth of sentence-In April 1997, Immigration official directed immigration inquiry be held to determine if applicant member of inadmissible class-On same day, immigration officer issued warrant for arrest under Act, s. 103(1), directing applicant be detained under provisions of Act-Also issued order, under Act, s. 105, directing warden of Cowansville Institution applicant continue to be detained until expiration of sentence, then to be delivered to immigration officer to be taken into custody-Deportation order issued in March 1998 on basis applicant member of inadmissible class as consequence of conviction-Later in March 1998, further order issued under Act, s. 105 to reflect deportation order of March 1998-Further warrant for arrest and detention order issued in September 1999, 3 days prior to hearing of application for judicial review-Issue whether applicant has right to substantive review of case, for purpose of day parole, beyond correctional officials establishing applicant foreign national offender subject to s. 105 order-Application allowed-Review of case, for purpose of day parole, requiring more than merely establishing offender subject to detention order under Act, s. 105-Decision under judicial review, Correctional Service of Canada and Board failing to interpret correctly relevant provisions of Corrections and Conditional Release Act concerning day parole-Immigration Act, s. 105 detention order not removing offender's right to review and hearing with respect to day parole, where Board not otherwise directing day parole release-Nothing in language of Act, s. 105 or detention order in any way derogating from or otherwise affecting applicant's statutory right to accelerated day parole review and, if necessary, hearing-Board erred in law in refusing to grant to applicant review of his case for purpose of day parole and decision under review must be set aside-Not necessary herein to resolve conflict between decision directing offender be released on day parole and detention order made under Act, s. 105-Significant effect in respecting applicant's statutory right to day parole review interaction between Immigration Act, ss. 103(6) and 105(1) and potential impact adjudicator's review may have on continuation of warrant of arrest and detention order-If individual subject to s. 105(1) order ordered released by Board on day parole, s. 105(1) order would then become operative to continue his detention and that detention would be reviewable under Act, s. 103(6): Canada (Minister of Citizenship and Immigration) v. Chaudhry (1999), 178 D.L.R. (4th) 110 (F.C.A.)-Immigration Act, R.S.C., 1985, c. I-2, ss. 103(6) (as am. by S.C. 1992, c. 49, s. 94; 1995, c. 15, s, 19), 105(1) (as am. idem, s. 20)-Corrections and Conditional Release Act, S.C. 1992, c. 20.