Macinnis v. Canada ( Attorney General )
T-1931-93
Cullen J.
18/10/93
6 pp.
Motion for order application filed under s. 18.1 be treated and proceeded with as action -- S. 18.4(2) permitting Trial Division, where considered appropriate, to direct application for judicial review be treated and proceeded with as action -- Applicant held in close custody at Kingston Penitentiary for indeterminate amount of time under now Part XXIV of Criminal Code dealing with dangerous offenders -- By originating notice of motion applied for series of declarations regarding two hearings of National Parole Board concerning his "condition" as required by Criminal Code -- Claiming Board failed to properly consider his condition by failing to weigh varying professional assessments before it, by refusing his request to question authors of clinical reports relied upon at hearing, and by proceeding to render assessment not founded on evidence -- Also claiming Board, in participating in continued indeterminate confinement infringing or denying rights guaranteed under Charter ss. 7, 9 and 15 -- Motion granted -- Reference to Potato Board (P.E.I.) v. Canada (Minister of Agriculture) (1992), 56 F.T.R. 150 (F.C.T.D.) wherein Muldoon J. stating new and preferred course of procedure by way of motion and that course should not be departed from except in clearest of circumstances -- This case complex and unique, involving individual with very unusual illness -- As originating notice of motion raising many difficult issues, including several concerning Charter, case may not be suited to procedure for application for judicial review -- Charter issues should not be separated from factual context -- In addition to Charter issues, fact Board not allowing applicant to have legal representation at hearings not likely to withstand judicial review -- Combination of complex legal issues and detailed factual information required make this case proper candidate to be treated and proceeded with as action pursuant to s. 18.4(2) and R. 1601(2) -- Not all applications raising Charter arguments will necessarily be treated as action -- Each case must be evaluated on own merits in accordance with intent of s. 18.4 and Muldoon J.'s comments in P.E.I. Potato Board -- Federal Court Act, R.S.C., 1985, c. F-7, s. 18.4(2) (as am. by S.C. 1990, c. 8, s. 5) -- Federal Court Rules, C.R.C., c. 663, RR. 6 (as am. by SOR/90-846, s. 2), 327, 1601(2) (as enacted by SOR/92-43, s. 19) -- 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, 9, 15 -- Criminal Code R.S.C., 1985, c. C-46, Part XXIV -- Corrections and Conditional Release Act, S.C. 1992, c. 20, s. 105(1).