PAROLE |
Cooper v. Canada (Attorney General)
T-83-01
2001 FCT 1329, Gibson J.
4/12/01
15 pp.
Judicial review of determination of dates for eligibility for parole, day parole, unescorted temporary absences by Sentence Management Chief at Kent Institution--Applicant committed two robberies on July 8 and 30, 1996--On August 1, 1996 committed homicide--Arrested for homicide on August 2--In July 1997 convicted of second degree murder, sentenced to life imprisonment with no eligibility for parole for 10 years from date of arrest i.e. August 2, 1996--In September sentenced to three years concurrent with respect to each robery, with each of such concurrent sentences to run concurrently with any other sentence then serving--On day of sentencing for robberies, parole ineligibility on life sentence ending on August 1, 2006--Sentence Management Chief, applying Corrections and Conditional Release Act, s. 120.2(2) determining ineligibility extended by 365 days each in respect of two concurrent sentences for robbery convictions-- Determined full parole eligibility to be August 1, 2008--S. 120.2 dealing with calculation of parole eligibility where additional concurrent sentences imposed--Providing where offender who is sentenced to life imprisonment receiving additional sentence for determinate period, not eligible for full parole until day on which serve, commencing on day on which additional sentence imposed, any remaining period of ineligibility, period of ineligibility in relation to additional sentence--Applicant alleging s. 120.2(2) unconstitutional on ground violates Charter, s. 7 right not to be deprived of liberty except in accordance with principles of fundamental justice, including ground that vague, over-broad, disproportional --Alternatively arguing Sentence Management Chief erred in interpretation, application of s. 120.2(2)--Parole is privilege, not right, conferred or withheld by exercise of discretion-- Conferring or withholding of privilege affecting liberty interest that has been curtailed, not through calculation of parole eligibility date or through exercise of discretion vested in National Parole Board, but by sentencing judge--Since granting, withholding of privilege of parole affecting liberty interest, National Parole Board, in exercise of discretion, must accord procedural fairness, not full "gamut" of principles of fundamental justice--Officers of Correctional Service of Canada, in determining parole eligibility dates in accordance with provisions of Corrections and Conditional Release Act, exercise no discretion, but simply apply law as enacted by Parliament--Determinations not impacting liberty right, interest but determine, in accordance with law, point in time during sentence of incarceration when inmate eligible to apply, be considered, for parole, certain other forms of conditional release--Such determinations subject to judicial review where not made in accordance with law--Since no discretion involved, principles of fundamental justice, duty of fairness not applicable--Charter, s. 7 not engaged-- Regardless, s. 120.2(2) not unconstitutionally vague, over-broad, disproportional--Debate in Justice and Legal Affairs Committee of House of Commons indicating fundamental principles of equity, crime = time, simplicity, to be reflected in ss. 120.1, 120.2--Also clear that while primarily concerned with issue of subsequent offences committed by lifer while out on parole, Parliament addressing, contemplating s. 120.2 being directed to circumstances herein--However, decision under review containing reviewable error--In calculation of full parole eligibility date, officer treated two new concurrent sentences as consecutive to one another--Treatment neither consistent with intent of sentencing judge nor with plain reading of s. 120.2(2)--Rouleau J.'s remarks concerning purpose of s. 120.2 in Dimaulo v. Canada (Correctional Service), 2001 FCT 1230; [2001] F.C.S. No. 1695 (T.D.) (QL) order dated 13/11/01, adopted with one addition: Parliament intended to assure public offender, whether on parole, or incarcerated, serving indeterminate sentence, required to serve minimum period of incarceration based on ineligibility portion of any subsequently imposed sentence(s)--Only such interpretation of s. 120.2 consistent with underlying principle that crime equals time--Nothing in s. 120.2 directing, authorizing concurrent sentences imposed on individual serving life term to be converted into consecutive sentences--S. 120.2 mandating that for purpose of calculating parole eligibility only, parole ineligibility period derived from global sentence arising from concurrent sentences treated as consecutive to remaining parole ineligibility on individual's life sentence--Application allowed in part--Referred back to respondent for recalculation of full parole eligibility date--Corrections and Conditional Release Act, S.C. 1992, c. 20, s. 120.2 (as enacted by S.C. 1995, c. 42, s. 34)--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], s. 7.