PAROLE |
Dimaulo v. Canada (Commissioner of Corrections)
T-2221-00
2001 FCT 1230, Rouleau J.
13/11/01
8 pp.
Judicial review of decision recalculating eligibility date for parole--Applicant sentenced to life imprisonment for second degree murder in 1970--While on full parole committed three new offences--Sentencing judge accepted joint submission--Imposed "global" sentence of 12 years, with two offences carrying term of 8 years respectively, and one carrying sentence of 12 years, all sentences to be served concurrently--Correctional Service of Canada (CSC) Notice of Sentence Calculation indicating eligible to apply for full parole after serving required one-third of non-eligibility period (or 4 years) on March 11, 2000--Result arrived at by taking one-third of longest sentence (12 years)--Subsequently eligibility date for full parole re-established as July 11, 2005--Recalculations required due to alleged original misinterpretation of Corrections and Conditional Release Act, s. 120.2(2)--S. 120.2(2) providing where offender who is sentenced to life imprisonment or for indeterminate period, receives additional sentence for determinate period, not eligible for full parole until day on which offender served, commencing on day on which additional sentence imposed, (a) any remaining period of ineligibility; and (b) period of ineligibility in relation to additional sentence--CSC interpreting s. 120.2(2) as requiring calculation of parole eligibility date by looking at each sentence separately i.e. 12 years x 1/3 + 8 years x 1/3 + 8 years x 1/3 = 9 years and 4 months--Such interpretation (that irrelevant to calculation of full parole eligibility whether consecutive or concurrent sentence imposed) not accepted--Prior to enactment of s. 120.2, inmate on conditional release who re-offended could technically avoid serving any eligibility period arising out of subsequent sentence because of merger of further sentence with indeterminate sentence--This was mischief Parliament attempting to correct--Purpose of amendments to ensure offender on parole serving indeterminate sentence would be required to serve minimum period of incarceration based on ineligibility requirements of any subsequently imposed sentence--Not intending to remove discretion from sentencing judges with respect to options to impose concurrent versus consecutive sentences--Furthermore, Criminal Code, s. 719(1) providing sentence commencing when imposed, except where relevant enactment otherwise provides--S. 120.2 not providing concurrent sentence should be interpreted to read as consecutive--Clear from sentencing judge's decision "period of ineligibility in relation to additional sentence" in s. 120.2(2)(b) 12-year sentence imposed--Nothing in s. 120.2 directing concurrent sentence be converted into consecutive sentence contrary to principles of sentencing--Corrections and Conditional Release Act, S.C. 1992, c. 20, s. 120.2(2) (as enacted by S.C. 1995, c. 42, s. 34)--Criminal Code, R.S.C., 1985, c. C-46, s. 719(1) (as am. by S.C. 1995, c. 22, s. 6).