PAROLE |
Rudnicki v. Canada (Attorney General)
T-1893-01
2001 FCT 1321, Rouleau J.
30/11/01
31 pp.
Application for judicial review of decision by Appeal Division of National Parole Board, affirming decision at first level on March 5, 2001 to revoke plaintiff's statutory release and on August 16, 2001 to keep plaintiff incarcerated and prohibit release--Plaintiff serving initial federal sentence since June 1998 of three years, five months and seventeen days for uttering threats, criminal harassment, failure to comply and public mischief--Also incurred provincial sentences in past--Since October 20, 2000 plaintiff entitled to statutory release in accordance with Corrections and Conditional Release Act, s. 127(1)--Whether Appeal Division erred in law in upholding first level decision of March 5, 2001 based on plaintiff's conduct before statutory release, and upholding decision at first level on August 16, 2001 when latter had no jurisdiction to impose continued detention and prohibition of release--Plaintiff submitted Board had not acted fairly and exceeded its jurisdiction by proceeding with review of continued detention when complete absence of information plaintiff's victims suffered serious harm--Court should only intervene to correct Board's decisions to revoke plaintiff's statutory release or prohibit his release if they prove to be patently unreasonable based on evidence before it--Concluding "conduct since release" requires commission of act or positive action such as assault, that would demonstrate risk plaintiff would reoffend before expiry of sentence he was serving had become undue risk for society, would be to give unduly limiting interpretation to s. 135(5)(a)--Evidence actually received by Board could reasonably support decision to revoke plaintiff's parole--Case at bar fell under Act, s. 129(3)--Concerned referral by commissioner to Board chairperson, not referral by Service to Board, and this was done less than six months before August 13, 2001, scheduled date of plaintiff's statutory release--In creating scheme set out in Act, s. 129(3) Parliament sought to ensure information relevant to probability inmate serving sentence of two years or more would be likely, if released before expiry of sentence according to law, to commit offence causing death or serious harm to another person would be provided to Board so as to enable it to decide whether inmate should be kept in detention or released--Right of inmate in penitentiary to freedom mentioned in Act, s. 127(1) qualified statutory right, not constitutional right--Only limited to extent can be shown necessary in order to protect public--There was sufficient information supporting conclusion which could be reasonably arrived at by Board, namely that there were reasonable grounds to believe plaintiff would commit offence causing death or serious harm before expiry of sentence--Act, s. 129(3) not ambiguous--Both commissioner of Service and Board took into account all factors required to consider under s. 132--Commissioner of Service did not infringe Act when he referred plaintiff's case to Board for it to reconsider eligibility for release under mandatory supervision and did not err in law in ordering prohibition of release of plaintiff and continued confinement--Application dismissed--Corrections and Conditional Release Act, S.C. 1992, c. 20, ss. 127 (as am. by S.C. 1995, c. 42, s. 41; 1999, c. 31, s. 66(A)), 129 (as am. by S.C. 1995, c. 42, s. 44; 1998, c. 35, s. 117), 135 (as am. by S.C. 1995, c. 42, ss. 50, 69(j)(A), 70(d)(A), (e)(A)).