Federal Court Decisions

Date: 20011204

Docket: T-83-01

Neutral citation: 2001 FCT 1329

BETWEEN:

DOUGLAS MARVIN COOPER

Applicant

and

ATTORNEY GENERAL OF CANADA

Respondent

                                                        REASONS FOR ORDER

GIBSON J.:

Introduction

[1]                 These reasons arise out of an application for judicial review of a decision of the Sentence Management Chief at Kent Institution, a prison operated by the Correctional Service of Canada in British Columbia, wherein the Sentence Management Chief determined the applicant's eligibility for parole to be effective the 1^st of August, 2008 and his eligibility for day parole and unescorted temporary absences to be effective the 1^st of August, 2005. The date of the decision under review cannot be determined from the material that is before the Court and is not identified in the application for judicial review. However, the application for judicial review indicates that the decision was received by the applicant on the 18^th of December, 2000.

Background

[2]                 The facts giving rise to the decision under review are essentially not in dispute. The applicant committed two robberies in the Lower Mainland of British Columbia in the summer of 1996; the first on the 8^th of July, and the second on the 30^th of July. On the 1^st of August, 1996, the applicant committed a homicide, once again in the Lower Mainland of British Columbia. On the 2^nd of August, 1996, he was arrested for the homicide.

[3]                 On the 18^th of July, 1997, the applicant was convicted of second degree murder for the homicide that he had committed the previous summer and was sentenced to life imprisonment with no eligibility for parole for 10 years from the date of his arrest, that is to say, the 2^nd of August, 1996.

[4]                 On the 12^th of September, 1997, the applicant pled guilty to the two robberies that he had committed in the summer of 1996. He was sentenced to three years concurrent with respect to each robbery, with each of such concurrent sentences to run concurrently with any other sentence that he was then serving, that is to say, the life sentence for second degree murder.

[5]                 On the day that the applicant was sentenced on the two counts of robbery, the balance of his parole ineligibility remaining on his life sentence with no eligibility for parole for 10 years was 3,246 days ending on the 1^st of August, 2006. The Sentence Management Chief, applying subsection 102.2(2) of the Corrections and Conditional Release Act ^[1] determined the applicant's ineligibility to apply for parole to be extended by 365 days each in respect of the two concurrent sentences for his robbery convictions. In the result, she determined his full parole eligibility date to be the 1^st August, 2008.

[6]                 It is this decision that is here under review.

The Applicable Law

[7]                 Section 120.1 of the Corrections and Conditional Release Act (the "Act") deals with calculation of parole eligibility dates where additional consecutive sentences are imposed. Section 120.2 deals with calculation of parole eligibility where additional concurrent sentences are imposed. Subsection 120.2(2), the relevant provision on the facts of this matter, reads as follows:

[8]                 Section 7 and subsection 24(1) of the Canadian Charter of Rights and Freedoms^[2] (the "Charter") read as follows:

The Issues

[9]                 The applicant challenges the constitutional validity of subsection 120.2(2) of the Act, as applied to the particular facts of this matter, on the ground that it violates the applicant's right to liberty, and more particularly, his right not to be deprived thereof except in accordance with the principles of fundamental justice, including on the ground that, once again on the facts of this matter, it is vague, over-broad and disproportional.

[10]            In the alternative, and assuming subsection 120.2(2) of the Act to be constitutionally valid on the facts of this matter, the applicant urges that the Sentence Management Chief at Kent Institution erred in the interpretation and application of that subsection in determining the full parole eligibility date of the applicant, and thus also his day parole and unescorted temporary absence eligibility dates.

A Recent Decision of this Court on Substantially Similar Facts

[11]            This application for judicial review came on for hearing before me on the 13^th of November, 2001 at Vancouver. On the same day, my colleague Mr. Justice Rouleau issued reasons for decision in Dimaulo v. The Commissioner of Corrections, Correctional Service Canada et al. ^[3] ("Dimaulo"). By reason of geography, time differences and the wonders of electronic communication, the Court was able to distribute to counsel in this matter Mr. Justice Rouleau's reasons for decision in Dimaulo before the commencement of the hearing before me. Time for commencement of the hearing was briefly delayed in order to allow counsel, as well as the Court, to review the Dimaulo decision.

[12]            At the commencement of the hearing, counsel for the applicant, while adopting the result in Dimaulo as a "second best" result in this matter, urged it was distinguishable on the facts. Mr. Dimaulo, who was also serving a life sentence for second degree murder, committed the offences for which he was subsequently convicted and sentenced to concurrent terms while he was at large in the community on parole on his life sentence. By contrast, here, the offences for which the applicant was subsequently convicted and sentenced to concurrent terms were committed before he committed the homicide and, therefore, before he was sentenced to life imprisonment with no eligibility for parole for 10 years. More will be said with regard to the Dimaulo decision later in these reasons.

Reliefs Requested

[13]            The applicant requests the following reliefs:

­                       first, a declaration pursuant to subsection 24(2) of the Charter that subsection 120.2(2) violates section 7 of the Charter generally as well as specifically on the underlying facts of this matter; and

­                       secondly, that the sentence calculation with respect to the applicant that is under review be set aside and referred back for recalculation in accordance with the Orders of the sentencing judge or, in the alternative, in a manner consistent with the reasons of Mr. Justice Rouleau in Dimaulo.

Analysis

Constitutional Validity

[14]            Early in the hearing of this matter, I raised with counsel the question of whether or not parole is a right or a privilege. My concern was that if parole is a privilege and not a right, then section 7 of the Charter is simply not engaged by a determination of the applicant's parole eligibility date.    Such a determination would not impact the applicant's right to liberty which, as section 7 of the Charter provides, he cannot be deprived of except in accordance with the principles of fundamental justice. Not much was made of this point at the hearing before me.

[15]            I am satisfied that parole is a privilege and not a right and that section 7 of the Charter, as it relates to the right to liberty, is simply not engaged on the facts of this matter.

[16]            In R. v. Mitchell ^[4] Mr. Justice Ritchie wrote in relation to the Parole Act ^[5], the predecessor of a portion of the Corrections and Conditional Release Act:

In so far as the implementation of the provisions of the Parole Act is called in question in this appeal, it should I think be recognized at the outset that the very essence of the parole thereby established is that it is a privilege accorded to certain prisoners in the discretion of the Parole Board and not a right to which all prison inmates are entitled.

[17]            This position was reiterated by Mr. Justice Strayer, then of the Trial Division of this Court in Latham v. Solicitor General of Canada et al. ^[6].

[18]            In R. v. Shubley ^[7] Madam Justice McLachlin, as she then was, wrote at pages 22-3 in relation to earned remission, a form of credit against time served in prison that is no longer part of the sentence administration regime but that, I am satisfied, was in some respects analogous to parole in that it was highly discretionary:

The appellant suggests that the forfeiture or suspension of remission (which did not occur in this case) constitutes imprisonment. This submission is at odds with the legal concept of earned remission. Remission does not shorten a sentence for imprisonment; that can be done only by appeal. Rather, it permits an inmate who has "applied himself industriously" to the prison program, to serve part of his sentence outside the prison. The privilege of remission (it is not a right) is conferred as a matter of prison administration to provide incentives to inmates to rehabilitate themselves and co-operate in the orderly running of the prison. The removal of that privilege for conduct that violates these standards is equally a matter of internal prison discipline. Forfeiture of remission does not constitute the imposition of a sentence of imprisonment by the superintendent, but merely represents the loss of a privilege dependent on good behaviour: see Knockaert v. Commissioner of Corrections, ... where it was held [by a majority] that cancellation of earned remission does not constitute punishment, but is rather the withholding of a reward.                                             [citation and names of judges participating in the decision omitted]

[19]            More recently, Mr. Justice Sopinka, in Mooring v. Canada (National Parole Board),^[8] wrote at paragraphs 38-9:

As a statutory tribunal, the [National Parole] Board is also subject to the dictates of s. 7 of the Charter. ... While the principles of fundamental justice are not limited to procedural justice, it does not follow that a tribunal that applies the rules of fairness and natural justice does not comply with s. 7. If the myriad of statutory tribunals that have traditionally been obliged to accord nothing more than procedural fairness were obliged to comply with the full gamut of principles of fundamental justice, the administrative landscape in the country would undergo a fundamental change...

It is a basic tenet of our legal system that the rules of natural justice and procedural fairness are adjusted by reference to the context in which they are administered.

[20]            None of the foregoing cases were cited before me. That being said, I derive the following conclusions from them:

­                       parole is a privilege, not a right;

­                       it is a privilege conferred or withheld by the exercise of discretion. The conferring or withholding of the privilege affects a liberty interest that has been curtailed, not through calculation of a parole eligibility date or through the exercise of a discretion vested in the National Parole Board, but by the sentencing judge;

­                       since the granting or withholding of the privilege of parole affects a liberty interest, the National Parole Board, in the exercise of its discretion, must accord procedural fairness, not the full "gamut" of principles of fundamental justice.

[21]            Officers of the Correctional Service of Canada, in determining parole eligibility dates in accordance with the provisions of the Corrections and Conditional Release Act, exercise no discretion but rather simply apply the law as enacted by Parliament. The determinations that they make do not impact a liberty right or interest but rather determine in accordance with law the point in time during a sentence of incarceration when an inmate is eligible to apply for and to be considered for parole and certain other forms of conditional release. Such determinations are, as here, subject to judicial review where concern exists that the determination has not been made in accordance with law and the facts of a particular inmate's situation. Since no discretion whatsoever is involved on the part of the officers of the Correctional Service of Canada, I am satisfied that, while such determinations must be made in accordance with law, the principles of fundamental justice, and not even a duty of procedural fairness, applies to the making of such determinations.

[22]            In short then, section 7 of the Charter is simply not engaged on this application for judicial review.

[23]            Against the foregoing, in relation to the applicant's specific Charter arguments, I need not deal with the question of whether or not subsection 120.2(2) of the Act offends against section 7 of the Charter in that it is unconstitutionally vague, over-broad and disproportional, or put another way, at least on the facts of this matter, whether subsection 120.2(2) should not be allowed to stand because it does not provide the certainty in its application that Canadians are entitled to expect where a liberty interest is, however indirectly and conditionally, at issue. I will nonetheless comment briefly on the question.

[24]            I am satisfied that subsection 120.2(2) of the Act is not unconstitutionally vague, over-broad and disproportional. At the time the Government Bill containing amendments and additions to the Act including the new section 120.2 was being considered by the Justice and Legal Affairs Committee of the House of Commons, that Committee had before it a report on a comprehensive review of sentence calculation provisions contained in the Act ^[9]. That report indicates at page 3:

Three fundamental principles were identified to which any proposed solution [to difficulties arising from the then current parole eligibility calculation provisions] should respond:

Equity encompassing the notions of fairness, justice and predictability.

"Crime=Time" reflecting the premise that the imposition of a custodial sentence should result in the person serving some period of time in custody.

Simplicity of application and understanding without compromising comprehensiveness and flexibility.

[25]            Debates in the Committee indicate that those principles were intended to be reflected in sections 120.1 and 120.2 of the Act^[10], in particular at page 89:32, where a witness before the Committee, addressing the inter-relationship between the provision of the Bill that would enact section 120.2 and an earlier provision testified:

So clause 33 is intended to address the situation where a person may still be inside with a full parole eligibility date on the life sentence and gets a new definite term, which therefore pushes the full parole eligibility date further away. This is intended to really just say, "and so must his or her day parole eligibility date be pushed further away".                                                [emphasis added]

I am satisfied that the reference to "...day parole eligibility date..." applies equally to full parole eligibility date. Thus, I find it is clear that Parliament, in considering the enactment of section 120.2, while it was primarily concerned with the issue of subsequent offences committed by a lifer while out on parole, also addressed its mind and contemplated section 120.2 being directed to precisely the circumstances of the applicant in this matter. In the light of legislative history, I am satisfied that the words of subsection 120.2(2) are clear and unambiguous.

Reviewable Error in the Decision Under Review

[26]            I am satisfied that, on the plain meaning of subsection 120.2 (2) of the Act, when read together with the fact that the sentences imposed on the applicant while he was serving the life sentence earlier imposed on him and that were imposed to be served concurrently and concurrently with the sentence then being served, the officer whose decision is here under review erred in a reviewable manner. In her calculation of the applicant's full parole eligibility date, the officer effectively treated the two new concurrent sentences as consecutive to one another. I am satisfied that that treatment was neither consistent with the intent of the sentencing judge nor with a plain reading of subsection 120.2(2) of the Act.

[27]            In Dimaulo, Mr. Justice Rouleau wrote at paragraphs [10] to [12]:

I cannot accept the respondent's interpretation of this provision [subsection 120.2(2) of the Act] that regardless of whether a sentencing judge imposes a consecutive or concurrent sentence, that fact is not relevant in the calculation of the full parole eligibility date. Such an interpretation would lead to an absurdity, indeed, the very one which is stated by the respondent in its Memorandum of Fact and Law as follows:

"The first sentence commences when the judge imposes it, the second sentence also begins when the judge imposes it, and so on and so forth. However, since a judge cannot impose multiple sentences within the same second, every sentence inevitably has to start at a different moment."

In my view, that suggestion is so absurd, it hardly merits serious consideration. In any event, it most certainly is not in keeping with the basic tenets of statutory interpretation which require that the words of an Act are to be read in their entire context in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament.

Prior to the enactment of section 120.2 of the CCRA, an inmate who was on conditional release and who re-offended could technically avoid serving any ineligibility period arising out of a subsequent sentence. This was because of merger of the further sentence with the indeterminate sentence. This was the mischief Parliament was attempting to correct by enacting the amendments. Their purpose was to assure the public that an offender on parole serving an indeterminate sentence would be required to serve a minimum period of incarceration based on the ineligibility requirements of any subsequently imposed sentence. The intention was not to remove discretion from sentencing judges with respect to their options to impose concurrent versus consecutive sentences.

[28]            I adopt the foregoing as my own with one addition. I am satisfied that Parliament's intention went further than Mr. Justice Rouleau suggests: it was to assure the public that an offender, whether on parole or incarcerated, serving an indeterminate sentence, would be required to serve a minimum period of incarceration based on the ineligibility portion of any subsequently imposed sentence or sentences. Only such an interpretation of subsection 120.2(2) is consistent with the principle underlying that provision and related provisions that "Crime=Time".

[29]            I am satisfied that there is nothing in the language of subsection 120.2(2) which directs, or even authorizes, concurrent sentences imposed on an individual serving a life term to be converted into consecutive sentences. Subsection 120.2(2) does mandate that, for the purpose of calculating parole eligibility only, the parole ineligibility period derived from the global sentence arising from the concurrent sentences be treated as consecutive to the remaining parole ineligibility on the individual's life sentence. That is all, nothing more. The subsection simply cannot be interpreted to authorize sentence administration officials to interfere with a sentencing judge's discretion as to whether or not sentences he or she imposes should be served consecutively or concurrently with one another and consecutively or concurrently with any sentence then being served.

Conclusion

[30]            For the foregoing reasons, this application for judicial review will be allowed in part. The decision under review will be set aside and referred back to the respondent for recalculation of the applicant's full parole eligibility date based upon the global and concurrent sentence of three years imposed on him by the sentencing judge in September, 1997.

_____________________

             J. F.C.C.

Ottawa, Ontario

December 4, 2001

FEDERAL COURT OF CANADA

TRIAL DIVISION

NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET:                                    T-83-01

STYLE OF CAUSE:                   Douglas Marvin Cooper and

Attorney General of Canada

PLACE OF HEARING:              Vancouver, British Columbia

DATE OF HEARING:                 November 13, 2001

REASONS FOR ORDER OF: The Honourable Mr. Justice Gibson DATED:    December 4, 2001

APPEARANCES:

Anthony ZippFOR THE APPLICANT

Curtis Workun                                                                    FOR THE RESPONDENT Glenn Rosenfeld

SOLICITORS OF RECORD:

Zipp & Company                                                               FOR THE APPLICANT Coquitlam, British Columbia

Mr. Morris Rosenberg                                                       FOR THE RESPONDENT Deputy Attorney General of Canada

Ottawa, Ontario