Date: 20011113
Docket: T-2221-00
Neutral citation: 2001 FCT 1230
BETWEEN:
VINCENZO DIMAULO
Applicant
AND:
THE COMMISSIONER OF CORRECTIONS,
CORRECTIONAL SERVICE CANADA; THE REGIONAL ADVISOR,
SENTENCE MANAGEMENT (QUEBEC REGION);
THE SENTENCE ADMINISTRATOR FOR STE. ANNE DES
PLAINES INSTITUTION; THE NATIONAL PAROLE BOARD
OF CANADA (QUEBEC REGION); AND
THE ATTORNEY GENERAL OF CANADA
Respondents
[1] This is an application for judicial review in respect of the respondent's decision dated October 31, 2000 which recalculated the applicant's eligibility date for parole. The applicant is seeking an Order quashing the new parole eligibility date, reinstating the original parole eligibility date, and requiring the respondent to proceed with the applicant's parole hearing as soon as possible.
[2] The facts of this case, which are not in dispute, are as follows.
[3] On April 15, 1970, the applicant was convicted of second degree murder and was sentenced to life imprisonment, without parole eligibility for ten years. He was granted full parole on May 5, 1981.
[4] On August 31, 1994, the applicant was arrested for new offences and his parole was suspended. He was subsequently incarcerated for a year and a half. On March 11, 1996, he pleaded guilty to three offences. This was the result of a plea agreement between the applicant's counsel and the Crown Attorney whereby it was confirmed in writing that the Crown would agree to a joint submission before the sentencing judge that the three offences would carry terms of 8 years, 8 years and 12 years to be served concurrently. In passing sentence, the judge accepted the joint submission and imposed a "global" sentence of twelve years, with two of the offences carrying a term of eight years respectively and one carrying a sentence of twelve years. All sentences were to be served concurrently.
[5] As required under the directives enacted pursuant to the Corrections and Conditional Release Act (CCRA), S.C. 1992, c. 20, the applicant received a Correctional Service Notice of Sentence Calculation, dated August 9, 1996, indicating that he would be eligible to apply for full parole, after serving the required one-third of the non-eligibility period, which Correctional Service of Canada (CSC) indicated would be four years. As a result, the applicant's eligibility date for full parole was determined to be March 11, 2000. This sentence calculation was determined by the authorities at Ste-Anne-des-Plaines Institution, the federal penitentiary where the applicant was incarcerated and in accordance with the existing directive, confirmed by the Regional Chief, Sentence Management, Quebec Region. On September 25, 1998, Correctional Service of Canada confirmed March 11, 2000 as the applicant's eligibility date for full parole. This result was arrived at by taking one-third of the longest sentence (12 years x 1/3 = 4 years).
[6] However, on October 31, 2000, CSC re-established the applicant's eligibility date for full parole as July 11, 2005. It maintained that the recalculation was required due to an original misinterpretation of subsection 120.2(2) of the Corrections and Conditional Release Act. CSC took the position that the proper interpretation required that the parole eligibility date be calculated by looking at each conviction and sentence separately. In mathematical terms therefore, the period of parole ineligibility could be expressed as follows:
12 years x 1/3 + 8 years x 1/3 + 8 years x 1/3 = 9 years and 4 months
[7] The applicant now seeks to have that decision set aside on the grounds, inter alia, that CSC misinterpreted subsection 120.2(2) by failing to take into account the fact that the sentences imposed upon him were to be served concurrently. It is further argued by the applicant that the section is ambiguous and that any ambiguity should be resolved in his favour.
[8] The respondent's position is set out in its Memorandum of Fact and Law as follows:
"When an offender who has been sentenced to life imprisonment receives, on the same day, additional sentences for determinate periods, does the application of subsection 120.2(2) CCRA entail that, in the calculation of a full parole eligibility date, the periods of ineligibility in relation to the second sentences be added to the remaining period of ineligibility to which the offender is subject to create a new remaining period of ineligibility before the period of ineligibility on a third sentence is considered, and so on and so forth for any subsequent additional sentence, requiring in effect that each individual sentence be fully considered as they would be if they had been imposed on separate dates, or that the periods of ineligibility in relation to the additional sentences, imposed on the same day, be merged together based on the direction on the sentence (concurrent or consecutive) before being added to the remaining period of ineligibility to which the offender is subject, and was the correct interpretation applied in the applicant's case?"
[9] Subsection 120.2(2) of the Corrections and Conditional Release Act reads as follows:
|
120.2(1) Additional concurrent sentence Subject to subsection (2), where an offender who is serving a sentence receives an additional sentence that is to be served concurrently with any portion of the sentence the offender was serving when the additional sentence was imposed, the offender is not eligible for full parole until the day that is the later of (a) the day on which the offender has served the period of ineligibility in relation to the sentence the offender was serving when the additional sentence was imposed, and (b) the day on which the offender has served (i) the period of ineligibility in relation to any portion of the sentence that includes the additional sentence as provided by subsection 139(1) and that is subject to an order under section 743.6 of the Criminal Code or section 140.4 of the National Defence Act, and (ii) the period of ineligibility in relation to any other portion of that sentence. (2) Where sentence in addition to life sentence Where an offender who is sentenced to life imprisonment or for an indeterminate period receives an additional sentence for a determinate period, the offender is not eligible for full parole until the day on which the offender has served, commencing on the day on which the additional sentence was imposed, (a) any remaining period of ineligibility to which the offender is subject; and (b) the period of ineligibility in relation to the additional sentence. |
120.2(1) Peine supplémentaire concurrente Sous réserve du paragraphe (2), le délinquant dont la peine d'emprisonnement n'est pas expirée et qui est condamné à une peine d'emprisonnement supplémentaire à purger en même temps qu'une partie de l'autre n'est admissible à la libération conditionnelle totale qu'à la plus éloignée des dates suivantes_: a) la date à laquelle il a accompli le temps d'épreuve sur la peine qu'il purge au moment de la condamnation à la peine supplémentaire; b) la date à laquelle il a accompli, d'une part, le temps d'épreuve requis par rapport à la partie de la période globale d'emprisonnement, déterminée conformément au paragraphe 139(1), qui est visée par une ordonnance rendue en vertu de l'article 743.6 du Code criminel ou de l'article 140.4 de la Loi sur la défense nationale et, d'autre part, le temps d'épreuve requis par rapport à toute autre partie de cette période globale d'emprisonnement. (2) Peine d'emprisonnement à perpétuité Le délinquant qui est condamné à une peine d'emprisonnement supplémentaire pour une période déterminée alors qu'il purge une peine d'emprisonnement à perpétuité ou pour une période indéterminée n'est admissible à la libération conditionnelle totale qu'à la date à laquelle il a accompli le temps d'épreuve auquel il est assujetti au moment de la condamnation ainsi que le temps d'épreuve sur la peine supplémentaire. |
[10] I cannot accept the respondent's interpretation of this provision 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."
[11] 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.
[12] 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.
[13] Furthermore, subsection 719(1) of the Criminal Code provides as follows:
| 719.(1) A sentence commences when it is imposed, except where a relevant enactment otherwise provides. |
719.(1) La peine commence au moment où elle est infligée, sauf lorsque le texte législatif applicable y pourvoit de façon différente. |
|
[14] Here, section 120.2 of the CCRA does not provide that a concurrent sentence should be interpreted to read as consecutive. In this case, all sentences were imposed at the same time and the sentencing judge emphasized that it was a "global" sentence. Furthermore, even accepting the respondent's theory, since the sentences were imposed on the same day, the periods of ineligibility must all run from the same day.
[15] The respondent's interpretation of section 120.2 of the CCRA represents a blatant disregard for the sentencing judge's decision. It is clear from the reasons for the decision that the "period of ineligibility in relation to the additional sentence" referred to in paragraph 120.2(2)(b) is, in this case, the twelve year sentence imposed by the trial judge. There is nothing in the language of section 120.2 which directs that a concurrent sentence imposed for two or more offences be converted into a consecutive sentence. Such a proposition runs contrary to the principles of sentencing in general and would defeat the discretion of a sentencing judge to impose either a consecutive or concurrent sentence based upon the facts before him.
[16] For these reasons, the application is allowed and the decision dated October 31, 2000 is hereby set aside. The CSC are hereby directed to calculate the applicant's eligibility date for full parole based on the global and concurrent sentence of twelve years as imposed by the sentencing judge.
JUDGE
OTTAWA, Ontario
November 13, 2001
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-2221-00
STYLE OF CAUSE: Vincenzo Dimaulo v. The Commissioner of Corrections et al.
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: November 5, 2001
ORDER AND REASONS FOR ORDER OF the Honourable Mr. Justice Rouleau
DATED: November 13, 2001
APPEARANCES:
Me Stephen Fineberg FOR APPLICANT
Me Michelle Lavergne
Me Dominique Guimond
Me Michel Laprade FOR RESPONDENTS
SOLICITORS OF RECORD:
Stephen Fineberg, Attorney FOR APPLICANT
Montréal, Quebec
MORRIS ROSENBERG FOR RESPONDENTS
Deputy Attorney General of Canada