Date: 20010515
Docket: 01-T-36
Neutral citation: 2001 FCT 495
Between:
LUC LAFONTAINE
Applicant
AND
ATTORNEY GENERAL OF CANADA
Respondent
ORDER AND REASONS FOR ORDER
BLAIS J.
[1] This is a motion for an extension of time under section 18.1 of the Federal Court Act.
[2] At the hearing, the applicant requested an extension of time in order to file an application for judicial review of the respondent's decision dated March 26, 2001, in which the applicant was granted day parole.
[3] The applicant suggested that the National Parole Board does not have the authority to impose community-based projects on offenders released on day parole in the course of accelerated parole reviews.
[4] Since the Appeal Division previously established that the National Parole Board did had the power to impose this particular type of detention in the course of an accelerated review for day parole, the applicant wrote to the National Parole Board's Appeal Division on March 22, 2001, to inquire whether the Division still had legal authority to impose community-based projects within the purview of accelerated parole reviews.
[5] The applicant claimed that he decided to file a judicial review application directly with the Federal Court after receiving the Appeal Division's letter dated April 27, 2001, in response to his letter of March 22, 2001. He felt that it was pointless to appeal the National Parole Board's decision by means of the appeal process prescribed by the Act since the Board had already confirmed that it still had the authority to impose community-based projects on offenders.
[6] The applicant explained that he was unable to file his application for judicial review in a timely manner since it was only at the end of April that he received the National Parole Board's response to his letter sent in March.
[7] The respondent replied that the applicant failed to demonstrate that an extension of time was justified.
[8] The respondent further argued that the applicant did not append the application for judicial review he seeks to file to this motion for an extension of time, and that he failed to demonstrate that the application for judicial review potentially raises a serious issue or might succeed.
[9] The applicant must clearly exhaust procedural remedies before filing an application for judicial review. The respondent filed a decision by Prothonotary Hargrave in the case of Mackie v. Drumheller Institution, where the applicant also first sought judicial review from the Federal Court for greater expediency.
[10] In his decision, Prothonotary Hargrave referred to Diamond v. National Parole Board (March 20, 1995), 95-T-12 (F.C. Trial Division):
In view of the statutory scheme of appeal in the Act, I have concluded that the applicant is entitled to seek judicial review only with respect to the decision of the Appeal Division of the Board. To hold otherwise would result in an emasculation of the legislative appellate mechanism created by Parliament in the Act. (Page 6) and Fragoso v. National Parole Board, (September 21, 1995), T-364-95, at pages 9 and 10.
[11] Applicant's counsel argued that he would not obtain a satisfactory response from the Appeal Division since at issue was the National Parole Board's jurisdiction.
[12] Subsection 147(1) of the Corrections and Conditional Release Act, 1992, c. 20, reads as follows:
| 147. (1) An offender may appeal a decision of the Board to the Appeal Division on the ground that the Board, in making its decision,
(a) failed to observe a principle of fundamental justice;
(b) made an error of law;
(c) breached or failed to apply a policy adopted pursuant to subsection 151(2);
(d) based its decision on erroneous or incomplete information; or
(e) acted without jurisdiction or beyond its jurisdiction, or failed to exercise its jurisdiction.
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147. (1) Le délinquant visé par une décision de la Commission peut interjeter appel auprès de la Section d'appel pour l'un ou plusieurs des motifs suivants :
a) la Commission a violé un principe de justice fondamentale;
b) elle a commis une erreur de droit en rendant sa décision;
c) elle a contrevenu aux directives établies aux termes du paragraphe 151(2) ou ne les a pas appliquées;
d) elle a fondé sa décision sur des renseignements erronés ou incomplets;
e) elle a agi sans compétence, outrepassé celle-ci ou omis de l'exercer.
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[13] That subsection clearly establishes that the applicant was fully entitled to raise an error of law or even the Board's jurisdiction before the Appeal Division, and in the event of an adverse finding, he could always file an application for judicial review with this Court.
[14] I am of the view that it was unwise for the applicant's counsel to address the Appeal Division and inquire whether it would maintain its position in previous cases when reviewing his client's case and subsequently seek judicial review from the Federal Court beyond the limitation period.
[15] The applicant did not demonstrate any chance of success on judicial review since he has yet to avail himself of remedies before the Appeal Division. He also failed to put forward serious grounds and justify his inability to file his application for judicial review within the limitation period prescribed by the Act.
[16] Naturally, as the applicant's counsel pointed out, court limitation periods may cause frustration, but it is in the public interest to make rules that apply to all parties; only under exceptional circumstances can exceptions be made, and that is not the case before us.
[17] For all these reasons, the application for an extension of time is dismissed.
Pierre Blais
Judge
Montréal, Quebec
May 15, 2001
Certified true translation
Sophie Debbané, LL.B.
FEDERAL COURT OF CANADA
TRIAL DIVISION
Date: 20010515
Docket: 01-T-36
Between:
LUC LAFONTAINE
Applicant
AND
ATTORNEY GENERAL OF CANADA
Respondent
ORDER AND
REASONS FOR ORDER
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: 01-T-36
STYLE OF CAUSE: LUC LAFONTAINE
Applicant
AND
ATTORNEY GENERAL OF CANADA
Respondent
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: May 14, 2001
ORDER AND REASONS FOR ORDER BY:
THE HONOURABLE BLAIS J.
DATED: May 15, 2001
APPEARANCES:
| Jacques Normandeau
|
FOR THE APPLICANT
|
| Michelle Lavergne
|
FOR THE RESPONDENT
|
SOLICITORS OF RECORD:
| Jacques Normandeau
Montréal, Quebec
|
FOR THE APPLICANT
|
| Morris Rosenberg
Attorney General of Canada
Montréal, Quebec
|
FOR THE RESPONDENT
|
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