Date: 20080926
Docket: T-1895-07
Citation: 2008 FC 1072
Ottawa, Ontario,
the 26th day of September 2008
Present:
The Honourable Mr. Justice Harrington
BETWEEN:
DANIEL NORMANDIN
Applicant
and
ATTORNEY GENERAL
OF CANADA
Respondent
REASONS FOR ORDER AND ORDER
[1]
Mr.
Normandin likes to smoke marihuana. He says that it relieves his chronic pain.
This pain was caused by a serious accident in 1976 when he was hit by a train
at the age of nine. One of his arms was severed and a leg was almost completely
ripped off, which led to a series of operations over the fifteen years that
followed.
[2]
Mr.
Normandin is also an acknowledged criminal. Following a guilty plea to charges
of confinement and indecency in June 2002, he was sentenced to two years in
jail together with a long-term supervision order for a period of five years.
Under section 753.1 of the Criminal Code, a court may make such an order
if among other things, there is a substantial risk that the offender will
reoffend and there is a reasonable possibility that the risk will be controlled
in the community. This period of long-term supervision began when he finished
serving his sentence in June 2004. Under the Corrections and Conditional
Release Act, several conditions were imposed, one of which was to abstain
from using intoxicants. The fact that marihuana falls into this category is not
contested.
[3]
Mr.
Normandin did not respect this condition. He was caught red-handed on eight
occasions by the Correctional Service of Canada (the CSC). Under subsection
135.1(1) of the Act, in case of a breach of a condition in the long-term
supervision order, the designated person may suspend the long-term supervision
order and authorize the detention of the offender in a community-based
residential facility or even have him incarcerated.
[4]
The final
decision, which is the subject of this application, was issued on October 1,
2007 and reads as follows:
[TRANSLATION]
Under the
authority vested in me as a designated person by the Commissioner of the
Correctional Service of Canada pursuant to subsection 135.1(1) of the Corrections
and Conditional Release Act, I have issued a warrant suspending THE
LONG-TERM SUPERVISION ORDER on October 1, 2007.
. . .
SUMMARY
You have
admitted having used cannabis more than once since your return to the community
and have stated that you intend to continue using it, thereby breaching one of
your special conditions. You still refuse to consider alternatives for the
relief of your health problems. This breach of condition and your obstinacy
increase the danger you represent for society.
[5]
According
to the respondent, this decision is not subject to judicial review. I agree and
for this reason, the application will be dismissed. Considering that criminal
charges for breach of the conditions of long-term supervision were brought (the
trial is scheduled for next month), it will be necessary to proceed with
caution.
[6]
Under
subsection 135.1(5) of the Act, a person who signs a warrant, or any other
person designated, must review the offender’s case within the following thirty
days and must either cancel the suspension or refer the case to the National
Parole Board (Board) together with an assessment of the case.
[7]
The case
was referred to the Board with an assessment dated October 30, 2007. The
present application for judicial review was brought on the following day. On
December 3, 2007, the Board rendered its decision to the effect that [translation] “no supervision program can
adequately protect society from the risk of repeat offending that you represent
and it appears that the conditions of supervision were not respected.”
Subsequently, charges of breach of condition of the supervision order were
brought against Mr. Normandin and as mentioned above, the trial will be held
shortly.
[8]
It is
trite law that interlocutory decisions of courts are not normally subject to
judicial review. As I have mentioned in Plante v. Canada (Attorney General), 2007 FC 52, 2007 F.C.J. No.
73, at paragraph 43:
As a result, what remedy did Mr. Plante
have? Following Bradford, supra, rather than
proceed by way of judicial review, the appropriate remedy was to make his
arguments directly before the Board. It should be noted that the various
decisions taken to date in this case all form part of the same decision-making
process (Condo v. Canada (Attorney General), 2004 FC 991). The Board is a
specialized tribunal and, as such, was in a better position to assess Mr.
Plante’s defence. As the Supreme Court held in Nova Scotia (Workers’
Compensation Board) v. Martin et al., [2003] 2 S.C.R. 504 at paragraph
56, it is desirable for courts to benefit from a full record established by a
specialized tribunal.
[9]
Counsel
for Mr. Normandin was aware of this. However, he mentioned that on seven other
occasions after the CSC had suspended long-term supervision, the Board had
re-established it. He submitted that the CSC did not abide by the Board's
directives.
[10]
I have no
doubt that the CSC could not avoid judicial review by constantly revoking
long-term supervision and by imposing it once again within the period of thirty
days prescribed by law. However, this is not the issue to be decided and the
Board is of the same opinion.
[11]
Several
comments were made about the fact that Mr. Normandin had held an “Authorization
to Possess Marijuana for Medical Purposes” from Health Canada from March 2006
to March 2007, that the Board changed his conditions to grant him special
permission controlled and managed by the CSC to use marihuana and that the CSC
refused to cooperate. Be that as it may, this is not
the issue before me. However, it is important to note that the “Regulatory
Impact Analysis Statement” of the Marihuana Medical Access Regulations
shows that the decision to allow a patient in a hospital, or a detainee in a
penitentiary, a prison or other correctional institution, to possess marihuana,
is a decision for that institution.
[12]
The record
before the Court has many references to the fact that Mr. Normandin apparently
gave incomplete information to the doctors who recommended his use of
marihuana, as well as to Health Canada.
What would have happened if they had had a complete picture of the situation
was also discussed. Obviously, this is only theorizing.
[13]
Mr.
Normandin raised serious questions of law concerning his right to medical
treatment, his psychological assessment report in 2006, which concluded that [translation] “ . . .the use of
cannabis does not seem to have a direct connection with the commission of
offences by Mr. Normandin”, the less than objective analysis made by a doctor
by the CSC , as well as the Charter. Nevertheless, it remains that this
application for judicial review is not the appropriate avenue by which to
submit these issues to the Court.
ORDER
FOR THE REASONS MENTIONED
ABOVE;
THE COURT ORDERS that the application for judicial
review be dismissed with costs, subject to Mr. Normandin's right to apply for
an extension of the time limit to bring an application for judicial review of
the decision of the National Parole Board dated December 3, 2007.
“Sean
Harrington”
Certified true
translation
François Brunet, Reviser
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