Cooper v. Canada (Attorney General), 2002 FCA 374

Date: 20021009

Docket: A-748-01

Neutral citation: 2002 FCA 374

CORAM:        DÉCARY J.A.

LINDEN J.A.

LÉTOURNEAU J.A.

BETWEEN:

                                                       DOUGLAS MARVIN COOPER

                                                                                                                                                       Appellant

                                                                                 and

                                                             ATTORNEY GENERAL

                                                                        OF CANADA

                                                                                                                                                   Respondent

                                    Heard at Vancouver, British Columbia on October 1, 2002

                                                                                   

                                   Judgment delivered at Ottawa, Ontario, on October 9, 2002

REASONS FOR JUDGMENT BY:                                                                                      LINDEN J.A.

CONCURRED IN BY:                                                                                                         DÉCARY J.A.

                                                                                                                                     LÉTOURNEAU J.A.

Date: 20021009

Docket: A-748-01

Neutral citation: 2002 FCA 374

CORAM:        DÉCARY J.A.

LINDEN J.A.

LÉTOURNEAU J.A.                          

BETWEEN:

                                                       DOUGLAS MARVIN COOPER

                                                                                                                                                       Appellant

                                                                                 and

                                                             ATTORNEY GENERAL

                                                                        OF CANADA

                                                                                                                                                   Respondent

                                                        REASONS FOR JUDGMENT

LINDEN J.A.

[1]                 The sole issue on this appeal is whether the extension of the ineligibility for parole period in this case by one year pursuant to section 120.2(2) of the Corrections and Conditional Release Act, 1992, c. 20 ("CCRA") violates section 7 of the Canadian Charter of Rights and Freedoms. The Trial Judge held that the section did not apply. In addition, he held that the provision was not overbroad or ambiguous. This Court affirms that decision, which is reported at [2001] F.C.T. 1329.

[2]                 Section 120.2(2) of the CCRA reads as follows:

  

                                    Section 7 of the Charter is:

7. Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.

7. Chacun a droit à la vie, à la liberté et à la sécurité de sa personne; il ne peut être porté atteinte à ce droit qu'en conformité avec les principes de justice fondamentale.

[3]                 The appellant was convicted of second degree murder on July 18, 1997 and sentenced to life imprisonment without eligibility for parole for 10 years and began serving his sentence. Two months later he was convicted of 2 robberies, both of which had taken place prior to the murder and the sentencing for the murder. The appellant was sentenced to 3 years for those two robberies each to be served concurrently to each other and the sentence presently serving.

[4]                 Corrections officials recalculated this period of ineligibility for parole, based on section 120.2(2) so as to add one year additional ineligibility for each of the offences.

[5]                 The Trial Judge, applying section 120.2(2) correctly, allowed the judicial review application in part, treating the sentence on the two robberies as only one additional sentence. He held that the ineligibility period could, therefore, be extended by only one year, not two, relying on Dimaulo v. The Commissioner of Corrections, Correctional Service Canada et al. [2001] F.C.T. 1230. That part of his decision has not been assailed on this appeal.

[6]                 The constitutional issue, which was fully argued, had several aspects. The first question was whether section 7 was engaged at all, that is, was there a liberty interest infringed by the extension of the ineligibility period in this case? While it has been held that parole is not a right, but a privilege (Dempsey v. The Queen (1987), 34 C.C.C. (3d) 96; O'Brien v. National Parole Board (1984), 17 C.C.C. (3d) 168), this principle is now somewhat clouded.(Parker v. Solicitor General of Canada et al. (1990), 78 O.R. (2d) 193, per Henry J.). There is emerging authority in the Supreme Court of Canada jurisprudence that there may be a liberty interest invaded by the extension of a period of ineligibility for parole. (See Dumas v. Director of Leclerc Institution of Laval [1986] 2 S.C.R. 459; R. v. Gamble [1988] 2 S.C.R. 595; Cunningham v. Canada [1993] 2 S.C.R. 143; Sarson v. R. [1996] 2 S.C.R. 223; R. v. C.A.M. [1996] 1 S.C.R. 500). However, because of my view on the "fundamental justice" issue, there is no need for this Court to decide this issue in this case. We shall assume, without deciding, for the purposes of our analysis, that there has been a sufficient interference with a liberty interest so as to engage section 7.

[7]                 The second aspect of a section 7 analysis is whether there has been a denial of the principles of fundamental justice. In deciding this question, not only must the interest of an offender be considered but the interest of society is also evaluated (see Cunningham, supra, at page 499 per McLachlin J.). The provision in issue in this case is a balanced one, which recognizes that there are some consequences for those who are sentenced more than once, that is, an extension of their parole ineligibility period. It is a measure that is carefully balanced by Parliament and can in no way be considered overly harsh to offenders. The section adds to the period of ineligibility flowing from the first sentence, the additional period of ineligibility flowing from the second or later concurrent sentences. It is a measured and proportional consequence of being made subject to additional concurrent sentences, giving some effect to them. The appellant in this case, therefore, who has already been sentenced to life imprisonment, is impacted by the provision. Otherwise there would be no effect whatsoever as a result of a second concurrent sentence, nor, indeed, for any additional concurrent sentences for crimes committed while in prison or elsewhere. In my view, therefore, the extension of ineligibility period provided for in this provision is appropriate and fair and, hence, does not deny fundamental justice.

[8]                 As for the procedural aspect, there is no need for any hearing in these cases because the legislation operates automatically, there being no discretion to exercise. The only evidence necessary is proof of the additional sentence. If there is an error made in the application of the section, that can be challenged by means of judicial review, which is exactly what occurred in this case with partial success.

[9]                 The Trial Judge was also right in holding that the provision being attacked was neither ambiguous nor overbroad (see Dimaulo, supra). While it may not be easy to apply in all cases, as witness the error made in this case, the section is certainly not so ambiguous as to be declared unconstitutional. Nor am I persuaded that it is overbroad because it covers all additional offences for which sentences are imposed, not only those committed while on parole; counsel's argument that legislative history indicates such a limitation was meant to be adopted is not borne out by the language chosen by Parliament. The provision plainly does not distinguish between offences that occurred prior to the life sentence (as here) or afterwards. It is the time of the sentence that matters here, not the time of the offence. This is consistent with the situations dealt with in sections 120.2(1) and 120.2(2).

[10]            In conclusion, it is unnecessary to decide whether a liberty interest has been infringed in this case, because there has been no denial of fundamental justice. Furthermore, the provision is neither ambiguous nor overbroad.

[11]            The appeal should be dismissed.

"A.M. Linden"

                                                    _____________________________

                                                                                                              J.A.

"I agree

   Robert Décary j.a."

"I agree

   Gilles Létourneau J.A."

                          FEDERAL COURT OF APPEAL

    NAMES OF COUNSEL AND SOLICITORS OF RECORD

    

DOCKET:                   A-748-01

  

STYLE OF CAUSE:                                         Douglas Marvin Cooper v. The Attorney General of Canada

                                                         

PLACE OF HEARING:                                   Vancouver, B.C.

  

DATE OF HEARING:                                     October 1, 2002

  

REASONS FOR JUDGMENT :                   LINDEN J.A.

  

CONCURRED IN BY:                                    DÉCARY J.A.

LÉTOURNEAU J.A.

  

DATED:                      October 9, 2002

  

APPEARANCES:

Mr. Anthony H. Zipp                                            FOR THE APPELLANT

Mr. Curtis Workun                                               FOR THE RESPONDENT

  

SOLICITORS OF RECORD:

Zipp & Company                                                 FOR THE APPELLANT

Vancouver

Mr. Morris Rosenburg                                                     FOR THE RESPONDENT

Deputy Attorney General of Canada