Dimaulo v. Canada (Correctional Service), 2001 FCT 1230

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

                                                              REASONS FOR ORDER

ROULEAU, J.

[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:

[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:

[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