Date: 20010307
Docket: T-2015-98
Neutral Citation: 2001 FCT 156
Ottawa, Ontario, this 7th day of March, 2001.
| PRESENT: THE HONOURABLE MR. JUSTICE MacKAY |
BETWEEN:
NGHIA TRONG LE
Applicant
- and -
ATTORNEY GENERAL OF CANADA
Respondent
REASONS FOR ORDER AND ORDER
MacKAY J.
[1] The applicant, Nghia Trong Le, seeks judicial review in relation to the National Parole Board (the "Board"), seeking an order in the nature of mandamus to require the Board to recalculate the applicant's day parole and full parole eligibility dates. The relief sought includes orders that the Corrections and Conditional Release Act, S.C. 1992, c. 20, now cited as R.S.C. 1985, c. C-44.6, (the "Act"), which came into force on November 1, 1992, applies only to a sentence imposed after that date, and that for any sentence previously imposed the provisions of the former Parole Act, R.S.C. 1985, P-2 (repealed in 1992), shall be applied.
[2] The applicant, appearing on his own behalf, and counsel representing the Minister were heard in Warkworth Institution on October 31, 2000, when decision was reserved. Following the hearing, by letter dated November 6, 2000, the applicant set out a "parole eligibility date calculation", illustrative of the results of applying the legislation which, in his submission, was relevant to his own circumstances.
[3] The facts are not in dispute. The applicant is an inmate in federal penal institutions as a result of sentences imposed, effective October 13, 1992, in relation to offences for which he was convicted. The convictions resulted in sentencing for a period of 19 years. On December 24, 1994, he received an additional sentence of one year for prison breach, to be served consecutively following his existing sentence. On June 17, 1996, he received a further sentence of eight years, for conspiracy to traffic in heroin, to be served consecutively to the 20 year sentence he was then serving.
[4] By his affidavit, the applicant states that before receiving the eight year sentence in June, 1996, he had been informed that his "full parole eligibility" would be seven years from the date of his initial sentence, i.e. from October 13, 1992, and his eligibility for day parole would be six months prior to his full parole date.
[5] Further, Mr. Le avers that after receiving the eight year sentence on June 17, 1996, he was advised by his classification officer at Kingston Penitentiary that the Board had changed his eligibility date for day parole to August 12, 2001, and for full parole to February 12, 2002. When he sought further explanation to confirm his opinion that a seven year cap, i.e. a maximum term of service for entitlement for full parole, ought to be applied in his case, the applicant was informed that this would not be the case. His eligibility was to be determined entirely under the Act as it had been amended by Bill
C-45, which was enacted as S.C. 1995, c. 42, which came into force on January 24, 1996.
[6] The result of calculating the applicant's eligibility for parole entirely subject to the Act as amended from January, 1996, is to postpone dates for day parole and for full parole by almost three years beyond the dates originally anticipated by Mr. Le. It is said that the amendment applied in this way is retrospective with respect to sentences imposed prior to the amended enactment coming into force.
[7] In argument, the applicant relies on decisions of this Court, and upon his interpretation of the application of the legislation in question. In Hollwey v. Canada (National Parole Board, Chairman), (1994) 80 F.T.R. 151, [1994] F.C.J., No. 641 (T.D.), Mr. Justice McKeown, following a decision of Madam Justice Simpson in Langard v. The National Parole Board, (1993) 70 F.T.R. 140, held that for a sentence imposed before November 1, 1992 the provisions of the Parole Act applied, and for a sentence imposed after that date, when the Corrections and Conditional Release Act came into force, that Act was applicable.
[8] Counsel for the Attorney General urges that the effect of these decisions upon which the applicant relies was changed by amendment to the Act, referred to as Bill C-45, enacted by S.C. 1995, c. 42 which came into force January 24, 1996. The amendment, became effective after the dates of the decisions relied upon by the applicant, in Langard (in 1993) and in Hollwey (in 1994).
[9] In argument before me, the parties made reference to the following sections of the Act: 119(1)(c), 120(1), 120.1(1), 120.3, 139(1), 225(1) and 225(1.1). These sections are set out in full in Annex A to these Reasons and Order, for convenience of the applicant and of counsel. A note to that table indicates when each of these provisions came into force.
[10] As noted earlier, the applicant's calculations of his eligibility dates for parole are set out in a written submission received following the hearing on this application, under letter of November 6, 2000. In the applicant's circumstances, he submits that, after he received the eight year sentence on June 17, 1996, his entitlement dates for parole are as follows:
| Section 139.1 and 120 (subsection 1), 119 and 225 of the CCRA apply. Regarding Day Parole Eligibility date, section 119 and 225 of the CCRA should apply respectively. Under the new act, Day Parole is six (6) months priors [sic] to Full Parole Date. In the case at bar, one-third of eight years is two (2) years and eight (8) months which is Full Parole Date. Subtracting the six months, time must serve before eligible for Day Parole is then two (2) years and two (2) months. Adding this two years and two months on top of the original Day Parole Eligibility date, the result is: |
| Day Parole: April 12th, 1998. |
| Full Parole: October 12th, 1999. (seven years cap applies). |
[11] I am not persuaded that the applicant's calculations are correct. I do agree that for the applicant, eligibility for day parole is to be determined subject to subsection 119(1)(c), in this case, that is six months before the day on which full parole may be granted. The application of paragraph 119(1)(c) is confirmed by subsection 225(1.1). Calculation of the eligibility date for full parole is then subject to subsections 120.1(1), 139(1) and 225(1.1). These provisions all concern a situation, like the applicant's, where one receives a sentence to be served consecutively to a sentence already being served.
[12] Subsection 139(1) provides that in these circumstances, for the purposes of this Act and others, the offender is deemed to have been sentenced to one term commencing at the beginning of the first of the sentences to be served and ending on the expiration of the last of the sentences. In the applicant's case this means that, following the imposition of the eight year sentence in June, 1996, his sentence is deemed to be 28 years. That may have particular significance for his statutory release date.
[13] In accord with subsection 120.1(1), which came into effect on January 24, 1996, before the applicant's eight year sentence was imposed, he is not eligible for full parole until he has served, commencing on June 17, 1996, the remaining portion of ineligibility in relation to the sentence he was serving when the eight year sentence was imposed, and the period of ineligibility in relation to the additional sentence. The period of ineligibility in relation to the eight year sentence is, by subsection 120(1), one-third of the sentence of eight years, that is, two years and eight months. After January, 1996, that period is required to be served in addition to the period of ineligibility remaining from his previous sentence. Those portions, calculated in days, from June 17, 1996, were the basis of the calculations by the Correctional Service which provided advice to the applicant. That advice was that the eligibility date for full parole is February 12, 2002 and the eligibility date for day parole is August 12, 2001.
[14] The applicant's interpretation of the Act does not take account of the amendments introduced in 1996 before he was sentenced to the further eight year consecutive sentence. Those amendments, in my opinion, make clear Parliament's intention that those receiving a consecutive sentence after November 1, 1992, should serve, as a minimum term of ineligibility for parole, the full unexpired period that they were ineligible for parole under the original sentence plus the ineligible portion of the consecutive sentence. The explanatory notes with Bill C-45, which became S.C. 1995 c. 42, and discussion of that bill in Parliament, clearly indicate the intent of Parliament to require that minimum, as subsection 120.1(1) now provides. The suggestion that the amendment applies the Act retrospectively is not apt for it applied to the applicant only after he had been sentenced following amendment of the Act to a consecutive sentence for a further offence.
[15] The applicant's argument that the seven year cap on the period of ineligibility for parole, pursuant to subsection 120(1), ought to apply to the deemed cumulative sentence resulting from a combination of consecutive sentences pursuant to subsection 139(1) is not accepted. Subsection 120.1(1) deals specifically with the applicant's case as one who was serving a sentence and subsequently received an additional sentence to be served consecutively. That subsection revises the basis on which ineligibility for parole is determined, and section 120.3 then provides a different cap of ineligibility that is 15 years from the day on which the last of the sentences was imposed as the maximum period of ineligibility before consideration for parole.
[16] In the circumstances, there is no ground for allowing the application of the applicant.
[17] There is, in addition, a procedural difficulty that relief is sought against the National Parole Board. Had relief been available, it might properly have been sought and awarded in relation to Corrections Canada, which has the responsibility for determining release and eligible parole dates under the Act.
[18] When this matter was heard, the respondent requested costs, ultimately in the amount of $75, on the basis that the application was frivolous since the statute, as amended, provides no basis for relief of the sort here sought by the applicant.
[19] I am not persuaded that the Act, with amendments, is easily understood by an individual applicant, not a lawyer seeking to understand the application of the law, particularly where the effect of judicial precedents and statutory amendments are an issue.
[20] I note that by his affidavit, the applicant states that he "sought legal advice in this matter". It seems to me there may be sources from which an inmate in the position of the applicant ought to first seek advice before initiating proceedings for judicial review in the Court. Sometimes provincial legal aid programs provide legal assistance on a limited basis by way of advice without significant expense. A concerned inmate should also take the opportunity to seek advice from the Office of the Correctional Investigator Canada, before commencing application for judicial review.
[21] In the circumstances, the application is dismissed. No order is made in relation to costs so that each party bears its own costs.
ORDER
[22] IT IS ORDERED that the application for mandamus is dismissed.
"W. Andrew MacKay"
JUDGE
OTTAWA, Ontario
March 7, 2001
Reasons for Order and Order
Date: 20010307
Docket: T-2015-98
ANNEX A
Excerpts from Corrections and Conditional Release Act, enacted as S.C. 1992, c. 20, now cited as R.S.C. 1985, c. C-44.6.
| 119. (1) Subject to section 746.1 of the Criminal Code and subsection 140.3(2) of the National Defence Act, the portion of a sentence that must be served before an offender may be released on day parole is
. . .
(c) where the offender is serving a sentence of two years or more, other than a sentence referred to in paragraph (a) or (b), the greater of
(i) the portion ending six months before the date on which full parole may be granted, and
(ii) six months; or
. . .
|
119. (1) Sous réserve de l'article 746.1 du Code criminel et du paragraphe 140.3(2) de la Loi sur la défense nationale, le temps d'épreuve pour l'admissibilité à la semi-liberté est_:
. . .
c) dans le cas du délinquant qui purge une peine d'emprisonnement égale ou supérieure à deux ans, à l'exclusion des peines visées aux alinéas a) et b), six mois ou, si elle est plus longue, la période qui se termine six mois avant la date d'admissibilité à la libération conditionnelle totale;
. . .
|
| 120. (1) Subject to sections 746.1 and 761 of the Criminal Code and to any order made under section 743.6 of that Act and subject to subsection 140.3(2) of the National Defence Act and to any order made under section 140.4 of that Act, an offender is not eligible for full parole until the day on which the offender has served a period of ineligibility of the lesser of one third of the sentence and seven years.
120.1 (1) Where an offender who is serving a sentence receives an additional sentence that is to be served consecutively to the sentence the offender was serving when the additional sentence was imposed, 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 in relation to the sentence the offender was serving when the additional sentence was imposed; and
(b) the period of ineligibility in relation to the additional sentence.
|
|
| 120. (1) Sous réserve des articles 746.1 et 761 du Code criminel et de toute ordonnance rendue en vertu de l'article 743.6 de cette loi et du paragraphe 140.3(2) de la Loi sur la défense nationale et de toute ordonnance rendue en vertu de l'article 140.4 de cette loi, le temps d'épreuve pour l'admissibilité à la libération conditionnelle totale est d'un tiers de la peine à concurrence de sept ans.
120.1 (1) Le délinquant dont la peine d'emprisonnement n'est pas expirée et qui est condamné à une peine d'emprisonnement supplémentaire à purger à la suite de l'autre n'est pas admissible à la libération conditionnelle totale avant d'avoir purgé, à la fois, depuis le jour où il s'est vu infliger cette peine supplémentaire_:
a) le reste du temps d'épreuve relatif à la peine que le délinquant purgeait déjà lorsqu'il s'est vu imposer la peine supplémentaire;
b) le temps d'épreuve relatif à cette peine supplémentaire.
|
|
| 120.3 Subject to section 745 of the Criminal Code and subsection 140.3(1) of the National Defence Act, where an offender who is serving a sentence receives an additional sentence, the day on which the offender is eligible for full parole shall not be later than the day on which the offender has served fifteen years from the day on which the last of the sentences was imposed.
|
120.3 Sous réserve de l'article 745 du Code criminel et du paragraphe 140.3(1) de la Loi sur la défense nationale, lorsqu'un délinquant qui purge une peine d'emprisonnement est condamné à une peine supplémentaire, la limite maximale du temps d'épreuve requis pour la libération conditionnelle totale est de quinze ans à compter de la condamnation à la dernière peine.
|
| 139. (1) Where a person who is subject to a sentence that has not expired receives an additional sentence, the person is, for the purposes of the Criminal Code, the Prisons and Reformatories Act and this Act, deemed to have been sentenced to one sentence commencing at the beginning of the first of those sentences to be served and ending on the expiration of the last of them to be served.
|
139. (1) L'individu assujetti à une peine d'emprisonnement non encore expirée et qui est condamné à une peine d'emprisonnement supplémentaire est, pour l'application du Code criminel, de la Loi sur les prisons et les maisons de correction et de la présente loi, réputé n'avoir été condamné qu'à une seule peine commençant le jour du début de l'exécution de la première et se terminant à l'expiration de la dernière à purger.
|
| 225. (1) Subject to subsection (1.1), paragraph 119(1)(c) does not apply in respect of an offender who is serving a sentence imposed before November 1, 1992, but the corresponding provisions of the former Act and the regulations made under that Act apply in respect thereof as if they were provisions of this Act.
(1.1) Paragraph 119(1)(c) applies in respect of an offender who is serving a sentence imposed before November 1, 1992 where the offender receives an additional sentence on or after that day and, as a result, the offender is deemed, pursuant to section 139, to have been sentenced to one sentence.
|
|
| 225. (1) Sous réserve du paragraphe (1.1), l'alinéa 119(1)c) ne s'applique pas aux peines d'emprisonnement prononcées avant le 1er novembre 1992; les dispositions correspondantes de la loi antérieure et de ses règlements d'application s'y appliquent toutefois comme s'il s'agissait de dispositions de la présente loi.
(1.1) L'alinéa 119(1)c) s'applique cependant aux peines d'emprisonnement prononcées avant le 1er novembre 1992 si celles-ci sont suivies, à compter de cette date, d'une peine supplémentaire, toutes ces peines étant alors réputées n'en constituer qu'une seule aux termes de l'article 139.
|
|
| Note: Subsections 119(1), 120(1), 139(1) and 225(1) came into force November 1, 1992 (S.C. 1992, c. 20). |
| Subsections 120.1(1), 120.3 and 225(1.1) came into force January 24, 1996 (S.C. 1995, c. 42). |
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