Date: 19991018
Docket: T-292-99
BETWEEN:
VAGN LARSEN
Applicant
- and -
NATIONAL PAROLE BOARD
Respondent
- and -
COWANSVILLE PENITENTIARY
Respondent
REASONS FOR ORDER
LUTFY J.:
[1] The applicant Vagn Larsen, a foreign national who is neither a citizen nor a permanent resident of Canada, is currently serving a sentence of nine and one-half years in the Cowansville Institution as a result of his conviction on drug-trafficking related charges. Mr. Larsen pleaded guilty to these charges on March 26, 1997.
[2] Mr. Larsen became eligible for day parole on October 25, 1998, after serving one-sixth of his sentence. Counsel for the respondents acknowledged that this date reflects Mr. Larsen"s eligibility for accelerated day parole review as a first-time, "low-risk, non-violent" federal inmate, pursuant to section 119.1 of the Corrections and Conditional Release Act.1 He will be eligible for full parole on May 26, 2000.2
[3] On January 21, 1999, a community liaison officer for the respondent National Parole Board refused Mr. Larsen"s request that his case be reviewed for the purpose of day parole. The officer"s refusal was on the ground that a detention order under section 105 of the Immigration Act3 had been issued against Mr. Larsen.
[4] The applicant now seeks the judicial review of this decision. The issue is straightforward: does Mr. Larsen have the right to a substantive review of his case, for the purpose of day parole, beyond the correctional officials establishing that he is a foreign national offender subject to a section 105 detention order?
THE APPLICANT"S STATUS UNDER THE IMMIGRATION ACT
[5] It is useful to review the statutory provisions concerning a warrant for arrest and a detention order under subsections 103(1) and 105(1) of the Immigration Act to understand Mr. Larsen"s current immigration status:
103. (1) The Deputy Minister or a senior immigration officer may issue a warrant for the arrest and detention of any person where
(a) an examination or inquiry is to be held, a decision is to be made pursuant to subsection 27(4) or a removal order or conditional removal order has been made with respect to the person; and
(b) in the opinion of the Deputy Minister or that officer, there are reasonable grounds to believe that the person poses a danger to the public or would not appear for the examination, inquiry or proceeding in relation to the decision or for removal from Canada.
...
103. (1) Le sous-ministre ou l'agent principal peut lancer un mandat d'arrestation contre toute personne qui doit faire l'objet d'un interrogatoire, d'une enquête ou d'une décision de l'agent principal aux termes du paragraphe 27(4), ou qui est frappée par une mesure de renvoi ou de renvoi conditionnel, lorsqu'il croit, pour des motifs raisonnables, qu'elle constitue une menace pour la sécurité publique ou qu'elle ne comparaîtra pas, ou n'obtempérera pas à la mesure de renvoi.
...
105. (1) Notwithstanding the Corrections and Conditional Release Act, the Prisons and Reformatories Act or any Act of a provincial legislature, where a warrant has been issued or an order has been made pursuant to subsection 103(1) or (3) with respect to any person who is incarcerated in any place of confinement pursuant to the order of any court or other body, the Deputy Minister may issue an order to the person in charge of the place directing that
105. (1) Par dérogation à la Loi sur le système correctionnel et la mise en liberté sous condition et à la Loi sur les prisons et maisons de correction et à toute loi provinciale, si le mandat ou l'ordre prévus aux paragraphes 103(1) ou (3) visent une personne incarcérée dans un lieu de détention en application de l'ordonnance d'un tribunal ou d'un autre organisme, le sous-ministre peut ordonner au gardien, directeur ou responsable de ce lieu :
(a) the person continue to be detained until the expiration of the sentence to which the person is subject or until the expiration of the sentence or term of confinement as reduced by the operation of any statute or other law or by an act of clemency; and
(b) the person be delivered, at the expiration of the sentence or term of confinement referred to in paragraph (a), to an immigration officer to be taken into custody.
a) d'une part, de continuer à la détenir jusqu'à l'expiration de sa peine ou de la durée de sa détention, compte tenu des éventuelles réductions légales de peine ou des mesures de clémence;
b) d'autre part, de la remettre par la suite à un agent d'immigration en vue de son placement sous garde.
[6] On April 14, 1997, a person acting on behalf of the deputy-minister of Citizenship and Immigration directed that an inquiry be held, pursuant to paragraph 27(3)(b) of the Immigration Act, to determine if the applicant was a member of an inadmissible class for having been convicted in Canada of an offence punishable by a maximum term of imprisonment of ten years or more.4
[7] On the same day, the same immigration officer issued a warrant for arrest5 under subsection 103(1) of the Immigration Act directing that the applicant, concerning whom an inquiry was to be held, be detained under the provisions of that Act. He also issued an order, under section 105 of the Act, directing the warden of the Cowansville Institution that the applicant continue to be detained until the expiration of his sentence, at which time he would be delivered to an immigration officer to be taken into custody.6
[8] On March 10, 1998, a deportation order was issued against the applicant, pursuant to subsection 32(6) of the Immigration Act, on the basis of the adjudicator"s decision that the applicant, who had been the subject of an inquiry, was a member of an inadmissible class as a consequence of his conviction.7
[9] On March 18, 1998, a further order under section 105 of the Immigration Act was issued to reflect the deportation order of March 10, 1998.8
[10] On September 10, 1999, three days prior to the hearing of this application for judicial review, a senior immigration officer issued a further warrant for arrest of the applicant "respecting whom a removal order has been made." On the same day, another official acting on behalf of the deputy-minister of Citizenship and Immigration issued a detention order pursuant to section 105 of the Immigration Act , in substantially identical terms of the one dated March 18, 1998.9
ANALYSIS
| (i) The validity of the warrant of arrest and detention order |
[11] As his first argument, the applicant challenged the validity of the warrant of arrest under section 103 and, in turn, the order of detention under section 105, which is dependent on the former. As noted by Evans J. in Chaudhry v. Canada (Minister of Citizenship and Immigration),10 a section 105 order can only be made against a person who has been the subject of a warrant of arrest under subsection 103(1) or a detention order under paragraph 103(3)(b). The Court of Appeal recently affirmed the decision in Chaudhry and its judgment will be referred to later in these reasons.
[12] The applicant argues that the warrant of arrest is deficient principally because of the absence of any reference to the wording of subsection 103(1) which requires the deputy-minister"s opinion that there are reasonable grounds to believe that the applicant poses a danger to the public. The respondent takes the position that no such language is required in the warrant for arrest. However, it would be inappropriate to address this issue in this proceeding. I accept the respondent"s submission that none of the warrants or orders under sections 103 and 105 of the Immigration Act was challenged by the applicant when they were issued. Their validity cannot be the proper subject matter of this application for judicial review of the decision of an official of the National Parole Board.11
| (ii) The review of the applicant"s case for day parole |
[13] The sole issue to be resolved in this proceeding is whether the National Parole Board community liaison officer erred in law in deciding that the applicant"s case would not be reviewed by the National Parole Board for day parole, except to the extent that she noted he was subject to a detention order under subsection 105(1).
[14] It is useful to consider the positions taken by the Correctional Service of Canada and the National Parole Board prior to the decision under review.
[15] On September 15, 1997, in response to a situation similar to that of the applicant, the corporate secretary of the Correctional Service of Canada wrote to another inmate at Cowansville Institution that persons subject to a section 105 detention order could only be released to the custody of Citizenship and Immigration Canada on parole or statutory release:
| Only those foreign national offenders who pose a danger to the public or are considered to be a risk of flight, as determined by Citizenship and Immigration Canada (CIC), are subject to a detention order (Section 105 of the Immigration Act) and cannot be released except on parole or statutory release and only to the custody of CIC which must detain them. The escorted temporary absence is the only form of conditional release available to those offenders. |
[16] On December 10, 1998, a warden of the Cowansville Institution responded to the request made by the applicant"s counsel for day parole consideration. He stated:
| Only those foreign national offenders who are a danger to the public or considered to be a risk of flight, as determined by Citizenship and Immigration Canada (CIC), are subject to a detention order. Mr. Larsen was ordered deported by CIC on the 18th of March 1998. |
...
| ... Under current [Corrections and Conditional Release Act] provisions, full parole is the earliest time at which foreign national offenders can be released for deportation. |
[17] The applicant"s counsel then wrote to the regional vice-chair of the National Parole Board, Region, once again requesting that his client"s case be reviewed for day parole. This request was transmitted to the community liaison officer of the National Parole Board for reply. In her response of January 21, 1999, she stated that Mr. Larsen"s case would not be reviewed for day parole because of the section 105 detention order:
| For your information, offenders who are subject to a detention order under section 105 of the Immigration Act, issued on or after July 10, 1995, will not be reviewed by the Board for day parole because under section 105 of the Act those offenders can no longer be released on day parole. |
| In the case of Mr. Larsen, Citizenship and Immigration Canada issued a detention order under section 105 of the Immigration Act, April 14, 1997 and consequently, his case will not be reviewed by the Board for day parole. |
[18] In my respectful opinion, the responses sent to the applicant and his counsel by officials of the Correctional Service of Canada and the National Parole Board, including the decision under judicial review, failed to interpret correctly the relevant provisions of the Corrections and Conditional Release Act concerning day parole. The review of a case, for the purpose of day parole, requires more than merely establishing that the offender is subject to a detention order under section 105 of the Immigration Act. I have reached this conclusion on the basis of my review of the relevant provisions of the Corrections and Conditional Release Act and certain of its regulations.12
[19] The Corrections and Conditional Release Act has different case review procedures for those offenders who do not qualify for the accelerated parole review program and for those offenders, such as Mr. Larsen, who so qualify.
[20] For offenders who are not eligible for accelerated parole review, subsection 122(1) of the Act provides that the National Parole Board "shall" on application review the case of every offender for the purpose of day parole:
122. (1) Subject to subsection 119(2), the Board shall, on application, at the time prescribed by the regulations, review, for the purpose of day parole, the case of every offender other than an offender referred to in subsection (2).
122. (1) Sur demande des intéressés, la Commission examine, au cours de la période prévue par règlement, les demandes de semi-liberté.
[21] According to paragraph 140(1)(a) of the Act, the first review for day parole under subsection 122(1) "shall" be conducted by way of a hearing:
140. (1) The Board shall conduct the review of the case of an offender by way of a hearing, conducted in whichever of the two official languages of Canada is requested by the offender, unless the offender waives the right to a hearing in writing or refuses to attend the hearing, in the following classes of cases:
140. (1) La Commission tient une audience, dans la langue officielle du Canada que choisit le délinquant, dans les cas suivants, sauf si le délinquant a renoncé par écrit à son droit à une audience ou refuse d'être présent :
(a) the first review for day parole pursuant to subsection 122(1), except in respect of an offender serving a sentence of less than two years; ...
a) le premier examen du cas qui suit la demande de semi-liberté présentée en vertu du paragraphe 122(1), sauf dans le cas d'une peine d'emprisonnement de moins de deux ans; ...
This review shall be made by one or more members of the Board, according to the Corrections and Conditional Release Regulations.13
[22] Sections 125 and 126 of the Act provide a partially different procedure for offenders, such as Mr. Larsen, under accelerated parole review. According to section 126.1, the procedures in sections 125 and 126 apply, with such modifications as the circumstances require, to determine if an offender eligible for accelerated parole review should be released on day parole.
[23] Here, the Correctional Service of Canada "shall" refer the case to the National Parole Board, after having first identified relevant information concerning the offender"s social and criminal history and the individual"s incarceral performance and potential for violent behaviour. Subsections 125(2) to (4) state:14
125. (2) The Service shall, at the time prescribed by the regulations, review the case of an offender to whom this section applies for the purpose of referral of the case to the Board for a determination under section 126.
(3) A review made pursuant to subsection (2) shall be based on all reasonably available information that is relevant, including
(a) the social and criminal history of the offender obtained pursuant to section 23;
(b) information relating to the performance and behaviour of the offender while under sentence; and
(c) any information that discloses a potential for violent behaviour by the offender.
125. (2) Le Service procède, au cours de la période prévue par règlement, à l'étude des dossiers des délinquants visés par le
présent article en vue de leur transmission à la Commission pour décision conformément à l'article 126.
(3) L'étude du dossier se fonde sur tous les renseignements pertinents qui sont normalement disponibles, notamment :
a) les antécédents sociaux et criminels du délinquant obtenus en vertu de l'article 23;
b) l'information portant sur sa conduite pendant la détention;
c) tout autre renseignement révélant une propension à la violence de sa part.
(4) On completion of a review pursuant to subsection (2), the Service shall, within such period as is prescribed by the regulations preceding the offender's eligibility date for full parole, refer the case to the Board together with all information that, in its opinion, is relevant to the case.
(4) Au terme de l'étude, le Service transmet à la Commission, dans les délais réglementaires impartis mais avant la date d'admissibilité du délinquant à la libération conditionnelle totale, les renseignements qu'il juge utiles.
This review by the Service does not appear to require any application by the offender.15
[24] The National Parole Board then reviews the offender"s case, for the purpose of day parole, without a hearing. If the Board is satisfied that there are no reasonable grounds to believe that the offender is likely to commit an offence involving violence during the remainder of the sentence, it shall direct that the offender be released on day parole. This direction is to be made notwithstanding the usual criteria for granting parole in section 102 of the Act. This is set out in subsections 126(1) and (2) of the Act which also use the imperative "shall":
126. (1) The Board shall review without a hearing, at or before the time prescribed by the regulations, the case of an offender referred to it pursuant to section 125.
126. (1) La Commission procède sans audience, au cours de la période prévue par règlement ou antérieurement, à l'examen des dossiers transmis par le Service ou les autorités correctionnelles d'une province.
(2) Notwithstanding section 102, if the Board is satisfied that there are no reasonable grounds to believe that the offender, if released, is likely to commit an offence involving violence before the expiration of the offender's sentence according to law, it
shall direct that the offender be released on full parole.
(2) Par dérogation à l'article 102, quand elle est convaincue qu'il n'existe aucun motif raisonnable de croire que le délinquant commettra une infraction accompagnée de violence s'il est remis en liberté avant l'expiration légale de sa peine, la Commission
ordonne sa libération conditionnelle totale.
[25] Where the Board does not direct the offender"s release on day parole, the reasons for the refusal "shall" be reported to the offender and "shall" be referred for review of the case to a differently constituted panel of the Board. Subsections 126(3) and (4) provide that:
126. (3) If the Board does not direct, pursuant to subsection (2), that the offender be released on full parole, it shall report its refusal to so direct, and its reasons, to the offender.
(4) The Board shall refer any refusal and reasons reported to the offender pursuant to subsection (3) to a panel of members other than those who reviewed the case under subsection (1), and the panel shall review the case at the time prescribed by the regulations.
126. (3) Si elle est convaincue du contraire, la Commission communique au délinquant ses conclusions et motifs.
(4) La Commission transmet ses conclusions et motifs à un comité constitué de commissaires n'ayant pas déjà examiné le cas et chargé, au cours de la période prévue par règlement, du réexamen du dossier.
At this point, the offender"s case, for the purpose of day parole, shall be reviewed by way of a hearing, as for other offenders, under section 122 and paragraph 140(1)(a ). The linkage between subsection 126(4) and section 122 and paragraph 140(1)(a) is one suggested by the respondents" counsel, with which I agree.
[26] In summary, under accelerated parole review, the Board either directs the offender"s release for day parole without a hearing or reviews the offender"s case by way of a hearing. These provisions are clear and mandatory.16
[27] Day parole is defined as the authority granted to an offender by the National Parole Board to be at large during the sentence, subject to certain conditions.17 Neither day parole nor full parole interrupts the term of the sentence. Section 105 of the Immigration Act provides that, "[n]otwithstanding the Corrections and Conditional Release Act ," an offender continues to be detained until the expiration of that person"s sentence. In the end, the National Parole Board"s direction that the offender be released on day parole may well conflict, at least initially, with the immigration order that the offender"s detention continue in the place of confinement until the end of the sentence.
[28] In my view, however, the section 105 detention order does not remove the offender"s right to a review and hearing with respect to day parole, where the Board does not otherwise direct day parole release. There is nothing in the language of section 105 or of the detention order that in any way derogates from or otherwise affects Mr. Larsen"s statutory right to an accelerated day parole review and, if necessary, a hearing. The National Parole Board erred in law in refusing to grant to the applicant a review of his case for the purpose of day parole and the decision under review must be set aside.
[29] It is not necessary to resolve, in this proceeding, the conflict between a decision directing that an offender be released on day parole and a detention order made under section 105 of the Immigration Act. At the very least, a favourable decision on day parole will assure that the detention of an offender pursuant to an order under section 105 of the Immigration Act will be reviewed by an adjudicator in accordance with subsection 103(6) of that Act:
103. (6) Where any person is detained pursuant to this Act for an examination, inquiry or removal and the examination, inquiry or removal does not take place within forty-eight hours after that person is first placed in detention, or where a decision has not been made pursuant to subsection 27(4) within that period, that person shall be brought before an adjudicator forthwith and the reasons for the continued detention shall be reviewed, and thereafter that person shall be brought before an adjudicator at least once during the seven days immediately following the expiration of the forty-eight hour period and thereafter at least once during each thirty day period following each previous review, at which times the reasons for continued detention shall be reviewed.
103. (6) Si l'interrogatoire, l'enquête ou le renvoi aux fins desquels il est gardé n'ont pas lieu dans les quarante-huit heures, ou si la décision n'est pas prise aux termes du paragraphe 27(4) dans ce délai, l'intéressé est amené, dès l'expiration de ce délai, devant un arbitre pour examen des motifs qui pourraient justifier une prolongation de sa garde; par la suite, il comparaît devant un arbitre aux mêmes fins au moins une fois :
a) dans la période de sept jours qui suit l'expiration de ce délai;
b) tous les trente jours après l'examen effectué pendant cette période.
The significant effect in respecting Mr. Larsen"s statutory right to a day parole review is this interaction between subsections 103(6) and 105(1) and the potential impact the adjudicator"s review may have on the continuation of the warrant of arrest and the detention order.
[30] The possibility that an offender"s detention order under subsection 105(1) would be subject to the adjudicator"s review under subsection 103(6) was highlighted by the Court of Appeal in Chaudhry. In writing on behalf of the unanimous panel, Justice Rothstein noted that whether a person subject to an order under section 105 was eligible to be considered for day parole was not an issue in that case. However, he went on to state that:
| ... we would observe that if an individual subject to a subsection 105(1) order were ordered released by the National Parole Board on day parole, the subsection 105(1) order would then become operative to continue his detention and that detention would be reviewable under subsection 103(6).18 |
This statement mirrors the comments of Justice Evans in the court of first instance:
| On the interpretation of the Act that I favour, a detention review of an order made under subsection 105(1) would not be triggered until the individual became eligible for day parole or an unescorted temporary absence, because prior to that it would not have adversely affected the conditions of the individual"s incarceration.19 |
[31] Accordingly, this application for judicial review will be granted. The decision communicated by the National Parole Board in its letter of January 21, 1999 is set aside. The applicant"s request that his case be reviewed for the purpose of day parole will be remitted to the Cowansville Institution, as part of the Correctional Service of Canada, and the National Parole Board for redetermination in a manner not inconsistent with these reasons.
"Allan Lutfy"
J.F.C.C.
Ottawa, Ontario
October 18, 1999
__________________
1 S.C. 1992, c. 20, as amended by S.C. 1995, c. 42 and S.C. 1997, c. 17. The summary to the 1997 amendments refers to "earlier day parole review for low-risk, non-violent offenders".
2 Subsection 120(1) of the Corrections and Conditional Release Act, ibid.
3 R.S.C. 1985, c. I-2.
4 See paragraphs 27(2)(a ), 19(1)(c) and 19(2)(a) of the Immigration Act. See also applicant"s application record, p. 26.
5 This document was produced on consent during the hearing of this application for judicial review.
6 Respondent"s application record, p. 4.
7 Applicant"s application record, p. 24.
8 This document was also produced on consent during the hearing. The detention order under section 105 issued on April 14, 1998, supra note 5, was issued to the applicant "respecting whom an inquiry is to be held". The section 105 order dated March 18, 1998 is "respecting whom a deportation order has been made".
9 The warrant of arrest and the detention order of September 10, 1999 were filed on consent at the hearing. Counsel for the respondent indicated that these were issued in response to his request for instructions from officials of Citizenship and Immigration Canada concerning the continuance of this proceeding.
10 [1999] 3 F.C. 3 (T.D.) at paragraph 33, aff"d [1999] F.C.J. No. 1335 (C.A.) (QL).
11 I need not consider any rights the applicant may have concerning the section 103 warrant of arrest and the section 105 detention order issued on September 10, 1999.
12 These provisions were not dealt with in any significant manner in the parties" written submissions or at the hearing. The issue was canvassed to some extent during a conference call when this matter was under reserve.
13 SOR/92-620, sections 149 and following. See in particular section 153.
14 Sections 125 and 126 are made applicable to day parole review by section 126.1 of the Act.
15 Section 159 of the Regulations has not been amended to take into account the enactment of section 119.1 and 126.1 of the Act in 1997.
16 See section 11 of the Interpretation Act , R.S.C. 1985, c. I-21.
17 Section 99 of the Corrections and Conditional Release Act .
18 Supra note 10 (C.A.), paragraph 10.
19 Supra note 10 (T.D.), paragraph 27.
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