Date: 20100629
Docket: T-1445-09
Citation: 2010 FC 710
Ottawa, Ontario, June 29, 2010
PRESENT:
The Honourable Mr.
Justice Shore
BETWEEN:
PETER
RANDOLPH STUART
Applicant
and
ATTORNEY
GENERAL OF CANADA
Respondent
REASONS FOR JUDGMENT AND
JUDGMENT
I. Preliminary
[1]
The
applicant received a first sentence of life imprisonment with eligibility for
parole after 12 years but, while he was serving his first sentence, he received
a second sentence (additional sentence) of 53 months for the growing,
possession and trafficking of cannabis, as well as for possession of various
prohibited firearms.
[2]
The
applicant considers this additional sentence to have merely symbolic value,
given that it was to be served concurrently with his first sentence.
[3]
Subsection
120.2(2) of the Corrections and Conditional Release Act, S.C. 1992, c.
20 (CCRA) establishes that any additional sentence must be considered for purposes of
calculating eligibility for parole from the day on which the sentence was
imposed.
[4]
Justice
Allen Linden, writing for the Federal Court of Appeal in Cooper v. Canada (Attorney
General),
2002 FCA 374, 295 N.R. 184, stated the following:
[9] ...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). [Emphasis
added.]
[5]
[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.... [Emphasis added.]
(As stated by Justice Linden in the Federal
Court of Appeal decision in Cooper, above).
II. Judicial procedure
[6]
This
is an application for judicial review of a decision by the Chief, Sentence
Management at the Leclerc Institution dated July 31, 2009, concerning an
application, dated July 24, 2009, with regard to the calculation of the applicant’s
parole eligibility dates (establishing the applicant’s day parole eligibility
date to be 2012-01-28 and the applicant’s full parole eligibility date to be
2015-01-18 for the purposes of subsections 119(1.1) and 120.2(2) of the CCRA).
III. Introduction
[7]
The
application for judicial review is based on the following:
-
The July 31, 2009 decision of the Chief, Sentence Management of the
Correctional Service of Canada is based on an erroneous finding of fact without
regard for the relevant material in the applicant’s specific file:
According to
the applicant:
·
The
sentence imposed on February 5, 2007, by the Honourable Jean Sirois, J.C.Q. punishes
offences committed on the same date and at the same place and arising from the
same facts as the life sentence with eligibility for parole after 12 years
imposed by the Honourable Fraser Martin on March 18, 2003.
·
This
is therefore not a new offence committed by the applicant on a different date,
and an unfairness results since Martin J.C.Q. took these offences into account and
increased the time before the applicant becomes eligible for parole from 10
years to 12 years.
·
Further,
when the sentence was imposed on February 5, 2007, it was clear that Sirois J.C.Q.
was imposing a symbolic sentence on the applicant, indicating that the 53-month
sentence for the growing of marijuana and possession of firearms would not
change the applicant’s parole eligibility date since the applicant was serving
a life sentence.
The applicant
is of the opinion that:
-
The July 31, 2009 decision of the Chief, Sentence Management of the Correctional
Service of Canada is erroneous in law in many respects:
·
The
narrow interpretation of the application of subsections 119(1.1) and 120.2(2) of
the CCRA has the effect of creating an unfairness for the applicant and only
the court is empowered to remedy this miscarriage of justice by means of a review.
·
Because
of the decision of the Chief, Sentence Management of the Correctional Service
of Canada, the applicant was not reclassified to a lower security institution, which
would have allowed him to continue serving his sentence in a minimum security
institution.
·
The
July 31, 2009 decision results from a misinterpretation of subsections 119(1.1)
and 120.2(2) of the CCRA regarding the sentence imposed in relation to the
calculation of the day parole eligibility date and the full parole eligibility
date.
·
The
full parole and day parole eligibility dates are a right and not a privilege.
·
Both
the full parole eligibility date and the day parole eligibility date should be
calculated as if there were one global sentence.
IV. Facts (which, according to the
applicant’s evidence, demonstrate the merits)
[8]
Between
1998 and 2001, the applicant was actively involved in a major marijuana
production and sales business worth several million dollars (Applicant’s Record
(AR) at pp. 50-51, Indictment at p. 53, Court of Québec decision).
[9]
On
July 26, 2001, as part of his operations, the applicant participated in a
shootout that took place in a building belonging to his partner (AR at pp.
53-54, Court of Québec decision).
[10]
This
shootout followed an argument concerning a debt of $30,000 he owed to the person
tending one of his marijuana plantations and resulted in two deaths and in the
injury of another person (AR at pp. 53-54, Court of Québec decision).
[11]
After
the killings, the police officers who responded on the scene discovered
numerous documents linking the applicant and his partners to the plantations,
the sum of $100,000, 11 kilos of marijuana, used equipment used in growing marijuana
and an arsenal of firearms (AR at p. 54, Court of Québec decision).
[12]
On
February 26, 2002, the applicant was charged with the murders and attempted
murder of the three victims of the killing of July 26, 2001, and was convicted
(AR at p. 23, Indictment).
[13]
On
March 18, 2003, he was sentenced to life imprisonment, with eligibility for
parole only after 12 years (AR at p. 47, decision of Fraser J.C.Q.).
[14]
On
October 31, 2005, the applicant was also charged with conspiracy to grow,
possess and traffic cannabis, as well as with possession of various prohibited
firearms related to his illicit activities between 1998 and 2001. He pleaded
guilty to these charges (AR at p. 50, Indictment).
[15]
On
February 5, 2007, he was sentenced to 53 months (AR at p. 52, Court of Québec
decision).
[16]
On
July 24, 2009, the applicant, through his counsel, filed an application with the
Chief, Sentence Management to calculate his parole eligibility dates (AR at p.
18, reference: communication with the Chief, Sentence Management).
[17]
On
August 25, 2009, the Chief, Sentence Management informed the applicant by
letter that his parole eligibility date was determined to be January 28, 2015
(AR at p. 16, letter from the Chief, Sentence Management).
[18]
As
explained in this letter, the additional sentence of 53 months, imposed on
February 5, 2007, was added to the remaining period of ineligibility in
relation to his life sentence (with eligibility for parole after 12 years) from the day on which the sentence was imposed (AR at p.
17, letter from the Chief, Sentence Management).
[19]
In
fact, his additional sentence had the effect of delaying his parole eligibility
date (AR at p. 17, letter from the Chief, Sentence Management).
[20]
On
August 31, 2009, the applicant applied for judicial review to contest this
calculation because he considered the 53-month sentence should not be taken
into consideration as an additional sentence for the purposes of calculating
his eligibility for parole.
V. Issue
[21]
Is
the parole eligibility date determined by the Chief, Sentence Management of the
Correctional Service of Canada consistent with subsections 119(1.1) and 120.2(2)
of the CCRA?
VI. Analysis
[22]
The
Court is in full agreement with and is adopting the position of the respondent
in answering yes to the issue: the parole eligibility date determined by the Chief,
Sentence Management of the Correctional Service of Canada is consistent with
subsections 119(1.1) and 120.2(2) of the CCRA.
[23]
Determination
of the applicant’s parole eligibility date is governed by section 120.2 of the
CCRA, which reads as follows:
|
Additional concurrent sentence
120.2 (1) Subject to subsection
(2), where an offender who is serving a sentence receives an additional
sentence that is to be served concurrently with any portion of the sentence
the offender was serving when the additional sentence was imposed, the
offender is not eligible for full parole until the day that is the later of
(a) the day on which the
offender has served the period of ineligibility in relation to the sentence
the offender was serving when the additional sentence was imposed, and
(b) the day on which the
offender has served
(i) the period of
ineligibility in relation to any portion of the sentence that includes the
additional sentence as provided by subsection 139(1) and that is subject to
an order under section 743.6 of the Criminal Code or section 140.4 of
the National Defence Act, and
(ii) the period of
ineligibility in relation to any other portion of that sentence.
Where sentence in addition to
life sentence
(2) Where an offender who is
sentenced to life imprisonment or for an indeterminate period receives an
additional sentence for a determinate period, 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 to which the offender is subject; and
(b) the period of
ineligibility in relation to the additional sentence.
Where reduction of period of
ineligibility for parole
(3) Where, pursuant to section
745.6 of the Criminal Code, subsection 140.3(2) of the National
Defence Act or subsection 15(2) of the Crimes Against Humanity and War
Crimes Act, there has been a reduction in the number of years of
imprisonment without eligibility for parole of an offender referred to in
subsection (2), 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) the remaining period
of ineligibility to which the offender would have been subject, after taking
into account the reduction; and
(b) the period of
ineligibility in relation to the additional sentence.
1995, c.
22, s. 18, c. 42, s. 34; 1997, c. 17, s. 23(F); 1998, c. 35, s. 113; 2000, c.
24, s. 39.
[Emphasis
added.]
|
Peine supplémentaire
concurrente
120.2 (1) Sous réserve du
paragraphe (2), le délinquant dont la peine d’emprisonnement n’est pas
expirée et qui est condamné à une peine d’emprisonnement supplémentaire à
purger en même temps qu’une partie de l’autre n’est admissible à la
libération conditionnelle totale qu’à la plus éloignée des dates suivantes :
a) la date à laquelle il a
accompli le temps d’épreuve sur la peine qu’il purge au moment de la
condamnation à la peine supplémentaire;
b) la date à laquelle il a
accompli, d’une part, le temps d’épreuve requis par rapport à la partie de la
période globale d’emprisonnement, déterminée conformément au paragraphe
139(1), qui est visée par une ordonnance rendue en vertu de l’article 743.6
du Code criminel ou de l’article 140.4 de la Loi sur la défense
nationale et, d’autre part, le temps d’épreuve requis par rapport à toute
autre partie de cette période globale d’emprisonnement.
Peine d’emprisonnement à perpétuité
(2) Le délinquant qui est
condamné à une peine d’emprisonnement supplémentaire pour une période
déterminée alors qu’il purge une peine d’emprisonnement à perpétuité ou pour
une période indéterminée n’est admissible à la libération conditionnelle
totale qu’à la date à laquelle il a accompli le temps d’épreuve auquel il est
assujetti au moment de la condamnation ainsi que le temps d’épreuve sur la
peine supplémentaire.
Nouveau calcul en cas de réduction du temps d’épreuve
(3) En cas de réduction du
temps d’épreuve sur la peine d’emprisonnement à perpétuité en vertu de
l’article 745.6 du Code criminel, du paragraphe 140.3(2) de la Loi sur la défense nationale ou du paragraphe 15(2) de
la Loi sur les crimes contre l’humanité et les crimes de guerre, le
délinquant visé au paragraphe (2) n’est admissible à la libération
conditionnelle totale qu’à la date à laquelle il a accompli le temps
d’épreuve auquel il aurait été assujetti, compte tenu de la réduction, à la
date de la condamnation à la peine supplémentaire ainsi que le temps
d’épreuve sur la peine supplémentaire.
1995, ch.
22, art. 18, ch. 42, art. 34; 1997, ch. 17, art. 23(F); 1998, ch. 35, art.
113; 2000, ch. 24, art. 39.
(La
Cour souligne).
|
[24]
The
applicant received a first sentence of life imprisonment with eligibility for
parole after 12 years, but while he was serving his first sentence, he received
a second sentence (additional sentence) of 53 months for the growing, possession
and trafficking of cannabis, as well as for possession of various prohibited
firearms.
[25]
According
to subsection 120.2(2) of the CCRA, his eligibility for parole must be
calculated by adding the period of ineligibility in relation to his additional
sentence of 53 months to the remaining period of ineligibility in relation to his
life sentence (with eligibility for parole after 12 years) from the day on
which the sentence was imposed. (The remaining period of ineligibility in
relation to his life sentence, from the day on which the additional sentence
was imposed, was 2,378 days, to which 536 days must be added, which takes us to
January 28, 2015, as his parole eligibility date.)
[26]
The
applicant contends that his 53-month sentence should not be considered an
additional sentence for the purposes of determining his eligibility for parole
under subsection 120.2(2) of the CCRA because he considers that this sentence
was related to offences committed on the same date and arising from the same
circumstances as the offences for which he is serving a life sentence (first
sentence).
[27]
In
other words, the offences giving rise to the additional sentence were already
included and considered in his first sentence, and both sentences should be
viewed as one sentence.
[28]
The
applicant also considers this additional sentence to have merely symbolic value,
given that it was to be served concurrently with his first sentence.
[29]
Subsection
120.2(2) of the CCRA establishes that any additional sentence must be considered for purposes of calculating
eligibility for parole from the day on which the sentence was imposed.
[30]
Consequently,
sentence managers at the Correctional Service of Canada do not exercise any
discretion when determining eligibility for parole.
[31]
The
Act, as enacted by Parliament, must be applied by the Sentence Manager of the
Correctional Service of Canada.
[32]
Justice
Linden, writing on behalf of the Federal Court of Appeal in Cooper, above,
specified the following:
[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). [Emphasis added.]
[33]
In
addition, Justice Linden found that Parliament’s rationale for proceeding in this
way did not deny fundamental justice and is therefore not contrary to the Canadian
Charter of Rights and Freedoms, Part I, Schedule B to the Canada Act
1982, 1982, c. 11 (U.K.). In this regard, he stated the following in Cooper,
above:
[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.
VII. Conclusion
[34]
For
these reasons, the Chief, Sentence Management had to take into account the
applicant’s additional sentence imposed by the Court from
the day on which the sentence was imposed in determining
eligibility for parole and had no discretion to interpret it otherwise.
[35]
Nevertheless,
despite the applicant’s argument, the facts clearly show that the offences resulting
in the second sentence pertained to periods and crimes that were different from
those that resulted in the first sentence.
[36]
Thus,
for all these reasons, the parole eligibility date as determined by the Chief,
Sentence Management of the Correctional Service of Canada is consistent with
subsections 119(1.1) and 120.2(2) of the CCRA.
[37]
The
applicant’s application for judicial review is therefore dismissed.
JUDGMENT
THE COURT ORDERS that the
application for judicial review be dismissed, with costs.
“Michel M.J. Shore”
Certified
true translation
Susan
Deichert,
LLB
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