Date: 20090316
Docket: A-429-08
Citation: 2009 FCA 84
CORAM: EVANS
J.A.
RYER
J.A.
TRUDEL
J.A.
BETWEEN:
BRYAN RALSTON LATHAM
Appellant
and
HER MAJESTY THE QUEEN
Respondent
REASONS FOR JUDGMENT OF THE
COURT
(Delivered
from the Bench at Winnipeg, Manitoba, on March
16, 2009)
EVANS J.A.
[1]
The
appellant, Bryan Ralston Latham, was convicted of sexual offences in 1971. A
court subsequently declared him a dangerous offender and he is serving an
indeterminate sentence.
[2]
Mr Latham
has appealed an order of the Federal Court, dated July 31, 2008, in which
Justice Tremblay-Lamer upheld an order of Prothonotary Lafrenière, dated June
20, 2008, striking his statement of claim as an abuse of process.
[3]
The
statement of claim requested a declaration that, properly interpreted,
subsection 122(4) of the Corrections and Conditional Release Act, S.C. 1992,
c. 20 (“the Act’), entitles an inmate in the position of Mr Latham to reapply
to the National Parole Board (“the Board”) for day release six months after the
Board has refused a similar request from the inmate.
[4]
The basis
of the Prothonotary’s order was that Mr Latham was essentially seeking a
declaration that the Board had erred in rejecting his application for day
parole on the ground that subsection 123(5) of the Act provides that an inmate
may not reapply for day parole within two years of a previous refusal.
Accordingly, by virtue of subsections 18(1) and (3) of the Federal Courts
Act, R.S.C. 1985, c. F-7, the appropriate proceeding was an application for
judicial review.
[5]
On July
18, 2008, Justice Zinn of the Federal Court released a decision holding that an
inmate whose application for day parole had been dismissed by the Board could
reapply six months later: Dixon v. Canada (Attorney General), 2008 FC
889. The Attorney General has not appealed this decision.
[6]
The Board
is bound by the interpretation of the Act in Dixon, and Mr Latham’s case is materially
indistinguishable from that of Mr Dixon. Consequently, since Mr Latham has, in
effect, obtained the relief that he was seeking in his statement of claim, his
appeal is moot.
[7]
We would
only add that we find it astonishing and disturbing that at no time did counsel
for the Crown bring the decision in Dixon to the attention of the Court, even
though it was decided more than five months before the Crown’s memorandum of
fact and law was signed.
[8]
This
omission is particularly surprising in view of the Board memoranda of August and
September 2008 informing staff about the implications of Dixon for both day and full parole
applications and stating that, in accordance with Dixon, day and full parole applications would
be scheduled within six months after their receipt.
[9]
Mr
Latham’s appeal will be dismissed for mootness and, in the unusual
circumstances of this appeal, he will be awarded his reasonable expenses in the
amount of $400.
"John
M. Evans"
FEDERAL COURT OF APPEAL
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: A-429-08
(APPEAL FROM AN ORDER OF THE FEDERAL
COURT DATED JULY 31, 2008, DOCKET NO. T-517-08)
STYLE OF CAUSE: Bryan
Ralston Latham v.
Her Majesty the Queen
PLACE OF HEARING: Winnipeg,
Manitoba
DATE OF HEARING: March 16, 2009
REASONS FOR JUDGMENT OF THE COURT BY: (EVANS, RYER, TRUDEL JJ.A.)
DELIVERED FROM THE BENCH BY: EVANS J.A.
APPEARANCES:
|
Bryan Ralston
Latham
|
SELF-REPRESENTED
|
|
Marcia
Jackson
|
FOR THE RESPONDENT
|
SOLICITORS OF RECORD:
|
|
|
|
John H. Sims,
Q.C.
Deputy Attorney General of Canada
|
FOR THE
RESPONDENT
|
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