Date: 20020507
Docket: A-815-00
Montréal, Quebec, May 7, 2002
Coram: DESJARDINS J.A.
LÉTOURNEAU J.A.
PELLETIER J.A.
BETWEEN:
MARC BORDAGE
Appellant
and
DENIS CLOUTIER, in his capacity as Director,
Regional Reception Centre,
situated at 246 Montée Gagnon,
Ste-Anne-des-Plaines, Quebec J0N 1H0
and
RICHARD WATKINS, in his capacity as Regional Deputy Commissioner,
carrying on his professional activities at 3 Place Laval,
Laval, Quebec H7N 1A2
and
ATTORNEY GENERAL OF CANADA
Guy-Favreau Complex, 200 René-Lévesque Blvd. West, East Tower
Montréal, Quebec H2Z 1X4
Respondents
JUDGMENT
The motion to dismiss the appeal is granted with costs and the appeal is dismissed with costs.
"Alice Desjardins"
J.A.
Certified true translation
Mary Jo Egan, LLB
Date: 20020507
Docket: A-815-00
Neutral Citation: 2002 FCA 180
Coram: DESJARDINS J.A. LÉTOURNEAU J.A.
PELLETIER J.A.
BETWEEN:
MARC BORDAGE
Appellant
and
DENIS CLOUTIER, in his capacity as Director,
Regional Reception Centre,
situated at 246 Montée Gagnon,
Ste-Anne-des-Plaines, Quebec J0N 1H0
and
RICHARD WATKINS, in his capacity as Regional Deputy Commissioner,
carrying on his professional activities at 3 Place Laval,
Laval, Quebec H7N 1A2
and
ATTORNEY GENERAL OF CANADA
Guy-Favreau Complex, 200 René-Lévesque Blvd. West, East Tower,
Montréal, Quebec H2Z 1X4
Respondents
Hearing held at Montréal, Quebec, on May 7, 2002.
Judgment delivered from the bench at Montréal, Quebec, on May 7, 2002.
REASONS FOR JUDGMENT OF THE COURT: LÉTOURNEAU J.A.
Date: 20020507
Docket: A-815-00
Neutral Citation: 2002 FCA 180
Coram: DESJARDINS J.A. LÉTOURNEAU J.A.
PELLETIER J.A.
BETWEEN:
MARC BORDAGE
Appellant
and
DENIS CLOUTIER, in his capacity as Director,
Regional Reception Centre,
situated at 246 Montée Gagnon,
Ste-Anne-des-Plaines, Quebec J0N 1H0
and
RICHARD WATKINS, in his capacity as Regional Deputy Commissioner,
carrying on his professional activities at 3 Place Laval,
Laval, Quebec H7N 1A2
and
ATTORNEY GENERAL OF CANADA
Guy-Favreau Complex, 200 René-Lévesque Blvd. West, East Tower,
Montréal, Quebec H2Z 1X4
Respondents
REASONS FOR JUDGMENT OF THE COURT
(Delivered from the bench at Montréal, Quebec
on May 7, 2002.)
LÉTOURNEAU J.A.
[1] In his appeal from the decision of Mr. Justice Lemieux of the Trial Division dismissing his application for judicial review, the appellant is asking the Court for all practical purposes to review the decisions of the Correctional Service of Canada regarding his security classification at the penitentiary, his placement within the institution and his eligibility for Accelerated Parole Review.
[2] In support of the motion to dismiss the appeal, the respondent Attorney General of Canada, filed the Certificate of Release which indicates that the appellant has not been in custody since November 2, 2001, and that his warrant of committal will expire on November 4 of this year. Under the circumstances, the appeal has become moot, and after applying the criteria set out in Borowski v. Canada (Attorney General), [1989] 1 S.C.R. 343, we were not satisfied that it is necessary to dispose of these moot issues with respect to the appellant.
[3] In response to the respondent's motion to dismiss the appeal, the appellant also submits that it is a matter of general interest that this Court interpret subparagraph 125(1)(a)(vi) of the Corrections and Conditional Release Act, S.C. 1992, c. 20 and clarify the scope of that subparagraph which excludes from Accelerated Parole Reviews anyone who is serving a sentence for an offence described as "a criminal organization offence within the meaning of section 2 of the Criminal Code".
[4] The subparagraph reads: :
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Accelerated Parole Reviews
125.(1)This section and section 126 apply to an offender sentenced, committed or transferred to penitentiary for the first time, otherwise than pursuant to an agreement entered into under paragraph 16(1)(b), other than an offender
(a) serving a sentence for one of the following offences, namely,
(i) murder,
(ii) an offence set out in Schedule I,
(iii) an offence under section 463 of the Criminal Code that was prosecuted by indictment in relation to an offence set out in Schedule I, other than the offence set out in paragraph (1)(q) of that Schedule,
(iv) an offence set out in Schedule II in respect of which an order has been made under section 743.6 of the Criminal Code,
(v) an offence contrary to section 130 of the National Defence Act where the offence is murder, an offence set out in Schedule I or an offence set out in Schedule II in respect of which an order has been made under section 140.4 of the National Defence Act, or
(vi) a criminal organization offence within the meaning of section 2 of the Criminal Code, including an offence under subsection 82(2);
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Procédure d'examen expéditif
125.(1) Le présent article et l'article 126 s'appliquent aux délinquants condamnés ou transférés pour la première fois au pénitencier - autrement qu'en vertu de l'accord visé au paragraphe 16(1) -, à l'exception de ceux_:
a) qui y purgent une peine pour une des infractions suivantes_:
(i) le meurtre,
(ii) une infraction mentionnée à l'annexe I,
(iii) l'infraction prévue à l'article 463 du Code criminel et relative à une infraction mentionnée à l'annexe I - sauf celle qui est prévue à l'alinéa (1)q) de celle-ci - et ayant fait l'objet d'une poursuite par mise en accusation,
(iv) une infraction mentionnée à l'annexe II et sanctionnée par une peine ayant fait l'objet d'une ordonnance rendue en vertu de l'article 743.6 du Code criminel,
(v) le meurtre, lorsqu'il constitue une infraction à l'article 130 de la Loi sur la défense nationale, une infraction mentionnée à l'annexe I ou une infraction mentionnée à l'annexe II pour laquelle une ordonnance a été rendue en vertu de l'article 140.4 de la Loi sur la défense nationale,
(vi) un acte de gangstérisme, au sens de l'article 2 du Code criminel, y compris l'infraction visée au paragraphe 82(2);
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[5] In our view, it is not appropriate in this case to issue what would amount to a declaratory judgment on the issue, for two reasons.
[6] First, it would be dangerous to decide this issue in the abstract without an appropriate factual context enabling us to define the problem more clearly and thereby clarify the parameters of the section of the statute under intepretation. Under the cirumstances, we do not believe it would be appropriate to do so by borrowing the factual context of the appellant's case, which has become completely moot.
[7] Second, this issue was not considered by the Trial Division because Lemieux J. dismissed the appellant's application for judicial review of the matter on the ground that it had been brought out of time. We do not therefore have the benefit of an initial analysis of the statutory provision at issue. Under the circumstances, we do not consider it appropriate to act as an appellate court and a trial court at the same time.
[8] For these reasons, the motion to dismiss the appeal will be granted with costs and the appeal will be dismissed with costs.
"Gilles Létourneau"
J.A.
Certified true translation
Mary Jo Egan, LLB
FEDERAL COURT OF CANADA
APPEAL DIVISION
Date: 20020507
Docket: A-815-00
Between:
MARC BORDAGE
Appellant
and
DENIS CLOUTIER
and
RICHARD WATKINS
and
ATTORNEY GENERAL OF CANADA
Respondents
REASONS FOR JUDGMENT
OF THE COURT
FEDERAL COURT OF CANADA
APPEAL DIVISION
SOLICITORS OF RECORD
DOCKET: A-815-00
STYLE OF CAUSE: MARC BORDAGE
Appellant
and
DENIS CLOUTIER and
RICHARD WATKINS and
ATTORNEY GENERAL OF CANADA
Respondents
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: May 7, 2002
REASONS FOR JUDGMENT OF THE COURT:
THE HONOURABLE MR. JUSTICE LÉTOURNEAU
CONCURRED IN BY: THE HONOURABLE MADAM JUSTICE DESJARDINS
THE HONOURABLE MR. JUSTICE PELLETIER
DATE OF REASONS: May 7, 2002
APPEARANCES:
Jacques Normandeau FOR THE APPELLANT
Nadia Hudon FOR THE RESPONDENTS
SOLICITORS OF RECORD:
Jacques Normandeau
Montréal, Quebec FOR THE APPELLANT
Morris Rosenberg
Deputy Attorney General of Canada
Montréal, Quebec FOR THE RESPONDENT
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