Montréal, Quebec, November 29, 2005
PRESENT: THE HONOURABLE MR. JUSTICE de MONTIGNY
BETWEEN:
Applicant
and
THE ATTORNEY GENERAL OF CANADA
REASONS FOR ORDER AND ORDER
[1]
This
application for judicial review seeks to set aside a decision by the National
Parole Board (the “Board”) dated November 8, 2004 renewing for the third time a
90-day residency requirement, as part of a community supervision order issued
under section 753.1 of the Criminal Code.
FACTS
[2] As the parties have filed an agreed statement of facts, I will simply reproduce them in full hereinafter.
[3] The applicant served a second two-year federal sentence for sexual offences against the person, namely, forcible confinement and indecent acts (five counts), as well as for possession of Schedule II substances and failure to comply with a probation order.
[4] The applicant’s warrant of committal expired on June 27, 2004.
[5] The applicant was also declared a long-term offender under section 753.1 of the Criminal Code.
[6] Consequently, the court ordered that the applicant be subject to a long-term community supervision order pursuant to subsection 753.1(3) and section 753.2 of the Criminal Code.
[7] The supervision order was for a maximum period of five years following expiry of the applicant’s warrant of committal, that is, effective June 27, 2004.
[8] On June 3, 2004, the Board ordered that the applicant comply with a special residency condition with any Community Correctional Centre/Community Residential Centre (“CCC/CRC”), for a period of 90 days.
[9] As a result of the Board’s decision, a long-term supervision certificate was issued against the applicant. The certificate listed the special conditions imposed, including the aforementioned residency condition, for a period of 90 days.
[10] The CCC named in the certificate was the Hochelaga CCC, located on Hochelaga Street in Montréal.
[11] On August 18, 2004, the Board rendered a second decision renewing the applicant’s residency condition for an additional 90 days.
[12] On August 25, 2004, Jean-Guy Desrosiers of the Hochelaga CCC suspended the applicant’s supervision, authorized his apprehension and ordered his commitment to custody pursuant to subsection 135.1(1) of the Corrections and Conditional Release Act (the “Act”).
[13] The arrest warrant was executed on August 25, 2004, and the applicant was committed to custody at the Leclerc Institution.
[14] On October 18, 2004, the Board reviewed the applicant’s case and cancelled the suspension of the long-term supervision.
[15] A new certificate was issued to this effect on October 18, 2004. The certificate extended the residency order by 54 days to the new expiry date, November 15, 2004.
[16] The CCC named in the new certificate was the Hochelaga CCC.
[17] A third certificate was issued on November 16, 2004 (locked November 8, 2004). This certificate was the subject of the application for judicial review.
[18] This third warrant referred to a new residency requirement for a 90-day period, that is, until February 13, 2005.
[19] The CCC named in the third certificate was, once again, the Hochelaga CCC.
[20] In each of his three stays at the Hochelaga CCC, the applicant had to, and must still, comply with the CCC’s rules, which are the same for an offender under a residency order as part of his statutory release as for another offender under a residency order as part of his long-term supervision.
[21] As for all offenders, special arrangements concerning the rules may be made for individual offenders. For example, a resident who needs a cell phone for his work could, under certain conditions, be exempted from the rule.
[22] For the requirements of the present application for judicial review, the applicant does not contest the facts reported in the Board’s decisions but disagrees with the legal conditions.
[23] For the requirements of the present application for judicial review, the applicant admits that, if the Board had the power to impose a residency condition on him, which he denies, that condition would be reasonable, necessary in order to protect society and to facilitate his successful reintegration into society and justified by the facts of the case.
ISSUE
[24] The only issue in the present application is the following:
Does the Board have jurisdiction to renew the special supervision conditions of an offender who has been declared a long-term offender pursuant to subsection 753.1(1) of the Criminal Code, with the result that a succession of 90-day residency requirements are imposed on him?
ANALYSIS
[25] Before undertaking an analysis of the issue at the heart of this dispute, we should briefly examine the legislative framework underlying the legal issue to be resolved. The relevant legislation is reproduced in the Appendix to these reasons.
[26] When the court finds an offender to be a “long-term offender” under subsection 753.1(1) of the Criminal Code, it is required to impose a sentence of imprisonment of two years or more for the offence for which the offender has been convicted and order the offender to be supervised in the community (subsection 753.1(3)).
[27] This period of supervision within the community begins when the offender has finished serving the sentence imposed for the offence for which he has been convicted, and all other sentences for offences for which the offender is convicted and for which sentence a term of imprisonment is imposed on the offender, either before or after the conviction for the aforementioned offence (subsection 753.2(1)).
[28] This period of supervision must also be administered in accordance with the Corrections and Conditional Release Act, S.C. 1992, c. 20. Subsection 134.1(1) of the Act states that long-term offenders are subject to subsection 161(1) of the Corrections and Conditional Release Regulations, SOR/92-620, P.C. 1992-2223, October 29, 1992 (the “Regulations”).
[29] Furthermore, subsection 135.1(1) provides that, when an offender breaches a condition of a long-term supervision order, the long-term supervision order may be suspended. It should be noted that any breach of condition of release may result in an order authorizing the commitment of the long-term offender to a community-based residential facility or a mental health facility.
[30] After reviewing the case, the Board may cancel the suspension without adding new conditions to the long-term supervision order, cancel the suspension but add any conditions that the Board considers necessary to protect society or, where the Board is satisfied that no appropriate program of supervision can be established that would adequately protect society from the risk of the offender reoffending, recommend that an information be laid charging the offender with a breach of the supervision order (subsection 135.1(6)).
[31] In the applicant’s view, an offender subject to a long-term supervision order cannot be committed for successive 90-day periods under subsection 135.1(6), since subsection (2) of that same section stipulates that the period of commitment of the offender must not exceed 90 days. Furthermore, it would go against the spirit of the Act if successive residency requirements were issued for an uninterrupted period of more than 90 days, as the offender would have finished serving his sentence when he was placed under long-term supervision.
[32] It is uncontested that the appropriate standard of review is correctness. The issue before us is purely a question of law, since we must determine the meaning and scope of a statutory provision by considering its legislative framework. The Board has no special expertise in this area and is in no better position than this Court to resolve the issue. I note, furthermore, that the correctness standard was recently applied by this Court in similar situations: see McMurray v. Canada (National Parole Board), [2004] F.C.J. No. 565 (Q.L.); Normandin v. Canada (Attorney General), [2004] F.C.J. No. 1701 (Q.L.).
[33] Despite the skill and conviction with which counsel for the applicant pleaded her case, I cannot endorse her arguments. It seems clear to me that, in fact, the residency requirements were imposed on the applicant under section 134.1, not section 135.1. The latter provision is only applied in cases of actual or anticipated breaches of the conditions of a long-term supervision order. Only when the conditions are breached or when “the member or person is satisfied that it is necessary and reasonable to suspend the long-term supervision in order to prevent a breach of any condition of it or to protect society” may a member of the Board or a person designated by it authorize the “commitment” of the offender to a community-based residential facility. The order will end when the Board has reviewed the case and determined what measures should be taken, and must not exceed 90 days.
[34] In other words, once the Board rules on the case of an offender referred to it for breach of a condition in the long-term supervision order or because of the risk to society, section 134.1 becomes operative once more and is the authority whereby the original order is extended (with or without new conditions) and possibly renewed.
[35] The Federal Court of Appeal recently determined that section 134.1 authorizes the Board to impose a residency requirement among the conditions that it may set in a long-term supervision order. In the context of an application for judicial review by an applicant concerning the legality of a long-term supervision certificate issued by the Board on June 3, 2004, the Court of Appeal upheld the judgment delivered by my colleague Tremblay-Lamer J. ([2004] F.C.J. No. 1701) after conducting an extensive analysis of that section and of the Act as a whole (Normandin v. Canada (Attorney General), 2005 FCA 345).
[36] In that case, counsel for the applicant argued that section 134.1 could not be interpreted as conferring power on the Board to impose a condition of residency in a community-based residential facility, since the provision, read in conjunction with section 99.1 of the Act and subsection 61(1) of the Regulations, does not expressly refer to that condition. Relying on the expressio unius est exclusion alterius rule, Ms. Magas made much of subsections 133(4.1) and 135.1, which do expressly authorize that condition, in support of her argument.
[37] In response to those claims, Létourneau J.A. carefully examined the relevant sections of the Act, its purpose and its general scheme. After providing a detailed and persuasive critical analysis, he concluded that subsection 134.1(2) contains a general power to ensure the protection of society and facilitate the successful reintegration into society of a long-term offender by imposing on him or her any condition of supervision that the Board considers appropriate, including those not expressly referred to in section 99.1.
[38] While there is no need here to reproduce Létourneau J.A.’s detailed reasoning as to how section 134.1 should be interpreted, his comments concerning section 135.1, however, are quite relevant to the present case, in my view, and so I will reproduce a brief excerpt here:
[56] What section 135.1 confers is a power of commitment to a residence and not a power to assign to a residence. The first, the power of commitment, punishes the conduct of the long-term offender while the second, the residence requirement, refers to a condition of his long-term supervision or, in the case of an offender on statutory release, to a condition of that release (see subsection 133(4.1)). The first is expressed and exercised by a warrant, the second simply by a statement or stipulation in the supervision measures.
[57] Parliament has taken the trouble to use a different terminology in order to clearly differentiate between the two concepts. Subsection 133(4.1) states, in the case of an offender on statutory release, that the releasing authority “may . . . require that the offender reside . . .”. This terminology contrasts with that of subsection 135.1(1), applicable to the long-term offender, where the Board “may, by warrant . . . authorize the commitment of the offender to a community-based residential facility or . . . to custody”.
. . .
[61] Again, the limited applicability of section 135.1 contrasts with the much broader power to set conditions of supervision under subsection 134.1(2). The duration of the commitment to residence under subsection 134.1(2) is established by the Board and determined by the necessity and reasonableness of imposing such a condition. This subsection, I note again, does not set any maximum time limit for commitment to residence, as is the case for the warrant of commitment in section 135.1.
[39] This excerpt from the Federal Court of Appeal judgment speaks volumes in confirming, if confirmation was needed, the very different natures and purposes of sections 134.1 and 135.1. The purpose of the latter is to provide the Board with the tools to address an emergency situation, and the only purpose of the “commitment” is to protect society while the Board examines the offender’s case. It is crystal clear from a reading of subsections 135.1(6) and (8) that the original supervision order becomes operative again as soon as the Board decides to cancel the suspension, with or without new conditions, unless it recommends that an information be laid charging the offender with an offence under section 753.3 of the Criminal Code.
[40] Since the applicant admitted that the residency requirement would have been reasonable if the Court had found that the Board had that power, the present application for judicial review must be dismissed, without costs.
ORDER
THE COURT ORDERS that the application for judicial review be dismissed, without costs.
Judge
Certified true translation
Michael Palles
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: T-2095-04
STYLE OF CAUSE: Daniel Normandin v. Attorney General of Canada
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: August 23, 2005
REASONS FOR ORDER BY: De MONTIGNY J.
APPEARANCES:
Diane Magas
|
FOR THE APPLICANT |
Dominique Guimond
|
FOR THE RESPONDENT |
SOLICITORS OF RECORD:
Magas Law Office Ottawa, Ontario
|
FOR THE APPLICANT |
John H. Sims, Q.C. Deputy Attorney General of Canada Montréal, Quebec |
FOR THE RESPONDENT |
APPENDIX
Corrections and Conditional Release Regulations, SOR/92-620, P.C. 1992-2223, 29 October, 1992 Conditions of Release 161. (1) For the purposes of subsection 133(2) of the Act, every offender who is released on parole or statutory release is subject to the following conditions, namely, that the offender |
Règlement sur le système correctionnel et la mise en liberté sous condition, DORS/92-620, C.P. 1992-2223, 29 octobre 1992 Conditions de mise en liberté 161. (1) Pour l'application du paragraphe 133(2) de la Loi, les conditions de mise en liberté qui sont réputées avoir été imposées au délinquant dans tous les cas de libération conditionnelle ou d'office sont les suivantes : |
(a) on release, travel directly to the offender's place of residence, as set out in the release certificate respecting the offender, and report to the offender's parole supervisor immediately and thereafter as instructed by the parole supervisor; |
a) dès sa mise en liberté, le délinquant doit se rendre directement à sa résidence, dont l'adresse est indiquée sur son certificat de mise en liberté, se présenter immédiatement à son surveillant de liberté conditionnelle et se présenter ensuite à lui selon les directives de celui-ci; |
(b) remain at all times in Canada within the territorial boundaries fixed by the parole; |
b) il doit rester à tout moment au Canada, dans les limites territoriales spécifiées par son surveillant; |
(c) obey the law and keep the peace; |
c) il doit respecter la loi et ne pas troubler l'ordre public; |
(d) inform the parole supervisor immediately on arrest or on being questioned by the police; |
d) il doit informer immédiatement son surveillant en cas d'arrestation ou d'interrogatoire par la police; |
(e) at all times carry the release certificate and the identity card provided by the releasing authority and produce them on request for identification to any peace officer or parole supervisor; |
e) il doit porter sur lui à tout moment le certificat de mise en liberté et la carte d'identité que lui a remis l'autorité compétente et les présenter à tout agent de la paix ou surveillant de liberté conditionnelle qui lui en fait la demande à des fins d'identification;
|
(f) report to the police if and as instructed by the parole supervisor; |
f) le cas échéant, il doit se présenter à la police, à la demande de son surveillant et selon ses directives;
|
(g) advise the parole supervisor of the offender's address of residence on release and thereafter report immediately |
g) dès sa mise en liberté, il doit communiquer à son surveillant l'adresse de sa résidence, de même que l'informer sans délai de : |
(i) any change in the offender's address of residence, |
(i) tout changement de résidence, |
(ii) any change in the offender's normal occupation, including employment, vocational or educational training and volunteer work, |
(ii) tout changement d'occupation habituelle, notamment un changement d'emploi rémunéré ou bénévole ou un changement de cours de formation, |
(iii) any change in the domestic or financial situation of the offender and, on request of the parole supervisor, any change that the offender has knowledge of in the family situation of the offender, and |
(iii) tout changement dans sa situation domestique ou financière et, sur demande de son surveillant, tout changement dont il est au courant concernant sa famille, |
(iv) any change that may reasonably be expected to affect the offender's ability to comply with the conditions of parole or statutory release; |
(iv) tout changement qui, selon ce qui peut être raisonnablement prévu, pourrait affecter sa capacité de respecter les conditions de sa libération conditionnelle ou d'office; |
(h) not own, possess or have the control of any weapon, as defined in section 2 of the Criminal Code, except as authorized by the parole supervisor; and |
h) il ne doit pas être en possession d'arme, au sens de l'article 2 du Code criminel, ni en avoir le contrôle ou la propriété, sauf avec l'autorisation de son surveillant; |
(i) in respect of an offender released on day parole, on completion of the day parole, return to the penitentiary from which the offender was released on the date and at the time provided for in the release certificate. |
i) s'il est en semi-liberté, il doit, dès la fin de sa période de semi-liberté, réintégrer le pénitencier d'où il a été mis en liberté à l'heure et à la date inscrites à son certificat de mise en liberté. |
(2) For the purposes of subsection 133(2) of the Act, every offender who is released on unescorted temporary absence is subject to the following conditions, namely, that the offender |
(2) Pour l'application du paragraphe 133(2) de la Loi, les conditions de mise en liberté qui sont réputées avoir été imposées au délinquant dans tous les cas de permission de sortir sans surveillance sont les suivantes : |
(a) on release, travel directly to the destination set out in the absence permit respecting the offender, report to a parole supervisor as directed by the releasing authority and follow the release plan approved by the releasing authority; |
a) dès sa mise en liberté, le délinquant doit se rendre directement au lieu indiqué sur son permis de sortie, se présenter à son surveillant de liberté conditionnelle selon les directives de l'autorité compétente et suivre le plan de sortie approuvé par elle; |
(b) remain in Canada within the territorial boundaries fixed by the parole supervisor for the duration of the absence; |
b) il doit rester au Canada, dans les limites territoriales spécifiées par son surveillant pendant toute la durée de la sortie; |
(c) obey the law and keep the peace; |
c) il doit respecter la loi et ne pas troubler l'ordre public; |
(d) inform the parole supervisor immediately on arrest or on being questioned by the police; |
d) il doit informer immédiatement son surveillant en cas d'arrestation ou d'interrogatoire par la police; |
(e) at all times carry the release certificate and the identity card provided by the releasing authority and produce them on request for identification to any peace officer or parole supervisor; |
e) il doit porter sur lui à tout moment le permis de sortie et la carte d'identité que lui a remis l'autorité compétente et les présenter à tout agent de la paix ou surveillant de liberté conditionnelle qui lui en fait la demande à des fins d'identification; |
(f) report to the police if and as instructed by the releasing authority; |
f) le cas échéant, il doit se présenter à la police, à la demande de l'autorité compétente et selon ses directives; |
(g) return to the penitentiary from which the offender was released on the date and at the time provided for in the absence permit; |
g) il doit réintégrer le pénitencier d'où il a été mis en liberté à l'heure et à la date inscrites à ce permis; |
(h) not own, possess or have the control of any weapon, as defined in section 2 of the Criminal Code, except as authorized by the parole supervisor. |
h) il ne doit pas être en possession d'arme, au sens de l'article 2 du Code criminel, ni en avoir le contrôle ou la propriété, sauf avec l'autorisation de son surveillant. |