Digests

De Luca v. Canada (Attorney General)

T-1340-02

2003 FCT 261, Martineau J.

28/2/03

19 pp.

Judicial review of decision by the Correctional Service of Canada (the Service) applicant not eligible for accelerated parole review under Corrections and Conditional Release Act, with application for mandamus ordering Service to review his case for purpose of referral to National Parole Board (the Board)--Court must determine whether Service erred in law or otherwise refused to carry out its legal duty by determining applicant not eligible for accelerated parole review and by refusing to review his case under Act, s. 126(2) for purpose of referral to Board under Act, s. 126--Applicant could have disputed Service's decision by way of grievance--Failure to file such grievance not fatal to applicant--Point at issue: correct interpretation of scope of Act, s. 125(1)(a)(vi) which refers to "criminal organization offence" within meaning of Criminal Code (The Code), s. 2--Applicant convicted of offence under Code, s. 465 as result of participation in conspiracy to import cocaine--According to record, applicant never prosecuted for commission of offence referred to in Code, s. 467.1, nor convicted by court of "criminal organization offence" within meaning of Code, s. 2--Respondent submitting can reasonably be inferred that specific offence for which applicant convicted, conspiracy, therefore "for the benefit of, at the direction of or in association with criminal organization" and that Service's decision not to consider applicant eligible for accelerated parole review has valid basis in fact and in law--Court is unable to adopt respondent's argument since Service bases itself on administrative interpretation of scope of Act, s. 125(1)(a)(vi) that is erroneous and contrary to Act--Service's decision patently unreasonable--Absent conviction by court on any of offences expressly indicated in Act, s. 125(1) and with exception of cases expressly provided for in Act or Code, clear that Act, ss. 125, 126 apply automatically to offenders sentenced or transferred for first time to penitentiary, as herein--Service can deprive offender of eligibility for day parole provided in Act, ss. 119, 119.1, only in compliance with principles of fundamental justice and any provision of Act applicable in that case--Would have to be some provision otherwise more specific than present provisions of Act to allow Service to exclude from accelerated parole review, on own initiative and a posteriori, offender who has not first been convicted of "criminal organization offence" under Act by independent, impartial court--Applicant therefore eligible for accelerated parole review, and under Act, s. 125(2), Service required to review applicant's case for purpose of referral to Board for determination under Act, s. 126--Applicant therefore entitled to relief sought in application for judicial review--Application allowed--Corrections and Conditional Release Act, S.C. 1992, c. 20, ss. 119 (as am. by S.C. 1995, c. 22, ss. 13, 18; c. 42, ss. 33, 69; 1997, c. 17, s. 20; 2000, c. 24, s. 37), 119.1 (as enacted by S.C. 1997, c. 17, s. 21), 125(1)(a)(vi) (as am by S.C. 1995, c. 42, s. 39; 1997, c. 17, s. 24; 1999, c. 5, s. 53), 125(2), 126 (as am. by S.C. 1995, c. 42, s. 40)--Criminal Code, R.S.C., 1985, c. C-46, ss. 2 "criminal organization offence" (as am. by S.C. 1997, c. 23, s. 1), 465 (as am. by R.S.C., 1985 (1st Supp.), c. 27, s. 61; S.C. 1998, c. 35, s. 121), 467.1 (as enacted by S.C. 1997, c. 23, s. 11; 2001, c. 32, s. 27).