Date: 19981007
Docket: T-1675-97
BETWEEN:
Raymond Steele,
321 Ch. De L'Aéroport
La Macaza, Québec
J0T 1R0,
Applicant,
vs.
Canada (National Parole Board)
Complexe Guy Favreau, Tour Ouest
2 étage, 200 René-Lévesque
Montréal (Québec)
H2Z 1X4,
Respondent.
REASONS FOR ORDER
DUBÉ J:
[1] This application is for the judicial review of a decision of the Canada National Parole Board ("the Board") dated November 13, 1996, to the effect that the applicant was not entitled to escorted temporary absences for family contact.
1. Facts
[2] The applicant is a federal inmate at La Macaza Penitentiary in the Province of Québec. He has been incarcerated since January 18, 1985, after being found guilty of second degree homicide. He was given a ten year parole ineligibility life sentence.
[3] The applicant's appeal of the Board's decision was dismissed on July 9, 1997, by the Appeal Division of the Board. However, on October 15, 1997, (after the instant application was launched but before it was heard) the institutional head of the La Macaza Penitentiary authorized his requested escorted temporary absences pursuant to section 17 of the Corrections and Conditional Release Act.
2. Issues
[4] The first issue to be resolved is whether or not the "decision" of the Board is subject to judicial review. In the affirmative, the second issue is whether this application is now moot since the requested escorted temporary absences have now been granted. The third issue is whether the Board's decision may be quashed on any of the grounds for review under subsection 18.1(4) of the Federal Court Act.
3. Is the Board's decision subject to judicial review
[5] Subsection 17(1) of the Corrections and Conditional Release Act provides that temporary absences may be authorized by the institutional head (the warden of a penitentiary) to an inmate under certain conditions. The subsection reads as follows:
| 17. (1) Where, in the opinion of the institutional head, |
| (a) an inmate will not, by reoffending, present an undue risk to society during an absence authorized under this section, |
| (b) it is desirable for the inmate to be absent from penitentiary, escorted by a staff member or other person authorized by the institutional head, for medical, administrative, community service, family contact, personal development for rehabilitative purposes, or compassionate reasons, including parental responsibilities, |
| (c) the inmate's behaviour while under sentence does not preclude authorizing the absence, and |
| (d) a structured plan for the absence has been prepared, |
| the absence may, subject to section 746.1 of the Criminal Code, be authorized by the institutional head |
| (e) for an unlimited period for medical reasons, or |
| (f) for reasons other than medical, |
| (i) for a period not exceeding five days, or |
| (ii) with the Commissioner's approval, for a period exceeding five days but not exceeding fifteen days. |
| (my emphasis) |
[6] Section 746.1 of the Criminal Code stipulates that no absence without escort may be authorized, except with the approval of the Board, in respect of a person sentenced to imprisonment for life, without eligibility for parole, until the expiration of all but three years of the specified number of years of imprisonment. Subsections 746.1(1) and (2) read as follows:
| 746.1(1) Unless Parliament otherwise provides by an enactment making express reference to this section, a person who has been sentenced to imprisonment for life without eligibility for parole for a specified number of years pursuant to this Act shall not be considered for parole or released pursuant to a grant of parole under the Corrections and Conditional Release Act or any other Act of Parliament until the expiration or termination of the specified number of years of imprisonment. |
| (2) Subject to subsection (3), in respect of a person sentenced to imprisonment for life without eligibility for parole for a specified number of years pursuant to this Act, until the expiration of all but three years of the specified number of years of imprisonment, |
| (a) no day parole may be granted under the Corrections and Conditional Release Act; |
| (b) no absence without escort may be authorized under that Act or the Prisons and Reformatories Act; and |
| (c) except with the approval of the National Parole Board, no absence with escort otherwise than for medical reasons or in order to attend judicial proceedings or a coroner's inquest may be authorized under either or those Acts. |
| (my emphasis) |
[7] Clearly, section 746.1 does not apply to this applicant who has been incarcerated since January 18, 1985, with a ten year parole ineligibility. Thus, it was not for the Board but for the institutional head to decide whether or not escorted temporary absences ought to be granted to the applicant. Consequently, as alleged by the respondent, the Board was not exercising a jurisdiction provided by a federal act and was therefore "not acting as a federal board, commission or other tribunal" within the meaning of sections 2, 18 and 18.1 of the Federal Court Act. Section 2 of the Federal Court Act defines "federal board, commission or other tribunal" as meaning "any body or any person or persons having, exercising or purporting to exercise jurisdiction or powers conferred by or under an Act of Parliament or by or under an order made pursuant to a prerogative of the Crown".
[8] It follows that the "decision" of the Board is not a decision reviewable by this Court and it is not necessary therefore to pursue the other issues.
4. Disposition
[9] At the outset of the hearing of this judicial review application, I asked the applicant, who was representing himself, what he expected to achieve with his motion since the institutional head has already granted him escorted temporary absences and since he knows now that the authority to do so, in his case, rested with the institutional head and not the Board.
[10] He answered that he wanted the Board to be reprimanded for having published defamatory information about him to the media. According to the applicant, the Board released inflammatory material that ruined his life and accused him of being the leader of a satanical cult. He said that the Board had no authority to deal with his request for escorted temporary absences and, now that the Board was brought to account, it claims it only rendered an "opinion" and not a "decision". He alleges the Board was in contempt of his rights under the Charter, as it deceived him: the Board should be brought to task for having assumed an authority it did not possess and for having gone public with comments prejudicial to him. Because of the Board's so-called "decision", the applicant claims he spent two more years of his life in incarceration.
[11] If there is a wrong, there is a remedy. However, a judicial review is not the proper proceeding to deal with the applicant's allegations. It is not for the Court to provide legal advice, but counsel for the respondent suggested that an action against the Queen might be the appropriate recourse in the circumstances. Obviously, these very serious charges against the Board can only be established by way of factual evidence.
[12] Consequently, this application for judicial review is denied.
OTTAWA, Ontario
October 7, 1998
Judge