Federal Court Decisions

     T-168-97

BETWEEN:

     HUSSEIN DAOUD

     Applicant

     - and -

     ATTORNEY GENERAL OF CANADA

     Respondent

     REASONS FOR ORDER

Nadon J.:

     The applicant, a Lebanese citizen, is in his early fifties. On December 22, 1987 he was arrested in Montreal on drug charges. On March 29, 1989 the applicant was found guilty, following a trial without jury, of conspiracy to traffic, trafficking and possession of narcotics. On May 3 1989, the applicant was sentenced to 18 years imprisonment.

     On October 10, 1990, the applicant filed an application for full parole "by exception for deportation" pursuant to subsection 11.1(1) of the Parole Act , R.S.C. 1985, c. P-2 (no longer in force) (the "Act"). On November 2, 1990, Immigration Canada issued a deportation order against the applicant.

     On March 8, 1991, the National Parole Board (the "NPB") heard his application for full parole. The NPB reserved its decision pending the receipt of information on a number of issues. On June 27, 1991, the NPB further reviewed the applicant"s application and again reserved its decision. The reason given to the applicant for the decision is as follows:

Mr. Daoud, after today"s hearing, the NPB has decided to take a reserved decision awaiting the following information:

a written report from the RCMP assessing your role and your implication to [sic] the crimes for which you have been sentenced for 18 years in [sic] February 3, 1989 and to any prior illicite [sic] drug activities before your December 22, 1987 arrestation.

This report must include a written confirmation of the Drug Enforcement Agency of the USA supporting the fact that Mr. Daoud is highly regarded as a [sic] international drug dealer.

     On October 30, 1991, the NPB, following a further hearing review, refused the applicant"s application for full parole for deportation to Lebanon.

     On February 3, 1995, the applicant became eligible for regular full parole. A hearing was scheduled by the NPB for January 1996. On October 18, 1995 the applicant wrote to the NPB requesting that the hearing be postponed "pending the resolution of my medical treatment and a Decision on my Appeal from conviction, ..."¹. The NPB, in response to the applicant"s letter, advised him that a new hearing had been set for January 1997.

     On May 29, 1996, the applicant requested that his case management officer, Joseph Daou, ask the NPB to review his case for full parole for deportation. The notice given to Mr. Daou by the applicant is as follows:

3. This is a " NOTICE " that I am interested in expediting my deportation formalities to return to my family and country to look after my brain tumor case. I am asking the NPB for a decision on file in view of the fact that my case is a first time offender, no violence, and there is an outstanding deportation order against me since 1990. My health condition does not permit me to attend a hearing and I have nothing to add to the reasons that were mentioned in two previous applications for parole that are on file. Kindly notify Immigration Canada that I am available to be deported as soon as possible.

     On June 19, 1996, the applicant filed an application for full parole for deportation. In a letter dated June 19, 1996, the applicant advised the NPB that he had given notice of his request to his case management officer on May 29, 1996. By his letter, the applicant further advised the NPB that it was his position that he was entitled to an accelerated parole review, a process introduced under the Corrections and Conditional Release Act, S.C. 1992, c. 20 (hereinafter the "CCRA"). He concludes his letter as follows:

I am asking for a Decision on file because the NPB are fully aware of my case and my health problems, and; my trial transcripts and 2 previous Applications for parole (prior to 92.11.01) are in your records and I do not have anything to add, furthermore, I believe that my brain tumor does not permit me to attend a hearing, with or without a lawyer.

I am hopeful that the NPB take into consideration section 121.(1)(b) & (c) of the ACT with a touch of a humanitarian approach.

     On June 27, 1996, the NPB wrote to the applicant to advise him that it was in receipt of his letter of June 19, 1996 and the enclosed application for parole. The NPB also advised the applicant that it would examine his case on file as he had requested. Finally, the NPB advised the applicant that he could not apply for accelerated parole review pursuant to sections 125 and 126 of the CCRA since subsection 225(2) thereof made it clear that where an offender"s case had been reviewed for full parole under the former Act, the accelerated parole review process under sections 125 and 126 did not apply. The NPB then concluded its letter by stating that "we have placed your letter on file for the attention of the Board members who will review your case".

     On July 23, 1996 the applicant"s case management officer issued a rapport récapitulatif sur l"évolution du cas. At pages 6 and 7 of his report Mr. Daou concludes as follows:

Therefore we have two (2) choices. We may chose keep [sic] the subject incarcerated for punitive measures only, with the unrealistic hope that he will change his version before his Statutory Release date. Or, we should recommend Full parole for deportation by, as demonstrated before, considering the low risk of re-offending and the fact that the subject"s eight and a half years of incarceration under his medical condition and the distance from his community resources have and will continue to be a deterrent factor.

This CMT chooses to recommend Full Parole for deportation. Of course part of this recommendation is for humanitarian reasons. The subject is suffering from a brain tumor which is stable at the moment, but could deteriorate. However, this CMT would not have made this recommendation without taking into consideration the risk factor, which in this case is, for a good part, the deterrent effect of many years of incarceration.

12 - RECOMMENDATIONS:

1.      Full parole for deportation effective immediately.

Destination : Lebanon.

Expiration : 2007-02-02.

     On July 30, 1996 the NPB, notwithstanding the favourable recommendation of Mr. Daou, refused to grant to the appellant full parole. At pages 3 and 4 of its decision, the NPB writes:

You apply for full parole for the purpose of deportation. You want to reunite with your family. You wish to follow psychological therapy and arrange for a professional treatment of a confirmed case of life threatening tumor.

REASON FOR DECISION(S)

The Board does not have the required elements to conclude today that you have changed significantly during your incarceration. You did not make progress through the institutional programs and you continue to deny your implication in the crimes for which you were found guilty.

Therefore, the Board concludes that you do not meet its criterion to be granted full parole.

     On August 20, 1996 the applicant filed an application for reexamination of the NPB"s decision pursuant to subsection 147(1) of the CCRA which provides:

147. (1) An offender may appeal a decision of the Board to the Appeal Division on the ground that the Board, in making its decision,

( a) failed to observe a principle of fundamental justice;

( b) made an error of law;

( c) breached or failed to apply a policy adopted pursuant to subsection 151(2);

( d) based its decision on erroneous or incomplete information; or

( e) acted without jurisdiction or beyond its jurisdiction, or failed to exercise its jurisdiction.

     The grounds of appeal, as stated in the applicant"s application, are as follows:

1.      That the BOARD erred in law in excluding Appellant from the Application of sections 125 & 126-Accelerated Parole Reviews of the ACT ,in [sic] violation of Article 15.(1) of the Canadian Charter of Rights & Freedoms,

2.      That the BOARD erred in law in its wrongful application of section 225 of the ACT ,thus [sic] committing an act of racism and discrimination in violation of Article 15.(1) of the Canadian Charter of Rights and Freedoms,

3.      That the BOARD erred in law in misunderstanding section 223 of the ACT ,thus [sic] made an error of law,

4.      That the BOARD erred in law in failing to recognize section 121 of the ACT ,and [sic] therefore failed to apply the law and based its decision on erroneous assumptions and personal interpretations,

5.      That the BOARD erred in law in adopting a criteria that is unlawful and illegal and therefore acted without jurisdiction or beyond its jurisdiction and failed to exercise its jurisdiction,

     On December 18, 1996 the Appeal Division dismissed the applicant"s appeal and affirmed the decision rendered on July 30, 1996. It is the appeal decision which is the subject of the applicant"s judicial review proceedings.

     The first ground asserted by the applicant is that the Appeal Division erred in concluding that sections 125 and 126 of the CCRA could not be relied on by the applicant. These sections read as follows:

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)(a), 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, or

(iv) an offence set out in Schedule II in respect of which an order has been made under section 741.2 of the Criminal Code;

( b) serving a life sentence imposed otherwise than as a minimum punishment; or

( c) whose day parole has been revoked.

(1.1) For greater certainty, this section and section 126

( a) apply to an offender referred to in subsection (1) who, after being sentenced, committed or transferred to penitentiary for the first time, is sentenced in respect of an offence, other than an offence referred to in paragraph (1)(a), that was committed before the offender was sentenced, committed or transferred to penitentiary for the first time; and

( b) do not apply to an offender referred to in subsection (1) who, after being sentenced, committed or transferred to penitentiary for the first time, commits an offence under an Act of Parliament for which the offender receives an additional sentence.

(2) The Service shall, at the time prescribed by the regulations, review the case of an offender to whom this section applies for the purpose of referral of the case to the Board for a determination under section 126.

(3) A review made pursuant to subsection (2) shall be based on all reasonably available information that is relevant, including

( a) the social and criminal history of the offender obtained pursuant to section 23;

( b) information relating to the performance and behaviour of the offender while under sentence; and

( c) any information that discloses a potential for violent behaviour by the offender.

(4) On completion of a review pursuant to subsection (2), the Service shall, within such period as is prescribed by the regulations preceding the offender's eligibility date for full parole, refer the case to the Board together with all information that, in its opinion, is relevant to the case.

(5) The Service may delegate to the correctional authorities of a province its powers under this section in relation to offenders who are serving their sentences in provincial correctional facilities in that province.

126. (1) The Board shall review without a hearing, at or before the time prescribed by the regulations, the case of an offender referred to it pursuant to section 125.

(2) Notwithstanding section 102, if the Board is satisfied that there are no reasonable grounds to believe that the offender, if released, is likely to commit an offence involving violence before the expiration of the offender's sentence according to law, it shall direct that the offender be released on full parole.

(3) If the Board does not direct, pursuant to subsection (2), that the offender be released on full parole, it shall report its refusal to so direct, and its reasons, to the offender.

(4) The Board shall refer any refusal and reasons reported to the offender pursuant to subsection (3) to a panel of members other than those who reviewed the case under subsection (1), and the panel shall review the case at the time prescribed by the regulations.

(5) Notwithstanding section 102, if the panel reviewing a case pursuant to subsection (4) is satisfied as described in subsection (2), the panel shall direct that the offender be released on full parole.

(6) An offender who is not released on full parole pursuant to subsection (5) is entitled to subsequent reviews in accordance with subsection 123(5).

(7) In this section, "offence involving violence" means murder or any offence set out in Schedule I, but, in determining whether there are reasonable grounds to believe that an offender is likely to commit an offence involving violence, it is not necessary to determine whether the offender is likely to commit any particular offence.

(8) Where the parole of an offender released pursuant to this section is terminated or revoked, the offender is not entitled to another review pursuant to this section.

     In dealing with the applicant"s argument, section 225 is also relevant and it provides:

225. (1) Subject to subsection (1.1), paragraph 119(1)(c) does not apply in respect of an offender who is serving a sentence imposed before November 1, 1992, but the corresponding provisions of the former Act and the regulations made under that Act apply in respect thereof as if they were provisions of this Act.

(1.1) Paragraph 119(1)(c) applies in respect of an offender who is serving a sentence imposed before November 1, 1992 where the offender receives an additional sentence on or after that day and, as a result, the offender is deemed, pursuant to section 139, to have been sentenced to one sentence.

(2) Sections 125 and 126 do not apply to an offender serving a sentence on the commencement day whose case was reviewed under the former Act during that sentence for the purpose of full parole.

     The position taken by the NPB and confirmed by the Appeal Division is that by reason of subsection 225(2), the applicant is not eligible to accelerated parole review. In my view, the Appeal Division did not commit any error in so concluding.

     It cannot be disputed that the applicant"s case, on the coming into force of the CCRA , had been reviewed under the former Act for the purpose of full parole. In subsection 99(1) of the CCRA "parole" is defined as being "full parole or day parole". "Full parole" is defined as being "the authority granted to an offender by the Board or a Provincial Parole Board to be at large during the offender"s sentence".

     Subsection 120(1) of the CCRA provides that an offender becomes eligible for full parole when he has served "the lesser of 1/3 of the sentence and 7 years". Subsection 121(1) sets out four exceptions to the period of ineligibility for full parole under subsection 120(1). These exceptions are the offender who is terminally ill, the offender whose physical or mental health is likely to suffer serious damage if he continues to be held in confinement, the offender for whom continued confinement would constitute an excessive hardship that was not reasonably foreseeable at the time he was sentenced, and the offender who is the subject of an order to be surrendered under the Extradition Act or the Fugitive Offenders Act and to be detained until surrendered. An offender who falls within these four exceptions does not have to serve "the lesser of 1/3 of his sentence and 7 years" before becoming eligible for parole.

     I now turn to the equivalent provisions under the former Act. Section 2 of the Parole Act defined "parole" as the "authority granted under this Act to an inmate to be at large during the inmate"s term of imprisonment and includes day parole". Section 2 of the Parole Regulations defined "full parole" as "parole other than day parole". The section also defined "eligibility date" as "the date on which an inmate has completed serving the portion of the term of imprisonment required to be served by that inmate in accordance with these regulations before full parole, day parole or temporary absence, as the case may be, may be granted or authorized".

     Sections 5 to 10 of the Parole Regulations set out the terms of imprisonment which an inmate had to serve before becoming eligible for full parole and day parole. In the case of full parole, section 5 provided that an inmate had to serve the lesser of 1/3 of his sentence or 7 years before becoming eligible for full parole. Under the heading of "Eligibility in Special Cases", subsection 11.1(1) of the Parole Regulations provided that sections 5 and 9 do not apply to an inmate who is, inter alia , the subject of a deportation order under the Immigration Act, 1976, where the order requires that the inmate be detained until deported. Section 11.1(1) reads as follows:

11.1 (1) Subject to subsection (2), sections 5 and 9 do not apply to an inmate:

(a)      who is terminally ill;

(b)      whose physical or mental health is likely to suffer serious damage if the inmate continues to be held in confinement;

(c)      for whom the penalty constitutes an excessive hardship that was not reasonably foreseeable at the time the inmate was sentenced;

(d)      who completed a program recommended by the sentencing court or has satisfied specific objectives of the sentence expressly stated by the sentencing court; or

(e)      who is the subject of a deportation order under the Immigration Act, 1976 or an order to be surrendered under the Extradition Act or the Fugitive Offenders Act, where the order requires that the inmate be detained until deported or surrendered, as the case may be.

     It should be pointed out that under the CCRA, no exception is made for the inmate who is the subject of a deportation order under the Immigration Act.

     As the applicant was convicted before the CCRA came into force, he was subject to the provisions of the Parole Act. That is why the applicant filed, on October 10, 1990, an application for full parole by exception for deportation. That application resulted in the decision rendered by the NPB on October 30, 1991, pursuant to which the NPB refused to grant to the applicant full parole.

     The issue which is now before me is whether the parole hearing granted to the applicant following his application of October 10, 1990, constitutes a review of his case under the former Act for the purpose of full parole. In other words, does subsection 225(2) apply to the facts of this case? In my view, it does.

     The purpose of the applicant"s application was to convince the NPB that he should be set free, albeit in order to be deported to Lebanon, during his term of imprisonment. The purpose of subsection 11.1(1) of the Parole Regulations was to allow an inmate who was the subject of a deportation order under the Immigration Act to become eligible for full parole notwithstanding that he had not served the term of imprisonment prescribed by section 5. Thus the applicant"s case was reviewed under the Parole Act for the purpose of full parole.

     The second argument made by the applicant concerning subsection 225(2) of the Act was that section 225 is unconstitutional. During the hearing, counsel for the respondent pointed out to me that a constitutional argument was not available to the applicant because he had not complied with section 57 of the Federal Court Act which provides that notice of an intention to attack the constitutionality of an Act of Parliament must be given, at least 10 days prior to the hearing, to the Attorney General of Canada and to the Attorneys General of the Provinces. No such notices were given by the applicant and, as a result, I informed the applicant during the hearing that I would not consider his arguments with respect to the constitutionality of section 225 of the Act.

     The third submission made by the applicant was that he did not receive proper disclosure as required by section 141 of the CCRA which provides that:

141. (1) At least fifteen days before the day set for the review of the case of an offender, the Board shall provide or cause to be provided to the offender, in writing, in whichever of the two official languages of Canada is requested by the offender, the information that is to be considered in the review of the case or a summary of that information.

(2) Where information referred to in subsection (1) comes into the possession of the Board after the time prescribed in that subsection, that information or a summary of it shall be provided to the offender as soon as is practicable thereafter.

(3) An offender may waive the right to be provided with the information or summary referred to in subsection (1) or to have it provided within the period referred to, but where an offender has waived that period and any information is received by the offender, or by the Board, so late that the offender or the Board is unable to sufficiently prepare for the review, the offender is entitled to, or the Board may order, a postponement of the review for such reasonable period as the Board determines.

(4) Where the Board has reasonable grounds to believe

( a) that any information should not be disclosed on the grounds of public interest, or

( b) that its disclosure would jeopardize

(i) the safety of any person,

(ii) the security of a correctional institution, or

(iii) the conduct of any lawful investigation,

the Board may withhold from the offender as much information as is strictly necessary in order to protect the interest identified in paragraph (a) or (b).

     The applicant"s argument is that the progress summary report prepared by his case manager, Joseph Daou, was issued on July 23, 1996, and the decision of the NPB was rendered on July 30, 1996. Thus, the applicant submits that he did not receive the progress summary report fifteen days before the date set for the examination of his case. In my view, this argument cannot succeed. I agree entirely with the Appeal Division"s reasons in dismissing the applicant"s argument. At page 4 of its decision, the Appeal Division writes:

We note that by letters dated May 29, 1996 and June 19, 1996, you requested a decision for full parole by way of file review. In both those letters you stated that you had nothing to add to the information that was already available to the Board. In a casework memo, your case management officer confirms that he met with you on July 22, 1996 to tell you that the progress summary was almost ready, and that the recommendation would be for full parole. He asked you again if you were sure that you did not want to make written representations, and you again replied no. The Progress Summary was prepared on July 23, 1996, and shared with you. On receiving the information, and being advised that there would be no written representations from you, the Board members conducted their review and made their decision on July 30, 1996. The Appeal Division finds that it was reasonable for the Board to proceed as described, and that you made an informed decision to waive your hearing and to not make submissions in writing.

     Another argument advanced by the applicant is that he is entitled to invoke section 223 of the CCRA which provides:

223. A review of the case of an offender begun under the former Act shall be continued after the commencement day as if it had been begun under this Act.

     Once again, I agree with the Appeal Division. At the time of the coming into force of the CCRA, the appellant"s case was not under review and thus section 223 is of no avail to the applicant.

     The applicant also argued that because of his serious health condition, he is eligible for parole "at any time". The Appeal Division dismissed that argument "because your full parole eligibility date has passed". By that, the Appeal Division meant that since the applicant had been eligible for full parole since February 3, 1995, there was no reason to resort to subsection 121(b) of the Act.

     The last argument advanced by the applicant is that the NPB"s refusal to grant him full parole is premised entirely on the fact that he has refused to admit his guilt to the offense for which he was convicted. The applicant further submits that the NPB"s refusal constitutes, in these circumstances, a punitive measure.

     The Appeal Division dealt with the applicant"s argument as follows, at pages 4 and 5 of its reasons:

After having carefully reviewed your file, the Appeal Division concludes that the conclusions of the Board are reasonable and well-founded. We note that the Board considered the CSC recommendation, but the members were not obligated to follow it, and they made their decision based on their evaluation of your risk, taking into account all the information available.

     The applicant has not convinced me that the Appeal Division has committed a reviewable error. It should not be forgotten that in examining the applicant"s case, the NPB had to consider the relevant circumstances in light of section 102 of the CCRA which provides that:

102. The Board or a provincial parole board may grant parole to an offender if, in its opinion,

( a) the offender will not, by reoffending, present an undue risk to society before the expiration according to law of the sentence the offender is serving; and

( b) the release of the offender will contribute to the protection of society by facilitating the reintegration of the offender into society as a law-abiding citizen.

     The NPB"s conclusion, although brief, satisfies me that it did not refuse the applicant"s application for full parole simply because he had not admitted his guilt to the offence. On the evidence before it, it is my view that it was open to the NPB to conclude as it did and therefore I cannot agree with the applicant"s submission that the decision rendered by the NPB is unreasonable. That was also the view of the Appeal Division.

     I cannot conclude that the Appeal Division, in affirming the decision of the NPB, made an error of fact or of law which would allow me to intervene. For these reasons, the applicant"s application for judicial review shall be dismissed.

     "MARC NADON"

     JUDGE

Ottawa, Ontario

June 23, 1997

     T-168-97

Ottawa, Ontario, this 23rd day of June, 1997.

Before the Honourable Mr. Justice Marc Nadon

BETWEEN:

     HUSSEIN DAOUD

     Applicant

     - and -

     ATTORNEY GENERAL OF CANADA

     Respondent

     ORDER

         This application for judicial review is denied.

     "MARC NADON"

     JUDGE

__________________

     ¹ The applicant appealed his conviction on May 3, 1989 and that appeal was dismissed by the Quebec Court of Appeal on May 27, 1996.