Federal Court


Charter of Rights

FUNDAMENTAL JUSTICE
Denying parole did not constitute, in and of itself, deprivation of liberty

Prisoner applied for judicial review of decision of Parole Board, Appeal Division, which upheld decision of Parole Board denying prisoner day and full parole for deportation. Prisoner was 52 year old UK citizen, who had lived in Canada since childhood but never obtained citizenship, serving life sentence for first degree murder of police officer. Murder occurred in 1983, while prisoner was unlawfully at large after having escaped from custody where he was detained for various robberies. Prisoner entered shopping mall with intention of robbing bank and noticed officer in food court, and shot him in chest, killing him. Prisoner took officer’s handgun, fired two additional shots in air and in food court’s crowd. Prisoner was arrested shortly thereafter at residence, where police found officer’s handgun, two loaded guns and sawed-off shotgun. Accused had previously been convicted for assault of peace officer, theft, possession of stolen property, mischief and failure to appear and had admitted to committing seven bank robberies. Since 1991, prisoner had been subject to deportation order. Prisoner had been denied parole each of several times he applied because he was found to pose undue risk. Prisoner appealed last such decision. Support for prisoner’s transfer to minimum security prison by case management team was withdrawn when prisoner became subject of ongoing criminal investigation. Prisoner argued that board erred in law and fettered its discretion in holding that “gradual and structured release” was “requirement” or pre-condition to granting of parole. Prisoner alleged that his deportable status barred him from any means to attain gradual and structured release. Application dismissed; no costs awarded. While board’s use of word “requirement” to designate “gradual and structured release” plan recommended by case management team might not have been most fortunate, it was not fatal and nothing in its decision suggested that it unlawfully fettered its discretion. Board noted that risk to society posed by release of prisoner had slowly decreased over time but it was such that full parole was not warranted at this point. While prisoner contended that his risk to society was now low, he did not allege that board made error on this point. Board’s decision was based on relevant statutory criteria and principles, was well reasoned and based on all information that was before it. Denying parole was merely modification of existing sentence and did not constitute, in and of itself, deprivation of liberty guaranteed by Charter.

Collins v. Canada (Attorney General) (May. 7, 2014, F.C., Richard Boivin J., File No. T-2243-12) 113 W.C.B. (2d) 309.

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