Federal Court Decisions

Date: 19971212

Docket: T-1239-97

BETWEEN:

     DOUGLAS JAMES SAGER,

     Plaintiff,

     - and -

     HER MAJESTY THE QUEEN,

     Defendant.

     REASONS FOR JUDGMENT

DUBÉ J:

[1]      This motion launched by the defendant seeks a summary judgment dismissing the plaintiff's action on the ground that there is no genuine issue for trial under Rule 432.3 of the Federal Court Rules.

[2]      The action involves a claim for damages by the plaintiff for illegal detention for the period from May 30 to November 17, 1996 on the basis that the National Parole Board ("the Board") acted without jurisdiction in revoking the plaintiff's statutory relief on June 17, 1996. It is common ground that on March 18, 1996, the plaintiff was released from the Millhaven Assessment Unit on statutory release pursuant to section 127 of the Corrections and Conditional Release Act¹ ("the Act"). On April 30, 1996, a warrant was issued to suspend his statutory release and to apprehend him pursuant to subsection 135(1) of the Act based upon information received from the Brantford detachment of the Ontario Provincial Police. He was thus recommitted to custody and transferred to the Millhaven Assessment Unit on May 17, 1996.

[3]      On that date, May 17, 1996, a Special Report concerning his suspension was prepared but not forwarded to the Board until June 13, 1996, or 13 days outside the 30 day period stipulated under paragraph 135(3)(b) of the Act.

[4]      Subsequently, the plaintiff was charged with possession of stolen property contrary to section 354 of the Criminal Code resulting in the Board revoking his statutory release directly on June 17, 1996, pursuant to subsection 135(7) of the Act. That subsection provides that, independently of subsections (1) to (6), the Board may revoke the parole or statutory release of an offender if it is satisfied that his release would constitute an undue risk to society.

[5]      The plaintiff's post revocation hearing was postponed at his request to allow him to respond to the new criminal charges aforementioned. The hearing was subsequently held on November 14, 1996, at which time the Board decided to cancel the revocation of the plaintiff's statutory release.

[6]      It is also common ground that at all material times the plaintiff was not detained beyond his initial sentence of 1,491 days; that he did not appeal the decision of the Board of June 17, 1996, and did not file an application for judicial review before launching the instant action in damages.

[7]      The first issue to be resolved is whether the Board lost its jurisdiction because the Correctional Service of Canada failed to submit a post suspension report within 30 days, as stipulated in the Act, and also because the Board failed to grant the plaintiff a post suspension hearing, as required pursuant to subsections 135(5) and 140(1) of the Act. The relevant provisions of section 135 read as follows:

135. (1) A member of the Board or a person, designated by name or by position, by the Chairperson of the Board or by the Commissioner, when an offender breaches a condition of parole or statutory release or when the member or person is satisfied that it is necessary and reasonable to suspend the parole or statutory release in order to prevent a breach of any condition thereof or to protect society, may, by warrant,

(a) suspend the parole or statutory release;

(b) authorize the apprehension of the offender; and

...

(3) The person who signs a warrant pursuant to subsection (1) or any other person designated pursuant to that subsection shall, forthwith after the recommitment of the offender, review the offender's case and

...

(b) in any other case, within thirty days after the recommitment or such shorter period as the Board directs, cancel the suspension or refer the case to the Board together with an assessment of the case stating the conditions, if any, under which the offender could in that person's opinion reasonably be returned to parole or statutory release.

...

(5) The Board shall, on the referral to it of the case of an offender serving a sentence of two years or more, review the case and, within the period prescribed by the regulations, unless the Board grants an adjournment at the offender's request,

...

(7) Independently of subsections (1) to (6), where the Board is satisfied that the continued parole or statutory release of an offender would constitute an undue risk to society by reason of the offender reoffending before the expiration of the sentence according to law, the Board may, at any time,

(a) where the offender is no longer eligible for the parole or entitled to be released on statutory release, terminate or revoke the parole or statutory release; or

(b) where the offender is still eligible for the parole or entitled to be released on statutory release,

(i) terminate the parole or statutory release, where the undue risk to society is due to circumstances beyond the offender's control, or

(ii) revoke the parole or statutory release, where the undue risk to society is due to circumstances within the offender's control.

[8]      The plaintiff argues that the Act requires that a person who issued the suspension warrant "shall" refer the case to the Board within 30 days after the recommitment: the word "shall" is mandatory and the Act also mandates a hearing within 90 days of the offender's return to federal custody. Section 11 of the Interpretation Act², stipulates that the expression "shall" is to be construed as imperative.

[9]      Under the Act, the member of the Board who signs a warrant pursuant to subsection 135(1), shall forthwith after the recommitment of the offender review the offender's case. Where the offender is serving a sentence of greater than two years, as is the case here, within 30 days after the recommitment, or such shorter period as the Board directs, the member shall cancel the suspension or refer the case to the Board together with an assessment of the case stating the conditions, if any, under which the offender could, in that person's opinion, reasonably be returned to parole or statutory release, as stipulated under paragraph 135(3)(b) of the Act.

[10]      However, as provided in subsection 135(7) of the Act, independently of subsections (1) to (6), where the Board is satisfied that the continued parole or statutory release of an offender would constitute an undue risk to society, by reason of the offender reoffending before the expiration of the sentence, the Board may revoke the parole or statutory release. It follows that the Board still retains its jurisdiction to do so. The mere fact that all the steps indicated in subsections 135(1) to 135(6) were not fulfilled does not deprive the Board of its jurisdiction, as clearly stipulated in subsection 135(7). That conclusion is inescapable from a plain reading of the subsection.

[11]      Of course, the Board's jurisdiction becomes extinct once the offender's original sentence has expired, but within the life of the sentence the Board retains the jurisdiction to revoke an offender's statutory release under paragraph 107(1)(b) and subparagraph 135(7)(b)(ii) of the Act, even though the Board has not strictly complied with the time requirements stipulated in paragraph 135(3)(b) of the Act³.

[12]      The second issue to be addressed is whether the proper course of action for the plaintiff would not have been to appeal the Board's June 17, 1996 decision pursuant to section 147 of the Act or to make an application for judicial review pursuant to section 18 of the Federal Court Act, rather than launching an action in damages against the Queen.

[13]      Subsections 147(1) and (4) read as follows:

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.

...

(4) The Appeal Division, on the completion of a review of a decision appealed from, may

(a) affirm the decision;

(b) affirm the decision but order a further review of the case by the Board on a date earlier than the date otherwise provided for the next review;

(c) order a new review of the case by the Board and order the continuation of the decision pending the review; or

(d) reverse, cancel or vary the decision.

[14]      If the plaintiff felt that the Board acted without jurisdiction, the proper recourse would have been for him to appeal under paragraph 147(1)(e) and the Appeal Division may have reversed the decision under paragraph 147(4)(d). After all, as mentioned by my colleague McKeown, J. in Fehr v. National Parole Board et al.⁴, when an appeal route is provided it ought to be pursued.

[29] The purpose of having an appeal route is to avoid a multiplicity of proceedings before the court. As such, where an appeal route exists, it should, in general, be pursued to the extent that it may be, before seeking judicial review. I wish to make clear, however, that a decision may only be appealed to the extent provided for in the legislation. Judicial review may still be available for issues which may not be properly appealed.

[15]      As to judicial review, under the Federal Court Act, an application against a decision of a Federal Board must be made within 30 days after the decision was first communicated to the party affected. It appears that the plaintiff was between lawyers at the time. His present solicitor is his third lawyer: all three in succession have been retained through legal aid. However, even beyond the statutory 30 day limit, an application could have been made to the Court for extension of time. If successful at the judicial review level, the plaintiff could then have launched an action for damages. That point was well covered by my colleague Cullen, J. in Zubi v. Canada⁵ as follows:

[9] The plaintiff's statement of claim seeks declaratory relief against the decision to transfer the plaintiff to a medium security facility, to declare him to be a minimum security inmate, as well as damages in the amount of $5,000. It is clear from the statement of claim that the relief sought is of the type contemplated by s. 18 and not simply damages against the Crown as counsel alleges. Thus, the proper course of action for the plaintiff would be to bring an application for judicial review pursuant to ss. 18 and 18.1, and then, if successful, bring an action for damages. In its notice of motion, the defendant states that it has no objection to allowing such time as required for the plaintiff to file such an application.

(my emphasis)

[16]      The third point in issue is whether or not, in the absence of bad faith on the part of the Board, the plaintiff could have been successful in a civil action against the Queen.

[17]      As a starting point, the Board has both exclusive jurisdiction and absolute discretion under paragraph 107(1)(b) of the Act "to terminate or to revoke the parole or statutory release of an offender, whether or not the offender is in custody under a warrant of apprehension issued as a result of the suspension of the parole or statutory release". Section 154 of the Act provides that "no criminal or civil proceedings lie against a member of the Board for anything done or said in good faith in the exercise or purported exercise of the functions of a member of the Board".

[18]      Section 10 of the Crown Liability and Proceedings Act⁶ stipulates that "no proceedings lie against the Crown ... in respect of any act or omission of a servant ... unless the act or omission would apart from the provisions of this Act have given rise to a cause of action in tort against that servant ...". Thus, it follows that no action would lie against the Queen unless a member of the Board would have acted in bad faith in the exercise of its functions⁷.

[19]      There is no evidence, and indeed no allegation, from the plaintiff to the effect that the Board, or any member thereof, would have acted in bad faith. The sole evidence related to the delay to forward the Special Report prepared by the Correctional Service of Canada to the Board is to be found in the affidavit of Barry Dickson, a Senior Case Reviewer with the Board. Mr. Dickson avers that a Contract Case Worker with the Correctional Service of Canada prepared on May 17, 1996, a Special Report concerning the suspension of the plaintiff's statutory relief but "on account of a computer error, did not forward the report to the NPB until about June 13, 1996, or thirteen days outside the time period". Of course, that does not constitute bad faith.

[20]      Consequently, I am satisfied that there is no genuine issue for trial in this matter and I hereby grant summary judgment to the defendant dismissing the plaintiff's action, with costs.

    

     Judge

OTTAWA, ONTARIO

December 12, 1997

__________________

¹      S.C. 1992, c. 20.

²      R.S.C. 1985, c. I-21.

³      See McClarty (1988), 23 F.T.R. 127 at 131 (F.C.) affirmed [1990] F.C.J. 613 (F.C.A.) and Grabina and the Queen (1977), 34 C.C.C. (2d) 52 at 59 (Ont. H.C.).

⁴      (1995), 93 F.T.R. 161 at 171.

⁵      (1993), 71 F.T.R. 168 at 170.

⁶      R.S.C. 1985, c. C-50.

⁷      See Al's Steak House and Tavern Inc. v. Deloitte & Touche, [1997] O.J. No. 3046, Ontario Court of Appeal.