Date: 19980507
Docket: T-1654-97
BETWEEN:
TERRY FREDERICK ARMES
Applicant
- and -
THE NATIONAL PAROLE BOARD and
THE ATTORNEY GENERAL OF CANADA
Respondents
REASONS FOR ORDER
[Delivered from the Bench at Toronto, Ontario
Friday, April 24, 1998, as edited]
ROTHSTEIN J.:
[1] The issue in this judicial review is whether, in deciding to reincarcerate a parolee, the National Parole Board may take into account information relating to criminal charges arising while the individual was on parole. In this case, the applicant has now been convicted and sentenced to a term of imprisonment (to run concurrently with his life sentence) on at least one of the subsequent charges. By reason of subsection 135(9.1) of the Corrections and Conditional Release Act, S.C. 1992, c. 20, as amended, the applicant's parole was automatically revoked when he was convicted and ordered to be incarcerated.1 For that reason the issue in this case is now moot.
[2] However, the applicant, relying on Canada (Minister of Justice) v. Borowski, [1981] 2 S.C.R. 575, says the Court should decide the judicial review on its merits, notwithstanding its mootness, because there is an issue of sufficient public importance at stake.
[3] The applicant concedes that the jurisprudence (see Prasad v. Canada (National Parole Board) (1991), 51 F.T.R. 304) is to the effect that information relating to charges for which a conviction has not been entered is "relevant and reliable information and that its use in a detention hearing does not breach the respondent's duty to act fairly" provided the information is sufficiently specific to enable to the applicant to prepare his case. Further, subsection 101 of the Corrections and Conditional Release Act provides:
| 101. The principles that shall guide the Board and the provincial parole boards in achieving the purpose of conditional release are |
| . . . |
| (b) that parole boards take into consideration all available information that is relevant to a case, including the stated reasons and recommendations of the sentencing judge, any other information from the trial or the sentencing hearing, information and assessments provided by correctional authorities, and information obtained from victims and the offender; |
| . . . |
| [emphasis added] |
[4] The applicant admitted before the National Parole Board to committing at least one, and I infer both, of the offences with which he had been charged and which were considered by the Board. Re Dubeau and the National Parole Board (1980), 55 C.C.C. (2d) 553 (F.C.T.D.) at 557 makes it clear that such evidence is properly the subject of consideration by the Board.
[5] Notwithstanding all of this, the applicant argues that this Court should have regard to two new circumstances. The first is the enactment of subsection 135(9.1) of the Corrections and Conditional Release Act and the second is the decision of the Supreme Court of Canada in Mooring v. Canada (National Parole Board), [1996] 1 S.C.R. 75.
[6] Subsection 135(9.1) deals with the situation in which a parolee is convicted of and incarcerated for a subsequent offence. However, the issue in this case involves a subsequent charge for which no conviction has been entered at the time the National Parole Board considers information relating to the charge. Subsection 135(9.1) has no relevance to the circumstances in this case.
[7] Secondly, in Mooring, the Supreme Court of Canada held that the National Parole Board is not a court of competent jurisdiction for the purposes of excluding evidence under subsection 24(2) of the Charter. The applicant argues that because the Board cannot exclude evidence under subsection 24(2), the applicant should be able to seek such a remedy before this Court.
[8] That the Board did not warn the applicant that the confession he made before it could be used against him in his criminal proceeding is of no consequence in the proceeding before the Board. A failure to give such a warning may be a factor with regard to the use of the confession in the criminal proceedings, but that is not what is at issue here. The question raised by the applicant does not arise in the circumstances of this case because the evidence before the National Parole Board was not obtained in a manner that infringed the applicant's Charter rights.
[9] The judicial review is dismissed.
"Marshall Rothstein"
Judge
TORONTO, ONTARIO
MAY 7, 1998
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
COURT NO: T-1654-97
| STYLE OF CAUSE: TERRY FREDERICK ARMES |
- and -
| THE NATIONAL PAROLE BOARD and |
THE ATTORNEY GENERAL OF CANADA
DATE OF HEARING: APRIL 24, 1998
PLACE OF HEARING: TORONTO, ONTARIO
REASONS FOR ORDER BY: ROTHSTEIN, J.
DATED: MAY 7, 1998
APPEARANCES:
Mr. John Hill
For the Applicant
Ms. Helen Park
For the Respondents
SOLICITORS OF RECORD:
John Hill
Barrister & Solicitor
4 Finch Ave. West
Toronto, Ontario
M2N 6L1
For the Applicant
Department of Justice
2 First Canadian Place
Suite 3400, Exchange Tower, Box 36
Toronto, Ontario
M5X 1K6
For the Respondents
FEDERAL COURT OF CANADA
Date: 19980507
Docket: T-1654-97
Between:
| TERRY FREDERICK ARMES |
Applicant
- and -
| THE NATIONAL PAROLE BOARD and |
THE ATTORNEY GENERAL OF CANADA
Respondents
REASONS FOR ORDER
__________________
1 135. (9.1) Where an offender whose parole or statutory release has not been terminated or revoked is incarcerated as a result of an additional sentence for an offence under an Act of Parliament, the parole or statutory release, as the case may be, is revoked on the day on which the offender is incarcerated as a result of the additional sentence.