Ottawa, Ontario, November 10, 2006
PRESENT: The Honourable Madam Justice Heneghan
BETWEEN:
and
THE ATTORNEY GENERAL OF CANADA
REASONS FOR ORDER AND ORDER
[1] Mr. Guillermo Valle-Quintero (the “Applicant”) seeks declaratory relief pursuant to the Federal Courts Act, R.S.C. 1985, c. F-7, as amended. He seeks a declaration that the amendments to subsection 128(4) of the Corrections and Conditional Release Act, S.C. 1992, c. 20, as amended (the “Act”) are not retroactive and that the decision in Larsen v. National Parole Board et al. (1999), 178 F.T.R. 30 (T.D.) continues to apply to inmates who were sentenced prior to June 28, 2002. He also seeks a declaration that there is no practice that requires an inmate seeking conditional release for deportation to provide an address or details of employment in his or her country of origin at the time of the parole hearing.
I. Background
[2] The Applicant is a Cuban national who entered Canada as an immigrant in 1997. He did not become a Canadian citizen. On March 30, 1999, he was sentenced to a term of imprisonment of 11 years, 4 months and 15 days for the offences of attempted murder, forcible confinement, utterance of death threats and three counts of failure to comply. The Applicant was eligible for full parole on January 13, 2003. The Applicant is a first time offender in Canada, although he had been convicted of criminal offences in Cuba in 1989 and 1996.
[3]
His
statutory release date was October 29, 2006. The warrant expiry date is August
13, 2010. Since the Applicant is subject to a deportation order, he is
eligible to apply for day parole or full parole for deportation.
[4] The Applicant was ordered deported on March 2, 2000 and his appeal from the deportation order was dismissed. Appeals from both his conviction and sentence relative to the criminal offences were dismissed on October 31, 2002.
[5] The Applicant was considered for full parole release by the National Parole Board sitting at Fenbrook Institution on April 15, 2005. He was denied full parole for deportation. The Board concluded that the Applicant’s risk to society could not be managed within the context of a full parole release. It noted that the Applicant was subject to a deportation order but that the Cuban government was not issuing travel documents to facilitate deportation. As a result, the Applicant would be released to Immigration Canada if granted full parole for deportation. The Board ultimately concluded that the Applicant’s “risk on full parole is therefore considered to be unmanageable in any community”.
[6] The Applicant sought review of this decision by the National Parole Board Appeal Division. In its decision dated August 23, 2005, the appeal was dismissed on the grounds that the decision of the National Parole Board was reasonable and based upon the relevant information. The Appeal Division concurred with the finding of the National Parole Board that the Applicant posed an unmanageable risk for release on parole.
[7] The Applicant did not seek judicial review of the decision of the Appeal Division. According to his written and oral arguments made in support of his application for declaratory relief, he has brought this proceeding so that he will be “in a position to prepare properly for his next hearing”.
II. Submissions
A. The Applicant
[8]
The
Applicant argues that subsection 128(4) of the Act should not have retroactive
application but should be applied only to those persons who were sentenced
after that provision came into effect. Otherwise, according to the Applicant,
he will be deprived of his vested right to seek day parole.
[9]
The
Applicant relies on the decision in Larsen which sets out the common law
position that a detention order issued under section 105 of the former Immigration
Act, R.S.C. 1985, c. I-2 does not remove an offender’s right to a review
and hearing with respect to day parole.
[10]
Second,
the Applicant submits that there is no legal authority that requires an inmate
seeking conditional release for deportation to provide proof of residence
and employment in the country of destination in order to receive consideration
for parole. He relies on the decision in Ford v. Canada (National Parole Board), [1977] 1 F.C. 359 (T.D.) to support this argument.
B. The Respondent
[11]
The
Respondent argues that this application should be dismissed on the grounds that
there is no decision before the Court in respect of which the Court could
exercise its discretionary authority to review pursuant to section 18.1 of the Federal
Courts Act. The Respondent submits that there is no justiciable issue here
between the parties and, relying on the decision in Dee v. Canada (Minister of Employment and
Immigration
(1987), 4 Imm. L.R. (2d)
19 (T.D.), argues that the Court should
decline to grant the relief sought by the Applicant.
[12]
As for the
Applicant’s arguments with respect to full parole, he has not yet made another
application for such release. The Respondent submits that the significance of
the Applicant being able to show an address or name an employer in Cuba is merely speculative at this point. The
lack of this information was not the basis of the decision made by the
National Parole Board and upheld by the Appeal Division. Rather, his
application for parole was denied because the Applicant failed to meet the risk
criteria assessed by the Board.
[13]
In any
event, the Respondent argues that it is open to the Applicant to apply for full
parole and if dissatisfied with the result, to seek judicial review. He can address the
issue of address and employment factors if these matters are the basis for
refusal of parole.
[14]
Finally,
the Respondent submits that there is no administrative rule that prevents the
Applicant from seeking full parole if he does not have an address or letter of
employment. These factors may be relevant factors when the Board assesses an
application for parole but they are not determinative.
[15]
However,
in the Applicant’s situation, the argument is moot since Cuba does not presently accept deportees.
III. Discussion and Disposition
[16]
The
Applicant is seeking declaratory relief pursuant to the Federal Courts Act.
Such relief lies within the exclusive jurisdiction of the Court pursuant to
paragraph 18(1)(a) of the Federal Courts Act, as follows:
|
18. (1) Subject to section 28, the Federal Court has exclusive original jurisdiction ( a) to issue an injunction, writ of certiorari, writ of prohibition, writ of mandamus or writ of quo warranto, or grant declaratory relief, against any federal board, commission or other tribunal; and … |
18. (1) Sous réserve de l'article 28, la Cour fédérale a compétence exclusive, en première instance, pour : a) décerner une injonction, un bref de certiorari, de mandamus, de prohibition ou de quo warranto, ou pour rendre un jugement déclaratoire contre tout office fédéral; …
|
[17]
Subsection
18(3) of the Federal Courts Act requires that declaratory relief may be
granted only in respect of an application for judicial review:
|
… 3) The remedies provided for in subsections (1) and (2) may be obtained only on an application for judicial review made under section 18.1. |
… (3) Les recours prévus aux paragraphes (1) ou (2) sont exercés par présentation d’une demande de contrôle judiciaire.
|
[18]
Subsection
18.1(3) of the Federal Courts Act describes the remedies available upon
an application for judicial review, as follows:
|
(3) On an application for judicial review, the Federal Court may ( a) order a federal board, commission or other tribunal to do any act or thing it has unlawfully failed or refused to do or has unreasonably delayed in doing; or ( b) declare invalid or unlawful, or quash, set aside or set aside and refer back for determination in accordance with such directions as it considers to be appropriate, prohibit or restrain, a decision, order, act or proceeding of a federal board, commission or other tribunal. |
(3) Sur présentation d'une demande de contrôle judiciaire, la Cour fédérale peut : a) ordonner à l’office fédéral en cause d’accomplir tout acte qu’il a illégalement omis ou refusé d’accomplir ou dont il a retardé l’exécution de manière déraisonnable; b) déclarer nul ou illégal, ou annuler, ou infirmer et renvoyer pour jugement conformément aux instructions qu’elle estime appropriées, ou prohiber ou encore restreindre toute décision, ordonnance, procédure ou tout autre acte de l’office fédéral. |
[19]
The
grounds for judicial review are set out in subsection 18.1(4) of the Federal
Courts Act as follows:
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4) The Federal Court may grant relief under subsection (3) if it is satisfied that the federal board, commission or other tribunal ( a) acted without jurisdiction, acted beyond its jurisdiction or refused to exercise its jurisdiction; ( b) failed to observe a principle of natural justice, procedural fairness or other procedure that it was required by law to observe; ( c) erred in law in making a decision or an order, whether or not the error appears on the face of the record; ( d) based its decision or order on an erroneous finding of fact that it made in a perverse or capricious manner or without regard for the material before it; ( e) acted, or failed to act, by reason of fraud or perjured evidence; or ( f) acted in any other way that was contrary to law. |
4) Les mesures prévues au paragraphe (3) sont prises si la Cour fédérale est convaincue que l'office fédéral, selon le cas : a) a agi sans compétence, outrepassé celle-ci ou refusé de l’exercer; b) n’a pas observé un principe de justice naturelle ou d’équité procédurale ou toute autre procédure qu’il était légalement tenu de respecter; c) a rendu une décision ou une ordonnance entachée d’une erreur de droit, que celle-ci soit manifeste ou non au vu du dossier; d) a rendu une décision ou une ordonnance fondée sur une conclusion de fait erronée, tirée de façon abusive ou arbitraire ou sans tenir compte des éléments dont il dispose; e) a agi ou omis d’agir en raison d’une fraude ou de faux témoignages; f) a agi de toute autre façon contraire à la loi. |
[20]
The first
question to be addressed is whether the Court should exercise its discretion to
grant the relief sought. In my opinion, it should not, for the reason that the
Applicant has not shown that a justiciable issue arises from the facts
presented.
[21]
The
Applicant seeks declaratory relief. By its nature, such relief relates to a
determination of legal rights. Declaratory relief lies within the jurisdiction
of this Court, as one of the discretionary remedies available upon an
application for judicial review.
[22]
In Canada
v. Solosky, [1980] 1 S.C.R. 821 at page 830, the Supreme Court of Canada
said the following about declaratory relief:
Declaratory relief is a remedy neither constrained by form nor bounded by substantive content, which avails persons sharing a legal relationship, in respect of which a ‘real issue’ concerning the relative interests of each has been raised and falls to be determined.
[23]
In Operation
Dismantle Inc. v. Canada, [1985] 1 S.C.R. 441 at page 456, the Supreme
Court commented upon the availability of declaratory relief, in relation to the
existence of a controversy between parties, as follows:
The principles governing remedial action by the courts on the basis of allegations of future harm are illustrative of the more general principle that there is no legal duty to refrain from actions which do not prejudice the legal rights of others. …
[24]
These
principles are applicable to the present case. There is no present controversy
between the parties. The Applicant has not begun a new application for parole
in which he is free to advance arguments concerning the interpretation and
application of subsection 128(4) of the Act or the relevance of information
about an applicant’s address or place of employment post-release.
[25]
At the
moment, there is no dispute between the parties. I refer again to Solosky
where the Court said the following at page 832 about the significance of the
lack of a dispute:
The first factor is directed to the “reality of the dispute”. It is clear that a declaration will not normally be granted when the dispute is over and has become academic, or where the dispute has yet to arise and may not arise. …
[26]
There is
no decision before the Court. The Applicant has not sought judicial review of
the decision of the Appeal Division. It is not the role of the Court to provide
an interpretation of the law relative to a hypothetical situation; see Operation
Dismantle Inc. In the absence of an existing controversy involving the
right of the Applicant to seek parole in accordance with the Act, it is
inappropriate for the Court to comment on the interpretation and application of
subsection 128(4).
[27] Likewise, there is no factual context against which the Court can address the Applicant’s submissions concerning the provision of information about an address or the name of an employer as a condition precedent to seeking parole pursuant to the Act. The granting of parole is a privilege,
not a right. Any challenge by the Applicant concerning the
consideration of alleged irrelevant facts should be made by way of judicial
review of a decision by the Board or by the Appeal Division.
[28] There is no basis for granting the relief sought and this application for declaratory relief is dismissed with costs.
ORDER
This application is dismissed with costs.
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-1884-05
STYLE OF CAUSE: Guillermo Valle-Quintero and the Attorney General of Canada
PLACE OF HEARING: Toronto, Ontario
APPEARANCES:
|
John Hill |
FOR THE APPLICANT |
|
Derek Edwards |
FOR THE RESPONDENT |
SOLICITORS OF RECORD:
|
John L. Hill Toronto, Ontario
|
FOR THE APPLICANT |
|
John H. Sims, Q.C. Deputy Attorney General of Canada |
FOR THE RESPONDENT |