Capra v. Canada (Attorney General), 2008 FC 1212

• Judge: Russell, J.
• Court: Federal Court (Canada)
• Case Date: October 15, 2008
• Jurisdiction: Canada (Federal)
• Citations: 2008 FC 1212;(2008), 335 F.T.R. 299 (FC)

Capra v. Can. (A.G.) (2008), 335 F.T.R. 299 (FC)

MLB headnote and full text

Temp. Cite: [2008] F.T.R. TBEd. NO.002

Gheorge Capra (applicant) v. The Attorney General of Canada (respondent)

(T-1049-08; 2008 FC 1212)

Indexed As: Capra v. Canada (Attorney General)

Federal Court

Russell, J.

October 29, 2008.

Summary:

Capra, a citizen of Romania, who was serving a sentence for fraud would have been eligible for parole or an unescorted temporary absence but for s. 128(4) of the Corrections and Conditional Release Act. Section 128(4) provided that "... an offender against whom a removal order has been made under the Immigration and Refugee Protection Act is ineligible for day parole or an unescorted temporary absence until the offender is eligible for full parole". Capra applied for a declaration that s. 128(4) of the Corrections and Conditional Release Act was invalid because it violated ss. 7, 9 and 15 of the Charter.

The Federal Court dismissed the application.

Aliens - Topic 1795

Exclusion and expulsion - Deportation and exclusion of persons in Canada - Detention (incl. review or release) - Capra, a citizen of Romania, who was serving a sentence for fraud, would have been eligible for parole or an unescorted temporary absence but for s. 128(4) of the Corrections and Conditional Release Act - Section 128(4) provided that "... an offender against whom a removal order has been made under the Immigration and Refugee Protection Act is ineligible for day parole or an unescorted temporary absence until the offender is eligible for full parole" - Capra applied for a declaration that s. 128(4) was invalid because it violated ss. 7, 9 and 15 of the Charter - The Federal Court dismissed the application - The court found no violation of the Charter, and in any event, s. 128(4) was a reasonable limit prescribed by law that could be demonstrably justified in accordance with s. 1 of the Charter - See paragraphs 1 to 110.

Civil Rights - Topic 686

Liberty - Principles of fundamental justice - Deprivation of - What constitutes - Capra, a citizen of Romania, who was serving a sentence for fraud, would have been eligible for parole or an unescorted temporary absence but for s. 128(4) of the Corrections and Conditional Release Act - Section 128(4) provided that "... an offender against whom a removal order has been made under the Immigration and Refugee Protection Act [IRPA] is ineligible for day parole or an unescorted temporary absence until the offender is eligible for full parole" - Capra applied for a declaration that s. 128(4) was invalid because it violated s. 7 of the Charter - Capra claimed that fundamental justice required that eligibility for day parole for him be subject to the scrutiny of the immigration detention review provisions of the IRPA - The Federal Court dismissed the application - While Capra's liberty interest under s. 7 was sufficiently engaged by the removal of his eligibility for day parole and unescorted temporary absences, s. 128(4) did not offend the principles of justice in either a procedural or substantive way - Capra was being detained as a result of his criminal convictions and was subject to the CCRA; therefore, the immigration detention provisions had no relevance to the type of sentence he was serving - The court opined that, in any event, s. 128(4) was a reasonable limit prescribed by law that could be demonstrably justified in accordance with s. 1 of the Charter - See paragraphs 62 to 68 and 98.

Civil Rights - Topic 1033

Discrimination - Race and national or ethnic origin - Citizens vs. non-citizens - Capra, a citizen of Romania, who was serving a sentence for fraud, would have been eligible for parole or an unescorted temporary absence but for s. 128(4) of the Corrections and Conditional Release Act - Section 128(4) provided that "... an offender against whom a removal order has been made under the Immigration and Refugee Protection Act [IRPA] is ineligible for day parole or an unescorted temporary absence [UTA] until the offender is eligible for full parole" - Capra applied for a declaration that s. 128(4) was invalid because it violated s. 15 of the Charter by treating citizens and non-citizens differently - The Federal Court dismissed the application - The court agreed that the differentiation at issue here was a difference in eligibility for day parole and UTA, not a difference in the right to remain in Canada, and was therefore not immune from s. 15 review by virtue of s. 6 of the Charter (the mobility provision) - The court accepted that the appropriate comparator group for purposes of s. 15 was equivalent Canadian offenders who were not subject to deportation and so remained eligible for day parole and UTA - Further, Capra fell into an analogous category under s. 15 because he was a non-citizen - However, Capra failed to demonstrate how the differential treatment disadvantaged or discriminated against him - In any event, s. 128(4) was a reasonable limit prescribed by law that could be demonstrably justified in accordance with s. 1 of the Charter - See paragraphs 69 to 98.

Civil Rights - Topic 3193

Trials - Due process, fundamental justice and fair hearings - Administrative and noncriminal proceedings - Procedure not contrary to fundamental justice - [See Civil Rights - Topic 686 ].

Civil Rights - Topic 3603

Detention and imprisonment - Detention - What constitutes arbitrary detention - Capra, a citizen of Romania, who was serving a sentence for fraud, would have been eligible for parole or an unescorted temporary absence but for s. 128(4) of the Corrections and Conditional Release Act - Section 128(4) provided that "... an offender against whom a removal order has been made under the Immigration and Refugee Protection Act [IRPA] is ineligible for day parole or an unescorted temporary absence until the offender is eligible for full parole" - Capra applied for a declaration that s. 128(4) was invalid because it resulted in arbitrary detention contrary to s. 9 of the Charter - The Federal Court dismissed the application - The legislation could not be said to function in an arbitrary way, or in any way that was not in accordance with principles of fundamental justice - The court opined that, in any event, s. 128(4) was a reasonable limit prescribed by law that could be demonstrably justified in accordance with s. 1 of the Charter - See paragraphs 48 to 61 and 98.

Civil Rights - Topic 8348

Canadian Charter of Rights and Freedoms - Application - Exceptions - Reasonable limits prescribed by law (Charter, s. 1) - [See Aliens - Topic 1795 ].

Civil Rights - Topic 8668

Canadian Charter of Rights and Freedoms - Equality rights (s. 15) - What constitutes a breach of s. 15 - [See Civil Rights - Topic 1033 ].

Civil Rights - Topic 8672

Canadian Charter of Rights and Freedoms - Equality rights (s. 15) - Analogous categories - [See Civil Rights - Topic 1033 ].

Criminal Law - Topic 5670

Punishments (sentence) - Imprisonment and parole - Parole - Period of ineligibility - [See Aliens - Topic 1795 ].

Cases Noticed:

Chaudhry v. Canada (Minister of Citizenship and Immigration) (1999), 163 F.T.R. 78 (T.D.), refd to. [para. 16].

Larsen v. National Parole Board et al. (1999), 178 F.T.R. 30 (T.D.), refd to. [para. 30].

R. v. Lyons, [1987] 2 S.C.R. 309; 80 N.R. 161; 82 N.S.R.(2d) 271; 207 A.P.R. 271, refd to. [para. 56].

Cooper v. Canada (Attorney General) (2002), 295 N.R. 184; 2002 FCA 374, refd to. [para. 65].

Cunningham v. Canada, [1993] 2 S.C.R. 143; 151 N.R. 161; 62 O.A.C. 243, refd to. [para. 66].

Chiarelli v. Minister of Employment and Immigration, [1992] 1 S.C.R. 711; 135 N.R. 161, refd to. [para. 71].

Chiarelli v. Minister of Employment and Immigration (1990), 107 N.R. 107; 10 Imm. L.R.(2d) 137 (F.C.A.), refd to. [para. 78].

Andrews v. Law Society of British Columbia, [1989] 1 S.C.R. 143; 91 N.R. 255, refd to. [para. 90].

Sauvé v. Canada (Chief Electoral Officer) et al., [2000] 2 F.C.R. 117; 248 N.R. 267 (F.C.A.), revd. in part [2002] 3 S.C.R. 519; 294 N.R. 1 (S.C.C.), refd to. [para. 102].

R. v. Oakes, [1986] 1 S.C.R. 103; 65 N.R. 87; 14 O.A.C. 335, refd to. [para. 104].

R. v. Bryan (P.C.) et al., [2007] 1 S.C.R. 527; 359 N.R. 1; 237 B.C.A.C. 33; 392 W.A.C. 33; 2007 SCC 12, refd to. [para. 106].

Statutes Noticed:

Canadian Charter of Rights and Freedoms, 1982, sect.1, sect. 6, sect. 7, sect. 9, sect. 15 [para. 15].

Corrections and Conditional Release Act, S.C. 1992, c. 20, sect. 128(1), sect. 128(2), sect. 128(3), sect. 128(4), sect. 128(5), sect. 128(6), sect. 128(7) [para. 15].

Immigration and Refugee Protection Act, S.C. 2001, c. 27, sect. 50 [para. 15].

Counsel:

David Matas, for the applicant;

Scott D. Farlinger and Sharlene Telles-Langdon, for the respondent.

Solicitors of Record:

David Matas, Winnipeg, Manitoba, for the applicant;

Department of Justice Canada, Winnipeg, Manitoba, for the respondent.

This application was heard at Winnipeg, Manitoba, on October 15, 2008, by Russell, J., of the Federal Court, who delivered the following reasons for judgment on October 29, 2008.