Cleary v. Correctional Service of Canada et al., (1990) 108 N.R. 225 (FCA)

• Judge: Iacobucci, C.J., Hugessen and Desjardins, JJ.A.
• Court: Federal Court of Appeal (Canada)
• Case Date: Tuesday April 03, 1990
• Jurisdiction: Canada (Federal)
• Citations: (1990), 108 N.R. 225 (FCA)

Cleary v. Correctional Service of Can. (1990), 108 N.R. 225 (FCA)

MLB headnote and full text

John Arthur Cleary (appellant/applicant) v. Correctional Service of Canada and National Parole Board

(No. A-158-90)

Indexed As: Cleary v. Correctional Service of Canada et al.

Federal Court of Appeal

Iacobucci, C.J., Hugessen and Desjardins, JJ.A.

April 3, 1990.

Summary:

A prisoner serving a seven year sentence was entitled to early release on mandatory supervision. His case was referred to the National Parole Board for a hearing. Because of a strike among correctional service officials the material required to be given to the inmate at least 15 days before the hearing was not delivered until nine days before the hearing (Parole Regulations, s. 17). The prisoner applied for certiorari alleging that the Board lost jurisdiction to hear his case because of the missed 15 day time limit.

The Federal Court of Canada, Trial Division, in a decision reported 34 F.T.R. 23, dismissed the prisoner's application, holding that the notice requirements of the Parole Regulations were not mandatory. The prisoner appealed.

The Federal Court of Appeal dismissed the appeal. The court held that the time frames in the Parole Regulations were imperative, but this was a case where the Trial Division ought to have exercised its discretion to refuse to grant certiorari because no prejudice had been suffered.

Criminal Law - Topic 5670.2

Punishment (sentence) - Imprisonment and parole - Parole - Review of before effective date - A prisoner was entitled to early release - His case was referred to the National Parole Board for a hearing - Because of the strike among correctional service officials the material required to be given to the inmate at least 15 days before the hearing was not delivered on time (Parole Regulations, s. 17) - The Federal Court of Appeal held that although the time limitations in the Parole Regulations were imperative, this was a case where the court ought to exercise its discretion to refuse certiorari where no prejudice had been suffered by the prisoner.

Cases Noticed:

Evans v. Canada (Attorney General) and Ontario (Attorney General) (1986), 18 O.A.C. 236; 30 C.C.C.(3d) 313 (C.A.), refd to. [para. 6, footnote 4].

R. v. Shubley (1990), 104 N.R. 81; 52 C.C.C.(3d) 481 (S.C.C.), refd to. [para. 6, footnote 4].

Milner v. National Parole Board (1990), 33 F.T.R. 207, refd to. [para. 6, footnote 5].

Statutes Noticed:

Interpretation Act, R.S.C. 1985, c. I-23, sect. 11 [para. 7, footnote 6].

Parole Act Regulations, sect. 16.1(2)(a) [para. 3, footnote 2]; sect. 17 [para. 3, footnote 3].

Counsel:

David Cole, for the appellant;

Gerry Sparrow, for the respondent.

Solicitors of Record:

David Cole, Toronto, Ontario, for the appellant;

John C. Tait, Q.C., Deputy Attorney General of Canada, Ottawa, Ontario, for the respondent.

This appeal was heard in Ottawa, Ontario, on April 3, 1990, before Iacobucci, C.J., Hugessen and Desjardins, JJ.A., of the Federal Court of Appeal. The decision of the Court of Appeal was delivered orally from the Bench by Iacobucci, C.J., on April 3, 1990.