Deacon v. Canada (Attorney General), 2006 FCA 265

• Judge: Décary, Linden and Sharlow, JJ.A.
• Court: Federal Court of Appeal (Canada)
• Case Date: June 26, 2006
• Jurisdiction: Canada (Federal)
• Citations: 2006 FCA 265;(2006), 352 N.R. 380 (FCA)

Deacon v. Can. (A.G.) (2006), 352 N.R. 380 (FCA)

MLB headnote and full text

Temp. Cite: [2006] N.R. TBEd. AU.004

Sean Joshua Deacon (appellant) v. Attorney General of Canada (respondent)

(A-580-05; 2006 FCA 265)

Indexed As: Deacon v. Canada (Attorney General)

Federal Court of Appeal

Décary, Linden and Sharlow, JJ.A.

July 26, 2006.

Summary:

Deacon had been diagnosed as a homosex­ual pedophile and had a lengthy history of sexual offences against children. He was declared to be a long-term offender. He was released under a long-term supervision order; however, the National Parole Board (NPB) im­posed conditions on his release, including a condition that he take medication as pre­scribed by a physician. Deacon applied for ju­dicial review, challenging the jurisdiction of the NPB to impose such a condition, and claiming that such a condition violated his Charter rights.

The Federal Court, in a decision reported at [2005] F.T.R. Uned. B94, dismissed the application. The court held that the NPB had jurisdiction under s. 134.1 of the Corrections and Conditional Release Act to impose a med­ical treatment condition. The court held that although the condition constituted a prima facie violation of Deacon's s. 7 Char­ter rights, the violation was justified under s. 1. Deacon appealed.

The Federal Court of Appeal dismissed the appeal, on the basis that the medical treat­ment condition did not violate s. 7 because the condition was con­sistent with the prin­ciples of fundamental justice. The court there­fore found it unnec­essary to consider the justifi­cation under s. 1 issue.

Administrative Law - Topic 9056

Boards and tribunals - Jurisdiction of par­tic­ular boards and tribunals - National Parole Board - Deacon was a homosexual pedo­phile with a lengthy history of sexual offences against children - He was declared to be a long-term offender - He was re­leased under a long-term supervision order; however, the National Parole Board (NPB) imposed special conditions on his release, including a condition that he take medica­tion as prescribed by a physician - The prescribed medication was aimed at con­troll­ing his sexual behaviour - Deacon chal­lenged NPB's jurisdiction to impose such a condition - The Federal Court, re­viewing the NPB's decision on the stan­dard of correctness, held that the NPB had jurisdiction to impose the condition under s. 134.1(2) of the Corrections and Condi­tional Release Act - Deacon appealed - The Federal Court of Appeal dismissed the ap­peal, holding that the applications judge's decision was correct - See para­graphs 26 to 46.

Civil Rights - Topic 646.3

Liberty - Limitations on - Parole - [See Civil Rights - Topic 686 ].

Civil Rights - Topic 686

Liberty - Principles of fundamental justice - Deprivation of - What constitutes - Dea­con was a homosexual pedophile with a lengthy history of sexual offences against children - He was declared to be a long-term offender - He was released under a long-term supervision order; however, the National Parole Board (NPB) imposed spe­cial conditions on his release, including a condition that he take medication as pre­scribed by a physician - The prescribed medication was aimed at controlling his sex­ual behaviour - Deacon claimed that the special condition respecting prescribed medication violated his rights under s. 7 of the Charter - The Federal Court of Appeal noted a concession by the Crown that re­quiring Deacon, a competent adult, to take medication on pain of re-incarceration or persecution constituted a violation of the liberty and security of the person elements of s. 7 - However, the court found that the medical treatment condition in issue was con­sistent with the principles of fundamen­tal justice and therefore did not violate s. 7 - See paragraphs 47 to 76.

Civil Rights - Topic 8547

Canadian Charter of Rights and Freedoms - Interpretation - Particular words and phrases - Principles of fundamental justice - Deacon was a homosexual pedophile with a lengthy history of sexual offences against children - He was declared to be a long-term offender - He was released under a long-term supervision order; however, the National Parole Board (NPB) imposed spe­cial conditions on his release, including that he take prescribed medication - Dea­con alleged a violation of his 7 Charter rights, in particular, claiming that the condition violated two principles of funda­mental justice - These being, first, the prin­ciple that medical treatment had to be expressly authorized by legislation; and, second, the principle that all competent adults had the right to refuse medical treat­ment - The Federal Court of Appeal held that these were not principles of funda­mental justice and s. 7 was not viol­ated - See paragraphs 55 to 75.

Criminal Law - Topic 5670.1

Punishments - Sentence - Imprisonment and parole - Parole - Conditions - [See Administrative Law - Topic 9056 and Civil Rights - Topic 686 ].

Criminal Law - Topic 6577

Dangerous or long-term offenders - De­ten­tion - Sentencing - Community or long-term supervision order - [See Admin­istra­tive Law - Topic 9056 and Civil Rights - Topic 686 ].

Statutes - Topic 2601

Interpretation - Interpretation of words and phrases - Modern rule (incl. interpre­tation by con­text) - General principles - The Fed­eral Court of Appeal stated that the proper approach to statutory interpreta­tion was the modern approach as set out by Driedger in his book the Construction of Statutes (2nd Ed.) and as affirmed by the Supreme Court of Canada - The court applied this ap­proach in interpreting s. 134.1(2) of the Corrections and Condi­tional Release Act which gave the National Parole Board power to impose conditions in long-term supervision orders - See paragraphs 30 to 46.

Cases Noticed:

R. v. Deacon (S.), [2002] B.C.J. No. 2745 (Prov. Ct.), affd. (2004), 193 B.C.A.C. 228; 316 W.A.C. 228; 182 C.C.C.(3d) 257 (C.A.), refd to. [paras. 5, 8].

Normandin v. Canada (Attorney General), [2005] 2 F.C.R. 373; 259 F.T.R. 144 (F.C.), affd. [2006] 2 F.C.R 112; 343 N.R. 246 (F.C.A.), refd to. [para. 22].

R. v. McGarroch (V.), [2003] O.T.C. 97 (Sup. Ct.), refd to. [para. 22].

R. v. V.M. - see R. v. McGarroch (V.).

Attis v. Board of Education of District No. 15 et al., [1996] 1 S.C.R. 825; 195 N.R. 81; 171 N.B.R.(2d) 321; 437 A.P.R. 321, refd to. [para. 26].

Ross v. New Brunswick School District No. 15 - see Attis v. Board of Education of District No. 15 et al.

Rooke v. Minister of National Revenue (2002), 295 N.R. 125 (F.C.A.), refd to. [para. 30].

Mazzei, Re, (2006), 346 N.R. 1; 222 B.C.A.C. 1; 368 W.A.C. 1; 2006 SCC 7, refd to. [para. 30].

Mazzei v. British Columbia (Director of Adult Forensic Psychiatric Services) - see Mazzei, Re.

R. v. Johnson (J.J.), [2003] 2 S.C.R. 357; 308 N.R. 333; 186 B.C.A.C. 161; 306 W.A.C. 161, refd to. [para. 32].

Cartier v. Canada (Procureur général), [2003] 2 F.C. 317; 300 N.R. 362 (F.C.A.), refd to. [para. 39].

Fleming v. Reid and Gallagher (1991), 48 O.A.C. 46; 4 O.R.(3d) 74 (C.A.), refd to. [para. 40].

Starson v. Swayze et al., [2003] 1 S.C.R. 722; 304 N.R. 326; 173 O.A.C. 210, refd to. [para. 40].

R. v. Goodwin (J.V.) (2002), 173 B.C.A.C. 35; 283 W.A.C. 35; 168 C.C.C.(3d) 14 (C.A.), refd to. [para. 42].

R. v. Payne (L.M.), [2001] O.T.C. 15 (Sup. Ct.), refd to. [para. 42].

R. v. Kieling (R.C.) (1991), 92 Sask.R. 281; 64 C.C.C.(3d) 124 (C.A.), dist. [para. 43].

R. v. White (J.K.), [1999] 2 S.C.R. 417; 240 N.R. 1; 123 B.C.A.C. 161; 201 W.A.C. 161, refd to. [para. 48].

R. v. Malmo-Levine (D.) et al., [2003] 3 S.C.R. 571; 314 N.R. 1; 191 B.C.A.C. 1; 314 W.A.C. 1, refd to. [para. 50].

Canadian Foundation for Children, Youth and the Law v. Canada (Attorney Gen­eral), [2004] 1 S.C.R. 76; 315 N.R. 201; 183 O.A.C. 1, refd to. [para. 51].

Winko v. Forensic Psychiatric Institute (B.C.) et al., [1999] 2 S.C.R. 625; 241 N.R. 1; 124 B.C.A.C. 1; 203 W.A.C. 1, refd to. [para. 53].

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. 53].

R. v. Demers (R.), [2004] 2 S.C.R. 489; 323 N.R. 201, refd to. [para. 53].

R. v. J.J.L. (2001), 153 Man.R.(2d) 153; 238 W.A.C. 153 (C.A.), refd to. [para. 59].

R. v. Shoker (H.S.) (2004), 206 B.C.A.C. 266; 338 W.A.C. 266 (C.A.), refd to. [para. 59].

R. v. Rogers (1990), 61 C.C.C.(3d) 481 (B.C.C.A.), refd to. [para. 59].

Jackson v. Joyceville Penitentiary Disci­plinary Tribunal, [1990] 3 F.C. 55; 32 F.T.R. 96 (T.D.), refd to. [para. 60].

Dion v. R. (1986), 30 C.C.C.(3d) 108 (Que. S.C.), refd to. [para. 60].

R. v. Collins, [1987] 1 S.C.R. 265; 74 N.R. 276, refd to. [para. 61].

Cloutier v. Langlois and Bédard, [1990] 1 S.C.R. 158; 105 N.R. 241; 30 Q.A.C. 241, refd to. [para. 62].

R. v. Stillman (W.W.D.), [1997] 1 S.C.R. 607; 209 N.R. 81; 185 N.B.R.(2d) 1; 472 A.P.R. 1, refd to. [para. 62].

R. v. Golden (I.V.), [2001] 3 S.C.R. 679; 279 N.R. 1; 153 O.A.C. 201, refd to. [para. 62].

Rodriguez v. British Columbia (Attorney General) et al., [1993] 3 S.C.R. 519; 158 N.R. 1; 34 B.C.A.C. 1; 56 W.A.C. 1, refd to. [para. 69].

Statutes Noticed:

Canadian Charter of Rights and Freedoms, 1982, sect. 7 [para. 16].

Corrections and Conditional Release Act, S.C. 1992, c. 20, sect. 134.1(2) [para. 14].

Corrections and Conditional Release Act Regulations (Can.), Corrections and Conditional Release Regulations, SOR/92-620, sect. 161(1) [para. 15].

Criminal Code, R.S.C. 1985, c. C-46, sect. 753.2(1) [para. 14].

Counsel:

Garth Barriere, for the appellant;

S. David Frankel, Q.C., and Graham Stark, for the respondent.

Solicitors of Record:

Garth Barriere, Vancouver, British Colum­bia, for the appellant;

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

This appeal was heard on June 26, 2006, at Vancouver, British Columbia, before Décary, Linden and Sharlow, JJ.A., of the Federal Court of Appeal. Linden, J.A., delivered the following reasons for judgment for the court at Ottawa, Ontario, on July 26, 2006.