Gallone v. Canada (Attorney General), 2015 FC 608

• Judge: Tremblay-Lamer, J.
• Court: Federal Court (Canada)
• Case Date: April 23, 2015
• Jurisdiction: Canada (Federal)
• Citations: 2015 FC 608;(2015), 480 F.T.R. 282 (FC)

Gallone v. Can. (A.G.) (2015), 480 F.T.R. 282 (FC)

MLB headnote and full text

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

.........................

Temp. Cite: [2015] F.T.R. TBEd. MY.038

Arlène Gallone (demanderesse) v. Le Procureur général du Canada (défendeur)

(T-882-14; 2015 CF 608; 2015 FC 608)

Indexed As: Gallone v. Canada (Attorney General)

Federal Court

Tremblay-Lamer, J.

May 8, 2015.

Summary:

After Gallone served the incarceratory portion of her 10.5 month sentence, she was released subject to a long term supervision order (LTSO). The LTSO was suspended on three occasions for breaching its conditions, resulting in periods of re-incarceration. After the third suspension, the Parole Board denied Gallone's request that it exercise its discretion to hold an oral hearing. On the record, the Board decided not to cancel the suspension and recommended the filing of a criminal charge. Gallone applied to set aside the Board's decision for lack of procedural fairness. The Attorney General argued that the court should decline to hear the application, because the issue was now moot where Gallone was now released from custody and her LTSO conditions had been redetermined.

The Federal Court allowed the application. Although the application was now moot, this was an appropriate case in which the court should exercise its discretion to hear the matter. The court held that the Board's failure to exercise its discretion in favour of an oral hearing denied Gallone procedural fairness.

Administrative Law - Topic 262

The hearing and decision - Right to a hearing - When right exists - After Gallone served the incarceratory portion of her 10.5 month sentence, she was released subject to a long term supervision order (LTSO) - The LTSO was suspended on three occasions for breaching its conditions, resulting in periods of re-incarceration - After the third suspension, the Parole Board denied Gallone's request that it exercise its discretion to hold an oral hearing - On the record, the Board decided not to cancel the suspension and recommended the filing of a criminal charge - Gallone applied to set aside the Board's decision for lack of procedural fairness - The Federal Court held that the Board's failure to exercise its discretion in favour of an oral hearing denied Gallone procedural fairness and breached the rules of natural justice - The suspension of the LTSO and ensuing incarceration constituted a significant curtailment of Gallone's residual liberty interests protected by s. 7 of the Charter - Such a significant impact generally required an oral hearing - Further, legitimate concerns as to Gallone's mental capacities (psychiatric issues) made an oral hearing appropriate - Procedural fairness mandated that the Board should have held an in-person hearing - See paragraphs 10 to 22.

Administrative Law - Topic 2402

Natural justice - Procedure - General - Duty of fairness - [See Administrative Law - Topic 262 ].

Courts - Topic 2286

Jurisdiction - Bars - Academic matters or moot issues - After Gallone served the incarceratory portion of her 10.5 month sentence, she was released subject to a long term supervision order (LTSO) - The LTSO was suspended on three occasions for breaching its conditions, resulting in periods of re-incarceration - After the third suspension, the Parole Board denied Gallone's request that it exercise its discretion to hold an oral hearing - On the record, the Board decided not to cancel the suspension and recommended the filing of a criminal charge - Gallone applied to set aside the Board's decision for lack of procedural fairness - The Attorney General argued that the court should decline to hear the application, because the issue was now moot where Gallone was now released from custody and her LTSO conditions had been redetermined - The Federal Court, applying the Borowski (SCC) principles, exercised its discretion to hear the application notwithstanding that it was moot - The court stated that "the questions raised in this matter will continue to be raised during the upcoming reviews by the [Board] of the conditions of supervision, or, if necessary, during a review subsequent to a suspension of parole, both for [Gallone] and for other individuals in similar situations" - See paragraphs 8, 9.

Criminal Law - Topic 6511

Dangerous or long-term offenders - Detention (incl. common law preventive detention) - Release under supervision order (incl. breach of) - [See Administrative Law - Topic 262 ].

Cases Noticed:

New Brunswick (Board of Management) v. Dunsmuir (2008), 372 N.R. 1; 329 N.B.R.(2d) 1; 844 A.P.R. 1; 2008 SCC 9, refd to. [para. 7].

Khosa v. Canada (Minister of Citizenship and Immigration) (2009), 385 N.R. 206; 2009 SCC 12, refd to. [para. 7].

Borowski v. Canada (Attorney General), [1989] 1 S.C.R. 342; 92 N.R. 110; 75 Sask.R. 82, refd to. [para. 8].

Kippax v. Canada (Minister of Citizenship and Immigration) (2014), 454 F.T.R. 27; 2014 FC 429, refd to. [para. 9].

Way v. Commission des libérations conditionnelles du Canada, 2014 QCCS 4193, refd to. [para. 13].

Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817; 243 N.R. 22, refd to. [para. 15].

Mooring v. National Parole Board et al., [1996] 1 S.C.R. 75; 192 N.R. 161; 70 B.C.A.C. 1; 115 W.A.C. 1, refd to. [para. 16].

Singh v. Minister of Employment and Immigration, [1985] 1 S.C.R. 177; 58 N.R. 1, refd to. [para. 18].

Counsel:

Nadia Golmier, for the applicant;

Éric Lafrenière and Erin Morgan, for the respondent.

Solicitors of Record:

Nadia Golmier, Montreal, Quebec, for the applicant;

William F. Pentney, Deputy Attorney General of Canada, Ottawa, Ontario, for the respondent.

This application was heard on April 23, 2015, at Montreal, Quebec, before Tremblay-Lamer, J., of the Federal Court, who delivered the following judgment on May 8, 2015.