McBride v. Canada ( Commissioner of Corrections )
T-1616-93
Teitelbaum J.
1/11/94
22 pp.
Application for order setting aside National Parole Board ("Board") decision denying applicant statutory release on belief likely to commit offence causing death or serious harm prior to expiration of sentence-Whether Board properly applying test set out in Act, s. 130; and whether Corrections Branch properly following procedure set out in Act, s. 129-Applicant, having extensive psychiatric history, serving sentence for robbery and violence-Re-offence, while on mandatory supervision, adding concurrent six-year sentence-Applicant assaulting correctional officer-Corrections Branch seeking referral to Board for detention review on belief applicant likely to commit offence causing death or serious harm before expiration of sentence-S. 130 belief based on applicant's past record, including assault incident-Referral not made prior to six-month period preceding applicant's release date ("required period") pursuant to Act, s. 129(2)-Applicant submitting late referral proof Corrections Branch not having formed belief at that time, and such belief then requiring "serious" triggering event-Applicant submitting assault incident not satisfying s. 130 criteria for belief as not "serious" enough-Applicant referring to Ford v. Canada (Commissioner of Corrections) (1990), 54 C.C.C. (3d) 256 (F.C.T.D.) for claim required period forming procedural safeguard, and fairness precluding Board from considering applicant's history after required period as they had prior opportunity-Although normally referral made prior to required period, Act, s. 129(3)(a) allows referral where belief formed on basis of offender's behaviour during required period or on basis of information obtained during required period-Belief formed on basis of applicant's behaviour during required period as well as on new information obtained during required period-Act, s. 132 requiring Board to consider any factor in determining likelihood of offence causing death or serious harm before expiration of offender's sentence-In Ford belief based at least in part on information obtained after required period, therefore procedural safeguard not absolute-Court interfering only where no evidence supports conclusion information obtained after required period-Assault incident "new" in sense of indicating deterioration in applicant's behaviour after expiration of required period-No procedural improprieties in decision to refer applicant's case-Existence of reasonable basis for belief-No unfairness in Commissioner considering applicant's past history-Application dismissed-Corrections and Conditional Release Act, S.C. 1992, c. 20, ss. 129, 130, 132.