Judgments

A-602-04

2005 FCA 345

Daniel Normandin (Appellant)

v.

The Attorney General of Canada (Respondent)

Indexed as: Normandin v. Canada (F.C.A.)

Federal Court of Appeal, Décary, Létourneau and Pelletier JJ.A.--Montréal, October 6; Ottawa, October 26, 2005.

Parole --Appeal from Federal Court decision National Parole Board having jurisdiction to impose 90-day residence requirement on appellant upon expiration of warrant of committal as long-term offender subject to long-term supervision order--Appellant arguing that because scheme in Act re: release of long-term offenders not specifically providing for residence requirement condition, as opposed to scheme re: offenders on parole, statutory release, Board having no authority to impose such requirement on long-term offenders--Appellant's reliance on expressio unius est exclusio alterius (implied exclusion) rule rejected--Board having general power in Corrections and Conditional Release Act, s. 134.1(2) to ensure protection of society, facilitate successful reintegration into society of long-term offender by imposing conditions of supervision provided reasonable, necessary, limited in duration--This extensive discretionary power not precluded by more specific provisions in Act--Comparison, analysis of provisions applicable to distinct schemes governing long-term offenders, released offenders also not supporting appellant's submission Act, s. 134.1(2) not allowing Board's imposition of commitment to residence as condition of long-term supervision--Appeal dismissed.

Construction of Statutes --Appellant relying on expressio unius est exlusio alterius (implied exclusion) rule to argue that because scheme re: release of offenders on parole, statutory release referring to residence requirement condition, whereas scheme re: release of long-term offenders not so referring, Board not having authority to impose such condition on long-term offenders--Expressio unius est exlusio alterius rule not general rule of application, interpretation--Statutory provisions not mentioned in Corrections and Conditional Release Act, s. 99.1 (specifying sections applicable to long-term offenders) applying to long-term offenders when clearly indicating that so applying--Board's general power in Act, s. 134.1(2) to impose conditions of supervision not precluded by more specific provisions in Act, Corrections and Conditional Release Regulations--Implied exclusion rule also set aside as contrary to Act's purpose--Language of Act, s. 134.1(2), purpose of long-term offender release scheme making it clear Parliament intended assignment to community-based residential facility be an option where high degree of recidivism, dangerousness, temporary residence requirement essential--Conclusion also supported by Parliament's grant to Board of extensive discretionary power to impose reasonable, necessary conditions on long-term offender--Not necessary for Act, s. 99.1 to refer to s. 133(4.1) as latter not applying to long-term offenders--Fact Act, s. 135.1(1)(c) referring to power to order commitment to residence not meaning power to impose conditions in s. 134.1(2) excluding residence requirement--Power to commit, assign to residence two different concepts--Power under Act, s. 134.1(2) much broader--Regulations, s. 161(1) applying mutatis mutandis to long-term offender, not implying commitment to residence not allowed for such offenders.

This was an appeal from a decision of the Federal Court that the National Parole Board had jurisdiction to impose a special 90-day residence requirement on the appellant upon the expiration of his warrant of committal as a long-term offender subject to a long-term supervision order.

Sections 133 and 134 of the Corrections and Conditional Release Act set out a scheme of conditions applicable to offenders on parole or statutory release. The scheme applicable to the release of long-term offenders is found in sections 134.1 and 135.1 of the Act. Relying on the implied exclusion rule of statutory interpretation (expressio unius est exclusio alterius), the appellant argued that since sections 99.1 and 134.1 of the Act and subsection 161(1) of the Corrections and Conditional Release Regulations expressly identify the Board's powers in regard to a long-term offender and the conditions it may impose on the offender, without including any residence requirement condition other than what is provided in section 135.1, and without including subsection 133(4.1) of the Act, which allows such a requirement, Parliament has implicitly excluded the latter possibility and consequently denied this authority to the Board in the case of long-term offenders.

Held, the appeal should be dismissed.

The expressio unius est exclusio alterius rule is not a general rule of application or interpretation. Statutory provisions not mentioned in section 99.1 will apply to long-term offenders when those provisions clearly indicate that they apply to these offenders. As such, the Board's general power (found in subsection 134.1(2)) to ensure the protection of society and facilitate the successful reintegration into society of a long-term offender by imposing on the offender the conditions of supervision that the Board considers reasonable and necessary for this purpose is not precluded by the more specific provisions in sections 99.1, 134.1, 135.1 and subsection 133(4.1) of the Act.

The expressio unius est exclusio alterius rule was set aside because its application would have meant that the Board could impose a residence requirement on paroled offenders but not on long-term offenders who pose a high risk of recidivism. This would have gone against the Act's purpose. The very language of subsection 134.1(2) of the Act, which grants the Board a general power to set conditions for long-term offenders without restrictions as to their content and nature other than the requirement that they be necessary, reasonable and limited in duration, illustrates that it is not the intention of Parliament that long-term offenders with a high degree of recidivism, who chose to serve their sentence in full could not be assigned to a community-based residential facility upon release even if posing a high level of danger and an increased risk of harm to society as a result. Parliament's intention is also illustrated by the fact that the purpose of the scheme established for long-term offenders within the community is to enhance the offender's social reintegration without compromising the protection of society and the victims. The scheme is not free of constraint, given the nature of the crimes and the risks of recidivism. It would not be reasonable to conclude that Parliament, in the pursuit of the objectives of the Act, by granting the Board the extensive discretionary power to impose reasonable and necessary conditions on a long-term offender, intended to exclude by implication the condition of a residence requirement, even when that is necessary in order to protect society and facilitate the successful reintegration into society of the offender.

The comparison and analysis of the provisions applicable to the distinct schemes governing long-term offenders and released offenders did not support the appellant's submission that subsection 134.1(2) of the Act does not allow the Board to impose a commitment to residence as a condition of long-term supervision. It is not necessary for section 99.1 to refer to subsection 133(4.1) and the residence requirement authority that this subsection contains in relation to offenders on statutory release. Subsection 133(4.1) does not apply to long-term offenders who are not on statutory release and it was not necessary for Parliament to make it applicable to them through section 99.1 because the distinct scheme, which provides the conditions for supervision of long-term offenders, gives the Board, through the operation of subsection 134.1(2), an authority, less restrictive than that of subsection 133(4.1), to impose conditions of release during their period of long-term supervision. The risk of recidivism is high for long-term offenders and the period of supervision is lengthy, so it was not unreasonable to think that Parliament intended to leave intact the extensive discretionary authority granted to the Board in subsection 134.1(2) of the Act in order to allow it to meet the specific needs of long-term offenders and of the community. As to paragraph 135.1(1)(c) of the Act, the fact that it refers to the Board's power to order commitment to a residence of a long-term offender does not mean that the general authority in subsection 134.1(2) to impose conditions refers to conditions other than a residence requirement. A power to commit to a residence is not the same thing as a power to assign to residence. The former punishes the conduct of the long-term offender, whereas the latter refers to a condition of his long-term supervision or of his release (in the case of an offender on statutory release). These are two different concepts. The intervention under section 135.1 reflects the urgency of the situation created by the failure to comply with the conditions set out in the long-term supervision order and the time-specific nature of the measures taken. This contrasts with the much broader power to set conditions of supervision under subsection 134.1(2). Finally, subparagraph 161(1)(g)(i) of the Regulations provides that the offender, once released, shall advise his parole supervisor of his address of residence. That provision must apply with the necessary adaptations to the long-term offender. It also applies to the released offender for whom commitment to residence is explicitly provided for by subsections 133(4) and (4.1). Therefore, there was no valid argument to be drawn from subparagraph 161(1)(g)(i) that would imply that commitment to residence is not allowed for long-term offenders.

statutes and regulations judicially

considered

Canadian Charter of Rights and Freedoms, being Part I of the Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44], s. 7.

Corrections and Conditional Release Act, S.C. 1992, c. 20, ss. 99 (as am. by S.C. 2002, c. 1, s. 173), 99.1 (as enacted by S.C. 1997, c. 17, s. 18), 100, 101, 102 (as am. by S.C. 1995, c. 42, s. 27(F)), 109, 110, 111, 133 (as am. by S.C. 1995, c. 42, s. 48, 71(F); 1997, c. 17, s. 28), 134 (as am. by S.C. 1995, c. 42, s. 71(F); 1997, c. 17, s. 29), 134.1 (as enacted idem, s. 30), 134.2 (as enacted idem), 135 (as am. by S.C. 1995, c. 22, s. 18; c. 42, ss. 50, 69(E), 70(E); 1997, c. 17, s. 32(F), 32.1), 135.1 (as enacted idem, s. 33), 140 (as am. by S.C. 1995, c. 42, ss. 55, 69(E)), 141 (as am. idem, s. 56(F)), 142 (as am. by S.C. 1995, c. 22, s. 13, c. 42, s. 57, 71(F), 72(F); 1997, c. 17, s. 35), 143, 144, 145, Sch. I.

Corrections and Conditional Release Regulations, SOR/92-620, s. 161.

Criminal Code, R.S.C., 1985, c. C-46, ss. 753.1 (as enacted by S.C. 1997, c. 17, s. 4; 2002, c. 13, s. 76), 753.2 (as enacted by S.C. 1997, c. 17, s. 4), 753.3 (as enacted idem).

cases judicially considered

applied:

McMurray v. Canada (National Parole Board) (2004), 249 F.T.R. 118; 2004 FC 462.

considered:

Godbout v. Longueuil (City), [1997] 3 S.C.R. 844; (1997), 152 D.L.R. (4th) 577; 97 CLLC 210-031, 47 C.R.R. (2d) 1; 43 M.P.L.R. (2d) 1; 219 N.R. 1; Alimport (Empresa Cubana Importadora de Alimentos) v. Victoria Transport Ltd., [1977] 2 S.C.R. 858; (1976), 10 N.R. 451; R. v. V.M., [2003] O.T.C. 97; [2003] O.J. No. 436 (QL) (S.C.J.); R. v. Johnson (2001), 159 B.C.A.C. 255; 158 C.C.C. (3d) 155; 2001 BCCA 456.

referred to:

Congrégation des Frères de l'Instruction Chrétienne v. Commissaires d'écoles (Grand'pré), [1977] 1 S.C.R. 429; (1975), 10 N.R. 227; Murray Bay Motor Co. Ltd. v. Bélair Insurance Co., [1975] 1 S.C.R. 68; (1973), 42 D.L.R. (3d) 588; 1 N.R. 206; Ternette v. Solicitor General of Canada, [1984] 2 F.C. 486; (1984), 10 D.L.R. (4th) 587; [1984] 5 W.W.R. 612; 32 Alta. L.R. (2d) 310; 9 Admin. L.R. 24 (T.D.); Nicholson v. Haldimand-Norfolk Regional Board of Commissioners of Police, [1979] 1 S.C.R. 311; (1978), 88 D.L.R. (3d) 671; 78 CLLC 14,181; 23 N.R. 410.

authors cited

Côté, Pierre-André. Interpretation of Legislation in Canada, 3rd ed. Scarborough, Ont.: Carswell, 2000.

Sullivan, Ruth. Sullivan and Driedger on the Construction of Statutes, 4th ed. Markham: Butterworths, 2002.

APPEAL from a decision of the Federal Court ([2005] 2 F.C.R. 373; (2004), 259 F.T.R. 144; 2004 FC 1404) upholding the National Parole Board's imposition of a 90-day special residence requirement on the appellant upon the expiration of his warrant of committal as a long-term offender subject to a long-term supervision order. Appeal dismissed.

appearances:

Diane Condo for appellant.

Dominique Guimond for respondent.

solicitors of record:

Condo Law Office, Ottawa, for appellant.

Deputy Attorney General of Canada for respondent.

The following is the English version of the reasons for judgment rendered by

[1]Létourneau J.A.: Did the National Parole Board (Board) have jurisdiction to impose, as it did by order, a special 90-day residency condition on the appellant upon the expiration of his warrant of committal as a long-term offender subject to a long-term supervision order?

[2]The question in the case at bar has become moot through lapse of time, as is often the case in prison law cases. However, the parties agreed that the subject- matter of the litigation was, and remained for the future, of great practical importance for the rights of long-term offenders who could, like the appellant, be subject to such a condition. At the hearing, we expressed our agreement to hear the appeal. We said we were satisfied that it is in the interest of the administration of justice to rule on the merits of the appeal.

[3]So as not to interrupt the sequence of the appellant's argument and the analysis that I make of it, I reproduce in an appendix, with a few exceptions, the various statutory provisions that are relevant to the understanding and resolution of the case.

[4]Madam Justice Tremblay-Lamer, before whom the question came by way of judicial review, answered in the affirmative [[2005] 2 F.C.R. 373 (F.C.)]. In my opinion, her conclusion was legally justified. It is not my intention to repeat each of the rationales she gave for finding that subsection 134.1(2) [as enacted by S.C. 1997, c. 17, s. 30] of the Corrections and Conditional Release Act, S.C. 1992, c. 20 (Act) applies in this case and is the basis of the authority for imposing a residence requirement as a special condition and for the way in which that authority was exercised.

[5]To situate clearly the appellant's submissions, which I will set out below, it should be borne in mind that sections 133 [as am. by S.C. 1995, c. 42, s. 48, 71(F); 1997, c. 17, s. 28] and 134 [as am. by S.C. 1995, c. 42, s. 71(F); 1997, c. 17, s. 29] of the Act enunciate a scheme of conditions applicable to offenders on parole or statutory release or on a temporary absence from their place of detention. However, the scheme governing the release of long-term offenders is found in sections 134.1 [as enacted by S.C. 1997, c. 17, s. 30] and 135.1 [as enacted idem, s. 33] and defines the conditions that apply to this class of offenders.

[6]Furthermore, to facilitate the reading of the text, I intend to use the term long-term offender to designate a person on whom, like the appellant, the criminal court has imposed a long-term supervision order to be served within the community after serving his sentence of imprisonment.

[7]The long-term offender's legal situation will be contrasted in the course of these reasons with the situation of offenders released on parole or statutory release. I will use the term paroled offender to refer to both types of released offenders even though, legally speaking, the status of offenders on parole differs somewhat from that of offenders on statutory release. Where it is necessary to differentiate one from or in relation to the other, I will refer to an offender on parole or an offender on statutory release as the case may be.

[8]So as not to unduly burden the reading of these reasons, I will refrain from referring to offenders who are on temporary absence, since the present argument does not concern them.

Appellant's submissions

[9]On appeal before us, the appellant argued that the Board did not have jurisdiction to impose a residence requirement on him, and cited in his support the implied exclusion rule of statutory construction. This rule was at one time expressed by the Latin maxim expressio unius est exclusio alterius. The appellant's argument in this regard assumes the following form.

[10]Subsection 134.1(1) of the Act states that the conditions that are prescribed in subsection 161(1) of the Corrections and Conditional Release Regulations, SOR/92-620 (Regulations) apply to the long-term offender. I repeat that this is the situation in which, pursuant to the court order made against him, the appellant found himself upon the expiration of his sentence of two years' imprisonment for some sexual offences.

[11]Now, the appellant rightly notes that subsection 161(1) of the Regulations, to which subsection 134.1(1) refers, provides a list of conditions that do not, however, include a residence requirement like the one imposed in this case by the Board.

[12]The appellant further notes that section 99.1 [as enacted by S.C. 1997, c. 17, s. 18] of the Act provides that a person like him, who is required to be supervised by a long-term supervision order, is deemed to be an offender for the purposes of Part II of the Act and that, in such cases, sections 100, 101, 109 to 111 and 140 [as am. by S.C. 1995, c. 42, ss. 55, 69(E)] [ss. 141 (as am. idem, s. 56(F)), 142 (as am. by S.C. 1995, c. 22, s. 13; c. 42, ss. 57, 71(F), 72(F); 1997, c. 17, s. 35)] to 145 of the Act apply, with such modifications as the circumstances require, to the long-term supervision of that person.

[13]However, subsections 133(4) and (4.1), which, in order to facilitate the successful reintegration into society of an offender, allow a requirement of residence in a community-based residential facility or in a psychiatric facility to be imposed as a condition of parole or statutory release, is not found in the list of sections enumerated in section 99.1

[14]Finally, the appellant refers us to section 135.1 of the Act, which deals with the suspension of long-term supervision where an offender breaches a condition of release that is set down in the long-term supervision order. This section indicates that non-compliance with the conditions of release may result in an order of confinement of the long-term offender in a community-based residential facility or in a psychiatric facility.

[15]Thus, the appellant's argument continues, since sections 99.1 and 134.1 of the Act and subsection 161(1) of the Regulations expressly identify the Board's powers in regard to a long-term offender and the conditions it may impose on the offender, without including any residence requirement condition other than what is provided in section 135.1, and without including subsection 133(4.1) of the Act, which allows such a requirement, Parliament has implicitly excluded the latter possibility and consequently denied this authority to the Board in the case of long-term offenders.

[16]To support her argument based on the rule of implied exclusion, the appellant's counsel conducted an exegesis of the language of sections 133, 134.1 and 135.1 of the Act, pointing to their parallelism within their respective areas of application and carefully spelling out the significant differences that exist in terms of their scope. A few examples will suffice to illustrate and aid in understanding the thesis she presents.

[17]She rightly submits that sections 133 and 134 apply to paroled offenders. I agree that this class of offenders subject to the prescriptive provisions of sections 133 and 134 also includes the long-term offender during his sentence of imprisonment if, during that period, he is paroled or qualifies for statutory release upon the expiration of the statutory period provided for that purpose which, unless otherwise provided, is two thirds of his sentence of imprisonment.

[18]According to the appellant's counsel, the difference between the long-term offender and paroled offenders--because there undeniably is one--is in terms of the expiration of the sentence of imprisonment. While paroled offenders cease at that point to be subject to conditions of release and the jurisdiction of the Board, the long-term offender at that point comes within the regime of long-term supervision conditions that is found, as mentioned earlier, in sections 134.1 and 135.1 of the Act. The paroled offenders, having served their sentence, are free of any constraint; the long-term offender then enters the second phase of the sentence he was given by the court, the first phase being the imprisonment, the second supervision within the community because of the high degree of risk of a repeat offence. This is where the appellant's argument based on an exegesis of the statutes comes into play.

[19]Under the scheme of conditions of release governed by sections 133 and 134, applicable to all paroled offenders, including, I repeat, the long-term offenders who benefit from it, we find some so-called "automatic" conditions of release imposed through the effect of the Act on the person who is thereby released. In subsection 134.1(1) there is an analogous provision in the scheme of long-term supervision conditions specifically governing the long-term offender during his period of supervision. I reproduce, in parallel columns, the two provisions in alternating English and French:

Paroled offender

133. . . .

(2) Subject to subsection (6), every offender released on parole, statutory release or unescorted temporary absence is subject to the conditions prescribed by the regulations.

Long-term offender

134.1 (1) Subject to subsection (4), every offender who is required to be supervised by a long-term supervision order is subject to the conditions prescribed by subsection 161(1) of the Corrections and Conditional Release Regulations, with such modifications as the circumstances require.

[20]Furthermore, the two schemes also allow the imposition of some reasonable and necessary special or specific conditions that may be required for the protection of society and the successful reintegration into society of an offender. These are found, respectively, in subsections 133(3) and 134.1(2) and (3):

Paroled offender

133. . . .

(3) The releasing authority may impose any conditions on the parole, statutory release or unescorted temporary absence of an offender that it considers reasonable and necessary in order to protect society and to facilitate the successful reintegration into society of the offender.

[no equivalent]

Long-term offender

134.1 . . .

(2) The Board may establish conditions for the long-term supervision of the offender that it considers reasonable and necessary in order to protect society and to facilitate the successful reintegration into society of the offender.

(3) A condition imposed under subsection (2) is valid for the period that the Board specifies.

[21]I note in passing that subsection 134.1(3) has no equivalent in the paroled offender regime for the simple reason that this regime ceases to be operative and to apply once the duration of the sentence of imprisonment has reached its conclusion. So it is not necessary in this regime to provide authority to set a limit on the duration of the parole conditions. The situation is different in the case of long-term offenders since the extended supervision may last up to 10 years after the expiration of the sentence of imprisonment. It may prove unreasonable and unnecessary to impose a condition with a duration of 10 years. Hence the appropriateness if not the necessity of the authority conferred in subsection 134.1(3).

[22]Within this nomenclature of the powers to impose conditions--and it is at this point that the appellant invokes the rule of implied exclusion and the exegesis of the texts--subsections 133(4) and (4.1) confer the authority to impose a residence requirement on a paroled offender. The regime of conditions for long-term supervision has no equivalent for the long-term offender:

Paroled offender

133. . . .

(4) Where, in the opinion of the releasing authority, the circumstances of the case so justify, the releasing authority may require an offender, as a condition of parole or unescorted temporary absence, to reside in a community-based residential facility.

(4.1) In order to facilitate the successful reintegration into society of an offender, the releasing authority may, as a condition of statutory release, require that the offender reside in a community-based residential facility or in a psychiatric facility, where the releasing authority is satisfied that, in the absence of such a condition, the offender will present an undue risk to society by committing an offence listed in Schedule I before the expiration of the offender's sentence according to law.

Long-term offender

134.1

[no equivalent]

[23]And, counsel for the appellant adds, since subsections 133(4) and (4.1) and section 134.1 were added to the Act at the same time, in 1997, Parliament would have included the authority to impose a residence requirement in section 134.1, or, in section 99.1, would have referred to subsection 133(4.1), if it had intended that such a possibility should exist for long-term offenders during the period of long-term supervision. (It would appear that subsection 133(4) is part of the Act since 1992 and that subsection 133(4.1) was added to it in 1995).

[24]Finally, the appellant's counsel submits that in case of ambiguity in the interpretation of the Act, the Court must adopt the interpretation that is consistent with the Charter [Canadian Charter of Rights and Freedoms, being Part I of the Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44]] and that favours the accused. She argues that the right to liberty guaranteed by section 7 of the Charter includes the right to choose one's place of residence and she refers us to the decision of the Supreme Court of Canada in Godbout v. Longueuil (City), [1997] 3 S.C.R. 844.

[25]I arrive, therefore, at the stage of analysis of the appellant's submissions. I will begin with his arguments concerning the application of the implied exclusion rule. I will then examine his comparative study of the statutory provisions at issue, and, finally, discuss his right to benefit from the interpretation that is favourable to him in case of ambiguity, and his right to choose his place of residence.

Analysis of appellant's submissions

1. Application of the expressio unius est exclusio alterius or implied exclusion rule

[26]The appellant's argument in relation to the implied exclusion rule is attractive, but it gives this rule of construction an absolutism that the cases and authorities quite uniformly do not grant it.

[27]First, this rule of statutory interpretation, also known as the "a contrario argument" (see Pierre-André Côté, The Interpretation of Legislation in Canada, 3rd ed. (Scarborough: Carswell, 2000), at page 336), operates in the following way, according to Professor Sullivan in Sullivan and Driedger on the Construction of Statutes, 4th ed. (Toronto: Butterworths, 2002), at pages 186-187:

[traduction]

An implied exclusion argument lies whenever there is reason to believe that if the legislature had meant to include a particular thing within its legislation, it would have referred to that thing expressly. Because of this expectation, the legislature's failure to mention the thing becomes grounds for inferring that it was deliberately excluded. Although there is no express exclusion, exclusion is implied. The force of the implication depends on the strength and legitimacy of the expectation of express reference. The better the reason for anticipating express reference to a thing, the more telling the silence of the legislature. [Emphasis added.]

[28]But important and useful as it may be, this rule of construction is very far from being a general rule of application or interpretation: see Congrégation des Frères de l'Instruction Chrétienne v. Commissaires d'écoles (Grand'pré), [1977] 1 S.C.R. 429, at page 435; Murray Bay Motor Co. Ltd., v. Belair Insurance Co., [1975] 1 S.C.R. 68, at page 74. In fact, in Alimport (Empresa Cubana Importadora de Alimentos) v. Victoria Transport Ltd., [1977] 2 S.C.R. 858, at page 862, Mr. Justice Pigeon, discussing the rule and speaking for the Court, writes:

The principle that the mention of a particular case excludes application of other cases not mentioned is far from being recognized as a general rule of interpretation. On the contrary, an affirmative provision of limited scope does not ordinarily exclude the application of a general rule otherwise established. [Emphasis added.]

[29]Subsection 134.1(2) of the Act, cited by the Board as authority for imposing a residence requirement, contains a general power to ensure the protection of society and facilitate the successful reintegration into society of a long-term offender by imposing on him the conditions of supervision that the Board considers reasonable and necessary for this purpose. This general power, in my opinion, is not precluded by the more specific provisions in sections 99.1, 134.1, 135.1 and subsection 133(4.1) of the Act. I will return later to the mutual interrelationship of these provisions. Suffice it to say at present that I agree with the remarks by Russell J. in McMurray v. Canada (National Parole Board) (2004), 249 F.T.R. 118 (F.C.), reproduced in the instant case by Tremblay-Lamer J.

[30]In McMurray, Russell J., construing section 99.1, cited in support by the appellant, and looking to the context, the general scheme and purpose of the Act and the ordinary meaning of the words, concludes that section 99.1 refers to some specific provisions, the application of which to long-term offenders is not obvious, in order to express Parliament's intention that they apply. But this does not preclude, and I would add limit, the application to long-term offenders of other statutory provisions that are not mentioned in section 99.1 when those provisions clearly indicate that they apply to these offenders. It is then unnecessary to mention them in section 99.1 since their application is obvious. That, in my opinion, is beyond the shadow of a doubt the case with section 134.1 and the general power to impose conditions that is found in subsection 134.1(2). I do not really see how the failure to include a reference to subsection 133(4.1) in section 99.1 would preclude or limit the general scope of the power that is expressly contained in subsection 134.1(2) to impose conditions on a long-term offender.

[31]Second, this rule of statutory interpretation relied on by the appellant must be used with the utmost caution: see P.-A. Côté, The Interpretation of Legislation, at page 337. Lacking absolute intrinsic value, the rule must be set aside when other statutory provisions relevant to the issue under review suggest that its consequences would go against the statute's purpose (see P.-A. Côté in his work, at page 339; Ternette v. Solicitor General of Canada, [1984] 2 F.C. 486 (T.D.)), are manifestly absurd (Congrégation des Frères de l'Instruction Chrétienne, at page 436) or lead to incoherence and injustice (Nicholson v. Haldimand-Norfolk Regional Board of Commissioners of Police, [1979] 1 S.C.R. 311, at pages 321-322).

[32]In short, the expressio unius est exclusio alterius rule cannot be used to thwart the intention of Parliament and make it inoperative. "Like all arguments based on these presumptions", writes Professor Sullivan, at page 193 of her work, referring to the rule, "its weight depends on a range of contextual factors and the weight of competing considerations. Even if an implied exclusion argument is not rebutted, it may be outweighed by other indicators of legislative intent."

[33]In the case at bar, the Judge did not fail to note the significant and, in my opinion, unavoidable if not to say fatal inconsistency in the appellant's position that the application of the rule would raise: the Board would have the power to impose a residence requirement on paroled offenders but could not do so in regard to long-term offenders that the Court had ordered supervised because of a high risk of recidivism, although, according to paragraph 101(a) of the Act, the protection of society is the paramount consideration that should guide the Board in achieving the purpose of conditional release, not to mention that these offenders can benefit from such a measure in terms of social reintegration. Wilson J. of the Ontario Superior Court had observed the same inconsistency in R. v. V.M., [2003] O.T.C. 97 (S.C.J.).

[34]Appellant's counsel submits that it is a mistake to engage, as the Superior Court of Ontario and the Federal Court did, in a comparison between long-term offenders and those on parole and then to draw a conclusion of inconsistency. This is the equivalent, to use her metaphor, of comparing apples and oranges.

[35]Her objection to the comparison is based on the fact that these are two quite different classes of offenders and that, in her opinion, the provisions of the Act as a whole indicate Parliament's intention that the two classes be subject to different regimes, because the offenders are in different conditions. According to her, a paroled offender ceases to be under the Board's jurisdiction when the duration of his prison sentence has expired, since his sentence has been served in full. However, that is not the case with the long-term offender, who remains subject to conditions, under the Board's supervision, and will be re-prosecuted if there is a breach of the conditions.

[36]With respect, I do not think the distinction made by the appellant's counsel, while correct, can justify the conclusion she draws that it was not Parliament's intention that a long-term offender could be subject to a residence requirement during his extended supervision. As is apparent below, to accept this conclusion would simply magnify the inconsistency in the situation.

[37]For example, a long-term offender who had conditional release (parole) or statutory release, like any other paroled offender, could be subject to a residence requirement, as Parliament has indicated in subsections 133(4) and (4.1). However, once his prison sentence has been served and his long-term supervision has begun, he could no longer be subject to a residence requirement even if such a condition was reasonable and necessary in order to protect the public or facilitate his social reintegration or both.

[38]Worse yet, a long-term offender who chose not to avail himself of parole or statutory release and who served his prison sentence in full, as is the case with the appellant, who remained imprisoned to the end because of his high risk of recidivism, could not be assigned transitionally to a community-based residential facility once he was released from prison and back in the community. That would be the case even if the offender's degree of recidivism and his dangerousness are high, even if the temporary residence requirement proved essential and even if there was an increased risk of harm to society as a result.

[39]There is no doubt in my mind that this is not the intention of Parliament. I find an initial indication of this in the very language of subsection 134.1(2) of the Act which, as mentioned earlier more than once, grants the Board a general power to set conditions for long-term offenders without restrictions as to their content and nature other than the requirement that they be necessary, reasonable and limited in duration.

[40]A second indication emerges from the very objective of the scheme for supervising long-term offenders. Before this scheme was established, a sexual offender could be sentenced as a dangerous offender for an indefinite period or a longer prison sentence. The scheme established by Parliament for long-term offenders within the community is a more flexible scheme that is more beneficial for them. Its purpose is to enhance the offender's social reintegration but without compromising the protection of society and the victims. Notwithstanding its greater flexibility, the scheme is not free of constraint, given the nature of the crimes and the risks of recidivism. In R. v. Johnson (2001), 159 B.C.A.C. 255, at paragraph 98, the British Columbia Court of Appeal summarizes clearly the purpose of the system for supervision of long-term offenders. Ryan J. writes:

In summary then, the dangerous offender designation under the new provisions is designed to ensure that those offenders who are truly dangerous, whose behaviour is unlikely to be modified or controlled, will be sentenced to an indeterminate sentence for the highest degree of state control. An offender whose conduct or behaviour is not pathologically intractable, in the sense that the offender can at least reach a stage where, though not curable, he or she can be safely controlled in the community and who would likely have been found to be a dangerous offender under the former provisions, may now qualify for long-term rather than dangerous offender status. This offender would have at least the possibility, when the offender is no longer a risk to the community, to one day be free of state control.

[41]Clearly, the application of the rule as proposed and interpreted by the appellant would undermine the objectives of the Act that are found in section 100, according to which "[t]he purpose of conditional release is to contribute to the maintenance of a just, peaceful and safe society by means of decisions on the timing and conditions of release that will best facilitate the rehabilitation of offenders and their reintegration into the community as law-abiding citizens." Of course Parliament's intention does not exclude the possibility that the social rehabilitation and reintegration of a long-term offender may, as needed, and must in some cases, include a residence requirement when he undertakes or serves his period of long-term supervision within the community.

[42]Furthermore, the proposed application of the rule tends to discredit court orders of long-term supervision of a long-term offender. It reduces their value and usefulness and risks jeopardizing the security that they are intended to bring to the community. Similarly, its consequence would be to unduly impede the work of the social workers and reduce its effectiveness while unjustly and unnecessarily increasing the risks of harm to society.

[43]In these circumstances, to conclude that this is the objective sought by Parliament, as the appellant's proposed application of the expressio unius est exclusio alterius rule would inexorably lead us to do, is to disregard the clearly contrary objectives Parliament took the trouble to express and elaborate in sections 100 and 101 of the Act.

[44]The authority given to the Board by subsection 134.1(2) is a broad and flexible discretionary authority and the discretion is exercised at three levels. First, the Board may or may not impose conditions for supervision of the long-term offender. Second, the Board is also given the authority to determine whether it is reasonable and necessary to do so in order to ensure the protection of the public and to facilitate the successful reintegration into society of the offender. Third, the Board establishes the duration of the supervision.

[45]Also, subsection 134.1(4) empowers the Board to remove or vary these conditions if it considers this appropriate or to relieve the long-term offender from compliance with any such conditions it has imposed.

[46]One can therefore see from these provisions Parliament's intention to rely on the expertise and experience of the Board in order, to the degree possible, to protect society while facilitating the successful reinsertion and integration into society of the offender. In this context, it is not reasonable, in my opinion, to conclude that Parliament, in the pursuit of the objectives of the Act, by granting the Board the extensive discretionary power to impose reasonable and necessary conditions on a long-term offender, intended to exclude by implication the condition of a residence requirement, even when that is necessary in order to protect society and facilitate the successful reintegration into society of the offender.

2. Analysis of the appellant's comparative study of the statutory provisions

[47]By necessity, when reviewing the appellant's a contrario argument based on the rule of implied exclusion, I examined in part the merit of the appellant's analysis of the statutory provisions, in particular sections 99.1, 133, 134 and 134.1 of the Act. I have no intention of repeating that exercise. But I think it is necessary to add this concerning the interrelationship of these provisions.

[48]It is true, as the appellant states, that section 99.1 of the Act does not refer to subsection 133(4.1) and the residence requirement authority that this subsection contains in relation to offenders on statutory release. But I agree with the respondent's counsel: this subsection 133(4.1) does not apply to long-term offenders who are not on statutory release and it was not necessary for Parliament to make it applicable to them through section 99.1 because the distinct scheme, which provides the conditions for supervision of long-term offenders, gives the Board, through the operation of subsection 134.1(2), an authority, less restrictive than that of subsection 133(4.1), to impose conditions of release during their period of long-term supervision. Parliament intended to give the Board greater latitude in the exercise of its jurisdiction over this kind of offender.

[49]That subsection 133(4.1) of the Act has a restrictive purpose is apparent from its very language and by comparing it with subsections 133(3) and 134.1(2). It will be recalled that subsections 133(3) and 134.1(2) give the Board identical powers to impose any conditions it considers reasonable and necessary in order to protect society and to facilitate the successful reintegration into society of the offender. In the case of subsection 133(3), these are paroled offenders. Subsection 134.1(2) covers long-term offenders.

[50]Subsection 133(3), like subsection 134.1(2), is, as worded, sufficiently broad to allow a residence requirement, so subsection 133(4.1) would be unnecessary had not Parliament intended, in the case of a residence requirement for an offender on statutory release, to limit the comprehensiveness of the power granted to the releasing authority by subsection 133(3).

[51]In fact, a residence requirement may be imposed on an offender on statutory release only if the releasing authority, which includes the Board, "is satisfied that, in the absence of such a condition," the offender will, before the expiration of his sentence, present an undue risk to society by committing an offence listed in Schedule I (this schedule refers to offences of a sexual or violent nature). The use of the authority under subsection 133(4.1) is therefore subject to a much more rigorous test than the one provided for the exercise of the general authority to impose conditions under subsection 133(3). On the one hand, there must be an undue risk to society (as opposed to a high risk of recidivism in the case of a long-term offender) and, on the other hand, it is not sufficient that the Board thinks it is necessary to impose some conditions on statutory release; it must be satisfied that the conditions are necessary and satisfied that a residence requirement is necessary in view of the nature of the particular risk.

[52]Parliament did not want to introduce this limitation in the case of long-term offenders, who begin their period of extended supervision while the offender on statutory release is reaching the end of his sentence. The risk of recidivism is high for long-term offenders and the period of supervision is a lengthy one, so it is not unreasonable to think that Parliament intended to leave intact the extensive discretionary authority it has granted the Board in subsection 134.1(2) of the Act in order to allow it to meet the specific needs of long-term offenders (if they are to be successfully reintegrated into society) and of the community which is being made to assume the risk of the offender's release.

[53]To support his argument, the appellant looks to section 135.1 of the Act which, in paragraph 135.1(1)(c), refers to the Board's power to order the commitment to a residence of a long-term offender. Since Parliament, in this section, has spoken about a residence requirement, the appellant says, it is obvious that the general authority in subsection 134.1(2) to impose conditions refers to conditions other than a residence requirement. With respect, I think the appellant is mistaken on this point, for the following reasons.

[54]Section 135.1 is addressed to actual or anticipated breaches of the conditions of a long-term supervision order or situations in which it is necessary to intervene in order to protect society. Commitment to a community-based residential facility is the end result of a process of suspension of supervision followed by apprehension of the offender. Depending on the seriousness of the breaches or of the situation, this process may also result in a commitment to custody rather than commitment to a residential facility.

[55]After reviewing the case, under subsection 135.1(6), the Board may cancel the suspension and order the resumption of long-term supervision with or without new conditions. Or it may recommend that an information be laid charging the offender with an offence under section 753.3 [as enacted by S.C. 1997, c. 17, s. 4] of the Criminal Code [R.S.C., 1985, c. C-46] (failing to comply with an order) if it is satisfied that no appropriate program of supervision can be established that would adequately protect society and that the conditions of supervision have been breached.

[56]What section 135.1 confers is a power of commitment to a residence and not a power to assign to a residence. The first, the power of commitment, punishes the conduct of the long-term offender while the second, the residence requirement, refers to a condition of his long-term supervision or, in the case of an offender on statutory release, to a condition of that release (see subsection 133(4.1)). The first is expressed and exercised by a warrant, the second simply by a statement or stipulation in the supervision measures.

[57]Parliament has taken the trouble to use a different terminology in order to clearly differentiate between the two concepts. Subsection 133(4.1) states, in the case of an offender on statutory release, that the releasing authority "may. . . require that the offender reside." This terminology contrasts with that of subsection 135.1(1), applicable to the long-term offender, where the Board "may, by warrant. . . authorize the commitment of the offender to a community-based residential facility or. . . to custody."

[58]The terminology of section 135.1 of the Act also provides two further indicators as to the different nature of the authority exercised under this provision.

[59]First, the warrant of commitment to residence of a long-term offender may be issued by, among other persons, a member of the Board or the person designated, by name or by position, by the Chairperson of the Board or by the Commissioner. This differs from the authority to assign such an offender to residence as a condition of supervision under subsection 134.1(2), where it can be seen that this authority is the Board's. The delegation of authority in section 135.1 is explained by the urgency of the intervention. To all intents and purposes it is identical to the authority in section 135 of the Act which, parallel to the provisions covering a long-term offender, is addressed to the suspension by warrant of the release of a paroled offender, his arrest and his incarceration.

[60]Second, commitment to residence by warrant is temporary and runs only until the case is disposed of through the cancellation of the suspension, the imposition of new conditions of supervision or the indictment of the offender. Like the warrant of committal, moreover, it cannot exceed 90 days under subsection 135.1(2). Again, these provisions of section 135.1 reflect the urgency of the situation created by the failure to comply with the conditions set out in the long-term supervision order and the time-specific nature of the measures taken, whether of commitment to residence or custody.

[61]Again, the limited applicability of section 135.1 contrasts with the much broader power to set conditions of supervision under subsection 134.1(2). The duration of the commitment to residence under subsection 134.1(2) is established by the Board and determined by the necessity and reasonableness of imposing such a condition. This subsection, I note again, does not set any maximum time limit for commitment to residence, as is the case for the warrant of commitment in section 135.1.

[62]Finally, the appellant submits that subparagraph 161(1)(g)(i) of the Regulations demonstrates, by its content, that the long-term offender cannot be compelled to remain in a residence. This subparagraph which, through the operation of section 134.1 applies, mutatis mutandis, to the long-term offender, provides that the offender, once released, shall advise his parole supervisor of his address of residence and thereafter report immediately any change in his address of residence. This obligation, the appellant says, is meaningless for a long-term offender committed to residence since he cannot change his residence. Consequently, Parliament was not contemplating a residence requirement for long-term offenders.

[63]The appellant's conclusion, in my opinion, is not supported by his premise. First of all, subsection 161(1) of the Regulations must apply with the necessary adaptations. Second, subparagraph 161(1)(g)(i) applies as well to the released offender by the reference to subsection 133(2) of the Act. And commitment to residence of this offender is explicitly provided for by subsections 133(4) and (4.1) of the Act. So there is no valid argument to be drawn from subparagraph 161(1)(g)(i) of the Regulations that would imply that commitment to residence is not allowed for long-term offenders.

[64]In the end, then, the comparison and analysis of the provisions applicable to the distinct schemes governing long-term offenders and released offenders do not support the appellant's submission that subsection 134.1(2) of the Act does not allow the Board to impose a commitment to residence as a condition of long-term supervision.

3. Appellant's right to the interpretation that favours him in case of ambiguity and to choose his place of residence

[65]Since I have concluded that there is no ambiguity as to the interpretation of subsection 134.1(2), it is unnecessary to discuss the appellant's claim in this regard at any greater length.

[66]As to his right to choose his place of residence, the appellant remains subject to the authority to commit to residence and the other conditions that his period of supervision may necessitate. Moreover, it should be kept in mind that the appellant is still under sentence and that the "long-term supervision" component of that sentence submits him to conditions that lawfully limit his freedom in the interests of the public's protection. Be that as it may, I do not think that in these conditions and for as long as the period of supervision lasts, the Charter guarantees him the absolute and unfettered right to reside wherever he wishes, particularly in proximity to his victims.

[67]I am grateful to counsel for both parties for their mastery of the issues and the treatment they made of it in their submissions.

[68]For the reasons expressed, I would dismiss the appeal but without costs in the circumstances as its purpose was to determine, for the future, a question of importance for long-term offenders, the Board and the penitentiary authorities.

Décary J.A.: I agree.

Pelletier J.A.: I agree.

APPENDIX

APPLICABLE LAW

Criminal Code, R.S.C., 1985, c. C-46 [ss. 753.1 (as enacted by S.C. 1997, c. 17, s. 4; 2002, c. 13, s. 76), 753.2 (as enacted by S.C. 1997, c. 17, s. 4), 753.3 (as enacted idem):

753.1 (1) The court may, on application made under this Part following the filing of an assessment report under subsection 752.1(2), find an offender to be a long-term offender if it is satisfied that:

(a) it would be appropriate to impose a sentence of imprisonment of two years or more for the offence for which the offender has been convicted;

(b) there is a substantial risk that the offender will reoffend; and

(c) there is a reasonable possibility of eventual control of the risk in the community.

(2) The court shall be satisfied that there is a substantial risk that the offender will reoffend if

(a) the offender has been convicted of an offence under section 151 (sexual interference), 152 (invitation to sexual touching) or 153 (sexual exploitation), subsection 163.1(2) (making child pornography), subsection 163.1(3) (distribution, etc., of child pornography), subsection 163.1(4) (possession of child pornography), subsection 163.1(4.1) (accessing child pornography), section 172.1 (luring a child), subsection 173(2) (exposure) or section 271 (sexual assault), 272 (sexual assault with a weapon) or 273 (aggravated sexual assault), or has engaged in serious conduct of a sexual nature in the commission of another offence of which the offender has been convicted; and

(b) the offender

(i) has shown a pattern of repetitive behaviour, of which the offence for which he or she has been convicted forms a part, that shows a likelihood of the offender's causing death or injury to other persons or inflicting severe psychological damage on other persons, or

(ii) by conduct in any sexual matter including that involved in the commission of the offence for which the offender has been convicted, has shown a likelihood of causing injury, pain or other evil to other persons in the future through similar offences.

(3) Subject to subsections (3.1), (4) and (5), if the court finds an offender to be a long-term offender, it shall

(a) impose a sentence for the offence for which the offender has been convicted, which sentence must be a minimum punishment of imprisonment for a term of two years; and

(b) order the offender to be supervised in the community, for a period not exceeding ten years, in accordance with section 753.2 and the Corrections and Conditional Release Act.

(3.1) The court may not impose a sentence under paragraph (3)(a) and the sentence that was imposed for the offence for which the offender was convicted stands despite the offender's being found to be a long-term offender, if the application was one that

(a) was made after the offender begins to serve the sentence in a case to which paragraphs 753(2)(a) and (b) apply; and

(b) was treated as an application under this section further to the court deciding to do so under paragraph 753(5)(a).

(4) The court shall not make an order under paragraph (3)(b) if the offender has been sentenced to life imprisonment.

(5) If the offender commits another offence while required to be supervised by an order made under paragraph (3)(b), and is thereby found to be a long-term offender, the periods of supervision to which the offender is subject at any particular time must not total more than ten years.

(6) If the court does not find an offender to be a long-term offender, the court shall impose sentence for the offence for which the offender has been convicted.

753.2 (1) Subject to subsection (2), an offender who is required to be supervised by an order made under paragraph 753.1(3)(b) shall be supervised in accordance with the Corrections and Conditional Release Act when the offender has finished serving

(a) the sentence for the offence for which the offender has been convicted; and

(b) all other sentences for offences for which the offender is convicted and for which sentence of a term of imprisonment is imposed on the offender, either before or after the conviction for the offence referred to in paragraph (a).

(2) A sentence imposed on an offender referred to in subsection (1), other than a sentence that requires imprisonment of the offender, is to be served concurrently with the long-term supervision ordered under paragraph 753.1(3)(b).

(3) An offender who is required to be supervised, a member of the National Parole Board, or, on approval of that Board, the parole supervisor, as that expression is defined in subsection 134.2(2) of the Corrections and Conditional Release Act, of the offender, may apply to a superior court of criminal jurisdiction for an order reducing the period of long-term supervision or terminating it on the ground that the offender no longer presents a substantial risk of reoffending and thereby being a danger to the community. The onus of proving that ground is on the applicant.

(4) The applicant must give notice of an application under subsection (3) to the Attorney General at the time the application is made.

753.3 (1) An offender who is required to be supervised by an order made under paragraph 753.1(3)(b) and who, without reasonable excuse, fails or refuses to comply with that order is guilty of an indictable offence and liable to imprisonment for a term not exceeding ten years.

(2) An accused who is charged with an offence under subsection (1) may be tried and punished by any court having jurisdiction to try that offence in the place where the offence is alleged to have been committed or in the place where the accused is found, is arrested or is in custody, but if the place where the accused is found, is arrested or is in custody is outside the province in which the offence is alleged to have been committed, no proceedings in respect of that offence shall be instituted in that place without the consent of the Attorney General of that province.

Corrections and Conditional Release Act, S.C. 1992, c. 20 [ss. 99 (as am. by S.C. 2002, c. 1, s. 173), 102 (as am. by S.C. 1995, c. 42, s. 27(F)), 134.2 (as enacted by S.C. 1997, c. 17, s. 30), 135 (as am. by S.C. 1995, c. 22, s. 18; c. 42, ss. 50, 69(E), 70(E); 1997, c. 17, ss. 32(F), 32.1)]:

PART II

CONDITIONAL RELEASE, DETENTION AND LONG-TERM SUPERVISION

Interpretation

99. (1) In this Part,

. . .

"offender" means:

(a) a person, other than a young person within the meaning of the Youth Criminal Justice Act, who is under a sentence imposed before or after the coming into force of this section

(i) pursuant to an Act of Parliament or, to the extent that this Part applies, pursuant to a provincial Act, or

(ii) on conviction for criminal or civil contempt of court if the sentence does not include a requirement that the offender return to that court, or

(b) a young person within the meaning of the Youth Criminal Justice Act with respect to whom an order, committal or direction under section 76, 89, 92 or 93 of that Act has been made,

but does not include a person whose only sentence is a sentence being served intermittently pursuant to section 732 of the Criminal Code;

. . .

99.1 A person who is required to be supervised by a long-term supervision order is deemed to be an offender for the purposes of this Part, and sections 100, 101, 109 to 111 and 140 to 145 apply, with such modifications as the circumstances require, to the person and to the long-term supervision of that person.

. . .

Purpose and Principles

100. The purpose of conditional release is to contribute to the maintenance of a just, peaceful and safe society by means of decisions on the timing and conditions of release that will best facilitate the rehabilitation of offenders and their reintegration into the community as law-abiding citizens.

101. The principles that shall guide the Board and the provincial parole boards in achieving the purpose of conditional release are

(a) that the protection of society be the paramount consideration in the determination of any case;

(b) that parole boards take into consideration all available information that is relevant to a case, including the stated reasons and recommendations of the sentencing judge, any other information from the trial or the sentencing hearing, information and assessments provided by correctional authorities, and information obtained from victims and the offender;

(c) that parole boards enhance their effectiveness and openness through the timely exchange of relevant information with other components of the criminal justice system and through communication of their policies and programs to offenders, victims and the general public;

(d) that parole boards make the least restrictive determination consistent with the protection of society;

(e) that parole boards adopt and be guided by appropriate policies and that their members be provided with the training necessary to implement those policies; and

(f) that offenders be provided with relevant information, reasons for decisions and access to the review of decisions in order to ensure a fair and understandable conditional release process.

102. The Board or a provincial parole board may grant parole to an offender if, in its opinion,

(a) the offender will not, by reoffending, present an undue risk to society before the expiration according to law of the sentence the offender is serving; and

(b) the release of the offender will contribute to the protection of society by facilitating the reintegration of the offender into society as a law-abiding citizen.

. . .

Conditions of Release

133. (1) In this section, "releasing authority" means

(a) the Board, in respect of

(i) parole,

(ii) statutory release, or

(iii) unescorted temporary absences authorized by the Board under subsection 116(1),

(b) the Commissioner, in respect of unescorted temporary absences authorized by the Commissioner under subsection 116(2); or

(c) the institutional head, in respect of unescorted temporary absences authorized by the institutional head under subsection 116(2).

(2) Subject to subsection (6), every offender released on parole, statutory release or unescorted temporary absence is subject to the conditions prescribed by the regulations.

(3) The releasing authority may impose any conditions on the parole, statutory release or unescorted temporary absence of an offender that it considers reasonable and necessary in order to protect society and to facilitate the successful reintegration into society of the offender.

(4) Where, in the opinion of the releasing authority, the circumstances of the case so justify, the releasing authority may require an offender, as a condition of parole or unescorted temporary absence, to reside in a community-based residential facility.

(4.1) In order to facilitate the successful reintegration into society of an offender, the releasing authority may, as a condition of statutory release, require that the offender reside in a community-based residential facility or in a psychiatric facility, where the releasing authority is satisfied that, in the absence of such a condition, the offender will present an undue risk to society by committing an offence listed in Schedule I before the expiration of the offender's sentence according to law.

(4.2) In subsection (4.1), "community-based residential facility" includes a community correctional centre but does not include any other penitentiary.

(4.3) For the purposes of subsection (4.1), the releasing authority is not required to determine whether the offender is likely to commit any particular offence.

(4.4) A condition under subsection (4.1) that an offender reside in a community correctional centre is valid only if consented to in writing by the Commissioner or a person designated, by name or by position, by the Commissioner.

(5) A condition imposed pursuant to subsection (3), (4) or (4.1) is valid for such period as the releasing authority specifies.

(6) The releasing authority may, in accordance with the regulations, before or after the release of an offender,

(a) in respect of conditions referred to in subsection (2), relieve the offender from compliance with any such condition or vary the application to the offender of any such condition; or

(b) in respect of conditions imposed under subsection (3), (4) or (4.1), remove or vary any such condition.

134. (1) An offender who has been released on parole, statutory release or unescorted temporary absence shall comply with any instructions given by a member of the Board or a person designated, by name or by position, by the Chairperson of the Board or the Commissioner, or given by the institutional head or by the offender's parole supervisor, respecting any conditions of parole, statutory release or unescorted temporary absence in order to prevent a breach of any condition or to protect society.

(2) In this section, "parole supervisor" means

(a) a staff member as defined in subsection 2(1); or

(b) a person entrusted by the Service with the guidance and supervision of an offender on parole, statutory release or unescorted temporary absence.

Conditions for Long-Term Supervision

134.1 (1) Subject to subsection (4), every offender who is required to be supervised by a long-term supervision order is subject to the conditions prescribed by subsection 161(1) of the Corrections and Conditional Release Regulations, with such modifications as the circumstances require.

(2) The Board may establish conditions for the long-term supervision of the offender that it considers reasonable and necessary in order to protect society and to facilitate the successful reintegration into society of the offender.

(3) A condition imposed under subsection (2) is valid for the period that the Board specifies.

(4) The Board may, in accordance with the regulations, at any time during the long-term supervision of an offender,

(a) in respect of conditions referred to in subsection (1), relieve the offender from compliance with any such condition or vary the application to the offender of any such condition; or

(b) in respect of conditions imposed under subsection (2), remove or vary any such condition.

134.2 (1) An offender who is supervised pursuant to a long-term supervision order shall comply with any instructions given by a member of the Board or a person designated, by name or by position, by the Chairperson of the Board or by the Commissioner, or given by the offender's parole supervisor, respecting any conditions of long-term supervision in order to prevent a breach of any condition or to protect society.

(2) In this section, "parole supervisor" means

(a) a staff member as defined in subsection 2(1); or

(b) a person entrusted by the Service with the guidance and supervision of an offender who is required to be supervised by a long-term supervision order.

Suspension, Termination, Revocation and Inoperativeness of Parole, Statutory Release or Long-Term Supervision

Suspension, cessation, révocation et ineffectivité de la libération conditionnelle ou d'office ou de la surveillance de longue durée

135. (1) A member of the Board or a person, designated by name or by position, by the Chairperson of the Board or by the Commissioner, when an offender breaches a condition of parole or statutory release or when the member or person is satisfied that it is necessary and reasonable to suspend the parole or statutory release in order to prevent a breach of any condition thereof or to protect society, may, by warrant,

(a) suspend the parole or statutory release;

(b) authorize the apprehension of the offender; and

(c) authorize the recommitment of the offender to custody until the suspension is cancelled, the parole or statutory release is terminated or revoked or the sentence of the offender has expired according to law.

(2) A person designated pursuant to subsection (1) may, by warrant, order the transfer to penitentiary of an offender who is recommitted to custody pursuant to subsection (1) in a place other than a penitentiary.

(3) The person who signs a warrant pursuant to subsection (1) or any other person designated pursuant to that subsection shall, forthwith after the recommitment of the offender, review the offender's case and

(a) where the offender is serving a sentence of less than two years, cancel the suspension or refer the case to the Board together with an assessment of the case, within fourteen days after the recommitment or such shorter period as the Board directs; or

(b) in any other case, within thirty days after the recommitment or such shorter period as the Board directs, cancel the suspension or refer the case to the Board together with an assessment of the case stating the conditions, if any, under which the offender could in that person's opinion reasonably be returned to parole or statutory release.

(4) The Board shall, on the referral to it of the case of an offender serving a sentence of less than two years, review the case and, within the period prescribed by the regulations, either cancel the suspension or terminate or revoke the parole.

(5) The Board shall, on the referral to it of the case of an offender serving a sentence of two years or more, review the case and, within the period prescribed by the regulations, unless the Board grants an adjournment at the offender's request,

(a) cancel the suspension, where the Board is satisfied that, in view of the offender's behaviour since release, the offender will not, by reoffending before the expiration of the offender's sentence according to law, present an undue risk to society;

(b) where the Board is not satisfied as provided in paragraph (a), terminate the parole or statutory release of the offender if it was suspended by reason of circumstances beyond the offender's control or revoke it in any other case; or

(c) where the offender is no longer eligible for the parole or entitled to be released on statutory release, terminate or revoke it.

(6) If in the Board's opinion it is necessary and reasonable to do so in order to protect society or to facilitate the reintegration of the offender into society, the Board, when it cancels a suspension of the parole or statutory release of an offender, may

(a) reprimand the offender in order to warn the offender of the Board's dissatisfaction with the offender's behaviour since release;

(b) alter the conditions of the parole or statutory release; and

(c) order the cancellation not to take effect until the expiration of a specified period not exceeding thirty days after the date of the Board's decision, where the offender violated the conditions of parole or statutory release on the occasion of the suspension and on at least one previous occasion that led to a suspension of parole or statutory release during the offender's sentence.

(6.1) Where a person referred to in subsection (3) or the Board cancels a suspension under this section, the person or the Board, as the case may be, shall forward a notification of the cancellation of the suspension or an electronically transmitted copy of the notification to the person in charge of the facility in which the offender is being held.

(7) Independently of subsections (1) to (6), where the Board is satisfied that the continued parole or statutory release of an offender would constitute an undue risk to society by reason of the offender reoffending before the expiration of the sentence according to law, the Board may, at any time,

(a) where the offender is no longer eligible for the parole or entitled to be released on statutory release, terminate or revoke the parole or statutory release; or

(b) where the offender is still eligible for the parole or entitled to be released on statutory release,

(i) terminate the parole or statutory release, where the undue risk to society is due to circumstances beyond the offender's control, or

(ii) revoke the parole or statutory release, where the undue risk to society is due to circumstances within the offender's control.

(8) The Board may exercise its power under subsection (7) notwithstanding any new sentence to which the offender becomes subject after being released on parole or statutory release, whether or not the new sentence is in respect of an offence committed before or after the offender's release on parole or statutory release.

(9) Where the Board exercises its power under subsection (7), it shall review its decision at times prescribed by the regulations, at which times it shall either confirm or cancel its decision.

(9.1) Where an offender whose parole or statutory release has not been terminated or revoked is incarcerated as a result of an additional sentence for an offence under an Act of Parliament, the parole or statutory release, as the case may be, is revoked on the day on which the offender is incarcerated as a result of the additional sentence.

(9.2) Subsection (9.1) does not apply where the additional sentence is to be served concurrently with, and is in respect of an offence committed before the commencement of, the sentence to which the parole or statutory release applies.

(9.3) Where an offender who is released on parole receives an additional sentence described in subsection (9.2) and the day determined in accordance with section 119, 120 or 120.2, as the case may be, on which the offender is eligible for parole is later than the day on which the offender received the additional sentence, the parole becomes inoperative and the offender shall be reincarcerated.

(9.4) Unless the lieutenant governor in council of a province in which there is a provincial parole board makes a declaration under subsection 113(1) that subsection (9.1) applies in respect of offenders under the jurisdiction of that provincial parole board, subsection (9.1) does not apply in respect of such offenders, other than an offender who

(a) is serving a sentence in a provincial correctional facility pursuant to an agreement entered into under paragraph 16(1)(a); or

(b) as a result of receiving an additional sentence referred to in subsection (9.1), is required, pursuant to section 743.1 of the Criminal Code, to serve the sentence in a penitentiary.

(9.5) Where an offender to whom subsection (9.1) does not apply who is on parole that has not been revoked or terminated receives an additional sentence, for an offence under an Act of Parliament, that is to be served consecutively with the sentence the offender was serving when the additional sentence was imposed, the parole becomes inoperative and the offender shall be reincarcerated until the day on which the offender has served, from the day on which the additional sentence was imposed, the period of ineligibility in relation to the additional sentence and, on that day, the parole is resumed, subject to the provisions of this Act, unless, before that day, the parole has been revoked or terminated.

(10) For the purposes of this Part, an offender who is in custody by virtue of this section continues to serve the offender's sentence.

(11) For the purposes of this Act, where a suspension of parole or statutory release is cancelled, the offender is deemed, during the period beginning on the day of the issuance of the suspension and ending on the day of the cancellation of the suspension, to have been serving the sentence to which the parole or statutory release applies.

135.1 (1) A member of the Board or a person designated, by name or by position, by the Chairperson of the Board or by the Commissioner, when an offender breaches a condition of a long-term supervision order or a condition referred to in section 134.1 or when the member or person is satisfied that it is necessary and reasonable to suspend the long-term supervision in order to prevent a breach of any condition of it or to protect society, may, by warrant,

(a) suspend the long-term supervision;

(b) authorize the apprehension of the offender; and

(c) authorize the commitment of the offender to a community-based residential facility or a mental health facility or, where the member or person is satisfied that commitment to custody is necessary, to custody until the suspension is cancelled, new conditions for the long-term supervision have been established or the offender is charged with an offence under section 753.3 of the Criminal Code.

(2) The period of the commitment of the offender mentioned in paragraph (1)(c) must not exceed ninety days.

(3) Where an offender is committed under paragraph (1)(c), the period of the commitment is included in the calculation of the period of long-term supervision ordered under a long-term supervision order, but if there is a period between the issuance of the warrant and the commitment to custody, that period is not included in that calculation.

(4) A person designated pursuant to subsection (1) may, by warrant, order the transfer to penitentiary of an offender who is committed under paragraph (1)(c) in a place other than a penitentiary.

(5) The person who signs a warrant pursuant to subsection (1), or any other person designated pursuant to that subsection, shall, immediately after the commitment of the offender, review the offender's case and, as soon as possible but in any case no later than thirty days after the commitment, cancel the suspension or refer the case to the Board together with an assessment of the case.

(6) The Board shall, on the referral to it of the case of an offender, review the case and, within sixty days after the date of the referral,

(a) cancel the suspension, where the Board is satisfied that, in view of the offender's behaviour while being supervised, the resumption of long-term supervision on the same conditions would not constitute a substantial risk to society by reason of the offender reoffending before the expiration of the period of long-term supervision;

(b) where the Board is not satisfied as provided in paragraph (a), cancel the suspension and order the resumption of long-term supervision on any conditions that the Board considers necessary to protect society; or

(c) where the Board is satisfied that no appropriate program of supervision can be established that would adequately protect society from the risk of the offender reoffending, and that it appears that a breach has occurred, recommend that an information be laid charging the offender with an offence under section 753.3 of the Criminal Code.

(7) Where the Board recommends that an information be laid pursuant to paragraph (6)(c), the Service shall recommend to the Attorney General who has jurisdiction in the place in which the breach of the condition occurred that an information be laid charging the offender with an offence under section 753.3 of the Criminal Code.

(8) If in the Board's opinion it is necessary and reasonable to do so in order to protect society or to facilitate the reintegration of the offender into society, the Board, when it cancels a suspension of the long-term supervision order of an offender, may

(a) reprimand the offender in order to warn the offender of the Board's dissatisfaction with the offender's behaviour while being supervised;

(b) alter the conditions of the long-term supervision; and

(c) order the cancellation not to take effect until the expiration of a specified period that ends on a date not later than the end of the ninety days referred to in subsection (2), in order to allow the offender to participate in a program that would help ensure that society is protected from the risk of the offender reoffending.

(9) Where a person referred to in subsection (4) or the Board cancels a suspension under this section, the person or the Board, as the case may be, shall forward a notification of the cancellation of the suspension or an electronically transmitted copy of the notification to the person in charge of the facility in which the offender is being held. [Emphasis added.]

Corrections and Conditional Release Regulations, SOR/92-620

PART II

CONDITIONAL RELEASE

. . .

Conditions of Release

161. (1) For the purposes of subsection 133(2) of the Act, every offender who is released on parole or statutory release is subject to the following conditions, namely, that the offender:

(a) on release, travel directly to the offender's place of residence, as set out in the release certificate respecting the offender, and report to the offender's parole supervisor immediately and thereafter as instructed by the parole supervisor;

(b) remain at all times in Canada within the territorial boundaries fixed by the parole supervisor;

(c) obey the law and keep the peace;

(d) inform the parole supervisor immediately on arrest or on being questioned by the police;

(e) at all times carry the release certificate and the identity card provided by the releasing authority and produce them on request for identification to any peace officer or parole supervisor;

(f) report to the police if and as instructed by the parole supervisor;

(g) advise the parole supervisor of the offender's address of residence on release and thereafter report immediately

(i) any change in the offender's address of residence,

(ii) any change in the offender's normal occupation, including employment, vocational or educational training and volunteer work,

(iii) any change in the domestic or financial situation of the offender and, on request of the parole supervisor, any change that the offender has knowledge of in the family situation of the offender, and

(iv) any change that may reasonably be expected to affect the offender's ability to comply with the conditions of parole or statutory release;

(h) not own, possess or have the control of any weapon, as defined in section 2 of the Criminal Code, except as authorized by the parole supervisor; and

(i) in respect of an offender released on day parole, on completion of the day parole, return to the penitentiary from which the offender was released on the date and at the time provided for in the release certificate.

(2) For the purposes of subsection 133(2) of the Act, every offender who is released on unescorted temporary absence is subject to the following conditions, namely, that the offender

(a) on release, travel directly to the destination set out in the absence permit respecting the offender, report to a parole supervisor as directed by the releasing authority and follow the release plan approved by the releasing authority;

(b) remain in Canada within the territorial boundaries fixed by the parole supervisor for the duration of the absence;

(c) obey the law and keep the peace;

(d) inform the parole supervisor immediately on arrest or on being questioned by the police;

(e) at all times carry the absence permit and the identity card provided by the releasing authority and produce them on request for identification to any peace officer or parole supervisor;

(f) report to the police if and as instructed by the releasing authority;

(g) return to the penitentiary from which the offender was released on the date and at the time provided for in the absence permit;

(h) not own, possess or have the control of any weapon, as defined in section 2 of the Criminal Code, except as authorized by the parole supervisor. [Emphasis added.]