On April 29, Justice Sébastien Grammond rejected the DOJ’s argument that Leslie McCulloch’s urgent application — seeking to compel the Parole Board of Canada to speed up its decision on the asthmatic inmate’s April 2 request for “exceptional” parole for health reasons — should not be heard for 50 days, due to its complexity and because of generalized pandemic-related challenges federal Crown lawyers are facing as a result of being required to work from home, avoid in-person client contacts, use videoconferencing and file court materials electronically: McCulloch v. A.G. Canada 2020 FC 565.
Justice Sébastien Grammond
“I am of the view that a fair determination of this matter is possible within the time frame suggested by Mr. McCulloch,” Justice Grammond held. “This will require counsel for the attorney general to work intensely on the case, but no less is required given the urgency of the matter.”
In an e-mailed statement, Lisa Saether of the Parole Board of Canada in Abbotsford, B.C., told The Lawyer’s Daily the board “always processes ‘parole by exception’ cases as expeditiously as possible, and is particularly attuned to these cases in light of the COVID-19 pandemic.”
(Parole by exception permits parole to be considered in advance of an offender’s parole eligibility date when: the offender is terminally ill; when the offender’s physical or mental health is likely to suffer serious damage if the offender continues to be held in confinement; or when the offender’s continued confinement would constitute excessive hardship that was not reasonably foreseeable at the time of sentencing.)
Saether said that, as in all such cases, the parole board requested that appropriate case preparation be done by the Correctional Service of Canada so that the board can make a fully informed decision, taking into account the offender’s health information and public safety considerations. “Once this information is received, the parole board will conduct a review as quickly as possible, which is anticipated to be later this month,” she said.
She noted that since March 1, 2020, four parole by exception cases have been granted, and 13 are scheduled for decision. “This is already a significant increase compared to just seven parole by exception cases for all of last fiscal year, of which four were granted,” Saether said.
The judge emphasized that “meaningful access to justice entails that the courts must be able to provide an effective remedy to individuals who seek the vindication of their rights. In turn, to be effective, a remedy must be timely.”
At the same time, the judicial process must be fair, he stipulated.
McCulloch’s counsel and DOJ lawyers were not able to immediately provide comment.
Department of Justice lawyers argued that it would be unfair to make them proceed to a hearing sooner than 50 days, not only because they consider the case complex, but also because of limitations they experience flowing from the federal government’s requirement to work from home during the COVID-19 pandemic.
Justice Grammond disagreed on both counts. The matter is not “unduly complex,” he held. Nor was he persuaded by the DOJ’s COVID-19 argument for more time.
“There is no doubt that the current restrictions [due to COVID-19] have changed the work habits of a large number of public servants and have caused serious disruption in the normal operations of many sectors of the public service and those of the judicial system,” Justice Grammond acknowledged.
“Employees confined at home with young children may not be in a position to work regular hours. Not all employees have the ability to transition seamlessly to remote work. There are technological challenges,” he remarked.
(The Lawyer’s Daily has also been informed that federal lawyers on some cases have reported that it is taking them longer to get instructions from their client federal officials, who are also working from home.)
The judge pointed out, however, that the Federal Court and other courts have cancelled non-urgent hearings for a significant period. “Thus, one would expect that the Department of Justice still has the capacity to prosecute a relatively small number of urgent cases despite the COVID-19 restrictions,” Justice Grammond observed.
The former University of Ottawa civil law dean noted that the Attorney General of Canada did not submit evidence of any specific difficulty his counsel were having in McCulloch’s case — even as DOJ lawyers proposed a timetable with “considerable time” between each procedural step.
Moreover, the only evidence the DOJ provided on the impacts of the pandemic on its operations was one paragraph in an affidavit sworn by a legal assistant.
That affidavit states that lawyers and legal support staff at the DOJ’s B.C. regional office are required to work from home until further notice, and “in all litigation matters, DOJ staff are encouraged to avoid meeting in person with client officials, to commission affidavits by videoconference in accordance with court policies and directions, and to file court materials electronically.”
Justice Grammond ordered that all documents in McCulloch’s case be filed with the court by May 19, at the latest.
The DOJ and McCulloch agreed that his case was “urgent” but they disagreed about what that called for in practice.
“I am convinced that the timetable set out in this order is fair to both parties,” Justice Grammond concluded.
McCulloch is serving his sentence in medium-security Matsqui Institution in Abbotsford, B.C. As of May 4, no one there has tested positive for COVID-19, according to Correctional Service Canada (only four tests had been conducted by that date.)
McCulloch’s doctor confirmed that he suffers from asthma, and that COVID-19 may be fatal for people with pre-existing lung conditions.
The inmate’s application for exceptional parole to the Parole Board is under s. 121(1) of the Corrections and Conditional Release Act.
Photo of Justice Sébastien Grammond by Balfour
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