R v Leschenko, 2012 ABQB 47

Court of Queen ’ s Bench of Alberta Citation: R v Leschenko, 2012 ABQB 47 Date: 20120120 Docket: 110823648X1 Registry: Calgary In the Matter of an application for a Writ of Habeas Corpus Ad Subjiciendum with Certiorari in aid Between: Her Majesty the Queen Crown/Respondent - and - Valentine Nicholas Leschenko Applicant _______________________________________________________ Reasons for Judgment of the Honourable Mr. Justice Bryan E.

Mahoney _______________________________________________________ Introduction [ 1 ] The Applicant, Valentine Nicholas Leschenko (“Leschenko”), a serving prisoner at the Drumheller Institution, a federal penitentiary in Drumheller, Alberta, seeks habeas corpus on the basis that: (

a) the forfeiture of earned remission regarding his custodial sentence violated the agreement or understanding he had with the judge who accepted his guilty plea back in 1974, and,

(

b) he is the only prisoner to suffer a loss of statutory remission for an escape or attempted escape subsequent to the 1972 enactment ofsection 137(1) of the Criminal Code, and therefore such forfeiture violates

section 12 of the Canadian Charter of Rights and Freedoms. [2] Leschenko is self represented. Along with his notice of motion and two page affidavit he has filed some letters that he wroteto the court and he was present at this hearing where he made oral submissions. The Crown, in seeking to have Leschenko’s applicationdismissed, prepared a thorough brief and also made oral submissions. Legislation [3] For ease of reference, and to assist in understanding Leschenko’s argument, I have reproduced the relevant sections of theapplicable legislation as they read at the time. Section 137(1) of the Criminal Code read: 137.

(1) Except where otherwise provided by the Parole Act, a person who escapes while undergoing imprisonment shall, afterundergoing any punishment to which he is sentenced for that escape, serve the portion of the term of imprisonment that he was serving,including statutory remission but not including earned remission, at the time of his escape that he had not then served minus any time thathe spent in custody between the date on which he was apprehended after his escape and the date on which he was sentenced for thatescape. [4] The relevant subsection of the Penitentiary Act reads as follows: 22. ...

(4) Every inmate who is convicted by a criminal court of the offence of escape, attempt to escape or being unlawfully at large forthwithforfeits three-quarters of the statutory remission standing to his credit at the time that offence was committed. The Applicant's History [5] Leschenko’s original nine year sentence for six counts of robbery commenced on November 14, 1972. On January 9, 1973Leschenko escaped custody from the Kingston Penitentiary in Ontario and received three months consecutive. On February 22, 1973, hewas sentenced for two more armed robberies and sentenced to three years consecutive.

He has a lengthy history of robberies, escapingand attempting to escape custody. [6] On August 29, 1974, Leschenko received a sentence of six months for an attempted escape from the SaskatchewanPenitentiary in Prince Albert. Correctional Service of Canada (CSC) calculated Leschenko's six month attempted escape sentence byapplying

section 137 of the Criminal Code. For a more detailed factual background see Leschenko v. Canada (Attorney General), (FC), [1982] 1 F.C. 338 (Fed. Ct. Trial) at para. 1; Leschenko v. Canada (Attorney General), (FCA),[1983] 1 F.C. 625, 1 C.C.C. (3d) 522 (FCA) at para. 3 and 15 (“Leschenko FCA”). [7] On December 20, 1975 Leschenko again escaped this time from the Millhaven Institution in Kingston, Ontario.

While afugitive, he was arrested in United States and taken into custody where he eventually received a 15-year sentence in Florida for bankrobbery and threatening violence. [8] After returning to Canada on October 13, 1978, and pursuant to the Transfer of Offenders Act, CSC completed a further

review of Leschenko's sentence calculation. It was determined that an error was made in applying subsection 137(1) of the Criminal Code to the calculation of sentence for the August 29, 1974 attempted escape because

section 137 of the Criminal Code applied to the offence of "escape" rather than that of "attempted escape." The error was corrected and Leschenko's sentence was re-calculated applying subsection 22(4) of the Penitentiary Act to the computation of Leschenko's eligibility dates on his sentence. [ 9 ] Leschenko challenged CSC's

interpretation of

section 137 of the Criminal Code and the re-calculation of his sentence pursuant to subsection 22(4) of the Penitentiary Act . Unsuccessful on this point at trial his appeal was dismissed by the Federal Court of Appeal on September 23, 1982 which Court confirmed that section 22(4) of the Penitentiary Act would govern, allowing the forfeiture of three-quarters of Leschenko’s statutory remission: Leschenko FCA. On December 21, 1982, the Supreme Court of Canada dismissed Leschenko's motion for leave to appeal: [1982] S.C.C.

No. 345. [ 10 ] The application of subsection 22(4) to the calculation of Leschenko's sentence resulted in Leschenko forfeiting 1,436 days statutory remission. [ 11 ] Had Leschenko chosen to do so, after his transfer from the Florida prison to a prison in Canada on October 13, 1978, he could have applied for a re-credit of forfeited statutory remission. Instead, on June 2, 1984 Leschenko escaped from the Edmonton Institution and was arrested and again incarcerated in the United States.

On January 29, 2008, he was paroled from the Unites States and deported back to Canada to resume serving the unexpired portion of his Canadian sentence. [ 12 ] According to the affidavit evidence relied on by the Crown, there is no record in Leschenko's sentence management file of him applying for re-credit of the forfeited statutory remission until late 2008 or early 2009. On November 1, 1992 the Corrections and Conditional Release Act S.C. 1992, c. 20 ( CCRA ) came into force, completely repealing the Penitentiary Act.

Since that date, the reinstatement of forfeited statutory remission is no longer available by law. [ 13 ] While Leschenko entered the federal correction system with a nine year sentence of imprisonment, several additional sentences of imprisonment were imposed for additional offences including robberies, escapes and attempted escapes that have resulted in an aggregate sentence of imprisonment of twenty-three years, five months and three days. His statutory release date is November 23, 2018. [ 14 ] Leschenko is eligible for parole and has applied for parole as recently as 2009.

Leschenko's Argument [ 15 ] Leschenko initially based his application on three grounds. All three grounds relate to the forfeiture of 1,436 days of statutory remission that flowed from his conviction on August 29, 1974 for an escape attempt on August 15, 1974. [ 16 ] The first ground of the application is that the 1974 guilty plea for attempted escape was uninformed as to the legal effect and the consequences of that plea.

This ground, Leschenko agreed is abandoned because it has already been argued before the Federal Court in 1981 and dismissed. [ 17 ] The second ground is that the forfeiture of remission violated an agreement Leschenko had with the judge who accepted the guilty plea. Briefly, subsection 137(1) of the Criminal Code , as it read in 1975, provided that a person who had escaped from prison and had been sentenced for that escape would not forfeit his accumulated statutory remission days.

In contrast, subsection 22(4) of the Penitentiary Act provided that a person convicted of attempt to escape forfeited three-quarters of the statutory remission standing to his credit at the time the offence was committed. Leschenko contends that he had an agreement with the sentencing judge that he would be sentenced under subsection 137(1) of the Criminal Code , rather than under subsection 22(4) of the Penitentiary Act .

As I discuss later in these reasons, this argument was dealt with in 1982 by the Federal Court of Appeal, and Leschenko has abandoned this ground of the application. [ 18 ] The third and final ground of the application is that the forfeiture of Leschenko’s statutory remission violates

section 12 of the Charter , which prohibits “cruel and unusual treatment or punishment.” It is this third ground that Leschenko relied upon at the hearing

before me. [19] In support of his Charter argument, Leschenko claims to be the only prisoner ever to lose statutory remission for an escape orattempted escape subsequent to the 1972 enactment of what was then section 137(1) of the Criminal Code. In particular, Leschenkoclaims that his co-accused for the same escape attempt did not forfeit any statutory remission. [20] In further support of his Charter argument, Leschenko has filed a letter with the Court in which he makes the followingadditional arguments. [21] First, he cites the Supreme Court of Canada in R. v.

Smith, (SCC), [1987] 1 S.C.R. 1045, 40 D.L.R. (4th) 435,where Mcintyre J. (dissenting) quotes the opinion of Brennan J. of the United States Supreme Court in Furman v. Georgia (1972), 408U.S. 238, 92 S. Ct. 2726, a death penalty case. In that case, as quoted in Smith at para. 10, Brennan J. opined that: ... a severe punishment must not be excessive. A punishment is excessive under this principle if it is unnecessary: The infliction of asevere punishment by the State cannot comport with human dignity when it is nothing more than the pointless infliction of suffering.

Ifthere is a significantly less severe punishment adequate to achieve the purposes for which the punishment is inflicted ... the punishmentinflicted is unnecessary and therefore excessive. [22] Leschenko quotes further from Smith, from the opinion of Lamer J. (Wilson C.J.C. concurring, as they then were). At paras.88-89 Lamer J. explained that

section 12 of the Charter requires a punishment to be appropriate to the particular offender: In assessing whether a sentence is grossly disproportionate, the court must first consider the gravity of the offence, the personalcharacteristics of the offender and the particular circumstances of the case in order to determine what range of sentences would havebeen appropriate to punish, rehabilitate or deter this particular offender or to protect the public from this particular offender.

The otherpurposes which may be pursued by the imposition of punishment, in particular the deterrence of other potential offenders, are thus notrelevant at this stage of the inquiry. This does not mean that the judge or the legislator can no longer consider general deterrence or otherpenological purposes that go beyond the particular offender in determining a sentence, but only that the resulting sentence must not begrossly disproportionate to what the offender deserves. If a grossly disproportionate sentence is “prescribed by law”, then the purposewhich it seeks to attain will fall to be assessed under s.

Section 12 ensures that individual offenders receive punishments that areappropriate, or at least not grossly disproportionate, to their particular circumstances, while s. 1 permits this right to be overridden toachieve some important societal objective. One must also measure the effect of the sentence actually imposed. If it is grossly disproportionate to what would have been appropriate,then it infringes s. 12. The effect of the sentence is often a composite of many factors and is not limited to the quantum or duration of thesentence but includes its nature and the conditions under which it is applied.

Sometimes by its length alone or by its very nature will thesentence be grossly disproportionate to the purpose sought. [...] [23] Leschenko contends that “39 years of relatively continuous incarceration has been an adequate deterrent and continuedincarceration serves no legitimate penal purpose.” He notes further than nobody was physically injured during the commission of hiscrimes. [24] With respect to the significant amount of time Leschenko has spent incarcerated in the United States, and whether that has anybearing on a

section 12 analysis, Leschenko argues that it is appropriate for a court to consider time served in the United States indeciding the appropriate sentence in Canada, and cites for this proposition the decision in Mackie v. Drumheller Institution (1984), (AB KB), 163 A.R. 81, 25 Alta. L.R. (3d) 12 (Q.B.). [25] Finally, while Leschenko no longer relies on the second ground of his application independently, he argues that the allegedviolation of the agreement he had with the judge in 1974 brings the administration of justice into disrepute, does not further the interestsof justice, and supports his Charter argument.

[26] Leschenko also draws attention to his complaint to the Canadian Human Rights Commission dated May 17, 2011. In thatcomplaint, Leschenko makes some of the same arguments and contentions noted above, and also makes complaints related to his transferfrom Ontario to Alberta in 2008 following his recapture after escape.

He makes other complaints related to defects in his CorrectionalPlan; the time it took for the Parole Board to next review his case; prison officials inappropriately overriding security reclassificationsthat would have paved the way for early release; alleged false accusations with respect to plans to smuggle weapons and take hostages;and alleged statements by a warden at Drumheller Institution related to the consequences of Leschenko’s expressed opinions and relatedto the (allegedly improper) factors that are considered when inmates apply for transfers to minimum security. [27] The Human Rights Commission declined to assist Leschenko on the grounds that the alleged discriminatory acts were notdirectly linked to a prohibited ground of discrimination in the Canadian Human Rights Act. [28] Except as noted above, Leschenko’s May 17, 2011 complaint to the Human Rights Commission do not form part of theapplication before me except as part of his submission as to disproportional treatment in furtherance of his

section 12 Charter challenge.Leschenko argues that the events disclosed in his May 17 complaint are evidence of a “retaliatory animus.” The Issues to be decided [29] As noted, Leschenko no longer relies on the first two grounds of his application. The issues before me are essentially reducedto these: 1) Is there a prima facie case that Leschenko's forfeiture of statutory remission is so grossly disproportionate as to violate

section 12 ofthe Charter, considering the individual circumstances of Leschenko and the case? If the Charter is violated, the detention is unlawful,habeas corpus is applicable, and this Court has jurisdiction. 2) If there is a prima facie case of unlawful detention such that a writ of habeas corpus should issue, has such a case actually been madeout on the merits? In other words, is Leschenko's forfeiture of statutory remission so grossly disproportionate as to violate

section 12,considering the individual circumstances of Leschenko? [30] I have framed the two questions above in terms of the forfeiture of statutory remission, because that is how Leschenko framesthe issue in his application. But to ensure I am as fair as possible to him, I will also consider the question to be whether his punishment,as a whole, violates

section 12 of the Charter. Jurisdiction [31] As a threshold issue, I agree with the Crown that this Court must determine whether it has jurisdiction, concurrent with theFederal Court, to grant a remedy. As explained in a decision of this Court by Bielby, J., as she then was, in R. v. Green, 2009 ABQB 233,470 A.R. 209, pursuant to section 18(1) of the Federal Court Act, the Federal Court has exclusive jurisdiction to hear most matters andgrant most remedies in respect of CSC.

Nevertheless, the Supreme Court of Canada has held that the superior courts of the provinceshave concurrent jurisdiction to grant the remedies of habeas corpus and certiorari in aid of habeas corpus, in order to protect residualliberty interests: May v. Ferndale Institution, 2005 SCC 82, [2005] 3 S.C.R. 809 at para. 32. [32] In order to fall within this Court’s jurisdiction, Leschenko must adduce evidence adequate to establish a prima facie case of anunlawful deprivation of liberty such that the remedy of habeas corpus is attracted: Green at para. 3; Dodd v.

Warden of Isabel McNeilHouse, 2007 ONCA 250, 85 O.R. (3d) 346 at paras. 10, 14-16. [33] To establish a prima facie case for habeas corpus, Leschenko must also show, on a balance of probabilities, that he is indetention, the basis for his detention, that the detention is unlawful, and there are reasonable and probable grounds for his complaint:Idziak v. Canada (Minister of Justice) (1989), (ON SC), 53 C.C.C. (3d) 385, 48 C.R.R. 164 (Ont. S.C.) at para. 34.

[34] The Crown concedes that Leschenko is under detention. However, it argues that Leschenko cannot use the alleged agreementwith the 1974 sentencing judge to found a claim that the detention is unlawful. I accept the Crown’s argument that the applicability ofsubsection 22(4) of the Penitentiary Act, which caused Leschenko to forfeit his statutory remission was conclusively decided by theFederal Court of Appeal in Leschenko FCA at paras. 19-20.

The matter is res judicata - it has already been judged and cannot be judgedagain. [35] With respect to Leschenko’s claim that the forfeiture of his statutory remission violates his Charter right not to be subjected toany cruel and unusual treatment, Leschenko has not adduced any evidence in support of his claim.

His bare assertions that he is the onlyone to have been treated this way and that his co-accused in 1974 did not suffer the same fate are not sufficient to discharge his onus ofproving, on a balance of probabilities, a prima facie case that evidence exists to support issuing a writ of habeas corpus and a subsequenthearing on the merits. That being the case, following the reasoning in Green that the Crown has adopted, it follows that the Crown alsoconsiders that this Court has no jurisdiction to hear the matter.

As Bielby, J. pointed out, though, this is something of a chicken and eggproblem, for it becomes impossible to determine jurisdiction without hearing the matter. The Merits [36] As for the merits of the application, I find that the application fails on the merits. [37] The essential elements of a successful application for habeas corpus are: a. a deprivation of liberty; and b. that the deprivation was unlawful. [38] At the merits stage, an applicant must first prove a deprivation of liberty.

That done, the onus shifts to the detaining authorityto prove that the deprivation is lawful: May at para. 74. [39] As noted above, the Crown concedes that Leschenko has been deprived of his liberty. However, it points out that theapplication of subsection 22(4) of the Penitentiary Act (instead of subsection 137(1) of the Criminal Code) did not increase the durationof Leschenko’s sentence. Under the Penitentiary Act, remission, both statutory and earned, was used to determine a date upon which anoffender could be released on mandatory supervision. The offender remained, however, under sentence.

Forfeiture of statutory remissiondoes not actually change the duration of an offender’s sentence: Re Beaucage (1976), (ON CA), 34 C.R.N.S. 127,(sub nom. Beaucage, Ex parte) 31 C.C.C. (2d) 219 (Ont. C.A.); Beaucage v. Canada (Attorney General), (SCC), [1977]2 S.C.R. 293, D.L.R. (3d) 458. [40] I find that forfeiture of statutory remission, not having increased Leschenko’s sentence, does not constitute an unlawfuldeprivation of Leschenko’s liberty "but merely represents the loss of a privilege dependent on good behaviour." Shubely (SCC), [1990] S.C.J.

No. 1, [1990] 1 S.C.R. 3 at 22-23. [41] With respect to the question as to whether subsection 22(4) of the Penitentiary Act was properly applied instead of subsection137(1) of the Criminal Code that issue is res judicata. Attempting to re-litigate the matter by way of this habeas corpus applicationrepresents an impermissible collateral attack and must fail. A collateral attack is an effort to circumvent a valid and subsisting order thathas not been set aside on appeal or lawfully quashed. Toronto (City) v.

C.U.P.E., Local 79, 2003 SCC 63, [2003] 3 SCR 77. [42] In Leschenko FCA, the Federal Court of Appeal held that subsection 137(1) of the Criminal Code, as it then read, applied onlyto persons who had actually escaped from prison, not to those who had only attempted escape. While it is true that Corrections officialshad made an error in the calculation of the sentence, the error was in the 1974 calculation, applying

section 137, not in the recalculation,under subsection 22(4) of the Penitentiary Act, upon Leschenko’s return to Canada a few years later. If the judge who convicted andsentenced Leschenko for the 1974 attempted escape did indeed give a direction that the sentence should be computed in accordance withsection 137(1) of the Criminal Code (the Court considered the record to be unclear on this point), then “he gave an illegal directionwhich exceeded his authority”: Leschenko FCA at para. 19.

[43] Leschenko indicated in oral argument that he accepted that this was the law and that this issue is res judicata. He abandonedhis second ground of the application and instead focused on the Charter argument, which is a different question than that which wasdecided by the courts in

Section 12 of the Charter [44] As noted,

section 12 of the Canadian Charter of Rights and Freedoms provides that “everyone has the right not to besubjected to any cruel and unusual treatment or punishment.” [45] The test for determining whether a punishment is “cruel and unusual” is whether it is so excessive or grossly disproportionateso as to shock the conscience of reasonable Canadians: Smith. The burden of proving a violation of

section 12 is difficult to meet, andwill only be satisfied in the clearest of cases: R. v. Luxton, (SCC), [1990] 2 S.C.R. 711 at para. 12. [46] The Supreme Court has, in appropriate cases, held that even indeterminate incarceration does not offend

section 12, in partbecause of the availability of periodic review: R. v. Lyons, (SCC), [1987] 2 S.C.R. 309. [47] A vital element in determining whether a sentence is so grossly disproportionate so as to violate

section 12 is an examinationof the individual circumstances of the offender. In R. v. Morrisey, 2000 SCC 39, [2000] 2 S.C.R. 90 at paras. 26-27, Gonthier J.emphasized that it is not enough that a sentence might be disproportionate in the circumstances; it must be grossly disproportionate: [26]

Section 12 of the Charter provides a broad protection to Canadians against punishment which is so excessive as to outrage oursociety’s sense of decency. ... The court’s inquiry is focussed not only on the purpose of the punishment, but also on its effect on theindividual offender. Where a punishment is merely disproportionate, no remedy can be found under s. 12. Rather, the court must besatisfied that the punishment imposed is grossly disproportionate for the offender, such that Canadians would find the punishmentabhorrent or intolerable.

As I said in Goltz, at p. 501, “the test is not one which is quick to invalidate sentences crafted by legislators.” [27] In order to properly consider a s. 12 challenge to a punishment, the court must examine all of the relevant contextual factors. Nosingle factor set out in Smith or Goltz is paramount: see Goltz, at pp. 501-2.

In Smith, at p. 1073, Lamer J., as he then was, set out some ofthe relevant factors as follows: In assessing whether a sentence is grossly disproportionate, the court must first consider the gravity of the offence, the personalcharacteristics of the offender and the particular circumstances of the case in order to determine what range of sentences would havebeen appropriate to punish, rehabilitate or deter this particular offender or to protect the public from this particular offender. [48] As noted above in connection with jurisdiction, Leschenko’s bare assertions that he is the only prisoner to suffer a loss ofstatutory remission in these circumstances, and that his co-accused in the same attempted escape did not forfeit any statutory remission,cannot form an evidentiary basis for his Charter claim. [49] However, even if Leschenko’s statements were taken to be true, that is to say, even if it were established that this Applicant isthe only individual who has lost statutory remission in this fashion, such evidence would not be sufficient to discharge Leschenko'sburden of establishing that the punishment he has received is so excessive or grossly disproportionate so as to shock the conscience ofreasonable Canadians. [50] Leschenko has a pattern of repeated escape, attempted escape, and the chronic commission of very serious crimes both in andout of Canada, some while unlawfully at large.

The evidence shows that it is the particular circumstances of this applicant’s criminalrecord that have resulted in his failure to complete his Canadian prison sentences in a timely manner. Also, as the Crown notes in itsargument, there was a period of time, before legislative change removed the possibility, during which Leschenko could have applied forre-credit of his forfeited statutory remission, but he failed to do so. The Crown also notes that Leschenko is eligible to apply for paroleand has indeed done so.

[51] Leschenko's overall length of custody has been made more lengthy by the self-inflicted criminal conduct just mentioned.Committing serious offences in the United States resulted in a lengthy prison term there starting in 1984. When that sentence ended in2008 he was deported to Canada to complete his Canadian sentence. Leschenko argues that his time spent in custody in the United Statesshould be taken into account when considering his Charter claim under

section 12. Mindful of the principle of totality and therehabilitative and reformative aims of sentencing, where after lengthy incarceration further jail time has little or no effect, it would bewrong to set a precedent for persons like Leschenko where the application of the totality principle would work to his advantage. In otherwords, it would send the wrong message to have a fugitive gain credit for time he or she spent in custody outside Canada for seriouscrimes committed there while unlawfully at large from this country. For a similar discussion only regarding parole see D.F.P. 2005NLCA 31 , [2005] N.J.

No. 176, 197 C.C.C. (3d) 498, at 38-41 (N.L.C.A.). [52] Finally, the grounds of this application do not concern the lawfulness of the entirety of Leschenko’s sentence. Rather, thosegrounds restrict this application to a determination of the lawfulness of Leschenko’s forfeiture of statutory remission as a consequence ofhis sentence for the August 29, 1974 attempted escape guilty plea being calculated in accordance with subsection 22(4) of thePenitentiary Act.

I find that the forfeiture of 1,436 days of statutory remission does not constitute an increase in Leschenko’s sentence.All it does is change the date at which he would be eligible to begin serving his sentence in the community instead of in prison. In anycase, a forfeiture in this case is not sufficient to discharge the high burden required to prove a violation of

section 12. Conclusions [53] I note that Leschenko and the Crown do not appear to differ markedly in their understanding of

section 12 of the Charter.Each speaks to the requirement that a sentence not be grossly disproportionate, and each speaks of the importance of a sentence that isappropriate to the circumstances of the particular case and offender.

Where they obviously differ is in their views on what, in thesecircumstances, constitutes cruel and unusual punishment, or in other words, what length of incarceration in these circumstances would begrossly disproportionate, and what is appropriate in the circumstances of this particular offender’s criminal record. [54] On the specific question of whether there is a prima facie case that Leschenko’s forfeiture of statutory remission is so grosslydisproportionate as to violate

section 12 — first, there is no evidence apart from Leschenko’s bare assertions that he is the only one tohave suffered such a fate. However, even if that is so, losing earned remission for an escape attempt would not shock the conscience ofCanadians. [55] On the broader question of whether Leschenko’s punishment as a whole violates

section 12, again it would not shock theconscience of Canadians for somebody with this infamous record of repeated escapes and repeated armed robberies across manyprovinces and in the U.S. to earn the sentences he earned, added upon each other as was done. [56] On neither the narrow question nor the broader one, has a prima facie case been made out.

The application fails. [57] Given that not even a prima facie case has not been made out, it would not be returnable for a consideration of the merits, buteven if it were, it follows that the case fails on a consideration of the merits. [58] In the result, the Application is denied. [59] Mr. Leschenko has been in prison a long time. He is no longer a young man. He contends that he is a changed man. I have noreason to doubt it. However that issue is not before me. Proof of his rehabilitation and reformation leading to an earlier parole date is inthe hands of the National Parole Board.

Heard on the 27 th day of October, 2011. Dated at the City of Calgary, Alberta this 20 th day of January, 2012. Bryan E. Mahoney J.C.Q.B.A. Appearances: Janell K. Koch, Department of Justice Canada for the Crown/Respondent Valentine Nicholas Leschenko Applicant, not represented by counsel