2011 QCCA 1076, 2011 QCCA 1076

Doyle Fowler c. Canada (Ministre de la Justice) 2011 QCCA 1076 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No.: 500-10-004624-100 (500-36-005044-097) DATE: JUNE 9, 2011 CORAM: THE HONOURABLE ANDRÉ ROCHON, J.A. FRANÇOIS DOYON, J.A. NICOLE DUVAL HESLER, J.A. FRANCIS DOYLE FOWLER APPLICANT – Person concerned v. THE MINISTER OF JUSTICE OF CANADA RESPONDENT – Decision-maker JUDGMENT [ 1 ] Francis Doyle Fowler seeks the judicial review of the surrender order made on November 25, 2009, by the Minister of Justice of Canada ordering his extradition to the United States of America.

He also seeks to have this order set aside; [ 2 ] For the reasons of Doyon J.A., with which Rochon and Duval Hesler, JJ.A. agree, the Court: [ 3 ] ALLOWS the application for judicial review; [ 4 ] SETS ASIDE the surrender order dated November 25, 2009; [ 5 ] REFERS the case back to the Minister of Justice of Canada so that, in accordance with the directions of the Court, as stipulated in section 57(6)(

a) of the Extradition Act , he ensures, based on documents provided by the United States of America, that the prison sentence that could be imposed on the applicant will actually provide for parole eligibility after a reasonable period or, as applicable, that he obtains the necessary assurances to compensate for the lack of parole eligibility, while protecting the applicant’s rights. ANDRÉ ROCHON, J.A. FRANÇOIS DOYON, J.A. NICOLE DUVAL HESLER, J.A. Mtre Véronique Courtecuisse Véronique Courtecuisse, Avocate Mtre Patrick Cozannet Patrick Cozannet, Attorney For the Applicant Mtre Constantina Antonopoulos Department of Justice (Canada) For the respondent Date of hearing: March 10, 2011

REASONS OF DOYON J.A. [ 6 ] Did the Minister of Justice of Canada render an unreasonable decision by ordering the extradition of the applicant, who was a minor at the time of the offence for which he is sought, namely, second degree murder committed with a weapon? With due respect for the Minister, I am of the opinion that his decision fails to take into account facts that are nonetheless of capital importance and, for reasons which I will explain below, it does not have the characteristics of a reasonable decision.

BACKGROUND [ 7 ] On September 29, 2008, the United States of America requested by diplomatic note, in accordance with the Extradition Treaty Between Canada and the United States of America (the Treaty) , [1] the extradition of the applicant to stand trial in Florida. At the time, he was charged with first degree murder committed with a weapon (paras 782.04(1) and 775.087(1) Florida Statutes ).

It bears pointing out that he has dual citizenship, Canadian and American, and that at the time of the events giving rise to the charge in 2007, he was 16 years old. [ 8 ] On March 25, 2009, in a second diplomatic note, the United States of America amended the initial extradition request by adding the charge of second degree murder committed with a weapon (paras 782.04(2) [2] and 775.087(1) Florida Statutes ). [ 9 ] In support of these requests, the U.S. authorities gave the respondent, the Minister of Justice, two certified records of the case on September 19, 2008 and June 25, 2009.

According to the evidence contained in these records, the applicant and two accomplices, James E. Hollriegel and Jerry Henry, took

part in the murder of Morgan Willis, Jerry Henry’s uncle. Counsel for the respondent summarized this evidence in her written memorandum: [ translation]

a) On April 21, 2007, the applicant found himself with Hollriegel and Henry at Henry’s home. The alleged victim Willis was also there that same day. At one point, Willis was talking on the phone with his sister, Wanda Willis, Henry’s mother, and insulted her. Henry took offence and quarrelled with Willis. Henry, Hollriegel, and Fowler then violently beat Willis with a bicycle chain attached to a stick and, afterwards, decided it would be in their interest to kill Willis in order to get rid of the evidence of their assault. The applicant is alleged to have stabbed the victim several times in the kidney and Hollriegel is alleged to have cut the victim’s throat with a knife.

b) Hollriegel dug a hole and put the victim in it with the applicant’s help. The applicant and Hollriegel also tried to get rid of the victim’s truck. Henry, who was on parole, was wearing an electronic bracelet that prevented him from leaving the house.

c) On April 22, 2007, the applicant, Henry, and Hollriegel bragged about Willis’ murder to the witness Brandon Schram. Schram testified that the applicant and Henry showed him some blood, the stick with the bicycle chain used to commit the murder, the place where they killed Willis, and the place where they buried him.

d) A few months later, Schram took police authorities to this place. On September 5, 2007, the body of the victim was discovered by police authorities in the place indicated by Schram.

e) Hollriegel was arrested and pleaded guilty to second degree murder. He gave a statement to the police implicating the applicant in the murder as summarized in paragraphs

a) and b). His version of the events was corroborated by the autopsy report and the forensic analysis included in the record of the case. [ 10 ] On April 2, 2009, the Minister issued an authority to proceed identifying the murder charge therein. On July 2, 2009, the Superior Court ordered the applicant committed for extradition. This decision was not appealed. [ 11 ] On July 30, 2009, the applicant submitted his observations to the Minister in accordance with

section 43 of the Extradition Act (the Act ). [3] [ 12 ] The applicant reminded the Minister that

section 44 of the Act compelled him to refuse to make a surrender order if surrender would be unjust or oppressive. He also noted

section 47(

c) stipulates that the Minister may refuse to make a surrender order if the person was less than 18 years old at the time of the offence and the law that applies to them in the territory over which the extradition partner has jurisdiction is not consistent with the fundamental principles governing the Youth Criminal Justice Act (the YCJA ). [4] Yet, he considered the treatment that he would receive in Florida inconsistent with the YCJA and the sentence that could be imposed [5] on him [ translation] “would be more than shocking” and contrary to the fundamental principles espoused in the YCJA . [ 13 ] He further considered that the United States of America did not provide the information required in

Article 9 of the Treaty , adding that the Minister should at least have obtained assurances that the death sentence would not be sought. [ 14 ] On November 25, 2009, the Minister dismissed the applicant’s submissions and made an order to surrender the applicant on a charge of second degree murder committed using a weapon. [ 15 ] With regard to the shortcomings in the extradition case and the required information, he concluded that the obligations specified in the Treaty [ translation] “ are binding on the two contracting states, but do not create any rights for the person whose extradition is being sought”.

He stated that the documents on which he based his decision were forwarded to the applicant.

[16] As for the possibility of refusing to extradite a minor, the Minister pointed out that according to

section 45 of the Act, thereasons for refusal in the Treaty prevail over those in sections 46 and 47 of the Act.

Article 5 of the Treaty must therefore be relied upon.This

article stipulates that the requested State may refuse to extradite a person who was under the age of eighteen years at the time of thecommission of the offence or at the time of the request for extradition if the person is considered “by the requested State to be one of itsresidents”. However, in the Minister’s view, the applicant was not a genuine Canadian resident at the time of the events, since he[translation] “was in Canada simply because he had fled the United States so that he wouldn’t have to answer for the crime” for which hewas sought.

He also stated that, even if the provision had applied, he would not have used his discretionary power given the seriousnessof the allegations. [17] He nonetheless concluded that extradition on a charge of first degree murder would be inconsistent with the principlesrecognized by Canada in the YCJA and would shock the conscience of Canadians.

He explained himself in the following manner: [translation] In my opinion, in the present case, the inevitability of life imprisonment without eligibility for parole upon conviction cannot bereconciled with Canada’s firm determination, in the framework of the YCJA, to establish an appropriate balance with respect to the needto hold youth accountable for their criminal actions, while ensuring that they are rehabilitated and reintegrated into the community, intheir own interest and in the interest of society as a whole. In this regard, I point out that the Supreme Court of Canada, in R. v.

D.B.(2008), 2008 SCC 25 , 231 C.C.C. (3d) 338, recently recognized the principle of the diminished culpability of youth as afundamental principle of justice in Canadian law. [18] The Minister considered, however, that extradition to answer a charge of second degree murder would be neither unjust noroppressive and that it would not be inconsistent with the principles of fundamental justice. He pointed out that the applicant would thenbe liable to a maximum sentence of life imprisonment, with eligibility for parole. He wrote: [translation] The U.S.

Department of Justice has indicated that, if convicted of second degree murder, Mr. Fowler would be liable to a maximumsentence of life imprisonment with eligibility for parole. In comparison, if the offence with which Mr.

Fowler is charged had beencommitted in Canada and he had been tried as an adult, he would have been liable to a maximum sentence of life imprisonment witheligibility for parole after seven years. [19] Under the circumstances, since life imprisonment would be only the maximum sentence, such that the sentence could beadjusted according to the circumstances of the offence and the applicant’s personal situation, along with eligibility for parole, neither theapplicant’s age nor the potential length of the sentence would make his extradition unjust or oppressive.

He added: [translation] Even if the potential sentence that could be imposed on Mr. Fowler, if he were tried as a adult in Canada, would be less severe than theone that could be imposed if he were extradited and prosecuted in the State of Florida, this fact alone is not a reasonable ground thatjustifies me to refuse a legitimate request from a treaty partner.

To reach this decision, I point out that since the offence of second degreemurder is not punishable by a mandatory sentence of life imprisonment and does provide for parole eligibility, the sentencing judge inFlorida would have the discretionary power to adjust the sentence to take into account Mr.

Fowler’s age and other extenuatingcircumstances. [20] Finally, he concluded that it was pointless, under the circumstances, to obtain assurances that a death sentence would not begiven before ordering the surrender of the applicant to answer a charge of second degree murder, not without indicating, however, hisrefusal to order surrender on a charge of first degree murder. ANALYSIS [21] The applicant makes several arguments against the Minister’s decision.

They are: • The Minister did not sufficiently consider his age and the other circumstances of the case, such as his citizenship, his place ofresidence, and the lack of impartiality of Florida state prosecutors, who must be elected. • His fundamental rights were not respected, inhumane treatment awaits him in the Florida prison system and the Minister shouldhave required guarantees with respect to the sentencing of capital punishment and the conditions of detention in Florida. • He argues, contrary to what the Minister says, that there is no chance of parole.

Extradition would therefore be unjust oroppressive. [22] Before I consider these arguments, it is worth mentioning the high level of deference owed to the Minister’s decision. AsLeBel J. points out, in Lake v. Canada (Minister of Justice), 2008 SCC 23 , [2008] 1 S.C.R. 761: [34] This Court has repeatedly affirmed that deference is owed to the Minister’s decision whether to order surrender once a fugitivehas been committed for extradition. The issue in the case at bar concerns the standard to be applied in reviewing the Minister’sassessment of a fugitive’s Charter rights.

Reasonableness is the appropriate standard of review for the Minister’s decision, regardless ofwhether the fugitive argues that extradition would infringe his or her rights under the Charter. As is evident from this Court’sjurisprudence, to ensure compliance with the Charter in the extradition context, the Minister must balance competing considerations andwhere many such considerations are concerned, the Minister has superior expertise.

The assertion that interference with the Minister’sdecision will be limited to exceptional cases of “real substance” reflects the breadth of the Minister’s discretion; the decision should notbe interfered with unless it is unreasonable (Schmidt) (for comments on the standards of correctness and reasonableness, see Dunsmuir v.

New Brunswick, [2008] 1 S.C.R. 190, 2008 SCC 9). [23] The reason is therefore to ensure that the Minister’s decision falls within the range of reasonable outcomes, taking therelevant factors of the case into account, such as the applicant’s age, the seriousness of the offence, the nature of the punishment, theimpossibility of prosecuting him in Canada, the requirements of the Treaty, Canada’s international obligations, the Minister’s expertiseand broad discretionary power.

As LeBel J. again writes, in Lake: [37] Second, the Minister’s superior expertise in relation to Canada’s international obligations and foreign affairs remains relevant tothe review of his assessment of a fugitive’s claim that extradition would violate his or her rights under the Charter. Whereas theMinister’s discretion must be exercised in accordance with the Charter, his assessment of any Charter infringement that could resultfrom ordering an individual’s surrender is closely intertwined with his responsibility to ensure that Canada fulfills its internationalobligations.

The right of a Canadian citizen under s. 6(1) to remain in Canada is prima facie infringed by a decision to order that citizen’ssurrender for extradition, but the infringement can generally be justified under s. 1, as this Court held in Cotroni. In determining whetherthe infringement is justified, the Minister is required to consider not only “the possibility of prosecution in Canada, but also the interestof the foreign State in prosecuting the fugitive on its own territory”: Kwok, at para. 93.

Accordingly, the Minister’s assessment ofwhether the infringement of s. 6(1) is justified rests largely on his decision whether Canada should defer to the interests of the requestingstate. This is largely a political decision, not a legal one. The legal threshold for finding it unacceptable is evidence that the decision notto prosecute in Canada was made for improper or arbitrary motives. This leaves room for considerable deference to the Minister’sconclusion that the infringement of s. 6(1) is justified. THE CIRCUMSTANCES OF THIS CASE [24] Sections 45 (1) and (2), and 47(

c) of the Act state as follows: 45.

(1) Refusal in extradition agreement - The reasons for the refusal of surrender contained in a relevant extradition agreement, otherthan a multilateral extradition agreement, or the absence of reasons for refusal in such an agreement, prevail over sections 46 and 47.

(2) Exception — multilateral extradition agreement - The reasons for the refusal of surrender contained in a relevant multilateralextradition agreement prevail over sections 46 and 47 only to the extent of any inconsistency between either of those sections and thoseprovisions. 47. When Minister may refuse to make order - The Minister may refuse to make a surrender order if the Minister is satisfied that … (

c) the person was less than eighteen years old at the time of the offence and the law that applies to them in the territory over which theextradition partner has jurisdiction is not consistent with the fundamental principles governing the Youth Criminal Justice Act; [25] Therefore, it is not the Act that prevails over these issues, as the applicant maintains, but rather the Treaty, of which

Article 5stipulates as follows: If a request for extradition is made under this Treaty for a person who at the time of such request, or at the time of the commission of theoffense for which extradition is sought, is under the age of eighteen years and is con​sidered by the requested State to be one of itsresidents, the requested State, upon a determination that extradition would disrupt the social readjustment and rehabilitation of thatperson, may recommend to the requesting State that the request for extradition be withdrawn, specifying the reasons therefor. [26] Although these provisions of the Act and the Treaty address young offenders, it can hardly be stated, as the applicant does,that these provisions are equivalent. [27] Furthermore, it must be remembered that the Minister alternatively stated that he would have refused to exercise his discretionunder

section 47(

c) to refuse to make a surrender order because of the seriousness of the offence. Consequently, the issue of theapplicant’s residency status, as provided in the Treaty, is not determinative. [28] It must also be noted that, in any case,

Article 5 of the Treaty confers highly discretionary power that is obviously entitled tocurial deference. In United States of America v. Sanders, (BC CA), 104 B.C.A.C. 15, the British Columbia Court ofAppeal, per Southin J.A., confirmed this: 24 As a matter of administrative law (there being no constitutional issue), the decision of the Minister not to invoke

Article 5 is onewhich is most certainly owed curial deference. It is for the Minister to decide when, and in what circumstances, it is appropriate to askthis "favour" of the requesting state. In Gwynne v. Minister of Justice, Mr. Justice Goldie, concurred in by Mr. Justice Cumming, heldthat the decision by the Minister to surrender Mr. Gwynne was entitled to curial deference even though that decision engagedconstitutional considerations. A fortiori is the decision under attack here entitled to curial deference.

The Minister did not improperlyfetter her discretion.[6] [29] I see no value in the argument that the Florida state prosecutors are elected representatives. The fact that a judicial system isdifferent cannot in itself justify the Minister's refusal unless there is evidence that the applicant's fundamental rights would bejeopardized. That is not the case here. [30] Lastly, I will return to the matter of the applicant's age when discussing the third argument. THE APPLICANT'S FUNDAMENTAL RIGHTS, THE CONDITIONS OF DETENTION IN FLORIDA AND THE NEED FOR ASSURANCES PROVIDED BY THE REQUESTINGSTATE

[31] Apart from what I will discuss in analyzing the applicant's third argument, I am of the view that the applicant's rights wouldnot be infringed by his extradition. [32] On the one hand, the right protected by

section 12 of the Canadian Charter (protection against cruel and unusual treatment)does not apply directly to extradition matters, as the applicant proposes, unless in the context of an analysis of

section 7 or perhapssection 44(1)(

a) of the Act (the Minister refuses to make a surrender order if the surrender would be unjust or oppressive having regard tothe circumstances). On the other hand, there was no evidence concerning the conditions of detention in Florida, and it is certainly not amatter of judicial notice. [33] Furthermore, the applicant does not convince me that it was unreasonable for the Minister not to request special assurancesregarding capital punishment. It is established that this punishment cannot be imposed in Florida on a minor convicted of second degreemurder.

The Minister's decision to make a surrender order only for this offence establishes that capital punishment could not be soughtby the prosecution even assuming that it could have been sought for first degree murder. WOULD EXTRADITION BE UNJUST OR OPPRESSIVE? [34] For the record, I note that the Minister rightfully considered parole eligibility important since he refused to make a surrenderorder for first degree murder on the ground that such a possibility does not exist for this offence. Moreover, that would violateArticle 37(

a) of the Convention on the Rights of the Child, of which Canada is a signatory. The Minister, however, cites the example ofthe YCJA, which provides for parole eligibility after seven years in the case of life imprisonment, to indicate that such a measure isacceptable and justifies extradition for a second degree murder. [35] However, and therein lies the rub, there is no evidence to allow the Minister to determine when the applicant might be eligiblefor parole, if indeed he may be eligible for it. [36] The Minister wrote that the U.S.

Department of Justice indicated that if the applicant were convicted of second degree murder,he would be liable to a maximum penalty of life imprisonment with eligibility for parole. However, nothing in the documentationsupports this statement, let alone when he would be eligible for such parole. [37] The lack of information in this regard seems determinative to me. Can it be realistically maintained that extradition would notbe unjust or oppressive if, for example, the juvenile offender became eligible for parole only after 25, 30, or 40 years?

Yet, the Ministeris silent on this and does not seem to have been informed of the situation. In other words, I consider that it was unreasonable to make asurrender order after having indicated the need for parole eligibility and having given the Canadian example, without first checking suchparole eligibility period in Florida and without having obtained information on the matter. [38] The Minister's decision is certainly owed deference, but the Court is nevertheless required to verify its reasonableness, andmust not abdicate its role.

In Lake, supra, LeBel J. recalls this rule: [41] Reasonableness does not require blind submission to the Minister’s assessment; however, the standard does entail more than onepossible conclusion. The reviewing court’s role is not to re-assess the relevant factors and substitute its own view. Rather, the court mustdetermine whether the Minister’s decision falls within a range of reasonable outcomes. To apply this standard in the extradition context,a court must ask whether the Minister considered the relevant facts and reached a defensible conclusion based on those facts.

I agree withLaskin J.A. that the Minister must, in reaching his decision, apply the correct legal test. The Minister’s conclusion will not be rational ordefensible if he has failed to carry out the proper analysis. If, however, the Minister has identified the proper test, the conclusion he hasreached in applying that test should be upheld by a reviewing court unless it is unreasonable. This approach does not minimize theprotection afforded by the Charter. It merely reflects the fact that in the extradition context, the proper assessments under ss. 6(1) and 7involve primarily fact-based balancing tests.

Given the Minister’s expertise and his obligation to ensure that Canada complies with itsinternational commitments, he is in the best position to determine whether the factors weigh in favour of or against extradition. [Emphasis added.] [39] The evidence cannot establish the parole eligibility period, or even if such parole eligibility exists. I would mention as wellthat at the hearing, counsel for the Minister was unable to indicate when the applicant would be eligible for parole, or even what theapplicable procedure would be, if need be, to determine such eligibility period.

As regards the existence of parole eligibility, counselrelied on the statement of the Minister, who as you may recall, based it solely on an indication by U.S. authorities that was, to say theleast, laconic. [40] In Canada (Prime Minister) v.

Khadr, 2010 SCC 3 , [2010] 1 S.C.R. 44, the Supreme Court notes that deference isno longer required if the decision cannot be justified by the record and legal principles: [38] Having concluded that the courts possess a narrow power to review and intervene on matters of foreign affairs to ensure theconstitutionality of executive action, the final question is whether O’Reilly J. misdirected himself in exercising that power in thecircumstances of this case (R. v. Bjelland, 2009 CSC 38, [2009] 2 S.C.R. 651, at para. 15; R. v.

Regan, 2002 CSC 12, [2002] 1 R.C.S.297, at paras. 117-18). (In fairness to the trial judge, we note that the government proposed no alternative (trial judge’s reasons, at para.78).) If the record and legal principle support his decision, deference requires we not interfere. However, in our view that is not the case. [41] In my opinion, the Minister's decision cannot be based on the record. [42] According to a case

summary submitted to the Minister on November 3, 2009, by the International Assistance Group, whichreports to the Department of Justice, an individual convicted of second degree murder is liable to imprisonment for a term of up to life.This

summary did not indicate, however, any possibility of parole. [43] An additional

summary submitted to the Minister on November 13, 2009, indicated that the applicant's co-accused, Jerry

Henry, who was 19 years old at the time of the offence, pleaded guilty to second degree murder and was sentenced to imprisonment for a term of 40 years. Again, there was no mention in the

summary of whether the sentence included parole eligibility. It is noteworthy that the applicant could not receive a youth sentence, any more than Mr. Henry could, given the nature of the offence with which he is charged. [ 44 ] On this matter, the applicant's argument concerning Florida's abolition of its parole system should also be highlighted. As a result, even if parole eligibility existed, it would only be in theory. The applicant's argument is based on the U.S. Supreme Court judgment in Graham v. Florida , 560 U.S. (2010), where Kennedy J. wrote: …Because Florida has abolished its parole system, see Fla.

Stat. §921.002(1)(e) (2003), a life sentence gives a defendant no possibility of release unless he is granted executive clemency. [ 45 ] The Supreme Court reversed the sentence by declaring it unconstitutional, but it should be remembered that Graham was not convicted of murder, as actually specified by the Court: The Constitution prohibits the imposition of a life without parole sentence on a juvenile offender who did not commit homicide. [ 46 ] In short, parole possibly does not exist in Florida for juveniles convicted of murder.

The Minister's decision does not address this issue whatsoever, even though it is essential to the analysis of the circumstances of this case. Admittedly, the U.S. Supreme Court had not rendered its judgment yet at the time of the Minister's decision, but the parole system had already been abolished in Florida, based on the excerpt that I quoted. This matter should have been scrutinized. [ 47 ] Section 44(1)(

a) of the Act requires that the Minister refuse to make a surrender order if the surrender would be unjust or oppressive in view of the circumstances. The Minister found that this would be the case for a first degree murder.

I am of the opinion that the grounds on which he based this decision required that he examine the possibility of parole eligibility for second degree murder more closely because nothing in the documentation shows that it exists. [ 48 ] If an extradition shocks the public conscience, it must be refused, in particular an extradition that violates the principles of fundamental justice, as stated by G. Botting in Canadian Extradition Law Practice , Markham, LexisNexis, 2009: An extradition that violates the principles of fundamental justice will always shock the conscience.

The important inquiry is to determine what constitutes the applicable principles of fundamental justice in the extradition context. A particular treatment or punishment, such as stoning a person to death or lopping off the hands of a thief, may sufficiently violate our sense of fundamental justice to tilt the balance against extradition. The punishment is so extreme that it becomes the controlling issue in the extradition and overwhelms the analysis. [ 49 ] It is also worth noting that

Article 9 of the Treaty provides that the request for extradition must be accompanied by the legislative provisions of the requesting State prescribing the punishment for the offence. In the present case, I am of the opinion that these provisions should have included the legal rules for parole because it was a critical issue in this case. Furthermore, since the Minister said that he sent the applicant all the documents on which he based his decision, the applicant clearly did not receive any documentation on the subject. [ 50 ] In

summary, it would be unacceptable and unreasonable to surrender the applicant if Florida State law allowed life imprisonment without the possibility of parole. Even if the extradition request should have been accompanied by the relevant legislative provisions concerning the punishment, no documentation supporting the Minister's conclusion that the applicant would be eligible for parole was submitted to him. The same can be said of the parole eligibility period.

Lastly, the Minister did not consider whatsoever the applicant's argument that Florida's parole system had been abolished, an argument that does not seem however to be without merit. [ 51 ] For these reasons, I would allow the application for judicial review of the surrender order dated November 25, 2009, and would set aside the order. I would further refer the case back to the Minister so that, in accordance with the directions of the Court, as stipulated in section 57(6)(

a) of the Act , he ensures, based on the documents provided by the United States of America, that the substantial prison sentence that could be imposed would actually provide for parole eligibility after a reasonable period. I am obviously sensitive to the impossibility of prosecuting the applicant in Canada; therefore, the Minister could also obtain the necessary assurances to compensate for the lack of parole eligibility, if such were the case, while protecting the applicant's rights. FRANÇOIS DOYON, J.A.