Johnston v. Canada (Attorney General)

Johnston v. Canada (Attorney General)
Court (s) Database
Federal Court Decisions
Date
2021-07-22
Neutral citation
2021 FC 783
File numbers
T-90-21
Notes
A correction was mad on August 4, 2021
Decision Content
Date: 20210722
Docket: T-90-21
Citation: 2021 FC 783
Toronto, Ontario, July 22, 2021
PRESENT: Mr. Justice Diner
BETWEEN:
MARK ANDREW JOHNSTON
Applicant
and
THE ATTORNEY GENERAL OF CANADA
Respondent
JUDGMENT AND REASONS
I. Overview
[1] The Applicant, Mark Andrew Johnston, seeks judicial review of a decision of the Parole Board of Canada Appeal Division (“Appeal Division”) affirming the revocation of his statutory release by the Parole Board of Canada (“Board”). For the reasons that follow, I will dismiss the Application.
II. Facts
[2] Mr. Johnston is a federal inmate residing at the Warkworth Institution, a medium security penitentiary administered by the Correctional Service of Canada (“CSC”) under the Corrections and Conditional Release Act, SC 1992, c 20 [Act] and the Corrections and Conditional Release Regulations, SOR/92-620 [Regulations].
A. Criminal History
[3] Mr. Johnston is a long-time recidivist with a lengthy criminal history of fraudulent behaviour dating back to the early 1990s. His early problems with the law resulted in three federal sentences, including three years imposed in 1991 for two counts of fraud over $1,000; three years imposed in 2002 for 319 counts under the Excise Tax Act, RSC 1985, c E-15, two counts of failure to comply with recognizance, failure to attend court, five counts of fraud over, fraud under and personation with intent; and a little over two years imposed in 2008 for five counts of fraud over $5,000, fraud under $5,000, forgery, four counts of uttering a forged document, three counts of failure to comply with recognizance, personation with intent, and possession property obtained by crime under $5,000.
[4] Mr. Johnston, at the time of the hearing before this Court, was serving an eight-year and six-month aggregate sentence. He was first sentenced on July 15, 2013, to 16 months’ imprisonment for paying legal retainer fees with a fraudulent cheque.
[5] Then, on September 6, 2013, he was sentenced to an additional four years imprisonment and ordered to pay over $22,000 in restitution for running up a 56-day hotel tab and presenting a fraudulent cheque purportedly to settle the bill. Out on bail at the time, Mr. Johnston’s hotel scheme breached three of his release conditions.
[6] On November 20, 2014, Mr. Johnston received an additional sentence of three years plus two months’ imprisonment for filing approximately 1,400 fraudulent income tax returns and 735 fraudulent Goods and Services Tax returns with the Canada Revenue Agency using the personal information of other inmates without their knowledge. The fraudulent scheme was valued at $2 million.
B. Statutory Release
[7] Mr. Johnston was granted statutory release for his current sentence on March 14, 2019. In addition to the mandatory release conditions under the Act, the Board imposed on Mr. Johnston certain special release conditions tailored to his specific risk, including:
Financial disclosure;
Seek or remaining employed;
Reporting intimate relationships;
Not being in a position of responsibility for the management of finances or investments for any other individual, business, charity, or institution;
Not possessing any banking documents, inter alia, credit, debit and bank cards or cheques without prior approval; and
Not being self-employed or owning a business.
[8] Mr. Johnston was placed under the supervision of the Downtown Toronto Parole Office Case Management Team (“CMT”), as he had been on various occasions in past sentences. With respect to his most recent series of offenses, his statutory release has been suspended three times, and on each of the first two occasions, that suspension was cancelled by the Board. With the second of these cancellations, the Board gave Mr. Johnston a severe reprimand, reproduced below.
[9] The CMT encountered a further issue with Mr. Johnston, resulting in a third cancellation of statutory release. The Board sustained this latest suspension. Mr. Johnston appealed that decision to the Appeal Division. The Appeal Division panel upheld the suspension. Those two decisions, both deciding to uphold the suspension of release, are the subject of this judicial review. However, as both panels addressed the earlier two suspensions in their reasons upholding the third, the two earlier suspensions are briefly summarized, along with the third, which Mr. Johnston is challenging in this judicial review.
(1) The First Suspension
[10] On April 1, 2019, it was alleged that Mr. Johnston had attempted to obtain information a new parole officer from her profile on the LinkedIn networking website. According to the CMT, Mr. Johnston initially denied any knowledge when confronted with the allegation, claiming he had not used the application in years, but then changed his story to claim that someone must have used his account, and he ultimately admitted to the truth of the allegation, explaining that he wanted to learn more about his new parole officer before meeting her.
[11] In addition, the CMT reported that Mr. Johnston had also failed to be honest with the officer when a call came in from a woman. Mr. Johnston told the officer that it was his sister, rather than the woman who had actually called. He was also found to have purchased groceries with a credit card for which he had not received prior authorization. Both of these incidents violated Mr. Johnston’s special conditions for release.
[12] Accordingly, the CMT issued a warrant for suspension and arrest under s 135(1) of the Act. The CSC then recommended the revocation of Mr. Johnston’s statutory release to the Board, noting that his risk was no longer manageable in the community in light of his numerous violations and uncooperative behaviour. Ultimately, while the Board noted Mr. Johnston’s lack of transparency and his behavioural issues, it nevertheless cancelled the suspension and returned him to the community.
(2) The Second Suspension
[13] Mr. Johnston was then arrested on February 1, 2020, for shoplifting beer and beef from a grocery store. Mr. Johnston at first denied the theft, stating that the beer was purchased from the liquor store across the street before entering the grocery store – which he claimed could be proven with video evidence – and that he had simply forgotten to pay for the rest. While criminal charges were ultimately withdrawn, Mr. Johnston admitted to Board that he had indeed stolen the items.
[14] It was also revealed that Mr. Johnston had changed his residence without informing his parole officer of the address change, contrary to his release conditions.
[15] On the basis of these two incidents, the CMT issued a second warrant and the CSC once again recommended the revocation of Mr. Johnston’s release, noting his tendency to withhold information and mislead the CMT.
[16] While the Board agreed that Mr. Johnston’s risk was elevated, it nonetheless found the risk manageable in the community with conditions. The Board cancelled this second suspension, but in doing so, it also reprimanded Mr. Johnston in its cancellation decision as mentioned above, warning the Applicant:
Mr. Johnston, your criminal history is concerning and you have returned to criminal behaviour repeatedly. This speaks to a deeply ingrained criminal value system. Your behaviours leading to your suspension are consistent with elements of your crime cycle and your PO / CMT were correct to flag the presence of these behaviours as indicators of risk. This is your second suspension and the second time that the Board has cancelled your suspension. Dishonesty and poor transparency with your PO / CMT will not be tolerated. Any future incidents and infractions will be met with immediate action and may result in a negative decision by the Board. Your case will be closely monitored from this point forward.
(3) The Third Suspension
[17] Mr. Johnston’s statutory release was suspended a third time on June 26, 2020, after the CMT discovered two unauthorized credit cards linked to his Amazon account. Mr. Johnston denied owning the cards, explaining that they were likely owned by one of his sons. While Mr. Johnston strongly disputed whose charge cards these were, the CMT was nonetheless able to confirm that the cards were linked to the account in his name and that his sons also had access to the Amazon account.
[18] That same month, the CMT became aware of a $4,000 deposit made to Mr. Johnston’s bank account. The CMT reported that Mr. Johnston was unable to provide a consistent or straightforward answer as to the source of the funds.
[19] For a third time, the CSC recommended that Mr. Johnston’s release be revoked, noting that it had become “virtually impossible to provide proper supervision” under the circumstances, as “[w]ith each suspension, his behaviour and the manipulation by him and his collaterals becomes increasingly difficult to manage”.
III. Decision under Review
A. The Board Decision
[20] On September 28, 2020, the Board revoked Mr. Johnston’s release (“Board Decision”), finding that he posed an undue risk to society pursuant to s. 135(5) of the Act.
[21] The Board Decision engaged in a lengthy and detailed review of Mr. Johnston’s criminal history, as well as the circumstances of the three suspensions of his statutory release. It found that Mr. Johnston’s offence cycle “involves a consistent pattern of committing elaborate fraudulent schemes involving individuals, businesses, banks and the Government of Canada”. The Board Decision recognized Mr. Johnston’s affinity for abusing the trust of others and inability to abide by conditions:
You have used your business knowledge to incorporate fictitious and real businesses to engage in criminal activity. Your offending also involves you gaining the trust of unsuspecting individuals, and using this trust to your own benefit while defrauding others of thousands of dollars.
Additionally, your offence cycle involves continually disregarding imposed conditions, as you are a habitual offender with little regard for the law or the impact of your criminal actions upon the many victims. Your deficits derive from your criminal attitude, grandiose sense of self, need to impress others, manipulation of individuals, and lack of remorse towards others. You have a history of seeking out relationships, which you manipulate to support your criminal mindset, and heighten opportunities to engage in further fraudulent acts.
[22] Discussing the first suspension, the Board remarked that Mr. Johnston displayed open disregard for his conditions, noting that his “risk-enhancing behaviour towards supervision demonstrates that [he] will say or do anything [he needs] to in order to present [himself] in the best possible light”. This ran counter to the Board’s expectation that offenders work collaboratively with their CMT to avoid recidivism.
[23] The Board noted that while Mr. Johnston had completed a maintenance program, attended church, and had support from family and friends following the cancellation of the first suspension, concerns arose as to his ability to manage his finances, and to find and maintain meaningful employment.
[24] In relation to the second suspension, the Board once again noted Mr. Johnston’s poor attitude and manipulative behaviour exhibited towards his CMT. It remarked that Mr. Johnston exhibited a continued lack of transparency in relation to the grocery store theft incident by continually changing his story. It then reiterated the reprimand against Mr. Johnston issued at the time of the cancellation of the second suspension.
[25] Finally, in relation to the third suspension, the Board found that Mr. Johnston – in failing to obtain permission to have, and to disclose the use of two prepaid credit cards on his Amazon account, as well as permitting others to access the Amazon account – “created a situation where it was nearly impossible for [the] CMT to monitory accurately” his finances. According to the Board, a similar pattern of half-truths and omissions permeated these events.
[26] The Board concluded that the circumstances warranted the revocation of his release. It remarked that with each suspension, Mr. Johnston made it increasingly difficult for the CMT to manage his risk in light of the “behaviour and manipulation by [him] and [his] collateral contacts”. It noted the CSC’s position that no trust remained between Mr. Johnston and his CMT, such that a new geographical location should be selected for any future statutory release.
[27] The Board also addressed arguments from Mr. Johnston that he should be released from custody in light of the ongoing COVID-19 Pandemic. Noting that public safety is paramount in all Board decisions, the Board concluded that the CSC was taking adequate steps at the Warkworth Institution to prevent that spread of COVID-19.
[28] Ultimately, the Board weighed a number of aggravating and mitigating factors for Mr. Johnston’s release, finding that his risk-enhancing and oppositional attitude escalated the risk of recidivism. That risk, in the Board’s view, was no longer manageable in the community.
B. The Appeal Decision
[29] The Appeal Division affirmed the Board Decision on December 10, 2020 (“Appeal Decision”). In its reasons, the Appeal Division rejected Mr. Johnston’s grounds for appeal, namely that the Board Decision was not based on the information before the tribunal, and was therefore unreasonable.
[30] Specifically, it rejected his four principal contentions, that the Board: (i) concluded about his behaviour in relation to the first suspension without factual support; (ii) made exaggerated risk findings; (iii) failed to consider the lack of credibility of the CMT members in light of conflicting evidence; and (iv) failed to properly consider his submissions regarding his vulnerability to COVID-19.
[31] The Appeal Division first remarked that the Board is tasked under the Act to assess whether an inmate presents an undue risk to society to reoffend on statutory release. It also noted the various Policy Manuals that guide the post-release decisional process, including reference to consideration of all relevant aspects of a case, the offender’s behaviour post-release and comparing that with previous patterns of criminal behaviour.
[32] The Appeal Division then closely examined the Board Decision, noting that it had compared Mr. Johnston’s release behaviour with his criminal history and concluded that his attitude taken with the CMT increased his risk level. The Appeal Division proceeded to examine the Board’s comments on each of the three suspensions, noting that the Board reasonably acted upon the information before it, which the Appeal Division considered relevant, reliable, and persuasive. In finding the Board’s decision to revoke statutory release reasonable, the Appeal Division found the Board acted within its discretion in assessing the risk posed by Mr. Johnston.
[33] Specifically, the Appeal Division noted the aggravating factors highlighted by the Board in assessing that risk, noting to Mr. Johnston “your extensive criminal history; your last two prior statutory releases were fraught with suspensions, revocations, and criminal activity; your attitude still requires a high need for improvement; and, you continue to be assessed with low levels of motivation and accountability”.
[34] The Appeal Division concluded that the Board considered relevant, reliable, and persuasive information coming from CSC, and reasonably considered, based on the information before it, that Mr. Johnston had deficits in his decision-making, particularly in attitude, being neither open nor honest with his CMT.
[35] As for the COVID-19 argument, the Appeal Division found that the Board reasonably concluded, considering all relevant information – including Mr. Johnston’s personal situation in the COVID-19 incarceration context – that the protection of society was paramount and that release was not warranted in the circumstances.
[36] Procedurally, the Appeal Decision makes two important points. First, the Appeal Division refused to address the argument that Mr. Johnston’s parole officer had not acted nor managed his case appropriately, noting that neither it nor the Board have jurisdiction to manage specific cases, nor to manage CSC personnel. It indicated that Mr. Johnston could instead submit an institutional grievance and/or contact the Office of the Correctional Investigator for such issues.
[37] The Appeal Division found that the Board “conducted an adequate and fair risk assessment in accordance with the [Act] and the Policy Manual”. In concluding that the Board process was fair, the Appeal Division noted that Mr. Johnston had a full opportunity to present his case, noting that he was asked questions by the Board and was given the opportunity to provide answers.
IV. Issues and Analysis
[38] Generally, an application for judicial review is limited to a single order in respect of which relief is sought (Federal Courts Rules, SOR/98-106, s 302; Ewonde v Canada (Attorney General), 2020 FC 829 at para 2 [Ewonde]). However, where the Appeal Division affirms a decision of the Board, the reviewing court must also examine whether the Board decision was lawful (Ewonde at para 2; May v Canada (Attorney General), 2020 FC 292 at para 12; Condo v Canada (Attorney General), 2005 CAF 391 at para 17; Cartier v Canada (Attorney General), 2002 FCA 384 at para 10).
[39] Thus, in this judicial review I must determine whether both the Board and the Appeal Decisions are reasonable. Mr. Johnston asserts that the Decisions were both unreasonable due to the fact that they overlooked evidence, including of the CMT’s “animus and bias” against Mr. Johnston and his support network, along with errors in applying the law to the factual matrix presented, and in failing to apply the least restrictive measures, by revoking his statutory release.
[40] Mr. Johnston also submitted that the tribunals both failed to adequately respond to his arguments in their Decisions, and that the reasons provided by both panels were unresponsive to the evidence raised both in support of and at the Board hearing, and subsequently to the Appeal Division.
[41] Both Parties agree, as do I, that the applicable standard of review for the issues raised is reasonableness. A reasonableness review is not a line-by-line treasure hunt for error, but an examination of whether the decision is justified, transparent, and intelligible under its facts and the law, in both its rationale and outcome: Vavilov v Canada (Citizenship and Immigration), 2019 SCC 65 at paras 83, 99, 102 [Vavilov]; Irving Pulp & Paper Ltd v CEP, Local 30, 2013 SCC 34 at para 54. Furthermore, both tribunals are highly specialized and owed deference in the discretionary areas of probation and attendant risk to the public, which fall squarely within their legislation and expertise (see West v Canada (Parole Board), 2020 FC 126 at para 38; Chartrand v Canada (Attorney General), 2018 FC 1183 at para 40).
A. Statutory Framework
[42] Conditional release serves the important purposes of contributing to the maintenance of a just, peaceful, and safe society by means of decisions on the timing and conditions of release that best facilitate the rehabilitation of offenders and their reintegration into the community as law-abiding citizens (Act at s 100). In all cases, the paramount consideration is the protection of society (Act at s 100.1).
[43] Section 127 of the Act, subject to certain exceptions, entitles offenders to statutory release after having served two thirds of their sentence. Statutory release is supervised until the expiration of the sentence.
[44] While under statutory release, offenders must follow standard conditions prescribed by s 133 of the Act and s 161 of the Regulations. However, the Board may, under s 133(3) of the Act, additionally impose “any conditions that it considers reasonable and necessary in order to protect society and to facilitate the offender’s successful reintegration into society”. In this case, Mr. Johnston was subject to a number of special conditions, including those specific to his criminal history and his risk of reoffending, listed above at paragraph 7.
[45] The Board or a designated person may, by warrant, suspend an offender’s statutory release, authorize their apprehension, and authorize their re-incarceration where the offender breaches a release condition, and where it is necessary and reasonable to suspend that release in order to prevent subsequent breaches or to protect the public (Act at s 135(1)). The person who issues a warrant under s 135(3) must, within 30 days of the offender’s recommitment, cancel the suspension or refer it to the Board.
[46] Where an offender is serving a sentence of two years or more, the Board must (“shall”) terminate or revoke the release if there exists an undue risk to society from the prospect of reoffending and, if not, the Board must cancel the suspension and release the offender on the same or on amended conditions (Act at s 135(5); Yassin v Canada (Attorney General), 2020 FC 237 at para 20). The Board may also, when cancelling a suspension, reprimand the offender where necessary and reasonable, to warn them of the Board’s dissatisfaction with their behaviour since release (Act at s 135(6)).
[47] Under s 147(1) of the Act, an appeal from a decision of the Board lies to the Appeal Division on five grounds: that the Board, in making its decision, (i) failed to observe a principle of fundamental justice; (ii) made an error of law; (iii) breached or failed to apply a policy under s 151(2) of the Act; (iv) based its decision on erroneous or incomplete information; or (v) acted without jurisdiction or beyond its jurisdiction, or failed to exercise its jurisdiction.
B. Analysis
[48] At the outset of this judicial review hearing, I advised Mr. Sloan (counsel for Mr. Johnston), that I had read what appeared to be the key portions of the record. Both parties acknowledged that it was a very dense record with extensive documentation, including much background, such as that relating to the three suspensions that formed the key background to the Board and Appeal Decisions, as well as a significant amount of documentation that arose from Mr. Johnston’s matters prior to the three suspensions of release. Both parties acknowledged the very extensive amount of materials contained in the Certified Tribunal Record (“CTR”) numbering some 1,350 pages, reproduced in full by the Respondent in its Record.
[49] I thus asked Mr. Sloan which of the documents within the record he was particularly relying on for his arguments, pointing out that bias in particular was a serious allegation and required some particularity, and that I did not see any such specificity in his Memorandum of Fact and Law relating to those allegations. Of course, I was also interested in the specific evidence he claimed the tribunals had overlooked.
[50] Mr. Sloan responded that the totality of the materials contained in the record bore out his arguments, and that it was necessary to review all the materials provided. While counsel normally provides more direction for the Court, I did as requested by Mr. Sloan, knowing the crucial liberty interests at stake, and have carefully reviewed the entire record in coming to my conclusions.
(1) The Board and Appeal Decisions are reasonable
[51] Mr. Johnston argues that the Board and the Appeal Division failed to meet the standard of reasonableness demanded by Vavilov. He argues that the reasons from both tribunals were insufficient in light of their impact on his rights. In his view, the reasons from both tribunals justify the suspension of his statutory release on the basis that not doing so would lead to harm, yet they do not explain what that harm might be. Instead, he alleges that the tribunals merely allude to difficulties in managing the relationship between him and the CMT without explaining how these could not be accommodated by less restrictive measures in the community.
[52] While I acknowledge the Decisions have had a significant impact on Mr. Johnston as, by their virtue, he has been remanded to custody of the state, I disagree with his contention that the tribunals failed to meet the standards set out in Vavilov.
[53] The July 21, 2020 CSC assessment report (the third in the series of the three most recent CSC reports, which gave rise to the Decisions under review) (“3rd Assessment Report”), recommended the revocation of Mr. Johnston’s release on the basis that he was no longer manageable within the community in light of his continuous lack of cooperation and transparency. The 3rd Assessment Report further notes that Mr. Johnston’s immediate support network, consisting of his sister, brother, and son, are “all in with his mass manipulation”. The 3rd Assessment Report goes onto explain:
…the recent suspension has demonstrated that … they are all in with his mass manipulation. It is clear that his family including his sister, his brother and his son are all complicit in his activities and PBC violations. There does not appear to be any evidence the family is being manipulated. It appears they are all consciously and falsely manipulating the information and distracting from the facts in order to protect the offender. This is expected from the offender based on his history but it is now evident amongst his family as well.
For these and many other reasons, I do not believe there is any trust between the offender, his supports and the CMT…. As previously mentioned, it is virtually impossible to provide proper supervision under the current circumstances including the mass manipulation by the offender and his collateral contacts. With each suspension, his behaviour and the manipulation by him and his collaterals becomes increasingly difficult to manage. Given the current circumstances including the complete lack of trust of his collateral contacts, the Correctional Service of Canada is faced with an extremely difficult task of fulfilling their mandate to the PBC of monitoring the very conditions imposed by the OBC that they deem necessary to manage the offender’s risk.
[54] Not only do these comments from the CSC reveal that Mr. Johnston was, in the view of his parole supervisors, habitually unforthcoming with the CMT, but also that his immediate support network actively participated in his behaviour. In light of his criminal history described above, as well as the two previous suspensions around which Mr. Johnston exhibited a similar unwillingness to be straightforward and honest with the CMT, the CSC deemed it extremely difficult – in its words “virtually impossible” – to ensure compliance with his release conditions.
[55] The Board concluded, having considered the 3rd Assessment Report (and previous CSC reports), as well as his and his supports’ submissions, and in the context of his criminal and correctional history, that Mr. Johnston presented an undue risk to society. In so deciding, the Board provided the following conclusion to its detailed and lengthy September 28, 2020 Decision:
In summary, the Board considered both the aggravating and mitigating factors in assessing your risk to the community. To your credit, you engaged with your church group and participated in celebrate recovery. You also spent time with your former partner, your sister and brothers, as well as your children. You also completed the Community Program with noted gains. You had access to a program officer, parole officer, and any additional available resources through CSC.
From an aggravating perspective, you are a fourth time federal offender, with an extensive criminal history comprised of fraud and breach of trust convictions. Your last two prior statutory releases were fraught with suspensions, revocations, and criminal activity. Despite completing the Community Program, your attitude still requires a high need for improvement. You continue to be assessed with low levels of motivation and accountability.
Throughout your release, your statutory release has been suspended on multiple occasions due to your struggles with providing accurate factual answers to your parole officer's questions. Your answers and justifications continue to change as those supervising ask more and more questions. You have, on more than one occasion, had to revise your answers to questions such as where you purchased beer following your arrest, and where did you get the $4000? This demonstrates significant risk enhancing attitude and these instances are directly related to financial matters and transparency.
By your decision to steal from a grocery store and not be truthful with your PO, your decision to entangle your finances with your son, and by your inability to provide a direct answer to where you got the $4000.00 when initially asked by your PO, you have shown a sustained and ingrained oppositional attitude towards your supervision. This is a clear escalation in your risk, which places you back into your offence cycle. Your risk is no longer manageable in the community due to your own attitude and inability to work collaboratively with your CMT.
It is the Board’s opinion that you will present an undue risk to society if statutorily released and that your release will not contribute to the protection of society by facilitating your reintegration into society as a law-abiding citizen.
[56] The Board was not concerned with conflicting versions of particular events so much as it focused on the fact that Mr. Johnston habitually displayed a lack of openness and transparency with his CMT. The very fact that Mr. Johnston regularly provided shifting accounts to the CMT in response to straightforward questions demonstrated that he was unwilling to foster a trust relationship, according to the Board. It was precisely for this type of behaviour that the Board reprimanded Mr. Johnston when it cancelled the second suspension. Indeed, not only did Mr. Johnston’s behaviour draw the ire of the CMT and the Board, but it also impeded the CMT’s ability to supervise his release.
[57] I do not accept Mr. Johnston’s submission that the Board “simply allude[d] to perceived difficulties in managing relations with the applicant and his supporters, without explaining how these difficulties could not be accommodated by community-centered measures”. The Board explains that Mr. Johnston’s recorded repeated dishonesty and uncooperativeness made it nearly impossible for the CMT to ensure compliance with his conditions, which, it bears reminding, were imposed specifically to address Mr. Johnston’s risk in the community.
[58] The Board retains ultimate discretion to revoke an offender’s statutory release, based on whether the offender’s continued release would present an undue risk to society (Act at s 135). The protection of society is both the criminal law purpose and rationale of the revocation of conditional release, as well as the paramount consideration for decisions under the Act: Canada (Attorney General) v Samuel, 2019 ONCA 555 at para 23; Act at s 100.1.
[59] The reason for which the Act and the Board impose conditions on offenders released from custody is to foster rehabilitation – i.e., deter recidivism – and promote successful reintegration into society as law-abiding citizens (Act at s 100). Compliance with release conditions – particularly those tailored to an offender’s specific circumstances and history – is crucial to achieving these objectives. It thus is understood that parole officers and CMTs play a pivotal role in ensuring that the conditional release framework envisioned by Parliament operates effectively and justly.
[60] An offender who breaches their conditions risks losing their conditional release where their actions or conduct thwart the twin objectives of the conditional release framework (rehabilitation and reintegration). An offender who refuses to cooperate with their CMT equally thwarts these objectives because their conduct prevents the CMT from ensuring compliance. Without adequate supervision, offenders are not shielded from recidivism and are less likely to reintegrate successfully into society with a proper appreciation and respect for the law. This, in turn, creates a significant risk to society.
[61] Upon review of the Decisions, I find it reasonable for the two tribunals to have concluded that Mr. Johnston presented an undue risk to society. As the extract at paragraph 55 demonstrates, the Board carefully weighed mitigating and aggravating factors of Mr. Johnston’s case.
[62] In light of the evidence, I find the two tribunals’ reasons each addressed the evidence, including the prior suspensions’ circumstances, and considered the arguments made to them by Mr. Johnston, and his counsel (to whom the Board referred as an “assistant”, given its inquisitorial process).
[63] Furthermore, I find the written reasons from both tribunals to be careful, rigorous, and internally coherent. They adequately address the relevant evidence in light of the law, and principles of risk and the goal of rehabilitation, within a context of least restrictive measures. The Board Decision was extremely thorough in reviewing the explanation given by Mr. Johnston, but was constrained by a clear and justifiable reprimand resulting from the previous two cancellations of his suspensions of release.
[64] Following from the Board Decision, and in light of its thoroughness of analysis and lack of errors, I am equally satisfied that it was reasonable for the Appeal Division to uphold the Board Decision.
[65] Mr. Johnston contends that the Appeal Division ignored his evidence and failed to address his arguments. Mr. Johnston raised a number of issues in his submissions to the Appeal Division. He submitted that the CMT’s conclusions regarding his alleged misconduct were mistaken. In relation to the third suspension, he contended that he had opened the Amazon account with his sons and that he never himself owned a credit card. He submitted that his sons had used the account with their own debit or credit cards – a fact he alleges was made known to the CMT. He alleges that this assertion went unchallenged by the Board.
[66] Mr. Johnston also alleged that his clarifications regarding the $4,000 deposit to his account went unchallenged by the Board. He argued that the Board ignored arguments and evidence as to the CMT’s alleged bias against him, including an e-mail from his friend Sade Cole recalling derogatory comments made by his parole officer. I address the bias argument later in these Reasons.
[67] Though Mr. Johnston asserts that the Board failed to properly consider evidence or assess credibility, in my view, his real complaint lies with the outcome of the Board’s Decision. The Board member discussed the Amazon situation, remarking that by granting his family access to his Amazon account, he “created a situation where it was nearly impossible for [his] CMT to accurately monitor [his] finances”. On this point, the Board continued:
You told the Board that having a shared amazon account was a way to be closer to your son, and the Board finds that explanation a rather odd or unique way to promotion familiar bonds. Your CMT also noted that you did not seek permission to obtain a prepaid VISA and these types of cards do not produce a monthly statement, therefore your CMT cannot review your purchases. Here the Board see clear deficits in your decision-making, and specifically your attitude, which is a contributing factor in your offending.
[68] Clearly, the Board did not take issue solely with the fact that Mr. Johnston had prepaid charge cards assigned to his Amazon account – whether or not they were his. Rather, the concern was that allowing others to access his account would make it increasingly difficult for the CMT to monitor Mr. Johnston’s finances, particularly as the charge cards were assigned to the account under his own name, as opposed to his son’s name.
[69] Furthermore, the fact that the charge cards used with the Amazon account did not produce monthly statements – as would be the case with ordinary credit or debit cards – compounded the matter, since one of the key conditions for Mr. Johnston’s release had been to monitor his financial activity, including any credit card activity. Indeed, the Board imposed two special conditions specifically related to financial transactions and credit card use:
Provide documented income information, expense information, debt information, banking information, financial transaction information to the satisfaction of your parole supervisor on a monthly basis at minimum.
Not to possess any banking document including credit cards, debit cards, bank cards or cheques without the prior written permission of your parole supervisor.
[70] Even if one were to accept that the charge cards belonged to Mr. Johnston’s son, and that Mr. Johnston himself had not used them to make purchases, but that rather his son made the purchases – according to the testimony provided by both Mr. Johnston and his son – it is still concerning that Mr. Johnston had not disclosed his shared account to his CMT.
[71] As the Board points out, and as borne out by the record, the correctional institutions, parole officers, and courts have all addressed Mr. Johnston’s pattern of crime involving fraudulent behaviour and breach of trust over several years involving various victims, including both those he knew and/or had relationships with, and others (such as the general prison population regarding his tax return scheme). The parole officials – whether those managing his case within the CMTs, or those reviewing the CMT recommendations at the tribunals – were obliged to monitor risk to the public closely.
[72] This is precisely why Mr. Johnston was subject to strict conditions concerning financial disclosure, the obtaining of banking documents, holding positions of authority or influence, and having intimate relationships with women, whom the Board found he had manipulated to facilitate his various fraudulent schemes.
[73] Therefore, withholding from the CMT the existence of his Amazon account, the linked credit cards, and his son’s access to that account, all run counter to the strict surveillance and financial oversight to which the Act subjects Mr. Johnston. The Board thus not only considered the Amazon account issue, contrary to Mr. Johnston’s assertion – but did so with sufficient explanation.
[74] Similarly, Mr. Johnston claims that the Board ignored his evidence in relation to the $4,000 deposit in June 2020. Before the Board, he testified that the money came from a number of sources: first, he claimed that a portion of the funds had been transferred from his brother via his sister who held it in trust, as his brother had served as the executor to his parents’ estate; second, he claimed another portion came from his savings account via an inter-account transfer; and third, another portion came directly from his brother, who had agreed to help him financially.
[75] Yet, the 3rd Assessment Report details that Mr. Johnston informed his parole officer prior to the suspensions that the funds had all come from his brother. Mr. Johnston’s parole officer contacted the brother to confirm whether he had in fact sent the funds, and while the brother told the parole officer that he had agreed to help out Mr. Johnston by providing him $500/month, he also indicated that he had not yet began disbursing the funds. He indicated that he would be able to do so as of July 2020.
[76] Indeed, Mr. Johnston’s parole officer testified before the Board about a conversation with Mr. Johnston’s brother, saying that the latter had been “very, very clear” that no money had been sent to Mr. Johnston via his sister or any other mechan