St-Pierre v. Canada (Attorney General)

St-Pierre v. Canada (Attorney General)
Court (s) Database
Federal Court Decisions
Date
2018-10-23
Neutral citation
2018 FC 1065
File numbers
T-1293-17
Decision Content
Date: 20181023
Docket: T-1293-17
Citation: 2018 FC 1065
[UNREVISED CERTIFIED ENGLISH TRANSLATION]
Ottawa, Ontario, October 23, 2018
PRESENT: The Honourable Mr. Justice Roy
BETWEEN:
JONATHAN ST-PIERRE
Applicant
and
THE ATTORNEY GENERAL OF CANADA
Respondent
JUDGMENT AND REASONS
[1] Jonathan St-Pierre is seeking judicial review of a decision of the Parole Board of Canada [PBC], an agency created under the Corrections and Conditional Release Act (S.C. 1992, c. 20) [CCRA or the Act]. This decision was rendered on August 4, 2017, and it appears that the application for judicial review was brought under section 18.1 of the Federal Courts Act (R.S.C. (1985), c. F‑7).
I. The facts
[2] Mr. St-Pierre is now 31 years old. On June 2, 2017, he admitted that he was guilty of offences relating to child pornography. He distributed, made, possessed and accessed child pornography, offences under the Criminal Code (R.S.C. (1985), c. C-46). The making and distribution of pornography are offences that may result in a sentence of imprisonment for a term of 14 years, with a mandatory minimum sentence of imprisonment for a term of one year. For possession of child pornography, the maximum sentence is 10 years, with a minimum sentence of one year if the offence is an indictable offence. Where the Crown proceeds by summary conviction, the maximum sentence would be two years less a day, with a mandatory minimum sentence of six months. The same regime applies if the person is convicted of access to child pornography.
[3] In this case, the parties agreed that the appropriate sentence was the equivalent of two years of imprisonment because Mr. St-Pierre had already been detained since January 27, 2016. Given that the Court of Québec credited his days of pre-trial detention at a ratio of 1.5:1, the period of two years was reached on May 27, 2017. Therefore, the Court gave Mr. St-Pierre an additional sentence of one day in detention, on June 2, 2017.
[4] Moreover, an order was issued under section 161 of the Criminal Code (a prohibition against attending certain places, obtaining certain types of employment, having contact with children and using the Internet or any other digital network). He was also prohibited from possessing firearms, ammunition and other explosive devices. Finally, the applicant had to be registered in the Sex Offender Registry (sections 490.012 and 490.013 of the Criminal Code).
[5] Of particular relevance to this matter, it appears that Mr. St-Pierre and the prosecution have suggested that he be declared a long-term offender. The following is an excerpt from the transcript of June 2, 2017:
[translation]
. . . The sole dispute involves the period in which you will be restricted as a long-term offender. I have had the opportunity to read all of the reports, which have been filed with the Court, including the pre-sentence report by Dany Tétrault, Dr. Bergeron’s report and finally the report by Dr. Morissette. Regarding the reports by Drs. Bergeron and Morissette, they both agree that you do need help. This help will be provided through therapy, therapy sessions.
. . .
All of the reports lead us all to the same conclusion. Obviously, you, on your own admission, and with your diagnoses, have talked about primary pedophilia, that you have a substantial risk of reoffending and that your situation requires intervention.
All of the elements point to a high score indicating pedophilia for and deviant interests and Dr. Morissette notes that, clinically, your risk of reoffending is substantial.
(pp. 9 and 10)
The Court therefore set the period during which the applicant would be subject to long-term supervision at seven years.
[6] Given the Court’s findings in the course of sentencing, it is not really necessary to review at length the details of the facts giving rise to Mr. St-Pierre’s assessment reports. For our purposes it will suffice to note that these reports indicate the abuse of children as young as nine years old. These contacts took place with his half-brothers and half-sisters. He was placed in a rehabilitation centre for one year before being placed in foster care. At that time he received treatment from a psychologist. It appears that his consumption of child pornography began after he returned to live with his family, before he turned 17. Other charges were brought against him, and at the age of 17, he served six months of community supervision and two years of probation. After receiving therapy through the Programme d’évaluation et de traitement des abus sexuels [PÉTAS, a sexual abuse assessment and treatment program], it appears that the applicant was again charged with various sexual offences together with an accomplice he had met during the therapy.
[7] A total sentence of imprisonment of eight and a half years less a period of 13 months to take into account six and a half months of pre-trial detention was imposed for offences of distribution of child pornography, possession for the purpose of transmission of child pornography and conspiracy with an accomplice to touch a person under the age of 14 for sexual purposes and to make child pornography. This sentence was reduced to 42 months by the Court of Appeal of Québec, and further reduced by 13 months for the pre-trial detention.
[8] Dr. Bergeron’s report, prepared after Mr. St-Pierre’s most recent arrest, notes that the applicant stated that he [translation] “now regrets having stopped attending therapy at the end of his sentence” (psychosexual assessment report, February 16, 2017, p. 9 of 24). The following excerpt can be found at page 10 of 24:
[translation]
Questioned about his aspiration to be the martin (sic) Luther King of pedophiles, the subject was somewhat embarrassed by the evocation of this ambition and stated that he had simply wanted to write a book to help people understand pedophilia. He claims to have been successful in changing the mentality of some of his family members.
[9] As for the recidivism to which the applicant has pleaded guilty and for which a long-term supervision order was imposed on June 2, 2017, the arrest resulted from a 2016 investigation into a pedophile ring. As with the first arrest, which resulted in a sentence of eight and a half years’ imprisonment, a search of the applicant’s home revealed objects and electronic files relating to child pornography, some of which he had filmed himself.
[10] Psychiatrist Louis Morissette produced a report on April 19, 2017, entitled Expertise sur les délinquants dangereux ou à contrôler [expert report on dangerous or long-term offenders]. Like Dr. Bergeron, a psychologist, his concluded that the applicant’s risk of reoffending is substantial. He also considers that the substantial risk that the applicant will reoffend is [translation] “manageable, acceptable, controllable in the community”. He added that measures had to be implemented. The applicant [TRANSLATION] “understands his issues. He is aware that his fantasies are deviant. He is aware that his fantasies are wrong and not socially acceptable. He has a positive attitude toward treatment and a potential follow-up” (page 9 of 9). Dr. Morissette also stated that the applicant [translation] “could also most likely benefit from medication to diminish his sexual impulses”.
[11] The Court also noted the report by psychiatrist Benoît Dassylva, dated December 10, 2008, and prepared at Correctional Service Canada’s La Macaza Institution. The report followed the first adult conviction and the decision of the Court of Appeal of Québec reducing the sentence to a total of 29 months’ imprisonment. The following is an excerpt from the report:
[translation]
Mr. St-Pierre has never been hospitalized in the psychiatric ward. When he was 19 years old, he received outpatient care in Shawinigan for a few months from Dr. Allard, a psychiatrist. The purpose of this was apparently to determine whether pharmacological treatment would be appropriate in light of his history of sexual interference with minors. According to Mr. St‑Pierre, Dr. Allard had concluded that medication was not necessary. Mr. St-Pierre admitted, however, that he had not told Dr. Allard about his deviant fantasies or his consumption of child pornography. Mr. St‑Pierre therefore never received any psychotropic medication. Nor has he ever received hormone therapy for the purpose of lowering his testosterone levels. He has never attempted suicide. As an adolescent, he followed a program administered by PÉTAS for his sexual problems.
(p. 2 of 6)
Dr. Dassylva, the psychiatrist, did touch briefly on the possibility of medication. At page 4 of 6 of his report, he wrote that the applicant had never requested medication. He added that the applicant [translation] “stated that his position had not changed and that he was very reluctant to take medication. He is worried about unwanted side effects. He added somewhat dramatically that he knew people who had become vegetables after taking medication prescribed by psychiatrists. He then qualified his statements somewhat, adding that these people were instead affected mentally, and that it was true that they were also taking drugs that could affect them mentally.” Dr. Dassylva also noted that the therapy the applicant had already tried had not been able to prevent him from reoffending, [translation] “despite positive reports”. He therefore concluded as follows:
[translation]
If he were to return to society, Mr. St-Pierre would benefit, in my view, from residential supervision to avoid situations of risk. He could then receive supervision and support for his professional and relationship goals. Therapy specifically designed for sex offenders is clearly called for. In my view, he would also benefit from hormone therapy with a view to reducing his sexual impulses upon his return to society in order to lower the risk that he will reoffend. Mr. St-Pierre should therefore be informed of the potential advantages and disadvantages of such medication to make an informed decision as to whether or not to consent to this type of treatment.
As we are aware, Mr. St-Pierre reoffended.
II. Long-term offender
[12] The decision to declare that an offender is a long-term offender is governed by section 753.1 of the Criminal Code. The conditions are as follows:
Application for finding that an offender is a long-term offender
Demande de déclaration - délinquant à contrôler
753.1 (1) The court may, on application made under this Part following the filing of an assessment report under subsection 752.1(2), find an offender to be a long-term offender if it is satisfied that
753.1 (1) Sur demande faite, en vertu de la présente partie, postérieurement au dépôt du rapport d’évaluation visé au paragraphe 752.1(2), le tribunal peut déclarer que le délinquant est un délinquant à contrôler, s’il est convaincu que les conditions suivantes sont réunies :
(a) it would be appropriate to impose a sentence of imprisonment of two years or more for the offence for which the offender has been convicted;
a) il y a lieu d’imposer au délinquant une peine minimale d’emprisonnement de deux ans pour l’infraction dont il a été déclaré coupable
(b) there is a substantial risk that the offender will reoffend; and
b) celui-ci présente un risque élevé de récidive;
(c) there is a reasonable possibility of eventual control of the risk in the community.
c) il existe une possibilité réelle que ce risque puisse être maîtrisé au sein de la collectivité.
[13] The part at issue here is Part XXIV of the Criminal Code, entitled Dangerous Offenders and Long-Term Offenders. A person who is declared to be a dangerous offender faces three possibilities under subsection 753(4) of the Criminal Code, which reads as follows:
Sentence for dangerous offender
Peine pour délinquant dangereux
753 (4) If the court finds an offender to be a dangerous offender, it shall
753 (4) S’il déclare que le délinquant est un délinquant dangereux, le tribunal :
(a) impose a sentence of detention in a penitentiary for an indeterminate period;
a) soit lui inflige une peine de détention dans un pénitencier pour une période indéterminée;
(b) impose a sentence for the offence for which the offender has been convicted - which must be a minimum punishment of imprisonment for a term of two years - and order that the offender be subject to long-term supervision for a period that does not exceed 10 years; or
b) soit lui inflige une peine minimale d’emprisonnement de deux ans pour l’infraction dont il a été déclaré coupable et ordonne qu’il soit soumis, pour une période maximale de dix ans, à une surveillance de longue durée;
(c) impose a sentence for the offence for which the offender has been convicted.
c) soit lui inflige une peine pour l’infraction dont il a été déclaré coupable.
[14] In Mr. St-Pierre’s case, the Court will have been satisfied that this offender may be supervised given its finding that there is a reasonable possibility of eventual control of the risk in the community.
[15] Now I will turn to the substantial risk that the offender will reoffend. The Criminal Code states in subsection 753.1(2) the factors to consider to determine whether there is a substantial risk that the offender will reoffend. First, certain offences appearing in the legislation must have been committed (distribution of, making, possession of and accessing child pornography) and, second, the offender has shown a pattern of repetitive behaviour that shows a likelihood of the offender’s causing death or injury to other persons or inflicting severe psychological damage on other persons, or, by conduct in any sexual matter, has shown a likelihood of causing injury, pain or other evil to other persons in the future through similar offence.
[16] As its name clearly indicates, the Act must provide for the supervision of long-term offenders. This is authorized by subsection 753.2(1) of the Criminal Code, which reads as follows:
Long-term supervision
Surveillance de longue durée
753.2 (1) Subject to subsection (2), an offender who is subject to long-term supervision shall be supervised in the community in accordance with the Corrections and Conditional Release Act when the offender has finished serving
753.2 (1) Sous réserve du paragraphe (2), le délinquant soumis à une surveillance de longue durée est surveillé au sein de la collectivité en conformité avec la Loi sur le système correctionnel et la mise en liberté sous condition lorsqu’il a terminé de purger :
(a) the sentence for the offence for which the offender has been convicted; and
a) d’une part, la peine imposée pour l’infraction dont il a été déclaré coupable;
(b) all other sentences for offences for which the offender is convicted and for which sentence of a term of imprisonment is imposed on the offender, either before or after the conviction for the offence referred to in paragraph (a).
b) d’autre part, toutes autres peines d’emprisonnement imposées pour des infractions dont il est déclaré coupable avant ou après la déclaration de culpabilité pour l’infraction visée à l’alinéa a).
Thus, the Parole Board’s jurisdiction to act in this case is grounded in this subsection.
III. Decision of the Parole Board of Canada
[17] The decision for which judicial review is sought was rendered on August 4, 2017. In that decision, the conditions for long-term supervision are established. Reproduced below are subsections 134.1(1) and (2), which authorize the Board to establish conditions:
Conditions for long-term supervision
Conditions
134.1 (1) Subject to subsection (4), every offender who is required to be supervised by a long-term supervision order is subject to the conditions prescribed by subsection 161(1) of the Corrections and Conditional Release Regulations, with such modifications as the circumstances require.
134.1 (1) Sous réserve du paragraphe (4), les conditions prévues par le paragraphe 161(1) du Règlement sur le système correctionnel et la mise en liberté sous condition s’appliquent, avec les adaptations nécessaires, au délinquant surveillé aux termes d’une ordonnance de surveillance de longue durée.
Blank/ blanc
Blank/ blanc
Blank/en blanc
Blank/en blanc
Conditions set by Board
Conditions imposées par la Commission
134.1 (2) The Board may establish conditions for the long-term supervision of the offender that it considers reasonable and necessary in order to protect society and to facilitate the successful reintegration into society of the offender.
134.1 (2) La Commission peut imposer au délinquant les conditions de surveillance qu’elle juge raisonnables et nécessaires pour protéger la société et favoriser la réinsertion sociale du délinquant.
Conditions were established relating to access to pornographic material. Also, all of the offender’s various contacts must be disclosed to his parole supervisor. He must remain in a community correctional centre and avoid certain individuals with a criminal record. The use of a computer enabling access to the Internet is prohibited. However, it is the condition relating to psychiatric treatment that is the subject of this judicial review. The condition is worded as follows:
[translation]
Follow psychiatric treatment for sex offenders to be arranged by your parole supervisor, and follow any treatment recommendations.
(p. 4 of 8)
[18] The decision includes a brief overview of the applicant’s history but makes specific reference to the reports of Drs. Dassylva, Bergeron and Morissette (p. 6 of 8). The decision explains the reasons for each of the conditions established. The relevant explanation is the one relating to the psychiatric treatment, which reads as follows:
[translation]
. . . You must also continue to work on your problems with sexual offending. You must follow the psychiatric treatment for sex offenders to be arranged by your parole supervisor, and follow any treatment recommendations.
(pp. 7-8 of 8)
[19] Finally, the decision repeatedly noted that the applicant had had the opportunity to analyze the information in his record, which the Board considered reliable and persuasive, and the applicant, through his counsel, submitted his personal observations. The Board was therefore of the view that it had before it all the reliable information necessary for an informed decision.
[20] The applicant argued at the hearing before this Court that the difficulty raised by this particular condition was that it allowed for the establishment of a requirement to take medication. At the time, I noted that no such requirement appeared in the condition as worded. Rather, this condition, as worded, has a particular context that is worth noting. It appears that the applicant, through his counsel, was invited on June 21, 2017, to make representations on the elements and conditions that had been proposed. On June 23, 2017, and on July 4, 2017, counsel made representations on each and every one of the conditions being considered. The communication of June 23 included the representations regarding what had been presented at that point by the Board as the condition of following psychiatric treatment and taking medication. I will reproduce the representations made on this point in their entirety:
[translation]
Mr. St-Pierre acknowledges the need for a condition to follow psychiatric treatment. However, we object vigorously to the condition to take any medication prescribed. This condition may not be established without an assessment of the offender’s particular situation and requires a hearing rather than a paper review.
While the Federal Court of Appeal did recognize in Deacon v. Canada (Attorney General) . . . the Board’s authority to establish a condition to take medication, it also imposed certain limits on this authority:
• The Board must ask itself whether “another form of medical or other treatment would be more effective or less injurious” (Deacon v. AGC, para. 45).
• The medication prescribed “must also be ‘reasonable and necessary’ . . .” (Deacon v. AGC, para. 66).
• The Board must order a hearing for the offender (Deacon v. AGC, para. 66) to respect the principles of procedural safeguards, particularly the principles set out in Baker v. Canada (Minister of Citizenship and Immigration), [1992] 2 SCR 817, 1999 CanLII 699 (SCC).
In this case, the Board has no information about the nature of the prescribed treatment, the responsibility for the proposed medical treatment, its effectiveness versus its adverse effects or the availability of other forms of treatment. The record is therefore clearly incomplete in this respect.
Moreover, the Board must order a hearing to respect the Deacon and Baker principles.
Accordingly, we ask that the Board strike the portion of the condition relating to the taking of medication and order only a condition to follow psychiatric treatment. [Emphasis added.]
This intervention of June 23 was a reaction to the condition proposed by the Board, which read as follows:
[translation]
Follow psychiatric treatment for sex offenders to be arranged by your parole supervisor, and follow any treatment recommendations, including taking any medication prescribed to you. [Emphasis added.]
[21] It appears that the applicant expressly agreed in his representations about psychiatric treatment and the use of medication that it would be appropriate for him to follow psychiatric treatment. His objection related to the requirement that he take medication. This opposition was apparent as early as December 10, 2008, in the psychiatric assessment report prepared by Dr. Dassylva.
[22] In addition, when the applicant was sentenced on June 2, 2017, the Court took note of his expressions of remorse and his admission regarding his pedophilia. Based on this and on the reports of Drs. Bergeron and Morissette, the Court of Québec stated that [translation] “both agree that you do need help. This help will be provided through therapy, therapy sessions”. This is certainly consistent with the Parole Board’s position that psychiatric treatment is appropriate. As a result of the representations, only psychiatric treatment was ordered as a condition, since the phrase about medication appearing in the draft regarding which representations had been sought was dropped from the final decision about the conditions established.
IV. The arguments
[23] The notice of application for judicial review of the Board’s decision challenged each of the conditions established for Mr. St-Pierre. However, the Criminal Code clearly establishes that the long-term offender designation can only be ordered if there exists a reasonable possibility of eventual control of the substantial risk in the community. It is very likely that in the absence of special conditions, the designation will cease to be an option, leaving only prolonged incarceration or a dangerous offender designation. The latter case would involve indefinite detention, while the former case would involve a term of imprisonment much longer than two years, given that this is a case of recidivism after an initial period of 42 months of adult incarceration.
[24] It is worth recalling that “[a]lmost every offender who satisfies the dangerous offender criteria will satisfy the first two criteria in the long-term offender provisions” (R. v Johnson, 2003 SCC 46 [2003] 2 SCR 357, para 31 [Johnson]). However, conditions for long-term supervision are also required, including any conditions considered “reasonable and necessary in order to protect society and to facilitate the successful reintegration into society” (s 134.1(2) CCRA). These help to satisfy the third criterion allowing for long-term supervision to be imposed rather than a measure representing a greater infringement on freedom (s 753.1(1) Cr. C.), that of being satisfied that the substantial risk may be controlled. As the Court noted in Johnson, “[t]he very purpose of a long-term supervision order, then, is to protect society from the threat that the offender currently poses — and to do so without resort to the blunt instrument of indeterminate detention” (para 32).
[25] Fortunately, the applicant later opted to contest only the condition that he follow psychiatric treatment. However, the applicant chose to incorporate elements of administrative law into his arguments. It was alleged that the conditions that could be established under the CCRA were not “reasonable and necessary in order to protect society and to facilitate the successful reintegration into society” (s 134.1(2)). The condition was not based on reliable and persuasive information, and there is no information regarding what kind of treatment could be [translation] “imposed” by a psychiatrist against his will.
[26] In his Memorandum of Fact and Law, the applicant also attempts to incorporate arguments based on section 7 of the Charter (Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11) [Charter]. The respondent has not formally objected to this tactic. This in itself is problematic. The Federal Courts Rules (SOR/98-106) [Rules] expressly set out the content of the notice of application. Rule 301(e) requires “a complete and concise statement of the grounds intended to be argued, including a reference to any statutory provision or rule to be relied on”. The notice of application contains no mention whatever of any constitutional issues or references to the Charter.
[27] Very recently, the Federal Court of Appeal reiterated the importance of these requirements (Fabrikant v Canada, 2018 FCA 171, para 18). The resulting framework may be subject, for example, to a motion to strike the notice of application of judicial review, as in Canada (National Review) v JP Morgan Asset Management (Canada) Inc., 2013 FCA 250, [2014] 2 FCR 557 [JP Morgan]. This is because the notice of application establishes the parameters of the judicial proceedings.
[28] In JP Morgan, the Court of Appeal declared that a “‘complete’ statement of grounds means all the legal bases and material facts that, if taken as true, will support granting the relief sought” (para 39). This is not optional. Further below, the following is stated:
[44] The statement of grounds in a notice of application for judicial review is not a list of categories of evidence the applicant hopes to find during the evidentiary stages of the application. Before a party can state a ground, the party must have some evidence to support it.
[45] It is an abuse of process to start proceedings and make entirely unsupported allegations in the hope that something will later turn up. See generally Merchant Law Group v. Canada (Revenue Agency), 2010 FCA 184 at paragraph 34; AstraZeneca Canada Inc. v. Novopharm Ltd., 2010 FCA 112 at paragraph 5. Abuses of process can be redressed in many ways, such as adverse cost awards against parties, their counsel or both: Rules 401 and 404.
[29] Authors Letarte et al., in their book Recours et procédure devant les Cours fédérales (Lexis Nexis, 2013), provide a good explanation for the rationale behind the rule: the respondent is not caught off guard and the Court can identify the issues. Section 5.16 reads as follows:
[translation]
The requirement set out in paragraph (e) of Rule 301 allows the Court to correctly identify the issue or issues before it. The applicant must therefore raise all the grounds intended to be argued in support of the claim.
Normally, the Court will refuse to consider a ground of review that is not raised in the notice of application. Therefore, it is not appropriate for the applicant to raise a new ground of review in its memorandum of fact and law.46
[30] Naturally, I share the view of de Montigny J., then of this Court, which he expressed as follows:
In the present case, the applicants submitted in their notices of application that the Commissioner had erred in fact and in law, and had breached a principle of natural justice or procedural fairness. This is no doubt a cryptic way to set out the grounds of review. It reflects, unfortunately, a practice that is becoming more and more common - to simply paraphrase the text of s. 18.1 of the Federal Courts Act as the grounds for the application. Such a practice must definitely be discouraged, and counsel should strive to particularize the grounds they intend to argue to conform to the spirit of the Rules. This would certainly help both parties frame their arguments more precisely from the outset and eventually focus the debate.
(Kinsey v Canada (Attorney General), 2007 FC 543, at para 33)
[31] Therefore, a ground not raised in the notice of application should not be considered at all. If the notice is vague, rather than simply silent, as, for example, when the notice of application merely raises principles of natural justice, a motion under Rule 58 would force an applicant to make a complete and concise statement of the grounds raised, including the relevant legislative provisions.
[32] In this case, the Attorney General chose not to challenge the very vague framework created by the notice of application, preferring to deal with the arguments presented in the Applicant’s Memorandum of Fact and Law.
[33] However, other difficulties were created by factual deficiencies in the record.
A. The applicant
[34] The record does not provide any details about the psychological treatment, beyond the fact that the Board established as a condition psychiatric treatment only—without the medication that seemed to be an option, but to which the applicant had been objecting for a long time. An order issued by this Court on November 2, 2017, involved a request for a stay given that Mr. St-Pierre had an appointment with a psychiatrist on November 3. No allegation of irreparable harm was made, as the purpose of this appointment was unknown: no treatment had been selected. The Court noted that a new request for a stay could be made if the three well-known conditions were met, including irreparable harm. No such request for a stay was subsequently made, because one year later, the nature of the psychiatric treatment to which he was to object was still unknown. The result is an argument that is disconnected from any concrete facts, an argument in the abstract, and one that now seeks to include section 7 of the Charter.
[35] The standard of correctness applies to questions of procedural fairness. The applicant also claims that the same standard applies to questions of law. As we shall see, that is not the state of the law, but this may not be particularly relevant as the applicant frames his argument as a question of procedural fairness.
[36] As we have seen, the Criminal Code specifically provides that long-term supervision is administered by the Board. The CCRA contains a regime governing its administration. Subsection 134.1(1) requires the application of the mandatory conditions if subsection 161(1) of the Corrections and Conditional Release Regulations (SOR/92-620). However, additional conditions are authorized by subsection 134.1(2) if the Board considers them “reasonable and necessary in order to protect society and to facilitate the successful reintegration into society of the offender”. This is a prelude to an administrative law argument, involving conditions established in a manner that is ultra vires or in violation of procedural fairness.
[37] Probably in an attempt to counteract Deacon v Canada (Attorney General), [2007] 2 FCR 607, [Deacon] which states that section 134.1 of the Act allows for the imposition of a medical treatment (in that case, “chemical castration”), and that imposing a medical treatment does not violate section 7, the applicant is now raising Carter v Canada (Attorney General), 2015 SCC 5, [2015] 1 SCR 331[Carter] on the subject of physician-assisted dying. According to the applicant, the discretion exercised by the Board under section 134.1 must be consistent with Charter values (Doré v Barreau du Québec, 2012 SCC 12, [2012] 1 SCR 395 [Doré]).
[38] Noting that the Attorney General had conceded in Deacon that there had been a violation of liberty and security of the person, the applicant focuses on principles of fundamental justice. Mooring v Canada (National Parole Board), [1996] 1 SCR 75 [Mooring], establishes that the Board is subject to section 7 of the Charter and that the duty to act fairly implies ensuring that “the information upon which it acts is reliable and persuasive” (para 36). I will add the rest of paragraph 36, however, to provide a more complete understanding:
. . . To take an extreme example, information extracted by torture could not be considered reliable by the Board. It would be manifestly unfair for the Board to act on this kind of information. As a result, the Board would be under a duty to exclude such information, whether or not the information was relevant to the decision. Wherever information or “evidence” is presented to the Board, the Board must make a determination concerning the source of that information, and decide whether or not it would be fair to allow the information to affect the Board’s decision.
[39] The applicant then refers to the five criteria set out in Baker v Canada (Minister of Citizenship and Immigration), [1999] 2 SCR 817, 1999 [Baker] to determine the content of the duty of procedural fairness in a given situation. There is a confusion of concepts here.
[40] The applicant submits that the establishment of a requirement to follow psychiatric treatment is not based on reliable and persuasive information (Mooring) because the information is allegedly [translation] “quite limited and utterly vague” (Applicant’s Memorandum of Fact and Law, para 36). The type or nature of the psychiatric treatment, with its advantages and disadvantages, is unknown. If I have properly understood the argument, this lack of information would have prevented the Board from considering the Charter values relating to the protection of society. The applicant submits that the Charter values applicable to this case are those discussed in Carter: the arbitrariness of a law, the lack of a rational connection between the object of the law and the limit it imposes on life, liberty or security of the person, its overbreadth and its gross disproportionality. To try to put some flesh on an argument that was sketched out in the vaguest terms, because the information available to the Board was insufficient, the proportionality exercise was impossible.
[41] Relying generally on the factors from Baker, an oral hearing should have been held. The applicant has said little about the weight that should have been given to the Baker factors and why the opportunity afforded to the applicant to make written representations, of which he had already taken advantage twice, was insufficient. He simply insisted on the intrusiveness of psychiatric treatment.
[42] Finally, the applicant seeks to draw a parallel with the regime under the Civil Code of Québec, in cases where care is required by the state of health of a minor or a person of full age who is incapable of giving consent (a. 16).
B. The respondent
[43] Correctness is the standard of review applicable to questions of procedural fairness. The standard of reasonableness is applicable to the decision to impose mandatory psychiatric treatment and to the balancing of Charter values with the statutory objectives (Doré, paras 57 and 58).
[44] The respondent describes the legislative context and noted in particular that the Act indicates in which cases an in-person hearing in mandatory (s 140(1)). The other cases are left to the Board’s discretion (s 140(2)).
[45] As for whether the Board had the necessary information in the record to establish psychiatric treatment as a condition, the Attorney General argues that the file contains plenty of information supporting the view that it was reasonable and necessary in order to protect society and to facilitate Mr. St-Pierre’s successful reintegration into society. It was submitted that Deacon confirmed the Board’s authority to establish even such conditions as related to medical treatment and that this respects section 7 of the Charter because the purpose of the condition is community protection.
[46] The respondent also insists that Mr. St-Pierre is now challenging a condition to which he had previously expressly agreed. Indeed, the written representations of June 23, 2017, very clearly show his acceptance of the need for psychiatric treatment but his opposition to a condition requiring him to take medication (see para 21 where this passage is reproduced). It will be helpful to recall here that the condition established reads as follows:
[translation]
Follow psychiatric treatment for sex offenders to be arranged by your parole supervisor, and follow any treatment recommendations.
[47] This means that the Board relied on reliable and persuasive information from professionals who examined Mr. St-Pierre over time. This reliable and persuasive information includes the recognition of the applicant himself of the need for psychiatric treatment to be established as a condition.
[48] As for procedural fairness as described in Mooring, for the Board it means ensuring that the information on which it acts is reliable and persuasive (para 36). By ensuring that an offender receives the relevant information, the reliability of that information can be refuted. Despite having received the information, the applicant did not challenge its reliability or credibility. He even consented in his written representations to psychiatric treatment, making it difficult now to claim that the information before the Board was silent on his willingness to participate in psychiatric treatment. Clearly the Board had information before it regarding his consent.
[49] The paper hearing was also appropriate. As admitted by the applicant, the Act only requires an in-person hearing in the situations set out in subsection 140(1) of the Act. Furthermore, this Court has already found in Sychuk v Canada (Attorney General), 2009 FC 105 and Laferrière v Canada (Attorney General), 2015 FC 612 [Laferrière] that a hearing is not required to establish or modify conditions for a long-term offender, as the written representations were an adequate substitute. I would add that the Court, in Laferrière, notes that the Superior Court of Québec has already rejected this argument twice. Moreover, the Court of Appeal of Québec expressed its agreement in the following terms:
[translation]
As held by the judge, nothing in the circumstances of this case required the Board to hold a hearing, and the appellant has not demonstrated any error that would warrant this Court’s intervention.
(Laferrière c Commission des libérations conditionnelles du Canada, 2013 QCCA 1081).
[50] The respondent argues that it is surprising that the applicant is raising the potential repercussions of the condition to which he himself has expressly consented. No evidence has been filed in support of potential side effects. Furthermore, no treatment is imposed on him because, according to Deacon (para 74), it is open to the applicant to refuse the treatment, which would have certain consequences.
V. Preliminary issue
[51] The Court had on its own initiative raised the issue of its jurisdiction in a direction issued September 26, 2018. The CCRA provides for a right to appeal a decision of the Board to an Appeal Division constituted under section 146 of the same statute. I reproduce subsections 147(1) and (2):
Right of appeal
Droit d’appel
147 (1) An offender may appeal a decision of the Board to the Appeal Division on the ground that the Board, in
making its decision,
147 (1) Le délinquant visé par une décision de la Commission
peut interjeter appel auprès de la Section d’appel pour l’un ou plusieurs des motifs suivants :
(a) failed to observe a principle of f