Hermiz v. Canada

Hermiz v. Canada
Court (s) Database
Federal Court Decisions
Date
2013-03-19
Neutral citation
2013 FC 288
File numbers
T-828-09
Notes
Digest
Decision Content
Date: 20130319
Docket: T-828-09
Citation: 2013 FC 288
Toronto, Ontario, March 19, 2013
PRESENT: Kevin R. Aalto, Esquire, Prothonotary
BETWEEN:
IMAD HERMIZ
Plaintiff
and
HER MAJESTY THE QUEEN
Defendant
REASONS FOR ORDER AND ORDER
Introduction
[1] Imad Hermiz was on day parole. Less than a month later his day parole was suspended because an inmate at the institution where Mr. Hermiz had been incarcerated told a correctional officer who told Mr. Hermiz’s parole officer that the inmate’s wife had been threatened. The inmate intimated that it was Mr. Hermiz along with two others who had threatened his wife. On the basis of this uncorroborated allegation, Mr. Hermiz’s day parole was immediately suspended and he was incarcerated a further 83 days until September 9, 2008 when the National Parole Board (now known as the Parole Board of Canada and hereinafter referred to as PBC) again released him to continue his day parole.
[2] At the time his day parole was suspended, Mr. Hermiz was gainfully employed. He brings this action for damages founded in the torts of misfeasance in public office, false imprisonment and negligence. He also alleges that his Charter rights were breached and therefore Correctional Services Canada (CSC) is liable for damages.
Summary of Facts
[3] Mr. Hermiz was sentenced to a penitentiary term of three years and six months on March 7, 2007 arising from a stabbing incident at a party which resulted in Mr. Hermiz being convicted of manslaughter. He was incarcerated at the Fenbrook Institution (Fenbrook), a medium security penitentiary located near Gravenhurst, Ontario. While in Fenbrook, he briefly encountered another inmate, Jason Bolan. Mr. Hermiz described Mr. Bolan as an acquaintance.
[4] While incarcerated Mr. Hermiz was involved with drugs. There are several misconduct reports regarding his conduct involving the use of marijuana.
[5] The fact of his involvement in the use and selling of drugs was referred to in the notice of the PBC when Mr. Hermiz was granted conditional day parole on May 21, 2008. He was released on day parole to reside at the St. Leonard’s Peel Halfway House in Brampton. The Greater Toronto West Parole Office was assigned the duty of supervision of Mr. Hermiz and Hamza Al-Baghdadi was appointed as his parole officer.
[6] On June 18, 2008, Mr. Bolan was stabbed in Fenbrook. Mr. Bolan told Ms. Holly Goldthorp, a Security Intelligence Officer (SIO) at Fenbrook that he was being pressured to have his wife smuggle a package of drugs into Fenbrook. Mr. Bolan also apparently stated that some three weeks prior to the stabbing three men had shown up at his house and threatened his wife to get her to take a package to him. Mr. Bolan attributed the stabbing to the refusal of his wife to take the package. Mr. Bolan accused Mr. Hermiz of being one of the three men. There was no evidence that the alleged threat to Mr. Bolan’s wife was reported to any authority at the time of the threat. Mr. Bolan did not give evidence at the trial nor did Mrs. Bolan.
[7] In turn, Ms. Goldthorp reported to Mr. Al-Baghdadi the fact of Mr. Bolan’s stabbing and his story about the threat to his wife and his allegation that Mr. Hermiz was involved.
[8] Upon receipt of this information Mr. Al-Baghdadi in conjunction with the Parole Supervisor, Philip Schiller, determined that Mr. Hermiz’s day parole should be suspended and that he should be returned to prison.
Evidence at Trial
[9] At trial, evidence was given by Mr. Hermiz, Ms. Goldthorp, Mr. Al-Baghdadi and Mr. Schiller. As noted, neither Mr. Bolan nor his wife testified. Thus, there was much hearsay evidence. No objections were made to the hearsay.
Evidence of Mr. Hermiz
[10] Mr. Hermiz gave evidence and was cross-examined. He had been sentenced to a penitentiary term of three years and six months in March, 2007. While in Fenbrook he said that he briefly encountered Mr. Bolan but they were not friends. He frankly admitted to his involvement with marijuana while an inmate. When he was granted conditional release on May 21, 2008 the PBC was aware of his involvement with drugs. Notwithstanding, he was granted conditional release to reside at St. Leonard’s Peel Halfway House in Brampton.
[11] On June 18, 2008 Mr. Hermiz testified that his day parole was suspended and that he was held in a provincial facility pending a post suspension review. He said that his parole officer gave the reason of “deteriorating behaviour” as the reason his day parole was suspended. He denied any alleged wrongdoing.
[12] During the time of his brief release Mr. Hermiz had been employed. Mr. Hermiz was imprisoned for 83 days before being released again by the PBC. However, subsequent to his re-release he obtained employment with Kraft Canada Inc. at $21.50 per hour [pay stubs, Joint Book of Documents Tabs 55 – 62]. It is unclear in the record what his remuneration was during the period of his first release.
[13] In a vigorous cross-examination regarding his involvement with drugs, Mr. Hermiz admitted to the use of marijuana perhaps three times. Although at times he appeared to be a bit smug, he gave evidence in a forthright and believable manner. I accept his evidence and more particularly with respect to the alleged incident involving Mrs. Bolan about which more will be said later in these reasons.
Evidence of Holly Goldthorp
[14] The evidence of Ms. Goldthorp was that she had been employed by CSC since 1995 and was an acting SIO at the time of the stabbing of Mr. Bolan in 2008. Subsequently she became a fulltime SIO.
[15] She described the position of SIO as the person who coordinates and administers the Intelligence Program within a penitentiary. That Program involves, inter alia, contributing to a safe and secure environment for staff, the offenders and the public; making recommendations regarding all aspects of security; and, planning and conducting strategic security evaluations as well as tactical security investigations to prevent or mitigate threats to individuals.
[16] Ms. Goldthorp also described prison subculture particularly as it relates to drugs. She described the hierarchy within Fenbrook including the role of the leaders and particularly "enforcers", "runners" or "mules". Enforcers use intimidation tactics to achieve specific results such as the collection of a debt while mules transport drugs or contraband into the institution. Runners move the illicit goods throughout the institution.
[17] She also gave evidence about the “code of silence” and “rats” and other elements of prison subculture. For purposes of this case, while interesting background, it is not determinative of the issues.
[18] Of specific importance is the incident which Ms. Goldthorp investigated on June 19, 2008. She described a visit with an inmate, Jason Bolan, to discuss the status of his wife’s impending visit on June 22, 2008.
[19] Ms. Goldthorp detailed the meeting with Mr. Bolan in a number of documents filed at trial [Joint Book of Documents, Tab 36, 39 and 43]. These documents record the conversation with Mr. Bolan and his allegation that he was being pressured to have drugs delivered to Fenbrook via his wife. He alleged that Mr. Hermiz had attended at his home to give a package to this wife.
[20] One of the documents prepared by Ms. Goldthorp, the Protected Information Report
[Joint Book of Documents, Tab 36] was faxed to Mr. Al-Baghdadi. This followed a telephone conversation with Mr. Al-Baghdadi wherein Ms. Goldthorp reported on the conversation and meeting with Mr. Bolan.
[21] In her evidence, Ms. Goldthorp referred to a Commissioner’s Directive 568-2 which provides an evaluation of the reliability of information collected by an SIO. Ms. Goldthorp said that in her view the information she received from Mr. Bolan was believed reliable in accordance with the Commissioner’s Directive 568-2. She believed the information to be reliable because of the physical evidence of an attack on Mr. Bolan; that he provided a consistent account of events to Correctional Officers and an O.P.P. Officer who subsequently interviewed him; and that he expressed fear for his own safety and that of his wife. Mr. Bolan did not identify his attacker(s), Ms. Goldthorp interpreted this as being consistent with the institutional sub-cultures “code of silence” or “inmate code”. She indicated she had no information that Mr. Bolan was lying to her in order to “frame” Mr. Hermiz or that he provided the information for any other purpose other than his concern for his wife’s safety and his own safety.
[22] During her cross-examination, Ms. Goldthorp described her meeting with Mr. Bolan in greater detail. She frankly admitted that it was very important for her to track down the instigators and why the stabbing of Mr. Bolan occurred. Mr. Bolan did not provide any names because of the “inmate code”. However, she obtained information that there was a physical mark on one of the aggressors. Ms. Goldthorp indicated that a check was done of inmates to determine if there was any marking consistent with the injuries as described by Mr. Bolan on one of the aggressors. Ms. Goldthorp conceded that there was no document which recorded any injuries to any inmate consistent with what Mr. Bolan described.
[23] Ms. Goldthorp also conceded that inmates such as Mr. Bolan could not receive phone calls from outside the institution but could only place phone calls and that such phone calls were tracked. Ms. Goldthorp conceded that she did not look at the list of calls Mr. Bolan made to his wife to determine when in fact any phone call was made. It is also telling that Ms. Goldthorp admitted that Mr. Bolan did not provide a description of the persons who had visited his wife. She understood from her conversation with Mr. Bolan that the visitation had occurred in the previous week. The only information Ms. Goldthorp had concerning the visitation and any threats came directly from Mr. Bolan. Ms. Goldthorp described that the only check she did was with reference to the institutional bed history and determined that Mr. Hermiz and Mr. Bolan had lived together on the same range for a number of months. She had never met Mr. Hermiz. Ms. Goldthorp frankly admitted that she had no information from Mrs. Bolan regarding any visitation or any telephone calls and that she relied solely on what she had been told by Mr. Bolan.
Evidence of Mr. Al-Baghdadi
[24] Mr. Al-Baghdadi was Mr. Hermiz’s parole officer. He gave evidence that he had been a parole officer in the Toronto West Area Parole Office from August, 2007 to August, 2009. Subsequently, he took a position in the Ottawa Area Parole Office. He described the role of parole officers working outside of the institutions in offices such as the Toronto West Area Parole Office. He described his role as supervising and encouraging offenders to reintegrate into society and become law abiding citizens in the community after released from an institution on parole. He said that as a parole officer his duties are guided by the “paramount consideration of protection of the public”.
[25] His initial interview with Mr. Hermiz took place on May 21, 2008. Prior to his initial meeting with Mr. Hermiz, Mr. Al-Baghdadi said he reviewed Mr. Hermiz’s file [Joint Book of Documents, Tabs 1-30]. His file contains references to involvement with drugs but also contains comments such as:
Since arriving at Fenbrook Institution, there have been no noted adjustment concerns, he has been co-operative with both staff and other inmates. He has not incurred institutional charges, nor has there been any urinalysis tests requested.
. . .
Mr. Hermiz is considered compliant with his Correctional Plan. He attends school (ABE IV) and works part-time as a cleaner. He is in receipt of Level C pay.
. . .
It is believed that through individual counselling, Mr. Hermiz will gain insight into himself and his perceived inadequacies. It is postulated that said inadequacies contributed to his decision to carry a weapon and act with bravado in a situation which called for restraint and had tragic consequences. His risk to re-offend in a similar manner is considered remote.
[Joint Book of Documents, Tab 27]
[26] In addition to the initial interview which took place on May 21, 2008, Mr. Al-Baghdadi indicated that he had further meetings with Mr. Hermiz on May 28, June 2, June 10 and June 18, 2008. Notes relating to these meetings were also filed as exhibits at trial [Joint Book of Documents Tab 25 and Tab 31]. The notes of Mr. Al-Baghdadi from the initial intake interview contain the following observations:
. . . He [Mr. Hermiz] presented as polite and was forthcoming with information. The offender was asked to share his thoughts on his present release. He indicated that his sentence has been a good deterrent and regrets his past actions. ...the offender denied any recent institutional drug use and stated the last time he used THCO was approximately three-weeks ago. The offender was cautioned that drug use will not be tolerated in the community and that he could be subject to regular interval urinalysis testing. The offender indicated that it was no problem and expressed his willingness to abide by the terms and conditions to his release.
He advised he understood all of this rights and responsibilities and ensured this writer that there would be no issues with his release. . . .
[Joint Book of Documents, Tab 31]
[27] Mr. Al-Baghdadi also had notes of his interview with the common-law spouse of Mr. Hermiz whom he found to be “forthcoming and pleasant throughout the interview and appears to be a good source of community support for the offender”.
[28] It is also to be noted that in the document found at Tab 25 of the Joint Book of Documents the following entry is found:
The Security Intelligence Office (SIO) was contacted on 2008-01-10 and revealed no intelligence information of concern and confirmed that Mr. Hermiz is not the focus of any extraordinary attention from the Security Intelligence Department (SID).
[29] There appears to be nothing negative in Mr. Hermiz’s parole file relating to drugs or other conduct except that Mr. Hermiz should not be involved with drugs or illicit substances.
[30] Mr. Al-Baghdadi then described the phone call he received from Ms. Goldthorp on June 19, 2008. Based solely on the information received from Ms. Goldthorp, Mr. Al-Baghdadi held a case conference with his Supervisor, Phil Schiller, and it was determined that Mr. Hermiz’s day parole should be suspended and a warrant of suspension and apprehension issued [Joint Book of Documents, Tabs 21, 31, 35, 40 and 41].
[31] Mr. Al-Baghdadi gave evidence that so far as he was concerned the information received from Ms. Goldthorp was consistent with Mr. Hermiz’s history. He advised that because Mr. Hermiz had been incarcerated for killing a person using a hunting knife; had a history of trafficking drugs inside correctional institutions; and, as the source of the information (Mr. Bolan) was credible, that the imminent risk to public safety governed and Mr. Hermiz’s parole should be revoked.
[32] In an effort to substantiate the story received from Ms. Goldthorp, Mr. Al-Baghdadi called Mr. Bolan’s wife to obtain further information. He said that when he asked her for details of who it was that visited her she stated that it was dark and the individuals were wearing heavy coats so she could not describe them. She indicated that the incident occurred three months prior. It is to be noted that while all of this is hearsay, if Mrs. Bolan’s evidence is correct that the incident occurred three months prior then the incident involving the individuals attending at her home occurred sometime in mid-April. This was a time at which Mr. Hermiz was still an inmate at Fenbrook.
[33] Following the suspension of Mr. Hermiz’s parole, Mr. Al-Baghdadi met with Mr. Hermiz on June 23, 2008 at the Maplehurst Detention Centre to do a post-suspension interview. At this time, Mr. Hermiz did admit to having being involved in the drug culture at Fenbrook. It is also notable that Mr. Hermiz requested that Mr. Al-Baghdadi consult the “CRF log book” at the half-way house to determine whether or not he was absent at the time of any alleged visit to Mrs. Bolan.
[34] Mr. Al-Baghdadi did not review the log book. In any event, if Mrs. Bolan’s recollection that the event occurred three-months prior to June, checking the log book would be of no assistance as Mr. Hermiz would still have been an inmate. Mr. Al-Baghdadi gave further evidence that there was consideration as to whether or not the suspension should be revoked but a decision was made that based on the circumstances as they then existed and Mr. Bolan’s story and Mr. Hermiz’s admission of involvement of the drug culture that his parole would remain suspended. He was therefore transferred to the Kingston Penitentiary Temporary Detention Unit.
[35] Mr. Al-Baghdadi was cross-examined at some length. In cross-examination, Mr. Al-Baghdadi conceded that he was operating solely on information received from Ms. Goldthorp and his subsequent telephone conversation with Mrs. Bolan. He did state in his evidence that as he understood the situation Mr. Bolan “concluded that Mr. Hermiz may have been in that party”, [emphasis added] being the party that attended at Mr. Bolan’s wife’s residence. Mr. Al-Baghdadi conceded that the description of the individuals attending at Mrs. Bolan’s house that would lead to Mr. Hermiz’s implication in this matter would be very important.
[36] Mr. Al-Baghdadi stated that it was not his role to determine the description that was given by Mr. Bolan of Mrs. Bolan. He was pressed in cross-examination as to the description of the individual who attended at Mrs. Bolan’s home. Mr. Al-Baghdadi conceded that it would highly relevant for him to have that description. Mr. Al-Baghdadi reiterated that it was not his role to get the description and that he relied upon the information from Ms. Goldthorp which was “believed to be reliable but not confirmed”. During his evidence, Mr. Al-Baghdadi appeared to be somewhat nervous and apprehensive in answering questions particularly relating to the role of Mr. Hermiz and the information obtained regarding the visit to Mrs. Bolan. However, Mr. Al-Baghdadi did deal directly with his conversation with Mrs. Bolan. He speculated that she was being uncooperative but when he asked her regarding the visit from the three individuals his report to the PBC records the following:
. . . The collateral [Mrs. Bolan] confirmed to the undersigned [Mr. Al-Baghdadi] that three individuals did, in fact, attend her residence with a package, but she was unable to identify any of them, as it was dark outside and they were wearing winter coats. The undersigned was curious to know why these individuals would be wearing winter coats if this incident reportedly took place in late May, early June. When confronted with this, the collateral indicated that the occurrence took place approximately three months ago, contrary to inmate BOLAN’s account.
In light of BOLAN’s wife’s safety concerns, the Toronto Police Criminal Investigation Bureau was contacted and asked to investigate this matter. Accordingly, police were in touch with the contact who denied having any safety concerns, once again, contrary to inmate BOLAN’s claim.
[Report dated July 11, 2008, Joint Book of Documents, Tab 45]
[37] It also appears from the evidence that Mrs. Bolan did not contact the police regarding this incident but they contacted her.
[38] Mr. Al-Baghdadi conceded that it was possible that Mr. Hermiz could have been confined to the half-way house while an investigation ensued. However, Mr. Al-Baghdadi chose not to pursue this approach. This is so notwithstanding that the Corrections and Conditional Release Act, S.C. 1992, c.20 (CCRA), has a provision involving the liberty of the subject to use the least restrictive means necessary. Mr. Al-Baghdadi confirmed this was the case but determined this was not a situation where house arrest in the half-way house was satisfactory. Notably, Mr. Al-Baghdadi noted that a half-way house is a “very controlled, structured environment that we use as a tool to assist offenders and their reintegration efforts, to transition them slowly”.
[39] Mr. Al-Baghdadi also gave evidence concerning the CRF log book. Mr. Al-Baghdadi’s report has the following observation:
. . . While CRF log book could confirm where HERMIZ was on the day in question, it is not entirely reliable as the offender could have easily mislead CRF staff with regards to his activities outside the CRF.
[Joint Book of Documents, Tab 45]
[40] When asked specifically whether he ever went to the half-way house to check the sign out sheets for Mr. Hermiz, Mr. Al-Baghdadi said “I saw no reason to do so because we do not know the exact time frame, nor is the log book considered reliable because it is based on self reported information”.
[41] Mr. Al-Baghdadi was then questioned concerning curfews at the half-way house and conceded that for new arrivals at a half-way house the curfew would be 5:30 p.m. He also conceded that it would be “useful” information to find out if he was outside of the house after 5:30 p.m. During this lengthy exchange, Mr. Al-Baghdadi became somewhat evasive regarding his information about Mr. Hermiz’s job and the hours that Mr. Hermiz would have worked. During this continued exchange, Mr. Al-Baghdadi repeated that the log book was not deemed reliable and he took no steps to ensure that Mr. Hermiz had in fact attended at his employers during the three-week period prior to this incident.
[42] A further notable exchange in cross-examination occurred in the report that Mr. Al-Baghdadi made to questions from the PBC regarding the suspension. In that report, Mr. Al-Baghdadi had referred to Mr. Hermiz as “superficial and arrogant”. He conceded that observation was based on his observations of Mr. Hermiz during interviews. He conceded further there is nothing in this notes that supports that conclusion. What is in his notes is that Mr. Hermiz presented as “polite and articulate.” And further, Mr. Al-Baghdadi admitted in cross-examination that based on the information that he had at the time, Mr. Hermiz presented well and in a manner that is very positive.
[43] On balance, while Mr. Al-Baghdadi gave his evidence in a relatively forthright manner, he was particularly evasive in respect of questions dealing with the investigations that he made concerning Mr. Hermiz’s involvement in the attendance at Mrs. Bolan’s home.
Evidence of Philip Schiller
[44] Mr. Schiller was the Parole Office Supervisor at the Toronto West Area Parole Office.
[45] The thrust of his evidence in chief was that concern for public safety overrides all other interests particularly when information received from a suspect or an informant may have been recanted due to intimidation or other improper purpose. Mr. Schiller described his meeting with Mr. Al-Baghdadi following the telephone call that Mr. Al-Baghdadi had with Ms. Goldthorp.
[46] Mr. Schiller gave evidence that based on the information relating to the attack on Mr. Bolan and the visit to Mrs. Bolan’s house, that Mr. Hermiz posed an unacceptable risk to society and therefore Mr. Hermiz’s day parole was suspended.
[47] Mr. Schiller conceded in cross-examination that prior to these allegations being made by Mr. Bolan, Mr. Schiller had no information that Mr. Hermiz was not a manageable risk in the community. Mr. Schiller made it clear that the foundation of the decision to suspend Mr. Hermiz’s parole was based on the information received from Ms. Goldthorp who believed the information she had to be reliable. For Mr. Schiller “that was a paramount issue for me, and that was the overriding feature.” Further, in cross-examination, Mr. Schiller indicated that he did not rely upon the CRF log book and that it would not have been a “relevant feature” in his decision making. He also indicated that he did not check to see if there had been any violation in Mr. Hermiz’s curfew at the half-way house. This exchange is particularly indicative of the defensive approach of Mr. Schiller:
Q: So your decision was based on what Mr. Al-Baghdadi told you that the Security Intelligence Officer had told him, that Mr. Bolan had told the Security Intelligence Officer, and that the wife had told Mr. Bolan.
A: Yes, and when the Security Intelligence Officer wrapped up all that information and put it on with a bow and indicated that it was reliable, that was all I needed to issue a warrant to protect the community and remove Mr. Hermiz from the community so that it could be safer.”
[48] Mr. Hermiz was neither charged for being involved in the stabbing incident nor for any involvement in the alleged threats to Mr. Bolan’s wife.
PBC Decision
[49] Following his return to the penitentiary, a recommendation to the PBC dated July 11, 2008 [Joint Book of Documents, Tab 45] was prepared by Mr. Al-Baghdadi. His recommendation was that the day parole of Mr. Hermiz be revoked. In his report, in addition to his notes regarding his conversation with Mrs. Bolan transcribed above at para. 34, Mr. Al-Baghdadi made the following comments:
Although the offender [Mr. Hermiz] was only in the community for a very brief time, he clearly projected the image of an arrogant and superficial individual. He tends to deny or minimize his current breach and clearly displays no regard for court-imposed sanctions and the expectations of conditional release. Given the short period of time HERMIZ was in the community, there is no noted progress in this case.
. . .
. . . While the offender denied allegations of being involved in criminal activities while in the community, he did admit to being involved in the institutional drug- subculture. Clearly, the offender continues to harbour pro-criminal values and attitudes and pro-criminal associates and attachments. He presents as very arrogant and superficial and appears to have continued to be involved in criminal activity during both pre- and post-release with no apparent insight. The prognosis for change is very poor and his overall risk for re-offence remains high. Risk for continued release is considered unmanageable at this time and a recommendation for revocation is appropriately submitted. This recommendation is believed to be in keeping with public safety and least restrictive measures.
[50] The observations in this report have a defensive tone and do not reflect the observations made in the original intake interview wherein Mr. Al-Baghdadi recorded in his notes that “he [Mr. Hermiz] presented as polite and was forthcoming with information” and “risk appears manageable at this time”. At a subsequent interview it is further noted “The offender reports that he has adjusted to the CRF and is content with his present situation. HERMIZ was pleasant and polite throughout the interview and expressed his satisfaction with his present situation to the writer by stating that he was glad to be out in the community and will make the most of this opportunity.” [Casework Record Log, Joint Book of Documents, Tab 31]
[51] The PBC reviewed the circumstances surrounding the suspension of the day parole. In doing so, the PBC posed several pointed questions to the parole officers regarding Mr. Hermiz. The relevant questions are summarized as follows together with Mr. Al Baghdadi’s responses:
i. Is there any information as to an exact date when the incident in question happened?
We are unable to ascertain the credibility of either of the above accounts or the exact date that the offender allegedly contacted Mrs. Bolan. For further information, the reader is referred to the Protected Information Report dated 2008-06-19 (Protected “C”) and the Officer’s Statement/Observation Report (Protected “C”) dated
2008-06-20 which have been faxed to the NPB under separate cover. Said reports indicate that Mr. Bolan believes that Mr. Hermiz attended his wife’s residence with 2 unknown males shortly after his release, as per information he attained from his wife. In speaking with Mrs. Bolan, she now denies that this occurred, however, it is our belief that she has recanted her version of events due to fear for her safety. We do not know who the other two individuals are. Given that it is our belief that the offender contacted Mrs. Bolan with the intent of forcing her to bring contraband into the institution, it is also our belief that risk to the community is not manageable at this time.
ii. Was the log book reviewed and if so was there any information available that would either confirm or dispute the subject’s claim as to his activities?
The CRF log book is based on self-reported information from offenders. As such, the log book cannot be relied upon solely as it is not always completely accurate nor a fully reliable source of information. That is, offenders can write where they are going but short of following them or having surveillance conducted on them via police, we are not always able to ensure that this is actually where they go.
iii. Elaborate and provide further information as to subject’s behaviour on release which supports the observation that the subject was “projecting an image of an arrogant and superficial individual”.
The above statement is based on the undersigned’s observations and general perceptions of the offender, given the brevity of time that he was in the community. During supervision interviews, he presented as polite and articulate, but his responses clearly suggested an effort to project positively with little genuine insight into his behaviour. As such, the writer assessed him as superficial and arrogant.
[Addendum to Assessment for Decision, Joint Book of Documents, Tab 46]
[52] With respect, the answers to these questions have an air of defensiveness about them, particularly the about face concerning the attitude of Mr. Hermiz. At no time did the parole officers have any direct and convincing evidence that Mr. Hermiz was one of the three males, dressed in heavy coats, who attended at Mrs. Bolan’s home.
[53] The PBC reviewed the answers as well and referred to the inconsistencies in evidence regarding the incident involving Mrs. Bolan. The PBC issued a further Day Parole Certificate on September 9, 2008 at which time Mr. Hermiz was again released to the Toronto West Parole Office and the St. Leonard’s Peel Halfway House. In its Reasons for Decision the PBC made the following observation:
REASONS FOR DECISION (S) AND/OR VOTE(S)
After a thorough review of all available file information and listening to your comments, as well as those of your assistant and your parole officer, the Board has decided to cancel the suspension of your day parole release. At today’s hearing the Board thoroughly discussed your involvement in the incident that led to your suspension. As before, you denied any knowledge of the incident, but did acknowledge that you knew the offender that was stabbed at Fenbrook Institution. Further, you informed the Board that you could not understand why you would be accused as your previous contact with this offender had been amicable.
When questioned by the Board regarding the ‘log book’, you indicated that if you had been informed when this offence had occurred, you would have been able to defend yourself suggesting the ‘log book’ would indicate those times when you had been absent from the community-based residential facility. However, you were never informed when this incident occurred and, therefore, could not prepare any defence or provide any proof regarding your innocence.
The Board also discussed your behaviour at the community-based residential facility and your relationship with the halfway house staff, as well as with your parole officer. You indicated that you felt you were respectful of the rules and compliant with the conditions of the residential facility. You also indicated that you always signed the ‘log book’ accurately and honestly regarding your whereabouts. With respect to your community parole officer, you further stated that you had always tried to follow instructions and attempted to present respectfully.
At today’s hearing the board found you to be open and forthcoming with information and, at no time, did you present as arrogant or superficial. Although this incident has been referred for police involvement you have not been charged, and no charges are expected.
As a result the Board has decided that, in light of the absence of reliable and persuasive information regarding the allegations that led to your suspension, risk for re-offence has not become undue and risk remains manageable in the community. As such, the suspension of your day parole release is cancelled.
[emphasis added - Decision of PBC, September 9, 2008, Joint Book of Documents, Tab 53]
[54] The Crown argued that no regard nor weight be given to the PBC decision as it was neither relevant nor probative of any issue in the case. It was argued that the PBC decision does not contain any findings about the conduct of the parole officers or the investigative process leading to the suspension of Mr. Hermiz’s parole.
[55] However, the PBC posed various questions regarding the suspension and determined in its decision that there was no “reliable and persuasive information” substantiating the suspension of parole. As the decision is the result of a public hearing and decision of the PBC, the Court may have reference to the decision in deciding this case. While it is not determinative of the outcome of this case it is a factor to be considered in light of all of the evidence, given that there was no direct evidence of the involvement of Mr. Hermiz in any wrongdoing relating to the alleged incident at Mrs. Bolan’s home. Counsel for Mr. Hermiz did not argue that the PBC decision was binding but simply a piece of evidence to be considered.
Issues
[56] From these facts a number of issues arise:
a. Did the parole officers act maliciously towards Hermiz?
b. Did the parole officers meet a reasonable standard pursuant to the Corrections and Conditional Release Act regarding suspension of Mr. Hermiz’s parole?
c. If the Parole Officer did not meet a reasonable standard what damages, if any, is Mr. Hermiz entitled to receive?
d. What weight should be given to the PBC decisions?
Discussion
[57] Turning to the first issue it is alleged by Mr. Hermiz that both Mr. Al-Baghdadi and Mr. Schiller acted maliciously towards him. In my view of the evidence, while the two parole officers involved acted precipitously based solely on uncorroborated hearsay information, they were acting within the scope of their duties and did not act maliciously towards Mr. Hermiz. They may have acted precipitously as is further discussed below, but I find they did not deliberately set out to harm Mr. Hermiz. That may have been the obvious result of their conduct but it was not the motivation. However, that they did not act maliciously is not the end of the analysis as several causes of action are alleged.
[58] The totality of the evidence demonstrates that both parole officers exercised their judgment based upon what they believed to be reliable evidence. They did so in good faith believing it was in the best interest of the public and public safety. While they acted with an honest belief that they were acting in the best interest of the public and public safety, this does not mean that their decision was necessarily correct or reasonable in all of the circumstances. Nor does it mean that Mr. Hermiz is without remedy.
[59] It is useful to consider the legislative scheme which applies to inmates and parole. The CCRA provides as follows as in Section 135:
Suspension of
parole or
statutory release
Transfer of offender
Cancellation of
suspension or
referral
SUSPENSION, TERMINATION, REVOCATION AND INOPERATIVENESS OF PAROLE, STATUTORY RELEASE OR LONG-TERM SUPERVISION
135. (1) A member of the Board or a person, designated by name or by position, by the Chairperson of the Board or by the Commissioner, when an offender breaches a condition of parole or statutory release or when the member or person is satisfied that it is necessary and reasonable to suspend the parole or statutory release in order to prevent a breach of any condition thereof or to protect society, may, by warrant,
(a) suspend the parole or statutory release;
(b) authorize the apprehension of the offender; and
(c) authorize the recommitment of the offender to custody until the suspension is cancelled, the parole or statutory release is terminated or revoked or the sentence of the offender has expired according to law.
(2) A person designated under subsection
(1) may, by warrant, order the transfer to a penitentiary of an offender who is recommitted to
custody under subsection (1) or (1.2) or as a result of an additional sentence referred to in subsection (1.1) in a place other than a penitentiary.
(3) Subject to subsection (3.1), the person who signs a warrant under subsection (1) or any other person designated under that subsection shall, immediately after the recommitment of the offender, review the offender’s case and
(a) where the offender is serving a sentence of less than two years, cancel the suspension or refer the case to the Board together with an assessment of the case, within fourteen days after the recommitment or such shorter period as the Board directs; or
(b) in any other case, within thirty days after the recommitment or such shorter period as the Board directs, cancel the suspension or refer the case to the Board together with an assessment of the case stating the conditions, if any, under which the offender could in that person’s opinion reasonably be returned to parole or statutory release.
SUSPENSION, CESSATION, RÉVOCATION ET INEFFECTIVITÉ DE LA LIBÉRATION CONDITIONNELLE OU D’OFFICE OU DE LA SURVEILLANCE DE LONGUE DURÉE
135. (1) En cas d’inobservation des conditions de la libération conditionnelle ou d’office ou lorsqu’il est convaincu qu’il est raisonnable et nécessaire de prendre cette mesure pour empêcher la violation de ces conditions ou pour protéger la société, un membre de la Commission ou la personne que le président ou le com-missaire désigne nommément ou par indication de son poste peut, par mandat :
a) suspendre la libération conditionnelle oud’office;
b) autoriser l’arrestation du délinquant;
c) ordonner la réincarcération du délinquant jusqu’à ce que la suspension soit annulée ou que la libération soit révoquée ou qu’il y soit mis fin, ou encore jusqu’à l’expiration légale de la peine.
(2) La personne désignée en vertu du paragraphe
(1) peut, par mandat, ordonner le transfèrement du délinquant — réincarcéré aux termes des paragraphes (1) ou (1.2) ou à la suite de la condamnation à la peine supplémentaire mentionnée au paragraphe (1.1) — ailleurs
que dans un pénitencier.
(3.1), la personne qui a signé le mandat visé au paragraphe
(1), ou toute autre personne désignée aux
termes de ce paragraphe, doit, dès que le délinquant
mentionné dans le mandat est réincarcéré, examiner son dossier et :
a) dans le cas d’un délinquant qui purge une peine d’emprisonnement de moins de deux ans, dans les quatorze jours qui suivent si la Commission ne décide pas d’un délai plus court, annuler la suspension ou renvoyer le dossier devant la Commission, le renvoi étant accompagné d’une évaluation du cas;
b) dans les autres cas, dans les trente jours qui suivent, si la Commission ne décide pas d’un délai plus court, annuler la suspension ou renvoyer le dossier devant la Commission, le renvoi étant accompagné d’une evaluation du cas et, s’il y a lieu, d’une liste des conditions qui, à son avis, permettraient au délinquant de bénéficier de nouveau de la libération conditionnelle ou d’office.
Suspens