Boeyen v. Canada (Attorney General)

Boeyen v. Canada (Attorney General)
Court (s) Database
Federal Court Decisions
Date
2013-11-19
Neutral citation
2013 FC 1175
File numbers
T-1720-12
Decision Content
Federal Court
Cour fédérale
Date: 20131119
Docket: T-1720-12
Citation: 2013 FC 1175
Ottawa, Ontario, November 19, 2013
PRESENT: The Honourable Mr. Justice Russell
BETWEEN:
NEIL VAN BOEYEN
Applicant
and
ATTORNEY GENERAL OF CANADA
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
INTRODUCTION
[1] This is an application under subsection 18.1 of the Federal Courts Act, RSC 1985, c F-7, for judicial review of the decision of the Parole Board of Canada, Appeal Division [Appeal Board] dated August 7, 2012 that denied the Applicant’s appeal of the Parole Board of Canada’s [PBC] decision to deny him both full parole and day parole.
BACKGROUND
[2] The Applicant has been serving an indeterminate sentence in a federal penitentiary since he was designated as a dangerous offender on May 4, 1990. This sentence followed convictions for several offences, including sexual assault with a weapon, sexual assault, kidnapping and attempted kidnapping, stemming from four separate attacks on female victims ranging in age from 12 to 30. Counting pre-trial detention, he has been incarcerated since December 7, 1988.
[3] During his incarceration, the only correctional programming in which the Applicant participated up until 2011 was the Offender Substance Abuse Program in 1994 and the Caregiver/Peer Counselling Program in 1999. The Applicant says that he did not participate in more programs because he was not allowed to enter treatment programs up until 2006. Thereafter, he says he refused to participate because he feared he would be kicked out of the treatment programs and then labelled “untreatable,” since he continued to maintain his innocence. He wanted written assurances that he could participate and successfully complete the programs while maintaining his innocence, and that he would not suffer negative consequences for doing so.
[4] After being told by way of letter dated November 4, 2010 (Van Boeyen Affidavit, Respondent’s Record, Exhibit B) that he could enrol in the Integrated Correctional Program Model Sex Offender High Intensity Program [ICPM Program] while maintaining his innocence, and that he would not suffer negative consequences for doing so, the Applicant enrolled in and successfully completed the ICPM Program on June 17, 2011.
[5] On December 20, 2011, the Applicant’s Institutional Parole Officer [IPO] completed an Assessment for Decision (A4D) for the purpose of assessing the Applicant’s suitability for full parole and day parole (Van Boeyen Affidavit, Respondent’s Record, Exhibit D). The Parole Officer acknowledged that the Applicant had successfully completed the ICPM Program, but observed that because the Applicant had not acknowledged guilt for any of his offences that were sexual in nature, all the skills the Applicant acquired through the ICPM Program were obtained in the context of his non-sexual offences. The Parole Officer noted that the sexual offences were the Applicant’s index offences – that is, the offences that resulted in his designation as a dangerous offender – and that the Applicant remained an untreated sexual offender. The Applicant was rated as presenting a moderate to high risk for general and violent recidivism and a high risk for sexual recidivism. His reintegration potential was rated as low. As such, his case management team [CMT] recommended against day or full parole.
[6] On December 22, 2011, a psychological report was completed for the purposes of the Applicant’s upcoming parole hearing by Dr. Robert Zanatta, a Clinical Psychologist at the Mountain Institution (Van Boeyen Affidavit, Respondent’s Record, Exhibit F). The report noted that the Applicant had successfully completed the ICPM Program, but that this was in the context of treating his prior lifestyle as a crime cycle and not for any of the sexual offences for which he was convicted. Dr. Zanatta stated that due to the Applicant’s denial of the index sexual offences, a more accurate appraisal of his crime cycle, underlying sexual deviancy, and other risk factors was not possible. His overall assessment was that the Applicant remained at least a moderate risk to reoffend, despite his advancing age and apparent physical difficulties.
[7] The Applicant took issue with a number of observations in Dr. Zanatta’s report, and wrote a detailed letter seeking changes or clarification. While this letter did not receive a response, it was provided to the PBC at the Applicant’s parole hearing.
The PBC Decision
[8] On January 24, 2012, the PBC held a hearing to review the Applicant’s case for day and full parole (Hymander Affidavit, Respondent’s Record, Exhibit A). At the hearing, the Applicant submitted that because he was convicted and sentenced before the Corrections and Conditional Release Act, SC 1992, c 20 [CCRA] came into force, that law could not be applied to his parole hearing. Rather, he argued, the law governing parole at the time of the offence had to be applied.
[9] The PBC heard submissions related to the Applicant’s programming and his ongoing denial of the index offences, and questioned both the Applicant and his IPO. The Applicant submitted a detailed rebuttal to the psychological report and a relapse prevention plan. The Applicant requested an opportunity to ask questions of his IPO, which the Board refused. The Applicant’s mother attended the hearing as his assistant and spoke in favour of his release.
[10] The PBC found that the Applicant remained a moderate to high risk to re-offend generally, violently and sexually, despite having completed programming. A particular concern was that the Applicant did not believe a special condition was necessary requiring him not to associate with females of 18 years of age and under unless supervised. The PBC noted that the Applicant’s improvements in programming were recent, and that he had not had an opportunity to internalize the gains.
[11] The PBC concluded that the Applicant would pose an undue risk if released and denied day and full parole. On May 24, 2012, the Applicant appealed this decision to the Appeal Board.
DECISION UNDER REVIEW
[12] On August 7, 2012, the Appeal Board affirmed the decision of the PBC to deny the Applicant day and full parole. The Applicant’s appeal submissions involved issues of bias, sharing of information, and errors of law.
[13] The Applicant submitted that the PBC displayed bias because he was not allowed to question his Parole Officer, the PBC placed little value on his submissions, and erroneous statements were made about his life. The Applicant said that the PBC interrupted him and redirected his submissions.
[14] The Appeal Board reviewed the pertinent case law on bias, and noted that an “alleged apprehension of bias must be based on substantial and serious grounds, not mere suspicion.” The Appeal Board reviewed the audio-recording of the hearing, and found that a reasonable and informed person would not conclude that the PBC members had predetermined views or displayed bias. The members had asked him fair and relevant questions, and had interacted with the Applicant in a professional manner that provided him with a full opportunity to respond to their questions, express his views and present his case.
[15] The Applicant argued that the PBC erred in law and prevented him from making full answer and defence by:
denying him an opportunity to introduce relevant case law and to question his IPO; failing to properly consider the manual for the ICPM Program, which he presented as a rebuttal to the view that treatment while maintaining his innocence would not be effective in preventing future sexual offences; and relying on information that was not shared with him in advance, which he claimed was contained in the testimony of his IPO.
The Appeal Board rejected each of these arguments. It found that the Applicant was not unduly refused the opportunity to question his IPO, as the case law established that the PBC is not a judicial or quasi-judicial body. Hearings before the PBC are administrative in nature, with no formal rules of evidence. Based on a review of the audio recording, the Appeal Board found that the IPO’s testimony did not contain information that had not been shared with the Applicant in advance. It found that the program manual for the ICPM Program was a general information document that did not need to be admitted into the record, as the final report following his completion of the program contained sufficient relevant, reliable and persuasive information to allow the PBC to assess his risk factors following this treatment.
[16] The Applicant also submitted that the PBC had erred by considering a Criminal Profile Report [CPR] compiled in 1990, which he did not remember having seen before, and which he claimed was inaccurate, out of date and unreliable. The Appeal Board pointed out, however, that this issue was raised by the PBC and the Applicant confirmed that the CPR had been shared with him in 1996. The PBC noted that the document was in the Applicant’s file and that he had options available to him should he wish to challenge its accuracy. The Applicant confirmed to the PBC that he did not want to postpone the hearing in order to make such a challenge.
[17] The Applicant argued that the PBC did not have jurisdiction to apply the CCRA in the Applicant’s case, and that legislation that was in place at the time the Applicant was sentenced (namely the Parole Act, RSC 1985, c P-2 [Parole Act], and the Penitentiaries Act, RSC 1985, c P-5) should have been applied to his case. The Appeal Board determined that there was no merit to this argument and that, consistent with section 223 of the CCRA, any offender who began his sentence under the former legislation was to be treated as if he had begun his sentence under the CCRA.
[18] The Applicant also argued that it was unreasonable for the PBC to consider him an untreated sex offender. He alleged that the PBC had made a variety of factual errors, and that the PBC’s conclusions were based on incomplete or inaccurate information. The Appeal Board found no merit to these arguments, and stated that the PBC’s reasons were clearly set out and based on relevant, reliable and persuasive information that was discussed at the hearing and contained in the Applicant’s file. The PBC also specifically discussed the Applicant’s status as a sex offender, and did not conclude that the Applicant was an untreated sex offender. Rather, the PBC noted that he had successfully completed the sex offender program. The PBC determined that the Applicant’s refusal to admit his guilt was not an impediment to him eventually being granted parole, but found that he had yet to mitigate his risk despite some recent gains.
[19] The Appeal Board considered both the psychological report and the A4D to contain accurate, reliable and persuasive information that was accurately considered by the PBC. The psychological report included statements that the Applicant had previously admitted to his involvement in the index offences, and had offered a plethora of excuses for not participating in treatment programs. The report and the Applicant’s rebuttal submissions were discussed at the hearing. The PBC considered the reasons the Applicant did not previously want to attend sex offender programming, and his explanations regarding the gains he had made. The PBC also raised the CMT’s position that his sexual behaviour remained unaddressed, and provided an opportunity for the Applicant to respond.
[20] The Appeal Board noted that, according to section 102 of the CCRA, the criteria for granting parole are that the Applicant’s release does not constitute an undue risk to the public, and that the Applicant’s release will contribute to the protection of society by facilitating his re-entry into the community as a law-abiding citizen. Undue risk is determined based on the likelihood of re-offending, taking into consideration the nature and severity of the offence.
[21] In conclusion, the Appeal Board found that the PBC came to a decision that was reasonable and well supported, and that weighed positive and negative factors in a fair manner. The PBC had noted its extraordinary responsibility in dealing with an inmate with an indeterminate sentence, and that it had to ensure that his incarceration did not become grossly disproportionate. The Appeal Board affirmed the PBC’s decision, and denied the Applicant full and day parole.
ISSUES
[22] The Applicant has raised numerous issues in this application, but his principal grounds of review are as follows:
a. Whether the Appeal Board erred by retrospectively applying the CCRA in rendering the decision;
b. Whether the Appeal Board erred by using the label “untreated sex offender” in reference to the Applicant;
c. Whether the Appeal Board erred by failing to take into consideration the sentencing judge’s intention in imposing the indeterminate sentence;
d. Whether the Appeal Board committed a breach of procedural fairness by altering the wording of the grounds provided by the Applicant in his written appeal before responding to them;
e. Whether the Appeal Board failed to effect service of its Decision upon the Applicant as required by law and within the mandated timeframe.
STATUTORY PROVISIONS
[23] The following provisions of the CCRA, as it read on the date of the Applicant’s hearing before the PBC, are applicable to this proceeding:
Accuracy, etc., of information
24. (1) The Service shall take all reasonable steps to ensure that any information about an offender that it uses is as accurate, up to date and complete as possible.
Correction of information
(2) Where an offender who has been given access to information by the Service pursuant to subsection 23(2) believes that there is an error or omission therein,
(a) the offender may request the Service to correct that information;
[…]
Purpose of conditional release
100. The purpose of conditional release is to contribute to the maintenance of a just, peaceful and safe society by means of decisions on the timing and conditions of release that will best facilitate the rehabilitation of offenders and their reintegration into the community as law-abiding citizens.
Principles guiding parole boards
101. The principles that shall guide the Board and the provincial parole boards in achieving the purpose of conditional release are
(a) that the protection of society be the paramount consideration in the determination of any case;
(b) that parole boards take into consideration all available information that is relevant to a case, including the stated reasons and recommendations of the sentencing judge, any other information from the trial or the sentencing hearing, information and assessments provided by correctional authorities, and information obtained from victims and the offender;
[…]
Criteria for granting parole
102. The Board or a provincial parole board may grant parole to an offender if, in its opinion,
(a) the offender will not, by reoffending, present an undue risk to society before the expiration according to law of the sentence the offender is serving; and
(b) the release of the offender will contribute to the protection of society by facilitating the reintegration of the offender into society as a law-abiding citizen.
[…]
Reviews in progress
223. A review of the case of an offender begun under the former Act shall be continued after the commencement day as if it had been begun under this Act.
Exactitude des renseignements
24. (1) Le Service est tenu de veiller, dans la mesure du possible, à ce que les renseignements qu’il utilise concernant les délinquants soient à jour, exacts et complets.
Correction des renseignements
(2) Le délinquant qui croit que les renseignements auxquels il a eu accès en vertu du paragraphe 23(2) sont erronés ou incomplets peut demander que le Service en effectue la correction; lorsque la demande est refusée, le Service doit faire mention des corrections qui ont été demandées mais non effectuées.
[…]
Objet
100. La mise en liberté sous condition vise à contribuer au maintien d’une société juste, paisible et sûre en favorisant, par la prise de décisions appropriées quant au moment et aux conditions de leur mise en liberté, la réadaptation et la réinsertion sociale des délinquants en tant que citoyens respectueux des lois.
Principes
101. La Commission et les commissions provinciales sont guidées dans l’exécution de leur mandat par les principes qui suivent :
a) la protection de la société est le critère déterminant dans tous les cas;
b) elles doivent tenir compte de toute l’information pertinente disponible, notamment les motifs et les recommandations du juge qui a infligé la peine, les renseignements disponibles lors du procès ou de la détermination de la peine, ceux qui ont été obtenus des victimes et des délinquants, ainsi que les renseignements et évaluations fournis par les autorités correctionnelles;
[…]
Critères
102. La Commission et les commissions provinciales peuvent autoriser la libération conditionnelle si elles sont d’avis qu’une récidive du délinquant avant l’expiration légale de la peine qu’il purge ne présentera pas un risque inacceptable pour la société et que cette libération contribuera à la protection de celle-ci en favorisant sa réinsertion sociale en tant que citoyen respectueux des lois.
[…]
Examen des dossiers en instance
223. L’examen des dossiers en instance se poursuit indépendamment de la loi antérieure sous le régime de la présente loi.
STANDARD OF REVIEW
[24] The Supreme Court of Canada in Dunsmuir v New Brunswick, 2008 SCC 9 [Dunsmuir] held that a standard of review analysis need not be conducted in every instance. Instead, where the standard of review applicable to a particular question before the court is settled in a satisfactory manner by past jurisprudence, the reviewing court may adopt that standard of review. Only where this search proves fruitless, or where the relevant precedents appear to be inconsistent with new developments in the common law principles of judicial review, must the reviewing court undertake a consideration of the four factors comprising the standard of review analysis: Agraira v Canada (Minister of Public Safety and Emergency Preparedness), 2013 SCC 36 at paragraph 48 [Agraira].
[25] Some of the issues which the Applicant brings forward are matters of statutory jurisdiction and interpretation. The appropriate standard of review for questions of law, including matter of vires, is that of correctness (Dunsmuir, above; Canada v Canadian Council for Refugees, 2008 FCA 229).
[26] Other matters brought forward by the Applicant are matters of procedural fairness. In Canadian Union of Public Employees (C.U.P.E.) v Ontario (Minister of Labour), 2003 SCC 29, the Supreme Court of Canada held at paragraph 100 that it “is for the courts, not the Minister, to provide the legal answer to procedural fairness questions.” Further, the Federal Court of Appeal in Sketchley v Canada (Attorney General), 2005 FCA 404 at paragraph 53 held that the “procedural fairness element is reviewed as a question of law. No deference is due. The decision-maker has either complied with the content of the duty of fairness appropriate for the particular circumstances, or has breached this duty.” The standard of review applicable to these issues is correctness.
[27] Other issues raised by the Applicant involve an evaluation of the Board’s factual determinations, which are reviewable on a reasonableness standard (Fournier v Canada (Attorney General), 2004 FC 1124; Cotterell v Canada (Attorney General), 2012 FC 302). When reviewing a decision on the standard of reasonableness, the analysis will be concerned with “the existence of justification, transparency and intelligibility within the decision-making process [and also with] whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law.” See Dunsmuir, above, at paragraph 47, and Canada (Minister of Citizenship and Immigration) v Khosa, 2009 SCC 12 at paragraph 59. Put another way, the Court should intervene only if the Decision was unreasonable in the sense that it falls outside the “range of possible, acceptable outcomes which are defensible in respect of the facts and law.”
ARGUMENTS
The Applicant
[28] According to the Applicant, it was an error for the Appeal Board to retroactively apply the CCRA to his case. The legislation that was in effect when he was sentenced should have been applied. The Applicant submits that this is a jurisdictional error because there is no transitional provision in the CCRA.
[29] In support of this argument, the Applicant points to Langard v Canada (National Parole Board), [1993] FCJ No 1168 (QL) (FCTD) [Langard] at paragraphs 17-21:
17 In my view, both the Board and the applicant have given interpretations to Sections 225. (1) and 139. (1) which they cannot bear. The language of Section 225. (1) is very clear in my view. It is a substantive transitional provision. Parliament clearly intended that the CCRA would not have retroactive effect and that sentences imposed under the Parole Act regime would, for the purposes of day parole calculations, be treated according to the Parole Act formula.
18 In light of the clear language of the section and the absence of any qualifying or contrary language elsewhere in the CCRA, I'm of the opinion that Section 225. (1) applies to sentences imposed before November 1st, 1992, whether or not there are additional sentences imposed on an offender under the CCRA. The Board erred in law in disregarding Section 225. (1) in this case and treating the entire 10-year sentence as one imposed under the CCRA and subject only to its formula.
19 Counsel for the Board submitted that Section 139. (1) was an interpretation section and that Section 15. (2) (a) of the Interpretation Act applies. Without deciding whether Section 139. (1) is an interpretation section, I have concluded that Section 15. (2) (a) is not helpful because, in my view, Section 225. (1) of the CCRA is evidence of contrary intention. That is that sentences imposed under the Parole Act are not brought under the CCRA formula for the calculation of day parole.
20 I also find that the applicant's position strains the language of Sections 225. (1) and 139. (1). The applicant's reading of 139. (1) is unreasonable as it unduly expands the operation of the transitional provision by extending it to sentences imposed under the CCRA.
21 As counsel for the Parole Board pointed out, transitional provisions are intended to have a certain finality and should not be read to extend unduly into the future.
[30] The Applicant provided the PBC with the decision in Abel v Edmonton Institution for Women, 2000 ABQB 851 [Abel], which holds as follows:
16 The Gamble decision makes it clear that it is fundamental to any legal system which recognizes the rule of law, that an accused must be tried and punished under the law in force at the time of the offence. Gamble goes on in interpreting that statement to include parole eligibility as an element of “punishment”. While the Respondents say that those cases that clearly follow that principle all deal with the issue at the time that the trial judge imposes sentence, they do not apply where the provisions of the Corrections and Conditional Release Act affect eligibility for parole. That is a distinction without a material difference. It is firmly established in our law that the availability of parole is an element that fits within the concept of punishment and so the law that was applicable at the time that the offence occurred should be the law that governs the terms of the accused’s punishment. As a result I have concluded that it is appropriate for this Court to issue a declaration that the eligibility for parole of this Applicant should be determined by the provisions of the Corrections and Conditional Release Act in effect at the time of the commission of the offence.
[31] By retrospectively applying the CCRA in determining his eligibility for day or full parole, the Applicant argues that the PBC and Appeal Board acted outside their jurisdiction and outside of the laws of Canada: Abel, above; Langard, above; and Le v Canada (Attorney General), [2001] FCT 156 (FCTD) [Lee]. He says that the only parole regime that can properly be applied to his parole determinations, currently and at all times since he was incarcerated, is the Parole Act, RSC 1985, c P-2, as am. by c 35 (2nd Supp) [Parole Act] and the Parole Regulations, SOR/78-428.
[32] The Applicant also says that he was not allowed to introduce relevant jurisprudence on this point into the record while presenting his case before the PBC, and that it was an error for the Appeal Board to state that it was an administrative tribunal and did not need to follow the formal rules of evidence. The Applicant contends that this jurisprudence was essential to his position, and there is no provision in the CCRA that gives the PBC or the Appeal Board the power to exclude or prevent the introduction of relevant information. He says it was unreasonable for the Appeal Board to conclude that the PBC did not err by disallowing the Applicant to present it.
[33] The Applicant further submits that he has been incarcerated far beyond the time when he should have been paroled, and this is in violation of section 12 of the Charter. His argument is that the PBC and the Appeal Board failed to tailor his indeterminate sentence to the circumstances, resulting in cruel and unusual punishment contrary to section 12 of the Charter (Steele v Mountain Institution, [1990] 2 SCR 1385 [Steele]).
[34] The Applicant says that the reasoning in Steele applies to his case, because the Appeal Board in denying him parole improperly applied the objective stated in section 100.1 of the CCRA (subsection 101(a) at the time of the PBC hearing), which makes the protection of society the paramount consideration for parole determinations. In doing so, it disregarded the criteria that should have been applied to his case, as set out in subsection 16(1) of the former Parole Act. He argues that section 100.1 of the CCRA effectively operates as an override clause that allows the PBC to disregard his liberty and security of the person interests under sections 7 and 12 of the Charter in favour of the “protection of society”.
[35] He also argues that the Appeal Board should have considered the sentencing judge’s estimated time in custody as an effective means of gauging the duration of time he should have spent in custody under the parole regime that existed when he was sentenced. By this measure, he has suffered cruel and unusual punishment due to the repeated application of the wrong statute to his parole determinations over the course of many years.
[36] The Applicant refers to the reasoning in Galbraith v Mountain Institution, [1988] BCJ No 2043 (QL) (BCSC) at page 9, which he says should have been applied in his case:
The Parole Board must consider specific criteria that are set out in s. 10 of the Parole Act, R.S.C. 1970, c.P-2. That section reads:
“10.(1)
The Board may:
(a) grant parole to an inmate, subject to any terms and conditions it considers desirable, if the Board considers that:
(i) In the case of a grant of parole other than day parole, the inmate has derived the maximum benefit from imprisonment,
(ii) The reform and rehabilitation of the inmate will be aided by the grant of parole and;
(iii) The release of the inmate on parole would not constitute an undue risk to society;”
La Forest J. held that the mandatory review based on the criteria outlined above save the indeterminate term of imprisonment from violating s. 12. His Lordship stated on p. 342 that:
“While the criteria embodied in s. 10(l)(a) do not purport to replicate the factual findings required to sentence the offender to an indeterminate term of imprisonment, they do afford a measure of tailoring adequate to save the legislation from violating s. 12. It must be remembered that the offender is being sentenced indeterminately because at the time of sentencing he was found to have a certain propensity. The sentence is imposed “in lieu of any other sentence” that might have been imposed and, like any other such sentence must be served according to its tenor. The offender is not being sentenced to a term of imprisonment until he is no longer a dangerous offender. Indeed, s. 695.1 provides that the circumstances of the offender be reviewed for the purpose of determining whether parole should be granted and, if so, on what conditions; it does not provide that the label of dangerous offender be removed or altered. Finally, the very words of s. 695.1 of the code and s. 10(l)(a) of the Parole Act establish an on-going process for rendering the sentence meted out to a dangerous offender, one that accords with his or her specific circumstances.”
[37] The Applicant submits that it was unreasonable for the Appeal Board to find that he had not yet mitigated his risk, despite recent gains. The Applicant went through the high-intensity ICPM program, and successfully completed the program with improvements in all areas. He received an overall rating of “good,” which is the highest grade available, as the policy amongst facilitators is to leave room for improvement. The conclusion that the Applicant had not yet mitigated his risk was central to the Decision, and it was unreasonable.
[38] Further, he says it was unreasonable for the Appeal Board to refer to the Applicant as an “untreated sex offender,” or to state that he has yet to mitigate his risk despite undergoing treatment, which the Applicant submits is an equivalent phrase. The Applicant has successfully completed available programming, so he should not be referred to as “untreated.” The Applicant is also not permitted to take the program again, which leaves him in a position where he will never be considered to be “treated.” In Pinkney v Canada (Correctional Service), 2001 FCT 1053 (FCTD), the Court ordered that the Correctional Board refrain from using the “psychopath” label arising from a questionable risk assessment.
[39] The Applicant says that it was also unreasonable for the Appeal Board not to take into account the statements of the sentencing judge that he expected the Applicant would serve between 5 and 7 years in prison. The Applicant says that the purpose of the CCRA, as set out in section 100, and the guiding principles set out in section 101 require that the sentencing judge’s intentions be considered, as indicated by the words in subsection 101(b) that “parole boards take into consideration all available information that is relevant to a case, including the stated reasons and recommendations of the sentencing judge”.
[40] The Appeal Board also improperly altered the wording of the CCRA when it stated: “Please note that consistent with section 223 of the CCRA, any offender who began his sentence under the former Act will be dealt with as if he had begun his sentence under this Act.” The Applicant points out that section 223 actually reads: “A review of the case of an offender begun under the former Act shall be continued after the commencement day as if it had been begun under this Act.” The Applicant says that this constitutes a failure of the Appeal Board to comply with its statutory mandate, and causes it to lose jurisdiction. The Applicant suggests that as a result of this loss of jurisdiction, all subsequent decisions are invalid, his detention is unlawful, and the Court ought to examine the remedy of habeas corpus: Fraser v Kent Institution, (1997) 167 DLR (4th) 457 (BCCA) [Fraser].
[41] The Applicant also says the Appeal Board failed to fully address the issues raised in his appeal. Acknowledging the grounds raised does not equate to responding to them, and the failure to do so amounts to a failure to exercise the Appeal Board’s jurisdiction. The Applicant asks the Court to issue a declaration that this was unlawful.
[42] The Applicant further argues that having denied him permission to cross examine his IPO, the PBC failed in its duty to ensure he received a fair hearing by refusing to put questions to the IPO which were raised by the Applicant. Given the objections raised by the Applicant about the factual accuracy of the information before the PBC, the Board had a duty to at least make a reasonable attempt to ascertain whether the information was false or in some way compromised.
[43] The Applicant also submits that he did not receive all relevant materials 15 days before the hearing, and that this constituted a breach of procedural fairness: Fraser, above.
[44] The Applicant argues that the above-noted breaches of procedural fairness should result in the quashing of the Decision, whether or not they resulted in a substantial miscarriage of justice: Pickard v Mountain Institution (1994), 75 FTR 147 (FCTD).
The Respondent
Procedural Fairness
[45] The Respondent submits that the Applicant does not have the right to cross-examine at a parole hearing before the PBC or the Appeal Board. Neither body acts in a judicial or quasi-judicial capacity, and the traditional rules of evidence do not apply (Mooring v Canada (National Parole Board), [1996] 1 SCR 75 [Mooring] at paragraphs 25-29).
[46] The PBC’s alleged failure to accept case law put before it by the Applicant also does not constitute a breach of procedural fairness. The Appeal Board did not err in concluding that the PBC acted reasonably on this issue. The PBC did accept a copy of the Abel decision for their record, and did consider it, but found that it did not apply. Further, even if the PBC had not considered this decision, it would not be tantamount to a breach of procedural fairness or any other unlawful act. As noted above, the hearing was an administrative process with no formal rules of evidence, and there was no requirement that the PBC interpret and apply jurisprudence. The PBC was acting in an inquisitorial capacity to determine whether the Applicant would present an undue risk to society if released on parole.
[47] As regards the Applicant’s contention that there was a breach of procedural fairness because he did not receive all relevant materials within the statutory timeframe, this would not have affected the ultimate reasonableness of the Decision, so judicial review should not be granted. The process does not have to be executed perfectly for it to be fair: Yu v Canada (Attorney General), 2009 FC 1201 [Yu] at paragraphs 28-30; Uniboard Surfaces Inc. v Kronotex Fussboden GmbH and Co., 2006 FCA 398 [Uniboard Surfaces] at paragraph 48.
[48] In this case, there was no omission on the part of the PBC, but rather an administrative delay of nine days in delivering the reasons for its decision to the Applicant. The Applicant had already been informed of the decision to deny him parole at the conclusion of his parole hearing on January 24, 2012. The Applicant was not prejudiced by this delay in any way (Yu, above, at paragraph 30). The Applicant was able to bring his appeal before the Appeal Board.
Jurisdiction
[49] The Applicant states that the Appeal Board’s application of provisions of the CCRA is constitutionally invalid and is a violation of his rights under section 12 of the Charter, but the Respondent says that the Appeal Board was correct in referring to section 223 of the CCRA in finding that the CCRA applies as of the commencement date of the Act, which is 1 November 1992. The Appeal Board did not apply the wrong statute: Roxborough v Canada (National Parole Board), (1994) 80 FTR 26 (FCTD) [Roxborough] at paragraphs 37, 44.
[50] Furthermore, the manner in which the Appeal Board referred to section 223 of the CCRA did not cause it to lose jurisdiction. The Appeal Board did not modify the language of the CCRA; it simply explained to the Applicant that his sentence, including his parole reviews, is governed by the CCRA, despite the fact that he commenced his sentence under the former legislation.
[51] Even if the Court were to find that the Appeal Board erred in paraphrasing section 223 of the CCRA, the Respondent submits that this is not a material error. It has no impact on the legal test that was required to be applied in determining whether the Applicant should be granted parole. The CCRA clearly applies to the Applicant. The PBC conducted a full review of the Applicant’s file, heard the Applicant’s submissions and applied the correct legal criteria to determine whether the Applicant’s release would constitute an undue risk to the public: Cartier v Canada (Attorney General), 2002 FCA 384 [Cartier] at paragraphs 29-36.
Errors of Law
[52] There is no merit to the Applicant’s argument that it was an error for the PBC not to explicitly consider the sentencing judge’s intention in imposing the Applicant’s sentence, the Respondent argues. There is an obligation under subsection 101(a) of the CCRA to consider the reasons for the sentence, but there is no obligation to consider a sentencing judge’s “intentions”.
[53] Moreover, a tribunal member is presumed to have considered all the evidence unless the Applicant provides evidence to the contrary: Florea v Canada (Minister of Employment and Immigration), [1993] FCJ No 598 (FCA). The Applicant has not demonstrated that the PBC failed to consider the sentencing judge’s reasons for the sentence. Furthermore, the Applicant did not raise this as an issue before the Appeal Board, so there can be no issue in the Appeal Board failing to consider an issue that was not placed before it.
[54] The Applicant also claims that the Appeal Board failed to respond to the grounds listed in the Applicant’s appeal of the PBC decision. The Applicant, however, has failed to articulate what grounds of appeal the Appeal Board did not address. Moreover, although the Appeal Board may have summarized some of the grounds of appeal, a review of the Decision makes it clear that the Appeal Board responded to all of the Applicant’s concerns.
Reasonableness
[55] The Applicant objects to the use of the term “untreated sex offender,” and says that the Appeal Board erred by failing to recognized that this term is based on unsupported and false information. The Respondent submits that there is no merit to this argument.
[56] First, the professional opinions included in the Applicant’s file fully take into account his successful completion of the ICPM Program. Second, the Appeal Board is not in a position to second guess the opinions of these experts. The Appeal Board and the PBC are entitled to rely on whatever materials in the Applicant’s file they find to be reliable and persuasive: A.S.R. v Canada (National Parole Board), 2002 FCT 741 (FCTD). Finally, as noted by the Appeal Board, if the Applicant believes that his assessment as an “untreated sex offender” in the psychological report is an error, the proper recourse is to make a request pursuant to subsection 24(2) of the CCRA to correct information that he considers to be erroneous.
Charter Rights
[57] The Respondent submits that there is no merit to the Applicant’s argument that he has suffered a breach of his section 12 Charter rights. The Applicant’s submissions in this respect are based on his erroneous argument that the repealed former legislation applies to his parole review. As outlined above, it is the CCRA that applies to the Applicant’s parole review: Collier v Canada (Attorney General), 2006 FC 728 [Collier].
[58] Moreover, the application of the CCRA to the Applicant’s parole review did not result in a breach of his section 12 Charter rights. In the case of someone serving an indeterminate sentence, the offender’s continued incarceration may be found to infringe section 12 of the Charter if the PBC fails to apply the statutory criteria for parole