Aney v. Canada (Attorney General)

Aney v. Canada (Attorney General)
Court (s) Database
Federal Court Decisions
Date
2005-02-07
Neutral citation
2005 FC 182
File numbers
T-1318-02
Notes
Digest
Decision Content
Date: 20050207
Docket: T-1318-02
Citation: 2005 FC 182
Ottawa, Ontario, February 7, 2005
Present: THE HONOURABLE MR. JUSTICE BEAUDRY
BETWEEN:
ROY ANEY
Applicant
and
THE ATTORNEY GENERAL OF CANADA
Respondent
REASONS FOR ORDER AND ORDER
[1] This is an application for judicial review under subsection 18.1(1) of the Federal Courts Act, R.S.C. 1985, c. F-7 (Act), to quash a decision of the Appeal Division of the National Parole Board (Appeal Division) dated July 15, 2002, where it approved a decision of the National Parole Board (NPB) on February 22, 2002 revoking the applicant's parole.
ISSUES
[2] The issues are as follows:
1. Did the NPB err in fact?
2. Was the NPB panel bias?
3. Did the NPB make an error of law?
4. Did the NPB fail to consider relevant information?
5. Did the NPB's decision to revoke the applicant's parole violate the applicant's right under section 7 of the Canadian Charter of Rights and Freedoms (Charter)?
6. Is the applicant's sentence "cruel and unusual punishment" contrary to section 12 of the Charter?
[3] For the following reasons, I must answer all questions negatively. Therefore, I will dismiss this application for judicial review.
BACKGROUND
[4] In May 1976, the applicant was convicted of four charges of rape and one of attempted rape and was given an aggregate sentence of 15 years. On May 6, 1977, he was found to be a Dangerous Sexual Offender (DSO) in a Provincial Court and was sentenced to a period of preventive detention instead of his original sentence.
[5] In October of 1977, his designation was changed from DSO to Dangerous Offender (DO) and his sentence to one of indeterminate detention due to the Criminal Code of Canada (CCC) amendments. The applicant never appealed his sentence.
[6] In 1988, the NPB allowed the applicant to participate in an Unescorted Temporary Absence program (UTA). On March 15, 1990, his day parole was terminated because he was found in possession of pornographic videotapes. He had purchased a total of 30 pornographic videos between April 1989 and his parole suspension in 1990. The NPB ascertained that his behaviour during his day parole encountered similarities with his previous pattern of criminal behaviour and concluded that he had become a risk that was not manageable in the community.
[7] On February 7, 1992, the applicant was granted a full parole by the NPB. At the time, he was at liberty under the authority of a continuation of a day parole first granted by the NPB on December 17, 1990. This full parole was accompanied of special conditions such as: abstain from all intoxicants and abstain from use of and possession of pornographic material.
[8] On February 10, 1995, his full parole was suspended because his attitude and behaviour were deteriorating. The applicant objected to contacting his new parole supervisor, failed to attend a sex offender program and a scheduled appointment with the Correctional Service of Canada psychologist. On June 15, 1995, the NPB reinstated his full parole.
[9] On December 14, 2001, at about 10:00 p.m. two officers of the Vancouver Police Department (VPD) made a routine check of his vehicle after he was stopped in Stanley Park and found him in the company of a known sex trade worker. This was the third time in 2001 that VPD officers had found him in similar circumstances.
[10] In fact, the applicant confessed being a sexual addict to his Community Parole Officer (CPO), Tim Goodsell. He admitted using pornography and visiting prostitutes regularly, perhaps three to four times per week. However, he submitted having no rape fantasy for more than 15 years and was not thinking about committing any crimes.
[11] On December 17, 2001, at about midnight, officers of the VPD arrested him at his residence at the Dunsmuir House Community Residential Centre run by the Salvation Army, following a Warrant of Parole Suspension.
[12] The applicant's parole was revoked on February 22, 2002, following a hearing before the NPB.
[13] On July 15, 2002, the Appeal Division dismissed the applicant's appeal, finding that he had received a fair and impartial hearing, that the NPB's decision was reasonable and well founded and that no rights under the Charter had been violated.
[14] This judicial review application is against the Appeal Division's decision.
CONTESTED DECISION
NPB's decision
[15] The NPB decided to revoke the applicant's parole after it concluded that the applicant had renewed with the lifestyle that previously lead him to commit sexual offences. After a risk assessment, the Board was convinced that the applicant presented an undue risk to society.
[16] The NPB noted that, before the hearing, the applicant's case management team was divided regarding the next course of action. The community supervisor was recommending that the suspension be cancelled along with a reprimand and an adjusted correctional plan. On the other hand, the team from the Regional Health Centre recommended further treatment addressing the risk factors. However, at the hearing, the applicant's community supervisor changed the community recommendation for one of Parole Revocation.
[17] After considering all of the evidence presented before it, the NPB based its decision on different elements. The NPB was confronted with the fact that the applicant had a highly deviant sexual addiction and that he had not re-offended for several years. The applicant admitted his sexual addiction but underlined that his secretive use of prostitutes for several years had not elevated the risk of committing new crime. However, despite the applicant's affirmations, the NPB was of the opinion that he could not dismiss the use of pornography and prostitutes as easily without considering public safety. After a thorough review of the applicant's case, the NPB noted failure to manage sexual proclivities. Therefore, it decided to revoke the applicant's full parole and determined that further treatment as a sex offender may assist the applicant in controlling his sexual addiction. The NPB concluded that the applicant represented a risk that was unmanageable in the community.
Appeal Division's decision
[18] After a review of the tape of the hearing, the Appeal Division found that the NPB discussed all relevant aspects of the applicant's case in a fair and equitable manner. It found nothing, at the hearing or in the NPB's written reasons, to suggest that the NPB was biassed or reacting to public pressure or media scrutiny with respect to Vancouver's missing prostitutes. The Appeal Division was of the opinion that the applicant's use of prostitutes was thoroughly discussed and no file information suggested that the applicant was involved with those missing women. It was also convinced that the applicant was given full opportunity to respond to the NPB's concerns, express his views and present his case.
[19] The Appeal Division concluded that the NPB's decision to revoke the applicant's full parole was reasonable despite the fact that the applicant has lived offence-free in Vancouver on full parole for more than ten years. In fact, the NPB was fully aware of the applicant's behaviour and referred to it in its decision. However, the Appeal Division took into consideration the NPB's concerns regarding the applicant's sexual behaviour. In the NPB's view, the applicant's sexual behaviour was at high risk because of his criminal history and his designation as a DSO. Not only was the applicant in breach of his parole special conditions, he did not want to participate in further recommended intensive sex offender treatments.
[20] The Appeal Division found that the NPB concluded a fair risk assessment in accordance with the post-suspension decision-making criteria and the principles set out in Steele v. Mountain Institution, [1990] 2 S.C.R. 1385. It believed that the NPB's decision to revoke the applicant's parole was justified and consistent with the law, NPB policy and the principles of fundamental justice.
[21] The Appeal Division did not consider the applicant's allegations regarding the declaration made by his institutional parole officer (Ray Anderson) since this matter was outside of the jurisdiction of the NPB.
[22] Finally, the Appeal Division found no merits to the applicant's submissions that the revocation of his parole and his recommitment to custody violated his rights under the Charter.
ANALYSIS
Parole suspension
[23] The NPB possesses an absolute discretion under paragraph 107(1)(b) and section 135 of the Corrections and Conditional Release Act, R.C.S. 1992, c. 20 (CCRA) to terminate the parole of an offender (see Annex.) From the wording of section 135, it appears that an offender can see his parole suspended for two reasons: (1) a breach of a condition of parole or (2) to protect society.
[24] John A. Winterdyk explains in his book entitled "Correction in Canada: Social Reactions to Crime", Prentice Hall, Toronto, 2001 at pages 287 and 288, that a breach of a condition does not necessarily mean a return to prison. The nature of the breach might be such that the parole officer determines that a warning or counselling is the most appropriate intervention. However, the breach may be serious enough that the parole officer recommends parole suspension, which results in the offender being returned to custody while the parole supervisor assesses the seriousness of the breach. If the parole supervisor feels that the violation does not constitute an undue risk to society and is not likely to lead to renewed criminal activity, he or she may choose not to proceed with the suspension (subsection 135(3) of the CCRA). Suspension is however only a temporary measure.
[25] Withing 30 days, the suspension must be either cancelled or referred to the NPB for possible parole revocation (paragraph 135(3)(b)of the CCRA). Once a suspension has been referred to the NPB for review, the circumstances surrounding the breach are assessed. If the NPB concludes that resumption of release would not constitute an undue risk, the suspension will be cancelled and the offender be released. However, if the NPB believes that the risk of re-offending has risen to an unacceptable level, beyond the offender's control, the conditional release will be revoked. Subsection 163(3) of the Corrections and Conditional Release Regulations SOR/92-620 (CCRR) requires the NPB to render a decision within 90 days of the referral of such a case to it, or the recommitment to custody of the offender.
[26] Section 147 of the CCRA provides that an offender may appeal a decision of the NPB to the Appeal Division on different grounds (see Annex).
Courts' jurisdiction
[27] The Federal Court is a statutory court which obtains its authority for judicial review entirely from statutes. Section 18.1 of the Act sets out the legal scheme for judicial review. It reads as follows:
Application for judicial review
18.1 (1) An application for judicial review may be made by the Attorney General of Canada or by anyone directly affected by the matter in respect of which relief is sought.
Time limitation
(2) An application for judicial review in respect of a decision or an order of a federal board, commission or other tribunal shall be made within 30 days after the time the decision or order was first communicated by the federal board, commission or other tribunal to the office of the Deputy Attorney General of Canada or to the party directly affected by it, or within any further time that a judge of the Federal Court may fix or allow before or after the end of those 30 days.
Powers of Federal Court
(3) On an application for judicial review, the Federal Court may
(a) order a federal board, commission or other tribunal to do any act or thing it has unlawfully failed or refused to do or has unreasonably delayed in doing; or
(b) declare invalid or unlawful, or quash, set aside or set aside and refer back for determination in accordance with such directions as it considers to be appropriate, prohibit or restrain, a decision, order, act or proceeding of a federal board, commission or other tribunal.
Grounds of review
(4) The Federal Court may grant relief under subsection (3) if it is satisfied that the federal board, commission or other tribunal
(a) acted without jurisdiction, acted beyond its jurisdiction or refused to exercise its jurisdiction;
(b) failed to observe a principle of natural justice, procedural fairness or other procedure that it was required by law to observe;
(c) erred in law in making a decision or an order, whether or not the error appears on the face of the record;
(d) based its decision or order on an erroneous finding of fact that it made in a perverse or capricious manner or without regard for the material before it;
(e) acted, or failed to act, by reason of fraud or perjured evidence; or
(f) acted in any other way that was contrary to law.
Defect in form or technical irregularity
(5) If the sole ground for relief established on an application for judicial review is a defect in form or a technical irregularity, the Federal Court may
(a) refuse the relief if it finds that no substantial wrong or miscarriage of justice has occurred; and
(b) in the case of a defect in form or a technical irregularity in a decision or order, make an order validating the decision or order, to have effect from such time and on such terms as it considers appropriate.
Demande de contrôle judiciaire
18.1 (1) Une demande de contrôle judiciaire peut être présentée par le procureur général du Canada ou par quiconque est directement touché par l'objet de la demande.
Délai de présentation
(2) Les demandes de contrôle judiciaire sont à présenter dans les trente jours qui suivent la première communication, par l'office fédéral, de sa décision ou de son ordonnance au bureau du sous-procureur général du Canada ou à la partie concernée, ou dans le délai supplémentaire qu'un juge de la Cour fédérale peut, avant ou après l'expiration de ces trente jours, fixer ou accorder.
Pouvoirs de la Cour fédérale
(3) Sur présentation d'une demande de contrôle judiciaire, la Cour fédérale peut :
a) ordonner à l'office fédéral en cause d'accomplir tout acte qu'il a illégalement omis ou refusé d'accomplir ou dont il a retardé l'exécution de manière déraisonnable;
b) déclarer nul ou illégal, ou annuler, ou infirmer et renvoyer pour jugement conformément aux instructions qu'elle estime appropriées, ou prohiber ou encore restreindre toute décision, ordonnance, procédure ou tout autre acte de l'office fédéral.
Motifs
(4) Les mesures prévues au paragraphe (3) sont prises si la Cour fédérale est convaincue que l'office fédéral, selon le cas :
a) a agi sans compétence, outrepassé celle-ci ou refusé de l'exercer;
b) n'a pas observé un principe de justice naturelle ou d'équité procédurale ou toute autre procédure qu'il était légalement tenu de respecter;
c) a rendu une décision ou une ordonnance entachée d'une erreur de droit, que celle-ci soit manifeste ou non au vu du dossier;
d) a rendu une décision ou une ordonnance fondée sur une conclusion de fait erronée, tirée de façon abusive ou arbitraire ou sans tenir compte des éléments dont il dispose;
e) a agi ou omis d'agir en raison d'une fraude ou de faux témoignages;
f) a agi de toute autre façon contraire à la loi.
Vice de forme
(5) La Cour fédérale peut rejeter toute demande de contrôle judiciaire fondée uniquement sur un vice de forme si elle estime qu'en l'occurrence le vice n'entraîne aucun dommage important ni déni de justice et, le cas échéant, valider la décision ou l'ordonnance entachée du vice et donner effet à celle-ci selon les modalités de temps et autres qu'elle estime indiquées.
[28] The respondent submits that the current judicial review application is a review of the Appeal Division's decision and not a hearing de novo. Accordingly, it asserts that the review should be limited to the findings of the Appeal Division rather than a full review of the Board's decision.
[29] On this point, I disagree with the respondent's opinion. After a careful review of the jurisprudence, I believe that the comment made in Cartier v. Canada (Attorney General), [2003] 2 F.C. 317 (C.A.), at paragraph 10 is really instructive:
The unaccustomed situation in which the Appeal Division finds itself means caution is necessary in applying the usual rules of administrative law. The judge in theory has an application for judicial from the Appeal Division's decision before him, but when the latter has affirmed the Board's decision he is actually required ultimately to ensure that the Board's decision is lawful. [emphasis added]
Likewise, we are faced with a decision of the NPB revoking the applicant's parole, as well as a decision of the Appeal Division confirming the order. In light of the Cartier, supra decision, the role of this Court, when the Appeal Division has affirmed the NPB's decision, is to first, analyse the decision of the NPB and determine its lawfulness, rather than that of the Appeal Division. If the Court concludes that the Board's decision is lawful, there is no need to review the Appeal Division's decision.
Standard of review
[30] In Cartier, supra, at paragraph 9, the Federal Court of Appeal ruled that the Appeal Division needs, at all times, to be guided by the standard of reasonableness when deciding whether or not the Board's decision is lawful:
If the applicable standard of review is that of reasonableness when the Appeal Division reverses the Board's decision, it seems unlikely that Parliament intended the standard to be different when the Appeal Division affirms it. I feel that, though awkwardly, Parliament in paragraph 147(5)(a) was only ensuring that the Appeal Division would at all times be guided by the standard of reasonableness.
[31] I do not believe that the Court's judicial review should be on a higher standard of review than the one of the Appeal Division. Therefore, I am of the opinion that the comments made in Desjardins v. Canada (National Parole Board), [1989] F.C.J. No. 910 (F.C.T.D.) (QL), apply to the case at bar:
In the case at bar, where imprisonment and privilege of parole are involved, I am of the view that the administrative decision must not be interfered with by this Court failing clear and unequivocal evidence that the decision is quite unfair and works a serious injustice on the inmate. This being said, I am in full agreement with the following view as expressed by Mr. Justice Strayer in Lathan v. Solicitor General of Canada and al., [1984] 2 F.C. 734 at page 744 :
While parole is not a right but a privilege, and therefore its revocation does not require the judicial-type process more commonly associated with the concept of natural justice, it does require at least an observance of fairness. In determining the requirements of fairness in any given situation I believe it is necessary to consider what the nature of the consequences is for the person who has allegedly been denied fairness. [emphasis added]
[32] The reasonableness standard was first identified and defined inCanada (Director of Investigation and Research) v. Southam, [1997] 1 S.C.R. 748, at paragraph 56 where Iacobucci J. held that:
[...] An unreasonable decision is one that, in the main, is not supported by any reasons that can stand up to a somewhat probing examination. Accordingly, a court reviewing a conclusion on the reasonableness standard must look to see whether any reasons support it. [...]
[33] In Law Society of New Brunswick v. Ryan, [2003] 1 S.C.R. 247, he gave some further guidance as to how to apply the reasonableness standard. Unlike the correctness standard, reasonableness is not about whether the tribunal came to the right result. In fact, the reviewing court should not even consider what the correct decision is. Rather, it must look to the reasons given by the tribunal and determine whether there is a reasonable analysis of the evidence that could lead the tribunal to the conclusion at which it arrived.
Issues
1. Did the NPB err in fact?
[34] The applicant argues that the Board's conclusion on risk factors was erroneous. He alleges that the only member of his treatment team present at the hearing, Ray Anderson, did not speak for the treatment team but in fact gave a dissenting opinion that was mis-characterised by the NPB.
[35] The written representation of Ray Anderson was based on the team consensus and was not his sole recommendation (affidavit of Ray Anderson). It was called a "dissenting opinion" because he thought that Mr. Goodsell's recommendation differed from his recommendation. However, at the beginning of the hearing, Mr. Goodsell mentioned that he was changing his recommendation. Consequently, Mr. Anderson's recommendation was no longer dissenting.
[36] The applicant contends that the Board's appreciation of the evidence was made in a capricious and malicious manner without regard to the evidence before it. He alleges that the NPB did not take into consideration the fact that he had lived in the community for a period of ten years without re-offending. In support of such an allegation, he underlines a comment made by Dr. Brink in his recommendation.
[37] After a review of Dr. Brink's opinion, I believe that his comment should not be taken out of the context. Dr. Brink mentioned that the applicant's days are consumed by sexual preoccupation. Furthermore, he underlines that the applicant refused to admit that his sexual obsession and addiction to pornography and prostitutes are factors related to a dysfunctional lifestyle and that deviant sexuality is related to risk of sexual re-offending. Moreover, Dr. Brink made it clear that it was of the utmost importance that the applicant attain a better appreciation of the risk factors, the underlying dynamics, and the need for full disclosure.
[38] The NPB, as the trier of fact, has the complete jurisdiction to appreciate the evidence before it and weigh it. It is within its jurisdiction to draw the appropriate conclusion as it did.
[39] The applicant argues that his community parole officer (CPO) did not believe that there was a nexus between his sexual deviant behaviour and the risk of re-offending. He therefore submits that his CPO's recommendation was in contradiction with the opinion he gave in his report. The reading of the CPO's report indicates that the applicant's CPO was of the opinion that deviant sexual behaviour of the applicant was affecting his life.
[40] The applicant asserts that there is no evidence that his use of pornography and prostitutes increased his likelihood of offending. Despite this allegation, there was some evidence before the NPB that indicated a nexus between the use of pornography and prostitutes and the risk of re-offending.
[...] it is clearly evident from some of [Aney's] statement and refusal to accept that deviant sexuality is related to risk for sexual reoffending, and from the fact that he has not completed a sex offender program, that he is indeed fortunate to be on parole. There can be no doubt that no designated dangerous offender would today be granted parole without completion of at least one sex offender program, plus relapse prevention programming and a good understanding of crime and behavioural cycles, risk factors, and intervention strategies. It is therefore of the utmost importance that he attain a better appreciation of these factors, the underlying dynamics, and the need for full and frank disclosure and discussion in group. [...] (Dr. Brink's report at p. 55 of the Respondent's Record)
Although Mr. Aney will not take kindly to my views, it is my opinion that his essential narcissistic, manipulative and needy personality has allowed or compelled him over the last eleven years, to partition issues of sexuality from issues of risk. [...] (Dr. Brink's report at p. 56 of the Respondent's Record)
[41] After examining all the evidence before the NPB, I believe that its conclusion can reasonably be justified. Therefore, I cannot conclude that its factual determination warrants this Court's intervention.
2. Was the NPB panel bias?
[42] The applicant claims that there was reasonable apprehension of bias as two of the Board members had previously participated in an earlier parole review hearing in September 2001 and had made comments prejudicial to the applicant regarding the outcome of his 2002 parole review hearing.
[43] The applicant correctly cited the appropriate test for impartiality such as held in Devries v. Canada (National Parole Board), [1993] B.C.J. No. 966 (B.C.S.C.) at page 6:
The test for impartiality is not whether actual bias can be shown but whether there is a reasonable apprehension of bias. One should ask whether an informed person viewing the matter realistically and practically and having thought the matter through would conclude there is a likelihood of bias: Committee for Justice and Liberty v. National Energy Board (1976), 68 D.L.R. (3d) 716. [...]
[44] The applicant even went further and relied on this same decision to argue that:
Surely a person participating in a review or re-examination of his earlier decision, even where that is in the light of new evidence cannot be said to act with the impartiality that one would expect of a person hearing the matter for the first time.
[45] In contrast, the present case does not involve a re-examination or review of the decision rendered by the Board members in 2001. Rather, the Board members were sitting on a different parole review hearing. The respondent submits that there is no provision in the CCRA prohibiting a Board member from sitting on subsequent parole review hearings over the same offender. The only restriction is found in subsection 146(2) and does not find any application in the case at hand.
[46] It is foreseeable that the same Board members will eventually adjudicate subsequent parole review hearing for the same applicant because the inmates have parole review hearing every two years and there is a limited number of Parole Board members. If Parliament had intended to avoid such an inevitable situation, it would have expressly legislated so.
[47] I read the transcript of the hearing to be sure that there was no bias from any of the Board members. I am satisfied that there is no reasonable apprehension of bias in the case at bar.
3. Did the NPB make an error of law?
[48] The applicant submits that the NPB's decision should have been in accordance with paragraph 135(5)a) which states:
(a) cancel the suspension, where the Board is satisfied that, in view of the offender's behaviour since release, the offender will not, by reoffending before the expiration of the offender's sentence according to law, present an undue risk to society;
a) soit annulé la suspension si elle est d'avis, compte tenu de la conduite du délinquant depuis sa libération conditionnelle ou d'office, qu'une récidive du délinquant avant l'expiration légale de la peine qu'il purge ne présentera pas un risque inacceptable pour la société;
[49] The applicant argues that even if his behaviour was contrary to the NPB's expectations, no evidence was presented to the effect that he would re-offend. He said that the NPB revoked his parole in order to have him cooperate and not because he was representing an undue risk to society.
[50] I do believe that the NPB properly applied the standard stated by subsection 135(5)a) of the CCRA. In fact, the vast majority of the reasons are directed toward the assessment of the risk that the applicant represented to society. I do not believe that the applicant's parole was revoked only because he acted contrary to the NPB's expectations and breached his parole conditions.
4. Did the NPB fail to consider relevant information?
[51] The applicant alleges that the NPB should have postponed the hearing knowing that he had not taken the polygraph test. He relied on the dissenting comments of Major J. in the decision Mooring v. Canada (National Parole Board), [1996] 1 S.C.R. 75, at paragraph 82 to affirm that a "finder of fact considers only what is relevant and, with limited exceptions, all that is relevant". He also underlined the NPB statutory obligation to take into consideration all available information that is relevant to a case:
Information standards
The quality of information on an offender's file is critical to the determination of the case. When reviewing the file, the Board may come to believe a reasonable assessment of the risk presented by the offender is not possible because potentially significant information, which should be available, has not been provided. For example:
- specific information which could have impact on the decision is identified as needed
- the information provided lacks the analysis needed to assess positive change in the offender and/or is overly reliant on offender self-report; or
- the release plan does not include information which appears to be essential, such as confirmation of accommodation, or the community assessment is inadequate.
In such a case, the Board will:
- ask the CSC or other correctional authorities to obtain the information, if possible, before any required hearing, or before their decision is rendered; or
- postpone the hearing/review, if it may be done without the possibility of loss of jurisdiction; or
- adjourn the review if the information will be available within two months; or
- deny the release and inform the correctional authority and the offender the case will be reviewed after the needed information is received.
The Board recognizes that in some cases certain information will not be available, and decisions will have to be made on the basis of the historical information correctional authorities have been able to gather using their best efforts, and their assessments of the offender while under sentence (NPB Policy Manual, 2.1 - Risk assessment for pre-release decisions - Decision-making criteria and process: www.npb-cnlc.gc.ca/infocntr/policym [emphasis added]
[52] The use of the verb "may", in the first paragraph of this section of the policy, makes it clear that the unavailability of information will not automatically cause the adjournment or postponement of the parole hearing. It will only do so, if the NPB believes that the information is significant enough to the point where it cannot reasonably assess the risk without it.
[53] In addition, the applicant decided to proceed with the hearing despite the fact that his CPO changed his recommendation because no polygraph test had been done. The Board member expressly asked the defendant if he was still ready to proceed.
MS. VAN KEITH : Okay. Mr. Aney, you've heard the change in recommendation. Are you still ready to proceed with the hearing
MR. ANEY : Yes.
[54] In conclusion, I am of the opinion that the NPB did consider all of the significant information. The polygraph test was to ascertain that the applicant had not been involved in any crime since his full parole was granted in 1992. I believe that the polygraph test results would not have changed anything in the NPB's decision. The most important criterion for the NPB to consider was the risk the applicant represented to society at the time of the hearing.
5. Did the NPB decision to revoke the applicant's parole violate the applicant's right under section 7 of the Canadian Charter of Rights and Freedoms (Charter)?
[55] Section 7 of the Charter states that:
Life, liberty and security of person
7. Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.
Vie, liberté et sécurité
7. Chacun a droit à la vie, à la liberté et à la sécurité de sa personne; il ne peut être porté atteinte à ce droit qu'en conformité avec les principes de justice fondamentale.
[56] In Re B.C. Motor Vehicle Act, [1985] 2 S.C.R. 486 at 515, Lamer J. wrote:
Obviously, imprisonment (including probation orders) deprives persons of their liberty. An offence has that potential as of the moment it is open to the judge to impose imprisonment. There is no need that imprisonment [...] be made mandatory.
[57] In R. v. Lyons, [1987] 2 S.C.R. 309, at paragraph 85, La Forest J., on behalf of the majority, held that dangerous offender provisions were held to survive Charter review. However, he warned against generalizations:
[...] It is also clear that the requirements of fundamental justice are not immutable; rather, they vary according to the context in which they are invoked. Thus, certain procedural protections might be constitutionally mandated in one context but not in another. [...]
[58] In order for the applicant to succeed here, he must establish: (1) that he was deprived of his liberty and (2) that the deprivation of his liberty was contrary to the principles of fundamental justice. The first question raises two subsidiary issues: (1) has the Applicant shown that he has been deprived of liberty and (2) if so, is the deprivation sufficiently serious to attract Charter protection (Cunningham v. Canada, [1993] 2 S.C.R. 143, at paragraphs 7 and 9).
Has the applicant been deprived of his liberty?
[59] In Dumas v. Leclerc Institute, [1986] 2 S.C.R. 459 at 464, it was said:
[...] In the context of parole, the continued detention of an inmate will only become unlawful if he has acquired the status of parolee. [...]
In the present case, the applicant had obtained the status of parolee, therefore he was being deprived of his liberty by the revocation of his parole.
[60] The next question is whether deprivation is sufficiently serious to warrant Charter protection. A prisoner's liberty does not necessarily bring the matter within the preview of section 7 of the Charter. The qualification must be significant enough to warrant constitutional protection. To quote Lamer J. in Dumas, supra, at page 464, there must be a "substantial change in condition amounting to a further deprivation of liberty".
[61] Here, the applicant had been given the opportunity to serve his sentence in the community under certain conditions. The revocation of his parole is significant enough to amount to deprivation of liberty. Such a change was recognized as worthy of section 7 protection in R. v. Gamble, [1988] 2 S.C.R. 595.
Is that deprivation of his liberty contrary to the principles of fundamental justice?
[62] In Cunningham, supra, the Supreme Court of Canada reiterated the position taken by Lamer J. in Re B.C. Motor Vehicle Act , supra, at pages 502-503, to the effect that the principles of fundamental justice are not governed only by the interest of the person who claims to be deprived of his liberty, but also by public protection. Fundamental justice requires a fair balance between those interests.
[63] In revocation hearings, the Board has to weigh the parolee's interest and public safety. The behaviour of a parolee in the community is the most important factor to determine if he represents a danger to public safety.
[64] I am satisfied that the NPB did not commit any error in the risk assessment of the applicant's behaviour. It gave sufficient weight to all relevant considerations. There is no violation of section 7 of the Charter in the present case.
6. Is the applicant's sentence "cruel and unusual punishment" contrary to section 12 of the Charter?
[65] The applicant argues that the DO legislation is supposed to be safe from violating section 12 of the Charter because the parole process "is capable of truly accommodating and tailoring the sentence to fit the circumstances of the individual offender" (Lyons, supra, at page 31). He suggests that his indeterminate sentence is cruel and constitute unusual punishment contrary to section 12 of the Charter because it was not properly tailored.
[66] In Lyons, supra, at page 341, La Forest J. held:
In my opinion, if the sentence imposed under Part XXI was indeterminate, simpliciter, it could be certain, at least occasionally, to result in sentences grossly disproportionate to what individual offenders deserved. However, I believe that the parole process saves the legislation from being successfully challenged under s. 12, for it ensures that incarceration is imposed for only as long as the circumstances of the individual case require.
As a result, he found the indeterminate sentencing did not infringe section 12 of the Charter (Steele v. Mountain Institution, [1990] 2 S.C.R. 1385, at paragraph 58 per Cory J.).
[67] In the present case, the applicant was granted parole on few occasions. Despite those opportunities, the applicant managed to breach his parole conditions. In Steele, supra, at paragraph 65, the Supreme Court stated that the NPB is required to carefully review the following criteria before granting parole: (1) the inmate has derived the maximum benefit from imprisonment; (2) the inmate's reform and rehabilitation will be aided by the grant of parole; and (3) the inmate's release would not constitute an undue risk to society.
[68] In the case at hand, not only was the applicant held to represent an undue risk to society, the NPB also concluded that he needed further sex offender programming in order to resolve his dysfunctional sexual activities, which were deemed to be high-risk.
[69] After considering all the evidence before the Court, I cannot conclude that the applicant's indeterminate sentence is cruel and unusual punishment contrary to section 12 of the Charter.
Miscellaneous Arguments
[70] At pages 455 to 482 of his Record, the applicant raises a number of allegations in relation with his dangerous offender designation, his transfer and previous parole suspension and revocation. Those matters could have been the subject of their own judicial review. However, at that time the applicant chose, for some reason, not to apply for judicial review. The applicant is now clearly out of time. This Court does not have jurisdiction to deal with these matters under the present judicial review application.
[71] The applicant seeks to have his dangerous offender designation quashed, which is not within this Court's jurisdiction. This judicial review is limited to the Appeal Division and the NPB's decision.
[72] The applicant has failed to establish that the Appeal Division and the NPB decisions are reviewable.
ORDER
THIS COURT ORDERS that the judicial review is dismissed.
"Michel Beaudry"
Judge
Annex
Suspension, Termination, Revocation and Inoperativeness of Parole, Statutory Release or Long-Term Supervision
Suspension, Termination, Revocation and Inoperativeness of Parole, Statutory Release or Long-Term Supervision
Suspension of parole or statutory release
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.
Transfer of offender
(2) A person designated pursuant to subsection (1) may, by warrant, order the transfer to penitentiary of an offender who is recommitted to custody pursuant to subsection (1) in a place other than a penitentiary.
Cancellation of suspension or referral
(3) The person who signs a warrant pursuant to subsection (1) or any other person designated pursuant to that subsection shall, forthwith after the recommitment of the offender, review the offender's case and
(a