Docket: T-550-24
Citation: 2025 FC 1323
Ottawa, Ontario, July 24, 2025
PRESENT: The Honourable Madam Justice Ngo
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BETWEEN: |
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RICHARD RYAN |
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Applicant |
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and |
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ATTORNEY GENERAL OF CANADA |
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Respondent |
JUDGMENT AND REASONS
I. Context
[1] The Applicant, Richard Ryan, challenges the decision of the Appeal Division of the Parole Board of Canada [Appeal Division] affirming the decision of the Parole Board [Parole Board]. The Parole Board and the Appeal Division denied the Applicant’s request for day and full parole.
[2] On judicial review of the Appeal Division’s decision, the Court must also consider the underlying Parole Board’s decision. For ease of reference, I will use the term [Decisions] to refer to both the Parole Board’s and Appeal Division’s decisions and identify the individual decisions specifically, where appropriate.
[3] The Applicant states that for the past five years in the context of his previous parole requests, the Parole Board has repeatedly recognized that he should be moved to a minimum-security facility to assess whether he has made any progress. However, this recommendation was never granted nor executed. Despite not being transferred, the Parole Board repeated the same conclusion that the Applicant’s indeterminate sentence is still tailored to meet the circumstances of his case and has not become grossly disproportionate. He alleges that the Appeal Division unreasonably affirmed the Parole Board’s refusal for full and day parole.
[4] The Applicant seeks a remedy of either (1) quashing the Decisions and remitting the matter for reconsideration to the Appeal Division or (2) directing a remedy that the Appeal Division grant day parole to the Applicant with the conditions it deems appropriate.
[5] For the reasons that follow, this application for judicial review is dismissed. The Applicant has not demonstrated that the Appeal Division’s decision is unreasonable.
II. Facts
[6] The Applicant is a 64-year-old inmate who has been serving an indeterminate sentence since 2001 and has been declared a dangerous offender. He holds an extended criminal record whose history dates from 1989 to his incarceration in 2001. He was convicted of sexual assault, forcible confinement, uttering threats to cause death or physical harm, escape of lawful custody and theft. For the purposes of this judicial review, and without wishing to trivialize or minimize the nature, consequences or effects of his crimes, I will not repeat the specifics of these convictions. The Applicant is currently residing in a medium-security facility located in the province of Quebec.
[7] The Applicant was denied parole in 2015, 2017, 2019, 2021 and 2022. In 2023, he sought day and full parole again.
[8] On May 30, 2023, the Parole Board denied the Applicant’s day and full parole request because of his significant risk of reoffending, his high need for intervention, his level of institutionalization and the remaining work to be done on himself. It considered his release plan for day parole which explained his wish to be integrated in a community residential facility. The Applicant did not provide a release plan for full parole as he recognized his need to be released in a structured environment that offers support. The submitted plan on day parole was not without merit. However, while noting the Applicant’s recent progress and gains, the Parole Board concluded that the Applicant presented an undue risk to society. The Parole Board underlined the work that remained to be done, identified concrete solutions (e.g., security reclassification) and explained the Applicant’s need to progress in his criminological follow-ups with his parole officer.
[9] The Parole Board underlined that the relevant parole criteria must be carefully applied to ensure that an indeterminate sentence is tailored to meet the Applicant’s circumstances and that the continued incarceration does not violate section 12 of the Canadian Charter of Rights and Freedoms, s 12, Part 1 of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11 [Charter].
[10] The Applicant sought an appeal of the Parole Board’s decision to the Appeal Division. The Applicant argued before the Appeal Division that, among other things, the Parole Board committed an error of law by failing to exercise its jurisdiction and failed to ensure that the Applicant’s sentence had not become grossly disproportionate and therefore unconstitutional.
[11] On February 13, 2024, the Appeal Division affirmed the Parole Board’s decision. The Appeal Division denied parole to the Applicant and found that the Parole Board conducted a comprehensive risk assessment and ensured that the Applicant’s sentence was still tailored to fit his circumstances. The Appeal Division rejected the Applicant’s argument alleging that the Parole Board refused to exercise its jurisdiction and that the Parole Board’s decision was incoherent with previous Parole Boards decisions. It underlined that each application for parole is a standalone decision.
III. Issues and Standard of Review
[12] Judicial review of parole decisions is distinctive in that although the Court is theoretically dealing with an application for judicial review of the Appeal Division’s decision, the Court must also examine the legality of the Parole Board’s decision when, as in this case, the Appeal Division’s decision confirms the Parole Board’s decision. The initial decision appealed to the Appeal Division provides the context in which the appeal is heard (Ryan v Canada (Attorney General), 2024 FC 1977 at para 20 [Ryan]).
[13] Thus, the role of this Court, when the Appeal Division affirms the Parole Board’s decision, is to first analyze the Parole Board’s decision and determine its lawfulness, rather than that of the Appeal Division. Decisions of the Parole Board and the Appeal Division regarding release from custody are entitled to considerable deference (Rowe v Canada (Attorney General), 2023 FC 1282 at paras 24-25, other citations omitted).
[14] However, strictly speaking, the only decision before the Court is that of the Appeal Division (Ryan at para 36).
[15] As such, the issue on judicial review is whether the Appeal Division’s decision is reasonable.
[16] The parties submit that the standard of review with respect to the merits of the Appeal Division’s decision is reasonableness (Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65 at paras 10, 25 [Vavilov]). I agree that reasonableness is the applicable standard of review.
[17] To avoid intervention on judicial review, a decision must bear the hallmarks of reasonableness – justification, transparency and intelligibility (Vavilov at para 99). A reasonable decision will always depend on the constraints imposed by the legal and factual context of the particular decision under review (Vavilov at para 90). A decision may be unreasonable if the decision-maker misapprehended the evidence before it (Vavilov at paras 125-126).
[18] The party challenging the decision bears the onus of demonstrating that the decision is unreasonable (Vavilov at para 100).
IV. Analysis
A. The Applicable Law
[19] The following paragraphs summarize the applicable legal framework, that is, the applicable statutory provisions and legal principles in this case.
[20] The Parole Board is an independent administrative tribunal that makes decisions on conditional releases pursuant to the authority conferred upon it under the Corrections and Conditional Release Act, SC 1992, c 20 [CCRA]. It has exclusive jurisdiction and absolute discretion to grant day parole and full parole to offenders under the CCRA, such as offenders serving a sentence of two years or more in a provincial correctional facility in a province in which no program of day parole has been established for that category of offender, and to authorize an unescorted temporary absence for offenders serving an indeterminate sentence (subsections 107(1), 122(2) and 123(1) of the CCRA).
[21] According to the Federal Court of Appeal in Cartier v Canada (Attorney General), 2002 FCA 384 at paragraphs 6 to 10, the intention that emerges from the CCRA is to deny parole once the Parole Board’s decision is reasonably supported in fact and law. In other words, paragraph 147(5)(a) of the CCRA appears to indicate that Parliament intended to give priority to the Parole Board's decision.
[22] To be granted parole, the Parole Board must find that both of the two criteria set out in section 102 of the CCRA are met, upon the demonstration that (a) the offender will not, by reoffending, present an undue risk, and (b) their release will contribute to the protection of society by facilitating their reintegration as law-abiding citizens.
[23] The Appeal Division, on appeal from a Parole Board’s decision, can affirm, reverse, cancel or vary the Parole Board’s decision based on the grounds of appeal listed in the CCRA, including an error of law or fact, a failure to observe a principle of fundamental justice or an unreasonable error (subsections 147(1) and 147(4) of the CCRA; see also Allen v Canada (Attorney General), 2024 FC 412 at para 38 citing Coon v Canada (Attorney General), 2016 FC 340 at para 18).
[24] The Appeal Division’s role is to ensure that the law and the Parole Board’s policies are respected. It also seeks to ensure that the decisions are based on relevant, reliable and persuasive information. It has jurisdiction to assess the risk posed by an inmate to reoffend and to substitute its own discretion if it finds that the Parole Board’s decision is unfounded and unsupported by the information that was available when the decision was made (Ryan at para 37).
[25] Section 100.1 of the CCRA clearly states that the paramount consideration of the Parole Board when granting parole is the protection of society. To reach its determination, the Parole Board must take into consideration “all relevant available information, including the stated reasons and recommendations of the sentencing judge, the nature and gravity of the offence, the degree of responsibility of the offender, information from the trial or sentencing process and information obtained from victims, offenders and other components of the criminal justice system, including assessments provided by correctional authorities”
(art. 101(a) CCRA).
[26] In R v Lyons, 1987 CanLII 25 (SCC), [1987] 2 S.C.R. 309 [Lyons], the Supreme Court held that the indeterminate sentence scheme provided for in the Criminal Code, RSC 1985, c C-46 was constitutional and did not violate section 12 of the Charter because the parole process ensured “that incarceration is imposed for only as long as the circumstances of the individual case require”
.
[27] In assessing whether the Applicant’s rights under section 12 of the Charter may have been violated as a result of a prolonged incarceration by virtue of an indeterminate sentence, the Parole Board must apply the test set out in Steele v Mountain Institution, 1990 CanLII 50 (SCC), [1990] 2 S.C.R. 1385 [Steele]. Under this test, the Parole Board has the responsibility to determine:
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whether the inmate had derived the maximum benefit from imprisonment;
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whether the inmate’s reform and rehabilitation would be furthered by parole; and,
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whether the inmate’s release would constitute an undue risk to society.
[28] Section 12 of the Charter may be violated where the Parole Board has unreasonably denied parole to an offender serving an indeterminate sentence. An unconstitutional denial of parole will only occur where the Parole Board “…errs in the execution of its vital duties of tailoring the indeterminate sentence to the circumstances of the offender”
(Eakin v Canada (Attorney General), 2017 FC 394 at para 20 [Eakin] citing Steele at para 83). It is only on “rare and unique occasions”
that a sentence will infringe section 12, as the test is “very properly stringent and demanding”
(R v Hilbach, 2023 SCC 3 at para 51 [Hilbach] citing Steele).
[29] Administrative tribunals with the power to decide questions of law, and from whom constitutional jurisdiction has not been clearly withdrawn, have the authority to resolve constitutional questions that are linked to matters properly before them. Secondly, they must act consistently with the Charter and its values when exercising their statutory functions (R v Conway, 2010 SCC 22 at para 78 [Conway]).
[30] Any person whose Charter rights or freedoms have been infringed or denied may apply under section 24(1) of the Charter, to a court of competent jurisdiction to obtain a remedy that is appropriate and just in the circumstances.
B. The Limits to the Parole Board’s Jurisdiction
[31] I first address the issue of the Parole Board’s jurisdiction, as many of the Applicant’s arguments focused on the fact that he should have been in a minimum-security facility since at least five years ago. This was a prevailing theme before the Parole Board, the Appeal Division and this Court.
[32] The Applicant alleges that by not giving him an opportunity to test his gains with a transfer to a minimum-security facility, the Parole Board made an artificial risk assessment which violated the obligation to conduct a thorough risk assessment dictated under Steele. The Parole Board made its assessment on unreliable information that did not provide a contemporary full picture of the Applicant’s progression. Essentially, the Parole Board ought to have done something more to transfer him and ought to have given some consideration to the fact he had not yet been transferred.
[33] The Respondent underlined that there are two distinct areas of jurisdiction set out within the CCRA. The CCRA is clearly divided between two sections, one addressing the Parole Board and the other, the Correctional Services of Canada [CSC]. The summa divisio of the CCRA shows that the Parole Board has no jurisdiction over CSC. Thus, the Parole Board cannot compel CSC to move the Applicant. The Parole Board’s jurisdiction does not go as far as allowing it to grant orders forcing CSC to change how it manages the Applicant’s sentence. The Applicant cannot attempt to collaterally attack decisions of CSC through the Parole Board’s decisions or seek remedies from the Parole Board on issues of sentence management. The judicial review of the Decisions is not an appropriate forum for the Applicant to address his claims on issues of sentence management.
[34] Indeed, I note that the Appeal Division properly explained that it did not have jurisdiction to provide a less structured environment to the Applicant and recommended that he use the previous Parole Boards decisions as evidence to support his case with CSC, who had jurisdiction to grant the Applicant’s request for a facility transfer. Despite the Applicant’s contention, I do not view this statement as the Parole Board absolving itself of its obligation under the CCRA and ignoring its role as the protector of an inmate’s rights.
[35] While the Applicant has indicated that measures available to him, such as filing a grievance with CSC or seeking a writ of mandamus to compel CSC to act are futile, that is not a proper issue on this application for judicial review.
[36] The proper scope of this application for judicial review must therefore reflect that the Parole Board and therefore the Appeal Division do not have jurisdiction to make any decisions on facility transfer or sentence management.
C. The Appeal Division’s Decision Is Not Unreasonable
[37] The Applicant states that the Parole Board unreasonably refused to exercise its jurisdiction in assessing whether the Applicant’s sentence had become grossly disproportionate considering its recognition that CSC has not reclassified him to a minimum-security facility.
[38] The Applicant did not substantively contest the factual findings made by the Parole Board or the Appeal Division in their Decisions. Rather, the Applicant grounds his argument on the Parole Board’s and the Appeal Division’s own repeated statements regarding his "need"
to be provided an opportunity to evolve in a less structured environment to test his gains. The Applicant highlighted the numerous occasions where CSC and previous Parole Boards acknowledged that the Applicant would benefit from a less structured environment.
[39] The Applicant cited a psychologist report from 2016 which explained that “considering his institutional adjustment and his behaviour over several years, it seems likely that with adequate monitoring, the risk can be properly managed in a progressively less structured and less restrictive environment”
. In 2019, the Parole Board expressed that he “expects that over the next two years you [the Applicant] will be provided with the opportunity to evolve in a less structured environment and work with a psychologist in order to eventually be ready for parole”
. In 2021, the Parole Board stated that “applying these tools outside the “fish bowl” of a medium security setting is essential in your case”
. However, and despite these conclusions, CSC, has yet to transfer him to a minimum-security facility. The Appeal Division acknowledged the Applicant’s reality, stating “that it was not lost on the Board that since 2019, a few Boards have raised the need for you to be provided an opportunity to evolve in a less structured environment to test your gains”
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[40] The Applicant recognizes that it is not within the Parole Board’s jurisdiction to determine the Applicant’s facility reclassification. This rests with CSC. However, the Applicant argues that because he has never been able to “test his gains”
, any assessment of his risk under the CCRA is “illusory”
. As such, based on the evidence that he needs to be provided an opportunity to evolve in a less structured environment, the Parole Board should have exercised its jurisdiction in granting parole instead of parroting the same conclusion that his sentence continues to be tailored to his circumstances.
[41] The Applicant states that the Parole Board’s risk assessment ought to have followed the following reasoning : the Applicant should have been in a minimum-security facility since at least five years ago; the Applicant was observed to be doing well in the medium-security facility; and had he been in a minimum-security facility these past five years, he would have been able to address any concerns arising in his risk assessment. The Parole Board should have granted him parole accordingly.
[42] In sum, the Applicant states that granting him parole would have properly reflected the state of the Applicant’s progress and would have respected the Parole Board’s obligations under section 12 of the Charter.
[43] The Respondent argues that the Decisions are reasonable, and that the Applicant is asking the Court to reweigh the evidence, which it cannot do on judicial review (citing Ontario (Attorney General) v Ontario (IPC), 2024 SCC 4 at para 18; Vavilov at para 125).
[44] The Respondent also states that the Parole Board does not have “inherent jurisdiction”
as the Applicant contends and cannot override its own enabling statute. It is the application of the statutory criteria that enables the Parole Board to tailor a sentence to the situation of an inmate serving an indeterminate sentence and to ensure that it does not violate section 12 of the Charter (citing Steele at p. 1412, Ouellette v Canada (Attorney General), 2013 FCA 54 at para 45 [Ouellette]; Eakin at paras 19-20, 24; Fournier v Canada (Attorney General), 2004 FC 1124 at para 32). The Parole Board’s decision must be made within its jurisdiction under section 107 of the CCRA and it cannot disregard the criteria set out under section 102 of the CCRA.
[45] At the hearing, the Applicant attempted to draw a more nuanced argument regarding the delay of his facility transfer in order to challenge the reasonableness of the Decisions based on undue risk.
[46] However, I agree with the Respondent’s submissions that accepting the Applicant’s argument would require the Parole Board to exceed its statutory jurisdiction and ignore its conclusion on the Applicant’s ongoing undue risk.
[47] It bears repeating that the Parole Board must consider whether both of the two criteria in section 102 the CCRA are met.
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.
1992, c. 20, s. 102; 1995, c. 42, s. 27(F)
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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.
1992, ch. 20, art. 102; 1995, ch. 42, art. 27(F)
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[48] In this case, the Parole Board found that the Applicant had not met the first factor. In other words, the Parole Board found that a release under parole of the Applicant will pose an undue risk to society. As the Respondent correctly asserted, the CCRA does not grant the Parole Board with the power to allow offenders, whether they are serving determinate or indeterminate sentences, to be granted parole if they pose an undue risk to society.
[49] As described in the following paragraphs, it was open to the Parole Board to arrive at this conclusion based on the record before it. The conclusion that the Applicant continued to pose undue risk was determinative under section 102 of the CCRA. Given this, the Appeal Division’s decision affirming the Parole Board’s decision and conclusions based on the record before it, is also not unreasonable.
[50] The evidence consulted and detailed by the Parole Board in its decision included information and recommendations from the Applicant’s case management team [CMT], who had recommended parole not be granted, stating that that “concerning your current request for day parole, no community strategy has been requested by your CMT, as it does not support your request and your potential for social reintegration is low.”
Further, the Parole Board noted that “your CMT recommends the [Parole] Board to deny day parole as well as full parole”
and listed as well as considered the CMT’s basis for this opinion such as the fact that the Applicant’s criminological counselling is at an early stage. The Parole Board also referred to the Applicant’s testimony during his parole hearing.
[51] Moreover, the Parole Board’s decision analyzed the Applicant’s familial violence risk assessment, his several psychological and psychiatric risk assessments, his risk of sexual recidivism and his risk of violence recidivism. Even though his familial violence risk assessment was a low risk of violence against a third party in a domestic context, the Applicant’s sexual recidivism was deemed to be above average when compared to other sex offenders and “his violent recidivism was considered to be moderate-high in the short and long term”
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[52] The Parole Board’s decision explained that his risk of sexual recidivism was rated high because the Applicant refused to take responsibility for his sexual crimes and because he has not received any treatment for his sexual deviancy. Additionally, in the last two years before the Parole Board’s decision, the Applicant reproduced the patterns that CSC and the Parole Board had been asking him to change. These conclusions are grounded in the record.
[53] The Appeal Division then reasonably confirmed the Parole Board’s assessment of undue risk in finding that further intervention was required to mitigate the Applicant’s risk of sexual sadism. The Appeal Division found that the Parole Board’s reasons were clearly articulated, and they justified why the risk to the public was too elevated for a release to the community. Furthermore, the Appeal Division highlighted the pertinent paragraphs of the Parole Board’s decision and concluded that the Parole Board’s analysis respected the obligations under Lyons and Steele.
[54] The Applicant stresses the lack of transfer as a significant factor that ought to have been conclusive in granting him parole. However, the Appeal Division and the Parole Board are required to take into consideration “all relevant available information”
(section 101(a) CCRA). Here, they did so. The Appeal Division and the Parole Board considered the evidence and arguments, including the Applicant’s argument of a lack of transfer.
[55] In fact, the Parole Decision acknowledged on several occasions that “it would be appropriate to consider a security declassification to minimum”
. The Parole Board explained that a gradual reintegration is recommended to further assess the Applicant’s risk and that a security declassification would be a step in that direction.
[56] However, the Parole Board did not have any evidence on the Applicant’s behaviour in a minimal-security institution. I recognize that the Applicant underlines that this absence of evidence is due to his lack of transfer to a minimal-security facility. However, on judicial review, I cannot find that the Parole Board and the Appeal Division erred by not considering non-existent facts. The Parole Board grappled with the relevant available information and found that, among other things, the Applicant underestimated his potential risk to society if he were to be exposed to a destabilizing situation.
[57] The Appeal Division also considered the lack of declassification and recognized the Applicant’s frustration with not being reclassified despite the past recommendations for a facility transfer. However, having reasonably made a determination of undue risk, the Parole Board - and subsequently the Appeal Board - cannot then circumvent nor neutralize section 102 of the CCRA to grant any remedy requested by an applicant. This would be contrary to the intention of Parliament.
[58] Furthermore, I cannot agree with the Applicant’s arguments that the Parole Board and Appeal Division ignored the findings of previous Parole Boards decisions and limited their intervention to “meaningless language”
about evolving in a less structured environment without grappling with the issue. The Applicant’s entire record, history and participation in rehabilitating programs were assessed, as well as the risk factors and obstacles he has faced. While the Applicant may have preferred that the Parole Board and Appeal Division gave more weight to the positive comments made in some psychological assessments, this is not a reviewable error.
[59] I also found no inaccurate assessment or misapprehension of the available relevant information. The positive elements of the Applicant’s record were identified as well as the reasons preventing the Parole Board and Appeal Division to conclude that there is no undue risk, recognized potential solutions (e.g., psychological follow-ups and cascading to a minimum-security facility) and properly justified its conclusion on the documents in the record. This is the type of weighing of evidence the Court should give deference to the Parole Board and Appeal Division.
[60] There is also no evidence supporting the Applicant’s contention that a transfer to a minimum-security facility would have overcome all other findings of the Applicant’s risk assessment factors in the record and that “he would have been released by now”
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[61] Indeed, the recommendation for a facility transfer was to allow the Applicant to be observed in a less structured environment in order to further assess his progress. To accept the Applicant’s arguments would require the Court to review the same evidence that was considered and referred to by the Parole Board and Appeal Division and come to a different conclusion. I agree with the Respondent that the Applicant is essentially asking the Court to reweigh the evidence. The Court cannot do so on judicial review.
[62] In his challenge of the Appeal Division’s decision, the Applicant is asking the Court to speculate on the Applicant’s possible undue risk had he been declassified to a minimum-security facility. The Court cannot hypothesize on how the Parole Board or the Appeal Division should have determined the Applicant’s risk with facts that were not before them.
[63] Considering the overarching theme before both decision-makers on the Applicant’s argument of the delay for a facility transfer and considering both Decisions holistically and the record before them, I conclude that the Parole Board and the Appeal Division sufficiently grappled with the evidence on undue risk and considered it in light of the statutory requirements under the CCRA. They followed the appropriate legal framework and grappled with the Applicant’s arguments and evidence in assessing his request for parole. The finding on undue risk is not unreasonable.
[64] As such, I find no reviewable error in the Parole Board’s decision and therefore, the Appeal Division’s decision maintaining the Parole Board’s findings. The Appeal Division’s decision reflects the factual and legal constraints that bear upon them in the context of the appeal.
[65] I acknowledge the Applicant’s frustration with CSC’s inaction regarding a potential facility transfer in spite of the Parole Board’s recommendations in his previous parole requests. However, the Applicant can still avail himself of the available measures to address these issues with CSC.
D. There Is No Breach of Section 12 of the Charter
[66] The Applicant alleges that the Parole Board erred in law by not adhering to the Applicant's right not to be sentenced to a cruel and unusual punishment under section 12 of the Charter. In essence, CSC’s failure to transfer the Applicant to a minimum-security facility has now rendered his sentencing no longer tailored to his needs.
[67] The Respondent also states that the Parole Board does not have the power to grant the remedies sought by the Applicant. In applying the test set out in Conway, the remedy sought by the Applicant in this case would violate the statutory scheme and goes beyond the Parole Board’s jurisdiction under section 107 of the CCRA. Once the Parole Board has properly applied the legislative criteria set out in the CCRA and in the absence of a constitutional challenge to the CCRA provisions, there is no discretion for the Parole Board to then conclude, as the Applicant contends, that the sentence violates section 12 of the Charter (citing Ouellette at para 50) or that he should be granted parole. Indeed, in this case, the Parole Board had no obligation to assess the sentence beyond the criteria set out in the CCRA (Steele).
[68] I agree with the Respondent. I do not find that there has been any Charter breach, as it has been presented by the Applicant. The factors that the Applicant has identified to challenge the reasonableness of the Appeal Division’s decision is not within the discretion that has been conferred onto the Parole Board and the Appeal Division under the enabling statute once they reasonably assessed and concluded that there was undue risk to society with parole. There was accordingly no Charter breach.
[69] The Appeal Division acted consistently with its obligations under the CCRA and grappled with the evidence in order to come to a reasonable conclusion on the Charter issue (Conway at para 78). I do not find that the Appeal Division erred in the execution of its vital duties of tailoring the indeterminate sentence to the circumstances of the offender (Eakin at para 20, citing Steele at para 83). Hence, the Appeal Division’s conclusion affirming the Parole Board’s decision dismissing the Applicant’s Charter arguments is not unreasonable.
[70] The Applicant’s allegation does not meet the stringent and demanding test required by the case law (Hilbach at para 51). There is no breach of section 12 of the Charter and the remedies requested under section 24(1) of the Charter must be dismissed.
V. Conclusion
[71] The Appeal Division’s decision is not unreasonable. The reasons are clear, justified and well reasoned. They were grounded in the evidence before the decision-maker, and in compliance with the legal requirements on the assessment of a parole request. The Applicant has not demonstrated how the conclusion relating to undue risk was unwarranted, unreasonable or erroneous that would justify the Court’s intervention.
[72] Based on the context of the case, the Appeal Division’s decision is internally coherent and based on a rational chain of analysis that is justified by the factual and legal constraints imposed on the decision-maker. The Court was able to connect the dots and follow the reasoning process in the decision on review, thus bearing the hallmarks of a reasonable decision.
[73] The Respondent has not sought costs. The application for judicial review is dismissed, without costs.
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