Date: 20060105
Docket: T-705-05
Citation: 2006 FC 3
Ottawa, Ontario, January
5, 2006
PRESENT:
THE HONOURABLE MR. JUSTICE SIMON NOËL
BETWEEN:
RENÉ-LUC
GOSSELIN
Applicant
and
ATTORNEY
GENERAL OF CANADA
Respondent
REASONS FOR ORDER AND ORDER
[1]
On April 22,
2005, the applicant, René-Luc Gosselin, applied to the Federal Court for a
judicial review of a decision of the Appeal Division of the National Parole
Board (“Appeal Division”) dated April 1, 2005. In that decision, the Appeal
Division dismissed the applicant’s appeal, in which he challenged the only
special condition imposed on him for his conditional release (other than the
mandatory automatic conditions), a non-association condition, which reads as
follows:
[translation]
Prohibited from having any contact and/or any non-fortuitous communication with
any person whom he knows or whom he has reason to believe has a criminal record
(within the meaning of the interpretation stated by NPB on February 4, 1991) or
to be directly or indirectly involved with the drug underworld.
[2]
The
applicant had mistakenly identified the members of the Appeal Division of the
Board as respondents. Leave was granted to amend, and the style of cause names
the Attorney General of Canada as the respondent, and not the members of the
Appeal Division of the Board.
FACTS
[3]
The
applicant was arrested on June 7, 2000 and sentenced to a term of imprisonment
of nine years for conspiring to import/export cocaine and possession of a
firearm.
[4]
On October
10, 2003, on an accelerated review, the National Parole Board (“NPB”) ordered
the applicant released on day parole (see section 99 of the Corrections and Conditional Release Act,
S.C. 1992, c. 20 (“CCRA”); this is a conditional release scheme that
requires an inmate to return to the place where he or she is incarcerated every
night), thereby imposing on him the applicable automatic conditions (see
subsection 133(2) CCRA and section 161 of the Corrections and Conditional
Release Regulations) and also the special non-association condition.
[5]
On August
23, 2004, the NPB ordered that the applicant be released on conditional release
under the same conditions. On October 15, 2004, the applicant filed an appeal
from that decision. On April 1, 2005, the Appeal Division dismissed his appeal.
The applicant seeks the judicial review of the August 23, 2004 appeal which
sought to annul the non-association condition of that decision of the Appeal
Division.
[6]
The
applicant asks the Federal Court to:
(1) Allow the application for
judicial review;
(2) Declare the contested
condition of release to be contrary to sections 1 and 7 of the Canadian
Charter of Rights and Freedoms, Part I of the Constitution Act 1982,
enacted as Schedule B to the Canada
Act 1982 (U.K.) 1982, c. 11 (“Charter”).
ISSUES
[7]
The
questions raised in this case are as follows:
(1) Should the fresh evidence
presented by the applicant be admitted?
(2) Did the Appeal Division err
when it dismissed the applicant’s appeal of the August 23, 2004
decision?
(3) Does the non-association
condition violate section 1 or section 7 of the Charter?
CONCLUSIONS
ANALYSIS
1. Fresh Evidence
[9] The applicant presented fresh evidence that
was not in the record before the NPB or the Appeal Division. That evidence
consists of:
- an
excerpt from a 2001 Correctional Services of Canada document containing
statistics and facts regarding the Canadian prison system (Exhibit P-16);
- an
undated article from Police Photo weekly (the applicant later stated in
his supplementary memorandum that the article was dated November 5, 2004)
(Exhibit P-17);
- an
article from La Presse newspaper dated November 10, 2002 (Exhibit P-18);
and
- an
article from the Journal de Montréal dated March 26, 2005 (Exhibit
P-19).
The respondent contended that those exhibits are not
admissible on the ground that they were available at the time the decisions of
both the NPB (August 23, 2004) and Appeal Division (April 1, 2005) were made.
At the hearing, the applicant sought leave of the Court to file a supplementary
memorandum of argument for leave to file these exhibits. The Court granted
leave, and the respondent was accordingly entitled to file a reply, which he
did.
[10] The applicant argued that he did not submit
Exhibit P-16 to the NPB because he assumed that the content of the document was
already known to the NPB. With respect to Exhibits P-17 and P-19, he submitted
that it would have been physically impossible to submit them, because they did
not exist when the appeal was filed. With respect to Exhibit P-18, the
applicant wanted it to be admitted notwithstanding the date it was published,
because he had misplaced it for some time and then found it in time for filing
his application for judicial review. He also said that, in his view, all of
these exhibits were matters of which the NFB and the Appeal Division could take
judicial notice.
[11] The respondent submitted that all of the
documents were available when the Appeal Division made its decision, and that
the documents in question should have been submitted to the Appeal Division.
He argued that the documents were not matters of which the Appeal Division
could take judicial notice, and said that even if such were the case, this
would not relieve the applicant of the duty to allege the material facts and
relate them to his arguments of law.
[12] As a general rule, at the judicial review
stage, only the evidence on which the decision of which review is sought was
based may be considered (see Smith v. Canada, 2001 FCA 86, [2001] F.C.J.
No. 450). In Chopra v. Canada (Treasury Board) [1999] F.C.J. No. 835, at
paragraph 5, Mr. Justice Dubé wrote:
These decisions [with respect to the rule
that fresh evidence is inadmissible in applications for judicial review] are
premised on the notion that the purpose of judicial review is not to determine
whether or not the decision of the Tribunal in question was correct in absolute
terms but rather to determine whether or not the Tribunal was correct based on
the record before it.
[13] As an exception, the Court may take notice of
documents that did not exist at the time the application for judicial review
was made, where there are issues of procedural fairness or jurisdiction (see Ontario
Association of Architects v. Association of Architectural Technologists of
Ontario, [2003] 1 F.C. 331, 2002 FCA 218). Because there are no issues of
procedural fairness or jurisdiction in this case, the general rule should be
followed. This is not an appeal: the date on which the evidence became
available has no effect on the admissibility of the evidence.
[14] Leave will therefore not be granted to present
fresh evidence. Nonetheless, even had the evidence been admitted, it would not
have changed my findings on the merits.
2. Judicial Review
(a) Standard of
Review
[15] In determining the applicable standard of
review, the two leading cases are Pushpanathan v. Canada, [1998] 1
S.C.R. 982 and Dr. Q v. College of Physicians and Surgeons of British
Columbia, [2003] S.C.R. 19. In the second case, the pragmatic and
functional approach was updated, so that it is now the leading authority in
this respect, although the analysis provided in Pushpanathan v. Canada, supra,
was more detailed.
[16] It will be useful to review the factors that must be
considered in determining the applicable standard of review. In Dr. Q v.
College of Physicians and Surgeons of British Columbia, supra, Chief
Justice McLachlin wrote, at paragraph 26:
In the pragmatic and functional approach,
the standard of review is determined by considering four contextual factors —
the presence or absence of a privative clause or statutory right of appeal; the
expertise of the tribunal relative to that of the reviewing court on the issue
in question; the purposes of the legislation and the provision in particular;
and, the nature of the question — law, fact, or mixed law and fact. The factors
may overlap. The overall aim is to discern legislative intent, keeping in mind
the constitutional role of the courts in maintaining the rule of law. . . . The
virtue of the pragmatic and functional approach lies in its capacity to draw
out the information that may be relevant to the issue of curial deference.
[17] The applicant seeks the judicial review of the
decisions of both the NPB and the Appeal Division. As the Federal Court of
Appeal stated in Cartier v. Attorney General of Canada, [2003]
2 F.C. 217, 2002 F.C.J. No. 384, at paragraph 10:
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 review 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.
[18] Applying the pragmatic and functional approach,
I conclude as follows.
[19] First, the Corrections
and Conditional Release Act does not provide for
any privative clause or right of appeal. However, in Pushpanathan v. Canada,
supra, Mr. Justice Bastarache wrote, at paragraph 30: “The absence of a privative clause does not imply a high standard of
scrutiny, where other factors bespeak a low standard.”
[20] The relative expertise of the NPB and the Appeal
Division, as compared to the Federal Court, invites a certain degree of
deference. Under subsection 105(1) of the Corrections
and Conditional Release Act,
the members of the NFB and the Appeal Division are selected so as to ensure
they represent society as a whole. They hear a large number of cases every
year, and they consequently have a more thorough understanding of what
constitutes a reasonable or necessary condition, within the meaning of
subsection 133(3) CCRA. Subsection 133(3) reads as follows:
|
(3)
The releasing authority may impose any conditions on the parole, statutory
release or unescorted temporary absence of an offender that it considers
reasonable and necessary in order to protect society and to facilitate the
successful reintegration into society of the offender.
|
(3)
L’autorité compétente peut imposer au délinquant qui bénéficie d’une
libération conditionnelle ou d’office ou d’une permission de sortir sans
escorte les conditions qu’elle juge raisonnables et nécessaires pour protéger
la société et favoriser la réinsertion sociale du délinquant.
|
What special conditions should or should not be imposed on
an offender is therefore clearly a matter within the expertise of those bodies.
[21] The purpose of the Act, as set out in section
100 CCRA, is as follows:
|
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.
|
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.
|
The specific provision that allows the NPB to impose special
conditions of release on an offender is subsection 133(3) CCRA (see above).
That subsection appears to give the releasing authority a very broad
discretion, by using the phrase “conditions . . . that it considers reasonable
and necessary”. In Normandin v. Canada, 2004 FC 1404, [2004] F.C.J. No.
1701, aff’d 2005 FCA 345, [2005] F.C.J. No. 1768, the issue was whether the NPB
had the power to impose a special residency condition on a dangerous offender
under subsection 134.1(2) CCRA. Madam Justice Tremblay‑Lamer used the
pragmatic and functional approach in order to determine what standard of review
applied. She wrote, at paragraph 19:
There is no doubt that Parliament intended
the NPB to use its expertise in taking the appropriate decisions to protect
society while facilitating the reintegration of the offender into the
community.
That decision was recently approved by the Federal Court of
Appeal. Mr. Justice Létourneau wrote, at paragraph 46:
One can therefore see from these provisions
Parliament's intention to rely on the expertise and experience of the Board in
order, to the degree possible, to protect society while facilitating the
successful reinsertion and integration into society of the offender.
I agree with the Federal Court of Appeal and the Federal
Court, per Madam Justice Tremblay-Lamer. Parliament intended to give the
NPB and the Appeal Division broad latitude to decide what special conditions of
release should be applied to an offender, having regard to the circumstances.
[22] The final point is that the issue here is a
question of mixed fact and law (Deacon v. Canada (Attorney General),
2005 FC 1489, [2005] F.C.J. No. 1827, at paragraph 93). However, the “fact”
component is more important than the “law” component, because the NPB and the
Appeal Division are not required to do a thorough analysis of the applicable
statutory provisions in order to decide whether a particular condition should
be imposed on an offender, the only criteria being whether conditions are
necessary and whether they are reasonable. The nature of the question therefore
suggests that judicial deference is appropriate.
[23] Having considered all of these factors, I
conclude that the applicable standard of review is that of the reasonable
decision. The nature of the issue, the expertise involved and the purpose of
the Act all lead me to accord deference in applying that standard.
(b) Did
the NPB and the Appeal Division err when they dismissed the applicant’s appeal
from the decision of August 23, 2004?
[24] On reading the NPB decision of August 24, 2004,
and the decision of the Appeal Division of April 1, 2005, I find that neither
decision contains any error that would support a finding that the decision was
unreasonable. The decisions were clearly based on the facts of the case, and
there are no grounds for review.
[25] The imposition of special conditions in this
case was based on the following grounds, as set out in the decisions of the NPB
and the Appeal Division:
-
The
applicant was sentenced to a term of imprisonment of nine years for conspiring
to import/export 50 kilograms of cocaine and possession of a firearm;
-
As stated
in the sentence pronounced by Mr. Justice William B. Digby of the Provincial
Court of Nova Scotia on October 19, 2001, at page 26, the applicant was not a
mere courier, and he had in fact been involved in the drug underworld for a
long time;
-
The
applicant committed these crimes in association with criminal individuals and
maintained relationships with them (and/or acted under their influence);
-
The
applicant had a record for possession of firearms and theft;
-
The record
clearly shows that the applicant [translation]
“. . . had very little to say about anything relating to his offence” and that
his attitude was one of “. . . denying responsibility and engaging in
rationalization, minimization and justification” and he demonstrated a “. . .
lack of openness . . .” (see respondent’s record, at pages 7, 9, 21, 23, 24,
53, 54, 70, 71 and 72). In short, the applicant has not demonstrated that his
remorse for his crime is complete and unequivocal.
[26] Each of these elements is logically and directly
linked with the non-association condition. Contrary to the applicant’s
argument, the non-association condition is neither excessive nor vague, and it
was not imposed in bad faith. In fact, the Interpretation given by the NPB on
February 4, 1991 (applicant’s record, at page 57: “Interpretation”), which was
duly signed by the applicant, is flexible enough to allow the applicant to maintain
interpersonal relationships for lawful purposes. With respect to social
contacts, fortuitous meetings (encounters that happen by chance or that are
unforeseen) are not a violation of the condition unless the other person is
someone whom the applicant [translation]
“knows” or “has reason to believe” “to have a criminal record . . . or to be
directly or indirectly involved with drugs”. With respect to contacts at work,
the applicant may work in places where there are other people who have criminal
records, as long as the business is legal. While the Interpretation does
provide that, as a general rule, the applicant may work only in a business
which has more than 50 employees, the NPB may grant an exemption. In this
case, the condition has created no problems for the applicant in terms of
work. He is a taxi driver and his parole officer knows this. With respect to
family contacts, the Interpretation allows the applicant to continue to see
members of his family, in the broad sense. In short, the applicant’s social,
work and family life is not jeopardized by the non-association condition. It
seems to me that, in the circumstances, having regard to the objectives of
reintegration into society and protection of the public, this condition, as
worded, is neither excessive nor vague. There is nothing in the record that
supports the argument regarding bad faith. Accordingly, it is my opinion that
the NPB and the Appeal Division committed no error on the basis of which I
could characterize the imposition of the non-association condition on the
applicant in either of the two decisions as unreasonable. I therefore find that
there are no grounds for review of the Appeal Division decision.
3. Constitutional Issues
[27] The applicant argued that the condition imposed
on him violated section 7 of the Charter. That section reads as follows:
|
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.
|
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.
|
[28] The applicant is serving the rest of his term of
imprisonment in the form of parole with a non-association condition, which
prohibits him from communicating with certain persons: individuals whom he
knows, or whom he has reason to believe, to have a criminal record or to be
directly or indirectly involved with drugs. The first issue is whether this
condition deprives him of liberty. If so, the question then is whether the
violation of that right is in accordance with the principles of fundamental
justice. If the violation of the right to liberty is in accordance with the
principles of fundamental justice, section 7 is not violated (Pearlman v.
Manitoba Law Society Judicial Committee, (1991) 2 S.C.R. 869). On the other
hand, if the deprivation occurred in contravention of the principles of
fundamental justice, then the question becomes whether the deprivation may be
justified under section 1 of the Charter.
[29] Generally speaking, the Supreme Court has
interpreted the right to liberty guaranteed by section 7 of the Charter
generously. In Blencoe v. British Columbia (Human Rights Commission), [2000] 2 S.C.R. 307; 2000 SCC 44, at paragraph 49, Mr. Justice Bastarache
wrote :
The liberty interest protected by s. 7 of
the Charter is no longer restricted to mere freedom from physical
restraint. Members of this Court have found that “liberty” is engaged where
state compulsions or prohibitions affect important and fundamental life
choices.
[30] In this case, the Court need not determine
whether the deprivation of the applicant’s liberty is sufficiently serious to
trigger the application of the Charter, because the non-association condition
was, in any event, imposed in accordance with the principles of fundamental
justice. Mr. Justice Dubé so found in Bryntwick v. Canada (National Parole
Board), [1987] 2 F.C. 184, [1986] F.C.J. No. 815, at paragraph 31, in a
challenge to a similar non-association condition:
I
cannot find, in this instance, that the condition imposed upon the petitioner
was not in accordance with the principles of fundamental justice. To be sure,
the condition represents a further incursion upon his freedom, but it was
imposed in accordance with the basic tenets of our legal system.
[31] The applicant’s file was assessed on its merits
and the decision to impose a special non‑association condition was made
in accordance with the principles of fundamental justice. The applicant’s
argument based on section 7 of the Charter is therefore rejected.
[32] For these reasons, the application for judicial
review is dismissed and the constitutional arguments of the applicant are rejected.
Leave to introduce fresh evidence is also denied, but I would add that even if
it had been admitted, it would not have changed my findings on the merits.
[33] The parties are invited to make submissions on
costs. I suggest that they communicate with each other to discuss this. I will
await the outcome of those discussions before disposing of the question of
costs.
ORDER
THIS COURT ORDERS THAT:
-
The style
of cause be amended to name the Attorney General of Canada as the respondent;
-
leave to
introduce fresh evidence be denied;
-
leave for
the applicant to file a supplementary memorandum regarding Exhibits P-16, P‑17,
P-18 and P-19 and for the respondent to file a reply be granted;
-
the
application for judicial review be dismissed;
-
the
parties have 10 days to file submission on costs.
“Simon
Noël”
Certified true
translation
François Brunet, LLB,
BCL
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