Scott v. Canada (Attorney General), 2003 FC 1215

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2003 FC 1215

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Date: 20031020

Docket: T-1636-02

Citation: 2003 FC 1215

OTTAWA, Ontario, this 20^th day of October, 2003

Present: THE HONOURABLE MR. JUSTICE MICHAEL KELEN

BETWEEN:

EDWARD ROY SCOTT

Applicant

- and -

THE ATTORNEY GENERAL OF CANADA

Respondent

REASONS FOR ORDER AND ORDER

[1] This is an application for judicial review of a decision of the Appeal Division of the National Parole Board ("Appeal Division"), dated August 23, 2002, wherein the Appeal Division affirmed the May 9, 2002 decision of the National Parole Board ("Board") to detain the applicant until the expiry of his sentence, pursuant to section 130 of the Corrections and Conditional Release Act, S.C. 1992, c.20 ("Act").

[2] The applicant seeks relief by way of certiorari to quash the detention order, and an order for costs.

FACTS

[3] The applicant is 47 years old and is currently serving an aggregate sentence of 25 years and 27 days, with a Warrant Expiry Date (WED) of April 13, 2004, for charges including use of firearm, robbery, kidnapping, rape, attempted rape, indecent assault, assaulting a peace officer, unlawful confinement, theft, forcible entry, mischief, attempt to obstruct justice, dangerous driving, and failure to appear. He has been incarcerated at the Warkworth Institution since February 10, 1978.

[4] The applicant has never been married but has lived in three common law relationships . He has a 27 year old son from the first relationship and a 17 year old daughter from the second. The victim of his most current offenses, which occurred on April 10, 1995, is his third common law spouse, and mother of his two year old son.

[5] On April 10, 1995 and while the applicant was on statutory release, the applicant was involved in a domestic dispute with his spouse during which the applicant threatened her life and forced her into the trunk of his car. He was apprehended by the police after a high speed chase, which occurred with the victim still in the trunk of the car.

[6] On May 16, 2000 the Correctional Service of Canada rendered a decision to release the applicant on statutory release; that position changed after allegations that the applicant had assaulted his spouse and uttered threats on September 30, 2000, during a private family visit. Allegedly, the applicant threatened to rape his spouse's son and daughter in front of her, and nail their baby to a tree. The applicant was ordered detained by the Board on May 11, 2001, and that detention was confirmed after a subsequent detention review on May 9, 2002. The Appeal Division's affirmation of the National Parole Board's May 9, 2002 decision is the subject of this judicial review.

THE APPEAL DIVISION'S DECISION

[7] The main issue considered by the Appeal Division was whether the Board based its May 9, 2002 decision on erroneous and incomplete information. The applicant's position in the appeal was that the Board accepted erroneous contentions posited by CSC staff and contract psychologists, failed to consider the opinions of various experts that did not support detention, and failed to consider the views and recommendations of the Case Management Team that concluded in 2000 and 2002 that the applicant was not likely to commit an offence causing serious harm or death prior to his WED.

[8] The Appeal Division found the Board's decision to detain was reasonable and based on relevant and reliable information. The Appeal Division reviewed the Board's analysis of new information that might justify modifying the original detention order of May 11, 2001, particularly two clinical reports: one by a Dr. Palmer dated February 25, 2002 ("Palmer Report"), and the other by a Dr. Hucker dated April 12, 2002 ("Hucker Report"). The Appeal Division found that the Board had thoroughly reviewed the reports and addressed any discrepancies in the actuarial scores provided. The Appeal Division noted that although there were variations in the applicant's PCL-R scores, the scores remained high in any event, and the static-99 test classified the applicant in the highest of four categories for sexual recidivism. The new information enabled the applicant to be classified in the psychopathic category with either a high or moderate risk to re-offend violently.

[9] The appeal Division also noted the Board's consideration of the applicant's domestic violence issues, and the risk he posed to an intimate partner upon release. And although the applicant had completed rehabilitation programs, the Board questioned his ability and willingness to put the skills learned to use, especially with respect to his relationship with his common law spouse.

[10] Furthermore, although the Case Management Team recommended cancelling the detention order, the applicant lacked community support for his release. And finally, the Board had reason to question the applicant's credibility because he was found to be evasive, manipulative and selective in his responses during the hearing.

ANALYSIS

[11] This case is fact driven. The applicant has outlined portions of the clinical reports which are favourable to his position, while the respondent contends that the applicant is not entitled to pick and choose among all the reports, only those aspects that are favourable to him. The Court notes that the language of s. 101 of the CCRA gives the Board freedom to consider all relevant information to a case, with the stipulation that the protection of society be paramount. There is no restriction on the Board as to how it weighs all the relevant information.

[12] A judicial review does not give this Court the power to re-weigh evidence or re-hear detention proceedings. What the Appeal Division was required to do was to determine whether there was sufficient evidence to support the conclusion that the new information provided indicated that the applicant was likely to cause harm or death if he was released before his WED.

[13] Both parties point to various aspects of the reports provided by CSC staff, and the psychiatric and psychological experts. As McKeown J. aptly put it in Budreo v. Canada (National Parole Board), [1993] F.C.J. No. 701, reversed in part by Budreo v. Canada (National Parole Board), [1993] F.C.J. No. 1266 (C.A) at para. 32:

I am hearing an application for judicial review and not an appeal. I accordingly have no authority to "second guess" the Board with respect to its finding of facts at least if it appears not to be patently unreasonable. Dubé J. in Hay v. National Parole Board et al (1991), 48 F.T.R. 164 at 168 concluded:

It is not sufficient to demonstrate that the tribunal was not correct in its decisions. The applicant must establish the unreasonableness or the capriciousness of the application of the legislation to his own case ... It is not for this court to assess the validity of the numerous tests and reports from psychiatrists and psychologists who do not totally agree amongst themselves. It is for the Board to determine whether or not it is safe to release the applicant totally or gradually, escorted or unescorted, into the community.

[14] Hay, supra is a similar one to the case at bar. In dealing with the issue of conflicting expert reports Dubé J. states:

The several reports that were filed outlined elements favourable and not favourable to the applicant. In general, the management team reports were more favourable. The medical reports, and more particularly those from a psychiatric panel at the Calgary General Hospital, are more cautious and stress the risks involved in liberating the applicant. It is not for the Court to assess the validity of the numerous tests and reports from psychiatrists and psychologists who do not totally agree amongst themselves. It is for the Board to determine whether or not it is safe to release the applicant totally or gradually, escorted or unescorted, into the community. To quote Strayer J. of this Court in Scott v. National Parole Board [[1988] 1 F.C. 473 at p. 482 (T.D.)], "I have no authority to "second-guess" either panel with respect to their findings of fact, at least if they appear not to be patently unreasonable [emphasis added].

[15] This Court is not prepared to disturb the findings of fact of the Board since they are not

patently unreasonable. The Court agrees that the decision of the Board was reasonable.

ORDER

THIS COURT HEREBY ORDERS THAT:

This application for judicial review is dismissed.

________"Michael A. Kelen" ___________________________

JUDGE

FEDERAL COURT

NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET: T-1636-02

STYLE OF CAUSE: EDWARD ROY SCOTT v. A.G.C.

PLACE OF HEARING: OTTAWA, ONTARIO

DATE OF HEARING: OCTOBER 16, 2003

REASONS FOR ORDER

AND ORDER: THE HONOURABLE MR. JUSTICE KELEN

DATED: OCTOBER 20, 2003

APPEARANCES:

Mr. Philip K. Casey

FOR THE APPLICANT

Mr. Dogan D. Akman

FOR THE RESPONDENT

SOLICITORS OF RECORD:

Mr. Philip K. Casey

Barrister and Solicitor

11 Princess Street, Suite 203

Kingston, ON K7L 1A1

Tel: 613-546-6411

Fax: 613-546-2544