D.T. v. Canada (Attorney General), 2003 FC 1147

Date: 20031003

Docket: T-598-03

Citation: 2003 FC 1147

Ottawa, Ontario, this 3^rd day of October, 2003

Present:           THE HONOURABLE MR. JUSTICE SIMON NOËL

BETWEEN:

                                                                              D.T.

                                                                                                                                                       Applicant

                                                                                 and

                                            THE ATTORNEY GENERAL OF CANADA

                                                                                                                                                   Respondent

                                   AMENDED REASONS FOR ORDER AND ORDER

[1]                 This is an application for judicial review of an Appeal Division of the National Parole Board (the "Appeal Division") decision dated March 25, 2003, wherein it dismissed the applicant's appeal and affirmed the National Parole Board's (the "Board") decision of December 3, 2002, to order the applicant's detention until the expiration of the sentence being served at the time, pursuant to paragraph 130(3)(a) of the Corrections and Conditional Release Act, S.C. 1992, c. 20 (the "Act").

FACTS

[2]                 The applicant is currently an inmate at Cowansville Institution in Quebec, a medium security federal penitentiary. He is serving a term of imprisonment of 5 years and 3 months for 13 different offences committed on two occasions against his ex-spouse, including but not limited to sexual assault with a weapon, forcible confinement and criminal harassment, anal intercourse, letter threat to cause death or harm. In order to have a better understanding of the issues, I think that it is important to be aware of the situation as it existed when the offences were committed and a review of the trial Judge's summary of events given prior to sentencing the applicant may be of some help:

"For the purposes of today's sentencing, I will summarise the testimony as succinctly as possible. Regarding the 19 October, 1998 charge, I have heard from Mr Jean-Pierre Robert, of the Sûreté du Québec, who indicated that he arrived on the scene during the 19 October incidents, i.e. the confinement and the second sexual assault.

Following a call, he arrived around 11:35 a.m. It should be noted that the period of confinement lasted about 5 hours, ... it was actually more than that. Mr Robert arrived at 11:35 a.m., but the confinement had been ongoing since about 8 o'clock that morning. Over a period of approximately 8 hours;

Mr Robert, witnessed the incidents from 11:35 a.m. p.m. onward ; he saw the accused yielding a knife. The accused was bleeding. He saw the victim crouched down in the bath with a towel around her body.

He saw the accused put the knife to the victim's throat. When we speak of a knife, during all of the October 17^th incidents, it must be understood that we are referring to an Exact-O knife...

As stated at trial, I found for the victim beyond any reasonable doubt and accepted her version of the facts for the 17 September 98 incidents. She tells us that on that evening, September 17^th, she was sleeping with her son B.

The accused arrived late and slapped her in the face as he said:

"Hey, wake up".

He wanted to speak to her about an outing to the Champlain Mall she had gone on previously with a male co-worker.

The accused dragged her out of bed; she fell to the ground. Afterwards, he brought her to the living room. Eventually he said:

"On va jouer une game, et on va prendre chacun un couteau". (We are going to play a game and each of us will take a knife)

The accused laid the victim down on the ground and covered her mouth and nose with his hand. Eventually, she returned to the children's bedroom; then she went back to her room.

The accused returned to the bedroom and ordered her to get up. He dragged her on her behind all the way to the living room. According to M.N.'s testimony, he forced her to undress so that she could not escape. He threatened to burry her. She was afraid; he choked her.

In the end, he started to kiss the victim, as she said - fondled her and told her he wanted to have sex; it was based on the actions that followed and in this context, that I qualified the event as a sexual assault.

After having caressed the victim without her consent, the accused said:

"I am going in anyway".

The victim tells us that she was exhausted, it was the middle of the night; as she says she was disgusted and said:

"Let's do it".

and the accused penetrated her. She had bruises here and there, all over her body; on the neck, chest, wrists, hands and behind her ears.

It should be noted and, as the victim's testimony will make it abundantly clear, at a certain moment, in order to get the victim out of her bed, the accused placed his two thumbs behind each of her ears and brought enough pressure to bear that it caused the victim serious pain.

The victim tells us that she never consented to having sexual relations that evening and the Court found it easy to believe her given the context of sexual assault. The accused was detained pending these charges... the 17 September charges, and was granted a conditional release with strict orders not to communicate with the victim.

And not to attend her dwelling. On the 19^th of October, 1998 at 8 o'clock in the morning, the accused decided to go and see the victim at her home and entered by breaking into the premises. He again wanted to talk with her, somewhat like the first 17 September incident.

The victim told us that, upon the accused's arrival, she had noticed there was something heavy in his pockets which turned out to be the Exact-O knife. In light of the accused's illegal presence, the victim wanted to make a telephone call, but the accused prevented her from doing so by holding her by the neck.

Their son J. then eight years of age, told his father:

"Let her go",

The accused decided to bring the victim to the bathroom. He removed her robe and, to use the victim's expression, leaned her against the counter. He took out his Exact-O and held it close to her eyes.

The accused asked the victim to kill him and he started slitting his wrists. He slapped her and called her a cold bitch, and told her he wanted sex before dying which she did not want and she told him so. Following which, the accused ... slightly cut the victim's breast.

Holding the knife to the victim's neck, the accused asked her to get down on all fours and adopt what she referred to as the doggy position. The accused penetrated the victim vaginally, without her consent and eventually penetrated her anally, still without her consent.

She was crying and the accused said:

"Finally, the bitch is crying".

These are, more or less, the circumstances surrounding the assault. It should be noted that during the entire time she was confined, even once the police had arrived, the victim was kept naked and sometimes had a towel over her body.

She was only permitted to urinate in a small pot and not on the toilet, and was exposed to the police during this whole period of time, mostly from 11:35 a.m. until 4:30 p.m. According to the exhibits submitted, there was blood everywhere in the bathroom.

And the victim had to go about bare foot in this pool of blood that was in the bath as well as on the bathroom floor and the walls. Therefore a climate of extreme violence reigned throughout the incident.

M.N. also testified at sentencing and told the Court that following these incidents she had subsequently experienced problems beyond her physical ailments... it should be noted that a medical report indicated that there was in fact a rectal tear, that was recent and, although it was not amongst the most serious, it was nonetheless a rectal tear resulting from the anal intercourse the accused forced on the victim in this matter.

It is also noted that, during the second incident, the victim stated that the accused told one of the children:

"If you dial 9-1-1, no more mother".

It would appear, and it is reported by some of the police officers as well, that the accused wanted to see the victim suffer because he himself had suffered. It is important to note that all this took place, right from the beginning until September 17^th1998, in the context of a separation (I translate)".                                                   

[3]                 The applicant commenced his sentence on September 22, 1999. As a result, the applicant's statutory release date pursuant to section 127 of the Act was March 23, 2003, and his warrant expiry date is December 21, 2004.

[4]                 In September 2002, Correctional Services of Canada ("CSC") undertook a review of the applicant's case prior to his statutory release date as prescribed in subsection 129(1) of the Act. In an Assessment of decision dated September 20, 2002 (page 154, Respondent Record, vol.1), the CSC concluded pursuant to subparagraph 129(2)(a)(I) of the Act, that the applicant was serving a sentence that included a sentence for an offence set out in Schedule I of the Act, that the commission of the offence caused the death of, or serious harm to another person, and that the applicant was likely to commit an offence causing death or serious harm to another person before the expiration of his sentence according to law.

[5]                 These conclusions were notably based on the fact that the applicant "denies a portion of the offences under his conviction, that his criminal factors have [only] been partially addressed and [that] he persists in refusing to take the required professional assessments". Consequently, the CSC referred the applicant's case to the Board for a detention hearing pursuant to section 130 of the Act, which proceeded by way of a hearing held in November 2003.

[6]                 At the conclusion of the applicant's detention hearing, the Board was satisfied, pursuant to paragraph 130(3)(a) of the Act that the applicant, if released, was likely to commit an offence causing death of, or serious harm to another person before the expiration of his sentence according to law. As a result, the Board ordered that the applicant not be released from imprisonment before the expiration of his sentence.

[7]                 The applicant appealed the Board's decision to the Appeal Division, which subsequently dismissed the applicant's appeal and affirmed the Board's decision on March 25, 2003.

ISSUES

[8]                 As suggested by the respondent, I will summarize the 13 questions raised by the applicant into the following three questions:

1.         Did the Board err in scheduling a detention hearing in the applicant's case?

2.         Was the Board biassed and had a pre-conceived determination of the detention hearing and thus, breached its duty to act fairly?                                

3.         Did the Appeal Division's decision contain an error of law or a patently unreasonable error of fact?                    

THE STANDARD OF REVIEW

[9]                 My colleague Madam Justice Tremblay-Lamer, in Costiuc v. Canada (A.G.), [1999] F.C.J. No. 241 defined the applicable standards of review by providing the grounds for this Court to review a decision of the Appeal Division of the Board's decision. She stated:

"The Appeal Division's function is to ensure that the NPB has complied with the Act and its policies and has observed the rules of natural justice and that its decisions are based on relevant and reliable information. It is only where its findings are manifestly unreasonable that the intervention of this Court is warranted."

[10]         In Cartier v. Canada (A.G.) (2002), 300 N.R. 362, the Federal Court of Appeal held that the standard of review which the Appeal Division must apply with respect to whether the Board committed any errors of law is that of reasonableness:

"The Board is entitled to err, if the error is reasonable. The Appeal Division only intervenes if the error of law or fact is unreasonable. I would be inclined to think that an error of law by the Board as to the extent to which it must be "satisfied" of the risk of release -- an error [page 327] which is alleged in the case at bar -- is an unreasonable error by definition as it affects the Board's very function.

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.

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."

THE ANALYSIS

[11]            With regard to the first issue, the applicant submits that the Board failed, in contravention to its policy, to determine whether the referral by CSC was made in accordance with section 129 of the Act. Alternatively, the applicant submits that the Board's decision to proceed with the detention hearing was unreasonable because it was based on the CSC's conclusion that the applicant had been convicted of an offence causing serious harm, conclusion which the applicant claims is unreasonable. Counsel for the applicant was of the opinion that the facts indicate that it was moderate harm.

[12]            On these arguments, I concur with the respondent's position. In its decision, the Appeal Division clearly indicates at page 3 that the presiding member of the Board declared that it considered the applicant's file to meet the detention referral:

"Mr. T. at the beginning of the hearing, the presiding Board Member indicated that the Board had reviewed your file and "considered that you met the detention referral". She never stated that you met the detention criteria [As opposed to the applicant's submission on bias]."

[13]            Furthermore, at page 2 of its decision, the Appeal Division determined that the Board had considered that the applicant met the referral criteria by simply scheduling the detention hearing:

"Mr. T. the Appeal Division finds that the Board did make a preliminary determination that there was a proper detention referral in your case. It is evident from the file information (sic) that the Correctional Service of Canada was of the opinion that the criteria for referral had been met. The Board has the discretion to determine whether the conclusion of the referring authority is reasonable, and in accepting the referral, it did so in this case.

Mr. T. there was, in the view of the Appeal Division, sufficient relevant file information (sic) to permit the Board to conclude that the CSC's referral was made in accordance with s. 129 of the [...] Act. The Appeal Division sees no reason to disturb the preliminary determination of the Board that there was a proper deferral in you case."

[14]            Section 129 reads:

"129. (1) Before the statutory release date of an offender who is serving a sentence of two years or more that includes a sentence imposed for an offence set out in Schedule I or II or an offence set out in Schedule I or II that is punishable under section 130 of the National Defence Act, the Commissioner shall cause the offender's case to be reviewed by the Service.                                                            

(2) After the review of the case of an offender pursuant to subsection (1), and not later than six months before the statutory release date, the Service shall refer the case to the Board together with all the information that, in its opinion, is relevant to it, where the Service is of the opinion

(a) in the case of an offender serving a sentence that includes a sentence for an offence set out in Schedule I, that

(I) the commission of the offence caused the death of or serious harm to another person and there are reasonable grounds to believe that the offender is likely to commit an offence causing death or serious harm to another person before the expiration of the offender's sentence according to law, or (...) [My emphasis]"

[15]            In my opinion, considering the clear information on file that the victim suffered serious harm as defined by the legislation, the determination with regard to the legitimate referral made by both the Board and the Appeal Division is absolutely reasonable. With regards to the definition of "serious harm", I am inclined to adopt the respondent's submissions at paragraphs 27 to 37 of his memorandum of fact and law which I have summarised and incorporated here.

[16]        Section 99 of the Act defines "serious harm" as "severe physical injury or severe psychological damage".    To help determine the presence of serious harm, the Commissioner of CSC issued Standard Operating Practices 700-04 (SOP 700-04) which provide guidelines for determining whether physical injury (paragraph 49) and or psychological damage (paragraphs 57 and 60) was incurred. However, this SOP is not exhaustive and other criteria can also be used to make a finding. In terms of physical injury, the sentencing judge clearly stated that the victim had bruises all over her body, a slight cut to her breast and a torn rectum.

[17]        For the assessment of psychological damage suffered by a victim, paragraph 57 of SOP 700-04 states that the victim's impact statement can be used as a source to make a determination. The SOP also provides that "severe psychological damage may in some cases be inferred from offence and victim characteristics". The multiplicity and extremely violent nature of the offences including: sexual assault by a spouse with both vaginal and anal penetration, forcible confinement for a period of 8 hours, death threats... all of which took place in front of the victim's young children and police officers; therefore cannot be ignored and provide a sound basis on which an inference of serious harm can be reasonably made.

[18]        Furthermore, paragraph 60 of SOP 700-04 states that at a victim may be seriously harmed although few or none of the other listed factors are present. As the trial judge observed in this matter the children were traumatised as well. He also ventured to say that with these types of assaults inherent trauma can be found even without extensive elaboration and that the 19 October incidents in particular, because of the very long period of confinement, would be especially traumatising.    The victim herself stated:

"The children and I were severely traumatized. It's not an everyday occurrence for children to be taken from their home by armed police and for their mother to be held hostage for more than eight hours in a bathroom with blood all around. I was held for more than 6 hours, naked, in front of police officers, with a construction knife to my throat. And I could go on.

[...]

After the incident I worked really hard so that the three children would remain stable and not become unbalanced. I had to be away from work often, to take them to therapy, see the school psychologist and the teachers, and so on"          

(Respondent's record, pp. 102 & 103)

[19]            Strong arguments were put forward by both parties in this matter particularly regarding the definition of serious harm. However, in this case, the physical and psychological treatment the applicant inflicted on his ex-wife falls clearly within the scope of what serious harm is all about. The sexual aggression, the sodomy and the violence committed by the applicant in my mind, eliminate any doubt as to finding serious harm in this matter. I say this considering not only the physical aggression on the person, but also the psychological impact of such actions. Serious harm cannot only be assessed by physical evidence of brutality such as scars, broken bones or bruises; it must be assessed by considering not only the sexual assault, but the victim's overall situation including the consequences thereafter. The trial Judge's description of the events that took place leave no room for doubt. There is clear evidentiary support to find serious harm in this matter, harm which in my mind cannot be diminished or minimised in anyway.

[20]            Regarding the second issue, namely: if the Board was biassed and had pre-determined the outcome of the detention hearing and thus, breached its duty to act fairly; the applicant submits that the Board had a preconceived view of the case which the Appeal Division failed to discern. The applicant points out three examples to support his allegation: first, that the Board advised the applicant that it was of the view that he met the detention criteria and that he had to convince the members otherwise; second, that the Board was improperly influenced by the presence of the victim, most notably by hearing the disapproving sound she made during the arguments made by the applicant's assistant; and third, that the Board would not believe him on the simple issue of whether or not he could take the anger management program in English until his parole officer intervened and confirmed that he was being truthful..

[21]            With respect to the first example, I must go back to the statement previously quoted at paragraph 12 above, wherein the Appeal Division differentiates the Board member's statement that she found that the applicant's file "met the detention referral", is not the same as the argument put forward by the applicant which is based on the belief that the member said he met "the detention criteria" and therefore would have pre-determined the detention issue prior to the hearing. I find that in this case, the Board was not biassed because it stated only that the referral per se was proper and did not pre-determine that the applicant had met the detention criteria.

[22]            As for the applicant's submission relating to the presence of the victim during the hearing, the Appeal Division found that there is no evidence to suggest that the Board was improperly influenced. The presiding member did not hear the sound the victim made at all and the other Board member admitted having heard the sound. In any event, the Board asked the victim to remain quiet after the incident. I find that the Board did not show bias and the Appeal Division properly addressed the issue in stating that this incident did not influence the Board.

[23]            Regarding the third example, I agree with the respondent that it is a matter of credibility, which the Board had to assess. However, it does not matter whether the Board believed the applicant at first or not because it obtained the parole officer's confirmation of the fact that the applicant could not follow the anger management program in English. Therefore, the decision was not unduly influenced by a credibility issue.

[24]            Keeping in mind that current jurisprudence stipulates that an argument based on bias must be raised at the first opportunity (see Hudon v. The Attorney General of Canada [2001] F.C.T.D. 1113 paragraph 23), I conclude on the second issue that there was no breach of procedural fairness and no evidence of bias in any of the three situations presented by the applicant.

[25]            The third and last issue which this Court must examine, is whether the Board or the Appeal Division's decisions contain an error of law or a patently unreasonable error of fact. I will not go through all of the applicant's submissions as they are mostly questions of fact appreciation. Appreciation of the facts is the heart of the Board's mandate and jurisdiction. The Board and the Appeal Division were satisfied that, if released, the applicant was likely to commit an offence causing serious harm to another person before the expiration of his sentence. Based on my reading of both the decisions of the Board and the Appeal Division, as well as my own appreciation of the information contained in the applicant's file and the respondent's arguments addressing the applicant's submissions (paragraphs 57 to 93 of the Respondent's memorandum of fact and law), I find that the applicant's submissions were duly considered and that the Board's conclusion was reasonable. The Board did not make any error of fact and applied the appropriate law and, since this conclusion is reasonable, the Appeal Division did not make an unreasonable error of fact nor an error of law in confirming the Board's decision.

[26]            One cannot ignore the numerous reports prepared by different case workers all indicating a consistent concern that the applicant continues to be a security threat to those in his close environment. Counsel for the applicant argued that it was not reasonable for the Board to fail to take into consideration among others, that the applicant was married to the victim for 15 years without resorting to violent behaviour, that he had (since being incarcerated) improved, that his instructors had commented positively on his conduct. However, the fact remains that the applicant did not want to be psychologically assessed unless it was done in private with the results kept strictly to himself.

[27]            The reasoning behind this request for privacy was that his case had received much publicity and that he did not want more. That is not acceptable. The applicant, through his behaviour when committing these offences, left no other choice to the Board members but to rely on Stephane Dubé, the neuropsychologist's May 1999 report in which it was concluded that the applicant had: "...significant clinical baggage ... the sadism ... point to psychopathic traits that raise concern ...he may present a serious potential for aggression". If the applicant has in fact improved and wanted the Board to consider this improvement when rendering its decision, it would have been appropriate to have it confirmed by a psychological report. The applicant chose not to and therefore left nothing other than the May 1999 psychological report for the Board or this Court to reasonably consider.

[28]            I also note that at the time of the Board hearing the applicant had finished one personal development program and had begun another one. I note that in a November 2^nd, 1999 report, a criminologist assessed the applicant's needs for personal improvement and identified four programs he should take. After having been incarcerated for more than three years, only one of the four programs had been fully completed in November 2003. The applicant explained that he was unable to follow some of the programs because they were not available in the English language. This may have been the case in his last year of incarceration, but surely other programs were available between the initial recommendation made in November 1999 and his successful completion of the one program in November 2003. Clearly, if one no longer denies having problems and genuinely wants to improve their situation by following a program tailored to suit their needs, I would expect them to seek the earliest possible opportunity to do so. The applicant did not and the Board rightly took notice of it.

                                                  ORDER

THIS COURT ORDERS THAT:

The judicial review is denied and cost shall be granted to the Respondent.

"Simon Noël"

            Judge

                                       FEDERAL COURT

NAMES OF SOLICITORS AND SOLICITORS ON THE RECORD

DOCKET:                                       T-598-03

STYLE OF CAUSE:                      D.T. v. The Attorney General of Canada

PLACE OF HEARING:                 Ottawa, Ontario

DATE OF HEARING:                   September 22, 2003

REASONS FOR ORDER OF       The Honourable Mr. Justice Simon Noël

DATED:                                           October 3^rd, 2003

APPEARANCES:

Ms. Diane MagasFOR THE APPLICANT

Ms. Dominique GuimondFOR THE RESPONDENT

SOLICITORS ON THE RECORD:

MAGAS LAW OFFICEFOR THE APPLICANT

Ottawa (Ontario)

MORRIS ROSENBERGFOR THE RESPONDENT

Deputy Attorney General of Canada