Fournier v. Canada (Attorney General), 2004 FC 1124

                                                                                                                                  Date: 20040812

                                                                                                                             Docket: T-1846-03

Citation: 2004 FC 1124

Ottawa, Ontario, August 12, 2004

Present:           THE HONOURABLE MR. JUSTICE HARRINGTON

BETWEEN:

CLAUDE FOURNIER

Applicant

and

ATTORNEY GENERAL OF CANADA

Respondent

REASONS FOR ORDER AND ORDER

[1]         This is an application for judicial review filed by Mr. Fournier under section 18.1 of the Federal Court Act, R.S.C. 1985, c. F-7, as amended, of a decision dated August 5, 2003, by which the Appeal Division of the National Parole Board (NPB) dismissed his appeal and upheld the decision at first instance, explaining that the decision was consistent with the Corrections and Conditional Release Act, S.C. 1992, c. 20 (Act).

FACTUAL CONTEXT

[2]         The applicant has been serving a life sentence for non-capital murder since 1969. This is his second federal sentence. He had been convicted previously for theft of an automobile. In 1991, while he was on parole, he was found in possession of a restricted weapon.

[3]         Mr. Fournier has been given several forms of parole, including day parole, all of which have ended in failure. In every instance, he breached a term of release related to the consumption of alcohol, as well as being unlawfully at large, failing to report to the authorities as he was required to do under the terms of his conditional release.

[4]         The consumption of alcohol was a factor in the non-capital murder. The applicant had spent the day drinking with the victim, a friend who, at the end of the day, showed him some erotic photos of his wife. The applicant reacted by stabbing the victim. The applicant had also consumed alcohol when he was found in possession of a restricted weapon.

[5]         On March 27, 2003, the NPB held a hearing on the applicant's file pertaining to his day parole and conditional release. The Board ruled that it would be an unacceptable risk to grant him parole. On August 5, 2003, the Appeal Division confirmed the NPB decision and dismissed the applicant's appeal. This case is an application for judicial review of the Appeal Division's decision.

IMPUGNED DECISION

[6]         The NPB notes a decrease in the applicant's aggressiveness: since 1998 there has been no disciplinary problem in the institution, and the applicant steers clear of conflict situations and confrontations. The Board notes the recommendations of the case management team, which thinks it is appropriate to stop imposing abstinence as a condition of release owing to the very low probability of recidivism. It notes as well that the applicant wants full parole so he can live in a particular rehabilitation centre, Un Foyer pour Toi, the director of which was present at the Board hearing to speak about his desire to admit the applicant and the strict non-consumption conditions that apply in the centre.

[7]         However, the Board thought that parole in any form was not the appropriate thing at this point. In its opinion, living in a minimum security institution (the applicant's situation at the time of the hearing before the Board) constitutes [translation] "a progression toward a form of release adapted" to the applicant's needs. The Board writes:

[translation] ... the Board is obliged to observe that your pattern of conduct unfortunately ensures that you revert to drinking, you stop using your resources when unlawfully at large and you avoid requesting the help you need at the appropriate time. Your consumption of alcohol is closely linked to your potential for recidivism and there is no indication that you are now able to use an outside resource specialized in addiction but not certified by the Correctional Service of Canada, as you are asking.

[8]         The NPB [translation] "concludes therefore, that the risk would be unacceptable [to grant the applicant] any form of conditional release at this point in [his] sentence".

[9]         The Appeal Division has jurisdiction to reassess the issue of the risk of recidivism and to substitute its judgment for that of the board members who examined the case. The Appeal Division upheld the NPB decision:

[translation] All in all, the Board found that your risk was not acceptable in the community on the basis of a number of relevant factors, including your many attempts at release all of which have failed; your constant relapses in the consumption of intoxicating substances; your total lack of compliance with your conditions; your inability to accept the constraints; your impulsiveness and your repeated incidents of being unlawfully at large; your reoffending while unlawfully at large; your lack of credibility; your lack of introspection and failure to acknowledge the full scope of your crime; your inability to request the assistance you need from your resources and case workers; and the fact that you have not taken any programs since your most recent incarceration in January 2002. As the Board correctly told you at the end of the hearing, you have not displayed any progress or significant changes.

ISSUES

[10]       Did the NPB and the Appeal Division err in law by not analyzing correctly the risk that the applicant represented at the time of his application for conditional release?

[11]       Did the NPB render a decision that amounts to cruel and unusual punishment within the meaning of section 12 of the Canadian Charter of Rights and Freedoms?

APPLICANT'S SUBMISSIONS

[12]       The applicant submits that the NPB did not take into account all of the relevant and available information. It is apparent from the decision, he argues, that most of the assessments that were favourable to him were not considered.

[13]       The NPB failed to take into account the low degree of danger represented by the applicant's return to society as well as its own statutory duty to make the least restrictive determination.

[14]       The NPB issued a decision that constitutes cruel and unusual punishment within the meaning of section 12 of the Charter, since the applicant has been serving a sentence for 35 years without repeating any offence of a similar nature; the decision to keep the applicant in an institution does not allow his rehabilitation in any way; furthermore, the case management team is of the opinion that the applicant does not represent a risk to society.

RESPONDENT'S SUBMISSIONS

[15]       The respondent draws attention to the numerous reports in the applicant's inmate file, which the NPB had before it when making its decision. These reports note the applicant's failure to acknowledge the relationship between his consumption of alcohol and intoxicating substances and his irresponsible and criminal actions.

[16]       The respondent notes that although the case management team reports indicate that the applicant can consume alcohol and not recidivate in new offences, it is the NPB's responsibility to weigh the risk the applicant represents to society. The NPB is not bound in any way by the findings of the applicant's case management team.

[17]       The respondent argues that there is no indication that the NPB did not take into account all of the relevant information in this case.

[18]       On the constitutional question, the respondent argues that this issue should not be determined by the Court because the applicant's punishment is not disproportionately excessive. It expresses society's disapproval of the criminal acts and is clearly not in violation of the standards of decency of Canadian society.

STATUTORY PROVISIONS

Canadian Charter of Rights and Freedoms, Schedule B, Constitution Act, enacted as Schedule B to the Canada Act 1982, (U.K.) 1982, c. 11.

Corrections and Conditional Release Act, S.C. 1992, c. 20.

ANALYSIS

Standard of judicial review

[19]       In Cartier v. Canada (Attorney General), [2003] 2 F.C. 317 (C.A.), the Federal Court of Appeal considered the jurisdiction of the Appeal Division in its review of a decision made by the Board, and the standard of review that ought to apply to the Appeal Division's decision when it upholds a decision of the Board. Section 147 of the Act spells out the grounds of appeal and the powers of the Appeal Division, which may range up to ordering the immediate release of the offender. In the latter case, the Division must be satisfied both that the Board's decision was not reasonable and that a delay in releasing the offender from imprisonment would be unfair. Décary J.A., writing on behalf of the Court of Appeal, found that the criterion of reasonableness of the decision applies both to the decision of the Appeal Division and the decision of the Board:

[8]            Paragraph 147(5)(a) appears to indicate that Parliament intended to give priority to the Board's decision, in short to deny statutory release once that decision can reasonably be supported in law and fact. 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 which is alleged in the case at bar-is an unreasonable error by definition as it affects the Board's very function.

[9]            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.

[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.

[20]       So it must be determined whether the Appeal Division's decision is reasonable, which ultimately means a determination as to the reasonableness of the Board's decision.

[21]       In Law Society of New Brunswick v. Ryan, [2003] 1 S.C.R. 247, the Supreme Court of Canada had occasion to explain more fully what is meant by the standard of reasonableness simpliciter. The Supreme Court confirms that it is necessary to begin with a pragmatic and functional analysis to determine the applicable standard, in terms of the following four factors: "(1) the presence or absence of a privative clause or statutory right of appeal; (2) the expertise of the tribunal relative to that of the reviewing court on the issue in question; (3) the purposes of the legislation and the provision in particular; and (4) the nature of the question - law, fact, or mixed law and fact" (Ryan, paragraph 27).

[22]       The Act provides for an appeal to the Appeal Division, but this appeal is a sort of hybrid creature, as Décary J.A. says in Cartier, supra, which has features of both an appeal and judicial review. There is no doubt that the Board is an expert in its field and in the assessment of the evidence. The purpose of the Act and of the provision in question, as expressed in sections 100 and 101 of the Act, is primarily the protection of the public. Finally, the determination of an offender's right to conditional release is a question of mixed law and fact, that is, the application of the terms of the Act to a particular situation.

[23]       The Board's expertise and the purpose of the Act certainly call for some deference on the part of a Court sitting in review of the Appeal Division's decision; however, since the Appeal Division has extensive powers to vary the Board's decision, since it is a question of mixed law and fact, and in view of the Cartier decision, cited above, I am of the opinion that it is indeed the standard of reasonableness simpliciter that applies in this case.

[24]       In paragraph 47 of Ryan, the Supreme Court explains: "The standard of reasonableness basically involves asking 'After a somewhat probing examination, can the reasons given, when taken as a whole, support the decision?'" In paragraph 48, the Court states: "An unreasonable decision is one that, in the main, is not supported by any reasons that can stand up to a somewhat probing examination. Accordingly, a court reviewing a conclusion on the reasonableness standard must look to see whether any reasons support it."

[25]       The Court goes on to say, in Ryan, that it is not a question of determining whether the decision of the lower court or tribunal is correct. Its reasonableness lies not in the fact that the reviewing Court would have reached the same result, but in the fact that it is based on reasons that are reasonably supported in law and in the evidence in the case. There will be no finding of unreasonableness unless the reasons given cannot support the impugned decision.

[26]       I am of the opinion that in this case the intervention of the Court would not be warranted since the reasons advanced by the Board and upheld by the Appeal Division can withstand a more extended examination. The Board, and accordingly the Appeal Division, must weigh a number of factors in order to reach a reasonable decision. In this case two main considerations are at stake: the protection of society, which is paramount, and the search for the least restrictive determination consistent with the first consideration.

[27]       According to the case management team's report (2003), and the most recent psychological assessment (2001), the applicant presents only a low risk of recidivism. In his entire past there are only two violent incidents, both linked to alcohol. There are a large number of releases that failed but in each instance (other than a theft in 1986 and possession of a weapon in 1991), it was because of a breach of two conditions: not to drink and to report to the authorities. There is no disciplinary offence in his record since 1998. However, it is necessary to consider the fact that the crimes that were committed - non-capital murder, theft, illegal possession of a firearm - are linked to the consumption of alcohol. The applicant cannot or will not recognize the problem of impulsiveness linked to his consumption of alcohol. It is therefore not unreasonable for the Board to find that a risk continues, related to alcohol.

[28]       The Board criticizes the applicant for his lack of introspection, the fact that he does not comply with the conditions, his lack of credibility. The lack of introspection and the applicant's denial of the relationship between consumption of substances and criminality are cause for the Board to fear possible recidivism.

[29]       The applicant cites in his submissions Steele v. Mountain Institution, [1990] 2 S.C.R. 1385. In that judgment, the Supreme Court allowed the appeal of an inmate who, after 35 years in the penitentiary, argued that further prolonging his incarceration amounted to cruel and unusual punishment within the meaning of section 12 of the Canadian Charter of Rights and Freedoms. The Court considered in this judgment the three criteria that then applied under paragraph 16(1)(a) of the Parole Act, R.S.C. 1985, c. P-2: whether the inmate had derived the maximum benefit from imprisonment, whether the inmate's reform and rehabilitation would be furthered by parole, and whether the inmate's release would not constitute an undue risk to society.

[30]       In that case, the Supreme Court held that prolonging imprisonment would not serve any purpose, and in view of the duration of the imprisonment any such prolongation would constitute an infringement of the right guaranteed by section 12 of the Charter.

[31]       The Appeal Division noted that the facts in Steele are distinguishable from the case at bar. In fact, the problem is quite different: Steele was a sexual offender who had been sentenced to an indeterminate sentence after being declared a dangerous offender. However, there are two quite similar aspects: alcoholism and the duration of the sentence.

[32]       The Supreme Court of Canada indicates in Steele that the indeterminate sentence per se is not contrary to the Charter. What may become contrary is the application to the individual case. The applicant here is sentenced to life for a murder committed in 1969. The question that must be asked, in light of the Steele judgment, is not whether the sentence is fair under the Charter, but whether the denial of parole can be justified in light of the evidence and the circumstances. It is necessary to apply carefully the criteria set out in the Act, the only guarantors of possible release in an indeterminate sentence case. The Supreme Court expresses this idea in the following way, in Steele:

[67]         It is only by a careful consideration and application of these criteria that the indeterminate sentence can be made to fit the circumstances of the individual offender. Doing this will ensure that the dangerous offender sentencing provisions do not violate s. 12 of the Charter. If it is clear on the face of the record that the Board has misapplied or disregarded those criteria over a period of years with the result that an offender remains incarcerated far beyond the time he or she should have been properly paroled, then the Board's decision to keep the offender incarcerated may well violate s. 12. In my opinion, this is such a case.

[33]       The criteria at the time were those cited above; today, section 101 of the Act provides, on the one hand, that the protection of society be the paramount consideration in the determination of any case, and, on the other hand, that parole boards make the least restrictive determination consistent with the protection of society.

[34]       It appears that the Board took these criteria into account, as the Steele decision enjoins it to do. The Board thought that the applicant still needed minimum security supervision, and relied on the evidence in the record in so deciding.

[35]       In Steele, the Supreme Court states that non-compliance with the criteria provided constitutes a violation of section 12. The pointlessness of the measure, once the maximum effect of imprisonment has been exceeded, makes the sentence "grossly disproportionate" within the meaning of R. v. Smith, [1987] 1 S.C.R. 1045, in which the Supreme Court defined what is meant by an excessive sentence.

[36]       The criteria having been amended, the line that must now be drawn in determining what would constitute a cruel and unusual application of the current provisions remains to be determined. It is not certain that the failure to impose the least restrictive sentence constitutes cruel and unusual punishment. However, the analysis in Steele is useful insofar as it helps to identify the factors that must be considered in determining the reasonableness of the impugned decision. Accordingly, I would not rule on a breach of section 12 of the Charter in this case, but I think the Board and the Appeal Division did take into account the criteria set out in the Act for denying the applicant's parole.

[37]       For these reasons, I would dismiss the application for judicial review. I wish to make clear that this decision does not take into account some events that were subsequent to the hearing of the application.

ORDER

THIS COURT ORDERS that the application for judicial review be dismissed.

With costs, fixed in the amount of $500.

          "Sean Harrington"

                    Judge

Certified true translation

Jacques Deschênes, LLB

FEDERAL COURT

SOLICITORS OF RECORD

DOCKET:                                           T-1846-03

STYLE:                                                CLAUDE FOURNIER

and

ATTORNEY GENERAL OF CANADA

PLACE OF HEARING:                     MONTRÉAL, QUEBEC

DATE OF HEARING:                        JULY 21, 2004

REASONS FOR ORDER

AND ORDER:                                    HARRINGTON J.

DATE OF REASONS:                       AUGUST 12, 2004

APPEARANCES:

Pierre Tabah                                                                  FOR THE APPLICANT

Dominique Guimond                                                      FOR THE RESPONDENT

SOLICITORS OF RECORD:

Labelle, Boudrault, Coté et Ass.                                     FOR THE APPLICANT

Montréal, Quebec

Morris Rosenberg                                                          FOR THE RESPONDENT

Deputy Attorney General of Canada