Date: 20040326
Docket: T-1339-03
Citation: 2004 FC 468
Montréal, Quebec, March 26, 2004
Present: The Honourable Mr. Justice Harrington
BETWEEN:
JEAN-YVES MIGNEAULT
Applicant
and
ATTORNEY GENERAL OF CANADA
Respondent
REASONS FOR ORDER AND ORDER
HARRINGTON J.
[1] Mr. Migneault refused the possibility of release because this release had a residence requirement.
[2] The applicant is seeking judicial review, under section 18.1 of the Federal Court Act, R.S.C. 1985, c. F-7, as amended, of a decision dated July 7, 2003, by the National Parole Board (the Appeal Division), upholding the National Parole Board's (the NPB) decision, dated May 27, 2003, that the applicant not be released before the expiration of his sentence according to law, pursuant to subsection 130(3) of the Corrections and Conditional Release Act, S.C. 1992, c. 20) (the Act).
FACTUAL BACKGROUND
[3] The applicant has been serving a sentence of 12 years, 4 months and 28 days, which began on January 30, 1992, for the offences of sexual assault with a weapon, possession of weapons, robbery, use of a firearm and escaping from lawful custody. The date of expiration of his sentence is August 15, 2004. However, his statutory release date was May 29, 2003.
[4] In preparing for the applicant's statutory release, his case management team believed that the residence requirement was the least restrictive measure possible, given his serious sexual problems, his unpredictability, his great inflexibility and his refusal to cooperate. This requirement was the only measure that could make the risk assumable by the community.
[5] On March 18, 2003, police officers came to the institution to take a DNA sample. When he was talking to them, the applicant mentioned that his case management team was planning to request a residence requirement for him. He told them that, if this were the case, he had no intention of respecting it. He even said that he was ready to serve an additional year in a penitentiary rather than have a residence requirement imposed on him.
[6] On March 19, 2003, the applicant repeated what he had told the police officers to his parole officer and told him that, even if the NPB imposed this condition on him, he had no intention of reporting to the halfway house.
[7] On March 21, 2003, the applicant's spouse told the parole officer that she was aware of her husband's intentions and that she supported him.
[8] As a result of these new factors, the parole officer drafted an "Assessment for Decision", dated April 28, 2003, in which he recommended that the applicant remain in detention until the expiration of his sentence.
[9] On May 27, 2003, the NPB denied the applicant's release because it was persuaded that he would commit an offence causing serious harm. The NPB also noted the comments of the applicant's case management team to the effect that, without the supervision of a halfway house, the risk that he posed would no longer be assumable in the community. On July 7, 2003, the Appeal Division affirmed the NPB's decision.
IMPUGNED DECISION
[10] The Appeal Division of the NPB said that the NPB's decision was reasonable on the basis of the new information obtained within six months of the statutory release date, May 29, 2003. This new information, which the applicant had told the police on March 18, 2003, included the fact that the applicant had no intention of showing up at the halfway house when he was released. The Appeal Division went on to write that, even if the applicant had, in the past, expressed his disagreement with a residence requirement, he had never said so before, firmly and openly. In light of the relevant information about his violent criminal activity, his impulsiveness and his intolerance to any intervention, the decision was justified and satisfied the requirements established in paragraph 129(3)(a) of the Act.
ISSUE
[11] The only issue is whether the decision by the Appeal Division of the NPB, dated July 7, 2003, is one that warrants the intervention of the Court.
APPLICANT'S SUBMISSIONS
[12] The applicant submits that it is not sufficient to have just any information for the board member to dismiss an application for release. It must be new information showing that the applicant will commit a serious crime. The applicant points out that the information indicating that he would not comply with the residence requirement does not amount to reasonable grounds to believe that he will commit such offences, and does not qualify as new information. Further, the applicant submits that the NPB's Appeal Division relied on the applicant's general record to make its decision and that it was in bad faith. The applicant then points out that the referral should have been made no later than six months - and not a few days - before the date of his release, in order to comply with the Act.
[13] The applicant submits that nobody filed an affidavit indicating that he will commit a serious crime if he is released. He also claims that the board member was biased against him because the same board member sat on his first conditional release request and ruled against him.
RESPONDENT'S SUBMISSIONS
[14] The respondent takes note of the applicant's admission, in his notice of application for judicial review, that the information of March 18, 2003, and March 20, 2003, was new. The referral may then take place less than six months before the statutory release when the belief is based on behaviour or on information obtained during those six months. The applicant's case management team had always thought that the residency requirement was the least restrictive measure possible. Once it was known that the applicant had no intention of submitting to this requirement, the risk to the community could not be assumed, given the applicant's criminal problems.
[15] The respondent submits that, in terms of conditional release, section 127 of the Act applies. The NPB has jurisdiction under subsections 129(2) and (3), and section 132, to review the applicant's general record (see D.T. v. Canada (Attorney General), [2003] F.C.J. No. 1452). Furthermore, section 101 explains the principles guiding the Board in achieving the purpose of conditional release: Knapp v. Canada (Attorney General), [1997] F.C.J. No. 1535.
ANALYSIS
Standard of review
[16] Tremblay-Lamer J., in Costiuc v. Canada (Attorney General), [1999] F.C.J. No. 241, defined the appropriate standard in this case:
[6] 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.
Application - Information
[17] Subsection 129(3) of the Act provides that a decision of this kind can be made less than six months before the statutory release date when the belief is based on the offender's behaviour or on information obtained during these six months.
[18] Beginning with the fact that the case management team considered that the residency requirement would be the least restrictive measure possible in his case, it is clear that the risk to the community was still acceptable. After reviewing the file and reading all of the psychological and other reports, I think it is reasonable that this measure is necessary and compatible with the applicant's behaviour. Thus, from the moment that the applicant said that he did not intend to comply with this condition, the risk could no longer be assumed.
The new fact
[19] This fact had already been mentioned by the applicant on many occasions, but not with the conviction that he expressed before the police officers and his parole officer. This was corroborated by his wife. Speaking about the new information, dated March 18, 2003, and March 20, 2003, at page 6 of the Applicant's Record, he writes:"[TRANSLATION] The applicant admits, from the outset, that these were new elements . . ." Therefore, the applicant cannot claim that this information was not new.
[20] With regard to the applicant's argument that not just any information is sufficient, but that there must be information demonstrating that the applicant will commit a serious crime, we must refer to paragraphs 13 and 14 of the Standard Operating Practices (700-19), Detention and the Policy Manual, Volume 1 No. 6, which read as follows:
[13] Examples of new information may include, but are not limited to, the following:
(a) the receipt from an outside source of previously unavailable details concerning the offender's criminal activities in the community (e.g., a report of police investigations);
(b) revelations from a third party (e.g., spouse, former accomplice) that the offender had threatened death or serious harm or that the offender remains involved in drug related activity or is planning to commit a serious drug offence;
(c) changed circumstances affecting the viability of the offender's release plan;
(d) the findings of a new psychological/psychiatric assessment.
[14] In such instances, the new information may not, if reviewed on its own, be conclusive in regards to the existence of reasonable grounds to believe that the offender is likely to commit, prior to sentence expiry, an offence involving death or serious harm, a sexual offence involving a child, or a serious drug offence. However, the information, when linked to other elements or patterns in the offender's history may become the deciding factor in determining whether or not there are reasonable grounds.
[Emphasis added.]
[21] In this case, the changed circumstances are the fact that the applicant mentioned that he had no intention to respect a residency requirement during his statutory release. This fact, in itself, is not conclusive in regard to the existence of reasonable grounds to believe that the offender is likely to commit, prior to sentence expiry, a serious crime. However, there are other behavioural elements in the offender's history which, in a global sense, are conclusive that there are reasonable grounds (See Dupuis v. Canada (Attorney General), [2002] F.C.J. No. 667 on this point). These elements are sexual disorders and personality disorders exhibited by the applicant; his intolerance towards intervention and receiving community supervision; the unpredictability and impulsiveness of his acting out, his two escapes and, inter alia, his unlawful freedom in the past.
[22] The Act, in subsection 132(1), expressly lists the factors which must be taken into consideration in assessing section 129. It states that the decision-maker must consider any factor that is relevant in determining the risk, including the number and the brutal nature of the offences committed causing physical harm; the seriousness of the offence; the use of weapons in the commission of the offences and the high degree of indifference as to the consequences of his behaviour.
[23] In this case, the NPB considered all of the factors provided by the Act, the recommendations of the various reports in the record, and the applicant's case management team, in deciding to order that he not be released.
[24] For all of these reasons, I dismiss this application for judicial review.
ORDER
THE COURT ORDERS that the application for judicial review be dismissed, without costs.
"Sean Harrington"
Judge
Certified true translation
Kelley A. Harvey, BA, BCL, LLB
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: T-1339-03
STYLE OF CAUSE: JEAN-YVES MIGNEAULT
Applicant
and
ATTORNEY GENERAL OF CANADA
Respondent
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: March 22, 2004
REASONS: THE HONOURABLE MR. JUSTICE HARRINGTON
DATE OF REASONS: March 26, 2004
APPEARANCES:
Jean-Yves Migneault FOR THE APPLICANT
Dominique Guimond FOR THE RESPONDENT
SOLICITORS OF RECORD:
Morris Rosenberg FOR THE RESPONDENT
Deputy Attorney General of Canada
Montréal, Quebec
Email this Content