Date: 20010704
Docket: T-1261-00
Neutral citation: 2001 FCT 749
Between:
RÉMY CARTIER
Plaintiff
And:
ATTORNEY GENERAL OF CANADA
Defendant
REASONS FOR ORDER
NADON J.
[1] The case at bar concerns an application for judicial review against a decision made by the Appeal Division of the National Parole Board ("the NPB") on June 16, 2000 dismissing the appeal filed by the plaintiff from an NPB decision denying him release before the legal expiry of his sentence and ordering that he be kept in custody.
[2] By his application for judicial review, the plaintiff is asking this Court to quash the Appeal Division's decision and order that he be released forthwith or granted a re-hearing before the NPB.
STATEMENT OF FACTS
[3] Since January 16, 1990 the plaintiff has been serving a 15-year term of imprisonment for manslaughter. In accordance with the calculation made pursuant to s. 127 of the Corrections and Conditional Release Act, S.C. 1992, c. 20 ("the Act"), the plaintiff's official release date was set at February 13, 2000. However, after reviewing the plaintiff's case prior to his official release, the NPB on January 12, 2000 ordered that he be kept in custody and prohibited his release before his sentence had legally expired, on January 30, 2005. In its reasons the NPB indicated that it was persuaded that if the plaintiff were released he would commit an offence involving serious harm to another person before the expiry of his sentence according to law.
[4] On March 8, 2000 the plaintiff submitted arguments to the Appeal Division of the NPB in support of his appeal of the NPB decision. He made three arguments to the Appeal Division, namely that the NPB had infringed a rule of natural justice during the examination of the plaintiff at the hearing, that it had made an error of law in interpreting s. 132(1) of the Act and that it had based its decision on mistaken or incomplete information.
[5] On June 16, 2000 the Appeal Division dismissed the plaintiff's appeal.[1] On the allegation of an infringement of a rule of natural justice, the Appeal Division said the following:
[TRANSLATION]
We feel we must point out to you that under its mandate the Board has a duty to obtain and take into account all available information when it is required to assess the risk of the case under consideration. A careful review of the tape of your hearing indicated to us that you have had all the latitude required to make your concerns known to the Board, and in particular to deny and/or explain certain information contained in your file. In the present circumstances, we feel that the Board has clearly acted in accordance with and pursuant to its mandate and, consequently, we have not been able to identify any infringement of the rules of natural justice.
On the error of law in interpreting s. 132(1) of the Act, the Appeal Division made the following comments:
[TRANSLATION]
In your case it can be seen, from listening to the tape of your hearing and from a careful reading of the decision rendered, that the Board did consider each of the factors mentioned in the Act when it said it was satisfied there were reasonable grounds to believe that if released you would commit an offence causing serious harm to another person before the expiration of your sentence according to law. The Board took into account the seriousness of the offence for which you are currently serving a sentence of 15 years' imprisonment for manslaughter, the continuance of your conduct in prison directly linking you to acts of violence and individuals noted for their tendency to use violence, and the psychological assessments.
Finally, on the question of mistaken or incomplete information, the Appeal Division came to the following conclusion:
[TRANSLATION]
The facts and/or information mentioned above are contained in your file in one way or another, as well as having been discussed and/or refuted at your hearing, when the Division members found that there were reasonable grounds for not releasing you. Accordingly, we must point out to you that the Appeal Division's function is not to reassess the risk and substitute its judgment for those of the persons who considered your case, but to ensure that the Act and Board policies have been observed, and in addition that the decision made is based on adequate information, which we noted above in this reply to your appeal application.
[6] The Appeal Division concluded that the NPB decision was fair and reasonable, based on relevant, credible and adequate information, consistent with the Act and NPB policies on the prohibition of release and was made in accordance with the rules of fundamental justice.
[7] The plaintiff filed the instant application for judicial review against the NPB Appeal Division's decision on July 17, 2000.
POINTS AT ISSUE
[8] The following points at issue were suggested by the plaintiff and adopted by the defendant:
(i) Did the NPB Appeal Division act without jurisdiction by consisting of only two members, and moreover making decisions at first instance, when the Trial Division in the same case consisted of three members?
(ii) Did the NPB Appeal Division refuse to exercise its jurisdiction by failing to decide whether the Trial Division had infringed a rule of fundamental justice?
(iii) Did the NPB Appeal Division commit an error of law on the tests to be applied in ordering that a person be kept in custody and prohibiting release?
(iv) Did the NPB Appeal Division commit an error of law when it twice maintained that the Trial Division had used the right decision standard in ruling that it had reasonable grounds to believe the plaintiff would commit an offence causing serious harm to another person?
(v) Did the NPB Appeal Division render a decision based on a mistaken finding of fact when it affirmed the Trial Division's decision based on mistaken or unreliable facts?
APPLICABLE LEGISLATION
[9] The relevant sections of the Act are the following:
| 127. (1) Subject to any provision of this Act, an offender sentenced, committed or transferred to penitentiary is entitled to be released on the date determined in accordance with this section and to remain at large until the expiration of the sentence according to law.
(2) Subject to this section, the statutory release date of an offender sentenced before November 1, 1992 to imprisonment for one or more offences shall be determined by crediting against the sentence
(a) any remission, statutory or earned, standing to the offender's credit on that day; and
(b) the maximum remission that could have been earned on the balance of the sentence pursuant to the Penitentiary Act or the Prisons and Reformatories Act, as those Acts read immediately before that day.
(3) Subject to this section, the statutory release date of an offender sentenced on or after November 1, 1992 to imprisonment for one or more offences is the day on which the offender completes two thirds of the sentence.
(4) Subject to this section, the statutory release date of an offender sentenced before November 1, 1992 to imprisonment for one or more offences and sentenced on or after November 1, 1992 to imprisonment for one or more offences is the later of the dates determined in accordance with subsections (2) and (3). . . .
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127. (1) Sous réserve des autres dispositions de la présente loi, l'individu condamné ou transféré au pénitencier a le droit d'être mis en liberté à la date fixée conformément au présent article et de le demeurer jusqu'à l'expiration légale de sa peine.
(2) Sous réserve des autres dispositions du présent article, la date de libération d'office d'un individu condamné à une peine d'emprisonnement avant le 1er novembre 1992 est déterminée par soustraction de cette peine du nombre de jours correspondant à:
a) la réduction de peine, légale ou méritée, dont il bénéficie à cette date;
b) la réduction maximale de peine à laquelle il aurait eu droit sur la partie de la peine qui lui restait à subir en vertu de la Loi sur les pénitenciers et de la Loi sur les prisons et les maisons de correction, dans leur version antérieure à cette date.
(3) La date de libération d'office d'un individu condamné à une peine d'emprisonnement le 1er novembre 1992 ou par la suite est, sous réserve des autres dispositions du présent article, celle où il a purgé les deux tiers de sa peine.
(4) Lorsque les condamnations sont survenues avant le 1er novembre 1992 et le 1er novembre 1992 ou par la suite, la libération d'office survient, sous réserve des autres dispositions du présent article, à la plus éloignée des dates respectivement prévues par les paragraphes (2) et (3). . . .
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130. (1) Where the case of an offender is referred to the Board by the Service pursuant to subsection 129(2) or referred to the Chairperson of the Board by the Commissioner pursuant to subsection 129(3) or (3.1), the Board shall, subject to subsections 129(5), (6) and (7), at the times and in the manner prescribed by the regulations,
(a) inform the offender of the referral and review, and
(b) review the case,
and the Board shall cause all such inquiries to be conducted in connection with the review as it considers necessary.
(2) An offender referred to in subsection (1) is not entitled to be released on statutory release before the Board renders its decision under this section in relation to the offender.
(3) On completion of the review of the case of an offender referred to in subsection (1), the Board may order that the offender not be released from imprisonment before the expiration of the offender's sentence according to law, except as provided by subsection (5), where the Board is satisfied
(a) in the case of an offender serving a sentence that includes a sentence for an offence set out in Schedule I, or for an offence set out in Schedule I that is punishable under section 130 of the National Defence Act, that the offender is likely, if released, to commit an offence causing the death of or serious harm to another person or a sexual offence involving a child before the expiration of the offender's sentence according to law . . .
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130. (1) Sous réserve des paragraphes 129(5), (6) et (7), la Commission informe le détenu du renvoi et du prochain examen de son cas - déféré en application des paragraphes 129(2), (3) ou (3.1) - et procède, selon les modalités réglementaires, à cet examen ainsi qu'à toutes les enquêtes qu'elle juge nécessaires à cet égard.
(2) Le délinquant dont le cas est examiné aux termes du paragraphe (1) ne peut être libéré d'office tant que la Commission n'a pas rendu sa décision à son égard.
(3) Au terme de l'examen, la Commission peut, par ordonnance, interdire la mise en liberté du délinquant avant l'expiration légale de sa peine autrement qu'en conformité avec le paragraphe (5) si elle est convaincue:
a) dans le cas où la peine d'emprisonnement comprend une peine infligée pour une infraction visée à l'annexe I, que le délinquant commettra, s'il est mis en liberté avant l'expiration légale de sa peine, soit une infraction causant la mort ou un dommage grave à une autre personne, soit une infraction d'ordre sexuel à l'égard d'un enfant . . .
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| 132. (1) For the purposes of the review and determination of the case of an offender pursuant to section 129, 130 or 131, the Service, the Commissioner or the Board, as the case may be, shall take into consideration any factor that is relevant in determining the likelihood of the commission of an offence causing the death of or serious harm to another person before the expiration of the offender's sentence according to law, including(a) a pattern of persistent violent behaviour established on the basis of any evidence, in particular,
(i) the number of offences committed by the offender causing physical or psychological harm,
(ii) the seriousness of the offence for which the sentence is being served,
(iii) reliable information demonstrating that the offender has had difficulties controlling violent or sexual impulses to the point of endangering the safety of any other person,
(iv) the use of a weapon in the commission of any offence by the offender,
(v) explicit threats of violence made by the offender,
(vi) behaviour of a brutal nature associated with the commission of any offence by the offender, and
(vii) a substantial degree of indifference on the part of the offender as to the consequences to other persons of the offender's behaviour;
(b) medical, psychiatric or psychological evidence of such likelihood owing to a physical or mental illness or disorder of the offender;
(c) reliable information compelling the conclusion that the offender is planning to commit an offence causing the death of or serious harm to another person before the expiration of the offender's sentence according to law; and
(d) the availability of supervision programs that would offer adequate protection to the public from the risk the offender might otherwise present until the expiration of the offender's sentence according to law.
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132. (1) Le Service et le commissaire, dans le cadre des examens et renvois prévus à l'article 129, ainsi que la Commission, pour décider de l'ordonnance à rendre en vertu de l'article 130 ou 131, prennent en compte tous les facteurs utiles pour évaluer le risque que le délinquant commette, avant l'expiration légale de sa peine, une infraction de nature à causer la mort ou un dommage grave à une autre personne, notamment:
a) un comportement violent persistant, attesté par divers éléments, en particulier:
i) le nombre d'infractions antérieures ayant causé un dommage corporel ou moral,
ii) la gravité de l'infraction pour laquelle le délinquant purge une peine d'emprisonnement,
iii) l'existence de renseignements sûrs établissant que le délinquant a eu des difficultés à maîtriser ses impulsions violentes ou sexuelles au point de mettre en danger la sécurité d'autrui,
iv) l'utilisation d'armes lors de la perpétration des infractions,
v) les menaces explicites de recours à la violence,
vi) le degré de brutalité dans la perpétration des infractions,
vii) un degré élevé d'indifférence quant aux conséquences de ses actes sur autrui;
b) les rapports de médecins, de psychiatres ou de psychologues indiquant que, par suite d'une maladie physique ou mentale ou de troubles mentaux, il présente un tel risque;
c) l'existence de renseignements sûrs obligeant à conclure qu'il projette de commettre, avant l'expiration légale de sa peine, une infraction de nature à causer la mort ou un dommage grave à une autre personne;
d) l'existence de programmes de surveillance de nature à protéger suffisamment le public contre le risque que présenterait le délinquant jusqu'à l'expiration légale de sa peine.
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| 146. (1) There shall be a division of the Board known as the Appeal Division, consisting of not more than six full-time members designated by the Governor in Council on the recommendation of the Minister from among the members appointed pursuant to section 103, and one of those members shall be designated Vice-Chairperson, Appeal Division.
(2) A member of the Appeal Division may not sit on an appeal from a decision in which the member participated.
(3) A member of a panel of the Appeal Division that orders a new review of a case pursuant to subsection 147(4) may not sit on the panel of the Board that reviews the case or on a panel of the Appeal Division that subsequently reviews the case on an appeal.
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146. (1) Est constituée la Section d'appel composée d'un maximum de six membres de la Commission - dont le vice-président - choisis par le gouverneur en conseil, sur recommandation du ministre, parmi les membres à temps plein nommés en vertu de l'article 103.
(2) Un membre de la Section d'appel ne peut siéger en appel d'une décision qu'il a rendue.
(3) De même, le membre d'un comité de la Section d'appel qui ordonne un nouvel examen en vertu du paragraphe 147(4) ne peut faire partie d'un comité de la Commission qui procède au réexamen ni d'un comité de la Section d'appel qui par la suite est saisi du dossier en appel.
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PLAINTIFF'S ARGUMENTS
Question 1
[10] At the hearing Mr. Royer, the plaintiff's counsel, informed me that he was discontinuing his arguments on the first question.
Question 2
[11] Before the Appeal Division, the plaintiff challenged the interpretation given by the NPB in its decision to statements taken from Cartier v. Canada (Attorney General) (1998), 165 F.T.R. 209 (F.C.T.D.), in which he was also a plaintiff. The plaintiff indicated that his counsel had pointed out to the Appeal Division that in Cartier, supra the discussion turned on the adequacy of the sharing of information, not the reliability of the reasons.
[12] The plaintiff maintained that on this point the Appeal Division only confirmed that his counsel had drawn this fact to its attention and gave no response on whether the NPB had infringed a rule of natural justice by supporting its decision with statements taken from Cartier, supra. In the plaintiff's opinion, the Appeal Division should have made its views clear, since its mandate clearly indicates that it must ensure that the NPB has observed the rules of fundamental justice.
[13] Accordingly, the plaintiff maintained that the Appeal Division refused to exercise its jurisdiction when it failed to respond to the plaintiff's allegation that there had been an infringement of a rule of fundamental justice.
Question 3
[14] The plaintiff first noted that under s. 127 of the Act an inmate has a statutory right to release when he has completed two-thirds of his sentence, but in exceptional cases the NPB may prohibit his release. The plaintiff noted that in his case, since he is serving a sentence for manslaughter, the applicable test was that in s. 130(3)(a) of the Act.
[15] The plaintiff further indicated that in s. 132(1) the Act gives a non-exhaustive list of factors which the NBP should take into account in assessing a parole risk. The plaintiff argued that common sense requires that several of these tests should be taken together for the NPB to be satisfied that the offender will commit an offence causing death or serious harm to another person before the expiry of his sentence according to law. In the plaintiff's submission, contrary to what the Appeal Division maintained the four factors set out in s. 132(1) of the Act should be assessed cumulatively. In the plaintiff's view, these factors taken in isolation cannot reasonably lead to a conclusion that the NPB is satisfied the offender will commit an offence causing death or serious harm to another person.
[16] In the case at bar, the plaintiff indicated that the factors listed in s. 132(1)(b) and (c) had not been met. In the plaintiff's view the NPB made an error of law in interpreting the factor in para. (d). Then, as regards factor (a), the plaintiff noted that it was divided into seven parts and the wording of the paragraph necessarily implies that several parts must be seem to exist in order to support a conclusion of persistent violent behaviour. In the plaintiff's view, only the points regarding the seriousness of the offence for which the sentence is being served and regarding the offender's degree of indifference as to the consequences of his acts were met, since the test regarding explicit threats of violence was based only on two unreliable pieces of information. In the plaintiff's submission, if the NPB concluded that the plaintiff would commit an offence causing death or serious harm to another person based solely on these two tests, this was a patently unreasonable interpretation of the Act.
Question 4
[17] The plaintiff argued that the Act requires the NPB to be satisfied that the offender will commit an offence causing death or serious harm to another person if he is to be deprived of his statutory release. The plaintiff maintained that the Appeal Division erred twice when it mentioned that the legal standard required was for the NPB to be satisfied that there were reasonable grounds to believe the inmate would commit such an offence. The plaintiff accordingly considered that the Appeal Division made an error of law as to the test applicable in the case at bar and this made its decision illegal.
Question 5
[18] The plaintiff maintained that when the NPB concluded that there had been persistent violent behaviour and he would commit an offence causing death or serious harm to another person, it relied on evidence from protected information which has never been regarded by the police as sufficiently reliable to be used as a basis for criminal charges. In the plaintiff's view, the Appeal Division had the power to reassess the risk the plaintiff presented, and it should have determined whether the information used to make the decision was relevant and reliable. The plaintiff argued that since the NPB relied on speculation or interpretation based on unreliable or irrelevant facts, the Appeal Division drew a mistaken conclusion when it indicated that the facts and information in question were contained in the plaintiff's file in one way or another and had been discussed or refuted at the hearing.
DEFENDANT'S ARGUMENTS
Question 2
[19] The defendant maintained that there was nothing in the Appeal Division's decision to indicate that it had in any way refused to exercise its jurisdiction. The defendant argued that the Appeal Division considered this aspect of the appeal filed by the plaintiff, since it indicated that it carefully reviewed the arguments made by the plaintiff and concluded there had been no infringement of the rules of fundamental justice.
Question 3
[20] The defendant maintained that the plaintiff's interpretation, that common sense required that several tests set out in s. 132(1) of the Act should all be met for the NPB to be satisfied that the offender would commit an offence causing death or serious harm to another person before his sentence had expired according to law, cannot be validly derived from the Act. In the defendant's submission, the phrase "any factor that is relevant" added to the word "including" clearly means that the NPB can use one or more of the factors listed in paras. (a) to (d) together with any other factor which may be submitted to it and which may be relevant to the decision-making process. The defendant indicated that the Federal Court of Appeal upheld this interpretation when it adopted the decision rendered by Noël J. at trial in Knapp v. Canada (Attorney General) (1997), 138 F.T.R. 201 (F.C.T.D.), aff. by (1998), 229 N.R. 22 (F.C.A.).
[21] The defendant further alleged that the submissions made in paras. 40 to 49 of the plaintiff's memorandum are completely without basis and that the Appeal Division made no error of law in analyzing the tests to be met for it to order that the plaintiff be kept in custody.
Question 4
[22] The defendant argued that a decision which is the subject of judicial review cannot be microscopically analyzed and the plaintiff cannot contend that there was an error by analyzing each word taken by itself. In the defendant's submission, for a decision to be vitiated by patently unreasonable error the reasons given must be examined as a whole to determine whether the test has been properly applied. In the case at bar, the defendant considered that there was no doubt the NPB correctly applied the tests set out in the Act and that mentioning the reasonable grounds can only be a clerical addition which cannot in any way be interpreted as a patently unreasonable error.
Question 5
[23] The defendant maintained that there was evidence to support the decision to deny the plaintiff his request for parole and that it was not possible to conclude there had been a patently unreasonable error in the case at bar. The defendant further alleged, in reply to the plaintiff's argument, that whether the authorities laid criminal charges or not had no relevance and could have no impact on assessing an application for release. In the defendant's view, the evidence before the NPB allowed it to reach the conclusion that it did.
[24] Finally, the defendant maintained that the Appeal Division's decision was valid in fact and in law and it was not sufficient for the plaintiff to give a new interpretation of the facts: he had to show that a patently unreasonable error was made by the NPB Appeal Division. In the defendant's view, that had not been shown.
ANALYSIS
Question 1
[25] As the plaintiff discontinued his arguments on this point, I will not deal with this question.
Question 2
[26] On the second question, I entirely agree with the defendant's comments that there is no indication that the Appeal Division refused to exercise its jurisdiction. The Appeal Division clearly indicated in its decision, at p. 2, that it had considered the plaintiff's allegation of an infringement of a rule of natural justice. Contrary to what the plaintiff argued, the Appeal Division made its views clear and offered a reply to the question of whether the NPB had infringed a rule of natural justice, doing so in para. 3 on p. 2:
[TRANSLATION]
In the present circumstances, we feel that the Board has clearly acted in accordance with and pursuant to its mandate and, consequently, we have not been able to identify any infringement of the rules of natural justice.
I consider that the plaintiff's arguments that the Appeal Division refused to exercise its jurisdiction are without merit.
Question 3
[27] Section 132(1) of the Act provides that the NPB should take any factor that is relevant into consideration in determining the likelihood that an offence will be committed causing death or serious harm to another person. That provision also sets out a list of factors to be considered, and this list is not exhaustive since it is introduced by the word "including".
[28] In the plaintiff's submission, contrary to what the Appeal Division maintained at p. 3 of its decision, the factors set out in s. 132(1) of the Act should be assessed cumulatively. In my view, there is no basis for this argument by the plaintiff. First, the wording of s. 132(1) of the Act does not support the plaintiff's interpretation. The words "any factor that is relevant" (my emphasis) indicate in my view that the NPB should only consider the relevant factors, whether one or more of the factors listed in s. 132(1) or other factors which are submitted to it and which it regards as relevant, not all the factors set out in s. 132(1) of the Act. Additionally, the word "including" used to introduce the list of factors indicates that these are only examples of relevant factors, not that all these factors should be considered by the NPB.
[29] The plaintiff submitted no precedent in support of his interpretation of s. 132(1) of the Act. The defendant indicated that the decision of Noël J. in Knapp, supra, which was also upheld by the Federal Court of Appeal, is directly at variance with the interpretation suggested by the plaintiff. In paras. 21 to 23 of his decision, Noël J. confirmed the interpretation suggested by the wording of s. 132(1) of the Act:
In my opinion neither the wording of the section nor the Board's interpretation renders it vulnerable to a s. 7 challenge. Section 132 of the Act directs the Board to consider "any factor" relevant to the likelihood of recidivism "including a pattern of persistent violent behaviour established on the basis of any evidence". The section goes on to enumerate, in particular, seven items of evidence which can serve to establish the existence of a "pattern of persistent criminal behaviour".
A plain reading of the section indicates that the focus of the enquiry is the determination of "likelihood" and not whether some or all of the stated factors are present. It is also clear that the section does notpurport to identify all relevant factors in making this determination, nor does it purport to set out a comprehensive list of the type of evidence which can serve to establish the existence of "a pattern of persistent criminal behaviour".
That of course does not make the section moot for vagueness. The legislation frames the debate in a very coherent manner by reference to stated criteria. It also allows for the consideration of any other factor relevant to the question as to whether a given offender is likely to again cause death or serious harm to another person. That is a legislative recognition that unidentified factors can be referred to in applying s. 132 and as relevance is the statutory precondition to the consideration of any such factor, the section cannot be said to be unconstitutional vague. [My emphasis.]
Consequently, in my view the plaintiff was wrong to maintain that the NPB should consider the factors set out in s. 132(1) of the Act cumulatively.
[30] On the plaintiff's allegations that the factors before the NPB were insufficient for it to come to the conclusion that the plaintiff was likely to commit an offence causing death or serious harm to another person before expiration of his sentence according to law, in my opinion these too are without basis. In its decision the NPB discussed in detail a significant number of factors that could reasonably lead to the conclusion that there was a likelihood the plaintiff would commit an offence causing death or serious harm to another person before expiration of his sentence according to law.
[31] In my view, there is no evidence to suggest that in coming to its conclusion the NPB relied on any erroneous principle or on irrelevant or inappropriate factors or that the Appeal Division made an error in accepting the NPB's reasons. Additionally, the Appeal Division discussed s. 132(1) of the Act at length and gave adequate consideration to the factors taken into account by the NPB at the time of its decision.
Question 4
[32] Section 130(3)(a) of the Act, which applies to the plaintiff, provides that the NPB may order that an offender not be released from imprisonment before the expiration of his sentence if it is satisfied that if released the offender is likely to commit an offence causing death or serious harm to another person. It is thus clear from reading this provision that the Act requires that for the NPB to deny parole to an inmate it must be satisfied that the offender is likely to commit an offence causing death or serious harm to another. It is not sufficient for it to believe or have reasonable grounds to believe that the offender will commit an offence causing death or serious harm to another person.
[33] In the case at bar, the NPB said the following on this point in its decision, at p. 6:
[TRANSLATION]
The NPB is satisfied that you are likely to commit a violent offence causing serious harm to the victim before expiry of the sentence and so it orders that you be kept in custody.
In my view, there is no doubt that the NPB did not err in applying the test.
[34] However, as the plaintiff pointed out, the Appeal Division referred twice to the concept of "reasonable grounds to believe", at p. 3:
[TRANSLATION]
In your case it can be seen, from listening to the tape of your hearing and from a careful reading of the decision rendered, that the Board did consider each of the factors mentioned in the Act when it said it was satisfied there were reasonable grounds to believe that if released you would commit an offence causing serious harm to another person before the expiration of your sentence according to law. [My emphasis.]
and at p. 4:
[TRANSLATION]
The facts and/or information mentioned above is contained in your file in one way or another, as well as having been discussed and/or refuted at your hearing, when the Division members found that there were reasonable grounds for not releasing you. [My emphasis.]
[35] In both cases, the reference to the concept of "reasonable grounds to believe" appears in a context in which the Appeal Division only adopted and explained the NPB's reasons. The Appeal Division did not at any time indicate that the NPB applied the wrong test and it seems to me that it also did not seek to alter the test applied by the NPB.
[36] Although it is an error for the Appeal Division to say that the NPB said it was [TRANSLATION] "satisfied there were reasonable grounds to believe" that the plaintiff would commit an offence if released, this is not an error of law in interpreting the Act, as the plaintiff suggested. The Appeal Division only summarized the NPB's decision. It is simply a mistranscription of the NPB's reasons which, in my view, has no impact on the legal test to be used pursuant to s. 130(3)(a) of the Act or on the Appeal Division's decision.
[37] Consequently, since the NPB applied the proper test in assessing the evidence, I consider that the plaintiff's arguments must be dismissed.
Question 5
[38] Finally, the plaintiff maintained that the NPB relied on speculations or interpretations derived from unreliable or irrelevant facts and that the Appeal Division made an error in not determining whether the information was relevant and reliable.
[39] Once again, in my view, these allegations are unfounded. First, as the defendant indicated, whether the authorities lay criminal charges against the plaintiff is not relevant in connection with the application for parole. Then, contrary to what the plaintiff said, the Appeal Division considered the evidence and the facts in support of the NPB's decision and in its decision mentioned that it had proceeded to make such a review, at p. 4:
The facts and/or information mentioned above are contained your file in one way or another, as well as having been discussed and/or refuted at your hearing, when the Division members found that there were reasonable grounds for not releasing you. Accordingly, we must point out to you that the Appeal Division's function is not to reassess the risk and substitute its judgment for those of the persons who considered your case, but to ensure that the Act and Board policies have been observed, and in addition that the decision made is based on adequate information, which we noted above in this reply to your appeal application.
[40] I consider that the evidence in the record which was before the NPB sufficed for it to arrive at the conclusion which it did, and also enabled the Appeal Division to say that the decision made by the NPB was based on adequate information.
CONCLUSION
[41] Since, in my opinion, the Appeal Division made no error in the case at bar which would allow me to intervene, the application for judicial review will be dismissed with costs to the defendant.
O T T A W A, Ontario
July 4, 2001
Certified true translation
Suzanne M. Gauthier, trad. a., LL.L.
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
COURT No.: T-1261-00
STYLE OF CAUSE: Rémy Cartier v. Attorney General of Canada
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: April 17, 2001
REASONS FOR ORDER BY: NADON J.
DATED: July 4, 2001
APPEARANCES:
Daniel Royer PLAINTIFF
Nadia Hudon DEFENDANT
SOLICITORS OF RECORD:
Labelle, Boudrault, Côté et Ass. PLAINTIFF
Montréal, Quebec
Morris Rosenberg DEFENDANT
Deputy Attorney General of Canada
Montréal, Quebec
[1] The NPB Appeal Division's decision is to be found at p. 7 of the plaintiff's record.
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