Beaupré v. Canada (Attorney Genera), 2002 FCT 463

Date: 20020425

Docket: T-1341-01

Neutral citation: 2002 FCT 463

Ottawa, Ontario, April 25, 2002

BEFORE: MICHEL BEAUDRY J.

BETWEEN:

ERIC BEAUPRÉ

Plaintiff

and

ATTORNEY GENERAL OF CANADA

Defendant

REASONS FOR ORDER AND ORDER

[1]        This is an application for judicial review by the plaintiff against a decision by the Appeal Division of the National Parole Board (hereinafter "the Appeal Division") on June 18, 2001, in which the Appeal Division affirmed the decision by the National Parole Board (hereinafter "the NPB") to deny the plaintiff parole and day parole.

POINT AT ISSUE

[2]        Did the Appeal Division make a patently unreasonable decision in affirming the NPB's decision?

[3]        That decision was not patently unreasonable.

FACTS

[4]        The plaintiff is serving a term of imprisonment of over 21 years in the La Macaza Institution for attempted murder, robbery, armed robbery, use of a firearm, disguising with intent, possession of a prohibited weapon and escape. The legal date that his sentence expires is October 8, 2007.

[5]        On September 10, 1998, the NPB granted the plaintiff day parole. During this time, the plaintiff committed breaking and entering. Consequently, the plaintiff's day parole was revoked in October 1999.

[6]        Further, in June 2000 the plaintiff tried escaping from the penitentiary where he was imprisoned by appropriating a vehicle owned by the institution.

[7]        On February 15, 2001, the NPB made a decision in which it denied the application for parole and day parole made by the plaintiff.

[8]        On May 21, 2001, the plaintiff appealed the NPB's decision. The Appeal Division dismissed the plaintiff's appeal on June 18, 2001.

[9]        On July 23, 2001, the plaintiff filed the instant application for judicial review of the Appeal Division's decision.

DISPUTED DECISION

[10]      The Appeal Division, chaired by A. Bachand, said at p. 3 of the decision:

[Translation]

The Appeal Division therefore concludes that the decisions made on February 15, 2001, are fair and reasonable. For the reasons given above, it dismisses the appeal and affirms the decisions of February 2001.

PLAINTIFF'S ARGUMENTS

[11]      The plaintiff argued that the Appeal Division erred in affirming the NPB's decision.

[12]      The plaintiff submitted that the Appeal Division's decision was contradictory in itself, completely without foundation and contrary to the available information.

[13]      The plaintiff argued that the NPB's decision was not supported by the facts in the record and was patently unreasonable.

DEFENDANT'S ARGUMENTS

[14]      The defendant alleged that the Appeal Division correctly upheld the NPB's decision, since it was reasonable.

[15]      In the defendant's opinion, the NPB's decision is reasonable since it is based on "relevant and reliable information", as indicated in Costiuc v. Canada (Attorney General), [1999] F.C.J. No. 241 (F.C.T.D.).

[16]      The defendant submitted that the conclusions in the Appeal Division's decision were correct in fact and in law and not patently unreasonable.

APPLICABLE LEGISLATION

[17]      Section 101 of the Corrections and Conditional Release Act (hereinafter "the Act") gives the purpose and principles of conditional release, continued imprisonment and long-term supervision:

[18]      Section 102 of the Act gives the purpose and principles of parole:

ANALYSIS

Applicable standard of judicial review

[19]      In Costiuc, supra, Tremblay-Lamer J. set out the legal framework within which this Court may judicially review a decision by the NPB Appeal Division. Tremblay-Lamer J., said at para. 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.

[20]      The Court should not intervene in the case at bar as, contrary to what the plaintiff argued, the Appeal Division's decision does not meet the test stated by Tremblay-Lamer J. in Costiuc.

NPB's decision

[21]      In accordance with s. 101(a) of the Act, the NPB's primary purpose is to protect society. In keeping with that purpose, the NPB denied the plaintiff day parole and parole. The NPB examined several relevant documents in arriving at this decision: the plaintiff's prison and criminal record; the plaintiff's admissions; statistical information; a psychological assessment filed in December 2000.

[22]      Under s. 102 of the Act, the NPB must assess the risk represented by the plaintiff to society in its review. In Costiuc, Tremblay-Lamer J. said in this regard, at para. 8:

It was up to the NPB to weigh the evidence and draw its own conclusions.

[23]      At p. 4 of the NPB's decision, dated February 15, 2001, the NPB wrote:

[Translation]

The Board questioned you at length on your criminal record and your understanding of your cycle of offences. It was able to see that you have not developed over the years any empathy or consideration for people in general, and victims in particular. You committed very violent acts, beating persons solely in order to take property. Though your last repeat offence with violence dates back to 1994, you have nevertheless not been able to refrain from all criminal activity in your last statutory release, as indicated by your latest conviction for breaking and entering. You did not hesitate to go and steal from one of your friends, a single-parent mother, who was not well off. Your low regard for others remains very much a factor of your social and community functioning.

[24]      At p. 5 of the decision, the NPB said in conclusion:

[Translation]

The Board accordingly concludes it would be premature at this stage of our sentence to grant you any form of release. Although you appear to have responded positively to the framework you previously had in day parole community projects and regular day parole, the Board considers that you have to build your credibility and that your impulsiveness makes your conduct unpredictable, which makes it an undue risk to society.

[25]      The NPB has a broad discretion in granting day parole. In the case at bar, the plaintiff committed breaking and entering while on day parole. Consequently, the NPB relied on reliable and relevant information in coming to the conclusion that the plaintiff still presented an undue risk to society.

Case management team's recommendation

[26]      The plaintiff alleged that his case management team supported the granting of his day parole. It should be noted that the NPB is not bound by the recommendations of Correctional Service Canada. In the case at bar, the NPB was not required to follow the case management team's recommendation. This rule was recently confirmed in Costiuc, where at para. 14 Tremblay-Lamer J. said:

The NPB had no duty to approve the case management team's recommendation. It had to make its own assessment. Since the evidence and the record supported its decision it was based on fact, as the Appeal Division found.

[27]      The plaintiff maintained that the NPB looked only at the negative aspects of the plaintiff's record and rendered a patently unreasonable decision by not attaching sufficient weight to the opinion of the psychologist, Fabienne Stiévenart. However, I find that the NPB properly considered the psychological assessment, which at p. 4 reads as follows:

[Translation]

According to a recent psychological assessment filed in December 2000, dependent traits, suicidal behaviour, your tendency to perceive others in cleavage terms and your difficulty living at close quarters with others correspond to a borderline organization of the personality. These psychological factors and the fact that you have limited experience taking responsibility for yourself continue to be associated with the danger you represent of repeat offences. However, the aspects associated with imprisonment and your reflection on your illness may support your motivation towards rehabilitation. The risk that violent offences may be committed is assessed as moderate.

[28]      On reading that decision, I cannot come to any conclusion but that the NPB considered all aspects of the plaintiff's record, negative as well as positive. Its decision was therefore not patently unreasonable.

Appeal Division's decision

[29]      The Appeal Division had the function of ensuring that the NPB's decision was based on relevant and reliable information. In Costiuc, the Court said at para. 8:

As I indicated earlier, the Appeal Division had to ensure that its decision was based on relevant and reliable information.

[30]      The Appeal Division examined the central aspect of the plaintiff's appeal, mainly the reasonableness of the NPB's decision. The Appeal Division summed up the plaintiff's situation at p. 2 of its decision and ruled on his appeal as follows:

[Translation]

We are satisfied that the members were aware of all relevant information in your case, including of course the information raised in your appeal submission. They noted that you are serving an initial federal sentence of over 21 years for violent offences, namely attempted murder, robbery, armed robbery, use of firearms, disguising with intent and so on. They also noted that since your sentence began you have taken several institutional programs and you have not been taking drugs for over seven years. They noted your relatively recent failure when on statutory release, a release which was automatically revoked due to a repeat offence. They also took into account the professional assessments in your record. Nonetheless, after considering all the available information they said they were concerned to find that you do not appear to have learned from your mistakes, that your impulsiveness still leads you to improper conduct as you are still unable to assess the consequences of your actions, and that you have yourself admitted that you still act without thinking. They therefore concluded that you had not changed so as to make the risk you represent to society acceptable.

[31]      The Appeal Division accordingly did not make a patently unreasonable decision based on an erroneous finding of fact. The Appeal Division properly affirmed the NPB's decision. In its view, the plaintiff still represents an undue risk to society and it relied on reliable and relevant information in arriving at this conclusion. Consequently, there is in the case at bar no reason to justify this Court's intervention.

CONCLUSION

[32]      For these reasons, this application for judicial review is dismissed without costs.

ORDER

THE COURT ORDERS that:

1.         The application for judicial review is dismissed without costs.

Certified true translation

Suzanne M. Gauthier, C. Tr., LL.L.

                                                    FEDERAL COURT OF CANADA

                                                                 TRIAL DIVISION

                                                          SOLICITORS OF RECORD

FILE:                                                                               T-1341-01

STYLE OF CAUSE:                                                     ERIC BEAUPRÉ and ATTORNEY GENERAL OF CANADA

PLACE OF HEARING:                                                MONTRÉAL, QUEBEC

DATE OF HEARING:                                                  APRIL 8, 2002

REASONS FOR ORDER AND ORDER BY:         BEAUDRY J.

DATE OF REASONS:                                                  APRIL 25, 2002

APPEARANCES:

DANIEL ROYER and PIERRE TABAH                                    FOR THE PLAINTIFF

SÉBASTIEN GAGNÉ                                                                  FOR THE DEFENDANT

SOLICITORS OF RECORD:

LABELLE, BOUDRAULT, CÔTÉ ET ASSOCIÉS                   FOR THE PLAINTIFF

Montréal, Quebec

MORRIS ROSENBERG                                                              FOR THE DEFENDANT

Deputy Attorney General of Canada