Date: 20100601
Docket: T-929-09
Citation: 2010 FC 496
Toronto, Ontario, June 1, 2010
PRESENT: The Honourable Mr. Justice Crampton
BETWEEN:
CECIL
SCOTT
Applicant
and
THE
ATTORNEY GENERAL OF CANADA
Respondent
AMENDED REASONS FOR JUDGMENT
AND JUDGMENT
[1]
This
is an application for judicial review of a decision of the National Parole
Board Appeal Division, which upheld a decision of the National Parole Board
(the “Board”) denying the Applicant, Mr. Cecil Scott, full parole for
deportation.
[2]
Mr.
Scott alleges that the Board committed several reviewable errors in the course
of reaching its decision and that, by affirming the Board’s decision, the
Appeal Division’s decision is unreasonable.
[3]
Specifically,
Mr. Scott alleges that the Board:
i.
erred
in law in taking into consideration the fact that, as a citizen of the U.K. who
would be deported immediately and deemed to have completed his sentence upon
being released on full parole, he would not be subject to any ongoing
supervision of his medication regime;
ii.
erred
in law by stating, at the end of its hearing, that he should “investigate the
possibility of an international transfer of parole prior to any future hearing”;
iii.
reached
an unreasonable decision by ignoring the many positive factors in his case, engaging
in erroneous speculation and describing his risk to re-offend violently as
“significant”; and
iv.
breached
section 7 of the Canadian Charter of Rights and Freedoms, Part I of the Constitution
Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c.
11.
[4]
Mr.
Scott further alleges that, by affirming the Board’s decision, the Appeal
Division’s decision was unreasonable.
[5]
For
the reasons that follow, I have concluded that the decisions of both the Appeal
Division and the Board were reasonable and that neither the Appeal Division nor
the Board erred in law in the course of reaching their respective decisions.
I. Background
[6]
Mr.
Scott is serving a life sentence for attacking and stabbing to death a
seventeen year old victim in an elevator in 1996. He has a long history of
treatment for psychiatric conditions and has frequently failed to follow his
medication regime, although it appears that he may have only had one such
failure since 2002.
[7]
On
February 24, 1998, he was convicted on a charge of second degree murder and
sentenced to life imprisonment, with eligibility for parole after serving 15
years of his sentence. On March 6, 2002, his sentence was varied to allow for
eligibility for parole after serving 10 years of his sentence.
[8]
As
a citizen of the U.K., Mr. Scott will be deported to the U.K. immediately
upon his release, either upon completion of his sentence or upon being granted
full parole.
In 2008, he
applied for full parole with deportation to the U.K.
[9]
Mr.
Scott’s case management team at Correctional Service of Canada (CSC) supported
his application for parole. In addition, his most recent psychiatric and
psychological assessments, undertaken in 2007 and 2008, respectively, were
favourable. However, those assessments were premised on continued medical
supervision and adherence to his medication regime. Indeed, the psychological
assessment stressed that continued psychiatric monitoring of Mr. Scott is
essential because if his mental status deteriorates it is likely that his risk
of violent recidivism will increase. This emphasis on continued monitoring and
adherence to his medication regime was consistent with prior assessments dating
back to 1998.
[10]
An
official with Interpol in London confirmed in writing that authorities in the U.K. “will not
recognize any foreign parole or licence conditions, so any release and return [of
Mr. Scott] to the UK will be unconditional.”
[11]
Mr.
Scott’s release plan focused on him living with his parents (who are in their
80s), getting a job in a field in which he has experience, remaining on his prescribed
medication, obtaining support from Prisoners Abroad (which confirmed that it is
willing to assist him in reintegrating into British society), and obtaining
medical support from his sister, who was formerly a nurse and worked at a
hospital with mental health patients. Mr. Scott’s father attested that should
Mr. Scott be released on parole, he would reside with his parents and that his
parents would ensure that upon his arrival in the U.K. he would be registered
with a licensed psychiatrist.
II. Relevant Legislation
[12]
Pursuant
to paragraph 50(b) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27
(IRPA), a removal order made in respect of a foreign national who has been
sentenced to a term of imprisonment in Canada is stayed until the person’s
sentence has been completed.
[13]
Subsection
128(3) of the Corrections and Conditional Release Act, S.C. 1992, c. 20
(CCRA) states:
|
(3) Despite subsection (1), for the purposes of
paragraph 50(b)
of the Immigration and Refugee Protection Act and section 40 of the Extradition
Act, the sentence of an offender who has been released on parole,
statutory release or an unescorted temporary absence is deemed to be
completed unless the parole or statutory release has been suspended,
terminated or revoked or the unescorted temporary absence is suspended or
cancelled or the offender has returned to Canada before the expiration of the
sentence according to law.
|
|
(3) Pour l’application de l’alinéa 50b) de
la Loi sur l’immigration et la protection des réfugiés et de l’article
40 de la Loi sur l’extradition, la peine d’emprisonnement du
délinquant qui bénéficie d’une libération conditionnelle d’office ou d’une
permission de sortir sans escorte est, par dérogation au paragraphe (1),
réputée être purgée sauf s’il y a eu révocation, suspension ou cessation de
la libération ou de la permission de sortir sans escorte ou si le délinquant
est revenu au Canada avant son expiration légale.
|
[14]
Pursuant
to subsection 128(4) of the CCRA, “an offender against whom a removal order has
been made under the [IRPA] is ineligible for day parole or an unescorted
temporary absence until the offender is eligible for full parole.”
[15]
The
practical effect of the foregoing provisions and the aforementioned
confirmation from Interpol London is that Mr. Scott (i) will be deported to the
U.K. as soon as he is eligible for full parole, (ii) will not be subject to any
state supervision or monitoring, including of his medical treatment, in the
U.K.; and (iii) will not be released on day parole or unescorted temporary
absence within Canada.
[16]
Section
3 of the CCRA states:
|
3. The purpose of the federal correctional system is
to contribute to the maintenance of a just, peaceful and safe society by
(a)
carrying out sentences imposed by courts through the safe and humane custody
and supervision of offenders; and
(b)
assisting the rehabilitation of offenders and their reintegration into the
community as law-abiding citizens through the provision of programs in
penitentiaries and in the community.
|
|
3. Le système correctionnel vise à contribuer au
maintien d’une société juste, vivant en paix et en sécurité, d’une part, en
assurant l’exécution des peines par des mesures de garde et de surveillance
sécuritaires et humaines, et d’autre part, en aidant au moyen de programmes
appropriés dans les pénitenciers ou dans la collectivité, à la réadaptation
des délinquants et à leur réinsertion sociale à titre de citoyens respectueux
des lois.
|
[17]
The
full text of section 128 of the CCRA as well as certain other legislation
discussed in this decision is set forth in Annex A to this decision.
III. Decisions Under Review
[18]
Mr.
Scott seeks judicial review of the Appeal Division’s decision dated May 4,
2009. However, the issues raised in Mr. Scott’s submissions pertain to the Board’s
decision dated November 21, 2008. The Attorney General’s submissions in
response focused on the Appeal Division’s decision.
[19]
In
Cartier v. Canada (Attorney General), 2002 FCA
384, [2002] F.C.J. No. 1386, at paras. 8 and 9, it was noted that the Appeal
Division’s jurisdiction is significantly limited by the express terms of s. 147
of the CCRA. In short, the Appeal
Division can intervene only if the Board committed an error described in
paragraphs 147(1)(a) – (e), and only if that error was unreasonable.
[20]
In
these circumstances, on a further application to this Court, “[t]he 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.”
(Cartier, above, at paragraph 10. See also Aney v. Canada (Attorney
General), 2005 FC 182, [2005] F.C.J. No. 228, at paragraph 29; and Ngo
v. Canada (Attorney General), 2005 FC 49, [2005] F.C.J. No. 71, at
paragraph 8.)
A. The Board’s Decision
[21] After
reviewing the circumstances surrounding Mr. Scott’s offence and his prior
mental history, the Board briefly discussed the victim impact statement on file
and Mr. Scott’s lack of contact with the criminal justice system prior to his
index offence.
[22]
The
Board then noted various things that may have given it some concern. These
included the fact that Mr. Scott seemed to have forgotten many of the events
leading up to his offence, the fact that he acknowledged not having read his
file in preparation for his hearing, his denial of having heard voices since
the age of eleven, and the fact that he seemed visibly confused regarding his
actions during the days leading up to his offence.
[23]
In
addition, the Board noted that Mr. Scott’s flight from the murder scene was
inconsistent with his claim that he committed the murder in an attempt to
obtain psychiatric treatment and protection from himself. The Board further observed
that his numerous hospital admissions provided evidence that he was offered
help when it was needed, and that he admitted not following the advice of his
physician regarding his prescribed medication.
[24]
The
Board then reviewed Mr. Scott’s positive recidivism score, certain personal and
social difficulties he continues to face, his generally satisfactory
institutional conduct, his release plan and the highlights of the psychological
and psychiatric assessments that were conducted on him in 2007, 2008 and 1998. In
the course of discussing those assessments, the Board noted that the 2007 and
2008 assessments may not have taken into account the fact that he would not be
supervised or subject to conditions upon his deportation to the U.K. and may
not have been prepared with the benefit of access to the 1998 assessment. The
Board also discussed Mr. Scott’s history of departing from his medication
regime.
[25]
Ultimately,
the Board declined to grant Mr. Scott parole on the basis that he still
presents a significant level of risk for re-offending in a violent manner. This
conclusion was based on the Board’s view that his release plan was insufficient
to manage his risk, particularly given that (i) he would not be subject to any
release conditions or supervision by authorities in the U.K.; (ii) his
psychiatric and psychological assessments had underscored the importance of
supervision and continued adherence to his prescribed medical regime; and (iii)
his history “is replete with examples” of his failure to follow that regime.
B. The
Appeal Division’s Decision
[26]
Mr.
Scott appealed the Board’s decision to the Appeal Division on the basis that the
Board’s decision was unreasonable, was based on erroneous information and
failed to take into account relevant and reliable information. Mr. Scott also
alleged that the Board erred in law when it suggested at the very end of its
decision that he should investigate the possibility of an international
transfer of parole prior to any future hearing.
[27]
After
carefully reviewing the file, listening to the recording of the Board’s
hearing, summarizing Mr. Scott’s grounds for appeal and discussing the Board’s
decision in detail, the Appeal Division denied Mr. Scott’s appeal.
[28]
With
respect to the claim that the Board’s decision was unreasonable, the Appeal
Division noted that the Board’s risk assessment was fair and in accordance with
the pre-release decision-making criteria set out in law and in the Board’s
policy. The Appeal Division found that the Board took account of the various
positive factors that supported his parole application and reasonably concluded
that they were outweighed by a number of other factors, namely, those mentioned
in Part III. A. above. The Appeal Division rejected the suggestion that the
Board asked unfair questions regarding Mr. Scott’s mental health and concluded
that, on the contrary, those questions were relevant based on the available
file information.
[29]
The
Appeal Division also concluded that it was not unreasonable or erroneous for
the Board to have expressed some concern about whether the authors of the 2008
and 2007 psychiatric and psychological assessments were aware of the fact that
Mr. Scott would not be subject to conditions or the supervision by authorities
in the U.K. if deported
to that jurisdiction. In addition, the Appeal Division found that it was not
unfair or unreasonable for the Board to be concerned about Mr. Scott’s
continued compliance with his medication regime once released into the
community in the U.K., particularly given that he had not satisfied
the Board that he would be subject to appropriate psychiatric supervision and
monitoring.
[30]
Finally,
the Appeal Division rejected the claim that the Board erred in law when it
suggested, at the very end of its hearing, that Mr. Scott should investigate
the possibility of an international transfer of parole prior to any future
hearing. The Appeal Division observed that this comment was made after the
Board had rendered its decision, and that the Board was simply attempting to
make him aware that there are other ways for an offender to effect a removal to
another country.
[31]
Based
on the foregoing, the Appeal Division concluded that the Board’s decision was
(i) reasonable and based on sufficient relevant, reliable and persuasive
information; and (ii) the least restrictive determination consistent with the
protection of society.
IV. Standard of Review
[32]
The
questions of fact, mixed fact and law, and statutory interpretation that Mr.
Scott has raised before this Court are reviewable on a standard of reasonableness.
(Dunsmuir v. New Brunswick, 2008 SCC 9, at paras. 53-54; and Canada (Minister of Citizenship and Immigration) v. Khosa, 2009 SCC 12, at paras. 44-46. See also Sychuk v. Canada (Attorney General), 2009 FC 105, at para. 45; Bouchard v. Canada (National
Parole Board), 2008 FC 248, at para. 37; Tozzi c. Canada (Procureur
general),
2007 CF 825, at para. 32; and Strachan v. Canada (Attorney
General),
2006 FC 155, at para. 15.)
[33]
However, the alleged violation of s. 7 of the Charter
is reviewable on a standard of correctness. (Dunsmuir, above, at para.
55; and Khosa, above, at para. 44.)
[34]
The
various specific issues that have been raised by Mr. Scott all relate to the
Board’s decision. The only separate issue that he has raised with respect to
the Appeal Division’s decision is that it was not reasonable for the Appeal
Division to have confirmed the Board’s decision, given the errors alleged to
have been made by the Board.
[35]
It
follows that if this Court is satisfied that the Board’s decision did not
contravene s. 7 of the Charter and can otherwise reasonably be supported
in fact and in law, the Appeal Division’s affirmation of the Board’s decision also
should be found to be reasonable, unless the Appeal Division committed a
separate error which rendered its decision unreasonable, such as failing to
provide adequate reasons for its decision.
[36]
In Khosa, above, at para. 59, reasonableness was articulated by Justice Ian Binnie as
follows:
Where the reasonableness standard applies, it
requires deference. Reviewing courts cannot substitute their own appreciation
of the appropriate solution, but must rather determine if the outcome falls
within "a range of possible, acceptable outcomes which are defensible in
respect of the facts and law" (Dunsmuir, at para. 47). There might
be more than one reasonable outcome. However, as long as the process and the
outcome fit comfortably with the principles of justification, transparency and
intelligibility, it is not open to a reviewing court to substitute its own view
of a preferable outcome.
V. Analysis
A. Did the Board err in law by considering the fact
that Mr. Scott would not be subject to any ongoing supervision of his
medication regime
in the U.K.?
[37]
Mr.
Scott claims that the Board’s conclusion that his “release plan to Great
Britain
is … insufficient to manage [his] risk” depends on an erroneous assumption that
the Board has a duty or the jurisdiction to protect British society. He alleges
that this incorrect assumption arises from the Board’s interpretation of the
term “society” in s. 3 of the CCRA, above.
[38]
Mr.
Scott notes that this assumption is also reflected in the National Parole
Board Policy Manual, which states, at s. 4.4:
When reviewing cases for deportation,
extradition and voluntary departure Board members must take into consideration
the criteria of undue risk to society (not only Canadian society) and the
facilitating of the offender’s reintegration into the community.
[39]
It
is also relevant to note that, pursuant to paragraph 101(a) of the CCRA, the
“protection of society” is stated to be the paramount consideration in guiding
the Board’s determination of any case. In addition, pursuant to paragraph
102(a), the criteria for granting parole include the Board’s opinion as to
whether “the offender will not, by reoffending, present an undue risk to
society” before the expiration of his or her sentence.
[40]
Mr.
Scott claims that the Board’s interpretation of s. 3 of the CCRA is incorrect,
because the term “society” is defined and qualified in terms of “carrying out
sentences” and “providing programs,” both of which can only be done in Canada. He submits that the
Board has no jurisdiction to protect foreign nations and that this conclusion
is reinforced by the fact that his sentence will be deemed to have been
completed as soon as he is granted full parole. He further asserts that it is
not possible to interpret s. 3 and ss. 128(3) in a way that permits the word
“society” to be given a meaning that extends beyond Canada’s borders. As a result,
he maintains that the Board is obliged to ignore the risk that an offender may
pose to a foreign society upon his removal from Canada.
[41]
Mr.
Scott further submits that the Board must assess the risk that the offender
poses to Canadian society notwithstanding that he will be removed from Canada immediately, if and
when he is granted parole. To do this, he states that the Board must adopt the
legal fiction that the Applicant’s risk would be manageable in Canada, if he were released on
full parole with conditions.
[42]
I do
not find these arguments to be persuasive.
[43]
The
fact that Parliament chose to insert the word “society” in various sections of
the CCRA, including in the articulation of its purposes in s. 3, whereas it
chose the words “Canadian society” in articulating the objectives of the IRPA,
as set forth in s. 3 of that legislation, suggests that it did not intend to
limit the word “society” as it is used in the CCRA to “Canadian society.”
[44]
To
ignore the interests of a foreign society in determining when to deport an
offender believed to pose a significant risk to reoffend for murder or any
other serious crime, and under what circumstances, would result in an extreme
form of international beggar-thy-neighbour policy. Such a policy would be
incompatible with nations’ interest in promoting harmonious relations with each
other, if not their moral obligations towards each other.
[45]
With
respect to the determination of when to deport, I agree with my
colleague Justice Russell that a consideration of Canada’s international interests
likely influenced Parliament to establish eligibility for full parole as the
earliest point in time at which an offender can be removed from Canada,
particularly given the fact that such an offender “is not subject to
supervision by any Canadian authority” (Capra v. Canada (Attorney General),
2008 FC 1212 at para 34). As Justice Russell noted (at para. 36), prior to the
enactment of the CCRA, “[t]here was considerable criticism that some foreign
offenders were receiving lengthy sentences for serious crimes, only to return
to their home country after a matter of months, under no correctional
restrictions.”
[46]
With
respect to the circumstances under which an offender is removed from
Canada, those same international interests, considered together with the fact
that Parliament refrained from qualifying the word “society” in the CCRA (as it
did in s. 3 of the IRPA), provide the jurisdiction for the Board to consider
whether a foreign offender’s release plan sufficiently mitigates the risk to
the foreign society to warrant removing the offender to that society. As my
colleague Justice Phelan observed in Pashkurlatov v. Canada (Attorney General), 2008 FC 153, at para.
10, “[i]t would seem incongruous that a foreign prisoner could obtain parole
without any regard for later supervision upon deportation while a Canadian
prisoner would have to be subject to supervision.
[47]
I
note that in Ng v. Canada, 2003 FCT 781, [2003] F.C.J. No. 1018, at
paras. 21-26, my colleague Justice Gibson also was inclined to interpret the
term “society” as it appears in the CCRA to include “society at large”, rather
than “Canadian society” or some other narrower concept of “society.” However,
on the facts of that case, he did not find it necessary to reach a decision on
this specific issue.
[48]
Mr.
Scott submits that his position is supported that Justice Russell’s use of the
term “Canadian society” in Capra, above. However, that case concerned an
offender who had been granted refugee status and who, therefore, was not
subject to being removed from Canada unless the Minister of Citizenship and
Immigration issued an opinion that he constituted a danger to the public in
Canada. The focus of that case was upon whether subsection 128(4) of the CCRA violated
the Charter by discriminating against the offender on basis of his
citizenship. Accordingly, the issue of whether the term “society” as it appears
in the CCRA contemplates “Canadian society” or “society at large” was not
directly addressed. In this context, Justice Russell’s references to the
protection of Canadian society were entirely appropriate and do not appear to
have been intended to support in any way the position advanced by Mr. Scott. Indeed,
Justice Russell’s conclusion that “[t]he fundamental purpose of the scheme
created by CCRA s. 128(3) – (7) is to ensure the circumstances of impending
removal are factored into how an offender’s sentence is served” is entirely
consistent with my view that Parliament intended to give the Board jurisdiction
to consider the elements of an offender’s release plan abroad in determining
whether to grant full parole to the offender (Capra, above, at
paragraphs 42 and 72).
[49]
In
summary, I agree with the Respondent’s position that word “society” in the CCRA
must be read as including “any society”, rather than just “Canadian society.”
[50]
I
also agree that this interpretation is entirely consistent with the Board’s
obligation, set forth in paragraph 101(b) of the CCRA, to take into
consideration “all available information that is relevant to a case.” I find it
difficult to accept that an offender’s plan for release in the society to which
he will be removed, and the fact that he may not be subject to any ongoing
state or other effective supervision or monitoring, is not “information that is
relevant to a case.”
B. Did the Board err in law in
making the statement at the end of its hearing?
[51]
Mr.
Scott claims that the Board erred in law by stating, at the end of its hearing,
that he should “investigate the possibility of an international transfer of
parole prior to any future hearing.” He submits that this amounted to a
reviewable error because, to transfer his parole, he would first have to be
granted day parole, which, pursuant to subsection 128(4) of the CCRA, is not
possible.
[52]
I
disagree that this constituted a reviewable error. I am satisfied that this
statement and the alleged misunderstanding that the Board may have had with
respect to the options available to Mr. Scott had no bearing whatsoever on the
decision made by the Board.
[53]
As
noted by the Appeal Division, this statement was made after the Board had
rendered its decision. I am satisfied that the Board was simply attempting to
make a helpful suggestion to Mr. Scott. Indeed, I note that the Applicant’s
counsel conceded during the oral hearing before this Court that the Appeal Division’s
interpretation of the Board’s statement was not unreasonable.
C. Did Board err by
ignoring the various positive factors in support of Mr. Scott’s application, by
engaging in erroneous speculation or by describing his risk to re-offend
violently as “significant”?
[54]
In
his written submissions, Mr. Scott baldly asserted that the Board “ignored all
of the positive factors which indicate that [his] risk to re-offend is low and
that his mental illness is in remission through effective medication.” I disagree.
As his counsel conceded at the hearing before this Court, the Board did in fact
discuss many of those factors in the course of its decision. These included Mr.
Scott’s lack of prior contact with the criminal justice system, his favourable
recidivism score, the assessment that he has a high level of motivation with
medium reintegration potential, the fact that he had completed his correctional
plan, his generally satisfactory institutional conduct, and his “quite
positive” behaviour. The Board was not under any obligation to discuss these
factors in greater detail.
[55]
Mr.
Scott also submitted that the Board’s inability to understand the inherently
irrational features of his behaviour, and its attempt to rationalize his
behaviour before and after the murder for which he was convicted, were
unreasonable. I do not agree. It was entirely appropriate for the Board to do
these things as part of its assessment of his risk to reoffend. In any event,
it is clear from the Board’s decision that its refusal to grant full parole
with deportation to Mr. Scott was primarily based on the insufficiency of his
release plan, the fact that he would not be subject to effective supervision
and monitoring, and the fact that his history “is replete with examples of
[his] failure to follow” his prescribed medication regime.
[56]
Mr.
Scott further submits that the Board erred by speculating that the 2007
psychiatric evaluation may not have taken into account his 1998 psychiatric
assessment and may not have taken into account the fact that he would not be
subject to conditions or supervision if granted full parole with deportation to
the U.K. Mr. Scott claims that by reaching such erroneous conclusions, the
Board undermined the value and accuracy of the 2007 evaluation. I am unable to
agree. The Board specifically noted that the 2007 evaluation suggested that Mr.
Scott’s risk for recidivism would increase if he had any relapse, which the
2007 evaluation described in terms of discontinuing his medication and
decompensating. It was this risk, which was also noted in his 1998 and 2008
assessments, that was the principal concern that led to the Board’s refusal to
grant parole.
[57]
Finally,
Mr. Scott asserted that it was unreasonable for the Board to conclude, on the
evidence before it, that he presents a “significant” level of risk for
re-offending in a violent manner. He submitted that the Board should instead
have used the clinical language of “low, moderate, or high” risk that is used
by professional assessors of risk. He submitted that the term “significant” has
no meaning in any clinical or actuarial assessment of risk for violent
recidivism. However, at the oral hearing before this Court, his counsel
conceded that the Board was not under any obligation to use the terms “low,
moderate, or high” in discussing that risk.
[58]
I
am unable to conclude that the Board’s use of the term “significant” in this
case was unreasonable in any way or that the use of that term, rather than
another term which connotes a similar level of risk for violent recidivism that
the Board found to exist, influenced the ultimate conclusion reached by the
Board.
D. Did the Board’s decision
breach s. 7 of the Charter?
[59]
Mr.
Scott submits that the Board’s decision deprives him of his liberty in a
fundamentally unjust manner because (i) it places him in the impossible
position of never being able to establish that he will be subject to state
supervision of his psychiatric care in the U.K.; and (ii) it was influenced by
the misunderstanding that he might be able to transfer his parole to the U.K. He
did not elaborate upon these submissions in his written arguments and they were
not addressed by his counsel in the hearing before this Court.
[60]
I
disagree with both of Mr. Scott’s submissions. As to the latter one, it
suffices to reiterate that the Board’s suggestion that he explore the
possibility of an international transfer of his parole was an attempt to make a
helpful suggestion, at the very end of the Board’s hearing, and after its
decision had been rendered. I am satisfied that any misunderstanding that the
Board may have had regarding Mr. Scott’s options did not influence its decision
in any way.
[61]
As
to the suggestion that the Board’s decision places Mr. Scott in an impossible
position, that is simply not true. An important factor in the Board’s
conclusion was that Mr. Scott’s release plan was, in the Board’s view,
insufficient to manage his risk. It is entirely possible that if he submits a
more robust plan in the future, the Board may reach a different conclusion.
Indeed, this seems to have been contemplated by the Appeal Division’s decision,
in which it was observed that Mr. Scott’s “release plans did not contain any
official letter from a licensed psychiatrist in England stating that he/she
would be prepared to take you as a patient and regularly monitor your mental
health issues and medication region.” While I do not interpret this statement
as suggesting that such a letter may suffice in the absence of additional
release plan components that help to provide significant additional comfort
that Mr. Scott’s risk to reoffend is low, it does suggest that parole is not an
impossibility, as Mr. Scott submits.
[62]
In
any event, I cannot accept that even if it was impossible for Mr. Scott to
obtain parole due to the combination of the unique factors in his case and the
operation of the CCRA, this would necessarily result in a violation of his
rights under s. 7 of the Charter.
[63]
Parole
is one form in which a sentence is served. As the Supreme Court of Canada has
observed, “a change in the form in which a sentence is served, whether it be
favourable or unfavourable to the prisoner, is not, in itself, contrary to any
principle of fundamental justice” (Cunningham v. Canada, [1993] 2 S.C.R.
143, at 152). Likewise, a refusal to grant parole does not necessarily amount
to a deprivation of a liberty interest protected by s. 7 of the Charter
(Cunningham, at 149-151).
[64]
On
the particular facts of this case, I am unable to conclude that the refusal of
the Board and the Appeal Division to grant full parole to Mr. Scott amounted to
a deprivation of any liberty interest protected by s. 7 of the Charter.
Mr. Scott ought to have been aware from the outset of his sentence that he
might not obtain parole with deportation to the U.K. until the
Board decides that he no longer poses a significant risk to reoffend in a
violent manner. The possibility that he might never be granted parole with full
deportation to the U.K. has existed from the very outset of his
sentence.
[65]
In
any event, even if the Board’s decision amounted to a deprivation of a liberty
interest protected by s. 7 of the Charter, that deprivation was not
contrary to the principles of fundamental justice that are contemplated by s.
7. If Mr. Scott’s liberty interest was adversely affected by the decisions of
the Board and the Appeal Division, it was “only to the extent that this [was]
shown to be necessary for the protection of the public” (Cunningham,
above, at 153).
[66]
Moreover,
the procedure by which Mr. Scott’s liberty interest may have been adversely
affected was also in accordance with the principles of fundamental justice. He
was provided with a fair hearing and an opportunity to prepare for that hearing,
he was represented at that hearing by counsel, he had a right to appeal and he exercised
that right to appeal (Cunningham, above, at 153).
E.
Did the Appeal Division Reach an Unreasonable Decision in Affirming the
Board’s
Decision?
[67]
Mr.
Scott’s final submission is that the Appeal Division’s decision affirming the
Board’s decision was unreasonable because the Board’s decision was unreasonable
and because the Board committed the various alleged errors that have been dealt
with above.
[68]
As
noted at paragraph 19 above, the Appeal Division can intervene only if the
Board committed an error described in paragraphs 147(1)(a) – (e), and only if
that error was unreasonable.
[69]
Given
my conclusions that the Board’s decision was not unreasonable and that the
Board did not commit the various errors alleged by Mr. Scott, it follows that
the Appeal Division’s decision was not unreasonable, unless the Appeal Division
committed a separate error that rendered its decision unreasonable, such as
failing to provide adequate reasons for its decision.
[70]
As
discussed in Part III.B. above, the Appeal Division carefully reviewed Mr. Scott’s
file and gave Mr. Scott a full opportunity to present his submissions. It then
addressed each of those submissions in detailed reasons that explained the
basis for its specific conclusions as well as its general conclusion that the
Board’s decision to deny Mr. Scott full parole was reasonable and based on sufficient
relevant, reliable and persuasive information.
[71]
The
Appeal Division also found that the Board’s decision is the least restrictive
determination consistent with the protection of society.
[72]
Based
on the foregoing, I am satisfied that the Appeal Division’s decision was
appropriately justified, transparent and intelligible.
[73]
I
therefore conclude that the Appeal Division’s decision was reasonable.
VII. Conclusion
[74]
Mr.
Scott’s application for judicial review is dismissed with costs.
JUDGMENT
THIS COURT
ORDERS AND ADJUDGES THAT this application for judicial
review is dismissed with costs to the Respondent.
"Paul S. Crampton"
ANNEX “A”
RELEVANT LEGISLATION
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Corrections
and Conditional Release Act,
S.C. 1992, c. 20
Principles
guiding parole boards
101. The
principles that shall guide the Board and the provincial parole boards in
achieving the purpose of conditional release are
(a) that the
protection of society be the paramount consideration in the determination of
any case;
(b) that
parole boards take into consideration all available information that is
relevant to a case, including the stated reasons and recommendations of the
sentencing judge, any other information from the trial or the sentencing
hearing, information and assessments provided by correctional authorities,
and information obtained from victims and the offender;
…
Criteria
for granting parole
102. The Board or a provincial parole board
may grant parole to an offender if, in its opinion,
(a) the
offender will not, by reoffending, present an undue risk to society before
the expiration according to law of the sentence the offender is serving; and
(b) the
release of the offender will contribute to the protection of society by
facilitating the reintegration of the offender into society as a law-abiding
citizen.
…
Continuation
of sentence
128. (1) An
offender who is released on parole, statutory release or unescorted temporary
absence continues, while entitled to be at large, to serve the sentence until
its expiration according to law.
Freedom to
be at large
(2) Except to
the extent required by the conditions of any day parole, an offender who is
released on parole, statutory release or unescorted temporary absence is
entitled, subject to this Part, to remain at large in accordance with the
conditions of the parole, statutory release or unescorted temporary absence
and is not liable to be returned to custody by reason of the sentence unless
the parole, statutory release or unescorted temporary absence is suspended,
cancelled, terminated or revoked.
Deeming
(3) Despite
subsection (1), for the purposes of paragraph 50(b) of the Immigration and
Refugee Protection Act and section 40 of the Extradition Act, the
sentence of an offender who has been released on parole, statutory release or
an unescorted temporary absence is deemed to be completed unless the parole
or statutory release has been suspended, terminated or revoked or the
unescorted temporary absence is suspended or cancelled or the offender has
returned to Canada before the expiration of the sentence according to law.
Removal
order
(4) Despite
this Act or the Prisons and Reformatories Act, an offender against
whom a removal order has been made under the Immigration and Refugee
Protection Act is ineligible for day parole or an unescorted temporary
absence until the offender is eligible for full parole.
Parole
inoperative where parole eligibility date in future
(5) If, before
the full parole eligibility date, a removal order is made under the Immigration
and Refugee Protection Act against an offender who has received day
parole or an unescorted temporary absence, on the day that the removal order
is made, the day parole or unescorted temporary absence becomes inoperative
and the offender shall be reincarcerated.
Exception
(6) An
offender referred to in subsection (4) is eligible for day parole or an
unescorted temporary absence if the removal order is stayed under paragraph
50(a), 66(b) or 114(1)(b) of the Immigration and Refugee Protection Act.
Exception
(7) Where the
removal order of an offender referred to in subsection (5) is stayed under
paragraph 50(a), 66(b) or 114(1)(b) of the Immigration and Refugee
Protection Act on a day prior to the full parole eligibility of the
offender, the unescorted temporary absence or day parole of that offender is
resumed as of the day of the stay.
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Loi
sur le système correctionnel et la mise en liberté sous condition, L.C. 1992,
c.
20
Principes
101.
La Commission et les commissions provinciales sont guidées dans l’exécution
de leur mandat par les principes qui suivent :
a)
la protection de la société est le critère déterminant dans tous les cas;
b)
elles doivent tenir compte de toute l’information pertinente disponible,
notamment les motifs et les recommandations du juge qui a infligé la peine,
les renseignements disponibles lors du procès ou de la détermination de la
peine, ceux qui ont été obtenus des victimes et des délinquants, ainsi que
les renseignements et évaluations fournis par les autorités correctionnelles;
…
Critères
102.
La Commission et les commissions provinciales peuvent autoriser la libération
conditionnelle si elles sont d’avis qu’une récidive du délinquant avant
l’expiration légale de la peine qu’il purge ne présentera pas un risque
inacceptable pour la société et que cette libération contribuera à la
protection de celle-ci en favorisant sa réinsertion sociale en tant que
citoyen respectueux des lois.
…
Présomption
128.
(1) Le délinquant qui bénéficie d’une
libération conditionnelle ou d’office ou d’une permission de sortir sans
escorte continue, tant qu’il a le droit d’être en liberté, de purger sa peine
d’emprisonnement jusqu’à l’expiration légale de celle-ci.
Mise
en liberté
(2)
Sauf dans la mesure permise par les modalités du régime de semi-liberté, il a
le droit, sous réserve des autres dispositions de la présente partie, d’être
en liberté aux conditions fixées et ne peut être réincarcéré au motif de la
peine infligée à moins qu’il ne soit mis fin à la libération conditionnelle
ou d’office ou à la permission de sortir ou que, le cas échéant, celle-ci ne
soit suspendue, annulée ou révoquée.
Cas
particulier
(3)
Pour l’application de l’alinéa 50b) de la Loi sur l’immigration et la
protection des réfugiés et de l’article 40 de la Loi sur l’extradition,
la peine d’emprisonnement du délinquant qui bénéficie d’une libération
conditionnelle d’office ou d’une permission de sortir sans escorte est, par
dérogation au paragraphe (1), réputée être purgée sauf s’il y a eu
révocation, suspension ou cessation de la libération ou de la permission de
sortir sans escorte ou si le délinquant est revenu au Canada avant son
expiration légale.
Mesure
de renvoi
(4)
Malgré la présente loi ou la Loi sur les prisons et les maisons de
correction, l’admissibilité à la libération conditionnelle totale de
quiconque est visé par une mesure de renvoi au titre de la Loi sur
l’immigration et la protection des réfugiés est préalable à l’admissibilité
à la semi-liberté ou à l’absence temporaire sans escorte.
Réincarcération
(5)
La libération conditionnelle du délinquant en semi-liberté ou en absence
temporaire sans escorte devient ineffective s’il est visé, avant
l’admissibilité à la libération conditionnelle totale, par une mesure de
renvoi au titre de la Loi sur l’immigration et la protection des réfugiés;
il doit alors être réincarcéré.
Exception
(6)
Toutefois, le paragraphe (4) ne s’applique pas si l’intéressé est visé par un
sursis au titre des alinéas 50a) ou 66b) ou du paragraphe 114(1) de la Loi
sur l’immigration et la protection des réfugiés.
Exception
(7)
La semi-liberté ou la permission de sortir sans escorte redevient effective à
la date du sursis de la mesure de renvoi visant le délinquant pris, avant son
admissibilité à la libération conditionnelle totale, au titre des alinéas
50a) ou 66b) ou du paragraphe 114(1) de la Loi sur l’immigration et la
protection des réfugiés.
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Canadian
Charter of Rights and Freedoms
Life, liberty
and security of person
7. Everyone
has the right to life, liberty and security of the person and the right not
to be deprived thereof except in accordance with the principles of
fundamental justice.
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Charte
canadienne des droits et libertés
Vie,
liberté et sécurité
7.
Chacun a droit à la vie, à la liberté et à la sécurité de sa personne; il ne
peut être porté atteinte à ce droit qu'en conformité avec les principes de
justice fondamentale.
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