Date: 20100805
Docket: T-1997-09
Citation: 2010 FC 806
Ottawa, Ontario, August 5, 2010
PRESENT: The Honourable Madam Justice Mactavish
BETWEEN:
ROBERT
LATIMER
Applicant
and
ATTORNEY
GENERAL OF CANADA
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
Robert
Latimer was convicted of second degree murder in relation to the death of his profoundly
disabled daughter, Tracy. He now seeks judicial review of a decision of the
Appeal Division of the National Parole Board confirming the refusal of his
request for expanded leave privileges reducing the number of nights each week
that he is required to return to a Community Release Facility (or “halfway
house”).
[2]
The
Appeal Division found that Mr. Latimer had not established the existence of
“exceptional circumstances” justifying a reduction in his nightly reporting
requirements, as contemplated by Chapter 4.1 of the National Parole Board’s
Policy Manual.
[3]
Mr.
Latimer submits that the Appeal Division erred in law in applying the “exceptional
circumstances” test to his application. According to Mr. Latimer, there is no
basis for such a test under the Corrections and Conditional Release Act,
S.C.
1992, c. 20 (CCRA). He further submits that requiring an offender to
establish the existence of exceptional circumstances is in fact inconsistent
with the express mandatory provisions of the statute.
[4]
For
the reasons that follow, I find that Chapter 4.1 of the National Parole
Board’s Policy Manual unlawfully fetters the discretion of Board members as it
relates to the reduction of offenders’ nightly reporting requirements. Consequently,
the application for judicial review will be allowed.
Background
[5]
Following
his conviction for second degree murder in 2001, Mr. Latimer was sentenced to
life imprisonment, with eligibility for full parole after 10 years.
[6]
The
Appeal Division of the National
Parole Board granted day parole to Mr. Latimer in February of 2008. He was released from prison
in March of 2008 on conditions that included the requirement that he live in a
halfway house, that he continue with psychological counselling, and that he not
have responsibility for any severely disabled individuals.
[7]
Mr.
Latimer initially lived in Ottawa after his release on day parole. However,
in
September of 2008, the Board altered the conditions of his release to allow for
the transfer of his supervision to Victoria, British Columbia. Mr. Latimer had previously lived in Victoria, and had family ties in
that city. The Board’s decision allowed Mr. Latimer “to pursue a reintegration
plan involving further vocational training to obtain certification as an
electrician.”
[8]
The
conditions of Mr. Latimer’s day parole currently permit him to spend two nights
a week at his apartment in Victoria, while spending the remaining five nights
at a halfway
house. This is known as a “two and five”. Mr. Latimer has also been granted
periodic extended leave privileges to allow him to visit his family in Saskatchewan.
[9]
After
16 months in the community without incident, Mr. Latimer sought to be granted a
“five and two”. This would allow him to spend five nights each week at his
apartment, and two nights a week at the halfway house. His application for a
five and two was supported by the “Assessment for Decision” prepared by his Parole
Supervisor. This assessment observed that Mr. Latimer’s risk of re-offending
had been judged to be “very low”. The Parole Supervisor further noted that Mr.
Latimer’s request for a five and two was supported by the staff of the halfway
house, and by Mr. Latimer’s wife.
[10]
It
was further noted that at the time of the assessment, Mr. Latimer was
maintaining gainful employment doing electrical work, and was engaged in an
apprenticeship program. He was scheduled to start the classroom component of
his electrician’s program in October of 2009, when, in addition to attending
classes, he would also continue to work part-time. In addition to his
employment and vocational training, Mr. Latimer maintained responsibility for
the management of the family farm in Saskatchewan.
[11]
The
Parole Supervisor also observed that Mr. Latimer had demonstrated commitment to
pursuing his vocational goals, and had been compliant with the conditions of
his release. The assessment noted that a five and two would assist Mr. Latimer
by allowing him additional time to fulfill his responsibilities to his family,
his farm and his vocational training. The additional time spent at his
apartment would “further assist him to continue leading a productive and
constructive lifestyle”. In the view of Mr. Latimer’s Parole Supervisor, not
only would his risk remain manageable if he were granted a five and two, in
addition, expanded leave would address the “particular and exceptional needs of
this case”.
[12]
An
addendum to the assessment advised that Mr. Latimer’s request for a five and
two was also supported by his psychologist.
[13]
In
August of 2009, the National Parole Board denied Mr. Latimer’s application for
a five and two. The Board found that while Mr. Latimer was successfully
reintegrating into the community and was abiding by his release conditions, his
situation did not meet the test of “exceptional circumstances” set out in
Chapter 4.1 of the National Parole Board’s Policy Manual.
[14]
The
Board further observed that while Mr. Latimer’s efforts were commendable, his
long-distance responsibilities were “self-imposed”, and that a regional
transfer to be closer to his family would alleviate his concerns. The Board
expressly declined to consider Mr. Latimer’s submission that the “exceptional
circumstances” test conflicted with other Board policies and with the
provisions of the Corrections and Conditional Release Act.
[15]
The
Board’s decision was subsequently affirmed by the Board’s Appeal Division,
which noted that Chapter 4.1 of the National Parole Board’s Policy Manual
provided that the Board “may reduce the nightly reporting requirement so the
offender is not required to report for extended periods in exceptional
circumstances, when all other options have been considered and judged
inappropriate and only in order to meet the particular needs of the case”.
The Appeal Division observed that the Board “did not have the authority to
disregard NPB policy on Expanded Leave Privileges, including the test of
exceptional circumstances, which allows for a less restrictive measure than the
residency condition for day parole that is prescribed in law.”
[16]
The
Appeal Division held that the Board’s conclusion that Mr. Latimer had not met
the test of exceptional circumstances was “reasonable, well supported and
consistent with the law and Board policy”. The Appeal Division further found
that Mr. Latimer could “choose less onerous ways to manage [his] day” and that
his case was “not unlike other offenders who work hard to successfully
reintegrate [into] society after a lengthy incarceration.” The Appeal Division
also noted the Board’s finding that Mr. Latimer enjoyed “expanded leave
privileges beyond the norm for other offenders and that [Mr. Latimer had] been
accommodated on several occasions when requesting further leave.”
Issue
[17]
Mr.
Latimer initially characterized the issue on this application as being one of
statutory interpretation. However, based upon his oral submissions, I
understand the real issue to be whether the Board and the Appeal Division erred
in law and fettered their discretion by applying a test of “exceptional
circumstances” in assessing Mr. Latimer’s request for an amendment to the
conditions of his day parole.
Standard of
Review
[18]
The
parties agree that decisions of the Appeal Division will generally be reviewed
against the reasonableness standard. Citing Canada (Citizenship and
Immigration) v. Khosa, 2009 SCC 12, [2009] 1 S.C.R. 339 and Latham v.
Canada, 2006 FC 284, 288 F.T.R. 37, the respondent says that this standard
should apply in Mr. Latimer’s case, submitting that the decision falls squarely
within the Appeal Division’s specialized area of expertise.
[19]
Mr.
Latimer submits that the standard of review on an issue of statutory
interpretation by the National Parole Board is that of correctness: Dixon v.
Canada (Attorney General), 2008 FC 889, 331
F.T.R. 214 at para. 10.
[20]
I
agree with Mr. Latimer that the appropriate standard of review in this case is
that of correctness. As discussed earlier, his arguments raise questions of
procedural fairness and the unlawful fettering of discretion. The Federal Court
of Appeal held in Thamotharem v. Canada (Minister of
Citizenship and Immigration), 2007 FCA 198, 366 N.R. 301, that such matters
are reviewable on the correctness standard: at para. 33.
The Legislative
Scheme
[21]
In
order to put Mr. Latimer’s arguments into context, it is first necessary to
have an understanding of the legislative scheme governing decisions such as the
one at issue in this case. The relevant statutory provisions are summarized below,
and the full text of these provisions is attached as an appendix to this
decision.
[22]
The Corrections
and Conditional Release Act and Regulations constitute the framework under
which the National Parole Board makes its decisions. Section 3 of the CCRA
identifies the purpose of the federal correctional system as being “to
contribute to the maintenance of a just, peaceful and safe society by carrying
out sentences imposed by courts through the safe and humane custody and
supervision of offenders” and to assist in “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”.
[23]
Among
other responsibilities, the Board acts as an independent administrative
tribunal to make determinations regarding day and full parole. Section 107 of
the Act gives the Board exclusive jurisdiction and absolute discretion in this
regard.
[24]
Parole
decisions are governed by section 102 of the CCRA. Two criteria are
identified in this section governing the granting of parole. The Board may
grant parole to an offender if it is of the opinion that “the offender will
not, by re-offending, present an undue risk to society before the expiration
according to law of the sentence the offender is serving”. In addition, the
Board must be satisfied that the release of the offender on parole “will
contribute to the protection of society by facilitating the reintegration of
the offender into society as a law-abiding citizen”.
[25]
“Day
parole” is defined by section 99 of the CCRA as “the authority granted
to an offender by the Board … to be at large during the offender’s sentence in
order to prepare the offender for full parole or statutory release, the
conditions of which require the offender to return to … a community-based
residential facility … each night, unless otherwise authorized in writing”
[emphasis added]. The respondent describes these expanded leave privileges as
“an intermediary level of liberty between normal day parole restrictions and
full parole”: respondent’s memorandum of fact and law at para. 24.
[26]
Day
parole is a form of conditional release and is governed by the basic principles
set out in section 100 and 101 of the Act: see Cartier v. Canada (Attorney General), 2002 FCA 384, 300 N.R.
362, at para. 13.
[27]
Section
100 of the CCRA identifies the purpose of conditional release as being
“to contribute to the maintenance of a just, peaceful and safe society by means
of decisions on the timing and conditions of release that will best facilitate
the rehabilitation of offenders and their reintegration into the community as
law-abiding citizens”.
[28]
Section
101 of the CCRA articulates the statutory principles guiding parole
boards “in achieving the purpose of conditional release”. It provides that the
paramount consideration in the determination of any case is the protection of
society: subsection 101(a). Another statutory principle guiding parole boards
is that they are to make “the least restrictive determination consistent with the
protection of society”: subsection 101(d). Amongst other things, parole boards
are directed to take all available information, including the reasons and
recommendations of the sentencing judge, into account in considering whether
conditional release is appropriate in a given case: subsection 101(b).
[29]
The
legislative scheme specifically contemplates the making of policies guiding
parole boards. Subsection 101(e) of the CCRA authorizes boards,
including the National Parole Board, to “adopt and be guided by appropriate
policies” and directs that Board members are to “be provided with the training
necessary to implement those policies”.
[30]
Section
151 of the Act authorizes the Executive Committee of the Board to adopt
policies relating to reviews dealing with conditional release, detention and
long-term supervision. Such policies are to be promulgated after such
consultation with Board members as the Executive Committee considers
appropriate. Board
members are directed by subsection 105(5) of the CCRA to “exercise their
functions in accordance with policies adopted pursuant to subsection 151(2)”.
The National
Parole Board Policy Manual
[31]
A
Policy Manual has been adopted by the National Parole Board under the authority
of section 151 of the CCRA. Chapter 7.2 of the Manual deals with
“Residency and Day Parole Leave Privileges” and observes that the Board is
responsible “for establishing the parameter of leave privileges to be
associated with an approved day parole, or parole or statutory release that is
subject to a residency condition”. The Policy Manual goes on to note that the
Board “entrusts to those who are responsible for the day-to-day supervision and
care of these offenders, the manner in which the leave privileges will be
implemented”.
[32]
Chapter
7.2 identifies what will “normally” be the maximum leave privileges which will
be authorized by the Board. It observes that “the institutional head, the
director of the residential facility or the CSC District Director, as the case
may be and in conjunction with the parole supervisor, will determine how and
when the Board authorized leave privileges are to be implemented”.
[33]
Factors
to be considered in arriving at this determination include “the offender’s
progress in achieving the objectives of the release in relation to the
correctional plan”. The policy further noted that “[a]dditional leave
privileges may not be granted unless approved in writing by the Board”.
[34]
For
inmates such as Mr. Latimer living in community residential facilities, the
policy provides that “[l]eave privileges may be granted in accordance with the basic rules
and regulations of the community residential facility, unless the Board members
have indicated specifically what those leave privileges are to be as part of
the release plan…”.
[35]
The
parties agree that in accordance with this section of the Manual, weekend
passes may be authorized by the offender’s parole supervisor or the head of the
Community
Release Facility. Mr. Latimer’s two and five was evidently granted under this
authority. However, any further reduction in his reporting requirements had to
be approved in writing by the Board.
[36]
Chapter
4.1 of the Policy Manual deals with “expanded periods of leave” and is the provision at the
heart of this proceeding. It provides that the Board may reduce the nightly
reporting requirements so the offender is not required to report for extended
periods of time “in exceptional circumstances, when all other options
have been considered and judged inappropriate, and only in order to meet the
particular needs of the case” [emphasis added].
[37]
The
Manual goes on to state that “[t]he Board may consider expanded leave to be
responsive to the needs of female, aboriginal, ethnic minority or special needs
offenders”. It is common ground that this latter provision does not apply to
Mr. Latimer.
[38]
It
will be recalled that Mr. Latimer’s request for a “five and two” was turned down on the
basis that he had not demonstrated the existence of exceptional circumstances
justifying the granting of such a measure.
Analysis
[39]
It
should be noted at the outset that while Mr. Latimer’s application for judicial
review technically relates to the decision of the Appeal Division of the National Parole
Board, where, as here, the Appeal Division has affirmed the Board’s decision,
it is the duty of this Court to ensure that the Board’s decision is lawful: see
Cartier, above, at para.
10.
[40]
In
addressing this question, it is first necessary to examine the law relating to
the status and use of guidelines such as the Policy Manual in issue in this
case.
i) The
Legal Status of the National Parole Board’s Policy Manual
[41]
As
the Federal Court of Appeal observed in Thamotharem, above, guidelines
may, in some circumstances, constitute delegated legislation having the full
force of law (“hard law”). In such cases, the instrument in question cannot be
characterized as an unlawful fetter on the tribunal members’ exercise of
discretion: see para. 65, and see Bell Canada v. Canadian Telephone
Association Employees, 2003 SCC 36, [2003] 1 S.C.R. 884 at para 35.
[42]
Although
the Executive Committee of the National Parole Board is statutorily authorized
to adopt
policies relating to the granting of conditional release, including day parole,
the Policy
Manual in issue in this case cannot, in my view, be viewed as delegated legislation or “hard
law”.
[43]
In
coming to this conclusion, the National Parole Board’s Policy Manual may be contrasted with
the Guidelines issued by the Canadian Human Rights Commission that were in
issue before the Supreme Court in the Bell Canada case. These
Guidelines were found by the Supreme Court to be “akin to regulations”: Bell Canada at
para. 37.
[44]
One
factor influencing the Supreme Court’s finding in Bell Canada that the
Commission Guidelines amounted to “hard law” was the fact that, like
regulations, the Commission's Guidelines were subject to the Statutory Instruments Act, R.S.C. 1985, c. S-22, and had
to be published in the Canada Gazette.
[45]
Moreover, the Canadian Human Rights
Act,
R.S.C. 1985, c. H-6 expressly provided that Commission Guidelines were binding on
members of the Canadian Human Rights Tribunal dealing with complaints of
discrimination referred to it by the Commission. While subsection 105(5) of the
CCRA does direct members to exercise their functions in accordance with
Board policies, there
is no provision in the Act expressly stating that the provisions of the National Parole Board’s
Policy Manual
are binding on Board members.
[46]
The
Supreme Court was also influenced by the fact that the French text of the Canadian
Human Rights Act, R.S.C. 1985, c. H-6, empowered the Commission to set out its
interpretation of the legislation “par ordonnance”. According to the
Supreme Court, this “leaves no doubt that the guidelines are a form of law”: Bell Canada at para. 37, (emphasis in the original).
[47]
In
contrast, subsection 151(2) of the CCRA authorizes the Executive
Committee of the National Parole Board to “adopt policies” (établit des directives”)
relating to reviews such as that in issue in this case. It is noteworthy that
in Thamotharem, Justice Evans held
that the use of the word “directives” in the French text of the Immigration
and Refugee Protection Act suggested “a less legally authoritative
instrument than ‘ordonnance’”: at para. 71.
[48]
Thus,
the National Parole Board’s Policy Manual is closer in nature to the
Chairperson’s Guidelines at issue in Thamotharem than it is to the
Commission Guidelines at issue in Bell Canada. As a consequence, it is
more properly characterized as a “soft law” instrument that does not have the
full force of law.
[49]
Before
leaving this point, I would note that my conclusion regarding the legal status
of the Board’s Policy Manual is consistent with the decision of Justice Lemieux in Sychuk v. Canada
(Attorney General),
2009 FC 105, 340 F.T.R. 160 at para. 11.
ii) Is the Policy Manual an Unlawful Fetter on Board Members’
Discretion?
[50]
The
next question, then, is whether Chapter 4.1 of the Policy Manual is nevertheless
an unlawful fetter on Board members’ discretion. In my view, it is.
[51]
While
non-statutory guidelines or policy manuals designed to assist administrative
tribunals in carrying out their mandates are appropriate, there are limits on
the use that can be made of such instruments.
[52]
In Ainsley
Financial Corporation et al. v. Ontario Securities Commission et al.
(1994), 21 O.R. (3d) 104, the Ontario Court of Appeal examined the limitations
on non-statutory guidelines at paragraph 14 of its reasons, articulating the
following principles:
(1) a non-statutory instrument can have
no effect in the face of contradictory statutory provision or regulation;
(2) a non-statutory instrument cannot
pre-empt the exercise of a regulator's discretion in a particular case;
(3) a non-statutory instrument cannot
impose mandatory requirements enforceable by sanction; that is, the regulator
cannot issue de facto laws disguised as guidelines.
[53]
Similarly,
in Judicial Review of Administrative Action in Canada (Toronto:
Canvasback Publishing, 1998), Brown and Evans observe that a guideline will be
invalid “if it is inconsistent with or in conflict with a statutory provision,
or if it deals with a matter outside an agency’s statutory authorization,
whether or not it imposes duties enforceable in the courts: at para. 15:3283.
[54]
I
agree with the respondent that it is inarguably within the Board’s discretion
to determine when a deviation from the normal statutory reporting requirements
will be warranted. That said, a policy stating that members may only reduce an
offender’s nightly reporting requirements “in exceptional circumstances”, and
then only when “all
other options have been considered and judged inappropriate” is inconsistent with the
statutory principles that Parliament has directed the National Parole Board to
apply in relation to the granting of conditional release, including day parole.
[55]
In
particular, it is inconsistent with the principle that, in achieving the
purpose of conditional release, parole boards are to make the least
restrictive determination consistent with the protection of society: subsection
101(d).
[56]
In
accordance with subsection 99(1) of the CCRA, offenders on day parole
must return to the institution in which they are housed each evening, unless
otherwise authorized in writing. Discretion is thus conferred on the Board
to authorize extended leave. The only condition imposed by section 99 of the
Act is that there must be written authorization when the Board’s discretion is
exercised in the offender’s favour in relation to the reporting requirement.
That said, the Board’s discretion to authorize extended periods of leave must
nevertheless be exercised in a manner consistent with the principles
articulated in the CCRA.
[57]
Chapter
4.1 of the National Parole Board’s Policy Manual is not consistent with the
provisions of the CCRA governing day parole. This inconsistency is
demonstrated by the facts of Mr. Latimer’s case.
[58]
The
paramount consideration in the determination of any application for day parole
is the protection of society: CCRA, subsection 101(a). Mr. Latimer has
been determined to be at low risk of re-offending. There is nothing in the reasons
of either the Board or the Appeal Division to suggest that the need to
protect society played any role in the Board’s decision to deny extended leave
privileges. Indeed the Board itself noted that no concerns had been identified
with respect to Mr. Latimer’s behavior in the community.
[59]
In
this regard, it is also noteworthy that the Supreme Court of Canada itself
recognized that “the sentencing principles of rehabilitation, specific
deterrence and protection [were] not triggered for consideration” in Mr.
Latimer’s case: see R. v. Latimer, 2001 SCC 1, [2001] 1 S.C.R. 3 at
para. 86. It will be recalled that, subsection 101(b) directs the Board take
into consideration all available information relevant to the case, including
the stated reasons and recommendations of the sentencing judge.
[60]
Thus,
although the evidence before the Board indicated that a reduction in Mr.
Latimer’s reporting requirements would not present any real risk to public
safety or adversely affect the protection of society, this was not properly
taken into account by the Board, as the Board was required by Chapter 4.1 of
the Policy Manual to limit its consideration to whether or not Mr. Latimer had
demonstrated the existence of “exceptional circumstances” justifying a
loosening of the conditions of his day parole.
[61]
Other
relevant information before the Board included the positive recommendation in
the “Assessment
for Decision” carried out by Mr. Latimer’s Parole Supervisor, along with the
endorsement of the application by both his wife and his
psychologist. While this information was referred to by the Board, it was only
considered in assessing whether there were exceptional circumstances justifying
a loosening of Mr. Latimer’s reporting requirements, rather than in determining
whether a five and two was the least restrictive measure consistent with the
protection of society.
[62]
In
assessing whether Mr. Latimer had demonstrated the existence of exceptional
circumstances justifying a five and two, the Appeal Division also had regard to
the fact
that he could “choose less onerous ways to manage [his] day” (a statement with
which Mr. Latimer does not agree). Whether or not this is the case, it is
irrelevant to the question of whether loosening the conditions of Mr. Latimer’s
day parole was consistent with the governing principles of the CCRA. So
too is the Appeal Division’s observation that Mr. Latimer already enjoyed
“expanded leave privileges beyond the norm for other offenders and that [he
had] been accommodated on several occasions when requesting further leave.”
[63]
Whether
Mr. Latimer has enjoyed more or less liberty than other offenders is not the
question. It is clear from the CCRA that in making the least restrictive
determination, the Board has to carefully tailor the conditions of an
offender’s release having regard to all of the particular circumstances of the
individual offender. How the leave privileges granted to Mr. Latimer compare to
those granted to other offenders is irrelevant. Moreover, as was noted in the
Assessment for Decision, the circumstances of Mr. Latimer’s index offence are
indeed “unique”.
[64]
The
“exceptional circumstances” test also ignores other statutorily-mandated
principles. Thus no real consideration was given by the Board to whether a
loosening of Mr. Latimer’s reporting requirements after the successful
completion of 16 months in the community would contribute to his reintegration
into society (CCRA subsection 102(b)) or his rehabilitation (section
100).
[65]
For
these reasons, I am satisfied that Chapter 4.1 of the Board’s Policy Manual has the effect
of precluding Board members from imposing the least restrictive measures
consistent with the protection of the public where the particular situation of
an individual offender is not deemed to be “exceptional” by the Board.
[66]
By
limiting the ability of Board members to examine the individual merits of each
case according to the relevant statutory principles identified in the CCRA,
the Manual thus unlawfully fetters members’ statutory discretion: see Fahlman
(guardian ad litem of) v. Community Living British Columbia, 2007 BCCA 15, 154 A.C.W.S. (3d) 958 at paras.
43-56; Gregson v. National Parole Board, [1983] 1 F.C. 573.
[67]
Before
closing, there are two additional matters that require comment.
[68]
The
first is that in addition to its inconsistency with the provisions of the CCRA,
there is also an element of arbitrariness to Chapter 4.1 of the Policy Manual.
Counsel for the respondent submitted in argument that two and five passes “further
prepare offenders for eventual full parole”. However, no explanation was
provided as to why a two and five may be both an appropriate intermediate step
in light of the unexceptional personal circumstances of an offender and consistent
with the day parole provisions of the CCRA, whereas a “three and four”,
or a “four and three”, or a five and two could only appropriate in “exceptional
circumstances, when all other options have been considered and judged
inappropriate”.
[69]
The
second point that requires comment is the respondent’s argument that “[i]f
public safety were the only consideration, it follows that all offenders that
do not pose a risk to the public would be granted a ‘six and one’ parole
arrangement, which constitutes the least restrictive measure of liberty without
reaching full parole”: respondent’s memorandum of fact and law at para. 36.
[70]
I do
not accept this argument. As is clear from the above analysis, the CCRA
identifies a series of principles to be applied by the Board in determining the
appropriate conditions to be attached to the conditional release of offenders.
In addition to public safety and the least restrictive determination
considerations, Board members must also take the statutory purpose of day
parole into account, including the reintegration and rehabilitation of
offenders.
[71]
That
is, matters such as the nature, requirements and progress of the offender’s
individual rehabilitation plan and his or her track record of compliance are
all part of the incremental, nuanced approach to the discretionary
decision-making process prescribed by the CCRA and precluded by Chapter
4.1 of the National Parole Board’s Policy Manual.
Conclusion
[72]
For
these reasons, the application for judicial review is allowed, and the decision
of the Appeal Division is set aside. The matter is remitted to the National
Parole Board for re-determination in accordance with these reasons, without
regard to the “exceptional circumstances” test set out in Chapter 4.1 of the
Board’s Policy Manual.
[73]
I
note that Mr. Latimer is eligible for full parole on December 8, 2010.
Accordingly, I am directing the Board to proceed with its re-determination on
an expedited basis so that in the event that a positive decision is made with
respect to Mr. Latimer’s application for reduced reporting requirements, it may
be of some practical benefit to him.
JUDGMENT
THIS COURT ORDERS AND ADJUDGES
that:
1. This application for
judicial review is allowed, with costs.
2. The
matter is remitted to a differently constituted panel of the National Parole
Board for re-determination on an expedited basis in accordance with these
reasons, without regard to the “exceptional circumstances” test set out in
Chapter 4.1 of the Board’s Policy Manual.
“Anne
Mactavish”
APPENDIX
|
corrections
and conditional release act, S.C. 1992, c. 20
|
|
Purpose
of correctional system
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.
Definitions
99.
(1) In this
Part,
"day
parole"
«semi-liberté »
"day
parole" means the authority granted to an offender by the Board or a
provincial parole board to be at large during the offender’s sentence in
order to prepare the offender for full parole or statutory release, the
conditions of which require the offender to return to a penitentiary, a
community-based residential facility or a provincial correctional facility
each night, unless otherwise authorized in writing;
Purpose
of conditional release
100.
The purpose of
conditional release is to contribute to the maintenance of a just, peaceful
and safe society by means of decisions on the timing and conditions of
release that will best facilitate the rehabilitation of offenders and their
reintegration into the community as law-abiding citizens.
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;
(c)
that parole boards enhance their effectiveness and openness through the
timely exchange of relevant information with other components of the criminal
justice system and through communication of their policies and programs to
offenders, victims and the general public;
(d)
that parole boards make the least restrictive determination consistent with
the protection of society;
(e)
that parole boards adopt and be guided by appropriate policies and that their
members be provided with the training necessary to implement those policies;
and
(f)
that offenders be provided with relevant information, reasons for decisions
and access to the review of decisions in order to ensure a fair and
understandable conditional release process.
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.
Policies
105. (5) Members of the Board shall
exercise their functions in accordance with policies adopted pursuant to subsection
151(2).
Jurisdiction
of Board
107.
(1) Subject to
this Act, the Prisons and Reformatories Act, the International
Transfer of Offenders Act, the National Defence Act, the Crimes
Against Humanity and War Crimes Act and the Criminal Code, the
Board has exclusive jurisdiction and absolute discretion
(a)
to grant parole to an offender;
(b)
to terminate or to revoke the parole or statutory release of an offender,
whether or not the offender is in custody under a warrant of apprehension
issued as a result of the suspension of the parole or statutory release;
(c)
to cancel a decision to grant parole to an offender, or to cancel the
suspension, termination or revocation of the parole or statutory release of
an offender;
(d)
to review and to decide the case of an offender referred to it pursuant to
section 129; and
(e)
to authorize or to cancel a decision to authorize the unescorted temporary
absence of an offender who is serving, in a penitentiary,
(i) a
life sentence imposed as a minimum punishment or commuted from a sentence of
death,
(ii) a
sentence for an indeterminate period, or
(iii)
a sentence for an offence set out in Schedule I or II.
[…]
Decision
on Appeal
147. (1) An offender may appeal a decision of the
Board to the Appeal Division on the ground that the Board, in making its
decision,
(a)
failed to observe a principle of fundamental justice;
(b)
made an error of law;
(c)
breached or failed to apply a policy adopted pursuant to subsection 151(2);
(d)
based its decision on erroneous or incomplete information; or
(e)
acted without jurisdiction or beyond its jurisdiction, or failed to exercise
its jurisdiction.
[…]
(4)
The Appeal Division, on the completion of a review of a decision appealed
from, may
(a)
affirm the decision;
(b)
affirm the decision but order a further review of the case by the Board on a
date earlier than the date otherwise provided for the next review;
(c)
order a new review of the case by the Board and order the continuation of the
decision pending the review; or
(d)
reverse, cancel or vary the decision.
Functions
151. (2) The Executive Committee
(a)
shall, after such consultation with Board members as it considers
appropriate, adopt policies relating to reviews under this Part;
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But
du système correctionnel
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.
Définitions
99. (1)
Les définitions qui suivent s’appliquent à la présente partie.
«semi-liberté
»
"day parole"
«semi-liberté
» Régime de libération conditionnelle limitée accordé au délinquant, pendant
qu’il purge sa peine, sous l’autorité de la Commission ou d’une commission
provinciale en vue de le préparer à la libération conditionnelle totale ou à
la libération d’office et dans le cadre duquel le délinquant réintègre
l’établissement résidentiel communautaire, le pénitencier ou l’établissement
correctionnel provincial chaque soir, à moins d’autorisation écrite
contraire.
Objet
100.
La mise en
liberté sous condition vise à contribuer au maintien d’une société juste,
paisible et sûre en favorisant, par la prise de décisions appropriées quant
au moment et aux conditions de leur mise en liberté, la réadaptation et la
réinsertion sociale des délinquants en tant que citoyens respectueux des
lois.
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;
c) elles accroissent leur
efficacité et leur transparence par l’échange de renseignements utiles au
moment opportun avec les autres éléments du système de justice pénale d’une
part, et par la communication de leurs directives d’orientation générale et
programmes tant aux délinquants et aux victimes qu’au public, d’autre part;
d) le règlement des cas doit,
compte tenu de la protection de la société, être le moins restrictif
possible;
e) elles s’inspirent des
directives d’orientation générale qui leur sont remises et leurs membres
doivent recevoir la formation nécessaire à la mise en oeuvre de ces
directives;
f) de manière à assurer l’équité
et la clarté du processus, les autorités doivent donner aux délinquants les
motifs des décisions, ainsi que tous autres renseignements pertinents, et la
possibilité de les faire réviser.
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.
Directives d’orientation générale
105. (5) Les membres exercent leurs fonctions conformément aux
directives d’orientation générale établies en application du paragraphe
151(2).
Compétence
107. (1)
Sous réserve de la présente loi, de la Loi sur les prisons et les maisons de
correction, de la Loi sur le transfèrement international des délinquants, de
la Loi sur la défense nationale, de la Loi sur les crimes contre l’humanité
et les crimes de guerre et du Code criminel, la Commission a toute compétence
et latitude pour :
a) accorder une libération
conditionnelle;
b) mettre fin à la libération
conditionnelle ou d’office, ou la révoquer que le délinquant soit ou non sous
garde en exécution d’un mandat d’arrêt délivré à la suite de la suspension de
sa libération conditionnelle ou d’office;
c) annuler l’octroi de la
libération conditionnelle ou la suspension, la cessation ou la révocation de
la libération conditionnelle ou d’office;
d) examiner les cas qui lui sont
déférés en application de l’article 129 et rendre une décision à leur égard;
e) accorder une permission de
sortir sans escorte, ou annuler la décision de l’accorder dans le cas du
délinquant qui purge, dans un pénitencier, une peine d’emprisonnement, selon
le cas :
(i) à
perpétuité comme peine minimale ou à la suite de commutation de la peine de
mort,
(ii)
d’une durée indéterminée,
(iii)
pour une infraction mentionnée à l’annexe I ou II.
[…]
Décision
147. (1) Le délinquant visé
par une décision de la Commission peut interjeter appel auprès de la Section
d’appel pour l’un ou plusieurs des motifs suivants :
a) la Commission a violé un
principe de justice fondamentale;
b) elle a commis une erreur de
droit en rendant sa décision;
c) elle a contrevenu aux
directives établies aux termes du paragraphe 151(2) ou ne les a pas
appliquées;
d) elle a fondé sa décision sur
des renseignements erronés ou incomplets;
e) elle a agi sans compétence,
outrepassé celle-ci ou omis de l’exercer.
[…]
(4) Au
terme de la révision, la Section d’appel peut rendre l’une des décisions
suivantes :
a) confirmer la décision visée
par l’appel;
b) confirmer la décision visée
par l’appel, mais ordonner un réexamen du cas avant la date normalement
prévue pour le prochain examen;
c) ordonner un réexamen du cas
et ordonner que la décision reste en vigueur malgré la tenue du nouvel
examen;
d) infirmer ou modifier la décision
visée par l’appel.
Attributions
du Bureau
151. (2) Après avoir consulté les
membres de la Commission de la façon qu’il estime indiquée, le Bureau établit
des directives régissant les examens, réexamens ou révisions prévus à la
présente partie et, à sa demande, conseille le président en ce qui touche les
attributions que la présente loi et toute autre loi fédérale confèrent à la
Commission ou à celui-ci; le Bureau peut également ordonner que le nombre de
membres d’un comité chargé de l’examen ou du réexamen d’une catégorie de cas
ou de la révision d’une décision soit supérieur au nombre réglementaire.
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National
Parole Board Policy Manual
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4.1
Day parole
Expanded
periods of leave
Before
full parole eligibility, the Board may reduce the nightly reporting
requirement so the offender is not required to report for extended periods in
exceptional circumstances, when all other options have been considered and
judged inappropriate, and only in order to meet the particular needs of the
case. The Board may consider expanded leave to be responsive to the needs of
female, aboriginal, ethnic minority or special needs offenders.
The
Board has greater flexibility after full parole eligibility date. Board
members must consider whether day parole represents the least restrictive
option to protect society.
7.2
Residency and day parole leave privileges
The
Board is responsible for establishing the parameter of leave privileges to be
associated with an approved day parole, or parole or statutory release that
is subject to a residency condition. It entrusts to those who are responsible
for the day-to-day supervision and care of these offenders, the manner in
which the leave privileges will be implemented.
Normally,
the maximum leave privileges that will be authorized by the Board are as
outlined below. Board members will specify in their decision any case
specific leave privileges other than these.
The
institutional head, the director of the residential facility or the CSC
District Director, as the case may be and in conjunction with the parole
supervisor, will determine how and when the Board authorized leave privileges
are to be implemented. The determination will take into consideration the
offender’s progress in achieving the objectives of the release in relation to
the correctional plan. Additional leave privileges may not be granted unless
approved in writing by the Board.
Weekday
Setting
of time limits for return to a residence on a weekday is subject to the
discretion of the superintendent of the community correctional centre (CCC),
the director of the community residential facility (CRF), or the responsible
CSC District Director.
[…]
CSC
Institutions
The
District Director, Parole, in consultation with the institutional head, may
implement the leave privileges within the context of the release plan
approved by the Board and in relation to the general progress of the
offender. As a maximum, one weekend may be granted each month; however, the
first cannot be implemented until at least thirty days after the implementation
of the release.
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4.1
Semi-Liberte
PÉRIODES
DE SORTIE PROLONGÉES
Avant
la date d’admissibilité à la libération conditionnelle totale, la Commission
peut, dans des circonstances exceptionnelles et lorsque toutes les autres
possibilités ont été étudiées et jugées inopportunes, assouplir la règle
exigeant un retour à l’établissement tous les soirs, mais ce, uniquement pour
répondre aux besoins particuliers du délinquant. En effet, les membres de la
Commission peuvent envisager d’autoriser des sorties prolongées pour répondre
aux besoins de certaines catégories de délinquants comme les femmes, les
Autochtones et les membres de minorités visibles, ou d’autres délinquants
présentant des besoins spéciaux.
7.2
Privilèges de sortie rattachés aux assignations à résidence et à la semi-liberté
Il
appartient à la Commission d’établir les paramètres des privilèges de sortie
rattachés à une semi-liberté, ou à une libération conditionnelle ou d’office
assortie d’une assignation à résidence. Ces paramètres laissent le soin de
déterminer les modalités d’application aux personnes chargées quotidiennement
de s’occuper des délinquants en liberté et de les surveiller.
Normalement,
les privilèges de sortie maximums autorisés par la Commission sont ceux qui
sont décrits ci-après. Si les membres de la Commission désirent accorder des
privilèges de sortie particuliers à un délinquant, ils doivent le préciser
dans leur décision.
Selon
le cas, c’est le directeur du pénitencier, le directeur de l’établissement
résidentiel ou le directeur de district du SCC qui détermine, de concert avec
le surveillant de liberté conditionnelle, quand et comment les privilèges de
sortie autorisés par la Commission seront appliqués. Pour ce faire, il prend
en considération les progrès accomplis par le délinquant dans la réalisation
des objectifs de la liberté au regard du plan correctionnel. L’octroi de
privilèges de sortie supplémentaires ne peut se faire sans l’approbation
écrite de la Commission.
En
Semaine
Le
directeur du centre correctionnel communautaire, du centre résidentiel
communautaire ou du district concerné du SCC décide de l’heure à laquelle le
détenu est tenu de rentrer un jour de semaine.
[…]
ÉTABLISSEMENTS
DU SCC
Le
directeur de district (libération conditionnelle) peut, en consultation avec
le directeur d’établissement, accorder des privilèges de sortie dans le cadre
du plan de libération conditionnelle approuvé par la Commission et selon les
progrès réalisés par le délinquant dans l’ensemble. Une fin de semaine tout
au plus peut être accordée par mois, et la première peut seulement être
accordée trente jours après l’entrée en vigueur du programme de semi-liberté.
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