Date:
20120712
Docket:
T-1034-11
Citation:
2012 FC 879
Ottawa, Ontario, July 12, 2012
PRESENT: The Honourable Mr. Justice Near
BETWEEN:
|
|
ANDREW SCOTT REID
|
|
|
|
Applicant
|
|
and
|
|
|
THE ATTORNEY GENERAL OF CANADA
|
|
|
|
Respondent
|
|
|
|
|
REASONS FOR
JUDGMENT AND JUDGMENT
[1]
This
application for judicial review concerns a May 12, 2011 decision of the
National Parole Board – Appeal Division (Appeal Division) affirming the
National Parole Board’s revocation of full parole granted to Andrew Scott Reid
(the Applicant).
[2]
For
the reasons set out below, the application is dismissed.
I. Background
[3]
The
Applicant is serving a life sentence for non-capital murder. He was released
on full parole on March 25, 2010 subject to four special conditions:
(i) Must
avoid certain persons – Not to have direct or indirect contact with persons
under the age of 18 without prior written permission from your parole officer;
(ii) Abstain from use of
alcohol – Abstain from purchase, possession or consumption of alcohol;
(iii) Follow psychological
counsel – To be arranged by your supervisor to address self-management,
sexually inappropriate behaviour, attitudes towards supervision, past history
of victimization, stress and re-integration issues; and
(iv) Other – Must
immediately and fully report to your parole office any type of relationship
with women as soon as they are initiated, as well as any change within those
relationships, as soon as they occur.
[4]
As
part of his release plan, the Applicant was to be residing with his partner,
Ms. Bates. His parole officer subsequently became aware of an internet
advertisement the Applicant posted looking for a furnished apartment. After
the Applicant was questioned about the advertisement, his full parole was
suspended for breach of the fourth condition to report any change within his
relationships with women.
[5]
A
Suspension Review Hearing was initially held on September 16, 2010, but
resulted in a split decision and a new hearing was scheduled for October 5,
2010. Ultimately revoking full parole because his risk of re-offending had
become unmanageable, the National Parole Board (or the Board) concluded:
It is evident that, in
spite of your attempt to feign ignorance and your statement that “I can not do any
better than I was doing”, you knowingly violated your special condition and
that the reason for suspension was entirely within your control. It is apparent
that you chose not to disclose difficulties that manifested as significant
stressors in your relationship despite ample opportunities to do so with the
professional supports available to you.
[6]
The
Appeal Division upheld this decision. The Board’s conduct was seen as
consistent with its duty to act fairly. It was noted:
In our view, you have not presented any information
to support your claim that the panel of members displayed actual bias in your
case. Neither their conduct at the hearing nor the mere fact that your partner
was not allowed to attend the hearing as an observer supports your submission.
[7]
Considering
the reasonableness of the Board’s decision, the Appeal Division further concluded:
As properly considered by the Board, you did not
disclose to your parole officer (PO) the fact that you had been looking for
your own place to stay. Contrary to your claim, we find that your domestic
situation constituted a significant change in your relationship, which you were
required to report, especially given that you were confronted by your PO at the time. Given the nature and severity of your index offence, which involved the
strangling of someone with whom you were intimate, we agree that it was not
unreasonable for the Board members to deem that [sic] the circumstances
leading to your suspension were within your control and for them to be extremely
cautious regarding your risk to the public.
[8]
The
Applicant now seeks judicial review of the Appeal Division’s determination.
II. Issues
[9]
The
issues before the Court are as follows:
(a) Did
the Appeal Division err by concluding that the Board acted in a manner
consistent with its duty of fairness and there was no reasonable apprehension
of bias?
(b) Did the Appeal Division
err in finding the Board’s decision reasonable?
III. Standard
of Review
[10]
Issues
of procedural fairness demand the correctness standard of review (Canada (Minister of Citizenship and Immigration v Khosa, 2009 SCC 12, [2009]
1 SCR 339 at para 43).
[11]
Given
its expertise, the Appeal Division is, however, entitled to deference and
review based on the reasonableness standard for questions of fact, mixed fact
and law and statutory interpretation (see Latimer v Canada (Attorney
General), 2010 FC 806, [2010] FCJ no 970 at para 18; Sychuk v Canada
(Attorney General), 2009 FC 105, [2009] FCJ no 136; Canada (Attorney
General) v Coscia, 2005 FCA 132, [2005] FCJ no 607 at para 46).
[12]
Reasonableness
is concerned with the existence of justification, transparency and
intelligibility as well as whether the decision falls within a range of
possible, acceptable outcomes defensible in respect of the facts and law (Dunsmuir
v New Brunswick, 2008 SCC 9, [2008] 1 SCR 190 at para 47).
IV. Analysis
A. Fairness
and Reasonable Apprehension of Bias
[13]
The
Applicant contends that the Board breached its duty to act fairly or was biased
when his partner, Ms. Bates, was denied entry to the hearing and he was not able
to request a postponement.
[14]
I
agree with the Respondent, however, that the Board acted fairly in the
circumstances as the Appeal Division concluded in its reasons. Despite the
Applicant’s claims, the Board was justified in excluding Ms. Bates as an
observer at the hearing due to her repeated failure of the ION test of the drug
detection device for elevated levels of marijuana on entering the institution
on the day of the hearing and on past visits. He was not prejudiced by her
absence and the Board’s focus on their relationship as the Applicant suggests
because there was a letter from her before the Board. More generally, the
Applicant was given a full opportunity to make submissions.
[15]
At
no time did the Applicant formally request a postponement, although he was free
to do so. There was no positive duty on the Board to make him aware of this
option. His lawyer was present as an assistant during the hearing.
[16]
The
Applicant further submits that the Board’s questioning during the hearing gives
rise to a reasonable apprehension of bias. Assumptions were made regarding his
understanding of the special conditions by referring to the Applicant’s several
decades in the system. He also takes issue with the Board’s characterization
of the psychological assessment completed by Dr. Altrows.
[17]
While
I acknowledge that Dr. Altrows did not specifically use the words “treachery”
and “deceit” as referenced in questioning and the final decision, it is clear
from his report that he supported the suspension of the Applicant’s parole
believing the difficulties in the relationship should have been disclosed to
him. The overall conclusion reached by the Board and supported by the Appeal
Division reflects Dr. Altrows’ assessment.
[18]
I
cannot accept the Applicant’s suggestion that the Board somehow pre-determined
its conclusion before considering the evidence and that an ordinary person
viewing the matter realistically and practically and having thought the matter
through would conclude there is a likelihood of bias in this instance (Committee
for Justice and Liberty v Canada (National Energy Board), [1978] 1 SCR
369).
B. Reasonableness
of Board’s Decision
[19]
The
Applicant considers it unreasonable for the Board to hold him accountable for
breach of a condition that is ambiguous as to what constitutes “change” in a
relationship. He also insists that the Board should not have considered past
conduct specifically related to his former employment in making its
determination. According to the Applicant, this information was erroneous.
[20]
In
my view, there is nothing unreasonable about the Board’s interpretation of the
fourth condition governing the Applicant’s parole and holding him accountable
for its breach. It is not ambiguous to suggest that he report any change in
his relationship, such as difficulties associated with living arrangements or
tension more generally. If the Applicant was unsure as to the nature of the
condition, he should have asked for further clarification (see for example Canada (Attorney General) v Franchi, 2011 FCA 136, [2011] FCJ no 962 at para
30).
[21]
In
addition, although it cannot be the sole basis for a suspension, the Board is
not in error in taking into account an offender’s behaviour prior to release in
a minor way to inform the background of the decision (as suggested in Strachan
v Canada (Attorney General), 2006 FC 155, [2006] FCJ no 216 at para 45).
The Board’s consideration of his employment prior to release on full parole was
merely part of the background of the decision. Concerns regarding his conduct
also arose following the grant of full parole to justify the overall
conclusions reached regarding the Applicant’s credibility.
[22]
I
reiterate the caution previously urged by this Court in Coscia, above,
in reviewing the “Board’s exercise of its broad discretion, lest it jeopardize
the Board’s ability to discharge its statutory mandate.” The Board’s reasons
cannot be looked at with too much scrutiny since “[b]ecause of its expertise,
its assessment of the risk that an applicant for parole will re-offend if
released warrants the utmost deference.”
[23]
With
this guiding principle in mind, I am prepared to accept that the Board’s
decision was justified, transparent and intelligible in the circumstances (Dunsmuir,
above at para 47). There is nothing unreasonable about the Board’s imposition
of the condition as drafted and referencing some of the Applicant’s other
conduct.
V. Conclusion
[24]
Since
there was no breach of procedural fairness or apprehension of bias and I consider
the Board’s decision as upheld by the Appeal Division reasonable, this
application for judicial review is dismissed.
JUDGMENT
THIS
COURT’S JUDGMENT is that this
application for judicial review is dismissed.
“
D. G. Near ”
Email this Content