Date:
20120720
Docket:
T-2078-11
Citation:
2012 FC 921
Ottawa, Ontario,
July 20, 2012
PRESENT: The
Honourable Mr. Justice Harrington
BETWEEN:
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GORDON PARGELEN
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Applicant
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and
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ATTORNEY GENERAL
OF CANADA
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Respondent
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REASONS FOR
ORDER AND ORDER
[1]
After
serving his last of many sentences for sexual assault, some of which included
physical violence and kidnapping, Mr. Pargelen was placed under the long-term
supervision of the National Parole Board, the whole in accordance with section
752 and following of the Criminal Code. The term of this supervision
runs from 2009 through to 2015.
[2]
Depending
on his progress, or lack of same, various special conditions have been imposed,
removed, or replaced from time to time.
[3]
This
judicial review is of three special conditions imposed 22 November 2011. They
are:
[…] Not to own, use or possess a computer, as
defined in section 342.1 of the Criminal Code, or any technological
device that would allow you unsupervised access to the internet, except for
working purposes.
[…] Refrain from possessing or using wireless
telecommunication devices, except for working purposes.
[…] Provide documented financial information to the
satisfaction of your parole supervisor as per a schedule to be determined by
your parole supervisor regarding expense information and financial transaction
information.
[4]
There
were other special conditions imposed which are not under challenge.
[5]
Shortly
before the hearing in this Court, the Board withdrew two of the three special
conditions in issue, the ones relating to computers and wireless
telecommunication devices. Other special conditions were imposed, including a
direction that he reside at a community correctional centre or approved
facility for a period of six months. As a result, the Attorney General, on
behalf of the Board, submits that this judicial review should be limited to the
financial reporting special condition, as the other two conditions are now
moot. Counsel for Mr. Pargelen submits that there is an important point of law
involved so that the Court, in its discretion, should nevertheless review all
three special conditions.
THE FACTS
[6]
The
three special conditions in issue were imposed in a detailed set of reasons
issued by the Board. The report sets out in painful detail his various
convictions, primarily involving physical and sexual assault of children. He
has been assessed as being at extremely high risk for sexual re-offending. His
supervision has been subject to various suspensions because of his inappropriate
behaviour. At the conclusion of the analysis, the Board explained why it was
imposing the three special conditions in issue:
At the hearing, you mentioned that you comply with
the obligation to disclose your pay checks. However, your parole officer
mentioned that this good behaviour is recent and that you have refused to
co-operate with your CMT during a long time regarding this matter. The Board
considers important to supervise your financial transactions, namely your
expenses. Moreover, your supervisor must be informed about your acquisitions
considering that you have been found in possession of telecommunication devices
without authorization. Consequently, you will have to provide documented
financial information to the satisfaction of your parole supervisor, as per a
schedule to be determined by your parole officer, regarding expense information
and financial transaction information.
You have been involved in sexual offences against
children. It is important to supervise the use of any technological device
allowing you access to the Internet. Consequently, you will be forbidden to
own, use or possess a computer, as defined in section 342.1 of the Criminal
Code, or any technological device that would allow you unsupervised access
to the internet, except for working purposes. For the same reason, you will
have to refrain from possessing or using wireless telecommunication device,
except also for working purposes. These measures will permit a strict
supervision of the use of these devices.
These conditions are necessary and reasonable to
protect society and help you with your social reintegration.
[7]
The
Court was provided with the Board’s more recent decision for information
purposes only. It, in itself, is not subject to this judicial review. However,
it bears noting that, in theory, in any event, Mr Pargelen’s access to
computers and wireless internet devices are restricted while at a halfway
house. It may well be, of course, that these conditions will be re-imposed once
the current 180-day term at a halfway house expires in about five months time.
ISSUES
[8]
This
case gives rise to the following three issues:
a. Should
the Court render a decision with respect to the special conditions which are
currently withdrawn?
b. What
is the standard of review? Mr. Pargelen submits that what is at issue is an
interpretation of law, subject to the correctness standard, without any
deference owed to the Board. The Attorney General submits that the
reasonableness standard applies.
c. How
closely must the special conditions be connected to the offences for which
convictions were obtained?
DISCUSSION
a. Mootness
[9]
The
record shows that the special conditions imposed upon Mr. Pargelen vary from
time to time depending on his progress in reintegration or lack of same. He had
been previously subject to a 180-day term in a halfway house, which term had
expired, but has again been re-imposed. That condition has a direct connection
to his access to computers and to wireless communications during non-working
hours. In the circumstances, nothing is to be gained by assessing the decision
of the Board, irrespective of the standard of review. The application is moot
on those points.
[10]
Should
the controversy become live again, it will have to be based, to some extent, on
different facts. In the circumstances, I decline to exercise my discretion (Borowski
v Canada (Attorney General), [1989] 1 S.C.R. 342, 92 NR 110). In any event,
the issue underlying all three of the special conditions is the extent to which
the conditions must be connected to the offender’s convictions. That issue is
in even better focus in the financial reporting special condition, which shall
be dealt with.
b. Standard of Review
[11]
Mr.
Pargelen relies upon the decision of Mr. Justice Zinn in Dixon v Canada
(Attorney General), 2008 FC 889, [2009] 2 FCR 397, in which he held that on
questions of law involving the Corrections and Conditional Release Act,
the standard of review of decisions of the National Parole Board is
correctness. In my opinion, that case is distinguishable in that I consider the
decision in issue here to be a mixed one of both fact and law, which is subject
to the reasonableness standard. Furthermore, it is clear from Mr. Justice
Zinn’s reasoning that he considered the decision under review before him to be
absurd. That is to say, it would have been set aside even on a reasonableness
standard.
[12]
The
Supreme Court is leaning more and more to the proposition that deference is
owed to decision makers dealing with points of law pertaining to their home
statute (Alberta (Information and Privacy Commissioner) v Alberta Teachers’
Association, 2011 SCC 61, [2011] 3 S.C.R. 654). In light of how I have
characterized the decision, it is unnecessary, and not helpful, to opine as to
the standard of review applicable to decisions of the Board on pure points of
law relating to the Act, as well as regulations and policy guidelines
thereunder.
c. Relationship Between the
Offence and Special Conditions Imposed
[13]
As
stated in section 100.1 of the Act, the protection of society is the paramount
consideration for the Board. Principles guiding the Board with respect to
conditional releases are set out in section 101 of the Act. The Board is to
take into consideration assessments provided by correctional authorities. Its
decisions are to be consistent with the protection of society “and that are
limited to only what is necessary and proportionate to the purpose of
conditional release”. Section 134.1 of the Act sets out conditions for
long-term supervision, the particulars of which are set out in section 161(1)
of the Corrections and Conditional Release Regulations, with such
modifications as the circumstances require. Section 161 of the Regulations sets
out a number of general conditions which include reporting any change in
employment and the offender’s financial situation.
[14]
In
addition to such general conditions, in accordance with section 134.1(2) of the
Act, the Board may establish special conditions “that it considers reasonable
and necessary in order to protect society and to facilitate the successful
reintegration into society of the offender.”
[15]
At
the heart of Mr. Pargelen’s submissions are paragraphs 7 through 9 of section
7.1 – Release Conditions of the National Parole Board Policy Manual,
they read:
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7.
A special condition may be imposed only when the condition is considered
reasonable and necessary in order to protect society and to facility the
successful reintegration into society of the offender.
8.
Board members will be satisfied that without the assistance and control
afforded by compliance with the special condition, the offender presents an
undue risk to reoffend. There must be a clear link between the condition and
the probability of reoffending if the condition is violated.
9.
A special condition must relate directly to risk, to a need identified in the
decision documentation or to behaviour that the Board members consider
inappropriate or unacceptable. The condition must be one that can be complied
with and that can be monitored and enforced by the parole officer. Board
members should ensure that special conditions do not contradict court orders.
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7.
Une condition spéciale peut être impose seulement lorsqu’elle est jugée
raisonnable et nécessaire pour protéger la société et favoriser la
réinsertion sociale du délinquant.
8.
Les commissaires doivent être persuadés que, sans l’aide et le contrôle
assurées par le respect de la condition spéciale, le délinquant présentera un
risque inacceptable de récidive. Il doit y avoir un lien clair entre la
condition imposée et la probabilité de récidive si la condition n’est pas
respectée.
9.
Une condition spéciale doit être directement liée au risque que présente le
délinquant, à un besoin du délinquant tel qu’exposé dans la décision ou à un
comportement que les commissaires jugent inapproprié ou inacceptable. Il doit
s’agir d’une condition que le délinquant peut respecter et que l’agent de
libération conditionnelle peut surveiller et faire appliquer.
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[16]
Mr.
Pargelen’s counsel emphasizes that the financial reporting requirement does not
relate directly to the risk of recidivism based on previous convictions.
[17]
Counsel
suggests that in the light of the recent decision of the Supreme Court in Greater
Vancouver Transportation Authority v Canadian Federation of Students – British
Columbia Component, 2009 SCC 31, [2009] 2 S.C.R. 295, the guidelines have the
force of law. That case related to policies of two transportation authorities
to the effect that they would permit commercial, but not political, advertising
on their vehicles. The question was whether the Canadian Charter of Rights
and Freedoms applied and whether this policy imposed a reasonable
restriction under section 1 thereof. Paragraph 65 was quoted, it provides:
Thus, where a government policy is authorized by
statute and sets out a general norm or standard that is meant to be binding and
is sufficiently accessible and precise, the policy is legislative in nature and
constitutes a limit that is “prescribed by law”.
[18]
I
do not think this case is helpful to Mr. Pargelen. The entire Act, Regulations
and Policy are strictly in accordance with the Charter. If the Policy
went beyond the Act and the Regulations, then it could well be argued that it
is capricious.
[19]
The
submission is that the special condition with respect to financial reporting
does not relate directly to the risk to society posed by Mr. Pargelen. However,
paragraph 9 also provides that the condition relate to behaviour considered
inappropriate or unacceptable.
[20]
In
this particular case, the record shows that there are four factors relating to
Mr. Pargelen’s risk of recidivism. They are:
a. his
sexual deviance;
b. his
relationship with other people, particularly women;
c. his
anger management; and
d. his
lack of cooperation.
[21]
More
particularly, the record indicates that in the past he had used money for
improper purposes, such as purchasing wireless communication equipment,
contrary to a condition then imposed. There are several other instances of his
lack of cooperation.
[22]
In
my opinion, the decision of the Board that Mr. Pargelen’s behaviour was inappropriate
or unacceptable was reasonable and that the special condition imposed directly
relates thereto.
[23]
The
manual is not law as such. I share the view expressed by Mr. Justice Lemieux in
Sychuk v Canada (Attorney General), 2009 FC 105, 340 FTR 160, affirmed
2010 FCA 7, 399 NR 12, at paragraph 11, where he reiterated the principle that
manuals do not have the force of law but nevertheless such directives do
furnish indications of what is reasonable in a discretionary context.
[24]
In
one sense, Mr. Pargelen submits that the manual restricts the discretion given
to the Board pursuant to section 134.1 of the Act. I cannot subscribe to that
view. The history of the section was discussed by the Federal Court of Appeal
in Normandin v Canada (Attorney General), 2005 FCA 345, [2006] 2 FCR
112. At issue was whether the discretion set out in section 134.1 was, as a
matter of statutory interpretation, restricted by more specific provisions
within the Act. As Mr. Justice Létourneau stated at paragraph 29 thereof:
Subsection 134.1(2)
of the Act, cited by the Board as authority for imposing a residence
requirement, contains a general power to ensure the protection of society and
facilitate the successful reintegration into society of a long-term offender by
imposing on him the conditions of supervision that the Board considers
reasonable and necessary for this purpose. This general power, in my opinion,
is not precluded by the more specific provisions in sections 99.1, 134.1, 135.1
and subsection 133(4.1) of the Act. I will return later to the mutual
interrelationship of these provisions. Suffice it to say at present that I
agree with the remarks by Russell J. in McMurray v. Canada (National Parole Board), 2004 FC 462, reproduced in the instant case by
Tremblay-Lamer J.
[25]
If
other sections of the Act do not have the effect of restricting the Board’s
discretion, certainly its own manual cannot be interpreted in such a way.
COSTS
[26]
Mr.
Pargelen submits that since an important issue of law was involved, costs
should not be awarded against him in the event that his application is
dismissed. While I do not agree with that proposition, he was required to put
in time and effort on two issues which have become moot. In the circumstances I
shall fix costs in a lump sum of $500, all inclusive.
LANGUAGE
[27]
Mr.
Pargelen’s first language is English. He selected that language as his language
of communication with the Board and so the record under review is in English.
As a matter of convenience to counsel, the judicial review was heard in French.
However, Mr. Pargelen requested that reasons be first issued in English, and so
it shall be.
ORDER
FOR
REASONS GIVEN;
THIS
COURT ORDERS that:
1.
The
application for judicial review is dismissed.
2.
The
whole with costs in favour of the respondent fixed at $500.
“Sean Harrington”
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