Docket: T-343-11
Citation: 2012 FC 268
Ottawa, Ontario, February 27,
2012
PRESENT: The Honourable Mr. Justice Near
BETWEEN:
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PETER COLLINS
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Applicant
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and
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THE ATTORNEY GENERAL OF CANADA
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Respondent
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REASONS FOR JUDGMENT AND
JUDGMENT
[1]
This
is an application for judicial review of a decision of the National Parole
Board (the Board) – Appeal Division, dated January 20, 2011. The Appeal
Division upheld the determination to deny full parole primarily because the Applicant
would be deported to the United Kingdom (UK) where he would not be subject to
supervision.
[2]
For
the following reasons, this application is dismissed.
I. Background
[3]
The
Applicant, Peter Collins, is currently serving a life sentence for first degree
murder at Bath Institution. His eligibility date for full parole was October
14, 2008.
[4]
The
Applicant is a citizen of the UK. Should he be released from prison on day
parole, full parole, or an unescorted temporary absence; he will be deported
back to the UK.
A. Decision
of the Board
[5]
Following
a hearing on June 11, 2010, the Board reached the decision to deny day or full
parole to the Applicant.
[6]
The
Board acknowledged the Applicant’s institutional performance had not been
problematic for a number of years. He was involved with the harm reduction
movement and HIV/AIDS awareness. He had also derived benefit from programs completed
during incarceration.
[7]
The
Board considered the Applicant’s efforts to create a framework of support in
the UK. This included
a letter indicating that he would reside with his aunt and be supported by a
Circle of Support and Accountability on arrival. There was also information
that the support group in England believed he would be
eligible to be subject to a Violent Offender Order or Acceptable Behaviour
Contract.
[8]
However,
the Board found that these arrangements, although well-intentioned, did not
provide statutory supervision. He would not be the subject of a license in the
UK and the
National Probation Service indicated in the previous year that they would not
provide any sort of supervision or support for him.
[9]
The
Board also expressed concern that the Applicant continued to be assessed as a
moderate risk for re-offending. It referred to an underlying issue of what the
psychiatrist called argumentativeness, or attitude toward authority that had
coloured his relationship with staff of Correctional Service of Canada for many
years.
[10]
The
Board concluded:
The primary difficulty that you
face is your deportation status, in addition to the assessment of your risk.
However, the Board notes that you have the ability to request a transfer to the
United Kingdom and refuse to do so and the
Board’s assessment of your risk, in the absence of supervision, remains a valid
concern.
To briefly summarize, while the Board
understands that your assessed risk has likely reduced from what it had been,
you are still assessed as posing a moderate risk for re-offending violently.
The plan that you have proposed for full parole, if deported to England, does not provide the level
of supervision required to meet that risk, and as a consequence, the Board has
concluded that your risk remains undue.
B. Decision
of the Board’s Appeal Division
[11]
The
Appeal Division upheld the Board’s decision to deny day and full parole. It
found no breach of the duty to act fairly or to ensure an impartial hearing as
all relevant information, both positive and negative, was carefully assessed
and weighed.
[12]
The
Appeal Division was also satisfied that the Board conducted a fair risk
assessment in accordance with the criteria set out in the Corrections and
Conditional Release Act, SC 1992, c 20 (CCRA) and reached
decisions that were “reasonable and well supported.”
[13]
More
specifically, the Board was found to have appropriately advised the Applicant
that should a conditional release be granted, an immigration bail hearing was
required and if bail was denied, he would be deported to England and not
subject to any mandatory supervision.
[14]
The
Appeal Division stressed that the Board assesses an offender’s risk on parole
based on the decision-making criteria set out in section 102 of the CCRA,
regardless of whether an offender is released in Canada or
deportable to another country. The protection of society is the paramount consideration
in the determination of any case under paragraph 101(a) of the CCRA, no
matter where an offender intends to reside.
[15]
The
Board was found to have conducted a fair assessment and considered the positive
aspects of the Applicant’s case. The Appeal Division stated “the Board could
not ignore the fact that despite all your accomplishments (e.g.
programming/counselling, peer counselling and HIV/AIDS work, escorted temporary
absences (ETA’s), compliant behaviour), you continued to be assessed as a moderate
risk for reoffending violently.”
[16]
The
Board was also able to consider and weigh the fact that there would be no
mandatory supervision or an insufficient level of supervision in the foreign
country to adequately manage and monitor an offender’s level of risk. In
reaching this conclusion, the Appeal Division relied on the determinations of
this Court in Scott v Canada (Attorney General), 2010 FC 496, [2010] FCJ
no 595 and Pashkurlatov v Canada (Attorney General), 2008 FC 153,
[2008] FCJ no 192.
[17]
The
Appeal Division summarized its determination regarding the Applicant’s parole
decision as follows:
It is clear from the Board’s written
reasons that the Board appropriately focussed upon the crucial issue of whether
granting you parole would constitute an undue risk to society pursuant to the
criteria set out in CCRA. In essence, the Board’s refusal to grant your
parole was based on your very serious and violent index offence for the First
Degree Murder of a police officer for which you are serving a life sentence,
your assessed moderate risk to reoffend violently and the fact that your
proposed release plans in England did not provide for a sufficient level of
supervision required to manage that risk.
[…]
The Board’s decisions to deny day and
full parole are the least restrictive determinations consistent with the
protection of society.
II. Relevant
Provisions
[18]
Sections
100-102 of the CCRA establish the purpose and principles guiding the
Board in parole determinations by stating:
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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.
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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.
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[19]
Section
128 addresses immigration status and its implications for parole:
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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.
[…]
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.
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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.
[…]
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.
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[20]
Subsection
50(b) of the Immigration and Refugee Protection Act, SC 2001, c 27
ensures that a removal order made in respect of a foreign national who has been
sentenced to a term of imprisonment in Canada is stayed
until that person’s sentence is completed.
III. Issue
[21]
The
sole issue raised by this application is as follows:
Did the Board
and Appeal Division err in finding that the term “society” within sections 100-102
of the CCRA was intended to include societies outside of Canada?
IV. Standard
of Review
[22]
The
Board and Appeal Division have recognized expertise in matters related to the
administration of the CCRA (see for example Sychuk v Canada (Attorney
General), 2009 FC 105, [2009] FCJ no 136 at para 45; Bouchard v
Canada (National Parole Board), 2008 FC 248, [2008] FCJ no 307 at para 37).
The reasonableness standard has therefore been applied to questions of fact,
mixed fact and law and statutory interpretation arising in this context (see Scott,
above at para 32).
[23]
In
considering reasonableness, this Court should only intervene where the decision
does not accord with the principles of justification, transparency and
intelligibility or falls outside the range of possible, acceptable outcomes
(see Dunsmuir v New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190 at para 47)
V. Analysis
[24]
The
effect of granting this application would be to reject the decision of Justice
Paul Crampton in Scott, above, where he previously held that the term
“society” in the CCRA must be read to include any society outside Canada. The Applicant
has not persuaded me of the merits of adopting that approach.
[25]
Scott, above, also
involved a UK citizen
serving a life sentence in Canada. His parole was likewise denied because
he continued to pose a risk and would be subject to insufficient supervision on
return to his country of nationality. On judicial review, the Applicant
unsuccessfully challenged the interpretation of “society” in the CCRA as
extending beyond Canada’s borders.
[26]
Justice
Crampton noted at para 43 that since Parliament chose to insert the word “society”
in various sections of the CCRA while employing the words “Canadian
society” in other instances, this was indicative of an intention not to limit
“society” as used in the CCRA to Canada. In support
of this interpretation, he referred to Canada’s international
obligations at para 44:
[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.
[27]
As
a consequence, Justice Crampton found at paras 46-50 that the Board should
“consider whether a foreign offender’s release plan sufficiently mitigates the
risk to the foreign society to warrant removing the offender to that society.” The
fact that an offender “may not be subject to any ongoing state or other
effective supervision or monitoring” constitutes information that is relevant
to a case.
[28]
This
reasoning also expanded on previous jurisprudence. In Pashkurlatov,
above at paras 9-10, the Court highlighted that “[t]he Board is mandated to
exercise caution in releasing persons before their sentence is served or the
period for statutory release had been reached” and “[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.” Although not central to his final determination and left to
be resolved in future cases, Justice Frederick Gibson in Ng v Canada
(Attorney General), 2003 FCT 781, [2003] FCJ no 1018 at paras 21-26 implied
the term “society” in the CCRA could include “society at large” as
opposed to a narrower conception of “Canadian society.”
[29]
The
Applicant asks the Court to reconsider this line of reasoning based primarily
on the decision in Capra v Canada (Attorney General), 2008 FC 1212,
[2008] FCJ no 1519 where an offender asserted Canadian Charter and Rights of
Freedoms (Charter) violations in relation to subsection 128(4) of
the CCRA. He suggests that the interpretation adopted in Capra
creates a clear distinction between Canadian and non-Canadian societies and
recognized the potential for differential treatment of foreign offenders.
[30]
However,
I am inclined to agree with the Respondent’s position that this interpretation
of Capra is incorrect and of limited assistance to the Applicant. The
Court in Capra did not find any Charter violations and, even if
these violations occurred, subsection 128(4) of the CCRA was considered
a reasonable limit prescribed by law that could be demonstrably justified under
section 1. The Court explicitly recognized at para 42 that the
“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.”
[31]
To
the extent that any distinction was referred to it was in relation to those
foreign nationals facing a deportation order, a concern that was found to be a
necessary consequence of a valid deportation scheme. Justice James Russell
stated at para 102 of Capra, above:
[102] The removal order is part of a
constitutionally valid deportation scheme that does not offend the Charter.
This constitutionally valid differential treatment of the Applicant has to be
taken into account in sentencing. Subsection 128(4) is Parliament's attempt to
deal with the adjustments to sentencing that are required as a result of the
valid constitutional distinction that is made between the Applicant as a
foreign national subject to removal and Canadian offenders and foreign national
offenders who are not subject to removal. The change in the form of the
sentence is a response to, and is consequential upon, a valid deportation
scheme. This is why, I believe, the Respondent sees it as part of that
deportation scheme. As I have already pointed out, that is a position I cannot
accept because of my view of the jurisprudence as to what qualifies as a
deportation scheme under section 6 of the Charter. However, I think it is
accurate to say that the differential treatment embodied in subsection 128(4)
of CCRA is a necessary consequence of a valid deportation scheme. Once a
removal order enters the picture, it is difficult to see how foreign offenders
could be treated in the same way as their Canadian equivalents. […]
[32]
He
further noted at para 108 that “[t]he impact is negligible, in my view, because
the offender has no right of access to Canadian society.”
[33]
In
Scott, above at para 48, Justice Crampton expressly rejected any
implications arising from Capra, above and found the conclusions reached
generally supported his views. He stated:
[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).
[34]
These
comments are equally true of the Applicant’s case. Any earlier conclusions in Capra, above, do not
warrant a reconsideration of the overall reasoning in Scott. In
considering a foreign offender’s release, “society” as referred to section
100-102 necessarily requires reference to any society outside Canada that would
be impacted or provide insufficient supervision.
[35]
Contrary
to the Applicant’s assertions, this interpretation of “society” is consistent
with the Interpretation Act, RSC 1985, c I-21 that requires a “large and
liberal construction and interpretation” of the term. It is also reflective of
the principles of statutory interpretation that the “words of an Act are to be
read in their entire context and in their grammatical and ordinary sense
harmoniously with the scheme of the Act, the object of the Act, and the
intention of Parliament” (see for example the reference in Bell
ExpressVu Limited Partnership v Rex, 2002 SCC 42, [2002] 2 S.C.R. 559 at para
26). As the Respondent notes, “society” in its ordinary sense is not
restricted to Canada and is
distinguished from the use of the term “Canadian society” in other legislative
enactments. Scott and Capra, above, agree that the intention of
Parliament was to take into account the concerns of foreign countries.
[36]
While
the Applicant does not advance a Charter claim, he further asserts that
the interpretation of “society” by the Court and as subsequently adopted by the
Board’s Appeal Division discriminates against foreign offenders by making it
more difficult for them to obtain parole. Subsection 101(b) of the CCRA
is nonetheless clear that the Board “take into consideration all available
information that is relevant to a case.” The risk posed by the offender and
the effectiveness of any release plan are assessed on their merits. Where a
foreign national offender is subject to a deportation order, its impact must be
taken into account in this assessment.
[37]
Failure
to do so would ignore that offenders such as the Applicant would be removed to
their country of nationality where they were would not be subjected to
mandatory supervision or other conditions. Not only would this be an unfair
advantage for the offender, it could pose an ongoing risk to the receiving
state.
[38]
For
these reasons, I am not prepared to disregard the holding in Scott,
above, that “society” in sections 100-102 of the CCRA includes those
outside of Canada. It was
appropriate for the Appeal Division to refer to the case in making its
determination regarding the Applicant. He continues to pose a moderate risk of
re-offending violently and if deported to the UK, despite his
detailed plans, would not be subject to mandatory supervision. Having
considered all relevant factors, it was within the range of possible,
acceptable outcomes to conclude that granting parole would pose an undue risk
to “society”, even though the society at issue was in the UK.
VI. Conclusion
[39]
The
Board and Appeal Division reasonably relied on the jurisprudence of this Court
in considering that the term “society” was not confined to Canada to determine
that since the Applicant would be deported to the UK without
mandatory supervision and continued to pose a risk; parole should be denied. The
primary consideration remains the protection of society. I see no reason to
depart from the conclusion in Scott, above, and impose a narrower
construction of that term.
[40]
Accordingly,
this application for judicial review is dismissed.
JUDGMENT
THIS COURT’S JUDGMENT
is that
this application for judicial review is dismissed.
“ D.
G. Near ”
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