Date:
20121102
Docket:
T-1228-11
Citation: 2012
FC 1289
Ottawa, Ontario,
November 2, 2012
PRESENT: The
Honourable Mr. Justice de Montigny
BETWEEN:
|
|
SHAUN ROOTENBERG
|
|
|
|
Applicant
|
|
and
|
|
|
THE ATTORNEY GENERAL OF CANADA
|
|
|
|
Respondent
|
|
|
|
|
REASONS FOR
JUDGMENT AND JUDGMENT
[1]
The
Applicant seeks judicial review of the National Parole Board Appeal Division’s
(the “Appeal Division”) confirmation of a parole revocation decision made by
the National Parole Board (the “Board”) pursuant to paragraph 107(1)(b) of the Corrections
and Conditional Release Act, SC 1992, c 20 [CCRA]. The Applicant
essentially submits that both the Board and the Appeal Division misconstrued
his parole condition and the evidence, and failed to provide adequate reasons
for the decision to revoke his day parole. For the reasons that follow, I have
come to the conclusion that the application ought to be dismissed.
BACKGROUND
[2]
On
May 29, 2005, the Applicant was sentenced to 3 years and 6 months imprisonment
for three counts of fraud over $5,000 and two counts of failure to comply with
recognizance. He was held in custody at the Beaver Creek minimum security
institution in Gravenhurst, Ontario.
[3]
As
a first time offender serving a sentence for a non-violent crime, the Applicant’s
case was reviewed by the Board on October 20, 2009, for accelerated parole
release pursuant to what was then section 126 (now repealed) of the CCRA.
The Board decided he should be released on day parole subject to the following
condition of release (the “employment condition”):
You are not to be employed, paid or unpaid, in a
position which provides you with access to the financial records of others or
puts you in a position of knowledge, or responsibility, for the management of
finances for any other person, business or charity.
Applicant’s Application Record, Tab 3, Exhibit “A”,
p 15.
[4]
As
a result, the Applicant was released on December 13, 2009, to the St. Leonard’s House (Peel) on day parole.
[5]
In
February 2010, the Applicant accepted a job offer with a company named D-Bor
without the approval of his parole officer. This company was in the business
of recruiting athletes, connecting them with sports agents, offering them
lucrative endorsement contracts, and advertising. After discussion with his employer,
the Applicant’s supervision team permitted him to continue his employment, with
the understanding that the job was an information technology position. During
the first supervision appointment, the Applicant informed his parole officer about
the possibility of traveling for business. At the second supervision
appointment, the Applicant revealed that he had been negotiating with Apple for
the supply of computers, iPods and iPads, but assured his parole officer that
he had no involvement in financial transactions. Regardless, the parole
officer raised concerns that the Applicant was in danger of stepping into the
area of finances, contrary to his employment condition.
[6]
Subsequently,
the parole officer approved a business trip to London for the Applicant to meet
a young golfer. This trip was approved on the premise that the Applicant was
the only one available for this appointment and, as an avid golfer, would be
able to assess the golfer’s skills and future prospects with the company.
[7]
A
short while later, the Applicant requested another permit, this time for travel
to Vancouver. Initially, the Applicant had planned to leave on April 12, 2010,
and to return on April 14, 2010. These travel arrangements changed a number of
times. Ultimately, his parole officer believed that the Applicant had decided
to shorten his trip to Vancouver to depart on April 13, 2010, but had yet to
approve the plan. While the travelling dates were still unresolved, the
Applicant presented himself at the 21 Division Peel Regional Police in an
attempt to switch his appointed reporting date and time from April 14, 2010 to
April 15, 2010 to accommodate his travel plans. During the course of the
conversation, the police officer came to believe that the Applicant had
breached his employment condition and obtained access to and acquired knowledge
of the financial information of another person, namely information about the
golfer and his father. He further suspected that the Applicant’s employer, Mr.
Wells Davis, may have become a victim of fraud. The police opened an
investigation.
[8]
The
investigation was inconclusive as the police were unable to contact the golfer
or his father. After an interview with the Applicant’s employer, the
investigating officer was also satisfied that the employer had not been
defrauded and, as such, no charges were laid against the Applicant.
Nevertheless, the police found that Mr. Davis was not fully aware of the
Applicant’s criminal history and had entrusted the Applicant with the sole
responsibility of running the company – apart from any actual financial
transactions – as Mr. Davis had rather limited business acumen and was employed
on a full-time basis elsewhere. On May 10, 2010, on the basis of the police
investigation, the Applicant’s area parole officer recommended that his parole
be revoked.
[9]
On
July 28, 2010, the Board conducted a hearing and decided to revoke the
Applicant’s parole on the same day. The Board concluded:
… there are significant discrepancies between your
[the Applicant’s]
version of events and the information provided by your supervision team. After
careful consideration of all of the file information and the interview with you
today, the Board is satisfied that you not only breached your employment
condition as outlined above, but also, you were deceptive and manipulative by
providing a less than truthful description of the scope of your employment
duties and your activities to your supervision team. The Board accepts your
case management team’s statements about the permission given for you to accept
only an IT position with the company. Your assertion that your case management
team was fully aware of your employment activities is not consistent with your
parole officer’s expressed concerns about your negotiations with Apple and her
reservations about giving you permission to go to London to play golf with a
prospective client of the company. Your criminal history involves convictions
for fraud and failures to abide by release conditions. The deception evident
in your interactions with your case management team is similar to the behaviour
involved in your criminal activities. Having found that you breached your
employment condition and were deceptive and manipulative with your case
management team, the Board has concluded that risk is not manageable for
community release. Therefore, your day parole is revoked. …
Applicant’s
Application Record, Tab 3, Exhibit “D”, Board Post Release Decision Sheet, p
130.
[10]
On
September 27, 2010, the Applicant appealed the Board’s decision. On March 4,
2011, the Appeal Division considered the Applicant’s appeal and affirmed the
revocation decision.
THE IMPUGNED
DECISION
[11]
The
Appeal Division first addressed the Applicant’s argument that the Board acted
unfairly as it disclosed only one day prior to the hearing, a copy of the
police summary of the April 12, 2010 video-taped statement, and then refused to
postpone the hearing to give him a sufficient opportunity to prepare, contrary
to subsection 141(3) of the CCRA. The Appeal Division noted that the
Board itself had received the police summary on the morning of the hearing and
advised the Applicant accordingly. In those circumstances, the document was
shared with the Applicant “as soon as practicable”, as mandated by subsection
141(2) of the CCRA. As for the argument that the Applicant had not
waived his right to receive information 15 days in advance of his hearing, the
Appeal Division rejected it since subsection 141(3) refers back to subsection
141(1) and is limited to a situation where an offender has waived the sharing
timeframe, which is not the Applicant’s situation.
[12]
Relying
on the audio-recording of the hearing, the Appeal Division further remarked
that neither the Applicant nor his counsel requested a postponement of the
hearing. In fact, counsel for the Applicant specifically stated that it was
not in the Applicant’s interest to postpone the hearing. She simply suggested
that the Board consider an adjournment at the end of the hearing to obtain the
full text of the Applicant’s video-taped statement to the police, which the
Board declined to do.
[13]
The
Appeal Division summed up its decision with respect to the fairness of the
hearing before the Board in the following paragraph of its reasons:
In light of the above facts, the Appeal Division is
satisfied that the Board acted fairly. You did not request a postponement. In
fact, your legal assistant stated that you wished to proceed. She also
suggested the option of an adjournment at the end of the hearing if the Board
felt it was necessary in order to obtain further information. The
audio-recording reveals that you were given a full opportunity to respond to
the information contained in the Police Summary. You were well aware of the
information and were able to place your video-taped statements in context.
Moreover, after the Board had finished questioning you on the Police Summary,
it confirmed with you that you had been given the opportunity to appropriately
respond to the issues raised in that document. In our view, the Board respected
the duty to act fairly.
Applicant’s
Application Record, Tab 3, Exhibit “F”, National Parole Board Appeal Division
Decision, pp 144-145.
[14]
The
Appeal Division then dealt with the Applicant’s contention that the Board had
misunderstood and misinterpreted the exact nature of the employment condition,
basing its decision on erroneous and incomplete information. In its decision,
the Board had reformulated the employment condition as follows: “You are not to
be employed, paid or unpaid, in a position which puts you in a position of
knowledge of finances for any other person.” According to the Applicant, this
is considerably broader than the condition imposed upon him at the time of his
release, according to which he was not to be employed in a position that would
put him in a position of knowledge or responsibility for the management of
finances for any other person, business or charity. The Appeal Division
rejected that argument, and opined that the Board was fully aware of the nature
of the Applicant’s condition for release. In the Appeal Division’s view, the
incomplete reference by the Board to the employment-related special condition
must be read in the context of its previous finding that the Applicant had
breached his condition of release by obtaining knowledge of the finances of the
golfer and his father.
[15]
Finally,
the Appeal Division did not agree that the Board based its decision on
information of questionable accuracy and reliability. The Appeal Division
found that the Board had asked fair and pertinent questions regarding the
Applicant’s behaviour since his release on day parole, had further clarified
the file information with his two Parole Officers, and had provided the
Applicant with a full opportunity to respond to and rebut any file information
that he believed was inaccurate or erroneous. In weighing the information
gathered at the hearing, the Board decided to favour the Applicant’s file
information over his account of the events. This conclusion was open to the
Board, according to the Appeal Division, and the Appeal Division was ultimately
satisfied that the Board’s decision was fair and reasonable.
ISSUES
[16]
Counsel
for the Applicant and for the Respondent disagree as to the relevant issues
raised by this application for judicial review. Having carefully examined the
record and the submissions of the parties, I am of the view that the following
questions must be determined:
a) Is the
application for judicial review moot and, if so, should this Court exercise its
discretion to hear it nonetheless?
b) What is the
applicable standard of review?
c) Is the
decision of the Appeal Division reasonable?
d) Are the
reasons provided by the Appeal Division sufficient?
THE LEGISLATIVE
FRAMEWORK
[17]
It
is well established that parole is not a right but a privilege: see, for
example, Woodhouse v William Head Institution, 2010 BCSC 754 at paras
44-47, rev’d on other grounds 2012 BCCA 45; Aney v Canada (Attorney
General), 2005 FC 182 at para 31 and Coscia v Canada (Attorney General),
2005 FCA 132 at para 44. Pursuant to paragraph 107(1)(b) of the CCRA,
the Board has “exclusive jurisdiction and absolute discretion” to terminate or
to revoke the parole or statutory release of an offender.
[18]
Section
100 of the CCRA sets out the purpose of conditional release, which is to
contribute to the maintenance of a just, peaceful and safe society by means of
decisions that will best facilitate the rehabilitation of offenders and their
reintegration into the community as law-abiding citizens. The new section
100.1 specifies that the protection of society is to be the paramount
consideration for the Board. Section 101, on the other hand, enumerates the
principles that the Board is to take into consideration in its decision making:
The
principles that guide the Board and the provincial parole boards in achieving
the purpose of conditional release are as follows:
(a)
parole boards take into consideration all relevant available information,
including the stated reasons and recommendations of the sentencing judge, the
nature and gravity of the offence, the degree of responsibility of the
offender, information from the trial or sentencing process and information
obtained from victims, offenders and other components of the criminal justice
system, including assessments provided by correctional authorities;
(b)
parole boards enhance their effectiveness and openness through the timely
exchange of relevant information with victims, offenders and other components
of the criminal justice system and through communication about their policies
and programs to victims, offenders and the general public;
(c)
parole boards make decisions that are consistent with the protection of society
and that are limited to only what is necessary and proportionate to the purpose
of conditional release;
(d)
parole boards adopt and are guided by appropriate policies and their members
are provided with the training necessary to implement those policies; and
(e)
offenders are 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.
[19]
Pursuant
to subsection 135(1) of the CCRA, an offender’s parole may be suspended
when he or she “breaches a condition of parole” or when the designated person
is “satisfied that it is necessary and reasonable to suspend the parole […] in
order to prevent a breach of any condition thereof or to protect society […].”
[20]
The
Board then reviews the case and, within the period prescribed by the
regulations, either cancels the suspension or terminates or revokes the
parole. Subsection 135(5) of the CCRA sets out the options available to
the Board as well as the applicable criteria:
The
Board shall, on the referral to it of the case of an offender who is serving a
sentence of two years or more, review the case and — within the period
prescribed by the regulations unless the Board, at the offender’s request,
adjourns the hearing or a member of the Board or a person designated, by name
or position, by the Chairperson postpones the review —
(a) if the Board is satisfied that the offender will, by
reoffending before the expiration of their sentence according to law, present
an undue risk to society,
(i) terminate the parole or statutory
release if the undue risk is due to circumstances beyond the offender’s
control, and
(ii) revoke it in any
other case;
(b) if the
Board is not satisfied as in paragraph (a), cancel the suspension; and
(c) if the
offender is no longer eligible for parole or entitled to be released on
statutory release, cancel the suspension or terminate or revoke the parole or
statutory release.
ANALYSIS
[21]
As
a preliminary issue, the Respondent, the Attorney General of Canada, disputes
the naming of the National Parole Board of Canada as a respondent in the
Application Record. I agree with the Respondent that the Board should be
removed as a respondent, pursuant to Rule 303 of the Federal Courts Rules.
Rule 303(1)(a), in particular, indicates that “an applicant shall name as
respondent every person directly affected by the order sought in the
application, other than a tribunal in respect of which the application is
brought” [emphasis added]. Given that the Board is the tribunal that made
the decisions in respect of which the Applicant is seeking judicial review, it
is improperly named as respondent: Gravel v Canada (Attorney General),
2011 FC 832 at para 5. While I note that the Notice of Application does not
mention the Board as a respondent, for greater certainty, the style of cause
shall be amended to remove the Board, thus making it clear that the Attorney
General is the sole respondent in the present matter.
a) Is the
application for judicial review moot and, if so, should this Court exercise its
discretion to hear it nonetheless?
[22]
The
Respondent argues that this Court should not exercise its discretion to decide
this application because the Applicant was released on day parole on August 19,
2011, and subsequently on statutory release on January 3, 2012, rendering the
matter moot. I agree with the Respondent that there is no remaining live
issue, as the Applicant obtained the remedy he was seeking in this application,
once released from detention.
[23]
According
to the Supreme Court of Canada in Borowski v Canada (Attorney General),
[1989] 1 S.C.R. 342 at para 15, 57 DLR (4th) 231, a proceeding becomes moot when
the case raises merely an abstract or hypothetical question; in other words,
“when circumstances have changed so that there is no longer a live controversy
between the parties that can be resolved by a decision in that proceeding” (Shoulders
v Canada (Attorney General), [1999] FCJ no 490 at para 6, 165 FTR 125).
[24]
That
being said, I am also of the view that the Court should exercise its discretion
to decide the merits of this case, despite the absence of a live controversy.
The Applicant’s ground for judicial review goes beyond the issue of him being
released and able to be gainfully employed. The Applicant argues that the
Board and the Appeal Division misconstrued his employment condition, which
resulted in an unlawful revocation of his parole.
[25]
According
to the Applicant, this alleged transgression of his parole condition will
permanently remain part of his criminal record and may have negative
consequences for him in the future. This Court accepted in Cowdrey v Attorney
General of Canada, 2010 FC 171, that an institutional conviction could be
used by Correctional Service Canada if the applicant were ever returned to
federal custody. The Court thus accepted that the detriment of an
institutional conviction to an applicant is not limited to his current
sentence. Moreover, the Court has further accepted that such information could
be shared with provincial police upon police request. In light of those
findings, this Court ought to exercise its discretion to review the decision
that the Applicant failed to comply with his condition of release and
constituted an unmanageable risk to the community even if it is moot. I note
in passing that my colleague Justice Zinn came to the same conclusion in a
similar situation: see Cotterell v Attorney General of Canada, 2012 FC 302 at paras 20-21.
b) What is the
applicable standard of review?
[26]
Subsection
147(1) of the CCRA sets out the grounds of appeal for a decision of the
Board. Pursuant to that provision, the Appeal Division must be satisfied that
the Board:
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.
[27]
In
reviewing the Board’s decision, the Appeal Division may at its discretion
(subsection 147(4) of CCRA):
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.
[28]
In
Cartier v Canada (Attorney General of Canada), 2002 FCA 384 [Cartier],
the Federal Court of Appeal characterized the Appeal Division as a hybrid
creature having both the characteristics of an appeal and reviewing tribunal.
While the powers exercised by the Appeal Division are closely associated with
the jurisdiction of an appeal court, the grounds for appeal are more akin to
those for judicial review. The Court also noted that paragraph 147(5)(a) of
the CCRA is clearly indicative of Parliament’s intention to limit
interference with the Board’s decision. That provision states as follows:
The
Appeal Division shall not render a decision under subsection (4) that results
in the immediate release of an offender from imprisonment unless it is
satisfied that
(a) the decision appealed from cannot reasonably be
supported in law, under the applicable policies of the Board, or on the basis
of the information available to the Board in its review of the case; and
(b) a delay in releasing the offender from imprisonment would
be unfair.
[29]
To
the extent that the Appeal Division has the power to affirm the Board’s
decision as well as to quash it, the same degree of deference should apply in
both instances. As the Federal Court of Appeal said in Cartier:
[9] If the applicable standard of review is that of
reasonableness when the Appeal Division reverses the Board's decision, it seems
unlikely that Parliament intended the standard to be different when the Appeal
Division affirms it. I feel that, though awkwardly, Parliament in s. 147(5)(a)
was only ensuring that the Appeal Division would at all times be guided by the
standard of reasonableness.
[10] The unaccustomed situation in which the Appeal
Division finds itself means caution is necessary in applying the usual rules of
administrative law. The judge in theory has an application for judicial review
from the Appeal Division's decision before him, but when the latter has
affirmed the Board's decision he is actually required ultimately to ensure that
the Board's decision is lawful.
[30]
As
for matters relating to procedural fairness, it is by now well established that
they must be reviewed on a standard of correctness. No deference is owed to
the decision-maker in such cases, and the only question to be decided is
whether the procedure followed was fair: Sketchley v Canada (Attorney
General), 2005 FCA 404 at para 53; Canadian Union of Public Employees v
Ontario (Minister of Labour), [2003] 1 S.C.R. 539, 2003 SCC 29 at paras 100-103.
c)
Is
the decision of the Appeal Division reasonable?
[31]
The
Applicant argues that the decision of the Appeal Division is unreasonable
because it is based on erroneous and unreliable information. In fact, this
allegation presupposes that the Appeal Division should have given greater
weight to the Applicant’s account of events than to the information contained
in his file, including statements made by his parole officer. It should be
noted, however, that the Applicant has historically resorted to deception and
manipulation in order to garner funds from family, friends and acquaintances.
This is not unimportant, considering that the Applicant disputes the Board and
the Appeal Division’s findings as based on erroneous and unreliable information
entered into his file by parole and police officers, while claiming that his
version of events, although unsubstantiated by documentary evidence, should
have prevailed, with his day parole maintained.
[32]
A
plain reading of the Board’s decision reveals that it considered all relevant,
reliable and persuasive evidence before it. The Board sets out a number of
factual findings upon which the revocation was constructed:
• The
Applicant accepted a job offer without the approval of the parole officer;
• The
supervision team permitted him to continue the employment on the understanding
that the job was an IT position;
• At
the second supervision appointment, upon learning that the Applicant had been
negotiating the acquisition of computers in the course of his employment, the
supervision team was concerned that the Applicant was “stepping over the line
into financial issues” and was “cautioned about the need to strictly comply
with the condition regarding employment”;
• The
Applicant acknowledged that the golfer’s “future prospects were discussed and in
the course of that conversation … there was some discussion of financial
issues”; and
• The
parole officer had “no idea that the company [the Applicant was] working for
consisted of [himself and Mr. Davis], who is employed full-time elsewhere.”
Applicant’s Application Record, Tab 3, Exhibit “D”, Board
Post Release Sheet, pp 129-130.
[33]
Relying
on these facts, the Board considered that it was inconceivable that the
Applicant would be running a company without having knowledge of the clients’
finances and came to the following conclusions:
• The
Applicant placed himself in a position of having knowledge of another person’s
finances;
• There
were significant discrepancies between the Applicant’s version of events and
his file information, and the Board chose to give greater weight to the latter;
• The
Applicant not only breached the employment conditions but was also deceptive
and manipulative by providing a less than truthful description of the scope of
his employment duties and activities to his supervision team;
• The
Applicant’s assertion that his case management team was fully aware of his
employment activities is not consistent with the concerns expressed by his
parole officer regarding the Applicant’s negotiations with Apple and his parole
officer’s reservations about giving him permission to go to London to play golf
with a prospective client of the company; and
• The
Applicant’s behaviour on day parole is similar to his fraudulent criminal
history and his poor supervision record.
[34]
It
is on the basis of all of this information and of all of these concerns that
the Board exercised its discretion to revoke the Applicant’s parole. Reviewing
the Board’s summary of the facts and its conclusions, the Appeal Division
reminded the Applicant that its role “is not to reassess risk and substitute
its discretion for that of the Board, unless the Board’s decision is
unreasonable and unsupported.” Accordingly, the Appeal Division refused to
alter the Board’s decision, as its reasons were more than sufficient to support
its conclusions.
[35]
I
am unable to conclude that the decisions of the Board and of the Appeal
Division fall outside of the range of possible, acceptable and defensible
outcomes. The Board and the Appeal Division chose to give more weight to the
information provided by the Applicant’s supervisory team than to the
Applicant’s own version of the events, and it was entitled to do so. The Court
must show a high degree of deference to the Appeal Division, and ultimately
ensure that the Board’s decision is lawful. Counsel for the Applicant has
failed to demonstrate that such is not the case here.
[36]
The
Applicant also challenged the Board and the Appeal Division’s decisions on the
grounds that they misconstrued his employment condition, attempting to frame
the issue as a question of procedural fairness. According to the Applicant, it
was procedurally unfair to misapprehend the employment condition and
subsequently to find him in breach of the misapprehended condition.
[37]
This
argument is without merit. First of all, the interpretation of the employment
condition is a mixed question of fact and law and ought not to be cast as an
issue of procedural fairness in an attempt to benefit from a more stringent
standard of review. Whether the Applicant breached that condition requires the
ascertainment of the meaning of that clause in the Day Parole Certificate and
the assessment of the facts as they relate to that condition when properly
understood; such an exercise has nothing to do with the fairness of a process.
[38]
The
argument is also without merit from a substantive point of view. According to
the Applicant, the employment condition comprised two parts: one prohibiting
access to financial records and the other prohibiting knowledge or
responsibility for the management of finances. He claims that the Appeal
Division made the same mistake as the Board when it stated that the condition
prohibited the Applicant from placing himself in the position of having
knowledge of a person’s finances. In the Applicant’s view, both decisions
collapse the two-part condition into one, interpreting the condition as a
prohibition against the knowledge of or access to financial information.
[39]
I
agree with the Respondent that the Board and the Appeal Division could
reasonably read the employment condition as a whole and interpret it as a
prohibition to access or manage the finances of others rather than artificially
segmenting it, as suggested by the Applicant. One should not lose sight of
section 100.1 of the CCRA, pursuant to which one of the guiding
principles of the Board in making decisions pertaining to conditional release
is the protection of society. The Board was thus justified in taking heed of
the impending risk to the community in assessing the Applicant’s activities in
light of his condition of release. The intent and purpose of the employment
condition was clearly to prevent the Applicant from being in a position where
he could take advantage of a person’s financial information in order to commit
fraud. In that context, the Board could reasonably be concerned about the
Applicant serving in a position where he was essentially running a company
geared towards recruiting young athletes, connecting them with sports agents,
and offering them lucrative contracts and advertising. Considering the obvious
financial ramifications of the Applicant’s position, both as related to the
company and to its clients, the Board was justified in not accepting the
Applicant’s statement that his position did not permit him to have knowledge of
the clients’ finances. In light of this evidence, the Appeal Division
reasonably affirmed the Board’s decision.
d) Are the
reasons provided by the Appeal Division sufficient?
[40]
Finally,
counsel for the Applicant argued that the reasons of the Appeal Division are insufficient,
as they fail to set out the findings of fact supporting the conclusion that the
Applicant had access to financial records and/or that he had knowledge or
responsibility for the management of finances. Once again, I am unable to
subscribe to that argument.
[41]
First
of all, as I hope to have made clear in the previous section of these reasons,
the reasons given by the Board and the Appeal Division are intelligible and
provide adequate notice to the Applicant of the basis for the revocation of his
day parole. They are substantial enough to allow the Applicant to determine
whether to appeal or seek further review, and they provide more than ample
information to enable a reviewing court to perform its function.
[42]
More
importantly, the Supreme Court of Canada has now made it clear that the
sufficiency of reasons is not an independent ground of review: see Newfoundland and Labrador Nurses’ Union v Newfoundland and Labrador (Treasury
Board), 2011 SCC 62, [2011] 3 S.C.R. 708 [Newfoundland Nurses]. The
reasons must be read together with the outcome. As stated by the Court in Newfoundland
Nurses , they “serve the purpose of showing whether the result falls within
a range of possible outcomes” (at para 14). Having already found that the
decisions of both the Board and the Appeal Division are reasonable in terms of
their outcome, I am equally of the view that they are reasonable with respect
to the process of articulating the reasons underpinning the result. Indeed, it
is impossible to dissociate the conclusion from the reasoning employed to reach
it. The reasons allow the Court to understand why the Board and the Appeal
Division made their decision and are sufficient to determine that the
conclusion falls within the range of acceptable outcomes. As such, the criteria
developed in Dunsmuir v New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190 (at
para 47) are met.
CONCLUSION
[43]
In
the result, I am satisfied that the decision of the Appeal Division to uphold
the Board’s decision was reasonable and that the Applicant was not denied
procedural fairness. This application is therefore dismissed. The Applicant
being on legal aid and the matter arising from a detention decision, I will not
award costs in this matter.
JUDGMENT
THIS
COURT’S JUDGMENT is that this application is dismissed. No
costs are awarded.
"Yves de
Montigny"
Email this Content