Date: 20090130
Docket: T-281-08
Citation: 2009 FC 105
Ottawa, Ontario, January 30,
2009
PRESENT: The Honourable Mr. Justice Lemieux
BETWEEN:
MAURICE
J. SYCHUK
Applicant
and
ATTORNEY
GENERAL OF CANADA
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
Introduction
[1]
The
Applicant seeks judicial review of the January 7, 2008 decision of the
Appeal Division, of the National Parole Board (the Appeal Division) dismissing
his appeal from the National Parole Board (the Board) refusing, by decision
dated July 30, 2007, his request to remove permanently a regulatory condition attached
to his full parole requiring him to “remain at all times in Canada within the
territorial boundaries fixed by your parole supervisor”. Mr. Sychuk represented
himself in this judicial review proceeding. He is a former member of the Law
Society of Alberta who was removed from its roster on account of a criminal
conviction in 1989 for second degree murder.
[2]
What
triggered his request to the National Parole Board was a January 15, 2007
decision by Passport Canada, made pursuant to sections 9(d) and 10 of the Canadian
Passport Order, to revoke his passport on the ground he was a person who
was forbidden to leave Canadian jurisdiction by conditions imposed under the Corrections
and Conditional Release Act (CCRA or the Act). Mr. Sychuk
never appealed Passport Canada’s decision but chose another route which
was an application to the Board to remove completely the regulatory
prohibition, despite the fact he had previously sought and obtained several
times permission from the Board to take specific two weeks vacations in Mexico
or Cuba.
Facts and background
[3]
The
material facts are not complicated.
[4]
The
Applicant is 67 years old and is serving a life sentence for the second degree
murder of his wife on January 28, 1989 whom he fatally stabbed while in a
drunken rage.
[5]
He
was granted day parole on March 1996 and full parole in 1998.
[6]
Sections
100 and 101 of the CCRA spells out the purpose of conditional release in
these terms:
|
Corrections and Conditional Release Act
( 1992, c. 20 )
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.
|
|
Loi sur le système correctionnel et la
mise en liberté sous condition ( 1992, ch. 20 )
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.
|
[7]
Subsection
133 of the Act deals with conditions attached to an offender’s release on
parole. This section reads:
|
Corrections and Conditional Release Act
( 1992, c. 20 )
Definition of “releasing authority”
133. (1) In this
section, "releasing authority" means
(a) the Board, in respect of
(i) parole,
(ii) statutory release, or
(iii) unescorted temporary absences authorized by the
Board under subsection 116(1);
(b) the Commissioner, in respect of unescorted temporary
absences authorized by the Commissioner under subsection 116(2); or
(c) the institutional head, in respect of unescorted
temporary absences authorized by the institutional head under subsection
116(2).
Conditions of release
(2) Subject to subsection (6), every offender released
on parole, statutory release or unescorted temporary absence is subject to
the conditions prescribed by the regulations.
Conditions set by
releasing authority
(3) The releasing authority may impose any conditions on
the parole, statutory release or unescorted temporary absence of an offender
that it considers reasonable and necessary in order to protect society and to
facilitate the successful reintegration into society of the offender.
…
Relief from conditions
(6) The releasing authority may, in accordance with the
regulations, before or after the release of an offender,
(a) in respect of conditions referred to in subsection
(2), relieve the offender from compliance with any such condition or vary the
application to the offender of any such condition; or
(b) in respect of conditions imposed under subsection
(3), (4) or (4.1), remove or vary any such condition.
|
|
Loi sur le système correctionnel et la
mise en liberté sous condition ( 1992, ch. 20 )
Définition d’« autorité
compétente »
133. (1) Au présent article,
« autorité compétente » s’entend :
a) de la Commission à l’égard de la
libération conditionnelle ou d’office ou d’une permission de sortir sans
escorte visée au paragraphe 116(1);
b) du commissaire à l’égard d’une permission
de sortir sans escorte visée au paragraphe 116(2);
c) du directeur du pénitencier à l’égard
d’une permission de sortir sans escorte visée au paragraphe 116(2).
Conditions automatiques
(2) Sous réserve du paragraphe (6),
les conditions prévues par règlement sont réputées avoir été imposées dans
tous les cas de libération conditionnelle ou d’office ou de permission de
sortir sans escorte.
Conditions particulières
(3) L’autorité compétente peut imposer au
délinquant qui bénéficie d’une libération conditionnelle ou d’office ou d’une
permission de sortir sans escorte les conditions qu’elle juge raisonnables et
nécessaires pour protéger la société et favoriser la réinsertion sociale du
délinquant.
…
Dispense ou modification des
conditions
(6) L’autorité compétente peut,
conformément aux règlements, soustraire le délinquant, avant ou après sa mise
en liberté, à l’application de l’une ou l’autre des conditions du présent
article, modifier ou annuler l’une de celles-ci.
|
[8]
The
relevant provisions of the Corrections and Conditional Release Regulations
(CCRR) is
section 161 reads:
|
Corrections and Conditional
Release Regulations (SOR/92-620)
161. (1) For the
purposes of subsection 133(2) of the Act, every offender who is
released on parole or statutory release is subject to the following
conditions, namely, that the offender
…
(b) remain at all times in Canada within
the territorial boundaries fixed by the parole supervisor;
…
|
|
Règlement
sur le système correctionnel et la mise en liberté sous condition
(DORS/92-620)
161. (1) Pour l'application du
paragraphe 133(2) de la Loi, les conditions de mise en liberté qui sont
réputées avoir été imposées au délinquant dans tous les cas de libération
conditionnelle ou d'office sont les suivantes :
…
b) il doit rester à tout moment au
Canada, dans les limites territoriales spécifiées par son surveillant;
…
|
[9]
To
provide guidance to Board members in the exercise of their mandate under
subsection 133(6) of the CCRA, the National Parole Board issued in its
Policy Manual guidelines on the subject.
[10]
The
introductory paragraph to the out-of-country section in the Policy Manual
reads:
Normally, if an offender is
out of the country, the offender cannot benefit from the usual monitoring and
support offered through the parole supervision process. As a result, prior to
approving any request for out-of-Canada travel, an assessment must be completed
in order to determine any issues related to public safety associated with the
travel.
It also contains the following section
dealing with the criteria for review of out-of-country travel:
When reviewing requests for
out-of-country travel, Board members will take into consideration any factor
that is relevant in determining whether the travel might result in any increase
in the offender’s risk to society, including, but not limited to:
·
written
confirmation from authorities that the country of destination does not object
to the offender visiting that country; if not available, proof that the
offender tried to get the confirmation;
·
information
from CSC concerning the purpose and details of the travel, including the length
of time the offender will be outside of Canada and the availability of
collateral contacts in the destination country;
·
the
consistency of the travel with the correctional plan of the offender and any
recommendation of the parole supervisor;
·
the
nature of the offender’s criminal history and any police opinion. Any involvement
in drug trafficking or organized crime and any potential for such activities or
involvements;
·
progress
on current and previous releases including previous travel, length of time on the
current release, and the proximity to the warrant expiry date;
·
the
success of the offender’s reintegration over an extended period of time;
·
in the case
of travel for a vacation/holiday, Board members will consider the
appropriateness of the travel.
[11]
It
is also settled law that policy manuals, like guidelines, are not law and, as
such are not binding on the decision-maker. However, it has been recognized by
the Supreme Court of Canada in Baker v. Canada (Minister of Citizenship and
Immigration), [1999] 2 S.C.R. 817 (Baker), at paragraph 72,
guidelines are useful indicators and the fact the decision reached contrary to
the guidelines “is of great help in assessing whether the decision was an
unreasonable exercise of the power”.
[12]
There
were other conditions attached to his parole. They included a condition the
Applicant abstain from intoxicants since alcoholism was a contributing factor
to the murder he committed and another which required him to follow
psychological counselling.
[13]
The
Respondent’s record mentions that in 1998 the Applicant requested the Board for
permission to travel outside of Canada on an ongoing basis; a request which was denied
but allowed him to travel to Mexico for one week in December 1998. The Respondent’s memorandum
also mentions in April 2000, Mr. Sychuk asked the Board to remove the condition
to his parole he abstain from all intoxicants. This request was also refused as
well as a 2005 request to remove both conditions: the requirements he follow
psychological counselling and he abstain from all intoxicants. The Board noted
the brutal nature of the Applicant’s crime connected to his use of intoxicants.
[14]
As
noted, Mr. Sychuk
obtained several times in the past relief from the Board which enabled him to
travel abroad for vacations generally for two weeks each time. Each time he was
accompanied by his common law spouse who is seen as a very positive support. He
travelled to Mexico in 1998,
1999 and 2002. Permission was granted for him to travel again accompanied with
his common law spouse to Cuba in 2004, 2005, 2006 and 2007 with the
Board acknowledging in its July 30, 2007 decision that there were no concerns
noted with any of those permissions. With respect of each of these permissions,
the Board was satisfied the two week vacation with his common law spouse would
not increase his risk to society by re-offending.
[15]
Mr.
Sychuk received from Passport Canada a letter dated January 15, 2007 concerning
his passport revocation and the reasons for such revocation whose concluding
paragraph stated: “At such time as you are no longer subject to the conditions
established in 9(d) of the Canadian Passport Order, you may reapply for
passport service.”
[16]
The
Applicant’s record (page 101) indicates, on April 4, 2007, Mr. Sychuk
informed his Parole Officer of Passport Canada’s decision and showed him his
correspondence with Passport Canada and that organization’s responses. It was at this time he
requested his Parole Officer to: “initiate proceedings to have the NPB,
pursuant to subsection 133(6) of the CCRA, remove condition (b)
from my conditions of release.” In that April 4, 2007 letter, he also wrote:
“As I have advised you, this request is
not an end in-itself, but, is simply a means to a different end, namely, my
ability, from any practicable and realistic point of view, to make effective
arrangements to travel outside of Canada on vacation.
In other words, I would not be requesting
the removal of this condition if it was not basis of and the reason for the
decision to revoke my passport, i.e., I had no concerns about the manner in
which the NPB was granting me permission to travel outside Canada on vacation.
That is also the reason that I made the February
27, 2007 application to Passport Canada to reconsider its decision – if that
application had been granted, there would be no need to remove the said
condition.
In this regard, I am convinced that the
decision to revoke my passport will make it very difficult, if not impossible,
to travel outside Canada on vacation.
I am willing to assist with this
application in any way that I can, and, would welcome the opportunity to appear
before the NPB in support of this request to remove the said condition.” [My emphasis.]
[17]
The
previous day, Passport Canada had written the
Applicant to confirm its decision to revoke his passport because of the
regulatory provision attached to his parole release he be in Canada. Passport Canada, in its letter, also
stated:
While section 134 of the Corrections
and Conditional Release Act grants full authority to the National Parole
Board to authorize exemptions to this mandatory condition, they are
temporary exemptions that do require the prior approval of the National Parole Board
each time travel outside of Canada is required.
While the authority to revoke Canadian
passports to persons subject to section 9(d) of the Order is a
discretionary authority, Passport Canada strives to consistently exercise this
authority where sufficient and verifiable information is obtained on which to
base this decision. Passport Canada may, however, as we have done in your
case already, consider delaying the revocation of a passport if permission has
already been obtained from the National Parole Board to make a specific trip at
a specific time. In such
cases, the passport in question would be returned to Passport Canada and be revoked upon completion of the trip (Applicant’s
record, page 99). [My emphasis.]
[18]
On July 16, 2007, the Applicant wrote to his Parole
Officer, at the Correctional Service of Canada, Greg Juchnowski (the Parole Officer) in the following terms
(Applicant’s Record, page 107):
Re: Removal of Condition of Parole
With
reference to our discussions of today’s date, I wish to confirm that:
1.
I am convinced
that only the complete removal of the condition will satisfy Passport Canada from the point of view of permitting me
to retain a passport.
2.
I am also convinced that,
without the removal of the condition, it will be very difficult, if not
impossible, from any practicable and realistic point of view, to make effective
arrangements to travel outside of Canada on vacation.
3.
As such, if the NPB
has any concerns whatsoever about removing the said condition, I would
respectfully request that I please be given the opportunity to address and deal
with the same directly with the NPB.
4.
Finally, I wish to
reiterate that I would not be requesting the removal of this condition if it
was not basis of and the reason for the decision to revoke my passport. [My
emphasis.]
In
conclusion, I am taking the liberty of thanking the NPB in advance for its
courtesy, cooperation and assistance with respect to this request, and remain,
[19]
His
Parole Officer then wrote an assessment whose purpose was to recommend to the
Board the removal of the condition Mr. Sychuk “remain within the territorial
boundaries of Canada”. The Parole Officer
made the following remarks:
“The
writer is recommending to the National Parole that the subject be allowed to
travel outside of Canada”. This will allow him to be able to
obtain a Canadian Passport without having to apply and relinquish it each time
he travels outside of Canada. His previous trips and return has demonstrated there is no
risk involved in terms of leaving the country.
If the National Parole Board is not in agreement with the
above the writer is
recommending that he is “allowed to travel outside of Canada for a two week period once a year”.
Further
if the any of the above is not imposed the writer is recommending he be
“allowed to travel to Cuba for a two week period in 2008.
Mr.
Sychuk has adjusted to the community extremely well and has been a productive
member of the community. His risk remains low and he has shown that he is not a
flight risk if given permission to travel outside of Canada.” [My emphasis.]
(Applicant’s
Record, pages 103 to 106)
[20]
In
his assessment, the Parole Officer made the following points:
· He wrote the following
as to the impact of Passport Canada’s decision on Mr. Sychuk:
“As
it stands now he would have to apply and burden the cost of a passport each
time he is granted permission to travel outside of Canada. Given that Mr. Sychuk has travelled once a year for the
past 8 years and will want to continue to travel once a year in the future, it does
not seem reasonable for him to have to burden the extra cost and take the time
to apply for a passport. This seems unfair when the rest of the Canadian
population is able to keep their passport for a 5 year period and only because
he is serving a sentence the rules apply differently to him. While this
would not be too much of a problem with parolees who are serving a fixed
sentence which expires, Mr. Sychuk’s Life sentence complicates the situation.”
[My emphasis.]
· He mentioned the number
of times the Applicant was permitted by the Board to travel on vacation to
Mexico and Cuba concluding “he returned
to Canada after all these trips and would do so in the future if he is allowed
to travel outside of Canada”.
· He noted, Mr. Sychuk’s
conviction and sentence and reviewed the circumstances related to the underlying
criminogenic facts namely: substance abuse, family relations and emotional
stability. The Parole Officer then wrote:
“While
incarcerated, Sychuk actively addressed his criminogenic factors and continued
to do so while on release. There are no identified issues or concerns at this
time and no programming or treatment is required.
Mr. Sychuk is semi retired and is presently employed as a
Land Consultant in the oil and gas industry and teaches one law course at Mount Royal College during the regular school terms. He
continues to be compliant in terms of parole supervision and is a productive
member of the community. He sits on his condominium Board of Directors and
spends time with his family.
There are no concerns with this case whatsoever.” [My emphasis.]
The Board’s decision
[21]
The
material part of the National Parole Board’s decision reads:
“In
the past, each decision rendered by the Board to allow you to leave Canada has been independent and discretionary and by no means a
commitment that additional absences would be granted. The Board believes
these absences are a privilege and not a right.
Given
the brutal nature of your crime and the fact there is no monitoring or support
mechanism in place during your leave from Canada, the Board is not prepared to
permanently remove the condition that requires permission to leave the country. You are serving a life sentence and with
that sentence some restrictions may remain in effect for the rest of your life.
The Board can not give blanket permission to travel outside of Canada. We must review, in each case, where you
want to travel to, the departure and return dates, the purpose of the travel
and if there are any issues that should restrict any part of your request. We acknowledge that being a lifer
presents its own issues however; we must still consider all relevant factors
for each trip. Given this, we are not changing the conditions of your full
parole for any of the recommendations set out by your Parole Officer. What
you and your Parole Officer are asking the Board to do amounts to a request to
soften our risk management process in order to accommodate the more stringent
process of Passport Canada. While you may have concerns regarding perceived hardship
placed on you by Passport Canada, the National Parole Board is
nonetheless bound to meet its mandate.
This
does not exclude you from applying from permission to travel but does mean we
require all the details in advance of providing a positive decision.” [My emphasis.]
His submissions to the Appeal Division
[22]
He
appealed the Board’s decision to the Appeal Division. He made submissions dated
September 10, 2007 but first he reiterated a request he had previously made to
the Board that “if the Appeal Division has any concerns whatsoever about
removing the said conditions, I would respectfully request that I please be
given the opportunity to address and deal with the same directly with the
Appeal Division”.
[23]
In
his appeal submissions, he raised the following grounds:
1.
Errors
of law committed by the Board in terms of its discretionary power; the
grant of permission to travel outside of Canada was “a privilege and not a
right”; its statement that it could not give blanket permission to travel
outside of Canada; its reliance on the fact “there is no monitoring or support
mechanism in place during your leave from Canada” as a reason for decision as
well as the Board’s characterization of his request was for the Board “to
soften our risk management process”.
2.
The
Board had denied him fundamental justice when it did not grant the request in
his July 16, 2007 letter to give him an opportunity to address and deal with
any concerns that the Board had about removing the condition on his travel outside
Canada and did not explain the basis of or the reasons for its decision to
reject the recommendation of his Parole Officer.
3.
The
Board based its decision on incomplete information “when it refused to hear
important new evidence with respect to the issue of risk”.
4.
The
Board failed to exercise its jurisdiction properly “when it failed to properly
analyze, evaluate, assess and apply all of the evidence with respect to the
issue of risk i.e. the decision is completely unsupported by the evidence and
is therefore patently unreasonable”.
The Appeal Division’s reasons
[24]
The
Appeal Division analyzed each of Mr. Sychuk’s grounds of appeal which I
summarize:
1. Breach of Fairness
[25]
The
Appeal Division ruled the Board had not breached procedural fairness finding
that his right to make written representations was respected. It referred to
section 140(1) of the CCRA concluding: “the Board is not required to
hold a hearing with respect to the removal of a condition that is on an
offender’s conditional release”, adding: “Accordingly, the Board properly
proceeded to review your case by way of an in-office review.” It also noted Mr.
Sychuk was also provided with an opportunity to submit written representations
to the Board and emphasized the fact he had signed a procedural safeguard
declaration in which he had indicated he wanted the Board to review his written
comments dated July 16, 2007 which the Board did. Second, the Appeal
Division stated it was satisfied the Board’s written reasons “are clear and
adequately set out the Board’s rationale for its decision”.
2. Errors of Law
[26]
The
Appeal Division rejected Mr. Sychuk’s arguments on this ground by referring to
my colleague’s Justice Gauthier’s decision in Tozzi v. Canada (Attorney
General), 2007 CF 825 (Tozzi), a case which was similar to the case
at hand since it concerned a review of an Appeal Division’s refusal to waive
the statutory condition attached to Mr. Tozzi’s parole release not to leave
Canada. Mr. Tozzi who had been convicted of money laundering and had requested
a waiver of the statutory condition in order to visit his elderly parents in Italy.
[27]
In
particular, the Appeal Division invoked the Tozzi decision to stress the
nature of the statutory condition imposed under subsection 161(1) of the CCRR
which “clearly expressed its intent that, as a general rule, offenders on
parole must remain at all times within the territorial boundaries fixed by the
parole supervisor” nothing the Federal Court held this provision “was an
important aspect of the parole system based on risk management”.
[28]
It also
invoked Tozzi for the propositions the Federal Court had clearly
indicated the “relief, even temporary, of this condition was “a privilege” or
an exception to the general rule” and for the proposition that “Parliament gave
the Board the “discretion” to grant such privilege pursuant to subsection
133(6) of the CCRA. Accordingly, the Board did not err when it stated
that traveling outside Canada was a “privilege and
that its decision was discretionary in nature”.
[29]
The
Appeal Division again referred to Tozzi for another proposition: “The
Board, in exercising its discretion must be guided by sections 100 and 101 of
the CCRA as well as the criteria set out in section 7.1 of the Board
Policy Manual pertaining to Out-of-country Travel”. It wrote:
The Board Policy Manual makes it clear that, prior to
approving any request for out-of-country travel, the Board must take into
consideration “any factor that is relevant in determining whether the travel
might result in any increase in the offender’s risk to society”, including
the nature of the offender’s criminal history and the fact that the offender,
when outside of Canada, will not be subject to the usual monitoring and support
offered through the Canadian parole supervision process. The Board, therefore, did not err when it
considered the nature of your violent crime, the fact that you are serving a
life sentence, as well as the lack of monitoring and supervision during your
leave from Canada, in arriving at its conclusion that it was not prepared to
permanently remove the condition requiring you to remain at all times in Canada,
prescribed by paragraph 161(1)(b) of the C.C.R.R. [My emphasis.]
[30]
It
expressed its overall conclusion in the following terms:
Mr.
Sychuk, after reviewing your case, the Appeal Division finds that the Board
exercised its discretion in a fair and equitable manner and arrived at a
decision that is reasonable and well supported. While it is true that, pursuant to
subsection 133(6) of the C.C.R.A., the Board may relieve an offender
from the compliance of any condition prescribed by the regulations, the
Board’s decision to not remove the condition set out in paragraph 161(1)(b) of
the C.C.R.R., is justified and does not violate the law or Board policy. Contrary
to what you submit, the Board was well aware of the positive aspects of your
case, including your compliant behaviour on conditional release, your
previous successful trips outside of Canada and the positive recommendation of your
Parole Officer. These factors are well documented in your file and clearly
considered in the Board’s written reasons. Nevertheless, the Board
duly considered the fact that you are serving a life sentence for a violent
crime and that you would not be subject to supervision when traveling
outside of Canada, and concluded that, in order to assess risk in your
case, the Board required the relevant details of each proposed trip
(i.e. departure and return dates, purpose of travel, etc.) prior to authorizing
any travel. In our view, the Board’s conclusion is reasonable and
consistent with the law and Board policy. There is nothing in the law
that precludes the Board from requesting the details of each request to travel
outside of Canada in order to properly assess risk at that
time and determine whether the proposed travel might result in any increase in
the offender’s risk to society.
While the Board was well aware of the new requirements placed on you by
Passport Canada, the Board was, nevertheless, bound
to meet its mandate under the law and Board policy requiring it to assess risk,
with the protection of society being the paramount consideration in the
determination of any case.
Finally,
it is important to understand that although the Board did not grant your
request to permanently remove the condition prescribed by paragraph 161(1)(b)
of the C.C.R.A., the Board made it clear in the last sentence of its
decision, that you could still continue to apply for permission to travel
outside of Canada, as long as you provided in advance all the details of
your proposed travel to the Board.
Mr.
Sychuk, after reviewing your case, the Appeal Division is satisfied that the
Board acted fairly in your case and rendered a decision that is reasonable and
well supported. The written reasons are clear and adequately set out the
Board’s rationale for its decision. In our view, the Board’s decision is
consistent with the principles and criteria set out in law and Board policy.
[My emphasis.]
Mr. Sychuk’s grounds on judicial review
[31]
In
his written memorandum to the Court, Mr. Sychuk argues the Board and the Appeal
Division erred: (1) in denying him procedural fairness; (2) erred in law by
basing its decision in erroneous legal concepts; and, (3) breached the standard
of reasonableness.
[32]
In
terms of procedural fairness, he argues the following breaches:
· Failing to
decide the legal issues, namely, whether the permanent relief he was seeking,
as opposed to the temporary ones he had received up to date, would have any
effect at all on his risk to re-offend and if it did, whether the increase in
such risk of re-offending would present an undue risk to society.
· Adequate
reasons were not provided.
· The Board
denied him his right to make submissions and that error was carried forward in
the Appeal Division’s reasons.
· The Board’s
decision created in his mind a reasonable apprehension of bias in that it did
not exhibit an open mind free of stereotypes; it drew conclusions not based on
the evidence; was in a hurry to render a decision and justified it by reference
to the brutal murder of his wife which had never appeared in any of the many
decisions of the Board dealing with his incarceration or his paroles.
· The Board and
the Appeal Division erred in the application of legal concepts to his case in
terms of: (1) characterizing the relief he sought as a discretionary decision
in which he was seeking; (2) a privilege; (3) basing its refusal on the
brutal nature of the crime he committed without regard to his rehabilitation;
(4) ignoring its statutory mandate to make the least restrictive decision
consistent with the protection of society; and, (5) erred in law when it
ruled it could not give a “blanket permission to travel” coupled with its
finding his request was to “soften [its] risk management”.
· The Board and
the Appeal Division did not, on the merits, make reasonable decisions for a
number of reasons, namely: (1) the decision could not reasonably be supported
in law or on the evidence; (2) its purported reliance on the absence of
monitoring or support mechanism in place during his absence from this country
as a reason for denying his request without determining in fact whether there
was a need for such mechanism or supports during a two week vacation; and, (3)
the errors of law previously referred to.
Analysis
(1) Preliminary Issues
[33]
Counsel for the Respondent raised two
preliminary issues. First, he stated that it was improper for the Applicant to
have simply filed the entire certified tribunal record (CTR) in this proceeding
for the purpose of having the Court accept it in evidence in the Court’s record
without the Applicant having supported its introduction through an affidavit as
required by Rule 305 of the Federal Courts Rules, 1998 (the Rules).
Respondent’s counsel relies on two Federal Court of Appeal’s decisions of
Justice Sharlow, dealing in its section 28 original judicial review cases, in Attorney General of
Canada v. Canadian North Inc. et al, 2007 FCA 42 and in Canada (Attorney
General) v. Lacey, 2008 FCA 242.
[34]
Mr.
Sychuk recognized the validity of the Respondent’s argument and said that I
should only take into account those portions of the CTR which were supported by
his affidavit filed under Rule 305. I informed the parties I would be guided
accordingly.
[35]
Second,
counsel for the Respondent stated some of the Applicant’s materials contained
in his record were not before the Appeal Division when the decisions were made.
He relied on the well-settled line of cases to the effect a judicial review
application, subject to limited exceptions, is to be conducted on the basis of
the materials that were before the federal decision-maker whose decision is
being reviewed (see Association of Architects (Ontario) v.
Association of Architectural Technologists (Ontario), 2002 FCA 218).
[36]
Mr.
Sychuk challenged counsel for the Respondent on this point submitting he was
prepared to take the Court through four pages of references which would take
four hours in order to demonstrate the material the Respondent objected to was
indeed before the decision-maker. The Court suggested to the parties there was
a more efficient way of dealing with the issue which was for Mr. Sychuk to
provide his list of references to counsel for the Respondent who could review
them and advise the Court if his objections are maintained. I have not heard
from the parties on the point and have proceeded to decide this case on the
basis of the Applicant’s record without regard to the entire Certified Tribunal
Record.
(2) The Standard of Review
[37]
The
Supreme Court of Canada’s 2008 decision in Dunsmuir v. New
Brunswick
released on March 7, 2008, reported as 2008 SCC 9 reformed the law relating to
the standard of review (or the degree of deference) to be accorded to decisions
of administrative decision-makers. Its major reform was to reduce the
previously recognized three standards of review into two: correctness where no
deference is owed and reasonableness where deference is owed. The standard of
patent unreasonableness is now subsumed into the reasonableness standard.
[38]
The
Supreme Court also provided guidance on a number of points. As a guideline at
paragraph 53, Justices Bastarache and LeBel, on behalf of five of the nine
concurring judges, wrote that questions of “fact, discretion or policy,
deference will usually apply automatically”, having previously stated at
paragraph 51 that these types of questions “generally attract a standard of
reasonableness” and having stated at paragraph 49: “Deference in the context of
the reasonableness standard therefore implies that courts will give due
consideration to the determinations of decision makers.”
[39]
Justices
Bastarache and LeBel at paragraphs 57 and 62 of Dunsmuir indicated an
exhaustive review is not required in every case to determine the proper
standard of review “[if] the jurisprudence has already determined in a satisfactory manner
the degree of deference…”
[40]
The
jurisprudence of this Court and the Federal Court of Appeal has settled the
standard of review from decisions of the Appeal Division – that standard is
reasonableness (see Cartier v. Attorney General of Canada, 2002 FCA 384,
at paragraph 10 and Fournier v. Attorney General of Canada, 2004 FC
1124). However, the correctness standard applies to the questions related to a
breach of procedural fairness.
[41]
At paragraph 47, the
Supreme Court of Canada explained what the revised reasonable standard meant:
47 Reasonableness is a deferential standard
animated by the principle that underlies the development of the two previous
standards of reasonableness: certain questions that come before administrative
tribunals do not lend themselves to one specific, particular result. Instead,
they may give rise to a number of possible, reasonable conclusions. Tribunals
have a margin of appreciation within the range of acceptable and rational
solutions. A court conducting a review for reasonableness inquires into the
qualities that make a decision reasonable, referring both to the process of
articulating the reasons and to outcomes. In judicial review, reasonableness
is concerned mostly with the existence of justification, transparency and
intelligibility within the decision-making process. But it is also concerned
with whether the decision falls within a range of possible, acceptable outcomes
which are defensible in respect of the facts and law. [My emphasis.]
[42]
The
last sentence of paragraph 47 is, in my view, very important. The substance of
the decision on the merits must be reasonable meaning that the result must be
defensible in respect of the facts and law. The meaning behind the sentence,
when the reasons of Justices Bastarache and LeBel are married to the concurring
reasons of Justice Binnie especially at paragraphs 130 to 141 and 150 to 155
becomes evident. The general principles of administrative law related to, for
example, of the merits of the exercise of discretion such as factored in the
Supreme Court of Canada’s decisions in Maple Lodge Farms Ltd. v. Government
of Canada, [1982] 2 S.C.R. 2 and Mount Sinai Hospital Center v. Quebec (Minister
of Health and Social Services), [2001] 2 S.C.R. 281 remains fully
applicable; they are alive and well. Considerations must be relevant;
irrelevant considerations must be discarded and the nature and purpose of the
legislation must be respected. In other words, a decision which does not conform
with recognized administrative law principles cannot be a reasonable
decision.
(3) Conclusions
[43]
For
the following reasons Mr. Sychuk’s judicial review application must be
dismissed for the following reasons.
[44]
First,
while Mr. Sychuk did not press the point before me in oral argument, it is
clear the decision made by the Board and by the Appeal Division, under
subsection 133(6) of the CCRA, is a discretionary one as
evidenced by the use of the words “may remove or vary such condition” and that
permission to travel outside of Canada is an exception to the general rule
applicable to offenders on conditional release, including full parole, that
they remain in Canada at all times at locations specified by that person’s Parole
Officer (see Tozzi, at paragraph 39). In Tozzi, Justice Gauthier
rightly pointed out the general rule that an offender remain in Canada under the
jurisdiction of the Board, through the supervision of his parole team, is an
important element of the conditional release program. This is why my colleague
was correct in stating in paragraph 40 of Tozzi lifting that prohibition
to permit out of country travel was an exception to the general rule or a
privilege.
[45]
The
law is clear, as expressed in Dunsmuir at paragraph 51, a decision based
on discretion or policy is owed a degree of deference especially where the
expertise of a particular tribunal comes into play. The Courts have recognized
the Board and the Appeal Division have expertise in matters related to the
administration of the Act (see Fournier at paragraphs 22 and 23
and Boucher v. Canada (Attorney General), 2006 FC 1342,
at paragraph 11).
[46]
In
oral argument, Mr. Sychuk argued the Board and the Appeal Division focus on the
importance of monitoring was a mirage. He explained his parole team administer
his parole condition with a very light hand in terms of monitoring when in
Canada and that, in Cuba, he does not report to anyone.
[47]
This
argument does not assist him. The fact his monitoring is light when in Canada
is to his credit in terms of his being compliant with his condition but does
not negate the fact he remains under the supervision which is not the case when
outside of Canada which is the point stressed in the Policy manual and
the Parole Board’s need to know details on each trip taken.
[48]
Second,
in oral argument, Mr. Sychuk stressed he was not given an opportunity to
express his views to alleviate the concerns which the Board or the Appeal
Division might have. I find no merit in this argument. Fairness does not
require he be accorded an oral hearing (see Baker, above at paragraphs
33 and 34). Moreover, the CRRA in section 140(1) specifically provides
that a hearing is not required for the type of decision under review. Mr.
Sychuk was well aware of the procedure the Board would follow to process his
request. He had been through it several times.
[49]
The
Applicant had an opportunity to make submissions and he did so. He requested
his Parole Officer to initiate the process and provided him with the
information and rationale which then feed in his Parole Officer’s
recommendation. I stress the fact his whole case was premised on Passport Canada’s decision
to revoke his passport and his submission that, unless he obtained permanent
relief from the condition, it would be practically impossible to plan his
vacations outside Canada and obtain a new passport on a timely basis.
[50]
I
see no evidence on the record which substantiates his fear. Rather, the
evidence is to the contrary. In the past, the Board acted expeditiously on his
request to holiday out of the country and that was because of his track record.
The Board expressed its willingness to do so provided it received all the
details in advance. This decision cannot, by any stretch of the imagination, be
said to be unreasonable considering the requirement of the Act that all
offenders while on parole are generally required to be under the jurisdiction
of the Board; the criteria established in the Policy Manual, his personal
circumstances and the particular rationale advanced by the Applicant to obtain
complete liberty to travel to countries who would accept him whenever he wanted
and for whatever period of time he chose without notice to anybody. Examining
its statutory mandate and the Applicant’s personal circumstances, including his
conviction, the Board, nor the Appeal Division found this acceptable. This is
why the Board wrote that, in the circumstances, it could not give a blanket
permission to travel outside Canada and that it needed to know, in each case,
where he wanted to travel, when, with whom, for how long and its purpose. The
Applicant has failed to satisfy me how the Board or the Appeal Division erred
in coming to this view. On the contrary, it seems to me the decision reached is
consistent with its statutory mandate, the scheme of the CCRA and Regulations,
and the Policy guidelines applicable in the matter.
[51]
Mr.
Sychuk argued the Board skewed the exercise of its discretion when it took into
account “the brutal nature of his crime”. I do not agree because the Applicant
reads those words out of context. The Board used the words in the context of
the absence of monitoring overseas which the Applicant acknowledges and which
the guidelines speak to.
[52]
The
Applicant argues the Board erred when it said his request amounted to a request
to soften its risk management. That comment was justified, because if the
request was granted, the supervision of his parole would be non-existent.
[53]
The
Applicant argues the decision-makers did not make any finding of fact as to
risk or undue risk if his request was granted. With respect, Mr. Sychuk
misreads the decisions he challenges. The very reason the Board and the Appeal
Division denied his request for the complete removal of the requirement, he
remain in Canada at all times, is because it was of the view it needed on the
ground information in respect of each outside of Canada travel in order to
assess his risk, something which it could not do if he could travel outside of
Canada as he pleased. The Board’s decision upheld on appeal was reasonable.
[54]
Finally,
the Applicant argues the Board and the Appeal Division failed to provide
adequate reasons. I disagree. The Supreme Court of Canada in Lake v. Canada (Minister of
Justice),
2008 SCC 23 recently considered the issue of adequate reasons. Justice LeBel
for the Court wrote the following at paragraph 46:
46 As for the adequacy of the
Minister's reasons, while I agree that the Minister has a duty to provide
reasons for his decision, those reasons need not be comprehensive. The purpose
of providing reasons is twofold: to allow the individual to understand why the
decision was made; and to allow the reviewing court to assess the validity of
the decision. The Minister's reasons must make it clear that he considered the
individual's submissions against extradition and must provide some basis for
understanding why those submissions were rejected. Though the Minister's
Cotroni analysis was brief in the instant case, it was in my view sufficient.
The Minister is not required to provide a detailed analysis for every factor.
An explanation based on what the Minister considers the most persuasive factors
will be sufficient for a reviewing court to determine whether his conclusion
was reasonable.
[55]
The
Federal Court of Appeal in VIA Rail Canada Inc. v. National Transportation
Agency, [2001] 2 F.C. 25, at paragraphs 21 and 22 wrote as follows:
21 The
duty to give reasons is only fulfilled if the reasons provided are adequate.
What constitutes adequate reasons is a matter to be determined in light of the
particular circumstances of each case. However, as a general rule, adequate
reasons are those that serve the functions for which the duty to provide them
was imposed. In the words of my learned colleague Evans J.A., "[a]ny
attempt to formulate a standard of adequacy that must be met before a tribunal
can be said to have discharged its duty to give reasons must [page36]
ultimately reflect the purposes served by a duty to give reasons."7
22 The obligation to provide adequate
reasons is not satisfied by merely reciting the submissions and evidence of the
parties and stating a conclusion.8 Rather,
the decision maker must set out its findings of fact and the principal evidence
upon which those findings were based.9 The
reasons must address the major points in issue. The reasoning process followed
by the decision maker must be set out10 and must
reflect consideration of the main relevant factors.11
[56]
A
plain reading of both decisions that of the Board and the Appeal Division,
demonstrates the legal standard for adequate reasons was more than amply met.
The Applicant knows why his request was refused and this Court is in a position
to fully exercise its judicial review function. Moreover, the Appeal Division
considered each of his submissions and said why it could not agree.
[57]
For
sake of completeness, I add that Mr. Sychuk in oral argument did not
press, as a ground for review, the Board or the Appeal Division’s decision gave
rise to a reasonable apprehension of bias.
[58]
I
make one last comment. The real reason the Applicant made a request for the
permanent removal of the condition is because of Passport Canada’s decision.
He readily admits in writing to his Parole Officer, he would not have made the
request to the Board if it had not been for Passport Canada’s decision.
The Board and the Appeal Division were correct in stating they could not subsume
their duty under the law because of what Passport Canada did.
[59]
For
these reasons, this application is dismissed.
JUDGMENT
THIS COURT
ORDERS AND ADJUDGES that this judicial
review application is dismissed with costs.
“François Lemieux”
____________________________
Judge
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