Date: 20110520
Docket: T-1604-10
Citation: 2011 FC 599
[UNREVISED ENGLISH CERTIFIED TRANSLATION]
Ottawa,
Ontario, May 20, 2011
PRESENT: The Honourable Mr. Justice Scott
BETWEEN:
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STEVE HURDLE
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Applicant
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and
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ATTORNEY GENERAL OF CANADA
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Respondent
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REASONS FOR
JUDGMENT AND JUDGMENT
[1]
This
is an application for judicial review of a decision of the National Parole
Board (the Board), dated September 1, 2010, imposing special
conditions on the applicant in a long-term supervision order under section
134.1 of the Corrections and Conditional Release Act, SC 1992, c 20
(the Act).
I. Background
[2]
On
April 19, 2007, the applicant was convicted by the Court of Québec, Criminal
and Penal Division (the Criminal Court), of sexual assault against a child
under the age of 14, under paragraph 271(1)(a) of the Criminal
Code, RSC 1985, c C-46 [Criminal Code]. He was sentenced to a term
of imprisonment of four months, taking into account that he had been in
preventive detention for a period equivalent to 52 months. The Criminal Court
declared him a long-term offender for a period of 7 years, under
subsection 753(1) of the Criminal Code. It also ordered the
applicant to comply with the Sex Offender Information Registration Act, SC
2004, c 10, for a period of 20 years, under section 490.012 of the Criminal
Code, as well as section 161 of the Criminal Code, which seeks
to prevent a sexual offender from coming into contact with persons under the
age of 16 years and lists various restrictions to this effect.
[3]
On
June 28, 2007, the Board imposed five conditions on the applicant in
his long-term supervision order. It imposed a condition of residency of 180
days, but it did not mention a specific duration for the other conditions. On
January 8, 2008, the Board added a six-month extension to the
applicant’s residency condition. On February 7, 2008, the Board imposed a
new condition on the applicant, prohibiting him from entering a children’s
store or the children’s section of any other store without being accompanied by
a responsible adult who is aware of his sexual offending and authorized by his supervision
officer.
[4]
On
April 10, 2008, the Board was once again seized of the applicant’s
file, in the context of a hearing following the suspension of his long-term supervision,
as the applicant had contacted his wife in violation of the orders of his case
management team. The Board cancelled the suspension put in place by the
Correctional Service of Canada (Corrections Canada) and imposed a new condition
on the applicant, prohibiting him from contacting his wife without obtaining
prior authorization from his supervision officer.
[5]
Corrections
Canada asked the Board to add a condition to the applicant’s long-term supervision
certificate. The Board was again seized of the applicant’s file on June 27
and July 2, 2008. On July 2, the Board imposed a new
restriction on the applicant with respect to contact with minors, as well as
his daughter.
[6]
On
September 8, 2008, the Board extended his residency condition by
180 days and extended all of the other conditions without mentioning a
specific duration. On September 14, 2009, the Board extended all of the
conditions that had been imposed on the applicant since the beginning of his
long-term supervision. It also added the following three new conditions:
[translation]
(1)
Not
to use or possess a cellular telephone or paging device or any other portable
telecommunications device;
(2)
To
inform his employer of his status;
(3)
To
disclose in full his financial situation in accordance with the instructions of
his supervision officer.
[7]
On
August 25, 2010, the applicant filed his written submissions
regarding the conditions imposed and made specific requests with respect to
their duration. He asked for a hearing. On September 1, 2010, the Board
extended the residency condition for a period of 180 days. It also amended
three of the conditions imposed. It also added a further condition that the
applicant must keep his supervision officer informed of all of his movements.
It also withdrew the condition whereby the applicant had to disclose in full
his financial situation to his supervision officer.
II. Issues
[8]
The
applicant worded as follows the issues arising from the Board’s decision of
September 1, 2010:
[translation]
(1)
Did
the Board err in refusing to indicate durations for the conditions imposed in
the applicant’s long-term supervision order and failing to provide reasons for
its decision with respect to the duration of these conditions?
(2) Did
the Board err in adding the following three special conditions to the applicant’s
long-term supervision order?
(a)
Not
to use or possess a cellular telephone or paging device or any other portable
telecommunications device;
(b)
To
inform his employer of his status;
(c)
To
inform the officer of his movements.
III. Applicable standards
of review
[9]
The
first issue implies two sub-issues. The Court must first determine whether the
Board had a legal obligation to indicate an explicit duration with respect to
the conditions imposed in its decision. This is a question of law to which the
standard of correctness applies (Normandin v Canada (Attorney General),
2005 FC 1605, at paragraph 32):
[32] It is
uncontested that the appropriate standard of review is correctness. The issue
before us is purely a question of law, since we must determine the meaning and
scope of a statutory provision by considering its legislative framework. The
Board has no special expertise in this area and is in no better position than
this Court to resolve the issue. I note, furthermore, that the correctness
standard was recently applied by this Court in similar situations: see McMurray
v. Canada (National Parole Board), [2004] F.C.J. No. 565 (Q.L.); Normandin
v. Canada (Attorney General), [2004] F.C.J. No. 1701 (Q.L.).
[10]
The
second sub-issue relates to procedural fairness. Did the Board provide adequate
reasons for its decision? Here, the standard of correctness applies (Cyr v
Canada (Attorney General), 2010 FC 94, at paragraph 18; and Tozzi v
Canada (Attorney General), 2007 FC 825, at paragraph 34 [Tozzi]).
[11]
As
for the second main issue, under section 134.1 of the Act, the Board has
the power to impose special conditions of supervision according to the risk of
recidivism particular to each case. The Court must show deference to the
Board’s expertise, and it is therefore the standard of reasonableness that
applies (Deacon v Canada (Attorney General), 2005 FC 1489, at
paragraph 67; and Miller v Canada (Attorney General), 2010 FC 317,
at paragraph 42).
(1) Did
the Board err in refusing to indicate durations for the conditions imposed in
the applicant’s long-term supervision order and failing to provide reasons for
its decision with respect to the duration of these conditions?
A. Specifying the duration of the
conditions
[12]
The
applicant submits that the Board erred in failing to specify the duration of
the conditions imposed in the applicant’s long-term supervision order. Only the
residency condition was accompanied by a duration, 180 days. According to the
applicant, it is not open to the Board to proceed in this way and wait for
Corrections Canada to seek a change to or withdrawal of a condition before
acting. Such conduct on the Board’s part is equivalent to delegating the
decision-making power granted to it under section 134.1 of its enabling
statute. The applicant submits that the Board must impose a time limit on each
of the conditions it imposes at the beginning of the long-term supervision. The
Board required the applicant to undergo psychiatric treatment. This condition
not only has no time limit attached to it, but, according to the applicant, it
constitutes a delegation by the Board of its power to a third party, in this
case, the psychiatrist, despite the fact that section 134.1 of the Act
specifies that the Board is the sole authority with the jurisdiction to set a
time limit on the conditions it imposes.
[13]
The
respondent, on the other hand, submits that the Board enjoys a discretionary
power to specify a time limit on the conditions imposed. This does not,
however, constitute a legal duty, as the applicant claims. In the case of
silence with respect to the duration of the conditions imposed, they are always
applicable for the term of the order, i.e. for the full period of supervision,
subject to amendment in the case of a change in circumstances within the
meaning of subsection 134.1(4) of the Act.
[14]
Section 134.1
of the Act governs the imposition of conditions by the Board in the context of
a long-term supervision order:
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Conditions
for long-term supervision
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Conditions
de la surveillance de longue durée
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Conditions:
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Conditions :
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134.1
(1) Subject to subsection (4), every offender who is required to be
supervised by a long-term supervision order is subject to the conditions
prescribed by subsection 161(1) of the Corrections and Conditional Release
Regulations, with such modifications as the circumstances require.
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134.1
(1) Sous réserve du paragraphe (4), les conditions prévues par le paragraphe
161(1) du Règlement sur le système correctionnel et la mise en liberté sous
condition s’appliquent, avec les adaptations nécessaires, au délinquant
surveillé aux termes d’une ordonnance de surveillance de longue durée.
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Conditions
set by Board
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Conditions
imposées par la Commission
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(2)
The Board may establish conditions for the long-term supervision of the
offender that it considers reasonable and necessary in order to
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(2)
La Commission peut imposer au délinquant les conditions de surveillance
qu’elle juge raisonnables et nécessaires pour protéger la société et
favoriser la réinsertion sociale du délinquant.
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Duration
of conditions
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Période
de validité
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(3)
A condition imposed under subsection (2) is valid for the period that the
Board specifies.
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(3)
Les conditions imposées par la Commission en vertu du paragraphe (2) sont
valables pendant la période qu’elle fixe.
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Relief
from conditions
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Dispense
ou modification des conditions
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(4)
The Board may, in accordance with the regulations, at any time during the
long-term supervision of an offender,(a) in respect of conditions referred to
in subsection (1), 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 (2), remove or vary any
such condition
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(4)
La Commission peut, conformément aux règlements, soustraire le délinquant, au
cours de la période de surveillance, à l’application de l’une ou l’autre des
conditions visées au paragraphe (1), ou modifier ou annuler l’une de celles
visées au paragraphe (2).
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[15]
Section
100 of the Act sets out its main purpose:
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Purpose
of conditional release
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Objet
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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.
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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.
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[16]
In
Normandin v Canada (Attorney General), 2004 FC 1404, at paragraph 19,
Justice Tremblay-Lamer analyzed and defined the legislator’s intent
regarding the Board’s role in applying the Act and regarding this purpose:
. . . There is no doubt
that Parliament intended the NPB to use its expertise in taking the appropriate
decisions to protect society while facilitating the reintegration of the
offender into the community. The Court must treat this type of expertise with
the greatest restraint.
[17]
In
a judgment upholding Justice Tremblay-Lamer’s decision, the Federal Court
of Appeal noted that the Board has a “broad and flexible” discretionary power
to apply section 134.1 of the Act. This power includes the authority to
impose conditions on the offender’s release and to establish the duration (Normandin
v Canada (Attorney General), 2005 FCA 345, paragraphs 44 and
52):
[44] The
authority given to the Board by subsection 134.1(2) is a broad and flexible
discretionary authority and the discretion is exercised at three levels. First,
the Board may or may not impose conditions for supervision of the long-term
offender. Second, the Board is also given the authority to determine whether it
is reasonable and necessary to do so in order to ensure the protection of the
public and to facilitate the successful reintegration into society of the
offender. Third, the Board establishes the duration of the supervision.
[52] Parliament did not want to introduce
this limitation in the case of long-term offenders, who begin their period of
extended supervision while the offender on statutory release is reaching the
end of his sentence. The risk of recidivism is high for long-term offenders and
the period of supervision is a lengthy one, so it is not unreasonable to think
that Parliament intended to leave intact the extensive discretionary authority
it has granted the Board in subsection 134.1(2) of the Act in order to allow it
to meet the specific needs of long-term offenders (if they are to be
successfully reintegrated into society) and of the community which is being
made to assume the risk of the offender's release.
[18]
It
therefore appears from the legislation and case law that Parliament did not
intend to impose a strict legal obligation on the Board to establish a duration
for the conditions imposed, granting it a broad discretionary power in this
respect. Contrary to the applicant’s position, the fact that the Board did not
explicitly set durations for the conditions imposed does not mean that no time
limits apply. The conditions imposed are automatically lifted with the expiry
of the supervision order. Contrary to the applicant’s submissions, all of the
conditions imposed are of a limited duration.
[19]
In
this case, the Board retained some room to manoeuvre in order to assess the
applicant’s conduct, as his likelihood of rehabilitation was considered low. It
decided not to bind itself by specifying a term shorter than the duration of
the order for the conditions that had already been imposed. The Board was
attempting to protect society from the applicant’s deviant conduct while
promoting gradual reintegration and avoiding repeat offences. Such a measure is
fully consistent with the purpose of the Act and the Board’s powers thereunder.
The Court can identify no error in this respect; our intervention would
therefore be unjustified.
[20]
As
for the applicant’s claim that the imposition of psychiatric treatment for an
indeterminate period constitutes a delegation of the Board’s power, the Court
cannot adopt such reasoning. It goes without saying that the Board must rely on
third parties possessing the necessary expertise to help the applicant
reintegrate into the community while reducing the risk of repeat offences, as
required by the Act. In this case, only a psychiatrist can assist the applicant
along this path. This is not a delegation of its power, as it remains up to the
Board to determine whether the applicant has made sufficient progress to
justify the lifting of some of the conditions.
[21]
Moreover,
as pointed out by counsel for the respondent at the hearing in response to a
question from the Bench, and contrary to the applicant’s submissions, the
following is specified on the face of the text of the decisions dated
September 14, 2009, and September 1, 2010: “ADDITIONAL
CONDITION(S) IMPOSED AND PERIOD OF TIME FOR WHICH THEY ARE VALID (Apply until
the end of the release unless a fixed period of time is specified)”. There is
therefore no doubt that a duration has been established for each of the
conditions listed in the Board’s order.
B. Reasons for the
decision
[22]
The
applicant also submits that the Board must provide reasons for its decisions,
and that it therefore erred in law by failing to state why it had selected a
duration for the imposed conditions that he characterized as indeterminate. He
argues that this duty takes on even more importance and requires a high level
of specificity given that the conditions imposed restrict the freedom of a
Canadian citizen. He also claims that the Board should have provided its
reasons for imposing a residency condition of 180 days, given that this
constitutes a major restriction on his freedom.
[23]
The
respondent submits that the Board’s decision is reasoned, limited in duration
and intelligible, given that the conditions imposed by the Board are valid for
the duration of the applicant’s long-term supervision order. The conditions
were imposed on the applicant as a result of his uncooperative conduct during
his long-term supervision and the information contained in his corrections
file. They were also justified by his lack of cooperation and transparency and
his repeated violations of his special conditions.
[24]
Paragraph 101(f)
of the Act sets out the following principles:
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Principles
guiding parole boards
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Principes
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101.
The principles that shall guide the Board and the provincial parole boards in
achieving the purpose of conditional release are:
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101.
La Commission et les commissions provinciales sont guidées dans l’exécution
de leur mandat par les principes qui suivent :
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(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.
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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.
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[25]
In
Tozzi, cited above, at paragraphs 63, 64 and 65, Justice Gauthier
explained what constituted adequate reasons for a decision by the Board under
paragraph 101(f) of the Act:
[63] Finally, as paragraph 101(f)
of the Act indicates, the NPB and the Appeal Division are obliged to provide
reasons for their decisions.
[64] The question of whether the reasons
are adequate depends on the particular circumstances of each case. As a general
rule, adequate reasons are those that serve the functions for which the duty to
provide them was imposed (Via Rail v. Lemonde, [2000] F.C.J.
No. 1685, at paragraph 21).
[65] It was the intention of Parliament
here to ensure a fair and understandable process and provide the offender with
access to the review of the decision.
[26]
In
this case, the reasons for the decision of September 1, 2010, run to
about five pages. Among other things, the Board lists the factors contributing
to the applicant’s criminal behaviour, and notes that the Centre d’évaluation
et de recherche de l’Université de Montréal [CERUM] [Université de Montréal
centre for evaluation and research] considers the applicant a high risk for
repeat sexual offences involving a child. It also relates the applicant’s
conduct throughout his post-detention supervision and notes, among other
things, that the applicant violated some of the conditions that had been
imposed on him. Before elaborating on each of the conditions imposed, it
explains the considerations that led to their imposition:
[translation]
. . . Having completed its
analysis, the Board notes that you remain a high risk for repeat sexual
offences involving very young girls. You do not seem to understand this risk
and have made no apparent effort to reduce it and avoid potential new victims.
This is your second conviction for breach of conditions, and despite the
suspensions, you continue to reoffend.
Moreover, those in charge of your
supervision are constantly obliged to seek new special conditions or to
elaborate on those already imposed, as you are constantly attempting to
circumvent them. For example, while in a facility, you refused to take the
medication prescribed for your sexual delinquency on the grounds that you were
only required to take it when in the community.
The Board notes that you refuse to
recognize high-risk situations. You do whatever you feel like doing, making you
a high risk to reoffend, as confirmed by CERUM’s final report.
(2) Did
the Board err in adding the following three special conditions to the
applicant’s long-term supervision order?
[translation]
(a) Not
to use or possess a cellular telephone or paging device or any other portable
telecommunications device;
[29]
The
applicant submits that the Board erred in its decision dated
September 1, 2010, in imposing as a condition the prohibition against
the use of a cellular telephone or any other portable telecommunications device
without explaining why such a restriction was reasonable and necessary to
protect the public. The explanation can be found in an earlier decision dated
September 14, 2009. According to the applicant, the explanation that
these measures are reasonable and necessary because of the risk he represents
to society is too general, merely repeats the text of the Act and does not satisfy
the requirements of procedural fairness.
[32]
It
has been well established judicially that a condition that has been renewed in
a new decision rendered by the Board may be subject to judicial review. In Normandin
v Canada (Attorney General) 2005 FC 1605, the judicial review heard by
Justice De Montigny involved a decision in which the condition at issue
had been established in an earlier decision of the Board. This condition was
being renewed for the third time:
[1] This application for judicial review
seeks to set aside a decision by the National Parole Board (the “Board”) dated
November 8, 2004 renewing for the third time a 90-day residency requirement, as
part of a community supervision order issued under section 753.1 of the Criminal
Code.
[33]
What
about the reasonableness of the condition? The purpose of the Act, as set out
in section 100, is to protect society while promoting the reintegration of
offenders into the community. Section 101 of the Act states the principles
by which the Board shall be guided in carrying out its mandate. The protection
of society remains the paramount consideration, but other factors must also be
considered:
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Principles guiding parole boards
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Principes
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101. The principles that shall guide
the Board and the provincial parole boards in achieving the purpose of
conditional release are:
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101. La Commission et les commissions
provinciales sont guidées dans l’exécution de leur mandat par les principes
qui suivent :
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(a) that the protection of
society be the paramount consideration in the determination of any case;
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a) la protection de la société est le critère
déterminant dans tous les cas;
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(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;
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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;
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(d) that parole boards make the
least restrictive determination consistent with the protection of society;
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d) le règlement des cas doit, compte
tenu de la protection de la société, être le moins restrictif possible;
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(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
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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;
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(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.
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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.
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[34]
Under
subsection 134.1(2) of the Act, the conditions established must be
reasonable and necessary in order to protect society and to facilitate the
successful reintegration into society of the offender. In this case, and in
light of the evidence in the record, this Court is of the view that the
establishment of a prohibition against the possession of a cellular telephone,
paging device or any other portable telecommunications device is not
unreasonable as things currently stand. The reasons provided by the Board seem
reasonable in the circumstances. The applicant has been uncooperative and has
breached his conditions. He has, in the past, committed more than one sexual
offence against children, including a very young girl, and has demonstrated
little promise of rehabilitation.
(b)
To
inform his employer of his status;
[35]
The
applicant also submits that this condition is excessive. The applicant has
never committed an offence in the context of his employment, nor has he ever
abused the position of authority associated with his employment to commit a
sexual offence. He argues that such a condition opens him up unnecessarily to
reprisals and places him in a vulnerable situation. He also submits that
sections 100 and 101 and 134.1(2) of the Act have not been respected. The
Board also failed to consider the fact that the applicant is already bound by
section 161 of the Criminal Code, which prohibits him from seeking,
obtaining or continuing any employment, whether or not the employment is
remunerated, that involves being in a position of trust or authority towards
persons under the age of sixteen years.
The respondent raised the same argument as
before, that this decision cannot be judicially reviewed because it was
established in the decision dated September 14, 2009, and that the
applicant has not demonstrated that the decision was unreasonable. It also
submits that there has been no change in the situation of the applicant, who
still requires close supervision.
[36]
A
condition that has been renewed in a new Board decision may be open to judicial
review. That is the case here. As for the reasonableness of the condition, the
Court is of the view that the Board, given its specialized expertise, is best
placed to decide this issue. The Court may only intervene if there are gross
errors in the appreciation of the facts or if the Board’s decision displays a
total lack of transparency or intelligibility, which is not the case here. This
Court’s intervention is therefore not warranted.
(c) To
inform the officer of his movements.
[37]
The
applicant submits that this condition, too, is excessive, goes beyond what is
necessary to achieve the purpose of the Act and constitutes an obstacle to his
reintegration. It represents an excessive burden on the applicant that is
impossible to respect. The condition is too vague and gives the supervision
officer absolute discretion with respect to the terms of its enforcement. The
word déplacement [the French for movement] has not been defined. Moreover,
argues the applicant, the Board has in no way weighed the principles of reintegration
into the community and rehabilitation. The Board has a duty to make the least
restrictive determination possible under sections 100, 101(d) and
134.1(2) of the Act. In the document entitled “Assessment for Decision”, dated
August 5, 2010, Corrections Canada recognized that such a decision
was not the least restrictive measure and that alternatives existed.
[38]
The
respondent submits that this decision is justified for the protection of
society and for the applicant’s reintegration into the community, the potential
for which has already been assessed as weak. Under paragraph 101(a)
of the Act, the protection of society remains the paramount consideration in
all cases. The Court must show deference to the Board’s decision.
[39]
Keeping
track of the applicant’s whereabouts allows for his conduct to be more
carefully monitored for the purpose of protecting society. In light of the
Board’s reasons and the applicant’s conduct, the Board’s decision appears
reasonable in the circumstances. It falls within the range of possible,
acceptable outcomes (see Dunsmuir v Nouveau-Brunswick,
2008 SCC 9, at paragraph 47). This Court’s intervention is not warranted.
IV. Conclusion
[40]
For
all of these reasons, the application for judicial review is dismissed without
costs.
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