Date: 20070809
Docket: T-390-07
Citation: 2007 FC 825
Montréal, Quebec, the 9th day of August 2007
PRESENT: THE HONOURABLE MADAM JUSTICE JOHANNE GAUTHIER
BETWEEN:
DOMENICO TOZZI
Applicant
and
THE ATTORNEY GENERAL OF CANADA
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
Mr. Tozzi is seeking to have the Court set aside the
decision of the Appeal Division of the National Parole Board (NPB) upholding
the NPB’s decision to dismiss his request for a temporary exemption
(approximately 1 month) from one of the conditions of his parole (prohibition
on leaving Canada) in order to allow him to visit his elderly parents
(87-year-old mother and 93-year-old father)
in Italy.
[2]
The Court is not insensitive to the difficult situation of
Mr. Tozzi, who has not seen his parents in 12 years. However, for the following
reasons, and after a very careful review of the relevant documentation, the
Court is unable to find that the decision under review contains a reviewable
error that warrants its being set aside.
[3]
As indicated at the hearing, the Court cannot simply
substitute its own assessment for that of the decision-maker. The decision is
harsh but reasonable.
Context
[4]
Mr. Tozzi’s current problems arise from his association
with more than one Italian Mafia family in Montréal. In the mid-90s, he was
arrested during a major police operation centring on the Centre international
monétaire de Montréal, a phoney currency exchange business opened by the Royal
Canadian Mounted Police (RCMP).
[5]
Mr. Tozzi was convicted of money laundering (involvement in
international transactions having a total value of $27 million) and of
conspiracy to traffic and import narcotics (including 2,500 kilos of cocaine
and 25 tonnes of hashish). The said conspiracies involved the Dimaulo family
and the Nicolucci family. Since March 19, 1996, he has been serving a 12-year
sentence.
[6]
Under an accelerated parole review (sections 125 et seq.
of the Corrections and Conditional Release Act, 1992, c. 20 (the Act)),
the NPB granted him day parole starting in March 1998. Since March 2000, he has
been on full parole.
[7]
Parole comes with various conditions; for example, Mr.
Tozzi must avoid any contact with members of the Mafia and must provide
financial information every month.
[8]
However, the most relevant condition in this context is one
that is automatically imposed under subsection 133(2) of the Act and paragraph
161(1)(b) of the Corrections and Conditional Release Regulations
SOR/92-620 (the Regulations) (see Schedule A for all relevant provisions): Mr.
Tozzi must remain at all times in Canada within the territorial boundaries
fixed by his parole supervisor until he has finished serving his sentence in
March 2008.
[9]
In 2005, Mr. Tozzi made an initial request to obtain
authorization to visit his parents in Italy.
At that time, the Correctional Service of Canada (CSC), in its overall
assessment, found that it could not make a recommendation in this regard in the
absence of comments from the CSC Security Division.
[10]
The NPB, in a decision dated August 19, 2005, stated the following:
[TRANSLATION]
You have been on full
parole directed since March 18, 2000. Your progress has been deemed stable. It
is interesting to note that all of your assets are in your wife’s name.
Regarding your
high-level criminal involvement, you refuse to be identified with a criminal
organization. You do not seem to have reflected on your associations or on your
involvement in the crimes in question.
You are not currently
a subject of interest on the part of police forces.
Your parole officer
notes that family ties are very important for you. However, she is currently
unable to assess your request because of the lack of information from the
Security Division. She therefore recommends that no measures be taken to
authorize a trip to Italy.
Even if your criminal
profile contains only one conviction, the Board must consider, in assessing
your risk of reoffending, your significant involvement in various criminal
organizations known for their international ramifications and the fact that you
have not reflected as you should have on your criminal choices.
For these reasons, the
Board is not taking any measures to authorize a trip to Italy.
[11] Mr. Tozzi argues that he did not think it would be useful to appeal this
decision since it was obvious that there was a lack of information from the CSC
Security Division, one of the factors specifically described in the NPB
Policy Manual (the Manual) when the offender is associated with members of
organized crime.
[12] In 2006, Mr. Tozzi submitted a new request (without written submissions
discussing the concerns expressed by the NPB in August 2005). This time, the
request was complete, in that it contained all the information listed in the
Manual. However, despite the fact that the police authorities concerned and the
CSC Security Division did not raise any objections or reservations, the new
overall assessment by the CSC found as follows:
[TRANSLATION]
After analyzing all of
the information in the subject’s file, we have decided not to recommend the
privilege requested by the subject. The subject’s criminal background includes
major international transactions in relation to organized crime. Because the
subject has always denied his association with organized crime and his
international criminal activities, one of the conditions of his supervisions
specifically states that he must reside all times within the territory of
Canada and, should he travel to Italy, we would no longer be able to manage the
risk safely and, consequently, we would no longer be able to exercise our
jurisdiction.
[13] On October 16, 2006, the NPB decided not to authorize the exemption
requested. In its decision, it briefly reviewed Mr. Tozzi’s history and his
progress as described in the CSC overall assessment (the 2006 assessment
referred specifically to the 2005 assessment). It noted in particular that Mr.
Tozzi continued to deny his association with organized crime, even though his
file showed that he participated in major international transactions in close
relationship with organized crime. It indicated that [TRANSLATION] “according
to the police, you do not appear to be a subject of interest for the moment”
and emphasized that [TRANSLATION] “for Italian authorities, there does not seem
to be a contraindication for this trip”.
[14] The NPB also considered the negative recommendation of the CSC case
management team and noted in passing the interventions made by the applicant’s
cousin in the file.
[15] It concluded as follows:
[TRANSLATION]
The Board understands
your wish to visit your parents, but it must also take into account that you
were involved in international criminal organizations, that your supervision
conditions require you to reside at all times within the territory of Canada
and that it would be impossible for your case management team to exercise its
jurisdiction during your stay in Italy. There was nothing that would enable us
to verify the risk of reoffending that such a trip would entail, and there
would be no form of supervision. Taking this information into account, the
Board is not taking any measures to authorize your trip to Italy.
[16] Mr. Tozzi appealed this decision and, in a decision dated January 30,
2007, the Appeal Division found that [TRANSLATION] “the NPB decision not to
take any measures concerning your request to travel to Italy is reasonable and
is based on relevant, credible and persuasive information”.
[17] The Appeal Division described the main arguments raised by the applicant
in the written representations that accompanied his notice of appeal. It also
indicated that [TRANSLATION] “the reports available” to the NPB contradict the
applicant’s claims that he had a rather minor role in the money laundering
operations and that his written arguments show that he does not understand why
the authorization requested constitutes [TRANSLATION] “a privilege that is
granted only on an exceptional basis”.
[18] The Appeal Division then noted that the NPB’s role is, above all, to
protect the public from the risk of reoffending and that
[TRANSLATION]
according to our
reading of the file, the Board had reliable and persuasive information that
indicated that you were a major figure in organized crime and that you were
associated with the Italian Mafia. You had almost the complete trust of various
organizations in trading major sums of money internationally. As a result, your
supervision conditions stipulate that you must reside at all times within the
territory of Canada and it is obvious, and you admit it yourself, that it would
be impossible for the case management team to exercise jurisdiction on Italian
soil. You would therefore be staying in Italy with no supervision and without
the possibility of verifying the possible change in your risk, which consequently
makes this unacceptable in this context.
[Emphasis added.]
Issues
[19] At the hearing, Mr. Tozzi tabled a copy of his oral argument prepared
with the assistance of a cousin with legal training (but who is not a lawyer
who is a member of a law society).
[20] After reviewing the written representations in the applicant’s file (which
originally referred to 14 issues, including several whose relevance within the
context of a judicial review was far from being obvious, such as the existence
of irreparable harm) in light of the written statement of fact (Part III of the
written representations), the Court is satisfied that the applicant emphasized
at the hearing the only real issues that merit comment in these reasons. They
may be summarized as follows:
i)
the Appeal Division as well as the NPB
underestimated the importance of the opinion of the police authorities and the
CSC Security Division;
ii)
both the Appeal Division and the NPB rejected the
request without serious reasons and they applied the wrong test, that is, an
absence of risk rather than an undue risk or a significant increase in risk or
an unacceptable risk to public safety;
iii)
the Appeal Division and the NPB erred in evaluating
reliable and persuasive information in the file concerning his role in the
crimes for which he was convicted. The applicant is relying in this respect on
the NPB’s decision dated March 17, 1998, which he moreover brought to the
attention of the Appeal Division;
iv) the Appeal Division and the NPB did not provide adequate reasons
for the decision, particularly in that they did not establish a clear link
between the imposed condition and the probability of reoffending and did not
indicate exactly what evidence supported the finding that the risk would be
increased if he were to travel outside the country.
[21] Mr. Tozzi also raised the following three points at the hearing:
i)
the NPB took into account a factor that was not relevant,
namely, that if authorization were granted, it could be the subject of media
coverage. According to Mr. Tozzi, this is the real reason for the refusal;
ii)
the NPB did not take into account the fact that the
sentence remaining to be served at the time of the application had been imposed
in place of a fine;
iii)
the NPB misrepresented the evidence before it, that is, the
position of the Canadian police authorities and that of the Security Division
(see note 4 above).
[22] The latter three arguments were not raised by the applicant before the
Appeal Division. As the Federal Court of Appeal stated in Toussaint v.
Canada (Labour Relations Board) (F.C.A.), 1993 F.C.J. 616 at
paragraph 5, it is clear that, within the context of an application for
judicial review, the Court cannot decide a question which was not raised before
the authority whose decision is being reviewed.
Standard of review
[23] The parties do not agree on the appropriate standard of review for the
issues raised by Mr. Tozzi. Since all of the issues submitted are, in the
applicant’s opinion, questions of law or procedural fairness, the appropriate
standard of review is correctness.
[24] According to the respondent, the role of the Appeal Division is basically
to verify whether the NPB’s decision is reasonable. According to the
respondent, the main issue before the NPB was a question of fact, namely,
whether it would be advisable to allow the applicant to travel outside Canada
in view of the risks that that could entail.
[25] After qualifying the substantive issue as a question of fact, the
respondent analyzed the other factors relevant to the functional and pragmatic
approach advocated by the Supreme Court of Canada as follows:
i)
there is no privative clause and no right of appeal of Appeal Division
decisions, which nevertheless remain subject to review by this Court;
ii)
the Appeal Division has more expertise than the Court, given its
specialized role in assessing risks and parole conditions (Lathan (2006)
F.C.J. No. 362 at paragraph 7);
iii)
the purpose of the Act and the specific provisions in particular involve a
polycentric analysis since, in exercising its discretion under subsection
133(6), the NPB must take into account the principles set out in sections 100
and 101 of the Act (Boucher v. Canada (Attorney General) [2006] F.C.J. No. 1749, at paragraph 11).
[26] On this basis, the respondent found that standard of review involving the
highest degree of deference applies, that is, that of patent unreasonableness.
[27] At this stage, it would be advisable to point out the somewhat exceptional
nature of the appeal mechanism provided for in the Act. In Cartier v. Canada
(Attorney General) (C.A), [2003] 2 F.C.
317, the Federal Court of Appeal described the role of the Appeal Division as
follows:
7 Paragraph
147(5)(a)[6] is troubling, to the extent that it imposes a standard of review which
for all practical purposes applies only when the Appeal Division, pursuant to
paragraph 147(4)(d), reverses the Board's decision and permits the offender to
be released. What standard should be applied when, as in the case at bar,
the Appeal Division affirms the Board's decision pursuant to paragraph
147(4)(a)?
8 Paragraph
147(5)(a) appears to indicate that Parliament intended to give priority to the
Board's decision, in short to deny statutory release once that decision can
reasonably be supported in law and fact. The Board is entitled to err, if the
error is reasonable. The Appeal Division only intervenes if the error of law or
fact is unreasonable. I would be inclined to think that an error of law by
the Board as to the extent to which it must be "satisfied" of the
risk of release -- an error [page327] which is alleged in the case at bar -- is
an unreasonable error by definition as it affects the Board's very function.
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 paragraph 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.
[Emphasis added.]
[28] In light of the foregoing, the Appeal Division had therefore to
review all the issues before the NPB on the basis of the standard of
reasonableness.
[29] In Law Society of New Brunswick v. Ryan, [2003] 1 S.C.R. 247 at paragraph 47,
the Supreme Court of Canada stated the following:
47 … The standard of reasonableness basically involves asking
"After a somewhat probing examination, can the reasons given, when taken
as a whole, support the decision?"
[30]
It added the following at paragraphs 55 and
56:
55 A
decision will be unreasonable only if there is no line of analysis within the
given reasons that could reasonably lead the tribunal from the evidence before
it to the conclusion at which it arrived. If any of the reasons that are
sufficient to support the conclusion are tenable in the sense that they can
stand up to a somewhat probing examination, then the decision will not be
unreasonable and a reviewing court must not interfere (see Southam, at para.
56). This means that a decision may satisfy the reasonableness standard if it
is supported by a tenable explanation even if this explanation is not one that
the reviewing court finds compelling (see Southam, at para. 79).
56 This
does not mean that every element of the reasoning given must independently pass
a test for reasonableness. The question is rather whether the reasons, taken as
a whole, are tenable as support for the decision. At all times, a court
applying a standard of reasonableness must assess the basic adequacy of a
reasoned decision remembering that the issue under review does not compel one
specific result. Moreover, a reviewing court should not seize on one or more
mistakes or elements of the decision which do not affect the decision as a
whole.
[31] The question of whether the Appeal Division erred in its general
assessment of the reasonableness of the NPB’s decision is, in my opinion, a
question of mixed fact and law because, as my colleague Mr. Justice Sean
Harrington indicated in Fournier v. Canada (Solicitor General), [2004] F.C. 1124 at paragraph 22, it must be verified
whether the NPB reasonably applied the Act to a particular situation.
[32] Under the pragmatic and functional approach used to determine the
standard applicable to the Appeal Division’s decision, the lack of a right of
appeal and a privative clause is a neutral factor. The specific expertise of
the Appeal Division in evaluating such requests militates in favour of
deference, especially since, as indicated by the respondent, the object of the
Act and the relevant provisions to be applied requires a polycentric analysis.
However, in view of my finding that the evaluation of the reasonableness of the
NPB’s decision is not a question of pure fact or of pure law, the Court finds
that the standard applicable to the Appeal Division’s decision is also
reasonableness.
[33] The Court is aware that in certain decisions cited by the respondent, the
standard of patent unreasonableness was applied to a similar issue. However, as
Mr. Justice Allen M. Linden of the Federal Court of Appeal indicated in Condo
v. Canada (AG), 2005 FCA 391, [2005] F.C.J.
No. 1951, the application of a standard involving less deference
has no impact here because the Court finds that the decision is reasonable.
[34] That being said, if, as the applicant submits, the Appeal Division had
itself failed to comply with its obligation to give reasons for its decision,
the Court should ordinarily intervene because this would constitute a breach of
procedural fairness (Sketchley v. Canada (Attorney General) [2005] F.C.J. No. 2056.
[35] If the Appeal Division had itself made an error of law independent of
those attributed to the NPB (for example, if the Appeal Division had applied
the wrong standard in evaluating the NPB’s decision, that is, if it had applied
the standard of patent unreasonableness), the Court would need to review this
issue on the basis of the standard of correctness. However, the errors of law
which the Appeal Division is alleged to have made are the same as those attributed
to the NPB by the applicant. He is therefore challenging the assessment of the
reasonableness of the NPB’s decision rather than a separate error made by the
Appeal Division.
Analysis
[36] Mr. Tozzi argues, as I have said, that the fact that police forces and the
Security Division have no objections or reservations and that his behaviour
since his conviction has been exemplary are certainly factors that are more
significant than the [TRANSLATION] “scenarios, suspicions and other
suppositions” of the NPB and the Appeal Division which, in his view, are not in
any way based on any reliable fact or information. He also believes that this
is where the error made by the NPB and the Appeal Division in evaluating the
information or evidence available concerning his role in the crimes for which
he was convicted and in the Italian Mafia is especially important. It is these
“errors” that explain his conclusion that the NPB and the Appeal Division
denied his request without a serious reason.
[37] It should be stated at the outset that Mr. Tozzi’s argument that some
evidence is more significant than other evidence indicates that, in actual
fact, he is asking the Court to reassess the evidence in the file and
substitute this assessment for that of the Appeal Division or the NPB. Given
the standard of review that applies in this case, it is very clear that this is
not the Court’s role.
[38] When Mr. Tozzi obtained full parole in 2000, the conditions imposed by the
NPB—including those imposed by the Act—were the conditions that were the least
restrictive consistent with protection of society, which remains the paramount
consideration in the determination of any case (section 101 of the Act).
[39] The importance of the conditions imposed by subsection 133(2) of the Act
and by the Regulations cannot be underestimated since, in passing paragraph
161(1)(b) of the Regulations, Parliament clearly expressed its wish
that, as a rule, offenders on parole, even full parole, remain at all times in
Canada within the territorial boundaries fixed by their supervisor. This is a
major element of the parole system based on risk management. The offender
always remains under the jurisdiction and supervision of the CSC through the
case management team.
[40] This means, therefore, as the Appeal Division clearly indicated, that even
a temporary exemption from this condition is a privilege or an exception to the
general rule.
[41] Parliament gave the NPB the discretion to grant such a privilege
(subsection 133(6) of the Act). Thus, even if the NPB is required to take into
account the CSC’s recommendations, as well as the opinions and comments of
police forces and the Security Division, its role is not to merely confirm the
opinion of these third parties.
[42] Just as the NPB is not bound by a negative recommendation by the CSC, it
is not required to give decisive weight to the views of the Security Division
or police forces.
[43] The Act and the Regulations do not provide any specific test to be applied
during an assessment under subsection 133(6) of the Act. This is a discretionary
decision. Naturally, the NPB must be guided at all times in carrying out its
mandate by the principles set out in sections 100 and 101 of the Act. In this
respect, the Court notes that, in its Manual, the NPB indicates that it must
take into account “any factor that is relevant in determining whether
the travel might result in any increase in the offender’s risk to society”.
[44] The Manual then lists at paragraph 7.1 certain factors, among others, that
the NPB must take into account:
·
written confirmation from authorities that the country of destination does
not object to the offender visiting that country;
·
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. For
offenders involved in organized crime, any comment made by the Security
Division to the NHQ of the CSC;
·
progress on current and previous releases, including length of time on the
current release, and the proximity to the warrant expiry date.
[45] Naturally, the use of the term “including” after any relevant factor
indicates that this list is not exhaustive.
[46] The applicant is not challenging that the factors listed in the Manual are
all relevant and legitimate. In addition, the Appeal Division and the NPB undoubtedly
had all of this information available. These decision-makers are presumed to
have read and taken into account all of the evidence before them.
[47] Mr. Tozzi also indicated that he had already been authorized to travel in
British Columbia to visit his son and that he did not abuse this privilege in
any way.
According to him, this establishes that he is able to comply with the
conditions of his parole without immediate supervision.
[48] It is obvious that a trip within Canadian jurisdiction is not truly comparable
to a trip outside Canadian jurisdiction, especially to Italy, cradle of the
Italian Mafia, where his comings and goings within the country and his possible
contacts with persons involved in organized crime cannot in any way be
supervised or monitored.
[49] The applicant submits that the NPB, in point of fact, imposed an excessive
burden on him, that is, proving with certainty that there would be no increased
risk of reoffending during this trip.
[50] The Court cannot accept this position. Nothing in the decision indicates
that the decision-makers imposed such a burden. In fact, in its Manual, the NPB
describes what an assessment of such a request entails. It specifically notes
that, “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”.
[51] At this point, it would be useful to note that in its decision dated March
17, 1998,
the NPB clearly mentioned that, even if there were no reasonable grounds to
believe that the applicant would be likely to commit an offence involving
violence before the expiration of his sentence, it believed that [TRANSLATION]
“the risk of reoffending with regard to crimes of the same type is still
present”. In this respect, it noted, among other things, that the applicant
minimized the importance of his involvement and his ties with the masterminds
of the network and that he has tendency to feel victimized.
[52] In this decision, the NPB also noted that [TRANSLATION] “the lure of easy
money seems to be the most plausible explanation for Mr. Tozzi’s participation
in the crimes for which he was convicted” and that it was concerned that there
had been little change in the applicant’s values since his arrest.
[53] The applicant makes much of his exemplary behaviour since his parole and
even before, and about his compliance with the conditions of his parole to
date. No one doubts this; however, it appears from his file that nothing has
changed in terms of his values and that he continues to deny or minimize his
past association with organized crime. This problem has been noted everywhere,
even in the latest follow-up to his correctional plan dated May 24, 2006.
[54] In fact, Mr. Tozzi still argues that the approach or [TRANSLATION] “blindness”
of the NPB and the Appeal Division concerning the nature of his association
with the Italian Mafia has completely [TRANSLATION] “clouded” their judgment.
[55] The NPB’s position has nevertheless been constant and it has never been
formally challenged by the applicant. The description used by the Appeal
Division in its decision is very similar to that used by the NPB in 1998 (see
page 3, paragraph 3 of that decision).
[56] It is the applicant’s actions for which he was convicted that clearly
demonstrate his association with the Italian Mafia.
[57] Whether the applicant was a simple carrier (in financial transactions) or
more than that, it was his involvement (rather than his specific role) in
high-level transactions involving several million dollars that led the NPB to
find that he enjoyed almost the complete trust of the masterminds of this
money-laundering operation.
[58] As the NPB indicated in its 1998 decision (see page 5, 2nd paragraph),
[TRANSLATION] “the gravity of the crime for which he was incarcerated leaves no
doubt as to the level of confidence enjoyed by the applicant during his
criminal involvement”. Even in giving more weight to the testimony of Officer
Fontaine of the RCMP, who described him as a simple carrier, the NPB found that it was
obvious that the applicant was [TRANSLATION] “in the inner circle, and even a
confidante, of certain heads of the criminal group known as the Italian Mafia”.
[59] That is why the applicant’s associations were termed [TRANSLATION] “a
central element in his delinquency” and why the NPB described as a
[TRANSLATION] “measure indispensable” to his parole that he be specifically
required to refrain from any communication with criminal peers or persons
closely or distantly connected with the Italian Mafia.
[60] The Court is not satisfied that the decision of the Appeal Division
contains a reviewable error concerning the nature of the applicant’s
association with the Italian Mafia.
[61] In such a context (nature of the crime, past association with the Italian
Mafia and specific conditions of his parole), was it reasonable for the Appeal
Division (and the NPB) to find that the risk of reoffending that exists,
particularly during a trip to Italy where the applicant’s associations and
comings and goings could not be supervised, is unacceptable?
[62] After a fairly comprehensive review, the Court is convinced that in this
specific case, in which the supervision of the offender, particularly with
respect to his compliance with the condition concerning his associations, is a
crucial element in the management of the risk of reoffending, the finding of
the Appeal Division is reasonable.
[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.
[66] The Court is satisfied that the applicant knew why authorization was
denied and that he was able to exercise fully his right of appeal to the Appeal
Division and his right to have the Appeal Division’s decision reviewed by this
Court. The reasoning followed and the evidence on which the denial was based
were succinctly but clearly set out. The Court was also able to review the
lawfulness of these decisions.
[67] In this context and given the information in the decision-maker’s file and
the fact that the applicant was familiar with all the previous documentation in
his file (particularly the other NPB decisions), the Court is satisfied that
adequate reasons were given for both decisions.
[68] In conclusion, the applicant did not establish that the decision of the
Appeal Division contained a reviewable error that would warrant its being set
aside.
[69] In a few months, the applicant will have served his entire sentence and
will be able to travel once again.
JUDGMENT
THE COURT ORDERS that:
The application be dismissed.
Johanne Gauthier
Susan Deichert, LLB
SCHEDULE A
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.
Conditions of
release
133. (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.
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.
Right of appeal
147. (1) An offender
may appeal a decision of the Board to the Appeal Division on the ground that
the Board, in making its decision,
(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.
Decision on appeal
(4) The Appeal
Division, on the completion of a review of a decision appealed from, may
(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.
Conditions of immediate
release
(5) 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.
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Objet
100. La mise en liberté sous condition vise à contribuer
au maintien d’une société juste, paisible et sûre en favorisant, par la prise
de décisions appropriées quant au moment et aux conditions de leur mise en
liberté, la réadaptation et la réinsertion sociale des délinquants en tant
que citoyens respectueux des lois.
Principes
101. La Commission et les commissions provinciales sont
guidées dans l’exécution de leur mandat par les principes qui suivent :
a) la protection de
la société est le critère déterminant dans tous les cas;
b) elles doivent
tenir compte de toute l’information pertinente disponible, notamment les
motifs et les recommandations du juge qui a infligé la peine, les
renseignements disponibles lors du procès ou de la détermination de la peine,
ceux qui ont été obtenus des victimes et des délinquants, ainsi que les
renseignements et évaluations fournis par les autorités correctionnelles;
c) elles accroissent
leur efficacité et leur transparence par l’échange de renseignements utiles
au moment opportun avec les autres éléments du système de justice pénale
d’une part, et par la communication de leurs directives d’orientation
générale et programmes tant aux délinquants et aux victimes qu’au public,
d’autre part;
d) le règlement des
cas doit, compte tenu de la protection de la société, être le moins
restrictif possible;
e) elles s’inspirent
des directives d’orientation générale qui leur sont remises et leurs membres
doivent recevoir la formation nécessaire à la mise en oeuvre de ces
directives;
f) de manière à
assurer l’équité et la clarté du processus, les autorités doivent donner aux
délinquants les motifs des décisions, ainsi que tous autres renseignements
pertinents, et la possibilité de les faire réviser.
Conditions automatiques
133. (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.
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.
Droit d’appel
147. (1) Le délinquant visé par une décision de la Commission
peut interjeter appel auprès de la Section d’appel pour l’un ou plusieurs des
motifs suivants :
a) la Commission a
violé un principe de justice fondamentale;
b) elle a commis une
erreur de droit en rendant sa décision;
c) elle a contrevenu
aux directives établies aux termes du paragraphe 151(2) ou ne les a pas
appliquées;
d) elle a fondé sa
décision sur des renseignements erronés ou incomplets;
e) elle a agi sans
compétence, outrepassé celle-ci ou omis de l’exercer.
Décision
(4) Au terme de la révision, la Section d’appel peut
rendre l’une des décisions suivantes :
a) confirmer la décision visée par l’appel;
b) confirmer la
décision visée par l’appel, mais ordonner un réexamen du cas avant la date
normalement prévue pour le prochain examen;
c) ordonner un
réexamen du cas et ordonner que la décision reste en vigueur malgré la tenue
du nouvel examen;
d) infirmer ou
modifier la décision visée par l’appel.
Mise en liberté immédiate
(5) Si sa décision entraîne la libération immédiate du délinquant,
la Section d’appel doit être convaincue, à la fois, que :
a) la décision visée
par l’appel ne pouvait raisonnablement être fondée en droit, en vertu d’une
politique de la Commission ou sur les renseignements dont celle-ci disposait
au moment de l’examen du cas;
b) le retard apporté
à la libération du délinquant serait inéquitable.
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Corrections and Conditional Release Regulations
(SOR/92-620)
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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
(a) on release, travel directly to the offender's place
of residence, as set out in the release certificate respecting the offender,
and report to the offender's parole supervisor immediately and thereafter as
instructed by the parole supervisor;
(b) remain at all times in Canada within the territorial
boundaries fixed by the parole supervisor;
(c) obey the law and keep the peace;
(d) inform the parole supervisor immediately on arrest or
on being questioned by the police;
(e) at all times carry the release certificate and the
identity card provided by the releasing authority and produce them on request
for identification to any peace officer or parole supervisor;
(f) report to the police if and as instructed by the
parole supervisor;
(g) advise the parole supervisor of the offender's
address of residence on release and thereafter report immediately
(i) any change in the offender's address of residence,
(ii) any change in the offender's normal occupation,
including employment, vocational or educational training and volunteer work,
(iii) any change in the domestic or financial situation
of the offender and, on request of the parole supervisor, any change that the
offender has knowledge of in the family situation of the offender, and
(iv) any change that may reasonably be expected to affect
the offender's ability to comply with the conditions of parole or statutory
release;
(h) not own, possess or have the control of any weapon,
as defined in section 2 of the Criminal Code, except as authorized by the
parole supervisor; and
(i) in respect of an offender released on day parole, on
completion of the day parole, return to the penitentiary from which the
offender was released on the date and at the time provided for in the release
certificate.
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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 :
a) dès sa mise en liberté, le délinquant doit se rendre
directement à sa résidence, dont l'adresse est indiquée sur son certificat de
mise en liberté, se présenter immédiatement à son surveillant de liberté conditionnelle
et se présenter ensuite à lui selon les directives de celui-ci;
b) il doit rester à tout moment au Canada, dans les
limites territoriales spécifiées par son surveillant;
c) il doit respecter la loi et ne pas troubler l'ordre
public;
d) il doit informer immédiatement son surveillant en cas
d'arrestation ou d'interrogatoire par la police;
e) il doit porter sur lui à tout moment le certificat de
mise en liberté et la carte d'identité que lui a remis l'autorité compétente
et les présenter à tout agent de la paix ou surveillant de liberté
conditionnelle qui lui en fait la demande à des fins d'identification;
f) le cas échéant, il doit se présenter à la police, à la
demande de son surveillant et selon ses directives;
g) dès sa mise en liberté, il doit communiquer à son
surveillant l'adresse de sa résidence, de même que l'informer sans délai de :
(i) tout changement de résidence,
(ii) tout changement d'occupation habituelle, notamment
un changement d'emploi rémunéré ou bénévole ou un changement de cours de
formation,
(iii) tout changement dans sa situation domestique ou
financière et, sur demande de son surveillant, tout changement dont il est au
courant concernant sa famille,
(iv) tout changement qui, selon ce qui peut être
raisonnablement prévu, pourrait affecter sa capacité de respecter les
conditions de sa libération conditionnelle ou d'office;
h) il ne doit pas être en possession d'arme, au sens de
l'article 2 du Code criminel, ni en avoir le contrôle ou la propriété, sauf
avec l'autorisation de son surveillant;
i) s'il est en semi-liberté, il doit, dès la fin de sa
période de semi-liberté, réintégrer le pénitencier d'où il a été mis en
liberté à l'heure et à la date inscrites à son certificat de mise en liberté.
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