Date:
20130607
Docket:
T-120-13
Citation:
2013 FC 615
Ottawa, Ontario,
June 7, 2013
PRESENT: The
Honourable Madam Justice Simpson
BETWEEN:
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RANJIT GILL
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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 ORDER
AND ORDER
[1]
Ranjit
Gill [the Applicant] applies for judicial review of a decision of the Appeal
Division of the Parole Board of Canada [the Appeal Division], dated
December 17, 2012 [the Decision], made pursuant to the Corrections and
Conditional Release Act, SC 1992, c 20, upholding the Parole Board of
Canada’s [the Board] decision to revoke the Applicant’s parole.
[2]
For
the following reasons the application will be dismissed.
I. Background
[3]
The
Applicant is a 52-year old Canadian citizen who, on November 24, 1988, began
serving a life sentence for second-degree murder committed while intoxicated.
He was released from Ferndale Institution in British Columbia on full parole on
February 14, 2001 and thereafter worked as a longshoreman.
[4]
The
suspension of parole at issue occurred on May 7, 2012, when the police
responded to a report that an impaired driver had parked his car and stumbled
into a restaurant. In its decision, the Board said that the police described
the Applicant as “appearing to be intoxicated”. They also noted the smell
of alcohol on his breath and observed that he had just ordered a beer even
though his parole conditions precluded the consumption of intoxicants. This
event will be described as the “Incident”. The Applicant was arrested and returned
to Ferndale Institution. He explained to the police that his symptoms were
caused by the fact that he had taken Tylenol 3 tablets.
[5]
The
Applicant’s parole had previously been suspended four times: once in 2003, once
in 2005, and twice in 2011 [the Earlier Suspensions]. They all involved a
concern about the consumption of alcohol, but each time parole was reinstated.
[6]
Before
its hearing, the Board was provided with an Assessment for Decision from the
Applicant’s parole officer [PO] dated May 29, 2012 [the Assessment]. Therein,
for the first time, the PO recommended revoking the Applicant’s parole. She
referred to his increased risk when intoxicated and the fact that recent
circumstances indicated that he had been drinking and driving, but that he continued
to deny that he was drinking “despite the credulity of his denials becoming
increasingly strained as the incidents pile up.”
[7]
In
the Assessment, the PO also made the following observation: “As he is a
diabetic, he seemed focused on living a healthy lifestyle involving a good diet
and exercise program.” There is no other reference to diabetes in the
Assessment. The only other documentary evidence before the Board concerning the
Applicant’s diabetes predated the Assessment by five years. It is found in a
Psychological/Psychiatric Assessment Report of June 22, 2007, which showed that
the Applicant told the doctors during his assessment that “he was focusing on
his health during this period, as he had been told by his physician that he was
borderline diabetic. This had prompted him to change his eating habits and to
exercise more. The result was that he had returned to his normal weight level,
and his blood sugar was well controlled.”
[8]
At
the hearing, the Board asked the Applicant to explain his demeanour during the
Incident. In response, the Applicant denied stumbling and could not explain the
odour of liquor on his breath. However, he did say that the parking lot had a
bumpy surface and that he had taken Tylenol 3. He did not refer to diabetes.
[9]
After
the Board completed its questioning, the Applicant’s counsel advised the Board
that he suffered from diabetes and that its symptoms could mirror intoxication.
She also said that the Applicant should have testified to that effect.
[10]
In
spite of this submission, which, in my view, served as a prompt, the Applicant
merely acknowledged that he had diabetes. He did not indicate that he had been
experiencing problems with his blood sugar levels on the day of the Incident or
at any previous time and he did not suggest that his diabetes explained or
contributed to his behaviour during the Incident.
[11]
The
fact that his explanation for the Incident involved only Tylenol 3 is confirmed
in a memo made on June 6, 2012, at the Pacific Region’s Temporary
Detention Unit. This memo predated the Board’s hearing and was included in the
Board’s record. The memo described a discussion with the Applicant about the
Incident in these terms: “When asked if he had anything to drink or taken
any substances, Gill said that he took a second doctor-prescribed T3 after
jogging and nothing else (two T3s total).”
[12]
To
summarize, the Board had no documentary information to suggest that the
Applicant was experiencing problems with his blood sugar levels or that he was
receiving insulin or other treatment for diabetes at the time of the Incident.
The Applicant’s evidence was consistent throughout. He gave the police, his PO, the officials at the Temporary Detention Unit and the Board the same simple explanation
and in each case it was Tylenol 3.
II. The Issue
[13]
The
central issue raised by the Applicant relates to the Board’s conduct during its
hearing. It is acknowledged that where the Appeal Division affirms the Board’s
decision, as is the case here, the Court can inquire into the lawfulness of the
Board’s decision (Cartier v Canada (Attorney General), 2002 FCA 384 at
paras 6-10).
[14]
The
Applicant’s initial argument on judicial review was that the Board had a duty
to seek out information about the Applicant’s diabetes. However, during the
hearing, it became clear that all the relevant documentary evidence was before
the Board. The issue therefore narrowed and became a question of whether, after
the Applicant stated that he had diabetes, the Board should have questioned him
further about whether his blood sugar levels were fluctuating and whether this
might have explained his symptoms during the Incident.
III. Discussion
[15]
The
Applicant accurately submits that in a decision of September 7, 2011 [the
Earlier Decision], following one of the Earlier Suspensions, the Board
concluded that diabetes was a plausible alternative explanation for the
Applicant’s apparent intoxication. For that reason, the Applicant says that
fairness required the Board in this case to explore that possibility with the
Applicant. However, in the earlier case, as in the present case, it was only
the Applicant’s counsel who referred to diabetes as a possible explanation for
the Applicant’s symptoms. The Applicant did not testify to that effect. His
explanation in the earlier hearing dealt with lack of sleep and cough syrup.
The Board said:
“While suspicions that you had breached your special
condition [no intoxicants] remain, a plausible alternative explanation was
presented by your assistant for how you presented to your CPO.”
[16]
In
my view, this was not a conclusive finding and was without evidentiary support.
I therefore conclude that the Earlier Decision did not trigger an
obligation on the Board to further question the Applicant.
[17]
Accordingly,
the application will be dismissed.
ORDER
THIS COURT
ORDERS that the application for judicial review is hereby
dismissed with costs to the Respondent under Tariff B Column III of the Federal
Court Rules. If the parties cannot agree on a lump sum, the Registry may be
contacted and arrangements will be made to fix an award.
“Sandra J. Simpson”
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