Date:
20131031
Docket:
T-1868-12
Citation:
2013 FC 1113
Ottawa, Ontario,
October 31, 2013
PRESENT: The
Honourable Madam Justice McVeigh
BETWEEN:
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CESAR LALO
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Applicant
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and
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ATTORNEY GENERAL OF CANADA AND THE CHAIRPERSON OF THE PAROLE BOARD OF CANADA
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Respondents
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REASONS FOR JUDGMENT
AND JUDGMENT
UPON reading
the materials filed, the Certified Tribunal Record (CTR) and hearing the
parties for the judicial review, of a decision of the Parole Board of Canada
(PBC or the Board) to maintain restrictions on Cesar Lalo (the Applicant)
regarding the conditions of his Long Term Supervision Order (LTSO);
I.
Background
[1]
The
Applicant was convicted of over 50 offences in total against 22 minor males of
which he had authority over. The offences took place while he was a Child
protection worker with Family Court, ward worker for Department of Welfare,
youth probation officer and a child protection worker. His sexual convictions
include buggery or bestiality, indecent assault, sexual assault, acts of gross
indecency and sexual exploitation and touching, mutual masturbation, fellatio
and anal intercourse. The offences took place in Family Court facilities, his
vehicle, a park, a knights of Columbus hall, and two cottages where he brought
some victims for a short holiday and finally the son of his homosexual partner
in a church. The Applicant’s victims were children he was charged with placing
in foster care, Young Offenders, youth who had not committed any offences but
were referred to him as part of a diversion project sponsored by the Police,
and children of adults he had relationships with.
[2]
The
Applicant was sentenced to further incarceration for 5 years and one month,
during which time he was already serving an 8 year and 11 month sentence for
six counts of Indecent Assault and Sexual Exploitation.
[3]
The
Applicant has been diagnosed with homosexual paedophilia and hebephilia, and is
deemed to be a long-term offender, subject to a ten-year supervision order
following his release in 2009. The Honourable Justice Robertson, in making her
August 4, 2004 determination as to the Applicant’s status as a long-term
offender, made recommendations regarding conditions.
[4]
The
Applicant remained in detention until the expiry of his warrant in September 2009.
At that time he became subject to a LTSO. The LTSO remains in effect for 10
years after the Applicant’s expiration of his sentence.
[5]
The
conditions required that the Applicant:
1. follow
psychological counsel, to include by not limited to sex offender relapse
prevention;
2. reside
at a community correctional centre or a community-based residential facility;
3. not
access directly or indirectly the world wide web or internet services without
pre-approval from his parole officer;
4. not
purchase, possess or access in any way any computer system, camera, cellular
phone, or any other electronic equipment that has the capacity to capture,
upload, download, share and store images;
5. not
possess, produce, download, upload, view or purchase pornography or any other
form of erotica, including but not limited pictures of children;
6. have
no direct or indirect contact with children under the age of eighteen,
including written or telephone contact, and contact through internet use such
as email or chat rooms.
[6]
The
PBC placed a 180 day period on the residency condition, at which time the
condition could be removed, altered or extended. Following his release from
custody, the Applicant moved into a Community Based Residential Facility, and
in February 2010 the residency condition was extended. The PBC’s decision to
extend the residency condition took into account the Psychological/Psychiatric
assessment by Dr. Firestone, the Applicant’s psychologist, which advised that
he considered the Applicant to be at a low risk to re-offend while under the
residency condition, and at a low-moderate risk should the residency condition
be lifted. Dr. Firestone advised the PBC that he was in favour of the residency
condition being extended, but did not agree with the internet restriction.
[7]
In
April 2010, Dr. Firestone provided another report in which he concluded that
the Applicant’s risk to re-offend was low and that the residency condition was
not necessary. Dr. Firestone stated the same in his next report in May 2010. The
reports also noted historical evidence of the Applicant’s minimization,
distortion and difficulty with empathy.
[8]
Dr.
Firestone’s reports were considered by the PBC when the Applicant’s residency
conditions were next up for review. The PBC also considered that the Applicant
had acquired pornography from another Facility resident contrary to his parole
conditions. While the Applicant was never charged for the breach, the PBC was
concerned that the incident was contrary to his professed lack of interest in
sexual activity and concluded that he remained a risk to re-offend. As such, in
August 2010 the residency condition was again left in place, with consideration
given to a possible lifting of it in the future.
[9]
The
PBC amended the Applicant’s conditions in March 2011, on the recommendation of
the Ottawa Parole Office, and permitted the Applicant limited internet access
with his parole supervisor’s permission. The residency condition was also
lifted and the Applicant began living in his own apartment. In July 2011, it
was found that he had violated his parole conditions and had accessed
pornography on a computer in his apartment. He was subsequently detained and
sentenced to six months custody for the LTSO breach.
[10]
Upon
his release the Applicant’s LTSO conditions included the 180 day residency
condition and the restriction from owning a computer or any other device that
would allow him unsupervised access to the internet unless approved by his
parole supervisor.
[11]
PBC
received submissions from both Correctional Service of Canada (CSC) and the
Applicant. CSC applied to modify the Applicant’s special condition regarding
possessing a computer, and to recommend overnight leave privileges and to
continue the residency condition for an additional 180 days. The Applicant
requested access to a computer for the purposes of journaling and to have
supervised access to the internet, have the residency clause removed and to
have the restrictions against pornography removed.
[12]
The
CSC’s request does not mention the removal of the pornography condition.
[13]
The
PBC made a decision dated September 12, 2012 and said for overnight leave
privileges, they were taking no action as only 5 months since he returned from
incarceration brought about from the breach of LTSO, so the overnight
application is premature and the existing residency clause remains.
[14]
The
PBC changed the no computer condition such that the Applicant “could possess a
computer or similar electronic device with prior consent is reasonable as the
conditions relating to pornography remain fully in place and your parole
supervisor will have the ability to ascertain what web sites you are accessing.”
II. Issues
[15]
The
issues in the present application are as follows:
a. Was
the decision of the PBC reasonable?
b. Where
there Charter breaches or procedural unfairness by the PBC in making that
decision?
III. Standard of review
[16]
The
standard of review for decisions of the PBC that are an exercise of the PBC’s
discretion is reasonableness and the Court must show deference for the PBC’s
expertise in imposing conditions under Section 134.1 of the Corrections and
Conditional Release Act, SC 1992, c 20 (the CCRA) (Hurdle v Canada
(Attorney General), 2011 FC 599, at para 11; Gaudreau v Canada (Attorney
General), 2011 FC 953, at para 7; both decisions upheld by FCA; Gaudreau
v Canada (Attorney General); Hurdle v Canada (Attorney General), 2012 FCA 116).
[17]
The
question of whether the Applicant’s rights under section 7 of the Canadian
Charter of Rights and Freedoms, Part 1 of the Constitution Act 1982,
(Canadian Charter), were violated is reviewable on a correctness standard (Scott
v Canada (Attorney General), 2010 FC 496, at para 33), as is the question
of whether the Applicant was afforded procedural fairness (Miller v Canada
(Attorney General), 2010 FC 317, at para 39).
IV. Decision
and Analysis
A. Preliminary
[18]
I
asked the Applicant’s counsel if the conditions at issue were moot and he
indicated all were still in place.
[19]
The
Applicant is seeking review of three conditions. He is seeking review of the
180 day extension of the residency condition, the maintenance of the internet
prohibition and the condition not to purchase or possess any form of pornography.
[20]
The
Applicant submits that the relevant question to ask for each of the three
conditions are whether it was reasonable for PBC to decide the condition was
necessary and reasonable to achieve the dual goals of facilitating the
Applicant’s successful reintegration into society while protecting society. The
Applicant submits that the PBC’s reasons and decision suggest factors were not
considered.
[21]
I
find the decision of the PBC to be reasonable, and I find no procedural
unfairness or Canadian Charter infringements for the reasons as set out below.
B. Residency Condition
[22]
The
Applicant has his own apartment and in the past was allowed to live there. At
the time of the decision, the Applicant was being allowed to keep his apartment
and to spend approximately 8 hours every Saturday and Sunday in it.
[23]
The
PBC, after reviewing the material, determined the residency clause was reasonable
as when it was previously lifted he breached another condition by viewing porn
on his computer at his residence. The PBC said that as it had been 6 months
since being released and he breached and it was directly related to being alone
in his residence, they were not prepared to lift it.
[24]
The
PBC clearly set out the reasons for not changing the residency condition:
…Minimizing a flagrant breach of your special
conditions is consistent with your past behaviour and attitude. You continue to
demonstrate little insight into your offending or your risks. Accordingly,
given the risk you pose, the poor prognosis you have in terms of treatment,
your sexual deviancy and diagnosis as set out in the several clinical reports
the Board concludes that you present an undue risk to the public to commit a
Schedule One offence in the absence of a residency requirement.”
[25]
With
regards to the application to alter the condition to allow for overnight
privileges the PBC said “… The Board is taking no action on this request as it
has only been about five months that you have returned from incarceration
brought by your breach of the LTSO and overnight leave is premature at this
time.” These reasons are clear why they are not removing the residency clause.
C. Internet Prohibition
[26]
The
Applicant submits that having access to the internet could be a positive step
towards his reintegration to society. He submits that none of his crimes were
internet related so that this condition is not reasonable. The Applicant
submitted that because of his age and medical condition he probably would not
re offend if the internet prohibition was removed. He submits he has shown
significant progress in his treatment which is not reflected in the decision.
[27]
The
CSC report is a very detailed report of his current position. It outlines the
progress that the Applicant has made and the positive recommendations. It also
recites some of the negative recommendations and the “case with the various
Parole Officer Supervisors that have been involved in this case since his
releas.”, as well as victim impact statements.
[28]
When
the conditions were applied the PBC had detailed reasons why they placed this
and other conditions on the Applicant. These materials were before the Board as
well as the submissions by CSC and the Applicant with his supporting documents
from Dr. Firestone.
[29]
The
detailed reasons show that the community parole officer used research linking
the use of the “internet” to “lure” children and to “reinforce deviant sexual
fantasies.” She stated that although the Applicant’s crimes were not linked to
the internet or child pornography, he was no longer in a position with easy
access to children and was now more likely to use the internet inappropriately.
She also had concerns about him viewing even legal pictures of young boys on
the internet.
[30]
Remembering
that when the Applicant was committing his crimes, the internet was not
prevalent so the facts his crimes were not directly linked is not surprising
for the time.
[31]
The
PBC decision was reasonable as the Applicant used the internet to view and
download pornographic images and movies when he breached the LTSO condition he
was under, so it is a perfectly reasonable condition that he be restricted use of
the internet to only with approval of his parole officer.
[32]
The
change in the condition that the PBC allowed was tailored to the Applicant’s
needs. He was not denied assess to computers entirely so he could do his
journaling but he could only do so with permission and supervision. This makes
perfect sense yet is a reasonable decision given when he had no supervision and
was allowed to be at home alone, he viewed porn on the internet and then
downplayed the breach.
D. Not to purchase or possess
any form of pornography
[33]
The
Applicant in the written and oral representations argue that the Board should
have removed the condition regarding pornography. That condition was put on by
the Board decision made September 24, 2009. There was no recommendation to
remove that condition by CSC but as it was an overlaying part of the other two
issues that were put before the Board and within the materials filed by Dr.
Firestone and in case management reports, it appears the Board dealt with the
no pornography condition.
[34]
The
Applicant submits that the condition is so broad it subsumed behaviours that do
not go towards his risk to re-offend. Further he says that the porn he viewed
was not of minor males but rather consensual adult homosexual sex and thus no
illegal acts. He says it was limited in images and duration of only 17 minutes
and he was prompted to by suggestions in treatment program to explore if he was
a homosexual.
[35]
The
Applicant says that his medical professionals say it is healthy to have an
outlet for sexual urges: “Mr. Lalo clarified that he was simply viewing short
pornographic clips on the internet and not downloading anything. He explained
his interpretation what he was being told in his weekly treatment group was
that viewing “legal porn” is ok and healthy…”
[36]
He
said that “the message that he felt he was getting in the sex offender
treatment group was that, in general viewing pornographic material can be a
positive thing.”
[37]
In
stark contrast to what the Applicant submits, the Ottawa Police Service report
states that the police “located 18 pornography movies (17 gay male pornography
and 1 non-gay pornography) that had been downloaded. Furthermore, Detective
Thompson advised that gay pornographic sites were visited on the 06th of June,
03rd of July, 04th of July, 05th of July and 06th of July 2011. Detective
Thompson has listed the names of these sites in his report on this matter.” This
is not the minor breach that the Applicant has characterized before the Board
and before the Court in the written and oral submissions.
[38]
Nor
was it the first as previously in March 2010 during a room search when he was
at a Community Residential Facility a pornographic DVD was found and he was
issued a warning.
[39]
In
the correction plan it is noted that “...it is worth reminding the reader that,
Mr. Lalo was a probation officer at one time. If anybody should know the
importance of being aware of court imposed conditions it would be him. The fact
that he allowed himself to be influenced by his interpretation of information
that he was receiving to the point of acting on it with no consideration for
the special conditions of his LTSO is a serious concern. This is particularly
true given that a similar violation had been dealt –with by way of a warning”. The
Applicant’s accountability was raised to a medium and noted that “manipulative
duplicity associated with his offences and the noted difficulties with self-report”.
[40]
In
addition the Board had before it that the Applicant had homosexual
relationships in the past as he had sexually assaulted his homosexual partner’s
child. So it is perfectly reasonable to have found that the explanation was a
minimization of his actions and that the explanation did not make sense.
[41]
Dr.
Firestone’s report notes that in May 1, 2012, that Applicant had not been
taking the sex drive reducer medication for approximately 2 years. This is not
as recommended. Dr. Firestone says that the Applicant self reported a decrease
in his sex drive. The materials state “ given that Mr. Lalo has tended to
minimize or outright deny deviant sexual urges, any such self-reports would
need to be regarded with significant scepticism.”
[42]
The
Board found the explanation of why he breached his condition and downloaded and
viewed the pornography to be a made up sexual experiment and a flagrant breach.
They say that it cannot be an unreasonable condition given the lengthy serious
criminal record of sexual crimes against young boys. The Board was sceptical
regarding his explanation for the breach. They found that he minimizes and does
not take responsibility for his actions and has little insight into his risk
and offending.
[43]
It
seems that the PBC's finding that he minimizes his crimes is in fact a
reasonable finding as the evidence before them regarding the breach was far
more egregious than what was presented by the Applicant.
[44]
The
Ottawa Parole office did not recommend the removal of the porn condition and
the Board addressed it as “the conditions relating to pornography remain fully
in place and your parole supervisor will have the ability to ascertain what web
sites you are accessing.”
[45]
It
was reasonable for the Board not to remove the condition.
E. Breach of Fundamental
Justice
[46]
The
Applicant submits that by imposing a residency clause his liberty is clearly
restricted as is limiting his access to information and ability to communicate
with others on the internet. His written submissions characterize the residency
as a form of custody. The submissions see the residency as not a justifiable
breach of the Applicant's rights under section 7 of the Canadian Charter and
furthermore that the conditions have to be made in accordance with the
principles of fundamental justice.
[47]
The
Applicant is on a LTSO. In fact his rights are restricted and it has been
legislated to the PBC to make those decisions regarding conditions (Normandin
v Canada (Attorney General), 2005 FCA 345, at para 40).
[48]
The
Federal Court of Appeal in Deacon v Canada (Attorney General), 2006 FCA
265 (Deacon), reviewed a condition imposed was that the Applicant take
medication to control his sexual urges which the Applicant said was a breach of
his s. 7 Canadian Charter rights. The FCA found that the board acted within the
administrative law jurisdiction and then considered whether the condition was
inconsistent with the charter (Ross v New Brunswick School District No 15,
[1996] 1 S.C.R. 825, at paras 31-33). They found that PBC imposing this far more
invasive condition than which the Applicant has was within the jurisdiction of
the Board to impose conditions under the CCRA and not a breach of his section 7
Charter rights (Deacon, above, at paras 46 and 67). Clearly the
conditions placed on the Applicant are not breaches of the Applicant’s Canadian
Charter rights under section 7.
[49]
Subsection
101 (e) of CCRA sets out the applicable principles that are to guide parole
boards in achieving the purposes of conditional release. Under those
principles, the offenders are to be provided with relevant information, reasons
for decision to ensure a fair and understandable release process.
[50]
The
Applicant submits that the reasons are not sufficient. He says that the Board
is only to make conditions if necessary and underscores that the objective of
section 134.1 of the CCRA is to promote successful reintegration of offenders.
[51]
The
Applicant submits that the report of Dr. Firestone, CSC Community Contract
Psychologist was not considered, nor were any of the positive recommendations
of his considered by the board as they did not mention his report.
[52]
I
find that the Board did consider all of the Applicant’s material and
submissions including Dr. Firestone’s report.
[53]
The
Ottawa Parole Board complied a report which is part of the Assessment for
decision that included the report of Dr. Firestone that recommended to the PBC
that the conditions be changed. This report was provided to the board in
advance of the review for their consideration. The recommendations include Dr.
Firestone’s recommendation to remove all three conditions complained of. The
materials they relied on were all in the CTR and were before the PBC.
[54]
The
Board acknowledged those submissions in the decision. Specifically in the PBC
Post release decision sheet which was attached to the decision the Dr’s report
is mentioned states “The board received a submission from the CSC to modify a
special condition; to recommend overnight leave privileges and to continue your
residency condition for an additional 180 days. The Board has also received a
written submission form you with respect to the issue of residency condition
supported by a report from your treating psychiatrist.”
[55]
It
must be remembered that when the PBC put the conditions on originally it was
fully explored and then fulsome reasons were given. The material was all before
the decision maker and is in the CTR so reciting it again on every review or
request is not necessary.
[56]
I
find it was reasonable of the PBC with their expertise to decide the conditions
were necessary and reasonable to achieve the dual goals of facilitating the
Applicant’s successful reintegration into society while protecting society.
[57]
The
Applicant may not like the decision but it was fair, reasoned and supported by
the evidence.
[58]
The
decision falls within a range of possible acceptable outcomes which are
defensible in respect of the facts and law. I will dismiss the application.
JUDGMENT
THIS
COURT’S JUDGMENT is that:
1. The Judicial Review is
dismissed;
2. Costs in the amount of
$100.00 is payable forthwith by the Applicant.
“Glennys L. McVeigh”
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