Docket: T-2595-14
Citation:
2015 FC 1411
[UNREVISED ENGLISH
CERTIFIED TRANSLATION]
Ottawa,
Ontario, December 22, 2015
PRESENT: The Honourable Madam Justice Roussel
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BETWEEN:
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AHMED NAJAR
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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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JUDGMENT AND REASONS
[1]
The applicant, Ahmed Najar, is seeking judicial
review of a decision of the Appeal Division of the Parole Board of Canada [Appeal
Division] dated November 6, 2014, upholding the decision of the Parole Board of
Canada [PBC] to revoke the applicant’s full parole. The applicant alleges that
the PBC did not apply the case law concerning “reliable and persuasive”
information and that it failed to consider all the information in his file.
[2]
For the following reasons, I conclude that
intervention by the Court is not warranted and that the application for
judicial review should be dismissed.
I.
Background
[3]
Since May 8, 2008, the applicant has been
serving a sentence of imprisonment of twelve years and eight months for
manslaughter using a firearm, committed in 2007. The applicant was eligible for
day parole on January 28, 2012, and full parole on July 28, 2012.
[4]
On July 6, 2012, upon recommendation of his
case management team [CMT], the applicant was granted day parole by the PBC
subject to his complying with certain conditions, including (1) seeking or
maintaining a job or continuing his education; (2) not consuming, purchasing or
possessing drugs; and (3) not to associate with anyone he knows or has reason
to believe is involved in criminal activity, or with a criminal record. The
purpose of these special conditions was to control the causes of the applicant’s
criminal behaviour.
[5]
The applicant started living in a half-way house
on July 11, 2012. On November 23, 2012, a stay report was produced,
indicating that the applicant was ready for full parole.
[6]
The applicant therefore applied for full parole
with the support of the Correctional Service of Canada [CSC]. His CMT’s report on
its assessment for decision for full parole found that the applicant presented
a minimal risk as long as he did not consume narcotics and did not spend any
time with questionable individuals.
[7]
On March 4, 2013, the applicant appeared
before the PBC concerning his application for full parole. Being of the opinion
that the applicant would not, by reoffending before the expiration of his
sentence according to law, present an undue risk to society and that his
release would facilitate his reintegration into the community, the PBC granted
the applicant full parole under the same conditions as those imposed for his
day parole.
[8]
On May 7, 2013, a warrant of apprehension
and suspension of full parole was issued against the applicant on the basis of
information received from the Service de police de la Ville de Montréal [SPVM].
According to this information, the applicant was the lead actor in a hip-hop video
posted on YouTube on March 31, 2013, in which he appeared wearing a hood
and identified himself as a street gang member; the video advocated violence, weapons,
revenge and drugs. The video also included several photographs of the applicant
in the presence of individuals with a criminal record.
[9]
On May 16, 2013, the CMT conducted a
post-suspension telephone interview with the applicant. He was informed of the
nature of the information received from the police. The applicant denied any
contact with criminals and stated that the lead actor in the video was his
brother, who made hip-hop music. He further noted that the photographs in which
he appeared in the video seemed to have been taken at his sister’s wedding in
June 2012, for which he had been granted an escorted temporary absence. He
stated that he did not know the individuals photographed next to him; they were
his brother’s friends. He also stated that he spent all his time on his surveying
studies and that he did not have time for such things.
[10]
The CSC then met with the applicant’s brother and
sister. The brother confirmed, among other things, that he was the person
wearing the hood in the video. The CSC therefore recontacted the SPVM, which maintained
its conviction that the video showed the applicant and not his brother. The
SPVM also stated that it was unable to link the applicant to any crime since his
return to the community.
[11]
The CSC assessed the applicant’s file in light
of this information. It determined that the applicant required a high level of
intervention, that his accountability and motivation were low, that he was no
longer receptive to or engaged in his correctional plan and that his
reintegration potential was low. The CSC therefore recommended that the PBC
revoke the applicant’s full parole.
[12]
On July 19, 2013, the PBC reviewed the
applicant’s file in his absence and issued a decision revoking his full parole.
On April 10, 2014, the Appeal Division ordered a reconsideration on the
ground that the PBC had not acted fairly or in accordance with the requirements
of paragraph 101(a) of the Corrections and Conditional Release Act,
SC 1992, c 20 [CCRA], by not respecting the applicant’s right to be heard
and by making a written decision based on contradictions.
[13]
Following that decision, the PBC ordered a
hearing with the applicant present. A post-suspension hearing took place by
videoconference on May 13, 2014, with the applicant and his assistant
present. At that hearing, the PBC heard and questioned both the applicant and
his parole officer [PO] at the time of the suspension. It also allowed the
applicant’s assistant to make representations on behalf of his client.
II.
The PBC decision
[14]
In its decision dated May 15, 2014, and
amended on May 16, 2014, the PBC first noted that the applicant had agreed
to proceed despite the new information submitted at the beginning of the
hearing by the PO assigned to supervising him in the community. This new
information concerned the photographs taken at the wedding of the applicant’s
sister and showing him in the presence of a number of individuals linked to
crime. The PBC also noted the applicant’s explanation that he had attended this
wedding under the escorted temporary absence program.
[15]
The PBC reviewed the applicant’s file, including
the following factors: (1) the facts surrounding his conviction for
manslaughter; (2) his juvenile and adult criminal history; (3) the main factors
related to his criminal behaviour, including his association with delinquent
peers, his [translation] “influenceability”, low self-esteem, substance abuse
and idleness; (4) his 2008 and 2012 psychological assessments; (5)
the applicant’s compliance in prison, leading to his full parole in March 2013;
(6) his cooperativeness and openness, and his commitment to his full-time
studies in surveying and topography during his release; (7) the information
provided by the SPVM to the applicant’s CMT on May 7, 2013; (8) the
applicant’s denial of his participation in the video; (9) the statement by the
applicant’s brother that he was the lead actor in and director of the video;
and (10) the steps taken to reconcile the representations and written statement
submitted by the applicant with the contradictory statements obtained from the
police and the applicant’s CMT.
[16]
The PBC noted that the applicant’s case workers
found that the information surrounding the applicant’s suspension had
considerably undermined the relationship of trust that had been established and
that, had it not been for the intervention of the police, they would not have
heard about the situation. In light of the police information it found to be
credible, the applicant’s CMT felt that it was possible that the applicant was
concealing things and lacking transparency.
[17]
The PBC also noted that, at the hearing, the
applicant’s PO stated that four SPVM officers had met with members of the
street gang in question, who had confirmed that the singer in the video was the
applicant, despite the fact that the singer in the video was wearing a hood.
[18]
The PBC pointed out that as a result of the
information obtained from the police, the applicant’s CMT strongly suspected
that the applicant was leading a double life. The applicant’s CMT reiterated
that, in the past, the applicant’s association with criminals had substantially
contributed to his criminal behaviour. The applicant’s CMT was sufficiently
concerned by the information provided by the police that it found that the risk
presented by the applicant in the community had increased and was unacceptably
high, leading it to recommend that the full parole previously granted to the
applicant be revoked.
[19]
Based on its analysis, the PBC concluded that
the applicant’s full parole should be revoked on the grounds that (1) the
information obtained from reliable resources and according to which the
applicant had participated in the video was [translation]
“reliable and persuasive”; (2) the applicant’s
participation in the video had resulted in a breach of the condition not to
associate with criminals; (3) the applicant’s lack of transparency cast doubt
on his compliance; and (4) the applicant needed a structured environment. The
PBC found that the applicant’s reoffending before the expiration of his
sentence presented an undue risk to society.
[20]
It did, however, set a date within four months
of its decision in order to reassess the risk posed by the applicant under a
suitable release measure given that there was no indication that the applicant
had reoffended since his return to custody.
[21]
On July 12, 2014, the applicant appealed
the PBC’s decision arguing that the PBC had not respected the Appeal Division’s
previous decision and that it had breached procedural fairness, and thus made
an unreasonable decision.
III.
Appeal Division’s decision
[22]
On November 6, 2014, the Appeal Division
dismissed the applicant’s appeal, thus confirming the PBC’s decision.
[23]
The Appeal Division began by reminding that its
role was to ensure that the PBC complied with the CCRA and its policies, that
it adhered to the rules of fundamental justice and that its decisions were
based on relevant, reliable and persuasive information. It explained that it
had jurisdiction to re-assess the issue of risk to reoffend and to substitute
its discretion for that of the PBC, but only where it found that the decision
was unreasonable and unsupported by the information available at the time the
decision was made.
[24]
Following this initial caution, it stated that
it had examined the file and listened to the recording of the applicant’s
hearing. It further stated that it had considered the written grounds for
appeal raised by counsel for the applicant.
[25]
In its analysis of the grounds raised by the
appellant, the Appeal Division pointed out that under subsection 135(5) of
the CCRA, the PCB must determine whether it is satisfied that the offender
will, by reoffending before the expiration of his or her sentence according to
law, present an undue risk to society. The Appeal Division explained that the
post-suspension decision-making process involves the consideration of relevant
factors, such as the grounds for the suspension, the applicant’s conduct since
his last release, any comparison that could be drawn with previous patterns of
criminal behaviour and the applicant’s contributive risk factors.
[26]
The Appeal Division gave an overview of the PBC’s
analysis and of its conclusions. It found that, contrary to the applicant’s
submissions, the PBC had based its decision on reliable and persuasive
information. In this regard, the Appeal Division wrote as follows:
[translation]
In its final
analysis, the Board concluded that the information provided by the police was
reliable and persuasive. The Board has discretion to determine the appropriate
manner for verifying the reliability and persuasiveness of information supplied
to it. In Zarzour, the Federal Court of Appeal stated that confronting
the offender affected by the allegations made in his or her regard, and
enabling the offender to comment on them and rebut them, is also a significant
method of verification of the reliability and persuasiveness of the
information. In your case, we find that the Board had enough information to do this.
The information regarding your participation in a video and your contact with
the street gang world comes from the police. The Board’s reasons reveal that,
after it obtained your version of the facts, the police officer remained
satisfied that you were the singer in the video and that you had reconnected
with the street gang world. In addition, the Board noted that information that,
according to you, could have validated your version of the facts was never
submitted to your PO even though you insisted at the hearing that there is
another version of the video that shows the hooded individual as being your
brother and not you. It is our opinion that the Board’s reasons reveal its
analysis of the contradictory versions and the reason the Board found the
information submitted by the police to be more credible. We therefore do not
feel that it was unreasonable for the Board to conclude that you participated in
the video, and find that this conclusion was based on reliable and persuasive
information.
[27]
The Appeal Division also determined that the
conclusion to revoke full parole and the reasons to review the applicant’s file
for a risk assessment within four months were not inconsistent. In the Appeal
Division’s opinion, it was not unreasonable for the PBC to conclude that the
risk of reoffending was undue even though the applicant had shown signs of
measurable and observable change before his reoffending.
[28]
Noting that its role was not to reassess the
risk presented by the applicant unless the decision was unreasonable and well
supported, the Appeal Division concluded that the PBC’s decision in this
instance was reasonable, was based on relevant, reliable and persuasive
information, and complied with the CCRA and PBC policies.
IV.
Issues
[29]
Having analyzed the parties’ submissions, I find
that the application raises the following issues:
A.
Is the application for judicial review moot, and
if so, should the Court nonetheless exercise its discretion to dispose of the
matter?
B.
What is the appropriate standard of review?
C.
Did the PBC’s decision respect the principles of
procedural fairness with respect to the applicant?
D.
Were the PBC’s and the Appeal Division’s
decisions reasonable?
V.
Legislative framework
[30]
Conditional release is governed by Part II of
the CCRA.
[31]
Section 100 of the CCRA states that 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. In accordance with section 100.1,
the protection of society is the paramount consideration for the PBC.
[32]
In achieving the purpose of conditional release,
the PBC is guided by the principles set out in section 101 of the CCRA.
Among other things, the PBC takes into consideration all relevant available
information, including the stated reasons and recommendations of the sentencing
judge, the nature and gravity of the offence, the degree of responsibility of
the offender, information from the trial or sentencing process and information
obtained from victims, offenders and other components of the criminal justice
system, including assessments provided by correctional authorities. It must
also make decisions that are consistent with the protection of society and that
are limited to only what is necessary and proportionate to the purpose of
conditional release. Furthermore, offenders are 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.
[33]
Pursuant to paragraph 107(1)(b) of the
CCRA, the PBC has exclusive jurisdiction and absolute discretion to terminate
or to revoke the parole of an offender. In accordance with subsection 135(1)
of the CCRA, parole may be suspended “when an offender
breaches a condition of parole” or when a member of the PBC “is satisfied that it is necessary and reasonable to suspend
the parole . . . in order to prevent a breach of any condition thereof or to
protect society”.
[34]
The PBC then reviews the case and, within the
period prescribed by the regulations, it may, in accordance with subsection 135(5)
of the CCRA, cancel the suspension or revoke it in the event that it is
satisfied that the offender will, by reoffending before the expiration of their
sentence according to law, present an undue risk to society and if the undue
risk is not due to circumstances beyond the offender’s control.
[35]
Under subsection 147(1) an offender may
appeal a decision of the PBC to the Appeal Division on the grounds listed
there. The decisions that may be rendered by the Appeal Division are set out in
subsection 147(4) of the CCRA.
VI.
Analysis
A.
Mootness of the application for judicial review
[36]
The respondent established that, as previously
mentioned, the applicant’s case was reconsidered by the PBC within four months
of the May 15, 2014, decision. On September 4, 2014, the applicant
was denied the right to full or day parole. The PBC concluded that the risk of
the applicant’s reoffending before the expiration of his sentence according to
law would present an undue risk to society, specifically because, since his recommitment
to custody, the applicant (1) [translation]
“had maintained ties with inmate street gang members”;
(2) [translation] “had delayed the head count on two occasions in the company
of other inmates identified as being linked to street gangs”; (3) [translation] “had
had to be met with to correct his work attitude”; (4) [translation] “had
tested positive for THC”; and (5) was still considered to be a street
gang member.
[37]
On March 6, 2015, the Appeal Division
dismissed the appeal of this decision, and the applicant did not apply for
judicial review of the Appeal Division’s decision.
[38]
Being of the opinion that no present live
controversy exists which affects the rights of the parties because of the PBC’s
later decision to uphold the revocation, the respondent argued that the issue
of whether the previous revocation was reasonable had become moot. The
respondent further alleged that the application for judicial review would not
have practical side effects on the rights of the parties and that it did not
raise an issue of public importance to be disposed of. The respondent therefore
invited the Court to consider the application for judicial review to be moot
and not to exercise its discretion to dispose of the matter nonetheless, in
accordance with the approach developed by the Supreme Court of Canada in
Borowski v Canada (Attorney General), [1989] 1 SCR 342, at pp 353-354.
[39]
I cannot agree with the respondent’s argument.
Even though the application for judicial review could be considered to be moot
because of the later decision, I would nonetheless exercise my discretion to
rule on the application. The initial revocation of full parole and the
information underlying it will remain in the applicant’s file. This information
could be used by the CSC and the PBC in future assessments. In this respect, I
agree with Justice de Montigny, in Rootenberg v Canada (Attorney General),
2012 FC 1289, at para 25, [2012] FCJ No 1378 [Rootenberg], and I
therefore find it appropriate for this Court to exercise its discretion to dispose
of the matter.
B.
Applicable standard of review
[40]
In Cartier v Canada (Attorney General of
Canada), 2002 FCA 384, [2002] FCJ No 1386 [Cartier], the
Federal Court of Appeal characterized the Appeal Division as a “hybrid”, having both the characteristics of an
appellate board and those of a reviewing tribunal. While the powers exercised
by the Appeal Division are closely associated with the jurisdiction exercised
on appeal, the grounds for appeal, as enumerated in subsection 147(1) of
the CCRA, are limited and more akin to those for judicial review.
[41]
The case law of the Federal Court of Appeal and
this Court has established that when sitting in judicial review of a decision
of the Appeal Division confirming a decision of the PBC, the Court is
ultimately required to ensure that the PBC’s decision was lawful. The
applicable standard of review is that of reasonableness, whether the Appeal Division
sets aside or upholds the PBC’s decision (Cartier, above, at paras
6 to 10; Christie v Canada (Attorney General), 2013 FC 38 at
para 31, [2013] FCJ No 163; Rootenberg, above, at paras 28 and
29). In accordance with the principles set out in Dunsmuir v New Brunswick,
2008 SCC 9 at para 47, [2008] 1 SCR 190 [Dunsmuir], the
review of whether a decision is reasonable is concerned mostly with the
existence of justification, transparency and intelligibility within the
decision-making process. But it is also concerned with whether the decision
falls within a range of possible, acceptable outcomes which are defensible in
respect of the facts and law.
[42]
As for matters relating to procedural fairness,
it is by now well established that they must be reviewed on a standard of
correctness (Mission Institution v Khela, 2014 SCC 24 at para
79, [2014] 1 SCR 502).
C.
Did the PBC’s decision respect the principles of
procedural fairness with respect to the applicant?
[43]
The applicant alleges that the PBC breached
procedural fairness because it did not apply the case law concerning reliable
and persuasive information, contrary to CCRA requirements. Generally speaking,
he criticizes the PBC for not analyzing all the relevant information in the
applicant’s file, including the information obtained from the applicant and his
family. He submits that the PBC should have provided reasons for its preference
for one version over another and indicated how it intended to resolve the
contradictory versions provided by the SPVM and the applicant. Regarding the
Appeal Division’s decision, the applicant alleges that the Appeal Division did
not shed any light on the grounds for appeal raised, but merely stated that the
PBC did not err.
[44]
I do not find that the breaches the applicant
alleges are issues that are reviewable by any other standard than that of
reasonableness. The review and determination of the issues raised by the
applicant raise questions of mixed fact and law, and consequently, I will
examine these issues against the standard of reasonableness.
D.
Reasonableness of the decisions of the PBC and
the Appeal Division
[45]
The PBC concluded, under subsection 135(5)
of the CCRA, that the applicant’s parole should be revoked on the ground that
his reoffending before the expiration of his sentence according to law presents
an undue risk to society.
[46]
To arrive at this conclusion, the PBC considered
a range of information, including information presented by the applicant,
members of his circle, the applicant’s PO and CMT, and SPVM officers.
[47]
The PBC stated that, in his post-suspension
interview, the applicant had denied the allegations against him. It also noted
the applicant’s statement that the video showed his brother and that he did not
know the people in the photographs taken at his sister’s wedding. It pointed
out that several members of the applicant’s family had come to formally confirm
the applicant’s statements, including his brother, who had stated in his
written representations that he was the creator or director of the video.
[48]
The PBC recognized that the written submissions
made by the applicant and letters from certain members of the applicant’s circle
contradicted the statements obtained from the police and some of the statements
made by the applicant’s CMT.
[49]
It pointed out, however, that the SPVM had been
contacted again in response to information obtained by the applicant and that
the SPVM remained convinced of the applicant’s participation in the video and
his ties to street gangs.
[50]
The PBC also noted that, despite the applicant’s
statement that the video still existed, it was never shared, even though it
could have exonerated the applicant.
[51]
The applicant’s lack of transparency, which the
applicant admitted to his CMT by not informing his PO of the video’s existence,
was also noted by the PBC.
[52]
At the end of its analysis of the case and the
hearing, the PBC found that the information revealing that the applicant had
participated in the video came from reliable sources, specifically police
officers specialized in street gangs.
[53]
It found that, in light of all these factors,
there was reason to revoke the applicant’s parole since his reoffending before
the expiration of his sentence according to law presented an undue risk to
society.
[54]
The PBC was required to examine all the relevant
information available and to ensure that the information on which it relied was
reliable and persuasive. To assess the reliability of this information, it was
open to the PBC to confront the applicant with the allegations made in his
regard and to enable him to rebut them (Zarzour v Canada, [2000] FCJ No
2070 at para 38). It could also asses the testimony given by the applicant
at the hearing.
[55]
In the matter at bar, the applicant was informed
of the allegations against him and was provided in advance with the relevant
information on which the PBC relied in making its decision. He also had an
opportunity to rebut this information, be it at the post-suspension interview,
in his written submissions made prior to the hearing or at the hearing itself.
[56]
Upon review of the case, I find that what the
appellant is actually criticizing the PBC for is preferring the SPVM’s version
of the facts over his own. It is trite law, however, that, in judicial review,
this Court cannot substitute its own assessment of the evidence for that of the
lower tribunal (Canada (Citizenship and Immigration) v Khosa,
2009 SCC 12 at paras 59 and 61, [2009] 1 SCR 339). In this
case, it was the PBC’s role to assess the evidence. The PBC considered the
entire file and heard the applicant. It decided to give more weight to the
information coming from the SPVM than to the applicant’s version of the facts.
It was open to the PBC to consider the information from the SPVM to be
relevant, “reliable and persuasive”. I do not
believe that the PBC erred in its application of the “reliable
and persuasive” test in its consideration of the information.
[57]
The applicant alleged that the PBC’s conclusion
that his reoffending presented an undue risk to society was inconsistent with
its decision to reassess the applicant’s case within four months. I do not
agree with this argument. The PBC noted in its decision that the applicant had
been compliant during his time in prison and that he had made considerable and
measurable progress before being granted parole. It further found that there
was no indication that the applicant had reoffended and that he had been
incarcerated for a year. In my opinion, its decision to review the applicant’s
case was not necessarily made to assess his risk of reoffending in order to
grant him full parole, but rather to assess the risk the applicant presented
under an [translation] “appropriate release measure”.
[58]
Regarding the applicant’s argument concerning
the adequacy of the reasons, it is important to recall that the Supreme Court
of Canada has clearly established that the adequacy of reasons is not an
independent ground of review and that reasons must be read together with the
outcome and “serve the purpose of showing whether the
result falls within a range of possible outcomes” (Newfoundland and
Labrador Nurses’ Union v Newfoundland and Labrador (Treasury Board), 2011 SCC
62 at para 14, [2011] 3 SCR 708).
[59]
I find that the PBC’s reasons were sufficiently
detailed and intelligible. They allow me to understand why the PBC ruled as it
did and to determine that its conclusion falls within the range of acceptable
outcomes which are defensible in respect of the facts and the law, according to
the Dunsmuir criteria.
[60]
As for the Appeal Division’s decision, the
Appeal Division found that the applicant did not raise any reasons that could
lead it to interfere and to amend the PBC’s decision to revoke the applicant’s
full parole. Like the decision of the PBC, the decision of the Appeal Decision
is understandable, contains sufficient reasons and falls within the range of
acceptable outcomes which are defensible in respect of the facts and the law.
[61]
For all these reasons, this application for
judicial review is dismissed with costs.
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