Docket: T-1377-13
Citation:
2014 FC 590
Ottawa, Ontario, June 19, 2014
PRESENT: The
Honourable Mr. Justice Locke
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BETWEEN:
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JEFFREY KORN
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Applicant
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and
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ATTORNEY GENERAL OF CANADA
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Defendant
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JUDGMENT AND REASONS
[1]
This is a judicial review of a decision of the
Appeal Division of the Parole Board of Canada (Appeal Division) which affirmed
a decision of the Parole Board of Canada (PBC) to confirm the revocation of the
applicant’s full parole.
I.
BACKGROUND
[2]
The facts of this case are somewhat unusual
because of the age of the original offence for which the applicant, Jeffrey
Korn, is currently incarcerated. Mr. Korn was arrested in October 1971 and
later convicted of importing/exporting 88 pounds of hashish. He was sentenced
to seven years’ imprisonment. In September 1972, he escaped and went unlawfully
at large (UAL). He was not apprehended until September 1991, some 19 years
later.
[3]
Upon being apprehended, he was re-incarcerated,
and another 4 months added to his sentence, to be served consecutively, for
being UAL.
[4]
It is at this point that it is relevant to
mention that Mr. Korn is not a citizen of Canada. He is an American citizen. As
a result of his criminal offence, there was an order for his deportation. When
Mr. Korn was released on full parole on April 2, 1994, it was with the
condition that he “reside at the CRC St-Léonard until the
Deportation Order has been executed”.
[5]
To this point, the facts are not in dispute.
However, going forward, the story becomes murky. For reasons that he has not
explained, Mr. Korn did not wait to be deported by a Canadian immigration
official. He went UAL again on the day of his release. He claims that, on that
day, he left Canada in a car driven by his then girlfriend, Wendy Roberts. He
claims that he did not stop to advise Canadian border officials when he left because
“it was a dismal rainy day and [he] had the flu”. He
also claims that he mailed documents concerning his deportation to Canadian
authorities.
[6]
CRC St-Léonard did receive a telephone call that
day from a man identifying himself as Mr. Korn advising that he was calling
from Vermont. Correctional Service Canada (CSC) agents obtained an address and
telephone number at a hotel in Stowe, Vermont (the Gable Inn) where Mr. Korn
was apparently staying. CSC agents called the hotel in an attempt to reach Mr.
Korn. Though they were not successful in speaking with him, those persons answering
the telephone at the hotel did confirm that he was a resident there. Further,
in May 1994, police in Montpelier, Vermont advised that Mr. Korn had been
arrested for impaired driving and that he was a resident in Vermont.
[7]
These indications were sufficient to satisfy CSC
that Mr. Korn had in fact moved to Vermont. They decided that it was not
necessary to follow up with an arrest warrant for Mr. Korn in Vermont, and on
June 2, 1994, reported that Mr. Korn’s deportation had been confirmed. CSC
withdrew the warrant for the suspension of Mr. Korn’s full parole which had
been issued following Mr. Korn’s disappearance.
[8]
Despite CSC’s withdrawal of the suspension of
Mr. Korn’s full parole, the PBC (under its former name, National Parole Board)
decided on June 28, 1994 to revoke his full parole. This resulted in the
issuance of an arrest warrant on June 30, 1994.
[9]
The next major development in this case was the
arrest of Mr. Korn in December 2012 (more than 18 years after his second disappearance)
in Westmount, Quebec where he had been living with his common law spouse and
two daughters, born in 2001 and 2003. Mr. Korn claims that he returned to Canada in 1998.
[10]
A post-suspension assessment dated December 31,
2012 found Mr. Korn to be a low risk to reoffend and recommended the
cancellation of the decision to revoke his parole “so
that his deportation from Canada can be officially implemented”.
[11]
The PBC noted this recommendation but was
concerned with a number of issues, including:
a)
Serious doubt as to whether Mr. Korn ever left Canada in 1994 as he claimed;
b)
Mr. Korn’s disrespect for Canadian laws, and
minimization of his previous offences;
c)
The lack of information concerning Mr. Korn’s
activities and means of supporting himself since 1994; and
d)
The deferral of Mr. Korn’s deportation such that
he would not be immediately deported upon being granted full parole, and would
spend at least part of his time on parole in Canada.
[12]
The PBC was highly concerned that, if given full
parole, Mr. Korn would once again go UAL. Therefore, the PBC decided on March
21, 2013 to confirm the revocation of his parole. This decision was affirmed by
the Appeal Division on July 10, 2013.
II.
STANDARD OF REVIEW
[13]
Although, in theory, this is a judicial review
of the decision of the Appeal Division, since that decision affirmed the
decision of the PBC, I am actually required ultimately to ensure that the PBC’s
decision is lawful (Cartier v Canada (Attorney General), (CA) [2003] 2
FC 317 at para 10, [2002] FCJ No 1386 (QL); Aney v Canada (Attorney General),
2005 FC 182 at para 29, [2005] FCJ No 228 (QL) [Aney]).
[14]
I understand that, in light of the expertise of
the PBC and the Appeal Division, I owe them a degree of deference (Sychuk v Canada (Attorney General), 2009 FC 105 at para 45). In a case where parole is involved,
the PBC’s “decision must not be interfered with by this Court failing clear and
unequivocal evidence that the decision is quite unfair and works a serious
injustice on the inmate. …” (Desjardins v Canada (National Parole
Board), [1989] FCJ No. 910 (QL), 29 FCR 38 (FCTD), cited in Aney, above
at para 31
[15]
Pursuant to paragraph 107(1)(b) of the Corrections
and Conditional Release Act, SC 1992, c 20 (CCRA), the PBC has absolute
discretion to revoke the parole of an offender. Parole is a privilege and not a
right. Of course, the PBC’s discretion must be exercised reasonably and in
accordance with the law.
[16]
As stated by the Supreme Court of Canada in
Mooring v Canada (National Parole Board), [1996] 1 S.C.R. 75,
25 The [PBC] acts in neither a judicial
nor a quasi-judicial manner …
26 … [It] does not hear and assess
evidence, but instead acts on information. [It] acts in an inquisitorial
capacity without contending parties. …
27 In the risk assessment function of
the [PBC], the factors which predominate are those which concern the protection
of society. …
36 In the parole context, the [PBC] must
ensure that the information upon which it acts is reliable and persuasive. …
[17]
The parties are in agreement that the standard
of review in this case is reasonableness. As stated in Dunsmuir v New Brunswick, 2008 SCC 9 at paras 47-48, [2008] 1 S.C.R. 190
[Dunsmuir]:
[47] …Tribunals have a margin of appreciation
within the range of acceptable and rational solutions. A court conducting a
review for reasonableness inquires into the qualities that make a decision
reasonable, referring both to the process of articulating the reasons and to
outcomes. In judicial review, reasonableness 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.
[48] …What does deference mean in this
context? Deference is both an attitude of the court and a requirement of the
law of judicial review. It does not mean that courts are subservient to the
determinations of decision makers, or that courts must show blind reverence to
their interpretations, or that they may be content to pay lip service to the
concept of reasonableness review while in fact imposing their own view. Rather,
deference imports respect for the decision-making process of adjudicative
bodies with regard to both the facts and the law. The notion of deference “is
rooted in part in a respect for governmental decisions to create administrative
bodies with delegated powers” … We agree with David Dyzenhaus where he states
that the concept of “deference as respect” requires of the courts “not
submission but a respectful attention to the reasons offered or which could be
offered in support of a decision”. …
[18]
The Supreme Court of Canada also discussed the
standard against which administrative decisions should be read in Newfoundland
and Labrador Nurses' Union v Newfoundland and Labrador (Treasury Board),
2011 SCC 62, [2011] 3 S.C.R. 708 [Newfoundland Nurses]. That case was an
appeal by a union from a decision overturning a chambers judge’s decision to
set aside an arbitrator’s decision on the basis of insufficient reasons. The
chambers’ judge had set the arbitrator’s decision aside on the basis that the
reasons were insufficient, regardless of whether or not the outcome fell within
a range of possible outcomes.
[19]
Recapping the Dunsmuir decision, Justice
Abella wrote:
12 It is important to emphasize the
Court's endorsement of Professor Dyzenhaus's observation that the notion of
deference to administrative tribunal decision-making requires "a
respectful attention to the reasons offered or which could be offered in
support of a decision". In his cited article, Professor Dyzenhaus explains
how reasonableness applies to reasons as follows:
"Reasonable" means here that
the reasons do in fact or in principle support the conclusion reached. That is,
even if the reasons in fact given do not seem wholly adequate to support the
decision, the court must first seek to supplement them before it seeks to
subvert them. For if it is right that among the reasons for deference are
the appointment of the tribunal and not the court as the front line
adjudicator, the tribunal's proximity to the dispute, its expertise, etc, then
it is also the case that its decision should be presumed to be correct even if
its reasons are in some respects defective. [Emphasis added]
(David Dyzenhaus, "The Politics of
Deference: Judicial Review and Democracy", in Michael Taggart, ed., The
Province of Administrative Law (1997), 279, at p. 304)
See also David Mullan, "Dunsmuir v. New Brunswick, Standard of Review and Procedural Fairness for Public Servants: Let's
Try Again!" (2008), 21 C.J.A.L.P. 117, at p. 136; David Phillip Jones,
Q.C., and Anne S. de Villars, Q.C., Principles of Administrative Law
(5th ed. 2004), at p. 380; and Canada (Citizenship and Immigration) v
Khosa, 2009 SCC 12, [2009] 1 S.C.R. 339, at para. 63.
13 This, I think, is the context for
understanding what the Court meant in Dunsmuir when it called for
"justification, transparency and intelligibility". To me, it
represents a respectful appreciation that a wide range of specialized
decision-makers routinely render decisions in their respective spheres of
expertise, using concepts and language often unique to their areas and
rendering decisions that are often counter-intuitive to a generalist. That was
the basis for this Court's new direction in Canadian Union of Public
Employees, Local 963 v. New Brunswick Liquor Corp., [1979] 2 S.C.R. 227 where
Dickson J. urged restraint in assessing the decisions of specialized
administrative tribunals. This decision oriented the Court towards granting
greater deference to tribunals, shown in Dunsmuir's conclusion that
tribunals should "have a margin of appreciation within the range of acceptable
and rational solutions" (para. 47).
…
15 In assessing whether the decision is
reasonable in light of the outcome and the reasons, courts must show
"respect for the decision-making process of adjudicative bodies with
regard to both the facts and the law" (Dunsmuir, at para. 48). This
means that courts should not substitute their own reasons, but they may, if
they find it necessary, look to the record for the purpose of assessing the
reasonableness of the outcome.
16 Reasons may not include all the arguments,
statutory provisions, jurisprudence or other details the reviewing judge would
have preferred, but that does not impugn the validity of either the reasons or
the result under a reasonableness analysis. A decision-maker is not required to
make an explicit finding on each constituent element, however subordinate,
leading to its final conclusion (Service Employees' International Union,
Local No. 333 v. Nipawin District Staff Nurses Assn., [1975] 1 S.C.R. 382, at
p. 391). In other words, if the reasons allow the reviewing court to understand
why the tribunal made its decision and permit it to determine whether the
conclusion is within the range of acceptable outcomes, the Dunsmuir
criteria are met.
III.
ANALYSIS
[20]
I understand that Mr. Korn’s parole revocation is
based on subsection 135(7) of the CCRA, which contemplates “an undue risk to society by reason of the offender reoffending
before the expiration of the sentence”. However, I have been shown no
authority that breaching a condition of parole, including going UAL,
constitutes an offence. In fact, the various provisions of section 135 of the
CCRA draw a clear distinction between the requirements for suspending
parole and those for revoking or terminating parole. Revocation or termination
of parole consistently requires at least a risk of reoffending, whereas parole
can be suspended for simply breaching parole conditions. Moreover, the
consequences of revocation of parole are considerably more serious than those
for suspension of parole, especially for serious offenders. I conclude that the
requirement of a risk of reoffending to justify parole revocation requires more
than just a risk of breaching parole conditions. The revocation of Mr. Korn’s
parole cannot be based solely on a risk that he will go UAL again. The risk
must concern an offence.
[21]
Though the PBC was clearly concerned with the
risk that Mr. Korn, if granted full parole, will go UAL once again, there is
support for a related concern that Mr. Korn might go on to commit further
offences. He was able to support himself through several decades of being UAL
(much of that time under an assumed name) but was vague and inconsistent about
his activities and financial resources during those periods. It seems clear
that he lied about the death of his father, indicating in 1992 that his parents
were deceased, and then in 2012 that his father died in 2011 leaving him an
inheritance. It is difficult to imagine that one could make an honest mistake
about the death of one’s father. Mr. Korn has also repeatedly demonstrated
disrespect for Canada’s laws and rules imposed on him, and he has minimized his
past offences.
[22]
Though the PBC’s reasons might have been
clearer, I am satisfied that, applying the guidance of the Supreme Court of
Canada in Newfoundland Nurses, I should not interfere with the PBC’s
decision.
[23]
The PBC also referred to allegations from 1992
that, during his first stint being UAL, Mr. Korn was involved at a high level
in a conspiracy to import 70 tons of hashish into Canada by boat. Mr. Korn’s
counsel points out that these allegations were put before the PBC back in 1993.
The PBC did not take those allegations into account at the time on the basis
that no charges had been filed in Canada. However, in its 2013 decision under
review here, the PBC mentioned the allegations.
[24]
Mr. Korn argues that these are old allegations
and that it was arbitrary and unreasonable for the PBC to consider them all
these years later. However, because of the inquisitorial nature of the PBC, and
again in light of the teachings of Newfoundland Nurses, I defer to the
view of the PBC that it was relevant to consider the allegations from 1992.
[25]
In my view, the PBC is well-placed to determine
the adequacy of information put before it, and it was reasonable for the PBC to
make mention of these allegations in the context of concerns about Mr. Korn
going UAL again, and the vague and inconsistent information provided by Mr.
Korn concerning his activities and financial resources over the years.
[26]
Mr. Korn criticizes the “speculation” by the PBC
that he might never have left Canada in 1994 and might have gone UAL (the
second time) in order to avoid being handed over to American authorities. The
PBC discussed this as a possible explanation for Mr. Korn disappearing as he
did. It should be noted that, though Mr. Korn provided an explanation as to why
he did not stop in to see Canadian border authorities when he left Canada in
1994 (it was raining and he had the flu), he provided absolutely no explanation
as to why he felt the need to leave Canada without accompaniment by Canadian
authorities in the first place. The PBC was drawing an inference from the facts
before it. Whether or not this inference can be characterized as speculation, I
find it to be reasonable.
[27]
Mr. Korn argues that it was confirmed in 1994
after his second disappearance that he had in fact left Canada and was resident in Vermont, and that it is inappropriate to revisit that issue before the
PBC in 2013. Indeed, CSC was clearly satisfied at the time that he had left Canada. However, subsequent information, including the fact that Mr. Korn was apprehended
living in Canada, throw reasonable doubt on the whole story of Mr. Korn’s
departure. I do not accept that the PBC in 2013 was obliged to adopt the
conclusion of the PBC in 1994. It is not inconceivable that Mr. Korn never left
Canada.
[28]
Mr. Korn also criticizes the PBC’s refusal to
consider his family status as a factor in his favour. He complains that the PBC
“actually seems to acknowledge that ‘having a spouse and
children would normally be a protecting factor’”, but gives no
explanation for refusing to apply this principle in his favour. Again, I am of
the view that, from a consideration of the facts put before it, it was open to
the PBC to conclude that Mr. Korn’s family status was no proof against his
going UAL and reoffending.
IV.
JUNE 28, 1994 DECISION REVOKING PAROLE
[29]
Mr. Korn devotes some of his argument to
challenging the fairness and reasonableness of the June 28, 1994 decision to
revoke parole in the first place. There are at least two reasons that this
argument cannot be successful.
[30]
Firstly, that decision is not before this Court
for review. Following the PBC’s March 21, 2013 decision, Mr. Korn appealed both
that decision and the June 28, 1994 decision. By letter dated May 10, 2013, the
PBC advised Mr. Korn that it had received and accepted the appeal of the March
21, 2013 decision, but would not accept the appeal of the June 28, 1994 decision.
The appeal was out of time because Mr. Korn had been aware of the revocation of
his parole for quite some time: see Mr. Korn’s submission on appeal of review
decision, April 13, 2013, p. 7. The present application does not seek judicial
review of the decision not to consider the appeal of the June 28, 1994 decision.
[31]
The second reason that I need not consider a
separate review of the June 28, 1994 revocation decision is that the March 21,
2013 decision currently under review was itself already a review of the
revocation of parole. Mr. Korn has been heard on the relevant issues.
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