Docket: T-2120-13
Citation:
2014 FC 886
Ottawa, Ontario, September
16, 2014
PRESENT: The
Honourable Mr. Justice Manson
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BETWEEN:
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ROBERT LATIMER
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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]
This is an application for review of a Parole
Board of Canada Appeal Division [the Appeal Board] decision denying the
Applicant’s request to remove the international travel restriction imposed by
paragraph 161(1)(b) of the Corrections and Conditional Release Regulations,
SOR /92-620 [CCRR]. The Parole Board of Canada [the Board] decided not to
exercise the discretion granted them under paragraph 133(6)(a) of the Corrections
and Conditional Release Act, SC 1992, c 20 [CCRA] to remove, temporarily or
permanently, the international travel restriction on the Applicant’s parole. The
Board decided the restriction was still a necessary requirement of his parole.
The Appeal Board upheld the Board’s decision on November 14, 2013, affirming
the reasons given by the Board in denying Mr. Latimer’s application.
I.
Issues
[2]
The issues are as follows:
A.
Did the Board and the Appeal Board fetter the
discretion provided by paragraph 133(6)(a) of the CCRA?
B.
Were the Board’s and the Appeal Board’s
decisions unreasonable, in denying the Applicant’s request to permanently
relieve him of the international travel restrictions prescribed by paragraph
161(1)(b) of the CCRA?
II.
Background
[3]
The Applicant was convicted for second-degree
murder of his seriously disabled daughter by means of carbon-monoxide poisoning
in 1997, upheld by the Supreme Court of Canada on January 18, 2001.
[4]
All levels of Courts considering the case of the
Applicant have held that he is not a danger to society, and does not require
rehabilitation (R v Latimer, 1997 CanLII 11316 (SK QB) at para 21; R
v Latimer, 1994 128 Sask R 63 at para 17; Latimer v Canada (Attorney
General), 2010 FC 806 at paras 59-60, R v Latimer, 2001 SCC 1 at
para 86).
[5]
The Supreme Court of Canada in R v Latimer,
2001 SCC 1 stated at para 86 of the decision:
86 Finally, this
sentence is consistent with a number of valid penological goals and sentencing
principles. Although we would agree that in this case the sentencing principles
of rehabilitation, specific deterrence and protection are not triggered for
consideration, we are mindful of the important role that the mandatory minimum
sentence plays in denouncing murder. Denunciation of unlawful conduct is one of
the objectives of sentencing recognized in s. 718 of the Criminal Code.
[6]
The Applicant remained on day parole until December
8, 2010, when the Board released him on full parole with special conditions.
[7]
On April 2 and 3, 2013, the Applicant applied for
permanent relief from the international travel restriction prescribed in paragraph
161(1)(b) of the CCRA, pursuant to the Board’s authority under paragraph
133(6)(a) of the CCRA.
[8]
On April 2, 2013, the Applicant’s parole
supervisors released a Progress Review stating “the CMT
[Case Management Team] has no concerns with respect to Mr. Latimer at this
time”.
[9]
The Applicant’s psychologist recommended that
his requirement for continuing contact with a psychologist be removed from his
parole requirements in a report dated April 30, 2013.
[10]
The Applicant’s application was further
supported by a letter dated May 2, 2013, from Ms. Mary Campbell, who was one of
the writers of the CCRA and its Regulations, and was Director General,
Corrections and Criminal Justice, Public Safety Canada from 2003-2013, who
strongly recommended that any international travel restrictions be removed.
[11]
The application prompted an Assessment for
Decision [the Assessment] dated June 4, 2013, by the Correctional Service of
Canada, which supported the Applicant’s request to have his paragraph 161(1)(b)
travel restriction removed.
[12]
The Applicant’s Parole Officer and Parole
Officer Supervisor both recommended that the application of paragraph 161(1)(b)
of the CCRR be removed, due to his (i) demonstrated positive behaviour in the
community; (ii) very limited risk factors to re-offend violently as established
by consistent psychological reports; (iii) his record of never abusing any of
his freedoms and continual compliance with all restrictions put upon him during
parole; (iv) his successful reintegration into society and being a pro-social
member of society; and (v) his continued obligations under paragraphs 161(1)(a)
and 161(1)(g)(iv) of the CCRA to report to his parole supervisor as instructed
and provide his address and any changes that would affect his ability to comply
with his conditions of parole, including any travel plans.
[13]
Considering all of the above:
…his CMT are of the opinion that his risk to
the public is non-existent and due to the purely situational nature of this
offence, the likelihood of him being in a situation such as this again is close
to nil. It is the CMT’s opinion that Mr. Latimer can clearly be managed with
the removal of CCRA 161(1)(b)…
[14]
The CMT also recommended removal of the other
two conditions concerning the Applicant, namely to remove the need for
follow-up psychological counselling and the requirement that he not have
responsibility for, or make decision for, any individuals who have significant
disability.
[15]
The Board denied the Applicant’s request to vary
or permanently relieve him of the international travel restriction under
paragraph 161(1)(b) of the CCRR on June 13, 2013.
[16]
The Applicant appealed this decision on November
14, 2013. The Appeal Board affirmed the Board’s decision to deny relief, and determined
that the Board reasonably exercised its discretion in determining that the
international travel restriction was still a necessary condition on the
Applicant’s parole, despite the existence of positive evidence suggesting the
contrary.
III.
Relevant Legislation
[17]
All excerpts of relevant legislation are
attached as Annex A.
IV.
Standard of Review
[18]
The standard of review is reasonableness, given
the Board’s and Appeal Board’s highly specialized field of expertise, and given
the issue to be decided involves an interpretation of their home statute (Christie
v Canada (Attorney General), 2013 FC 38 at para 31; Dunsmuir v New
Brunswick, 2008 SCC 9 at para 47; Sychuk v Canada (Attorney General),
2009 FC 105 at paras 37-40, aff’d 2010 FCA 7 [Sychuk]; Fernandez v
Canada (Attorney General), 2011 FC 275 at para 20).
V.
Analysis
[19]
While the application for judicial review refers
to the decision of the Appeal Board, the Court must ultimately determine
whether the underlying Board’s decision is lawful (Christie v Canada (Attorney General), 2013 FC 38 at para 31).
A.
Did the Board and the Appeal Board Fetter the Discretion
Afforded by paragraph 133(6)(a) of the CCRA?
[20]
The Applicant submits that the Board fettered
its discretion by referring to the application of the Parole Board of Canada’s
Policy Manual [Policy Manual] (specifically, Chapter 1.2, s. 3 and Chapter 7.1,
s.6), as well as employing an unwritten “Board position”, which prevents the
Board from permanently removing the travel restriction.
[21]
Further, the Applicant argues that given the
lack of any temporal limits on the Board’s discretion to relieve offenders of
parole conditions in the CCRA, Parliament clearly indicated an intention for
broad discretion to be available for such relief. As well, when compared with
other sections in the CCRA, where temporal limits are placed, one can more
clearly interpret Parliament’s intention not to do so here. This is arguably
consistent with the Supreme Court’s recent decision in R v Summers, 2014
SCC 26 at paras 36-39.
[22]
The Applicant also argues that the Board and
Appeal Board incorrectly relied on Sychuk, in their above decision, distinguishing
the Applicant’s circumstances and willingness to facilitate ongoing contact
with his parole officer while travelling. Further, it is argued, Sychuk incorrectly
limits the broad discretion afforded by Parliament pursuant to paragraph
133(6)(a) of the CCRA.
[23]
I do not agree with the Applicant’s submission
that the Board fettered its discretion by incorrectly applying the Policy
Manual, as well as allegedly adhering to an unwritten rule. This position is
unsupported by the wording in the Board’s decision. The decision reflects an
exercise of the discretion on the Board’s part not to grant permanent relief,
rather than a failure to consider the possibility of permanent relief.
[24]
The Appeal Board summarizes the Board’s
considerations in its November 14, 2013, decision as follows:
The Board did not err in its consideration of
your request for permanent relief… in its determination that certain details of
each application for travel outside the country, including destination and
purpose, are needed to assess your risk…
The Board clearly considered all available
information, including the positive factors such as assessments related to your
low risk for general or violent recidivism, reports indicating compliance with
your special conditions while in the community, and the fact that you are
considered a pro-social individual who does not condone criminal attitudes and
behaviour…
[25]
While it is possible for a rule or guideline
that points out factors to be considered in exercising discretion to be “elevated to the status of a general rule that results in the
pursuit of consistency at the expense of the merits of individual cases”
(J.M. Evans, “de Smith’s Judicial Review of Administrative Action”, 4th
ed., 1980 Stevens & Sons, London, at 312), which may result in a fettering
of discretion, that is not the case here. The Board considered the possibility
of permanent relief and decided, on the evidence before it, that the
Applicant’s case did not merit such relief.
[26]
Paragraph 133(6)(a) uses the permissive term
“may” and grants the Board wide discretion to either grant or deny a request
made for relief from a variance of a mandatory condition.
[27]
In declining the Applicant’s request for
permanent relief, the Board did not conclude that it was bound by policy, but
made the following two statements, which are references to factors set out in
Chapter 7.1 of the Policy Manual:
Normally if an offender is out of the country,
the offender cannot benefit from the usual monitoring and support offered
through the parole supervision process.
In addition, it is important for the Board to
be aware of the purpose for the trip as it may relate to your risk of
reoffending.
[28]
These are the only references to the policy made
by the Board in its decision. The use of the word “normally” in a policy guideline
does not fetter discretion. The Applicant contends that because paragraph 21 of
Chapter 7.1 of the Policy Manual states that an offender “may
request that the Board authorize a temporary exemption” , this implies
that only a temporary exemption will be considered and that no such restriction
is found in paragraph 133(6)(a) of the CCRA. However, paragraph 19 of Chapter
7.1 makes clear that “the Board may vary the application
of or relieve the offender from any condition prescribed by the CCRR”.
[29]
I do not find that the Board fettered its
discretion.
B.
Were the Board and the Appeal Board’s Decisions Unreasonable?
[30]
As stated by Justice Anne L. Mactavish in Latimer
v Canada (Attorney General), 2010 FC 806 at paras 22, 28 and 31 [Latimer]:
22 The Corrections and Conditional Release Act and
Regulations constitute the framework under which the National Parole Board
makes its decisions. Section 3 of the CCRA identifies the purpose of the
federal correctional system as being "to contribute to the maintenance of
a just, peaceful and safe society by carrying out sentences imposed by courts
through the safe and humane custody and supervision of offenders" and to
assist in "the rehabilitation of offenders and their reintegration into
the community as law-abiding citizens through the provision of programs in
penitentiaries and in the community".
28 Section
101 of the CCRA articulates the statutory principles guiding parole boards
"in achieving the purpose of conditional release". It provides that
the paramount consideration in the determination of any case is the protection
of society: subsection 101(a). Another statutory principle guiding parole
boards is that they are to make "the least restrictive determination
consistent with the protection of society": subsection 101(d). Amongst
other things, parole boards are directed to take all available information,
including the reasons and recommendations of the sentencing judge, into account
in considering whether conditional release is appropriate in a given case: subsection
101(b).
31 A Policy
Manual has been adopted by the National Parole Board under the authority of
section 151 of the CCRA. Chapter 7.2 of the Manual deals with
"Residency and Day Parole Leave Privileges" and observes that the
Board is responsible "for establishing the parameter of leave privileges
to be associated with an approved day parole, or parole or statutory release
that is subject to a residency condition". The Policy Manual goes on to
note that the Board "entrusts to those who are responsible for the
day-to-day supervision and care of these offenders, the manner in which the
leave privileges will be implemented".
[31]
It is important to note that if a discretionary
decision by the Parole Board is inconsistent with achieving the purpose of
providing the least restrictive determination, consistent with the protection
of society, then that decision runs the risk of being unreasonable, regardless
of the ambit of discretion and deference owed to the Parole Board, or the
Appeal Board.
[32]
As again stated by Justice Mactavish in Latimer,
above, at para 63:
It is clear from the CCRA that in making the
least restrictive determination, the Board has to carefully tailor the
conditions of an offender's release having regard to all of the particular
circumstances of the individual offender. How the leave privileges granted to
Mr. Latimer compare to those granted to other offenders is irrelevant.
Moreover, as was noted in the Assessment for Decision, the circumstances of Mr.
Latimer's index offence are indeed "unique".
[33]
There is no dispute that a decision made by the
Board and by the Appeal Board under subsection 133(6) of the CCRA is a
discretionary one, as evidenced by use of the words “may remove or vary such
condition” and that permission to travel outside of Canada is an exception to
the general rule applicable to offenders on conditional release: that they
remain in Canada at all times, at locations specified by the offender’s Parole
Officer (Sychuk at para 44).
[34]
It is also settled law that policy manuals, like
guidelines, are not law and are not binding on the decision-maker, but
nonetheless are useful indicators and if a decision is reached contrary to the
guidelines, it is “of great help in assessing whether the
decision was an unreasonable exercise of the power” (Baker v Canada
(Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817 at para 72).
[35]
The Respondent argues that the Board’s decision
not to permanently relieve the Applicant of the international travel condition
is within the range of acceptable outcomes available to the Board in light of
the relevant information of the Applicant’s case.
[36]
Further, it is argued that the Board is open to
disagree with the opinion of the Assessment presented to them that the
restrictions could be lifted without disturbing their primary principle of
societal protection, and that despite the existence of “positive
considerations” the Board is free to exercise its discretion to disagree, and
deny the application for relief.
[37]
The Respondent continues that “while protection of society is to be the paramount
consideration, the Board was also statutorily required to consider all relevant
information, including the nature and gravity of the offence, and to be guided
by Board policies”. In fulfilling its mandate, the Board was reasonable
to use its wide discretion to deny the request in light of all the evidence
available to it and its broad spectrum of considerations, positive factors do
not necessarily outweigh the seriousness, nature and gravity of the Applicant’s
offence.
[38]
Moreover, it is argued, the Applicant did not
request a variance on conditions being imposed, but requests a blanket removal
of all international travel conditions. While I agree with the Respondent that
the Board and Appeal Board have a broad discretion in considering the
applicability of paragraphs 133(b)(a) and 161(1)(b) of the CRRA, that exercise
of discretion must have a sound basis in fact to be applied reasonably.
[39]
This case is distinguishable from the facts
before Justice Lemieux in Sychuk, where the Court found that given both
the brutal nature of his crime and lack of being able to monitor Mr. Sychuk
overseas, supervision would be non-existent and therefore the Board’s decision
was reasonable.
[40]
It is quite clear on the facts of this case, as
it was at all levels of Court before me, that in considering Mr. Latimer’s
unique case, the principles of rehabilitation, specific deterrence and societal
protection against risk from him do not apply. I cannot discern any basis for
the Appeal Board to find that Mr. Latimer poses any risk to any persons inside
or outside of Canada, or that an elimination of reporting requirements for
international travel would present any real risk to public safety or adversely
affect the protection of society under subsection 101(a) of the CCRA.
[41]
That finding, coupled with the overarching
purpose of the CCRA and CCRR, to make the least restrictive determination
consistent with the protection of society under subsection 101(b), and after
considering all relevant information, leads me to conclude that the Board and
Appeal Board did not exercise their broad discretion in a reasonable,
transparent or intelligible manner.
[42]
The Board and Appeal Board cannot exercise
discretion based on an arbitrary or punitive basis, inconsistent with this
overarching purpose.
[43]
This becomes even more pronounced when one has
regard for the Policy Manual, which states that the Board is to entrust those
who are responsible for the day-to-day supervision and care of offenders with
the manner in which leave privileges are to be implemented. Here, both the
Applicant’s Parole Officer and Parole Officer Supervisor made unqualified
recommendations to remove the application of subparagraph 161(1)(b) of the
CCRR.
[44]
Mr. Latimer will continue to be under
supervision of his Parole Officer, whenever and wherever he travels.
Communication is not an issue and is subject to his continuing obligation to
report to his Parole Officer. With these facts and principles in mind, and
bearing in mind all the factors set out in paragraph 12 of my reasons above, I
find that the Appeal Board’s decision is unreasonable.
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