Docket: T-1666-14
Citation: 2015 FC 510
Ottawa, Ontario,
April 21, 2015
PRESENT: The Honourable Mr. Justice Manson
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BETWEEN:
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CORY ALLAN HALL
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Applicant
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and
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CANADA (PAROLE
BOARD OF)
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Respondent
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JUDGMENT AND REASONS
[1]
This is an application for judicial review of the
decision dated June 18, 2014 by the Parole Board of Canada, Appeal Division
[Appeal Board] to uphold the Parole Board of Canada’s [the Board] decision to
revoke the Applicant’s full parole.
[2]
The Applicant was convicted on December 18, 1999
of second degree murder, and sentenced to life imprisonment without eligibility
for parole for ten years.
[3]
On March 1, 2000, the Applicant was assessed a
Statistical Information on Recidivism [SIR] score of 2, indicating that 2 out
of 3 similar offenders will not commit an indictable offence after release.
[4]
On August 31, 2009, the Applicant underwent
psychiatric assessment where he described a past relationship with a female
whose rape had in part motivated his index offence.
[5]
On January 20, 2010, the Applicant applied for
parole in the form of unescorted temporary absence. At this point he had
completed all correctional programs, eighteen escorted temporary absences,
three sixty day perimeter security clearance passes, and one half of a six
month work release program, without incident.
[6]
In March of 2010, the Applicant’s Correctional
Plan Progress Report reflected positively on him.
[7]
On April 6, 2010, the Applicant underwent
psychological assessment, which recognized his relationships with women to be a
potential risk factor connected with the circumstances underlying his index
offence.
[8]
In a report dated April 22, 2010, the
Applicant’s case management team [CMT] supported granting him day parole with
special conditions: that he abstain from intoxicants, and participate in
psychological counselling.
[9]
The Applicant was granted day parole on July 5,
2010.
[10]
The Applicant was granted full parole on June 7,
2011 with the full support of his CMT, and was subject to the following
conditions:
- to report all relationships, including
friendships, with women to his parole supervisor;
- to undergo psychological counselling;
- to abstain from intoxicants; and
- to not associate with any person he
knows, or has reason to believe is involved in criminal activity and/or
substance misuse.
[11]
On February 22, 2013, the Board decided to
remove the Applicant’s psychological counselling condition, stating that it
would not elevate his risk to an “undue” level.
[12]
On December 11, 2013, warrants of apprehension
and suspension were executed for the Applicant. On December 12, 2013, his parole
supervisor suspended his parole on the basis of information received from the
Victoria Police Department that the Applicant was suspected of defrauding a
woman of $240,000, and that he had been having sexual relations with her in
exchange for monetary compensation over the course of the year.
[13]
On December 13, 2013, the Applicant’s parole
supervisor confronted him with some of the above allegations. The Applicant
denied having had a relationship with the woman, but said she had become
infatuated with him after sharing some of his writings. He stated she had paid
him approximately $7,000, and that he had won approximately $200,000 at the
casino in the previous six months. The casino confirmed the Applicant’s winnings
between May and October of 2013 to be $207,000, but did not confirm what he had
spent to win that amount.
[14]
The Applicant’s parole supervisor wrote a
Community Assessment dated December 19, 2013, providing details that arose from
information obtained from a police intelligence meeting on December 11, 2013.
[15]
On December 23, 2013, the Applicant submitted a
Notice of Appeal to the Board requesting that all special conditions be removed
from his full parole, stating that there is no information to suggest that non-disclosure
of relationships with women would be an immediate risk for him to re-offend.
[16]
On January 6, 2014, the Applicant’s parole
supervisor wrote an Assessment for Decision, which provided reasons for the
suspension of the Applicant’s full parole and recommended its revocation.
[17]
The Applicant made a written submission to the
Board on January 8, 2014, in which he responded to the allegations against him.
He claimed that his interactions with the woman were of a “physical nature”
with “no intimacy or courtship” exchanged. He also stated that he had mentioned
going to the casino to his parole supervisor, who had expressed disapproval. He
further stated that he and his parole supervisor did not speak about
relationships and allegedly stated he “was exhausted with the idea”. The
Applicant denies making this statement.
[18]
Prior to the Applicant’s Appeal Board review, he
reviewed and signed the Procedural Safeguard Declarations, which acknowledges
receipt of the associated Information Sharing Checklists. The latter indicates
that the Community Assessment and Assessment for Decision were shared with the
Applicant on January 10, 2014.
[19]
The Board decided to revoke the Applicant’s full
parole in a decision dated January 27, 2014.
[20]
The Applicant appealed this decision to the
Appeal Board on February 3, 2014 on four grounds:
- the Board failed to observe a principle
of fundamental justice in failing to disclose information prior to the
Applicant’s review pertaining to his suspension despite Board policy to
the contrary;
- the Board relied on discordant
information not properly before it concerning data retrieved from text
messages, social media and electronic mail;
- the Board deemed such information to be
“reliable and persuasive”, contrary to Board policy; and
- the Board based its decision on
incomplete or erroneous information.
[21]
The Board’s decision was upheld by the Appeal
Board, and the application dismissed on June 18, 2014. The Appeal Board
confirmed that the Applicant’s behavior contravened the Applicant’s parole
restrictions.
I.
Issues
[22]
The issues are:
- Did the Board member breach procedural fairness in failing to
disclose relevant and relied-upon information to the Applicant prior to
rendering her decision?
- Did the Board
and Appeal Board reasonably decide that the Applicant’s parole should be
revoked?
II.
Standard of Review
[23]
The appropriate standard of review for the issue
concerning procedural fairness is correctness. The standard of reasonableness
should be applied to the second issue (Tremblay v Canada (Attorney General),
2012 FC 1546, para 16; Dunsmuir v New Brunswick, 2008 SCC 9, para 47).
III.
Analysis
[24]
The relevant legislation is attached as
Appendix A.
A.
Did the Board breach procedural fairness in
failing to disclose relevant and relied-upon information to the Applicant prior
to rendering her decision?
[25]
At the hearing, the Applicant’s counsel provided
the Court with the Applicant’s recent, revised day parole special conditions,
dated January 14, 2015, which list as follows:
- avoid gambling establishments;
- report relationships – immediately report
all intimate sexual and non-sexual relationships and friendships with
females to your parole supervisor;
- financial disclosure as per a schedule to
be determined by the parole supervisor;
- not to gamble
[26]
These new conditions add three conditions previously
not part of the Applicant’s parole special conditions (i), (iii) and (iv), and
remove psychological counselling, abstaining from intoxicants, and associating
with any person he knows or has reason to believe is involved in criminal
activity and/or substance abuse.
[27]
The Applicant submits that an issue of
procedural fairness will invalidate a parole decision. He further submits that
section 141(1) of the CCRA forms the basis for part 10.1(4) of the Parole Board
of Canada Policy Manual, which requires that an offender be provided “all relevant information considered by the Board for
decision-making” at least 15 days prior to the day set for the review of
their case.
[28]
The Applicant submits that this disclosure
requirement was canvassed in Mymryk v Canada (Attorney General), 2010 FC
632 at paras 20, 27-29 [Mymryk], where section 27 of the CCRA was
considered, and compared with s. 141(1). Both provisions have been found to be
satisfiable with a summary of all relevant information. In determining what
should be disclosed, the Board must balance different interests while holding
the protection of society as most important; however, only information that is
necessarily withheld should be kept from the offender. Transparency is required
of the Board in this decision making process.
[29]
The Applicant states that it is evident from the
various assessments for decision on the Record that his parole supervisor and
CMT relied on information from the Victoria Police investigation in their
reports, which were in turn relied upon by the Board in reaching their
decision. The Applicant was assessed and rejected without being provided access
to this information.
[30]
When asked why he did not report the
relationship with the woman he had met on the internet to his parole
supervisor, the Applicant explained it was because he did not believe it was
reportable. In rejecting this position, the Board found that the Applicant had
been receiving “large sums of money for sex”. The Board also notably made a
finding that the Applicant`s relationship with this woman was “lengthy”, a
determination that had to be based on information that could only have come
from the police investigation. The Board`s knowledge of their online introduction,
and that their meetings and fees increased over time also clearly showed
reliance on information from the police investigation, none of which was
disclosed to the Applicant.
[31]
Further, in considering that the Applicant had
spent large amounts of money to make his sizeable winnings at the Great
Canadian Casino, the Board was speculating based on information connected to
the police investigation.
[32]
The Respondent cites Miller v Canada
(Attorney General), 2010 FC 317 at para 54, for the assertion that section
141 of the CCRA does not contemplate “an open-ended
duty to actively seek potentially relevant information from [Correctional
Services Canada [CSC]]”; rather, the Board is required “to take into consideration all information received from the
CSC that is relevant to a case” and “ensure that
any such information upon which it may act is reliable and persuasive.”
[33]
The Respondent argues that the disclosure
obligation imposed by section 141 can only apply insofar as the Board actually
has information in its possession. Further, information is required to be
shared with an offender to allow them to adequately state their case and answer
any objections raised against them. The sources of the information need not be
revealed to an offender (Strachan v Canada (Attorney General), 2006 FC
155 at para 25; Ross v Kent Institution (Warden), (1987) 34 CCC (3d) 452
at para 30).
[34]
Moreover, the Respondent states that based on
the information in the Assessment for Decision from January 6, 2014 and his own
knowledge, the Applicant gave a narrative of events that demonstrated he had
sufficient information to answer the salient details asked of him.
[35]
By January 10, 2014, the Applicant had reviewed
the Procedural Safeguard Declarations as well as the associated Information
Sharing Checklists (which set out the Community Assessment from December 19,
2013, and the January 6, 2014 Assessment for Decision). He signed the
Procedural Safeguard Declarations to confirm the information listed had been
given to him. The accuracy of the checklist has not been challenged by the
Applicant; instead, he complains that he was not given the material from the
Victoria Police investigation, copies of text messages and Facebook data
collected in particular.
[36]
The Applicant is correct that the Board has a
responsibility to share relied-upon information with him, in full or in the
form of a summary, to the exclusion only of information it is strictly
necessary to withhold. It is important for him to have such information to be
able to respond to concerns and allegations he might be questioned on in his
review (Mymryk, above, at para 16; Christie v Canada (Attorney
General), 2013 FC 38 at paras 20, 27-29).
[37]
While it appears that the Respondent must have
in some way relied upon information from the Victoria Police Investigation, for
if they had not, there would not have been a sudden review of his parole, or a
warrant issued, I do not agree with the Applicant that the relevant information
relied upon by the Board was withheld from him. The Applicant, in writing his
response to the January 6, 2014 Assessment for Decision (response dated January
8, 2014) had clearly reviewed this assessment. He later, on January 10, 2014,
signed a checklist acknowledging the disclosure of this among other documents.
He further was confronted by his parole supervisor about many of the
allegations from the investigation in a discussion on December 13, 2013.
[38]
While the Applicant might not have been provided
copies of the actual police report, or whatever his CMT and parole supervisor
relied upon in their assessments prior to his parole hearing, the Applicant was
clearly aware of the salient points, and a summary thereof. His response to the
January 6, 2014 Assessment for Decision addressed all its major points, and
demonstrated understanding of the concerns he faced. As stated above, a summary
of information has been found to satisfy the disclosure requirement under
section 141 of the CCRA.
[39]
I find that there was no breach of procedural
fairness in that the Board adequately met the section 141 disclosure
requirement.
B.
Did the Board and Appeal Board reasonably decide
that the Applicant’s parole should be revoked?
[40]
The Respondent argues that the decision was
reasonable and supported by the information correctly before Appeal Board. In
assessing risk, it is most important that protection of society is paramount.
The decision was based on the information before the Board, which allegedly did
not include undisclosed information from the police investigation. The
Respondent argues that CSC and the Board did not have undisclosed information
as alleged by the Applicant, and thus could not have disclosed it to the
Applicant. The GO Report associated with the investigation indicates it was
vetted for disclosure on September 3, 2014 and then provided to the Applicant’s
CMT and the Board. However, from the record, it appears that the police report
was available to the Board at the relevant time.
[41]
The Board and Appeal Board found that the
Applicant’s level of risk in the public was undue because of a lack of
transparency and the breach of a special condition of his parole in not
disclosing his relationship involving sex for money. While I might disagree
with the decision to revoke the Applicant’s parole on the basis of not
reporting a relationship with a female that would arguably not trigger
re-offense, the relationship constituted a violation of his parole restrictions
and the Appeal Board’s decision is reasonable.
[42]
Reports on the Applicant’s file show that he
committed his index offense out of “a twisted sense of
justice over the wrongdoing of a woman who was close to” him. The
special condition on his parole to report all female relationships is born out
of concern that intimate connection with a female might lead to a drive to
avenge potential wrongdoing that might happen to her. Should the Applicant have
wished to vary or remove the restriction, he should have applied to do so
through the proper channels rather than reinterpret this restriction himself
and act upon it.
[43]
While I understand the Applicant’s frustration
in the matter, whatever arrangement existed between him and this woman clearly
constituted a relationship, whether or not it was intimate in his opinion.
[44]
The Appeal Board’s requirement to impose the
least restrictive sanctions that uphold societal safety is in line with
revocation of the Applicant’s parole based on the facts here. The Applicant
contravened his parole restrictions for an extended period of time, and lied
about his relationship with the woman when initially confronted by his parole
supervisor.
[45]
The Board’s exercise of discretion must have a
sound basis in fact to be considered reasonable, and its decision must comply
with the CCRA, to the effect that it uses the least restrictive conditions
available consistent with the protection of society.
[46]
I find that the Board’s decision to revoke the
Applicant’s full parole to be reasonable. While I acknowledge the Applicant’s
frustration with his previous requirement to report all relationships with
females, and even his frustration with his parole supervisor’s personal views
of his behavior, it was not proper for him to reinterpret his parole
restrictions and act based on those interpretations. The mistrust bred by his
contraventions lead to the reasonable conclusion of the Appeal Board to uphold
the Board’s revocation of his parole.
THIS COURT’S JUDGMENT is that:
1.
This application for judicial review is
dismissed.
"Michael D. Manson"
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