Docket: T-2390-14
Citation:
2015 FC 702
[UNREVISED ENGLISH CERTIFIED TRANSLATION]
Montréal, Quebec, June 3, 2015
PRESENT: The Honourable Mr. Justice Shore
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BETWEEN:
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GREGG HERBERT
PREVOST
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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
I.
Introduction
[1]
The applicant seeks judicial review of a decision
dated October 6, 2014, by the National Parole Board Appeal Division
[Appeal Division] affirming a decision of the National Parole Board [Board]
dated January 22, 2014, denying him day parole and full parole pursuant to
the Corrections and Conditional Release Act, SC 1992, c 20 [Act].
II.
Facts
[2]
Since October 4, 1985, the applicant has
been serving a life sentence, with eligibility for full parole after 25 years,
for the first-degree murder of a police officer committed in the fall of 1984
in the community of Iroquois Falls, Ontario.
[3]
For the past 12 years, the applicant has been
serving his sentence in a minimum security prison.
[4]
On June 17, 2009, the Board granted the
applicant day parole at the Maison Saint-Léonard Community Residential Centre
[St-Léonard CRC].
[5]
On December 19, 2009, the police
intercepted the applicant, who smelled of alcohol and had a drill in his
possession. A subsequent search revealed that the applicant was also in
possession of Dilaudid pills and syringes.
[6]
Accordingly, the applicant’s day parole was
revoked on March 18, 2010.
[7]
On September 18, 2013, the applicant
submitted a new application for day parole and full parole to the Board.
[8]
On November 29, 2013, the applicant’s Case
Management Team [CMT] recommended that the applicant no longer be granted the escorted
temporary absences he had been receiving over the course of the preceding year.
On December 6, 2013, the CMT decided not to recommend to the Board full parole
for the applicant.
[9]
On January 22, 2014, the Board held a
hearing in the presence of the applicant. That same day, the Board denied the
applicant’s applications for day parole and full parole.
[10]
On October 6, 2014, the Appeal Division affirmed
the Board’s decision.
III.
Impugned decisions
A.
Decision of the Board dated January 22, 2014
[11]
In its decision dated January 22, 2014, the
Board reviewed the evidence in the applicant’s record, including his oral
testimony at the hearing.
[12]
The Board began by reviewing the applicant’s
recent psychological assessment, which reveals that his risk of reoffending was
weak to moderate, which, the Board noted, constitutes an acceptable level of
risk when considering day parole. The Board observed that the applicant has
been incarcerated in a minimum security setting for the past 11 years.
[13]
The psychological assessment also indicates that
the applicant suffers from alcohol and drug dependency and has antisocial
personality traits.
[14]
The Board emphasized that while the applicant
has expressed genuine remorse for his actions, he nevertheless tends to
complain about the system and has difficulty interacting with authority figures
when he feels he has been treated unfairly. The Board also noted that the
applicant secretly consumed Dilaudid between 2006 and 2009.
[15]
The Board recognized that the applicant had
completed various substance abuse rehabilitation programs, that he participated
in Alcoholics Anonymous [AA] meetings and that he was in regular contact with
an Aboriginal Liaison Officer. The Board noted that the applicant had been
participating in escorted temporary absence groups since March 2011.
[16]
The Board then took into account the applicant’s
release plan. It recognized that the applicant had been accepted into the
St-Léonard CRC, that he benefitted from the support of his family and community
members, that he planned to find employment as a machinist or in a related
field and that he planned to attend AA meetings.
[17]
However, the Board observed that the day parole
the applicant had been granted in June 2009 had been revoked in April 2010
following a relapse into drug and alcohol use and that, in January 2011,
he received a concurrent sentence of two months for possession of substances.
[18]
The applicant’s record also shows that his wife
had informed the CMT that he had been consuming alcohol since the beginning of
his day parole and that he had been violent with her, having sexually assaulted
her until she lost consciousness. The Board noted that the applicant had always
denied these allegations. The evidence also shows that the applicant had had
sexual relations with both a prostitute and a volunteer from a non-profit
Christian organization during this same period.
[19]
Moreover, the Board pointed out that in October
2013, the psychological counseling that the applicant had been receiving since
June 2013 had been suspended because he was constantly criticizing the
Correctional Services of Canada [CSC].
[20]
The Board also observed that in November 2013, the
applicant’s CMT received reliable information from employees, fellow inmates
and the Security Intelligence that he was a negative leader, that he had led a
smear campaign against a fellow inmate, that he intimidated others and that he
participated in tobacco smuggling activities within the penitentiary.
[21]
The Board emphasized that the applicant had
denied these allegations and maintained this position at the hearing before it.
[22]
The Board noted that, based on the evidence in
the record, the applicant’s attitude and conduct had deteriorated over the
course of the preceding months. Among other things, the applicant’s credibility
is tainted by the fact that he continues to show signs of rigidity, hostility
and frustration toward the justice system, the CSC and various authorities.
According to the Board, in light of the recent events that brought the
applicant’s psychological counseling to a halt and led to the cancellation of
the escorted temporary absence program, the applicant’s situation is precarious
and disappointing.
[23]
The Board noted the CMT’s position that the
applicant presents an undue risk to society. The Board observed that although
the applicant had made efforts to improve his conduct, the objectives described
in his correctional plan were not achieved.
[24]
With this in mind, the Board declared that the
applicant would have to demonstrate a willingness and ability to cooperate with
his CMT to establish a relationship of trust.
[25]
In short, the Board concluded that the
applicant’s release plan was premature and that his release would not
contribute to the protection of society.
B.
Decision of the Appeal Division dated
October 6, 2014
[26]
In a letter dated October 10, 2014, the
Appeal Division rejected the applicant’s appeal and affirmed the decision of
the Board.
[27]
The Appeal Division began by summarizing the applicant’s
comments and identifying three grounds for appeal. The applicant criticized the
Board for having (1) provided inadequate reasons; (2) relied on incomplete and
inaccurate evidence; and (3) rendered an unreasonable decision.
[28]
The Appeal Division then observed that, contrary
to the applicant’s claims, the Board had reviewed all of the evidence in the
applicant’s record, identifying and weighing both the positive and negative
elements contained in his file. This global assessment led the Board to
conclude that the risk to society presented by the applicant did not justify
granting day parole or full parole.
[29]
The Appeal Division found that, contrary to the
applicant’s claim, the Board had relied on reliable, relevant and convincing
information contained in the applicant’s file.
[30]
The Appeal Division also noted that the audio
recording of the hearing before the Board revealed that the Board had given the
applicant the opportunity to make comments and respond to the allegations
against him.
[31]
Moreover, the audio recording demonstrates that
the applicant is hostile to authority figures. The Appeal Division held that it
was reasonable for the Board to weigh this factor in light of his offence of
first-degree murder of a police officer in its evaluation of the applicant’s
risk of reoffending.
[32]
Finally, the Appeal Division confirmed that the
principles of fairness had been followed in the applicant’s case and that the
Board’s reasons in support of its decision were transparent and based on the
evidence in the record.
IV.
Issues
[33]
This application sets out the following two
issues:
(1)
Is the Appeal Division’s decision reasonable?
(2)
Did the Appeal Division respect the principles
of procedural fairness in the applicant’s case?
V.
Standard of review
[34]
Given the Board’s and the Appeal Division’s
expertise in making decisions about whether to grant parole, it is settled law
that the applicable standard of review is that of reasonableness. 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 (Dunsmuir
v New Brunswick, [2008] 1 SCR 190 at para 47).
[35]
In this view, the Court must take a deferential
approach to the Board’s decision. The Court may not substitute its own reasons
for those of the Appeal Division, but may, if it finds it necessary, look to
the record for the purpose of assessing the reasonableness of the outcome (Newfoundland
and Labrador Nurses’ Union v Newfoundland and Labrador (Treasury Board),
2011 SCC 62 at para 15).
[36]
As Justice George J. Locke held in the Federal
Court decision in Korn v Canada (Attorney General), 2014 FC 590 at
para 14 [Korn], judicial deference is called for with respect to the
decisions of the Board and the Appeal Division:
[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).
[37]
As for the determination of whether the Board’s
decision respects the principles of procedural fairness, the applicable standard
is that of correctness (Mission Institution v Khela, 2014 SCC
24 at para 79; Canada (Citizenship and Immigration) v Khosa,
2009 SCC 12 at para 43).
VI.
Analysis
A.
Statutory and jurisprudential framework
[38]
The provisions relating to parole are set out in
Part II of the Act.
[39]
The main purpose of parole is contained in
section 100 of the Act:
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Purpose of conditional release
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Objet
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100.
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.
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100. La mise en liberté sous condition
vise à contribuer au maintien d’une société juste, paisible et sûre en
favorisant, par la prise de décisions appropriées quant au moment et aux
conditions de leur mise en liberté, la réadaptation et la réinsertion sociale
des délinquants en tant que citoyens respectueux des lois.
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[40]
The Board’s decision-making authority is set out
in section 102 and paragraph 107(1)(a) of the Act:
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Criteria for granting parole
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Critères
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102. The
Board or a provincial parole board may grant parole to an offender if, in its
opinion,
(a) the offender will not, by reoffending, present an undue
risk to society before the expiration according to law of the sentence the
offender is serving; and
(b) the release of the offender will contribute to the
protection of society by facilitating the reintegration of the offender into
society as a law-abiding citizen.
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102. La Commission et les commissions
provinciales peuvent autoriser la libération conditionnelle si elles sont
d’avis qu’une récidive du délinquant avant l’expiration légale de la peine
qu’il purge ne présentera pas un risque inacceptable pour la société et que
cette libération contribuera à la protection de celle-ci en favorisant sa
réinsertion sociale en tant que citoyen respectueux des lois.
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Jurisdiction of Board
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Compétence
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107.
(1) Subject to this Act, the Prisons and Reformatories Act, the International
Transfer of Offenders Act, the National Defence Act, the Crimes Against
Humanity and War Crimes Act and the Criminal Code, the Board has exclusive
jurisdiction and absolute discretion
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107. (1) Sous réserve de la présente
loi, de la Loi sur les prisons et les maisons de correction, de la Loi sur le
transfèrement international des délinquants, de la Loi sur la défense
nationale, de la Loi sur les crimes contre l’humanité et les crimes de guerre
et du Code criminel, la Commission a toute compétence et latitude pour :
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(a) to grant parole to an offender;
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a) accorder une libération
conditionnelle;
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[41]
The powers of the Appeal Division are set out in
subsections 147(4) and (5) of the Act as follows:
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Decision on appeal
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Décision
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147.
(4) The Appeal Division, on the completion of a review of a decision appealed
from, may
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147. (4) Au terme de la révision, la
Section d’appel peut rendre l’une des décisions suivantes :
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(a) affirm the decision;
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a) confirmer la décision visée par
l’appel;
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(b) affirm the decision but order a further review of the
case by the Board on a date earlier than the date otherwise provided for the
next review;
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b) confirmer la décision visée par
l’appel, mais ordonner un réexamen du cas avant la date normalement prévue pour
le prochain examen;
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(c) order a new review of the case by the Board and order
the continuation of the decision pending the review; or
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c) ordonner un réexamen du cas et
ordonner que la décision reste en vigueur malgré la tenue du nouvel examen;
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(d) reverse, cancel or vary the decision.
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d) infirmer ou modifier la décision
visée par l’appel.
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Conditions of immediate release
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Mise en liberté immédiate
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(5) The Appeal Division shall not render a decision under
subsection (4) that results in the immediate release of an offender from
imprisonment unless it is satisfied that
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(5) Si sa décision entraîne la libération immédiate du délinquant,
la Section d’appel doit être convaincue, à la fois, que :
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(a) the decision appealed from cannot reasonably be supported
in law, under the applicable policies of the Board, or on the basis of the
information available to the Board in its review of the case; and
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a) la décision visée par l’appel ne
pouvait raisonnablement être fondée en droit, en vertu d’une politique de la
Commission ou sur les renseignements dont celle-ci disposait au moment de
l’examen du cas;
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(b) a delay in releasing the offender from imprisonment
would be unfair.
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b) le retard apporté à la libération
du délinquant serait inéquitable.
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[42]
Finally, the principles guiding the Board in
carrying out its mandate are set out in section 101 of the Act:
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Principles guiding parole boards
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Principes
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101.
The principles that guide the Board and the provincial parole boards in
achieving the purpose of conditional release are as follows:
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101. La Commission et les commissions
provinciales sont guidées dans l’exécution de leur mandat par les principes
suivants:
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(a) parole boards take 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;
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a) elles doivent tenir compte de toute
l’information pertinente dont elles disposent, notamment les motifs et les
recommandations du juge qui a infligé la peine, la nature et la gravité de
l’infraction, le degré de responsabilité du délinquant, les renseignements
obtenus au cours du procès ou de la détermination de la peine et ceux qui ont
été obtenus des victimes, des délinquants ou d’autres éléments du système de
justice pénale, y compris les évaluations fournies par les autorités
correctionnelles;
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(b) parole boards enhance their effectiveness and openness
through the timely exchange of relevant information with victims, offenders
and other components of the criminal justice system and through communication
about their policies and programs to victims, offenders and the general
public;
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b) elles accroissent leur efficacité
et leur transparence par l’échange, au moment opportun, de renseignements
utiles avec les victimes, les délinquants et les autres éléments du système
de justice pénale et par la communication de leurs directives d’orientation
générale et programmes tant aux victimes et aux délinquants qu’au grand
public;
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(c) parole boards 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;
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c) elles prennent les décisions qui,
compte tenu de la protection de la société, ne vont pas au-delà de ce qui est
nécessaire et proportionnel aux objectifs de la mise en liberté sous
condition;
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(d) parole boards adopt and are guided by appropriate
policies and their members are provided with the training necessary to
implement those policies; and
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d) elles s’inspirent des directives
d’orientation générale qui leur sont remises et leurs membres doivent
recevoir la formation nécessaire à la mise en œuvre de ces directives;
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(e) 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.
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e) de manière à assurer l’équité et la
clarté du processus, les autorités doivent donner aux délinquants les motifs
des décisions, ainsi que tous autres renseignements pertinents, et la
possibilité de les faire réviser.
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[43]
It is clear from the statutory and
jurisprudential context set out above that public safety and protection are
paramount considerations in the assessment of an application for parole (Campbell
v Canada (Attorney General), 2013 FC 803 at para 35; Fernandez
v Canada (Attorney General), 2011 FC 275 at para 22 [Fernandez]).
[44]
As stated by the Federal Court of Appeal in Ouellette
v Canada (Attorney General), 2013 FCA 54 at paras 61 and 62
[Ouellette]:
[61] In the case of an offender, the Act
states quite clearly that “the protection of society [is] the paramount
consideration in the determination of any case”: para. 101(a) of the Act
as it read at the time of the Board’s decision and s. 100.1 of the Act as
it reads now. This paramount consideration will always trump the principle
of the least restrictive determination. In addition, if the Board concludes
that it cannot grant the offender parole, in contrast to a review board, it
cannot establish conditions for continued incarceration.
[62] Since the Board concluded that
paroling the appellant posed an unacceptable risk to society, it did not have
to question this conclusion in light of the principle of the least restrictive
determination. In fact, in the offender’s case, the paramount consideration
under the Act, in all circumstances, remains the protection of society, and the
principle of the least restrictive determination is contingent upon this
paramount consideration and cannot under any circumstances replace it.
[Emphasis added.]
[45]
This principle, among others, is apparent in
section 101 of the Act, which states that “[t]he
purpose of conditional release is to contribute to the maintenance of a just,
peaceful and safe society” and section 102, which states that the
Board may grant parole if, in its opinion, “the
offender will not, by reoffending, present an undue risk to society before the
expiration according to law of the sentence the offender is serving” and
“the release of the offender will contribute to the
protection of society by facilitating the reintegration of the offender into
society as a law-abiding citizen”.
[46]
The case law also establishes that parole is a
privilege and not a right (Korn, above, at para 15).
[47]
Furthermore, the Act requires respect for the
principle of proportionality, as expressed in paragraph 101(c) of
the Act, which sets out that the Board and the Appeal Division must 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”.
[48]
Finally, it goes without saying that the Board
and the Appeal Division must act fairly and respect the principles of
fundamental justice in their decision-making process (Ouellette, above,
at para 67).
B.
Reasonableness of the Appeal Division’s decision
[49]
First, the Court cannot accept the applicant’s
argument that the Board’s decision, as affirmed by the Appeal Division, is
unreasonable because it is based on contradictory findings with respect to the
applicant. More specifically, the applicant criticizes the Board and the Appeal
Division for having failed to consider the principle of the [translation] “decision
that is limited to only what is necessary and proportionate to the purpose of
conditional release”.
[50]
The Act requires that the Board attempt to
balance the so-called positive and negative factors in the applicant’s record,
in order to weigh the applicant’s rights and interests against the public
interest and public safety.
[51]
The Court is of the view that the principles of
proportionality and striking a balance between the interests of the applicant
and the protection of the public were duly respected by the Board and the
Appeal Division, according to the requirements of the Act and their mandates.
[52]
As their reasons indicate, the analysis
conducted by the Board and the Appeal Division of the factors militating in
favour of the applicant’s parole (such as his progress in rehabilitation and
his sense of remorse with respect to his actions) and the factors demonstrating
a risk of reoffending (such as the allegations against him of violence and
hostility, the persistence of his negative attitude and the recent
deterioration of his conduct) shows that a thorough review of his file was
conducted.
[53]
With respect to the risk to society of the
applicant reoffending, which the Board held to be unacceptable in a finding affirmed
by the Appeal Division, the decision to refuse to grant day parole or full
parole to the applicant is reasonable and justifiable.
C.
Respect for the principles of procedural
fairness with respect to the applicant
[54]
The applicant alleges that the Board breached
the principles of procedural fairness by failing to provide adequate reasons
for its decision. The applicant also criticizes the Board for considering unreliable
evidence and ignoring other pieces of evidence.
[55]
The Court cannot agree with these arguments.
[56]
For the purposes of calculating the risk of reoffending,
the Board may take into account all available and relevant information,
provided that it has not been obtained improperly, including information about
criminal charges that have not resulted in convictions (Fernandez, above,
at paras 24 and 26).
[57]
Furthermore, the case law establishes that
confronting the applicant at the hearing with the allegations made in his
regard, and enabling him to comment on them, is also a significant method of
verification (Fernandez, above, at para 25).
[58]
In this case, the Board disclosed to the
applicant the information provided by the CSC relevant to its decision. At the
hearing, the applicant was given the opportunity to make oral and written
submissions to rebut the allegations against him, in accordance with the audi
alteram partem rule.
[59]
The Court is of the view that the reasons of the
Board and the Appeal Division are transparent, intelligible and based on a
review of all the evidence in the file, including the applicant’s oral and
written submissions, the prison record, the psychological reports, the CMT’s
recommendation, the letters of support submitted by the applicant, the release
plan and the evidence of the applicant’s participation in various
rehabilitation programs.
[60]
The Court finds that the Board and the Appeal
Division respected the principles of procedural fairness and natural justice
with respect to the applicant.
VII.
Conclusion
[61]
In light of the above, the applicant’s
application for judicial review is dismissed.
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