Docket: T-882-14
Citation:
2015 FC 608
[UNREVISED ENGLISH CERTIFIED TRANSLATION]
Ottawa, Ontario, May 8, 2015
PRESENT: The Honourable Madam Justice Tremblay-Lamer
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BETWEEN:
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ARLÈNE GALLONE
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Applicant
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and
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THE ATTORNEY
GENERAL OF CANADA
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Respondent
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JUDGMENT AND REASONS
[1]
The applicant is challenging the lawfulness of a
decision of the Parole Board of Canada [PBC] recommending a laying of
information charging her with an offence under section 753.3 of the Criminal
Code, RSC 1985, c C-46.
I.
Facts
[2]
The applicant is a 22-year old woman who pleaded
guilty to charges of robbery, criminal harassment, assaulting a peace officer
and breach of conditions on June 22, 2012, for which she received a sentence of
ten months and fifteen days’ imprisonment plus a long term supervision order (LTSO)
for a six-year period. The applicant has been subject to the LTSO since the end
of her incarceration, namely, since January 18, 2013; the LTSO came with a
number of conditions, including residing at a Community Correctional Centre or
a Community Residential Facility for a period of 180 days, refraining from
consuming or possessing alcohol or drugs, not communicating with people who
have a criminal record or who are involved in criminal activities, and following
all recommended psychiatric treatment. On May 24, 2013, the PBC added another
condition: to seek or remain employed or pursue academic upgrading.
[3]
Since January 18, 2013, community supervision of
the applicant was suspended on three occasions, which resulted in additional
periods of incarceration for her. The first two suspensions occurred between
February 1 and May 1, 2013, and between June 7 and September 4, 2013. The last
suspension occurred on November 25, 2013, and due to new criminal charges, the
applicant was incarcerated until the PBC decision in January 2015.
[4]
After the suspension on November 25, 2013,
counsel for the applicant filed written representations with the PBC and
requested that it hold a hearing in order for the PBC to be able to better
assess the behaviour and intellectual capacities of the applicant and her
explanations with regard to the incidents having led to the suspension; the
request was not granted. As with the previous two suspensions, the PBC made its
decision on the basis of the record, without holding a hearing.
[5]
On January 31, 2014, the PBC recommended the
filing of a charge under section 753.3 of the Criminal Code. In its decision,
the PBC noted that there was sufficient information in the record for it to
make a well-informed decision, even without holding a hearing. The PBC
considered the applicant’s criminal history, her psychiatric and psychological
assessments, the comments of the applicant’s case management team and parole
supervisor, the applicant’s behaviour since the beginning of the community
supervision, the applicant’s submissions and her post-suspension interview. Despite
the case management team’s recommendation that the suspension be cancelled, the
PBC found that the applicant’s behaviour over the past months demonstrated that
she knowingly breached her conditions and that she presented a high risk of
recidivism, and as a result the PBC did not cancel the suspension and instead
recommended the filing of a criminal charge.
II.
Issues and standard of review
[6]
This case raises the following issues:
1. Is this application moot? If so, should
the Court exercise its discretion to hear the matter?
2. If so, did the PBC breach procedural
fairness and the principles of natural justice by refusing to hear the
applicant viva voce?
[7]
Questions of procedural fairness are reviewable
on a standard of correctness (Dunsmuir v New Brunswick, 2008 SCC 9; Canada
(Citizenship and Immigration) v Khosa, 2009 SCC 12).
III.
Analysis
A.
Mootness of the application
[8]
The respondent submits that the application has
been rendered moot. Indeed, recent documents support this claim because the
applicant was released and her LTSO conditions, which are not part of this
judicial review, were determined by the most recent decision of the PBC, dated
January 16, 2015. I share this view. As the Supreme Court of Canada pointed out
in Borowski v Canada (Attorney General), [1989] 1 S.C.R. 342 [Borowski],
if, subsequent to the introduction of the action or proceeding, events occur
which affect the relationship of the parties so that no present live
controversy exists which affects the rights of the parties, the case is said to
be moot.
[9]
Such is the case here, as the Court cannot
provide any remedy. Should the Court exercise its discretion to hear the matter?
I believe it should, in accordance with the principles set out in Borowski
(see also Kippax v Canada (Citizenship and Immigration), 2014 FC 429 at
para 7). Indeed, the questions raised in this matter will continue to be raised
during the upcoming reviews by the PBC of the conditions of supervision, or, if
necessary, during a review subsequent to a suspension of parole, both for the
applicant and for other individuals in similar situations. In this regard, the
Supreme Court in Borowski affirmed that:
[A]n expenditure of judicial resources is
considered warranted in cases which although moot are of a recurring nature but
brief duration. In order to ensure that an important question which might
independently evade review be heard by the court, the mootness doctrine is not
applied strictly. [at p. 360]
B.
Did the PBC breach procedural fairness by
refusing to hear the applicant viva
voce?
[10]
With respect to the holding of a hearing, a
person subject to a long term supervision order is deemed to be an offender
under the Act (section 99.1 of the Act). Subsections 140(1) and (2) of the Act
set out the circumstances under which the PBC must hold a hearing and those
under which it has discretion to decide whether to hold a hearing:
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140. (1) The Board shall conduct the review of
the case of an offender by way of a hearing, conducted in whichever of the
two official languages of Canada is requested by the offender, unless the
offender waives the right to a hearing in writing or refuses to attend the
hearing, in the following classes of cases:
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140. (1) La Commission tient une audience, dans la langue officielle
du Canada que choisit le délinquant, dans les cas suivants, sauf si le
délinquant a renoncé par écrit à son droit à une audience ou refuse d’être
présent :
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(a) the
first review for day parole pursuant to subsection 122(1), except in respect
of an offender serving a sentence of less than two years;
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a) le premier examen du cas qui suit la demande de semi-liberté
présentée en vertu du paragraphe 122(1), sauf dans le cas d’une peine
d’emprisonnement de moins de deux ans;
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(b) the
first review for full parole under subsection 123(1) and subsequent reviews
under subsection 123(5) or (5.1);
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b) l’examen prévu au paragraphe 123(1) et chaque réexamen prévu en
vertu des paragraphes 123(5) et (5.1);
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(c) a
review conducted pursuant to section 129 or subsection 130(1) or 131(1);
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c) les examens ou réexamens prévus à l’article 129 et aux
paragraphes 130(1) et 131(1);
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(d) a
review following a cancellation of parole; and
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d) les examens qui suivent l’annulation de la libération
conditionnelle;
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(e) any
review of a class specified in the regulations.
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e) les autres examens prévus par règlement.
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(2) The Board may
elect to conduct a review of the case of an offender by way of a hearing in
any case not referred to in subsection (1).
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(2) La Commission
peut décider de tenir une audience dans les autres cas non visés au
paragraphe (1).
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[11]
Prior to the legislative amendments brought
about by section 527 of the Jobs, Growth and Long-term Prosperity Act, SC
2012, c 19, paragraph 140(1)(d) of the Act read as follows:
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(d) a
review following a suspension, cancellation, termination or revocation of
parole or following a suspension, termination or revocation of statutory
release; and
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d) les examens qui suivent, le cas échéant, la suspension,
l’annulation, la cessation ou la révocation de la libération conditionnelle
ou d’office;
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[12]
Accordingly, until 2012, the PBC was required to
hold a hearing during a review following a suspension of parole. Since December
2012, in accordance with subsection 140(2) of the Act, the PBC may decide to
hold a hearing during a review following a suspension of parole, but it is not
obliged to do so.
[13]
Given that the applicant did not file a notice
of constitutional question, the Court cannot rule on either the validity of
subsection 140(2), or the validity of the legislative amendments at paragraph
140(1)(d) of the Act (for an analysis of this subject, see Way c
Commission des libérations conditionnelles du Canada, 2014 QCCS 4193).
However, the Court can examine the exercise of discretion by the PBC, which
decided in this case not to grant the applicant a viva voce hearing.
[14]
The Court must therefore determine whether this
was one of the circumstances in which the PBC could adhere to the principles of
procedural fairness by making its decision on the basis of the applicant’s
written submissions rather than doing so following a hearing.
[15]
The principles of procedural fairness that
govern the exercise of discretion were developed in Baker v Canada (Minister
of Citizenship and Immigration), [1999] 2 S.C.R. 817 [Baker]. A
non-exhaustive list of five factors to assist in determining the nature of the
duty of procedural fairness is set out in Baker. The first factor is the
nature of the decision being made, namely, the closeness of the administrative
process to the judicial process in the process provided for, the function of
the decision-maker and the determinations that must be made to reach a decision
(Baker at para 23). The second factor is the nature of the
statutory scheme, namely, the role of the particular decision within the
statutory scheme, including, for example, appeal procedures or opportunities to
submit further requests (Baker at para 24). The third factor is the importance
of the decision to the individual or individuals affected, namely, the extent
of the impact of the decision on the lives of those persons (Baker au
para 25). The fourth factor regards the legitimate expectations as to the
procedure to be followed or result (Baker at para 26). The fifth factor
is the choice of procedure made by the agency itself, taking into account the expertise
of the agency and what the statutes provides to the decision-maker in terms of
choosing its own procedures (Baker au para 27).
[16]
In this case, it is true that the PBC acts in
neither a judicial nor a quasi-judicial manner (Mooring v Canada (National
Parole Board), [1996] 1 S.C.R. 75 at paras 25-26) and that subsection 140(2)
of the Act provides the PBC with the discretion decide whether to hold a
hearing. However, greater procedural protections are required as there is no
appeals process for persons subject to a long-term supervision order and the decision
is final (sections 99.1 and 147 of the Act).
[17]
The most significant criterion in this case is
the importance of the decision to the person affected. The Supreme Court in Baker,
wrote “[t]he more important the decision is to the
lives of those affected and the greater its impact on that person or those
persons, the more stringent the procedural protections that will be mandated”
(at para 25). In this case, not only was the applicant incarcerated following
the suspension of an LTSO, the PBC also recommended that a charge be filed
under section 753.3 of the Criminal Code. The suspension of the
long-term supervision and ensuing incarceration amount to a curtailment of the
applicant’s residual liberty. That decision constitutes a significant factor
affecting the content of the duty of procedural fairness owed the applicant by the
PBC. It is an important factor that the PBC must take into account in deciding
whether to hear viva voce testimony.
[18]
As Justice Wilson held in Singh v Minister of
Employment and Immigration, [1985] 1 S.C.R. 177, where a decision will have an
impact on the rights set out in section 7 of the Canadian Charter of Rights
and Freedoms, such as the right to liberty, a hearing will generally be
required:
If "the
right to life, liberty and security of the person" is properly construed
as relating only to matters such as death, physical liberty and physical
punishment, it would seem on the surface at least that these are matters of
such fundamental importance that procedural fairness would invariably require
an oral hearing. I am prepared, nevertheless, to accept for present purposes
that written submissions may be an adequate substitute for an oral hearing in
appropriate circumstances. (at para 58)
[19]
In addition, where the assessment of physical or
mental capacities may have an impact on the type of conditions to be imposed, a
hearing would be appropriate. Here, the Correctional Service’s community mental
health team, as well as the staff member supervising her, raised concerns about
the applicant’s cognitive abilities and intellectual limitations. Meeting with the
applicant would have certainly allowed for an assessment of the grounds of the
staff’s concerns, in addition to hearing the applicant’s explanations regarding
the events leading up to the suspension, a decision which significantly
restricted her residual liberty.
[20]
To be sure, the nature of the duty of procedural
fairness is flexible and depends on the circumstances. A hearing will not be
required in every case. However, the factors set out in Baker should not
remain in the abstract. They must be examined in each case in order to ensure
that administrative decisions made are adapted to the type of decision and
institutional context.
[21]
In this case, the duty of procedural fairness
was particularly onerous given that, as the applicant pointed out, she was
subject to highly restrictive constraints during her re-admissions (in a maximum
security penitentiary, in solitary confinement 23 hours a day, with nothing in
her cell but the clothes on her back).
[22]
In short, I am of the view that in the
circumstances of this case, in particular the questions surrounding the
applicant’s capacities, the recommendations of the case management team and
parole supervisor that the suspension be cancelled, and the significant impact
to the applicant of the decision, not only not to cancel the suspension, but to
recommend a criminal charge, the PBC should have held an in-person hearing. The
submissions made by the applicant’s counsel and by her case management team
showed that the applicant may have been suffering from a psychiatric or
psychological problem, which could obviously have an effect on the decision of the
PBC and on the conditions to be imposed. In such circumstances, the PBC lacked
sufficient, reliable and convincing information to base its decision on the
record.
[23]
For these reasons, the application for judicial
review is allowed. The Court declares that the decision, dated January 31, 2014,
breached the principles of procedural fairness.
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