Docket: T-2174-15
Citation:
2016 FC 663
Ottawa, Ontario, June 14, 2016
PRESENT: The
Honourable Mr. Justice Manson
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BETWEEN:
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JAMES WILLIAM ROBERTSON
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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 a judicial review of a Parole Board of
Canada [the Board] decision denying the Applicant’s request to be permanently
relieved of the international travel restriction imposed by paragraph 161(1)(b)
of the Corrections and Conditional Release Regulations, SOR /92-620 [CCRR],
and denying his fifth request for travel to the United Stated in 2015.
I.
Background
[2]
On November 7, 2003, the Applicant, Mr. James
Robertson, was convicted of several sexual offences against children, which
took place over the span of two decades (between 1965 and 1976, and 1983 and
1988). He was sentenced to 16 years, and served a further five years
imprisonment beyond the 11 years he spent in pre-trial custody. The Applicant
has always maintained his innocence.
[3]
The sentencing judge imposed a 10-year Long-Term
Supervision Order [LTSO] on the Applicant pursuant to section 753.1 of the Criminal
Code, RSC 1985, c C-46, which expires on October 9, 2022. The Applicant is
also subject to special conditions, including avoiding any male or female
children under the age of 18 unless accompanied by an adult who knows his
criminal history, and reporting all intimate sexual and non-sexual
relationships with females who have parental responsibility for children under
age 18.
[4]
On March 31, 2010, a few months following his
release from incarceration, the Applicant fled to his home in California, USA,
in violation of his LTSO. He remained Unlawfully at Large [UAL] until December
2012, when he was arrested and extradited back to Canada.
[5]
In August 2013, the Applicant applied to the
Board for permission to return to the United States. Upon the recommendation of
his Correctional Service of Canada [CSC] Case Management Team [CMT], the Board
refused his request on September 30, 2013, citing the Applicant’s apparent lack
of appreciation for the seriousness of his decision to be UAL.
[6]
The Board granted the Applicant’s six subsequent
requests for travel to the United States in 2014 and 2015, all of which were
supported by his CMT and occurred without incident.
[7]
On August 17, 2015, the Applicant applied to the
Board for permanent relief from the international travel restriction prescribed
by subsection 161(1)(b) of the CCRR, and alternatively, for temporary
relief to return to the United States from December 19, 2015 to January 3,
2016.
[8]
The Applicant’s CMT released an Assessment for
Decision [CMT Assessment] on October 8, 2015, supporting his request for relief
from compliance with the statutory condition of his LTSO requiring him to
remain at all times in Canada. The CMT also recommended that the Applicant be
allowed to travel to the United States for the dates requested. The CMT Assessment
concludes:
Taking into consideration the circumstance
of the subject’s offending, absence of offending since 1988, compliance with
his LTSO (since March 2013), and his motivation to build credibility to
demonstrate he has safely reintegrated into the community and no longer requires
an LTSO, this writer assesses Mr. Robertson’s risk as manageable with the
removal of the general condition to remain at all times in Canada as well as on
another trip to his residence in the U.S.A. Based on Mr. Robertson’s positive
attitude towards supervision and his performance to date, this writer is of the
opinion that the community will not be put at undue risk should the noted
general condition be removed or the requested travel be approved.
[9]
Two psychological reports provided to CSC are
relevant to the CMT Assessment and the Board’s subsequent decision:
- The report of
Dr. Heather Scott, provided to CSC on April 2, 2014, indicated the
Applicant’s risk, previously assessed as moderate for violent and sexual
reoffending, had not changed significantly from the previous psychological
assessment. Dr. Scott noted the Applicant continues to lack insight into
the offences and the impact of his crimes. Though Dr. Scott amended this
Psychological Report on July 16, 2014, this recommendation remained
unchanged.
- The report of
Dr. Donald Salmon, the Applicant’s treating psychologist who saw him nine
times over the span of two years, dated June 26, 2015, notes “Mr. Robertson’s reintegration into the community has
gone well and there are no current concerns in this area. His offences are
historical and his current dynamic risk is low”. Dr. Salmon also
discussed that while the Applicant denies his offences, he is cognizant of
the public perception of his behavior, and “is
very careful about the type of situations he places himself in”.
[10]
On December 2, 2015, the Board denied the
Applicant’s request to vary or permanently relieve him of the international
travel restriction in paragraph 161(1)(b) of the CCRR [the Decision].
[11]
The Board noted it had reviewed the Applicant’s
file, the recommendation in the CMT Assessment and the Applicant’s own
submissions, and concluded it would be taking no action on the request. The
decision states:
It is clear that when you are out of the
country you cannot benefit from the normal monitoring that is provided by the
parole supervision process. In your case as an LTSO it is particularly
important that you be subjected to such monitoring. In fact the Judge who
convicted you of your crimes indicated that the reason for imposing a long-term
offender designation on you was that the threat that you continued to present
to the community could only be reduced to an acceptable level as long as you
were supervised… [O]ne of the reasons that she did not find you to be a
Dangerous Offender and sentence you to indeterminate period of imprisonment was
the level of supervision inherent in a long-term supervision order. This level
of supervision requires the Board review the circumstances of each one of your
proposed absences.
[12]
The Board also took no action on the Applicant’s
request to visit the United States for the specific dates requested on the
basis that:
[a]lthough when considered one by one, your
risk on each of the trips this year did not present individually as undue, when
the cumulative absences are considered, your risk has become undue. A request
by an offender to leave Canada is an exception to the general rule that he or
she must remain in Canada. It is even more so in the case of an individual
subject to an LTSO. At some point the exceptions begin to overtake the rule
itself and in the Board’s view this has happened in your case.
[13]
The Board determined there would be undue risk
in granting the Applicant a fifth trip to the United States in 2015 given the
Applicant’s history on release, which involved his fleeing to the United States;
his moderate risk of reoffending; his adamant denial of having committed any
crimes; and his lack of insight into the harm he has caused.
II.
Issues
[14]
The issues are:
- Did the Board
fetter its discretion?
- Is the Board’s Decision reasonable?
III.
Standard of Review
[15]
Whether the Board fettered its discretion,
although “sitting uncomfortably” with the
standard of review analysis set out in Dunsmuir v New Brunswick, 2008
SCC 9, is reviewed on the standard of reasonableness. As held by the Federal
Court of Appeal in Stemijon Investments Ltd v Canada (Attorney General),
2011 FCA 299 at paras 22-25, a decision that is the product of a fettered
discretion is per se an unreasonable decision.
[16]
Substantive review of the Board’s decision is
also reviewed on the reasonableness standard: the issue concerns the exercise
of the Board’s discretion in its highly specialized field of expertise, to
which the Court should show deference (Latimer v Canada (Attorney General),
2014 FC 886 at para 18 [Latimer]; Hurdle v Canada (Attorney General),
2011 FC 599 at para 11).
IV.
Analysis
[17]
The relevant provisions of the Corrections
and Conditional Release Act, SC 1992, c 20 [CCRA] and CCRR
are attached as Annex A.
A.
Preliminary Issue
[18]
As a preliminary matter, I do not find the
Respondent’s behaviour warrants a finding that it acted contemptuously toward
the judicial system. The Applicant’s request that this application be granted
solely on that basis cannot succeed.
[19]
The Applicant alleges the Respondent showed
contempt for the judicial system in not complying with the Applicant’s Rule 317
request for the record of materials before the Board “relevant
to the imposition of the maintenance of an international travel restriction”.
The Board filed five volumes, consisting of 1550 pages of material with no
indexing, table of contents, or indication of the materials used in making the
Decision to take no action.
[20]
While it would have been preferable that the
Respondent at the very least index and paginate the Record, the Applicant’s
request was sufficiently broad in scope to convey that the material before the
Board in making its decision should be provided. A judicial review application,
subject to limited exceptions, is to be conducted on the basis of the materials
before the federal decision-maker whose decision is being reviewed. As well,
the CMT Assessment recommended that it be read in conjunction with a variety of
materials, contained within the Certified Tribunal Record [CTR]. There is no
onus on the Board to selectively provide the most relevant or important
documents.
B.
Did the Board fetter the discretion provided by
subsection 134.1(4)(a) of the CCRA?
[21]
Subsection 134.1(1) of the CCRA provides
that subject to subsection (4), every offender supervised by a LTSO is subject
to the conditions prescribed by subsection 161(1) of the CCRR, with such
modifications as the circumstances require. Subsection 134.1(4)(a) of the CCRA
provides relief from these conditions, stating that:
The Board may, in accordance with the
regulations, at any time during the long-term supervision of an offender,
(a) in respect of conditions referred
to in subsection (1), relieve the offender from compliance with any such
condition or vary the application to the offender of any such condition.
[22]
The Applicant submits this suggests Parliament
clearly intended that the Board have broad discretion to relieve offenders of
LTSO conditions in subsection 161(1) of the CCRR, as is apparent from:
- the lack of any
language qualifying that discretion, such as specified temporal limits in
the legislation, that are present elsewhere in the CCRA;
- the express
discretion and authority granted by the provision to vary the conditions
or relieve an offender from them entirely;
- this Court’s
consistent reaffirmation of the Board’s broad discretion under subsection
134.1(4)(a) of the CCRA.
[23]
The Applicant also alleges that the Board relied
on an outdated policy. The Policy in place provides that the Board is to
consider “all risk relevant information” – the
most recent risk assessment being that of Dr. Salmon, which states the
Applicant is a “low risk” to reoffend. The
Board, though aware of this assessment, did not refer to or consider this
opinion in denying the Applicant’s requests for international travel.
[24]
There is no dispute that the Board is granted
broad discretion under subsection 134.1(4)(a) of the CCRA to relieve
offenders of compliance with the conditions set out in subsection 161(1) of the
CCRR. It is also well established that Policy manuals are not law and
are not binding on the decision-maker. They are however useful tools for
guiding consistent and principled decision-making, and a decision contrary to
adopted policies is suggestive it may have been an unreasonable exercise of
delegated power (Latimer, above, at para 34 citing Baker v Canada
(Minister of Citizenship & Immigration), [1999] 2 S.C.R. 817 at para 72).
[25]
I disagree with the Applicant: there is nothing
in the Board’s Decision to indicate it improperly applied an outdated Policy,
acted contrary to the current Policy, or only relied on the Policy document in
rendering its decision, without appreciation for the discretion afforded it
under subsection 134.1(4)(a) of the CCRA.
[26]
Whether or not the three phrases from the
Decision that the Applicant alleges stem from a previous Policy are indeed so,
the impugned phrases simply set out the applicable principles and
considerations at play. There is nothing improper in the Board outlining the
condition that an offender remain in Canada, or that an offender may request a
temporary exemption. As well, though the Decision states that “Board members will take into account any factor that is
relevant in determining whether the travel might result in an increase in the
offender’s risk to society”, without specifically referencing “including the Parole Officer’s overall assessment and
recommendation”, as stated in paragraph 12 of Chapter 7.1 of the current
Policy, it is evident that the Board considered the CMT Assessment and
recommendation in making its determination.
[27]
As well, there is no support for the Applicant’s
assertion that the Board did not consider his request in light of the
particular facts of his case. The Board discussed the nature of the Applicant’s
criminal history, his progress on previous travel, his reintegration, purpose
and details of the travel, and the consistency of the travel with the
Applicant’s correctional plan – factors set out in paragraph 17 of Chapter 7.1
of the current Policy. There is nothing to suggest the Board concluded it was
bound by policy in denying the Applicant’s request for permanent relief. The
Board also considered other factors, including those the sentencing judge took
into account in imposing a LTSO.
C.
Is the Board’s Decision reasonable?
[28]
The Applicant argues there is no evidence or new
information supporting the Board’s finding that permanently lifting or varying
the Applicant’s international travel restriction will result in an increased or
undue risk to society. He claims the evidence, including the CMT Assessment,
suggested the opposite. CSC and the Board approved the Applicant’s travel on
six prior occasions upon considering his personal circumstances; the historical
nature of the convictions; the limited class of persons claiming abuse; lack of
any other allegations or criminal activity; his openness in providing details
of the date, mode, time and purpose of each travel; and the active involvement
of his supervisor. Each of these visits was without incident.
[29]
In denying the Applicant’s request for temporary
relief of the condition restricting international travel, the Applicant argues
that the Board provided no justification for its conclusion that “when the cumulative absences are considered, [the
Applicant’s] risk has become undue.”
[30]
The Board is statutorily mandated by subsection
101(a) of the CCRA to consider evidence demonstrating degree of risk,
yet the Applicant claims the Board ignored the most recent psychological
assessment from Dr. Salmon, dated June 26, 2015, that assessed the Applicant’s
risk to reoffend as low or low to moderate.
[31]
As well, under subsection 101(c) of the CCRA,
the Board is required to maintain only such restrictions “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”. Other conditions set out in subsections 161(1)(a)
and 161(1)(g)(iv) of the CCRR still require the Applicant to advise his
supervisor of all travel plans and whereabouts.
[32]
In my view, the Board’s decision not to
permanently remove or vary the condition under subsection 161(1)(b) of the CCRR,
notwithstanding its discretion to do so, is reasonable, and is justified and
consistent with the law and Board policy.
[33]
It is apparent that the Board was aware of the
positive aspects of the Applicant’s case, including the Applicant’s previous
successful trips outside of Canada, and the positive recommendation of the CMT
Assessment. The Board is the expert body statutorily given the task of making
such decisions, and it is not bound by the CMT Assessment recommending that the
travel restrictions be lifted.
[34]
Though the Applicant rightly points out that the
Board is required under section 101(a) of the CCRA to consider evidence
demonstrating his degree of risk, I also note that provision requires the Board
to consider:
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.
[35]
The Board did just that. The reasons and
recommendations of the sentencing judge were discussed at length in the
Decision and formed part of the Board’s ultimate justification for its denial
of the Applicant’s request. The Board also considered the nature and gravity of
the offences and the Applicant’s lack of insight into his crimes. Such
considerations are consistent with the Board’s mandate under the CCRA
and CCRR, and its duty to consider as paramount “the
protection of society” in making such decisions (section 100.1 of the CCRA).
[36]
I find no support for the Applicant’s assertion
that the Decision is based on no evidence. In denying the Applicant’s temporary
return to the United States, the Board’s decision was based on the fact he had
travelled to the United States already four times that year, and that the
sentencing judge had determined the Applicant was an offender whose threat to
society could be reduced to an acceptable level, so long as he was supervised
in the community – something that cannot be done while he is outside Canada.
The Board explained the cumulative absences of the Applicant make his risk
undue, and that a request to leave Canada is an exception.
[37]
As well, I am not satisfied that the Board
failed to consider the June 26, 2015 psychological report of Dr. Salmon. The
Board did mention Dr. Salmon’s report when discussing in detail the Applicant’s
August 17, 2015 submission, which reviews Dr. Salmon’s psychological notes.
Moreover, the CMT Assessment directed that the Board consider a variety of
documents, including the “Psychological Activity Notes
dated 2015-06-26” (Dr. Salmon), as well as the amended “Psychological Risk Assessment dated 2014-07-16” (Dr.
Scott).
[38]
The reports appear to have been provided for
different reasons. Dr. Scott’s report was intended to provide a psychological
opinion “in order to assist with the parole
decision-making process”. Though Dr. Salmon’s Psychological Activity
Notes are more recent they were provided to explain the discontinuance of their
sessions – a special condition of the Applicant’s release subsequently removed
on the strength of this opinion in September 2015.
[39]
While arguably the opinion of a psychologist who
underwent nine sessions with the Applicant over the span of two years is of
greater probative value than a more dated report completed in the course of a
number of hours, the Court’s role is not to reweigh evidence upon judicial
review and the Board’s expertise in these matters cannot be discounted. As
well, I do not find that the Board’s lack of specific reliance on and reference
to Dr. Salmon’s report renders the entire Decision sufficiently unreasonable to
warrant granting this application. The psychological assessment was but one of
many factors the Board considered in denying the Applicant’s requests.
[40]
The Board set out the rationale for its Decision
in a transparent and intelligible manner, and the outcome is supported and
falls within the range of possible, acceptable outcomes on the facts and the
law.
[41]
The Respondent requests lump sum costs in the
amount of $2500.00. Based on the evidence and arguments made before me, I award
costs in the amount of $1500.00.
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