Condo v. Canada (Attorney General), 2005 FCA 391

Date: 20051122

Docket: A-244-05

Citation: 2005 FCA 391

CORAM:        LINDENJ.A.

                        NADON J.A.

                        MALONE J.A.

BETWEEN:

RICHARD CONDO

Appellant

and

THE ATTORNEY GENERAL OF CANADA

Respondent

Heard at Ottawa, Ontario, on September 6, 2005.

Judgment delivered at Ottawa, November 22, 2005.

REASONS FOR JUDGMENT BY:                                                                                NADON J.A.

CONCURRED IN BY:                                                                                                   LINDEN J.A.

                                                                                                                                    MALONE J.A.

Date: 20051122

Docket: A-244-05

Citation: 2005 FCA 391

CORAM:        LINDENJ.A.

                        NADON J.A.              

                        MALONE J.A.

BETWEEN:

RICHARD CONDO

Appellant

and

THE ATTORNEY GENERAL OF CANADA

Respondent

REASONS FOR JUDGMENT

NADON J.A.

[1]                This is an appeal from an Order of de Montigny J. of the Federal Court, dated May 30, 2005, which dismissed the appellant's judicial review application of a decision of the Appeal Division of the National Parole Board (the "Appeal Division").

[2]                The Appeal Division, in a decision dated January 17, 2005, confirmed a decision of the National Parole Board (the "Board"), dated September 30, 2004, which concluded that the appellant, an inmate in a federal penitentiary, should be detained until the expiry of his sentence.

[3]                The appellant, who is now 42 years of age, is presently serving a five-year concurrent sentence at Drummond Institution for, inter alia, the May 31, 1999, kidnapping and brutal assault of his former wife who, as a result, was left with a fractured cheekbone, broken jaw and severe bruising in the face.

[4]                By reason of subsection 127(3) of the Corrections and Conditional Release Act, S.C. 1992, c. 20 (the "Act"), the appellant was entitled to statutory release after serving two-thirds of his sentence. Hence, he was entitled to be released as of November 24, 2004.

[5]                However, in early April 2004, the acting warden of Drummond Institution, following a review of the appellant's case under subsection 129(1) of the Act, determined that there were reasonable grounds to believe that the appellant, prior to the expiry of his sentence, was likely to commit an offence causing serious harm to another person. As a result, the acting warden, on behalf of the Correctional Services of Canada (the "CSC"), pursuant to subparagraph 129(2)(a)(i) of the Act, referred the matter to the Board for determination of the issue.

[6]                On September 30, 2004, pursuant to paragraph 140(1)(c) of the Act, the Board held a detention hearing into the appellant's case. After determining that the referral by the CSC had been properly made, the Board went on to conclude that there was sufficient information to make an order of detention beyond the appellant's statutory release date. In so concluding, the Board declared itself satisfied that the appellant was likely to commit an offence causing serious harm to another person prior to the expiry of his sentence.

[7]                Pursuant to subsection 147(1) of the Act, the appellant filed an appeal from the Board's decision to the Appeal Division. On January 17, 2005, the Appeal Division dismissed the appellant's appeal and confirmed the Board's decision. In the Appeal Division's opinion, it could not be said that the Board's decision was unreasonable.

[8]                Finally, on May 30, 2005, de Montigny J. dismissed the applicant's judicial review application. In making this Order, the learned Judge indicated that he was not persuaded that there were any grounds for interfering with the Appeal Division's decision and that he was satisfied that both the Board and the Appeal Division had given proper consideration to all of the relevant factors, including those expressly set out at subsection 132(1) of the Act. The judge then concluded that the Appeal Division's decision could not be characterized as being patently unreasonable.

[9]                The relevant provisions of the Act are reproduced below:

[10]            The issues before us in this appeal are the following:

1.       Did the application Judge err in holding that the patently unreasonable standard of review was the standard applicable to reviews of decisions rendered by the Appeal Division?

2.       Did the Judge err in dismissing the appellant's judicial review application and, in particular, did he err (i) with respect to the Board's finding that it had jurisdiction to hear and determine the referral of the applicant's case by the CSC and, (ii) did he err in holding that there was no basis to interfere with the Appeal Division's decision that the Board's conclusion that the appellant was likely to commit an offence causing serious harm to another person before the expiry of his sentence, was not unreasonable?

3.       If the Judge made a reviewable error, is the appellant entitled to a writ of prohibition preventing the Board from holding a detention hearing, as opposed to an order setting aside the Appeal Division's decision and sending the matter back for redetermination?

[11]            For the reasons that follow, I need not address the appellant's submissions that the Judge erred in applying the patently unreasonable standard of review to the Appeal Division's decision. Considering that none of the issues give rise to the determination of pure questions of law, but rather to questions of mixed fact and law, the applicable standard is either that of the patently unreasonable decision or that of the unreasonable decision. It is my view that, irrespective of which of these two standards is applicable, there is simply no basis whatsoever to intervene in the present matter.

[12]            Before turning to the remaining issues, a few words concerning the relevant legislative scheme will be helpful to a proper understanding of these issues.

[13]            The Board is an independent administrative tribunal created pursuant to the Act, whose main responsibility is in regard to conditional release. Under section 127 of the Act, an offender is generally entitled to statutory release after serving two-thirds of his or her sentence in detention. The period between that date and the full term of his or her sentence, called the warrant expiry date, is often referred to as the statutory release period. During this period, an offender may serve the remainder of his or her sentence "at large" rather than in detention. While the Board does not make decisions with respect to the statutory release of offenders, it has exclusive jurisdiction and absolute discretion to terminate or revoke the statutory release of an offender (see paragraph 107(1)(b) of the Act).

[14]            Under sub-section 129(1) of the Act, the Commissioner of Corrections is charged with having a review conducted by the CSC before the statutory release date of an offender who is serving a sentence of two years or more that includes a sentence imposed for an offence set out in Schedules I or II of the Act. The offences set out in these Schedules are the most serious offences and include those committed by the appellant for which he is presently serving his sentence.

[15]            Where the CSC or the Commissioner believe on reasonable grounds that such an offender is likely, before the expiry of his or her sentence, i.e. before the warrant expiry date, to commit an offence causing death or serious harm to another person, the case shall be referred to the Board no later than six months before the offender's statutory release date.

[16]            Where a case has been referred to the Board, it shall review the matter and may order that the offender not be released from imprisonment before the expiry of his or her sentence according to law, where in its view, he or she is likely, if released, to commit an offence causing the death of or serious harm to another person before the expiry of the sentence (see paragraph 130(3)(a) of the Act). In making its determination, the Board shall take into consideration any factor that is relevant, including those expressly set out in section 132 of the Act.

[17]            In Cartier v. Canada (Attorney General), [2003] 2 F.C. 317, Décary J.A., writing for this Court, explained under what circumstances the Appeal Division could interfere with a decision of the Board. After a careful review of section 147 of the Act, he concluded that the Appeal Division could only interfere if the Board made an error of fact or law that was unreasonable. At paragraphs 8 to 10 of his Reasons, Décary J.A. writes:

8]         Section 147(5)(a) appears to indicate that Parliament intended to give priority to the Board's decision, in short to deny statutory release once that decision can reasonably be supported in law and fact. The Board is entitled to err, if the error is reasonable. The Appeal Division only intervenes if the error of law or fact is unreasonable. I would be inclined to think that an error of law by the Board as to the extent to which it must be "satisfied" of the risk of release - an error which is alleged in the case at bar - is an unreasonable error by definition as it affects the Board's very function.

[9]         If the applicable standard of review is that of reasonableness when the Appeal Division reverses the Board's decision, it seems unlikely that Parliament intended the standard to be different when the Appeal Division affirms it. I feel that, though awkwardly, Parliament in s. 147(5)(a) was only ensuring that the Appeal Division would at all times be guided by the standard of reasonableness.

[10]       The unaccustomed situation in which the Appeal Division finds itself means caution is necessary in applying the usual rules of administrative law. The judge in theory has an application for judicial review from the Appeal Division's decision before him, but when the latter has affirmed the Board's decision he is actually required ultimately to ensure that the Board's decision is lawful.

[18]            I now turn to the issue which arises from the Board's acceptance of jurisdiction in regard to the CSC's referral.

[19]            The appellant submits that the Board was without jurisdiction to hold a detention hearing because there was no rational basis for the referral. Specifically, he says that in making its determination, the Board made a number of errors, namely:

a)       The Board failed to consider the opinions of those correctional officers who were better acquainted with the appellant, having had more extensive exposure to him, and in considering only the official position of the CSC. As a result, according to the appellant, the Board failed to consider all relevant information before it.

b)       The Board failed to consider the fact that, prior to his arrival at Drummond Institution, he had never been referred to a detention hearing, nor had his offence ever been assessed as having caused serious harm to another person.

c)       The Board failed to consider that both Nancy Lévêsque, his parole officer at Donnacona, and Peter Slaughter, his parole officer at Bath Institution, had given opinions that he should not be referred to a detention hearing.

[20]            These submissions were rejected both by the Board and the Appeal Division. In the Board's opinion, the referral made by the CSC had been proper and, as a result, it had jurisdiction to hear the matter. Although different opinions had been given at different times by CSC officers as to whether the appellant should be detained beyond his statutory release date, there had not been, in the Board's view, any "formal" dissenting opinions supporting the appellant's position. Thus, in the circumstances, the Board concluded that the referral had been made by the CSC on a reasonable basis.

[21]            The Appeal Division supported the conclusion reached by the Board. In its view, there was sufficient relevant information to support the Board's conclusion that the referral had been reasonably made in accordance with subsection 129(2)(a)(i) of the Act. In reaching this conclusion, after making reference to the CSC's Detention Pre-Screening Recommendation dated March 17, 2004, and to the Assessment for Decision dated April 6, 2004, the Appeal Division made the following remarks at page 3 of its decision:

[...] It was evident from the file information that C.S.C. was of the view that the criteria for the detention referral had been met. In particular, C.S.C. indicated that you were currently serving a sentence for an offence set out in Schedule 1 (Aggravated Assault); that the commission of the offence caused serious physical harm to the victim, as contemplated by the legislation (fracture of left cheekbone, a fracture jaw and severe bruising of left eye, and plastic surgery and skeletal reconstruction were required); and that there were reasonable grounds to believe that you were likely to commit, prior to the expiration of your sentence, an offence causing death or serious harm to another person.

[22]            A reading of the Assessment for Decision shows beyond all doubt that the referral made by the CSC was made on a rational basis. The Assessment, which comprises 55 pages, reviews in depth the appellant's correctional history since 1980 and also examines his behaviour at the various federal institutions where he has been imprisoned since August 7, 2001, namely, Millhaven (from August 7, 2001), Warkworth (from December 21, 2001), Cowansville (from April 15, 2002), La Macaza (from September 27, 2002), Donnacona (from February 26, 2003) and, finally, Drummond (from December 3, 2003).

[23]            The Assessment then sets out, in great detail (from pages 25 to 55), the rationale of Drummond Institution's case management team, composed of Jacques Gauvreau, Marc Lanoie and Maryse Rioux, for referring the appellant's case to the Board and for recommending that detention be ordered.

[24]            I therefore fail to see how it can be argued that there was no rational basis for the referral to the Board.

[25]            I will now briefly deal with the appellant's submissions. Firstly, Peter Slaughter, the parole officer who would not have recommended his detention, is the CSC officer who presented the detention referral to the Board. In his presentation, Mr. Slaughter explained that the Assessment had been submitted by Ms. Rioux, a parole officer at Drummond Institution and a member of its case management team, and that it had been reviewed by the Institution's Unit Board before referral to the Board by the acting warden. In my view, it is irrelevant whether Mr. Slaughter agreed or not with the decision made by the case management team to recommend the appellant's detention, since the CSC, in accordance with subsection 129(2) of the Act, clearly made the recommendation on a rational basis and within the time frame established by the legislation.

[26]            Secondly, notwithstanding the fact that Ms. Nancy Lévêsque, the appellant's parole officer at Donnacona, was of the view that his case was not one that should be referred to the Board for detention, Ms. Lévêsque explained to the appellant during the course of a meeting with him on September 18, 2003, that she was not the person charged with the responsibility of assessing his case with a view to possibly referring it to the Board for a detention hearing and that that responsibility remained with the case management team which would have to make the Assessment prior to his statutory release.

[27]            Thirdly, with respect to the appellant's submissions to the effect that prior to his arrival at Drummond Institution he had never been identified as a possible referral for detention, I am of the view that they are without merit.

[28]            For reasons which need not be addressed, it appears that until the time the appellant arrived at Donnacona (in February 2003), his CSC records were premised on the fact he was not currently serving a sentence for a crime that had caused serious harm to a person, i.e. one of the necessary criteria for a detention referral. This premise was clearly contrary to the findings made by MacPhee J. of the Ontario Court of Justice who, in his decisions of April 14, 2000 and July 26, 2001, characterized the appellant's crime against his former wife as a serious personal injury offence. It is difficult to imagine how McPhee J. could have concluded otherwise.

[29]            In any event, in an Amendment to the appellant's Criminal Profile Report, dated January 6, 2004, Ms. Nancy Lévêsque indicated that the appellant was serving a sentence for a crime which had caused serious harm to a victim. Ms. Lévêsque's conclusion is as follows:

When proceedings are initiated or imposed for offences causing serious harm as defined by law, CSC understands that the offences committed caused serious harm to the victim; this amendment was written to illustrate the assessment of the serious harm criteria.

A review of the various documents on file and the very nature of the long-term offender's statement lead us to conclude that serious harm was caused to the victim, Ms. McGuire.

[30]            In my view, the appellant's submissions on this issue are untenable. The Appeal Division's conclusion that the Board's determination was entirely reasonable cannot, in my view, be faulted. Firstly, and there is no dispute on this question, the referral was made by the CSC within the time frame specified by the legislation, i.e. no later than six months before the appellant's statutory release date. Secondly, on the basis of the evidence, there was clearly a reasonable basis for the referral made by the CSC.

[31]            I now turn to the issue concerning the sufficiency of the evidence regarding the likelihood that the appellant would commit a serious offence causing harm to another person prior to the expiry of his sentence.

[32]            The appellant submits that both the Board and the Appeal Division made a number of errors of law which the Judge failed to consider in making his decision. Firstly, the appellant submits that the Board failed to limit its review to the relevant time frame, i.e. between November 24, 2004 (the statutory release date) and July 25, 2006 (the warrant expiry date).

[33]            Secondly, in the appellant's view, the Board, in effect, conducted a parole hearing as opposed to a detention hearing, in that it focussed mainly on the risk that he would re-offend generally and not on whether he would likely commit a serious offence causing harm to another person before the expiry of his sentence.

[34]            Thirdly, the appellant submits that the Board's decision was unreasonable in that it was not supported by relevant, reliable and persuasive information. In particular, he points to the fact that the Board failed to give proper weight to the only expert opinion before it on his risk of re-offending violently, namely, the opinion of Dr. Semrau found in his reports of April 20, 2001 and September 4, 2004 and, to a lesser extent, the opinion of psychologist Ms. Cindy Cyr as found in her report of January 16, 2004.

[35]            Lastly, the appellant submits that the Board failed to consider, pursuant to paragraph 101(d) of the Act, an order less restrictive than a detention order.

[36]            All of these submissions were made by the appellant before the Appeal Division and were dismissed. With respect to the relevant time frame, the Appeal Division concluded that it was clear that the Board was aware that its determination was in respect of the likelihood that the appellant would cause serious harm to another person prior to the expiry of his sentence. I have carefully read the Board's decision and I am entirely satisfied that not only was the Board aware that its determination pertained only to the period between the statutory release date and the warrant expiry date, but that the Board also directed its mind, in making its determination, to that period. Following its analysis of the appellant's case, the Board concluded its decision in the following terms (at page 14 of its Reasons):

Having given due consideration to all of the detention criteria, as set out in section 132 of the Corrections and Conditional Release Act, the Board is satisfied that you are likely to commit an offence causing serious harm prior to your warrant expiry date. Accordingly, you are hereby ordered detained.

[Emphasis added]

[37]            I have therefore not been persuaded that the Appeal Division's conclusion on this point is unreasonable.

[38]            With respect to the appellant's submission that the Board, in effect, conducted a parole hearing and not a detention hearing, the Appeal Division was satisfied that that was not the case. In its view, there could be no doubt that the Board had conducted a detention hearing and that, in particular, it had considered all relevant factors, including those that were set out expressly in section 132 of the Act.

[39]            On the evidence, it cannot be said, in my view, that the Appeal Division's conclusion is unreasonable.

[40]            The Appeal Division then addressed the appellant's submission that the Board had failed to give sufficient weight to the opinion of Dr. Semrau. The Appeal Division, at page 9 of its Reasons, dealt with that argument in the following terms:

We disagree with your arguments that the Board should have only relied on Dr. Semrau's reports, as he was the only expert who focussed on your risk to re-offend, violently causing serious harm or death. The Board has the discretion (as did Justice McPhee at your Dangerous Offender Hearing) to assess and weigh all relevant information, including various expert opinions, in arriving at its decision. Expert opinions are but one factor, amongst many, that the Board considers. While the Board serious considers expert opinions, it must arrive at its own independent conclusions on the risk you present, which it did in your case. We find that the Board properly exercised its discretion in assessing various expert opinions related to your risk to re-offend violently and we find no reason to intervene.

[41]            I should point out that the Board, commencing at page 10 of its Reasons, reviewed the various expert opinions, including those of Dr. Semrau and Ms.Cindy Cyr. At pages 11 and 12 of its Reasons, the Board stated:

Since 2003, you have refused to participate in assessments with Correctional Services of Canada psychologists. An exception to this is a report from Cindy Cyr which was completed in January 2004. She indicated that you expressed an unwillingness to participate in programs to address your contributing factors. She found you failed to accept responsibility for your actions and that you tended to shift blame to your victim. She supported a release on Statutory Release with residency. Regrettably, no actuarial measures were used in the assessment due to the fact that the assessor believed, because you were aboriginal, the actuarial measures were invalid. Empirical research clearly supports the use of these tools in assessments of risk. For this reason, the Board places less weight on this assessment.

The Spousal Assault Risk Assessment, completed in March 2003, concluded you were a high risk for future domestic violence.

The most recent information before the Board is a report dated September 2004, again commissioned by you, and completed by Dr. Semrau. He reported that in completing this updated assessment, he was provided with new information not available to him when he completed the 2001 report. Firstly, during the earlier assessment, he was not aware that you had previously perpetrated acts of violence against your current partner, Ms. Magas. He indicated some concern in this regard, "given that his release plans would almost certainly involve a continuation of that relationship". He opined the greatest risk remained in the area of spousal violence. He also opined that, relative to your previous interview with him, his overall impression of you this time was more negative in some respects. He proffered that your insight had decreased. He concluded that if you were to reside at a Community Based Residential Facility or a Community Correctional Centre, "... risk of violent behaviour on the part of Mr. Condo toward any person would be low ..." With respect to interventions to addressed your unresolved personal/emotional issues and outstanding criminogenic risk areas, he suggested you are not likely to be a good treatment candidate. The Board concurs with this view while noting your position that you believe you would benefit from counselling, but only from a therapist of your choice.

The Board then went on to state:

At the end of the day, the Board is left with clinical assessments of risk that range from "relatively low" to "very" or "extremely high". Also the Psychopathy Checklist - Revised scores differ significantly. Reports commissioned by you find your risk to be lowest.

The Board, being left with this inconsistency in professional and expert information, must assess and weigh each piece of evidence and draw its own conclusion regarding risk for future violence and more specifically of the likelihood for risk of future serious harm.

[42]            In my view, the Appeal Division made no error with respect to the weight to be given to the opinions of Dr. Semrau and Ms. Cyr. I have carefully examined the evidence, in particular, Dr. Semrau's two reports and Ms. Cyr's report of January 16, 2004, and I am satisfied that it was reasonably open to the Appeal Division to conclude as it did. In any event, I agree entirely with the Appeal Division that expert opinions, although relevant and important, cannot, in most cases, be determinative. They are a factor to be considered with all other relevant factors. In the end, the Board must assess the totality of the evidence and reach a conclusion.

[43]            In concluding, it must be remembered that Dr. Semrau was of the view that the appellant was a psychopath, which he defined as "individuals whose personalities and behaviour demonstrate a strong tendency to selfishness and taking personal advantage at the expense of others, for whom they show little care or attachment". He indicated that only the most disturbed one-third of individuals with antisocial personalities were classified as psychopaths. In his view, the appellant stood high on the psychopath ladder. He explained his view as follows:

This means that if one chose at random one hundred typical male prison inmates and ranked them in terms of their degree of psychopathy, he [the appellant] would stand in the 77^th position, with 76 inmates being less psychopathic and 23 inmates being more psychopathic out of the hundred.

[44]            Dr. Semrau concluded his first report by assessing at 25%, over the following ten years should the appellant be released immediately, the risk that he might commit a serious physical offence against another person. This is the specific part of Dr. Semrau's opinion on which the appellant relies for his submissions. As I have just indicated, the Board and the Appeal Division dealt with these submissions in a way which I have found to be without error. I would simply add, in support of the Board's point of view, that Dr. Semrau's opinion, like that of other experts in this field, is, to some extent, educated guesswork. In that regard, at page 11 of his first report, Dr. Semrau made the following remarks:

At the levels of both clinical practice and research there is great difficulty in devising reliable methods for estimating the future re-offence risk for violent offenders. There are a great many reasons for this including our incomplete understanding of the causation of violent offending, the difficulties in fitting the highly varied characteristics of individual offenders into a standardized framework for appraising their difficulties, the uncertain effects of treatment and supervision measures and the difficulties in knowing in advance the circumstances underwhich an offender might live, be supervised and treated if and when they are released into the community.

These problems are further aggravated by the clinical difficulties in knowing exactly what an offender is truly thinking and feeling in an assessment interview, with self-deception and intentional or unintentional deception of others being a pervasive problem. Even genuine good intentions and optimistic outlooks can be misleading due to the many distractions, stresses and temptations encountered in an offender's existence in the community.

Given all of these difficulties, it must be admitted that our estimation methodologies are necessarily crude and approximate and can at best provide ballpark estimates of re-offence risks.

[Emphasis added]

[45]            I am therefore of the view that the appellant's submission that the Board, and the Appeal Division, ought to have followed Dr. Semrau's recommendation, is simply without merit.

[46]            I now turn to the issue of whether there was sufficient relevant, reliable and persuasive information to support the Board's conclusion that the appellant ought to be detained until the expiry of his sentence. On this issue, the Appeal Division, at page 12 of its Reasons, concluded as follows:

[...] The written reasons [of the Board] are thorough in the review of the relevant factors of your case and clearly set out the basis for the Board's decision. The Board's conclusion that it was satisfied that you are likely to commit an offence causing serious harm before the expiration of your sentence according to law is reasonable and supported by relevant, reliable and persuasive information. [...]

[47]            In reaching this conclusion, the Appeal Division dismissed the appellant's contention that the Board had confined its assessment of his likelihood of causing serious harm to severe psychological damage. The Appeal Division observed that it was clear that the Board had serious concerns about the appellant's propensity to cause physical harm to others. In that regard, the Appeal Division pointed to the fact that the Board, in its written reasons, had summarized his violent history and the serious physical harm which he had caused to his victims.

[48]            The Appeal Division also stated that the Board's concerns regarding the safety of the appellant's current wife, his lawyer Ms. Magas, were reasonable. In that regard, the Board pointed to the fact that Dr. Semrau, in his report of September 4, 2004, had also expressed concerns regarding Ms. Magas' safety, should their relationship come to an end.

[49]            At paragraph 48 of his Memorandum of Fact and Law, the Attorney General lists 14 factors which, in his view, were considered by the Board in making its determination. I have carefully examined the Board's decision and find that the Attorney General has fairly set out the factors which the Board considered in a fair manner, namely:

48. [...]

i)          extensive and persistent pattern of violent offences, some with weapons, resulting in serious physical or psychological harm, or potential for harm to past victims [...];

ii)         series of other very serious charges or allegations not resulting in any convictions which came to light during the appellant's Dangerous Offender Hearing [...];

iii)        significant self-reported factors including past abusive and assaultive behaviour towards his current wife [...];

iv)       failure to address the main antecedents to his violent acting out, including unresolved childhood issues, repressed feelings, power and control issues, and anger management. [...];

v)        even though the psychological and psychiatric reports might have had divergent views of risk of recidivism, most of the professionals who assessed the appellant found that the appellant either closely approached or met the threshold ... of being a psychopath;

vi)       several psychological or psychiatric reports indicated that the appellant presented a high to extremely high risk of re-offence [...];

vii)      offence pattern based on control and exploitation for financial gain which appear to have continued with the appellant's current wife. [...];

viii)     substantial degree of indifference toward past offences and the consequences thereof as well as a lack of insight into and superficial remorse, minimization and rationalization and shifting of blame for past offences. [...];

ix)        inability to control violent impulses and noting that most serious offences were the result of impulsive reactions to circumstances;

x)         continued lack of credibility and regarding incredulous stories [...];

xi)        failure to cooperate with and antagonistic behaviour toward his CMT and its ability to manage his Correctional Plan, as well as antagonistic, intimidating, manipulative behaviour toward CSC staff and inmates;

xii)       Ms. Magas' previous failures to report to the CSC before the appellant's Dangerous Offender Hearing that the appellant had assaulted and threatened her. And, the complicating factor that since Ms. Magas is both his wife and his lawyer and therefore is unlikely to report future violence;

xiii)      pattern of escalation of violence and severity of harm to others in criminal offences including information of intimidation within the institutional setting, continued criminal offence pattern with his current wife; and

xiv)      lack of availability of supervisory based programs which might otherwise reduce the risk posed by the likelihood the appellant would commit further offences causing serious harm should he be released prior to the expiry of his sentence.

[50]            The appellant has invited us, as he invited the Appeal Division, to take a microscopic view of the matter. That approach is clearly not justified, since the Board and the Appeal Division must, in order to protect society, take a broader view of all of the information before it. Given the Board's thorough review of the appellant's case and given the factors which the Board took into account in making its determination, I am satisfied that the Appeal Division's decision is not one that should be interfered with.

[51]            One issue remains for determination, i.e. whether the Board ought to have made a less restrictive order.

[52]            The Board concluded that there were no supervision programs available in the community to adequately protect the public from the risk presented by the appellant. The Board went on to say that it did not believe that a community correctional centre or community-based residential facility could provide the type of supervision required to monitor the appellant's interactions with others. Hence, in the Board's view, an order of detention was required in the circumstances.

[53]            In dismissing the appellant's appeal, the Appeal Division formed the view that the detention order made by the Board was the least restrictive determination consistent with the protection of society. I am satisfied that the Appeal Division made no error in concluding as it did.

[54]            Subsection 132(1) provides that the Board is to consider all factors that are relevant in determining the likelihood that an offender may cause, inter alia, serious harm to another person before the expiry of his sentence, including those factors which are expressly enumerated therein. Paragraph 132(1)(d) is one of the factors expressly enumerated in the section, and it provides that the Board is to consider: "the availability of supervision programs that would offer adequate protection to the public from the risk the offender might otherwise present until the expiration of the offender's sentence according to law".

[55]            Before the Board was the appellant's Release Plan, pursuant to which he would reside with his wife Ms. Magas. This Release Plan is somewhat surprising, considering that Dr. Semrau was against it and that Mr. Justice MacPhee, in his decision of July 25, 2001, had concluded that it was not in the public interest for Mr. Condo and Ms. Magas to continue their relationship. At pages 74 and 75 of his decision, the learned Judge wrote:

Mr. Condo, this is a very delicate feature of this sentencing because I do not quite know what to make of the dynamic of your relationship with Dr. McGuire and Miss Magas. It is no longer in the public interest that those relationships continue. I say that because those relationships represent, in my view, the highest risk for Mr. Condo to re-offend, and while it may be in the interests of the parties to have a relationship, it is not in the public interest.

They are members of the public that deserve to be protected, even as against their own desires, their own wishes and their own interests. Particularly, the court feels quite strongly about a continued relationship between Miss Magas and Mr. Condo. That is contrary to the public interest in seeing this man restored to the community when that day arises. It is my take of the evidence that she has, over time, aided and abetted the worst tendencies of Mr. Condo to resist treatment and oversight. And I cannot be any clearer than that.

[56]            Not only did the Board refuse to go along with the appellant's Release Plan, it went further and concluded that there were presently no supervision programs in existence which could satisfactorily protect the public from the risk presented by the appellant.

[57]            The Board, after considering the whole of the evidence, concluded that partial integration of the appellant into the community, given that the protection of society constituted the paramount consideration, was not a realistic option. That conclusion, in my view, was fully open to the Board and I therefore cannot detect any error on the Board's part. Consequently, the Appeal Division did not err in refusing to intervene.

[58]            A consideration of the evidence in its totality leads to the inevitable conclusion that neither the Board's nor the Appeal Division's decision can be characterized as unreasonable. Whether or not the Judge below or this Court might have concluded otherwise, is irrelevant. The plain fact is that the decisions rendered by both divisions of the National Parole Board, on the evidence before them, are entirely reasonable.

[59]            One final point. In view of Mr. Justice MacPhee's remarks concerning the appellant's relationship with Ms. Magas and the fact that she was at the centre of some of the events that form the factual foundation to this appeal, I have serious doubts as to whether Ms. Magas should have appeared either before the Federal Court or before us on behalf of the appellant. I voiced this concern to Ms. Magas at the end of the hearing and I trust that she will give my remarks serious consideration, should she again be tempted to appear on behalf of the appellant in related matters.

[60]            For these reasons, I would therefore dismiss the appeal with costs.

"M. Nadon"

"I agree

            A.M. Linden J.A."

"I agree

            B. Malone J.A."

FEDERAL COURT OF APPEAL

NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET:                                          A-244-05

APPEAL FROM AN ORDER OF THE HONOURABLE MR. JUSTICE DE MONTIGNY DATED MAY 30, 2005 IN FILE T-129-05

STYLE OF CAUSE:                          RICHARD CONDO v. A.G.C.

                                                          

PLACE OF HEARING:                    Ottawa

DATE OF HEARING:                      September 6, 2005

REASONS FOR JUDGMENT:       NADON J.A.

CONCURRED IN BY:                     LINDEN J.A.

                                                           MALONE J.A.

DATED:                                             November 22, 2005

APPEARANCES:

SOLICITORS OF RECORD: