Docket: T-2566-14
Citation:
2017 FC 45
Ottawa, Ontario, January 16, 2017
PRESENT: The
Honourable Madam Justice Kane
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BETWEEN:
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VINCENZO
DEMARIA
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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]
The Applicant, Vincenzo DeMaria, seeks judicial
review of a decision rendered by the Appeal Division of the Parole Board of
Canada (the Appeal Division) on November 14, 2014. The Appeal Division affirmed
the decision of the Parole Board of Canada (the Board) rendered on June 18,
2014, to revoke Mr. DeMaria’s full parole.
I.
Overview
[2]
The Board determined that Mr. DeMaria violated a
condition of his parole which prohibits him from associating with any person
known to be involved in criminal activity (the non-association condition). Specifically,
the Board found that Mr. DeMaria associated with persons involved in
Traditional Organized Crime (TOC) when he attended two family weddings on
February 25, 2012 and on June 23, 2012. As a result, the Board found that
permitting him to serve his sentence under supervision in the community would
pose an undue risk to public safety and revoked his full parole. The Appeal
Division affirmed the revocation.
[3]
Mr. DeMaria argues that the Appeal Division
erred in finding that the Board met its duty of procedural fairness. Mr.
DeMaria notes that the Board refused to provide additional disclosure of the
information it relied on, refused his request for a third postponement of his
parole review, and refused to hold an oral hearing. Mr. DeMaria submits that
the refusals, individually and collectively, breached the duty of procedural
fairness owed to him.
[4]
For the reasons that follow, the application is
allowed.
[5]
It is important to first highlight that the
Parole Board has the responsibility and expertise to make decisions regarding
parole and its revocation. This application for judicial review does not
address the merits or reasonableness of the Board’s decision with respect to
the risk to public safety posed by Mr. De Maria; rather, it focuses only on the
duty of procedural fairness owed by the Board to Mr. DeMaria in the Board’s
decision making process.
[6]
The scope of the duty owed by the Board to Mr.
DeMaria is informed by the relevant context, including that Mr. DeMaria’s
liberty interests, albeit limited or qualified, were at stake, his credibility
was impugned, and the Board denied his request for a further postponement of
his parole review and proceeded to make a decision without his full submissions
in response. In these circumstances, the Board’s refusal to hold an oral
hearing resulted in a breach of procedural fairness.
[7]
Mr. DeMaria had pursued a range of legal
options, some of which he acknowledged to be strategic or tactical, which
affected his ability to respond to the numerous allegations related to his
parole review and prompted his requests for postponement of the review. Despite
this, Mr. DeMaria was still owed a duty of procedural fairness by the
Board.
[8]
As explained below, if the Board had granted the
third postponement to allow some additional time for Mr. DeMaria to make more
comprehensive submissions in response to the numerous allegations, the context
would have been different and an oral hearing may not have been required in
order to meet the duty of procedural fairness.
[9]
The Appeal Division erred in finding that the
Board met the duty of procedural fairness owed to Mr. DeMaria. Therefore, the
Board must re-determine whether Mr. DeMaria’s parole should be revoked.
II.
The Background
[10]
Mr. DeMaria was convicted of second degree
murder in 1982 and is serving a life sentence. He was granted day parole in
1989 and full parole in 1992. He had been living in the community, with
conditions, until his parole was suspended in 2013.
[11]
Mr. DeMaria was arrested on November 14, 2013,
based on information gathered by the Correctional Service of Canada (CSC) that
he had violated a condition of his parole. CSC interviewed Mr. DeMaria on
November 18, 2013, and referred his suspension to the Parole Board, along with
an Assessment for Decision (the Assessment).
[12]
The Assessment recommended that his parole be
revoked. The Assessment noted that CSC was in possession of “an abundance of compelling police information”
indicating that Mr. DeMaria was actively involved in TOC and had violated
the non-association condition of his parole. No details of this police
information were disclosed to Mr. DeMaria at that time.
[13]
Mr. DeMaria’s representative advised the Board
on December 18, 2013, and January 17, 2014, that Mr. DeMaria intended to rebut
the allegations and requested disclosure of the police information.
[14]
CSC completed a Security Intelligence Report
(SIR) on January 20, 2014. The full contents of the SIR were withheld from Mr.
DeMaria pursuant to subsection 141(4) of the Corrections and Conditional
Release Act, SC 1992, c 20 (the Act). However, CSC provided a summary to
him on January 21, 2014, in Memo #9, which is also referred to as the “Gist of Assessment for Decision 2013/12/06”.
[15]
On February 4, 2014, Mr. DeMaria’s
representative requested further disclosure from the Board and inquired whether
Mr. DeMaria would be granted an oral hearing.
[16]
On February 17, 2014, the Board responded that
no further disclosure would be provided prior to the parole review and that it
would assess whether meaningful disclosure had been provided at the point of
reviewing the file. The Board also confirmed that the review would proceed on
the basis of the written record.
[17]
Between February 18, 2014, and the Board’s
decision on June 18, 2014, Mr. DeMaria made three requests for a postponement
of his parole review pursuant to subsection 135(5) of the Act. Postponements
were granted on February 21, 2014, and on May 13, 2014. The Board indicated in
the May 13, 2014 postponement decision that the review was scheduled to take
place no later than June 16, 2014. On June 11, 2014, Mr. DeMaria’s
representative requested a third postponement noting the pending outcome of a habeas
corpus application before the Ontario Superior Court and its potential
impact on the parole review, the complexity of the issues, and the need for
more time to prepare submissions in response to the many allegations in Memo
#9. On June 13, 2014, the Board denied the request for a third postponement.
[18]
On June 17, 2014, Mr. DeMaria’s representative
provided the Board with limited written submissions, along with the record in
the habeas corpus application before the Ontario Superior Court. The
submissions focussed on procedural fairness issues.
[19]
On June 18, 2014, the Board issued its decision,
revoking Mr. DeMaria’s full parole.
III.
The Decision Under Review
[20]
Although the decision under review is that of
the Appeal Division, the Court must consider the underlying decision of the
Parole Board. As noted by Justice Letourneau in Cartier v Canada (Attorney General),
2002 FCA 384 at para 10:
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.
This is particularly important given that
allegations of procedural unfairness focus on the Parole Board’s proceedings.
The Decision of the Parole Board
[21]
The Board found that Mr. DeMaria had violated
the non-association condition of his parole and that permitting him to serve
his life sentence in the community would pose an undue risk to society.
[22]
The Board relied on Mr. DeMaria’s CSC file
information, including the Assessment, the SIR, and Memo #9. The Board also
considered the June 17, 2014 written submissions by Mr. DeMaria’s representative,
Ms. Orkin. The Board acknowledged the documents provided regarding the habeas
corpus application, but found that these did not address the reasons for
the suspension of full parole.
[23]
With respect to Mr. DeMaria’s submissions that
the Board had violated his right to procedural fairness, the Board concluded
that:
- The refusal to grant a third postponement of Mr. DeMaria’s
parole review did not breach procedural fairness. Given that two previous
postponements had been granted, he had ample time to respond to any
adverse allegations before the Board.
- The disclosure provided was adequate. The summary provided in
Memo #9, and in the short follow-up memo dated February 13, 2014,
contained sufficient details of the violations of his non-association condition.
- An oral hearing was not required. The Board noted that
subsection 140(2) of the Act provides that it may hold an oral hearing,
but concluded that it had received “all relevant,
persuasive, and reliable information required for it to render a decision”
by way of the written record, including the information provided by CSC
and Mr. DeMaria’s submissions.
[24]
With respect to whether Mr. DeMaria’s continued
parole would constitute an undue risk to society, the Board found that the
information provided by numerous police agencies was reliable and persuasive.
The Board specifically noted that Mr. DeMaria attended two family weddings in
2012, police observed known members of TOC in attendance at those weddings, and
that Mr. DeMaria had the opportunity to advise his parole supervisor that he
had been in the company of these individuals, but did not. The Board found that
this information was relevant to the risk posed by Mr. DeMaria.
The Decision of the Parole Board
Appeal Division
[25]
In support of his appeal, Mr. DeMaria’s
representative and counsel, Ms. Orkin, made extensive submissions dated August
18, 2014, which included several affidavits. The submissions provided a
chronology of CSC decisions with respect to Mr. DeMaria’s various grievances
and legal challenges and made detailed arguments on the three procedural
fairness issues. Mr. DeMaria’s affidavit describes, among other things, his
post-suspension interview, his practice of reporting contacts with individuals
to his parole officer, the notice he provided to his parole officer of his
intention to attend the weddings in February and June 2012, his recollection of
the weddings, and his denial that he associated with the named individuals. Mr.
DeMaria’s affidavit also addresses several other allegations set out in Memo #
9, including about his business interests and his links to other named
individuals.
[26]
This information was not part of the record
before the Board and was, therefore, not considered by the Appeal Division. The
Appeal Division focussed only on the allegations of breach of procedural
fairness.
[27]
The Appeal Division concluded:
- The Board’s decision to deny Mr. DeMaria a third postponement
of his file review was reasonable. Given the length of time between his
parole suspension and the Board’s decision (212 days), he had ample time
to respond to adverse allegations before the Board. In addition, his right
to be heard was respected because his June 17, 2014 submissions were
considered by the Board.
- Mr. DeMaria’s argument that the summary of the information set
out in Memo #9 did not provide adequate disclosure was without merit. The
Board provided a summary that included sufficient details such as dates,
locations and names.
- The Board’s decision to deny Mr. DeMaria’s request for an oral
hearing was reasonable. Subsection 140(2) of the Act gives the Board
discretion to determine whether an oral hearing is necessary. The Board
reasonably concluded that it had all the information necessary to make a
decision in the matter. In accordance with the Decision-Making Policy
Manual for Board Members (the Policy Manual) at subsection 11.1(5), unless
a hearing is otherwise required by law, the Board may choose to conduct a
hearing based on an assessment of any relevant factor, including the
reliability and persuasiveness of the information, incompleteness of the
information, or an offender’s inability to communicate.
IV.
The Issues
[28]
Mr. DeMaria submits that the Appeal Division
erred in finding that the Board met its duty of procedural fairness. He submits
that he was prejudiced in his response to the allegations against him by a lack
of disclosure, lack of sufficient time to prepare his submissions, and the
Board’s refusal to hold an oral hearing.
[29]
The Respondent submits that the Appeal Division
did not err in finding that the Board met its duty of procedural fairness. Mr.
DeMaria knew the allegations against him with sufficient detail and had ample
time to respond but chose not to address the substance of the allegations. As
such, no oral hearing was required.
[30]
The Court on judicial review must focus on the
decision of the Board to determine whether the Board breached the duty of
procedural fairness it owed to Mr. DeMaria in the circumstances by: not
providing additional disclosure of the allegations; refusing to grant a third postponement
of Mr. DeMaria’s parole review; and / or, not convening an oral hearing to
permit Mr. DeMaria to respond to the allegations.
V.
The Standard of Review
[31]
There is no disagreement that the issue of
whether the Applicant was afforded procedural fairness is reviewed on the
standard of correctness (Canada (Minister of Citizenship and Immigration) v
Khosa, 2009 SCC 12 at para 43). If a breach is found, a re-determination is
generally required, unless the outcome would be inevitable (Mobil Oil Canada Ltd v Canada-Newfoundland Offshore Petroleum
Board, [1994] 1 S.C.R. 202 and Cardinal v Director of Kent
Institution, [1985] 2 S.C.R. 643).
VI.
Did the Parole Board breach its duty of
procedural fairness by not providing additional disclosure of the allegations?
The Applicant’s Submissions
[32]
Mr. DeMaria submits that the Board erred in
concluding that Memo #9 contained sufficient details to allow him to know the
case to meet, and the Appeal Board erred in not so finding.
[33]
Mr. DeMaria notes that Memo #9 set out many
allegations, including that he was implicated in various criminal
investigations and activities dating back to 2001. He submits that Memo #9
refers to several other individuals, but lacks details and context with respect
to his alleged involvement with these individuals and this lack of detail
prevented him from fully responding to the allegations.
[34]
Mr. DeMaria argues that he had no way of knowing
that the Parole Board would focus and rely on his attendance at two weddings to
conclude that he breached his non-association clause and to revoke his parole.
He adds that even with respect to the two weddings, Memo #9 did not state
whether he was observed in proximity or speaking with the named individuals or
how he “associated” with these individuals.
[35]
He also argues that all the information in Memo
#9 was considered by the Board. The Board found that the information, including
that which came from several police agencies, to be reliable and persuasive.
This was not limited to the two weddings. He submits that he should have been
provided with the details of all the allegations.
[36]
Mr. DeMaria further submits that the Board
applied the incorrect legal test for withholding information. Paragraph
141(4)(b) of the Act exempts the Board from disclosing information that the
Board believes, on reasonable grounds, would jeopardize the safety of
any person, the security of a correctional institution, or the conduct of any
lawful investigation. He argues that the Board incorrectly applied a lower
threshold—that the information could jeopardize the safety of any
individual or the conduct of a lawful investigation. He notes that the Parole
Board did not address whether it had reasonable grounds to believe any of the
three criteria were met. There was no risk of jeopardizing a lawful investigation
because all the information in the Memo was historical or “old news” and he was not asking for the names of
confidential informants.
The Respondent’s Submissions
[37]
The Respondent submits that the Board complied
with section 141 of the Act. Memo #9 provided a comprehensive summary with
sufficient details to permit Mr. DeMaria to respond to the information relied
on by the Board. The information that was not disclosed to Mr. DeMaria was not
relied on.
[38]
The Respondent adds that the Board did not err
by withholding the SIR because it contained sensitive information provided by
confidential informants pertaining to ongoing investigations. In addition, the
redacted SIR provided as part of the CTR in April 2016 demonstrates that the
summary was very comprehensive.
[39]
The Board focused its decision on Mr. DeMaria’s
attendance at two family weddings and all the relevant details of those events
were provided in Memo #9. Although the summary does not state whether he spoke
to the particular individuals, this information was within Mr. DeMaria’s own
knowledge.
[40]
The Respondent notes that Mr. DeMaria responded
to the allegations in Memo #9 at the appeal stage in August 2014, which
demonstrates that he had sufficient details. The Respondent adds that Mr.
DeMaria had the opportunity to make the same submissions to the Board but
declined to do so.
The Board did not breach
procedural fairness by refusing additional disclosure.
[41]
The purpose of disclosure is to allow the
affected person to know the case to be met and to have the opportunity to
respond (Mymryk v Canada (Attorney General), 2010 FC 632 at paras 16, 31
[Mymryk]).
[42]
Subsection 141(1) of the
Act states that the Board shall provide the offender with information that is
to be considered in the review of the case or a summary of that information. In
Gough v National Parole Board, [1991] 2 FC 117 at para 18 [Gough],
the Court noted that “what is required is enough detail
to allow the individual to answer the allegation.” In Mymryk (at
para 17), the Court reiterated that “fundamental
justice requires the Board to provide the offender with details of the relevant
information upon which it will base its decision.”
The Board stated that the provisions of the Act were
complied with and that other information was withheld because its disclosure could
jeopardize the safety of an individual or the conduct of a lawful
investigation. Although Mr. DeMaria argues that the Board applied the incorrect
test and the lower threshold of “could,” meaning
a possibility, rather than “would,” meaning a
probability, the Board observed the requirements of subsection 141(1). Although
the Board used wording that does not reflect the precise wording of subsection
141(4), a comparison of Memo #9 and the redacted SIR provided as part of the
CTR demonstrates that the summary in Memo #9 was comprehensive and provided
sufficient details.
[43]
Memo # 9 set out a wide range of information
dating back to 2001, including information about possible TOC associates, Mr.
DeMaria’s businesses, his family members’ businesses, law enforcement
investigations for fraud, drug trafficking and violent crime involving several
other individuals, and other information suggesting that Mr. DeMaria was
implicated in some of these investigations. Memo #9 was not limited to Mr.
DeMaria’s attendance at two weddings.
[44]
At the time that Mr. DeMaria was required to
respond to the allegations and when he requested further disclosure between
January and June 2014, he was not aware that the Board would base its decision
on his attendance at two weddings. However, Memo # 9 included sufficient
details to permit Mr. DeMaria to respond to all the allegations, not simply
those related to the two weddings.
[45]
There was no breach of procedural fairness
arising from providing only the summary of the relevant information.
VII.
Did the Parole Board breach its duty of
procedural fairness by refusing to grant a third postponement of Mr. DeMaria’s
parole review?
The Applicant’s Submissions
[46]
Mr. DeMaria submits that, absent a compelling
reason to deny his request, the duty of fairness required the Board to grant a
third postponement of his parole review. The Board failed to consider the
reasons for the postponement and simply concluded that he had had sufficient
time to respond to the allegations.
[47]
Mr. DeMaria argues that the denial of the
postponement thwarted his ability to make comprehensive submissions in response
to the numerous allegations set out in Memo #9. As explained in the June 11,
2014 letter from his representative and counsel, Ms. Orkin, the issues were complex,
the file to review was voluminous, other legal proceedings (including his habeas
corpus application) were pending—potentially impacting on his parole
review—and all these matters required the attention of his counsel. Ms. Orkin
candidly explained that she lacked sufficient time to prepare full submissions
due to the competing demands on her time and the difficulty she had in
communicating with Mr. DeMaria while he was in custody, noting an ongoing
lockdown at the Collins Bay Institution. Even if it were a tactical decision
on Mr. DeMaria’s part to pursue a habeas corpus application for relief
not provided in other processes or grievances, he submits that the Board failed
to consider the reasons cited to support his need for a postponement.
[48]
Mr. DeMaria also notes that the letter from Ms.
Orkin proposed two alternatives: (i) postponement until after his habeas
corpus application was determined or (ii) postponement until September 15,
2014, to permit Ms. Orkin to make comprehensive submissions in response to Memo
#9.
[49]
Mr. DeMaria submits that a balance must be
struck between the Board’s claimed duty to make a parole review decision
expeditiously and its obligation to provide a fair hearing and to consider all
the information. Postponing the review did not prejudice the Board, given that
Mr. DeMaria remained in custody, but the Board’s refusals to provide additional
disclosure, to postpone and to hold an oral hearing, prejudiced him.
The Respondent’s Submissions
[50]
The Respondent submits that the Board has the
discretion to postpone or adjourn a review. The Court cannot revisit the
reasonable exercise of discretion.
[51]
The Respondent argues that the denial of the
third postponement did not prejudice Mr. DeMaria’s right to make full answer
and defence. The Respondent notes that from the time Mr. DeMaria was
provided with Memo #9 he had almost five months to respond to the allegations,
but he did not do so. Instead, he raised several questions and pursued other
legal proceedings.
[52]
The Respondent also submits that the reasons
advanced for the postponements in February, May, and June changed. Mr. DeMaria
based his request for a third postponement on his pending habeas corpus
application before the Superior Court of Ontario. The Board had no obligation
to accommodate the collateral proceeding (Prassad v Canada (Minister of
Employment and Immigration), [1989] 1 S.C.R. 560 at 571-72). Moreover, the
Board was aware that the jurisprudence had established that the provincial
superior courts do not have jurisdiction to hear this type of habeas corpus
application because the Act provides a complete procedure for the review of the
Parole Board’s decision.
[53]
The Respondent argues that the Board had a duty
to proceed with the parole review expeditiously.
The Parole Board’s decision to
deny the postponement together with its refusal to hold an oral hearing
resulted in a breach of procedural fairness
[54]
Subsection 135(5) of the Act provides that upon
referral, the Board shall review the case and make a decision “within the period prescribed by the regulations unless, at
the offender’s request, the review is adjourned by the Board or is postponed by
a member of the Board or by a person designated by the Chairperson by name or
position”.
[55]
Subsection 163(3) of the Corrections and
Conditional Release Regulations, SOR/92-620 [the Regulations] states that “unless an adjournment is granted by the Board at the
offender’s request, the Board shall render its decision within 90 days after
the date of the referral…”
[56]
Therefore, the Board is generally required to
make its decision within 90 days of the referral, unless the offender requests
an adjournment or postponement and the Board exercises its discretion and
grants the request.
[57]
Although the Respondent submits that there is a
duty on the Board to make a final determination regarding a parole suspension
expeditiously, the Act and the Regulations clearly contemplate requests by an
offender for adjournments or postponements.
[58]
As the Respondent acknowledges, there are no
criteria to guide the Board in exercising its discretion to grant a
postponement. The Policy Manual at section 11.7 provides some guidance
regarding when and why an offender may request a postponement, but these are
examples only and are not exhaustive.
[59]
In addition, at subsection 11.7(9), the Manual
provides:
9. When the Board agrees to postpone a
detention or post-suspension review, the review must be completed within the
timeframes established in the CCRR, unless the offender requests a longer
postponement and understands that no release will occur prior to the Board
making a final decision.
[60]
In the present case, Mr. DeMaria requested a
longer postponement and he was well aware that he would not be released prior
to any decision.
[61]
As with any exercise of discretion, including
that conferred by statute, it must be reasonable and respect procedural
fairness (Re: Sound v Fitness Industry Council of Canada, 2014 FCA 48 at
paras 37-39).
[62]
The Respondent submits that the reasons cited
for the requested adjournments changed over time, and to some extent, this is
true. However, the reasons advanced by Ms. Orkin on behalf of Mr. DeMaria were
not inconsistent. Moreover, the Board did not address the several reasons cited
by Ms. Orkin or the alternatives she proposed. The Board referred only to the
pending habeas corpus proceeding and concluded that Mr. DeMaria had had
ample time to respond to the assertions that led to the parole suspension.
[63]
The Board also noted, “[y]our
assistants have provided a number of letters on your behalf in which you deny
the accuracy of the information provided by police or CSC to the Board.”
However, these letters were not submissions in response to Memo # 9.
[64]
The Appeal Division found that the Board’s
decision to not postpone was reasonable given the length of time between Mr.
DeMaria’s parole suspension and the Board’s decision. The Appeal Division noted
that Mr. DeMaria’s June 17, 2014 submissions were considered by the Board and
found that his right to be heard was respected. However, these submissions were
limited to procedural fairness issues.
[65]
As noted above, Memo #9 included numerous
allegations and it was in Mr. DeMaria’s interests to respond to all the
information and allegations in Memo # 9, much of which was quite dated.
[66]
There was no prejudice to the Board by postponing
the parole review. The Respondent’s suggestion that the duty to make an
expeditious decision on a parole review guards against allegations of unlawful
detention is unpersuasive. Mr. DeMaria was in detention when he requested the
postponements. He or other applicants would not likely succeed in arguing that
their own request to remain in custody until a later date for their parole review
could be scheduled constitutes unlawful detention.
[67]
On one hand, Mr. DeMaria did have five months
(not 212 days as the Appeal Board noted) from the receipt of Memo #9 to make
substantive submissions in response. He was granted two postponements. He posed
extensive questions to the Board seeking additional information. He also chose
to simultaneously pursue collateral proceedings in the Ontario Superior Court.
On the other hand, he was not aware that the Board would focus on his
attendance at two weddings, rather than on all the allegations which date back
more than a decade. He reiterated his requests for further disclosure,
postponements, and an oral hearing. His counsel, Ms. Orkin, set out several
reasons for the third postponement request, including that the issues were
complex, Mr. DeMaria’s file was voluminous, that she had difficulty
communicating with him at the Collins Bay Institution, particularly due to an
ongoing lockdown, that she was pulled in two directions in terms of preparing
documents, and that she needed at least until September to provide submissions
to the Board. The Board did not address the several reasons cited in Ms.
Orkin’s letter or the alternatives she proposed, nor did it identify any
possible prejudice to the Board in postponing the parole review given that Mr.
DeMaria remained in custody.
[68]
Instead, the Board found that Mr. DeMaria had
ample time to respond and that Ms. Orkin’s previous letters, which the Board
found to be denials of the accuracy of the information, were sufficient.
However, the letters referred to by the Board posed numerous questions and were
not the response to the allegations. The Board was well aware that submissions
in response to the allegations had not yet been provided.
[69]
Similarly, the Appeal Division’s finding that
the Board had considered the June 17, 2014 submissions missed the point that
these submissions were only on the procedural fairness issues and were not
responsive to the allegations.
[70]
While the Appeal Division may have erred in
finding that the Board reasonably exercised its discretion to refuse the
postponement, it is the Board’s refusal to postpone the hearing followed by the
Board’s refusal to convene an oral hearing, as explained below, which resulted
in a breach of procedural fairness.
VIII.
Did the Parole Board breach its duty of
procedural fairness by not convening an oral hearing to permit Mr. DeMaria to
respond to the allegations?
The Applicant’s Submissions
[71]
Mr. DeMaria submits that an oral hearing was
required because the Board’s decision to revoke his parole involved
determinations of credibility and significantly affected his liberty.
[72]
Mr. DeMaria submits that in Joly v Canada (Attorney
General), 2014 FC 1253 at para 79 [Joly], the Court found that when
the review of a parolee’s suspension involves issues of credibility and a
potentially lengthy period of re-incarceration is at stake, an oral hearing is
required. He argues that the same principle should apply to his circumstances.
[73]
He submits that Memo #9 made allegations about
his credibility. In addition, several of the allegations in Memo #9 were based
on the assertions of confidential informants, the reliability and completeness
of which should have been tested in an oral hearing.
[74]
Mr. DeMaria also notes that subsection 140(2) of
the Act, which now gives the Board the discretion to hold oral hearings, rather
than requiring an oral hearing for such reviews, was declared unconstitutional
by the Quebec Superior Court in Way c Commission des libérations
conditionnelles du Canada, 2014 QCCS 4193 [Way].
[75]
Mr. DeMaria submits that regardless of the
statutory provisions, the common law requires that the Board meet its duty of
procedural fairness and that the scope or content of the duty is guided by the factors
established in Baker v Canada (Minister of Citizenship and Immigration),
[1999] 2 S.C.R. 817 [Baker]. He submits that the Board owed him a higher
degree of procedural fairness, including an oral hearing.
The Respondent’s Submissions
[76]
The Respondent notes that subsection 140(2) of
the Act gives the Board discretion to conduct an oral hearing and this
discretion should not be interfered with lightly (Cougar Aviation Ltd v
Canada (Minister of Public Works and Government Services), [2000] FCJ No
1946 at para 62 (CA); Xwave Solution Inc v Canada (Public Works and
Government Services), 2003 FCA 301 at para 13).
[77]
The Respondent submits that the Appeal Division
correctly found that, in accordance with the guidance set out in the Policy
Manual, the Board may choose to conduct a hearing based on an assessment of any
relevant factor, including the reliability and persuasiveness of the
information, incompleteness of the information or an offender’s inability to
communicate.
[78]
The Respondent further submits that it falls to
the offender to demonstrate to the Board that an oral hearing is required and
that Mr. DeMaria did not do so. It was, therefore, reasonable for the Board to
conclude that it had all the necessary information before it and to treat the
police information as reliable given the absence of contradictory evidence. Mr.
DeMaria’s strategic decision to not address the substance of the allegations
left the Board without any challenge to the completeness or the reliability of
the information. Had he made submissions in response to the allegations that
challenged the completeness of the information or its reliability, the Board
may have held an oral hearing.
[79]
The Respondent agrees that liberty is an
important interest, but submits that it is not dispositive of the need for an
oral hearing (Baker; Suresh v Canada (Minister of Citizenship and
Immigration), 2002 SCC 1 [Suresh]). The Respondent submits that four
out of five Baker factors demonstrate that procedural fairness did not require
an oral hearing in this particular context. The non-judicial character of the
Board, the statutory provisions, the Board’s ability to choose its own
procedure, and the appeal remedies, all point to a more minimal duty of
procedural fairness, not requiring an oral hearing.
[80]
The Respondent notes that Mr. DeMaria’s parole
suspension was referred to the Board for consideration and a decision, he was
advised it would be a paper review, he received a comprehensive summary of the
allegations in Memo #9, and he had two postponements at his request. Mr.
DeMaria chose not to engage with and respond to the allegations. He made only
limited submissions in response, which did not address the substance of the
allegations and, as a result, the Board was entitled to rely on the information
in Memo #9, which it found to be reliable and persuasive. In this context, the
Board met its duty of procedural fairness.
The Parole Board’s refusal to hold
an oral hearing, following its refusal to postpone the parole review, was
procedurally unfair
Credibility and liberty interests
were at stake
[81]
The decision to revoke Mr. DeMaria’s parole
engaged his section 7 Charter rights. This, along with other factors,
affects the scope of the duty of procedural fairness.
[82]
Although Mr. DeMaria is serving a life sentence,
he had been granted full parole. There is a marked difference between serving a
life sentence in custody and serving that sentence under supervision in the
community. His limited or qualified liberty interests must be considered with
this distinction in mind.
[83]
In Hewitt v Canada (National Parole Board),
[1984] 2 FC 357 (TD), the Court noted (at 367) that “[t]he
applicant still has the right not to have been deprived of his highly qualified
liberty – which is parole – except in accordance with the principles of
fundamental justice.” In Gough,at para 15 the Court also
addressed the liberty interests of parolees noting:
There is no doubt that the applicant’s
liberty is conditional […] At the same time, there can be little doubt that the
applicant’s conditional liberty interest, in this case, is at the high end of
the spectrum […] The applicant is on full parole and has been for many years […]
An individual’s liberty (even the conditional liberty which a parolee enjoys)
weighs very heavily in the scales when compared to competing interests.
[84]
In Singh et al v Minister of Employment and Immigration,
[1985] 1 S.C.R. 177 [Singh], the Supreme Court of Canada emphasized that when
section 7 is engaged and the credibility of the person affected is a central
issue, an oral hearing is generally required, noting at 213-214:
I am of the view that where a serious issue
of credibility is involved, fundamental justice requires that credibility be
determined on the basis of an oral hearing […] I find it difficult to conceive
of a situation in which compliance with fundamental justice could be achieved
by a tribunal making significant findings of credibility solely on the basis of
written submissions.
[85]
Mr. DeMaria’s credibility was also clearly at
issue.
[86]
Memo #9 includes a range of information dating
back to 2001 about Mr. DeMaria’s connections to organized crime; his business
dealings; investigations of other individuals regarding fraud, drug
trafficking, and violent crime; along with more recent information. Memo #9
suggests that Mr. DeMaria is linked to these individuals and includes several
negative statements about his credibility.
[87]
Although the Respondent submits that the Board’s
decision is based exclusively on Mr. DeMaria’s breach of the non-association
clause at the two weddings, the Board relied on the negative credibility
statements in Memo #9 and made its own findings of credibility. The information
in Memo #9 went well beyond the two weddings.
[88]
Memo #9 made several references to Mr. DeMaria’s
credibility, including:
- With respect to whether Mr. DeMaria’s statement that he did not
recall seeing a particular person at the June 2012 wedding and did not
report this to his parole officer, the memo states, “…this raises concerns about DEMARIA’s credibility and
reliability in following his conditions…”
- With respect to information dating back to 2003 and his contact
with Mr. Cortese, which Mr. DeMaria stated may have been at an earlier
wedding (characterized as a historical breach), the memo states, “[a]gain, this raises concerns about DEMARIA’s
credibility and his inability to be forthright…”
- With respect to other historical information, including alleged
contacts with other individuals and Mr. DeMaria’s business dealings, the
memo states, “DEMARIA has clearly not been
forthright with his CMT…DEMARIA’s credibility and reliability in following
his conditions and reporting information to his CMT as required is
questionable.” In addition, “this
historical information affirms the CMT’s concern about the questionable
credibility of DEMARIA.”
- With respect to the fraud investigation of other individuals in
2003, the memo notes that “receipt of deposits
resulting from an insurance fraud…represents further concerns about
DEMARIA’s credibility.” With respect to a 2008 fraud investigation,
again of other individuals, the memo adds that Mr. DeMaria’s connection to
these individuals is not likely a coincidence, “which
again raises the issue of DEMARIA’s questionable activities and overall
credibility.”
- In the conclusion, the memo notes, “[t]he
information provided by all sources presents a concerning pattern of
DEMARIA being elusive and lacking credibility as there are too many
inconsistencies between his self-reports and collateral information to
consider them just coincidences… the CMT believes that… DEMARIA regularly
demonstrates a lack of honesty and openness about his associations and
activities, both historically and currently…”
[89]
Although the Respondent submits that Joly is
distinguishable and that Justice Diner’s summary of the common law with respect
to oral hearings and procedural fairness in the context of a parole revocation
decision is obiter, Joly is based on the principles previously established
in the jurisprudence.
[90]
Justice Diner found that the Board breached its
duty of procedural fairness by not convening an oral hearing. The facts differ
from the present case in that Mr. Joly’s parole review had commenced before the
Act was amended to remove the requirement to convene an oral hearing and to
give the Board discretion to convene an oral hearing. The determinative issue
in Joly was the application of the transitional provisions of the Act,
which entitled Mr. Joly to an oral hearing.
[91]
Justice Diner went
on to find that Mr. Joly’s rights to procedural fairness were also breached
under the common law. Although this is an alternative finding, Justice Diner’s
summary of the common law, including his analysis of Singh, Suresh, Baker and
Charkaoui v Canada, 2007
SCC 9 is sound. That jurisprudence
continues to guide the determination of the duty of procedural fairness owed to
offenders in similar circumstances.
[92]
At paragraph 79, Justice Diner stated:
When credibility is at issue, as it is here,
and a negative determination carries the consequence of a significant period of
re-incarceration, procedural fairness should, at the very least, provide the
Applicant with an opportunity to relay his side of the story.
[Emphasis added]
[93]
Contrary to Mr. DeMaria’s submission, Justice
Diner’s statement does not go so far as to establish that an oral hearing must
be held where credibility and incarceration are at issue, only that an
opportunity to “relay his side of the story”
should be provided. This reflects the prevailing jurisprudence. Justice Diner found in the context of the case
before him – noting that Mr. Joly did not make written submissions and expected
that an oral hearing would be held – that an oral hearing was required to
provide Mr. Joly with an opportunity to relay his side of the story.
[94]
Mr. DeMaria faced further incarceration of a
potentially indefinite duration and his credibility was challenged. The issue
is whether the Board provided him with the opportunity to relay his side of the
story.
The statutory provision
[95]
Subsection 140(2) states only that the Board “may elect” to conduct the review “by way of hearing in any case not referred to in subsection
(1).” The Appeal Division cited subsection 11.1(5) of the Policy Manual
and found that it was reasonable for the Board to conclude it had all the
information to conduct the review.
[96]
Subsection 11.1(5) provides:
5. In cases where a hearing is not required
by law, Board members may choose to conduct a review by way of a hearing,
pursuant to subsection 140(2) of the CCRA, where they believe, under the
specific circumstances of the case, that a hearing is required to clarify
relevant aspects of the case. This may include where:
a. the reliability and
persuasiveness of the information being considered cannot be assessed on a file
review;
b. there is incomplete or discordant
information on file, of relevance to the review, that could be clarified at a
hearing; or
c. information on file indicates
that the offender has difficulties (cognitive, mental health, physical or
other) that prevent them from communicating effectively in writing.
[97]
The same Manual provides at subsection 11.1(2)
that its purpose is “[t]o provide guidance to Board
members on conducting quality hearings, while complying with the duty to act
fairly and adhering to legislation, case law and policy” [Emphasis added].
[98]
The Respondent submits that Mr. DeMaria did not
establish that an oral hearing should be held. However, nothing in the Act, the
Regulations or the Policy Manual suggests that it is up to the offender to establish
or persuade the Board that a hearing should be held. The Policy Manual refers
to “where a hearing is not required by law” and,
as such, acknowledges that a hearing may be required by subsection 140(1),
other statutory provisions or by the common law. Despite that subsection 140(2)
provides the discretion to hold an oral hearing – and in the present
circumstances there is no dispute that Mr. De Maria’s review falls within
subsection 140(2) – there were several factors pointing to the need for an oral
hearing, in addition to the guidance in the Policy Manual.
The Common law duty of procedural
fairness
[99]
In Baker,above, the Supreme Court of
Canada established that the duty of procedural fairness varies depending on the
context.
[100] Justice L’Heureux Dubé provided a non-exhaustive list of factors and
emphasized that the scope or content of the duty of procedural fairness must be
determined in the specific context of each case. Justice L’Heureux Dubé reiterated
that procedural fairness is based on the principle that individuals affected by
decisions should have the opportunity to present their case and to have
decisions affecting their rights and interests made in a fair and impartial and
open process “appropriate to
the statutory, institutional, and social context of the decision” (Baker at para 28).
[101] The factors include the nature of the decision, the nature of the
statutory scheme, the importance of the decision to the person affected, the
legitimate expectations of that person and the choice of procedure made by the
decision maker.
[102] With respect to the nature of the decision and the process followed
in making it, Baker guides that the more the process resembles judicial
decision making, the more likely it is that procedural protections closer to
the trial model will be required (Baker at para 23). Although the
process followed by the Board in making parole decisions is more inquisitorial
than adversarial, the Board must assess and determine the weight to attach to
the evidence before it, and this often involves assessments of credibility. In
this case, the Board noted Mr. DeMaria’s denials, but did not wait for his full
submissions. Nonetheless, the Board made adverse credibility findings, relying
on only documentary evidence.
[103] With respect to the nature of the statutory scheme, greater procedural protections will be required when no appeal procedure
is provided within the statute, or when the decision is determinative of the
issue and further requests cannot be submitted (Baker at para 24). In
the present case, the Act provides for an appeal of a Parole Board decision. In
addition, the decision of the Appeal Division may be the subject of an
application for judicial review to this Court.
[104] The importance of a decision to the individuals affected is a
significant factor affecting the content of the duty of procedural fairness. The more important the decision and the greater the impact on the
persons affected, the greater the procedural protections required (Baker at
para 25). The decision to revoke parole is of
significant importance. As noted above, this is the difference between living
in the community with conditions while still serving a life sentence and
remaining in custody awaiting a possible future opportunity to have parole
considered. Revocation of parole may also negatively impact any future
applications for parole.
[105] The
legitimate expectations of the person challenging the decision also affect what
procedures the duty of fairness requires in given circumstances. If the person
has a legitimate expectation that a certain procedure will be followed, the
duty of fairness requires that procedure (Baker at para 26). Mr. DeMaria
requested an oral hearing as early as January 2012, but the Board clearly
communicated in February 2012 that the review would proceed on the basis of
written material.
[106] Baker also guides that the choice of procedure
made by the decision-maker should be taken into account and respected, particularly
when the statute leaves it to the decision-maker to choose its own procedure,
or when it has an expertise in determining what procedures are appropriate in
the circumstances (Baker at para 27). Subsection 140 (2) gives the Board
discretion to determine whether to hold an oral hearing, unless a hearing is
mandated, but does not include any criteria. The Policy Manual provides some
guidance, and also reminds Board members of the duty to act fairly.
[107] The Respondent submits that four of five Baker factors
support the view that the Board met the duty of procedural fairness owed in the
overall context and that an oral hearing was not required. In my view, three of
five factors support a higher degree of procedural fairness. Regardless, the
scope of the duty of procedural fairness is not determined based on a tally of
the favourable Baker factors. The factors are not exhaustive and some
factors attract more weight than others. The Baker factors guide
decision makers about the scope or content of the duty of procedural fairness; i.e.,
what measures are called for to respect the principle that the person affected “should have the opportunity to present
their case fully and fairly…” (Baker at
para 28).
[108] In the present case, the nature of the decision and the manner in
which the Board makes its decisions, coupled with the importance of the
decision to Mr. DeMaria, supports the need for more than the minimum level of
procedural fairness.
[109] In some contexts, the duty of fairness may be satisfied by way of a
full and complete written hearing (Baker at paras 33-34), even when Charter
rights are engaged (Singh at 213).
[110] The Board may have satisfied its duty of procedural fairness without
holding an oral hearing if it had granted Mr. DeMaria’s request to postpone his
parole review and Mr. DeMaria had subsequently provided more comprehensive written
submissions in response to the numerous allegations, rather than limited
submissions on the procedural fairness issues. As noted by the Respondent, Mr. DeMaria’s
written submissions along with his own affidavit were submitted to the Appeal
Division in August 2014, and responded to the substance of most of the
allegations. However, the Parole Board had refused the third request for a
postponement to permit such submissions two months previously. The Appeal
Division considered the appeal, which was based on a breach of procedural fairness,
only on the basis of the information on the record before the Board. The
refusal of the Board on June 13, 2014, to postpone the review for the third
time is, therefore, an important part of the relevant context that informs the
scope of the duty of procedural fairness and whether an oral hearing was
required.
[111] The relevant context also includes that Mr. DeMaria’s liberty
interests were at stake, his credibility was impugned, and he faced numerous
allegations, which he
believed he should respond to. As noted, he was not aware that the Board would
base its decision on his attendance at two weddings.
[112] In the circumstances, following the refusal of the third
postponement request, an oral hearing should have been provided to permit Mr.
DeMaria to respond to the allegations and to address the credibility findings
in Memo #9. Alternatively, if a postponement had been granted for some
reasonable period of time to permit Mr. DeMaria to provide his submissions in
response to Memo #9 before the Board made findings regarding his credibility
and the reliability and persuasiveness of the information, an oral hearing may
not have been required to meet the duty of procedural fairness. As noted, the
duty of procedural fairness varies with the context and if the postponement had
been granted, the context would have been different.
[113] In the circumstances of this case, the Appeal Board erred in finding
that the Board had met its duty of procedural fairness.
Constitutionality
[114] The constitutionality of section 140 is not the issue in the present
case.
[115] In Way,above, the Quebec Superior Court found that amendments to paragraph
140(1)(d) of the Act, which removed the right to an oral hearing in some
circumstances, violated section 7 of the Charter and cannot be saved by
section 1. The Quebec Court of Appeal upheld this decision (Canada
(Procureur général) c Way, 2015 QCCA 1576). Leave to appeal has been granted
by the Supreme Court of Canada and will be heard in the New Year. That
determination may clarify whether hearings shall be held in all or more
circumstances. However, Mr. De Maria’s application is granted on the basis of
the breach of procedural fairness.
IX.
Conclusion
[116] The application for judicial review is granted. The Appeal Division
erred in finding that the Parole Board met its duty of procedural fairness in
the particular circumstances of this case. As a result, a differently
constituted panel of the Parole Board shall re-determine whether Mr. DeMaria’s
parole should be revoked after providing Mr. DeMaria with a reasonable
opportunity to make written submissions in response to Memo #9 and / or
following an oral hearing.
[117] This is not a situation where it can be found that the decision to
revoke Mr. DeMaria’s parole would be inevitable but for the breach of
procedural fairness, nor did the Respondent argue that this was so.
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