Docket: T-398-16
Citation:
2017 FC 394
Ottawa, Ontario, April 21, 2017
PRESENT: The
Honourable Mr. Justice Gleeson
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BETWEEN:
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JAMES THOMAS EAKIN
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Applicant
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and
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ATTORNEY GENERAL OF CANADA AND
THE PAROLE BOARD OF CANADA AND
CORRECTIONAL SERVICE OF CANADA
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Respondents
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JUDGMENT AND REASONS
I.
Overview
[1]
The applicant, Mr. James Thomas Eakin, who
represents himself in this application for judicial review, is an American
citizen serving an indeterminate sentence having been convicted of sexual assault
and robbery in 1995. He had been convicted of similar offences in 1991. The
1991 convictions were considered by the Ontario Court of Justice as part of the
dangerous offender application in 1995. The Minister of Citizenship and Immigration
has also formed the opinion that Mr. Eakin constitutes a danger to the public
in Canada and he will be deported upon the granting of conditional release.
[2]
In July 2015 the Parole Board of Canada [PBC]
denied Mr. Eakin both day and full parole. The PBC concluded that Mr. Eakin
poses a moderate risk for re-offending sexually, has limited insight into his
sexual offending and despite program completion he has not mitigated his risk
in any substantial way. The PBC further noted that if released he would require
intensive supervision and counselling or program opportunities that would be unavailable
on deportation. The Appeal Division affirmed the decision of the PBC.
[3]
In seeking judicial review of the Appeal
Division’s decision, Mr. Eakin argues that (1) in considering his criminal
history, assessing his circumstances as a foreign offender and in determining
the risk he poses to society his rights under sections 7, 11(h) and 12 of the Canadian
Charter of Rights and Freedoms [Charter] were violated; (2) the
process was procedurally unfair as the file information relating to his
offences was inaccurate; and (3) the date identified by the PBC for his next
legislated full parole review was incorrect, an issue that was not addressed by
the Appeal Division. He seeks a declaration that his rights under the Charter
have been breached and an order staying or terminating his sentence and
deportation from Canada upon release.
II.
Issues
[4]
Having reviewed the parties written submissions
and having heard their oral arguments, I have determined that the following four
issues arise:
A.
Were Mr Eakin’s rights under sections 7, 11(h)
and 12 of the Charter violated?
B.
Did the PBC and Appeal Division unfairly rely on
erroneous or inaccurate information?
C.
Was the decision to deny parole unreasonable?
D.
Did the Appeal Division err in failing to
address the timing of Mr. Eakin’s next legislated full parole review?
[5]
For the reasons that follow I am satisfied that Mr.
Eakin’s Charter rights have not been violated, there was no breach of
procedural fairness and the decision to deny parole was lawful and reasonable. However,
I am of the opinion that the Appeal Division was required to consider and
address Mr. Eakin’s argument that the PBC had erred in determining the date of
his next legislated full parole review. The failure of the Appeal Division to
do so warrants the intervention of this Court on this specific ground. The application
is granted in part.
III.
Decision
A.
The PBC Decision
[6]
The PBC noted at the outset of its decision that
it “…may grant parole if, in its opinion, [Mr. Eakin] will
not, by re-offending, present an undue risk to society before the expiration
according to law of the sentence [he is] serving and [his] release will
contribute to the protection of society by facilitating [Mr. Eakin’s] reintegration
into society as a law-abiding citizen”. The PBC then noted that Mr. Eakin
is serving an indeterminate sentence as a dangerous offender and that it was
also required to determine if his sentence has been tailored to meet his
specific needs. In the context of Mr. Eakin’s specific needs the PBC noted that
he was deportable to the United States if granted any form of release.
[7]
The PBC reviewed Mr. Eakin’s criminal history
and the circumstances surrounding the 1995 convictions and the 1991 convictions
that were considered in imposing an indeterminate sentence for the 1995
conviction. The PBC then considered various reports and plans noting clinician
concerns in a number of areas. The PBC noted that Mr. Eakin had not made
further gains in understanding his offence cycle and that he required further
counselling or programming in order to mitigate the risk for future re-offending.
The PBC acknowledged Mr. Eakin’s insistence that certain file information was
incorrect but noted that these factors were irrelevant. The PBC noted that the
relevant issue was the sexual assault and the absence of an explanation for the
behaviour.
[8]
The PBC then noted that the most recent
psychological risk assessment concludes an actuarial low to moderate risk for
future sexual offending. However the PBC noted this same assessment identified
a lack of insight and accountability that would need to be addressed before the
assessor could support any form of conditional release. The PBC was unwilling
to ignore or minimize the findings of this risk assessment.
[9]
The PBC concluded that Mr. Eakin continues to
pose a moderate risk for re-offending sexually and has very limited insight
into his sexual offending. As result the PBC did not believe that he had
mitigated his risk in a substantial way despite program completion. The PBC noted
that intensive supervision as well as counselling or programming opportunities
would be required if released into the community and these would not be
available in the event of deportation to another country. On these bases the PBC
denied day parole and full parole.
B.
Appeal Division Decision
[10]
The Appeal Division identified its role and
noted its jurisdiction to reassess the risk to re-offend and substitute its
discretion where it finds that the PBC decision was unfounded and unsupported
by the information available at the time the decision was made.
[11]
The Appeal Division set out Mr. Eakin’s grounds
for appeal and addressed them. It ultimately concluded, relying on the
actuarially assessed risk and the professional evidence indicating there was a
requirement for Mr. Eakin to further address risk factors and develop insight
into his sexual offending, that the PBC decision was reasonable and based on
reliable and persuasive information. The Appeal Board affirmed the decision to
deny day and full parole.
IV.
Standard of Review
[12]
In Cartier v Canada (Attorney General),
2002 FCA 384 [Cartier], the Federal Court of Appeal addressed the role
of this Court when reviewing a decision of the Appeal Board that affirms a decision
of the PBC. Décary JA, held that in such an instance this Court is required to
ensure that the PBC’s decision is lawful:
[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.
[13]
In Aney v Canada (Attorney General), 2005
FC 182 [Aney], Justice Beaudry considered Cartier and stated at
paragraph 29 “…the role of this Court, when the Appeal
Division has affirmed the [PBC's] decision, is to first, analyse the decision
of the [PBC] and determine its lawfulness, rather than that of the Appeal
Division. If the Court concludes that the Board’s decision is lawful, there is
no need to review the Appeal Division’s decision”.
[14]
The determination of an offender’s right to
conditional release is a question of mixed fact and law. The standard of review
to be applied is reasonableness, the same standard Parliament has prescribed
for the Appeal Division’s review of a PBC decision (Ye v Canada (Attorney
General), 2016 FC 35 at paras 9 and 10 [Ye], citing Aney at
para 30). This Court must determine whether the decision to deny the
applicant’s day and full parole falls within the range of possible, acceptable
outcomes that are defensible in respect of the facts and law (Ye at para
10 and Dunsmuir v New Brunswick, 2008 SCC 9 at para 47 [Dunsmuir]).
[15]
In addressing the alleged breach of procedural
fairness the Court must determine whether the duty to act fairly has been
satisfied within the specific context of the matter before the Court (Moreau-Bérubé
v Nouveau Brunswick (Judicial Council), 2002 SCC 11 at paras 74 and 75). In
addressing the alleged breach of procedural fairness the applicable standard of
review is correctness (Ye at para 10).
V.
Relevant Legislation
[16]
Relevant extracts from the Charter, the Corrections
and Conditional Release Act, SC 1992, c 20 [CCRA] and the Criminal Code,
RSC 1985, c C-46 [Criminal Code] are reproduced at Appendix A for
ease of reference.
VI.
Analysis
A.
Were Mr. Eakin’s rights under sections 7, 11(h)
and 12 of the Charter violated?
(1)
Sections 7 and 11(h)
[17]
Mr. Eakin’s Charter submissions are, in
part, linked to his submissions relating to the inaccurate information in
Correctional Services Canada’s [CSC] files. Specifically he submits that CSC documents
relied on by the PBC indicate he is serving his current indeterminate sentence
as punishment for both his 1991 convictions and his 1995 convictions. He points
out that he was sentenced separately for the 1991 convictions, a sentence that
has been fully served. He argues that CSC and the PBC have incorrectly indicated
in their documents that the start date of his indeterminate sentence was
October 28, 1991, the start date of his determinate sentence for the 1991
convictions. He submits that this error, coupled with what he characterizes as both
convictions being equally considered in CSC reports, amounts to him being
punished twice for the 1991 convictions contrary to sections 7 and 11(h) of the
Charter. I disagree.
[18]
The reports and documents Mr. Eakin points to as
being in error or mischaracterizing the nature of his sentence are neither
imposing a punishment under section 11(h) of the Charter nor contrary to
Mr. Eakin’s rights under section 7 of the Charter. He is serving an
indeterminate sentence that was imposed by the Ontario Court of Justice for the
1995 convictions. In imposing the indeterminate sentence the Court took note of
the 1991 convictions and described them as being “[o]f
greatest significance to this Court…” in the determination of the
dangerous offender application (R v Eakin, [1995] OJ No 5026 at
para 9 (Gen Div)). It is not unreasonable nor is it contrary to sections 7 and
11(h) of the Charter for CSC officials to have similarly attached great
significance to the 1991 convictions in generating reports and rendering decisions
relevant to Mr. Eakin’s parole eligibility.
(2)
Section 12
[19]
The dangerous offender provisions of the Criminal
Code have been found to be Charter compliant (R v Lyons, [1987]
2 SCR 309 at paras 9 and 108) and Mr. Eakin does not argue that the sentence,
as imposed, was unconstitutional. Rather he argues that the manner in which the
PBC has undertaken its duties has led to a violation of section 12 of the Charter.
He relies on Steele v Mountain Institution, [1990] 2 S.C.R. 1385 [Steele].
[20]
In Steele, the Supreme Court of Canada
held that section 12 may be violated where the PBC has unreasonably denied
parole to an offender serving an indeterminate sentence. An unconstitutional
denial of parole will only occur where the PBC “…errs
in the execution of its vital duties of tailoring the indeterminate sentence to
the circumstances of the offender” (Steele at para 83).
[21]
The PBC is guided in the performance of its
duties to tailor an indeterminate sentence by the CCRA, which sets out the
purpose for conditional release and identifies considerations and principles
relevant to conditional release decisions at sections 100, 100.1 and 101 (Latham
v Canada, 2004 FC 1585 at para 21).
[22]
Section 100.1 provides that the protection of
society is the paramount consideration in the determination of all cases. Only
where it is “…clear on the face of the record that the
[PBC] has misapplied or disregarded those criteria over a period of years with
the result that an offender remains incarcerated far beyond the time he or she
should have been properly paroled, then the PBC’s decision to keep the offender
incarcerated may well violate s. 12” (Steele at para 67).
[23]
In this case Mr. Eakin points to the outstanding
deportation order, the PBC conclusion that he will be deported if granted
parole, the conclusion that there is no opportunity to provide supervision,
support, surveillance or counselling upon deportation, the PBC’s interpretation
of his risk assessment, and his completion of required programming to argue
that the PBC has failed to tailor his indeterminate sentence to his
circumstances. In advancing this argument he points to his last three parole
hearings to demonstrate that the PBC’s position has been maintained over the years.
[24]
I am not persuaded by Mr. Eakin’s argument. The
PBC and the Appeal Division did not err in failing to tailor the sentence to his
circumstances. It is evident in reviewing the decisions that the purpose of
conditional release was recognized and the considerations and principles
identified in the CCRA were weighed and addressed. In doing so, the PBC
concluded that Mr. Eakin posed a moderate risk of re-offending sexually, that
he had limited insight into his sexual offending and that he had not mitigated
his risk in any substantial way despite program completion. The conclusion of
the Appeal Division’s review of the PBC’s decision stated:
Mr. Eakin, given the nature and severity of your
offending, your actuarially assessed moderate risk for general and violent
reoffending, professional opinion that you need to further address your risk
factors and develop your insight into your sexual offending, psychological
opinion that your case required a gradual reintegration process beginning with
a transfer to a lower security institution, the lack of support of your CMT,
and the lack of viable and realistic release plans, the Appeal Division
concludes that the Board’s decisions are reasonable and based on reliable and
persuasive information.
[25]
It was these factors that underpin the decision,
not simply an inability to closely supervise or monitor Mr. Eakin if granted
conditional release. I would also note the cited concerns relating to offence
insight and risk factors are within the control of an offender.
[26]
In concluding that there has been no section 12
breach, I am mindful of the words of Justice Cory in Steele where he
states at paragraph 80:
It will only be on rare and unique occasions
that a court will find a sentence so grossly disproportionate that it violates
the provisions of s. 12 of the Charter. The test for determining
whether a sentence is disproportionately long is very properly stringent and
demanding. A lesser test would tend to trivialize the Charter.
B.
Was there a breach of procedural fairness?
[27]
The crux of Mr. Eakin’s procedural fairness
argument is his belief that the file material held by CSC contains numerous
factual errors, some the result of alleged errors in the sentencing reasons and
others created by CSC staff. Specifically Mr. Eakin alleges the following
breaches of procedural fairness:
A.
The refusal to consider all relevant and available
information in the conduct of the risk assessment;
B.
The continuing use of erroneous information in
the completion of risk assessments and the decision-making process;
C.
The adoption of the most negative interpretation
of the evidence where there is conflicting evidence; and
D.
The presentation of untruthful information to
the PBC by the parole officers at the hearings, those officers having refused
to accept, act upon or otherwise redress erroneous file information.
[28]
Mr. Eakin relies on subsection 24(1) and paragraph
101(a) of the CCRA to argue that the respondent had an obligation to maintain
the accuracy of information and rely on accurate information in decision
making. Subsection 24(1) of the CCRA requires CSC to take reasonable steps to
ensure the currency, accuracy and completeness of offender information. Paragraph
101(a) in turn requires that the PBC or the Appeal Board “take into consideration all relevant available information…”.
[29]
It is not the duty or responsibility of the PBC
to correct or update file information in the course of carrying out duties
under the CCRA. As noted by Justice Rouleau in ASR v Canada (National Parole
Board), 2002 FCT 741 at paragraph 21:
While the applicant is concerned that the
record contained inaccuracies, the Board determined that the information is
relevant and reliable. It is not within its purview to look behind the
documents that have been collected by CSC. The applicant's objections
should therefore be addressed to the CSC, not to the Board. For example, in Tehrankari
v. Canada (Correctional Service) (2000), 2000 CanLII 15218 (FC), 188 F.T.R.
206, the Court intervened to correct inaccuracies in the file of an inmate at
Kingston Penitentiary. In that case, however, the inmate initially filed a
complaint pursuant to subsection 24(2) of the CCRA. When his complaint was
dismissed, he applied the grievance procedure referred to in section 90 of the
CCRA and further set out in sections 74 to 82 of the Corrections and
Conditional Release Regulations, SOR/92-620. Still unsatisfied but having
exhausted all of his internal remedies, he then finally brought his application
for judicial review to the Court within the thirty days prescribed by the
Federal Court Act, R.S.C. 1985, c. F-7 , s. 18.1(2). Justice Lemieux was
obviously persuaded by some of his arguments. (Emphasis added)
[30]
In rendering its decision the Appeal Division
has considered and addressed Mr. Eakin’s concerns relating to the accuracy and
completeness of the information on his file, pointing out that requests to
correct file information may be made pursuant to subsection 24(2) of the CCRA.
[31]
It is also apparent in reviewing the record that
Mr. Eakin’s concerns relating to the accuracy of information contained in the
1995 sentencing decision, assessment reports and other documents are not new. Mr.
Eakin has previously sought to address alleged file
errors via the grievance process and judicial review before this Court. That
judicial review application arose in the context of a third and final level
grievance decision where Mr. Eakin took issue with the accuracy of information
relied on in determining that he was to be maintained as a medium security
offender (Eakin v Canada (Attorney General), 2014 FC 959 (Eakin FC)).
In that application Justice Catherine Kane noted that CSC is entitled to rely
on the decisions of the Courts (Eakin FC at para 58). Justice Kane
further noted that Mr. Eakin, having raised his concerns on several occasions
has “…failed to pursue the proper process to seek to
have the information on his file corrected …he has not provided sufficient and
complete information to allow CSC to follow-up” (Eakin FC at para
60).
[32]
The PBC is required to consider relevant
information, including the reasons and recommendations of the sentencing judge.
The fact that Mr. Eakin takes issue with the accuracy of aspects of the file
information before the PBC and Appeal Board does not render the process
procedurally unfair. This is particularly true where the formal process provided
by CSC to address concerns with the accuracy of information have not been
pursued.
C.
Was the decision to deny parole unreasonable?
[33]
In rendering the negative decision the PBC and
Appeal Board identified their respective roles including the requirement that
there was an additional responsibility to determine whether Mr. Eakin’s
sentence has been tailored to his specific needs. Mr. Eakin’s offence history
was reviewed, as was the role of substance use in the commission of his offences.
The views of his case management team were considered as they related to his reintegration
potential and his program record was addressed. Mr. Eakin’s evidence before the
hearing, the input from his institutional parole officer and the contents of a
number of professional assessments were all considered.
[34]
In denying parole, the evidence was identified,
analysed and relied upon to explain the conclusions reached. The Appeal
Division weighed the severity of the offending, the actuarially assessed risk, the
professional evidence indicating there was a need for Mr. Eakin to further address
risk factors and develop insight into the offences committed, the need for a
gradual reintegration process, the lack of support from the case management
team and the absence of a viable and realistic release plan. The decision was justified,
transparent and intelligible, and falls within a range of possible, acceptable
outcomes which are defensible in respect of the facts and law (Dunsmuir
at para 47).
D.
Did the Appeal Division err in failing to
address the timing of Mr. Eakin’s next legislated full parole review
[35]
In the covering correspondence to the PBC
decision sent to Mr. Eakin he was advised that his next legislated full parole
review will occur in June 2020 subject to him advising the PBC in writing that
he waives his right to this review.
[36]
In his submissions to the Appeal Board Mr. Eakin
took issue with the date established for his next full parole review. He
submitted that changes to section 123 of the CCRA, which on judicial review
there was no dispute this specifically meant subsection 123(5.01), a subsection
that came into force in 2015, did not apply in his case. Subsection 123(5.01) provides
for a maximum five year interval between parole hearings for violent offenders.
Mr. Eakin argued that in his case subsection 761(1) of the Criminal Code
is the operative legislative provision. That provision requires that a person
serving an indeterminate sentence be granted a parole review not later than
every two years after the previous review. Mr. Eakin submitted this would place
his next review in June 2017 rather than in June 2020.
[37]
The Appeal Board did not address this issue. Mr.
Eakin submits that the failure to do so was a reviewable error. I agree.
[38]
In response to a request from the Court for
further submissions on this point the parties have provided arguments relating
to the interpretation of the relevant provisions. However, on judicial review
it is not for the Court to address the issues placed before the decision-maker
on a de novo basis, nor is it for the Court to presume what a tribunal
might have determined had it addressed the issue in question. Rather a
reviewing Court is required to assess whether the tribunal has committed a
reviewable error or come to an unreasonable conclusion based on the facts
before it and the law.
[39]
As stated above, the balance of the Appeal
Division’s decision was reasonable. However, by not addressing Mr. Eakin’s
concern regarding the timing of his next mandatory parole hearing, the Appeal
Division, in affirming the PBC’s decision also affirmed the determination that Mr.
Eakin’s next mandatory parole hearing would be in June 2020, not in June 2017
as Mr. Eakin alleges. Without reasons from the Appeal Division on which date
applies depending on the statutory regime chosen, the Court is not in a
position to determine how the Appeal Division, or the PBC reached the
conclusion that the next mandatory parole hearing would be in five years. It is
true that a decision-maker’s failure to address all arguments made or render an
explicit finding on each constituent element of an argument or issue will not necessarily
impugn the validity of either the reasons or the result (Newfoundland and
Labrador Nurses’ Union v Newfoundland and Labrador (Treasury Board), 2011
SCC 62 at para 16). Indeed, both the PBC and the Appeal Board provided ample
reasons for the balance of their findings. However, without reasons on the
issue of timing, here the decision lacks the requisite, transparency,
intelligibility and justification that would give the Court confidence that the
final decision falls within the range of possible, acceptable outcomes which
are defensible in respect of the facts and law (Dunsmuir at para 47).
[40]
Therefore, it was a reviewable error for the
Appeal Board to fail to address the issue Mr. Eakin raised on the PBC’s
determination that the next mandatory parole hearing would be in five years. However
the failure to address this issue of the timing of Mr. Eakin’s next mandatory
parole hearing does not impact upon or undermine the reasonableness of the
other substantive determinations of the Appeal Board relating to the denial of
parole discussed above. As a result the matter will be returned to the Appeal
Board only for its consideration and determination of when the PBC will next be
required to conduct a parole eligibility hearing.
VII.
Conclusion
[41]
The application is granted in part. In light of
the mixed result there will be no award of costs.
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