Docket: T-1158-16
Citation:
2017 FC 605
[ENGLISH
TRANSLATION]
Ottawa, Ontario, June 19, 2017
PRESENT: The
Honourable Justice Martineau
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BETWEEN:
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JEAN-BAPTISTE
BLACKSMITH
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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, Mr. Jean-Baptiste Blacksmith, is
a long-term offender subject to a long-term supervision order (LTSO). In this
case, the Parole Board of Canada (the Board) maintained the suspension of the
LTSO and recommended that an information be laid charging the applicant with an
offence under section 753.3 of the Criminal Code, RSC 1985,
c. C-46. However, in exercising the discretion conferred upon it under
subsection 140(2) of the Corrections and Conditional Release Act,
SC 1992, c. 20 (CCRA), it determined that an oral hearing was not
warranted in this case, hence this application for judicial review and
declaratory relief.
[2]
The applicant is Aboriginal, from Mashteuiash,
and a member of the Innu and Cree Nations. He is currently 34 years old. His
parents went through the residential school system, and his childhood was
marked by great instability, varied abuse and deviant role models. His personal
history includes placement in more than 30 foster homes before he reached the
age of majority.
[3]
His criminal history dates back to his teenage
years. The applicant’s criminal record was opened in 1999, at age 16, when he
was accused of sexual contact involving a 13-year-old girl. An information had
also previously been laid against him in relation to physical touching of a
six-year-old girl. His juvenile criminal record also documents a sexual assault
in 2002 committed against a young woman with an intellectual disability. The
victim appears to have suffered significant injuries requiring emergency surgery.
[4]
In 2011, the applicant was charged with two
counts of sexual assault. In one case, on December 8, 2008, he assaulted a
friend’s partner while she was pregnant, causing her to have a miscarriage. In
the other, he assaulted his sister on January 15, 2010. The applicant pleaded
guilty to these criminal charges.
[5]
At the time of his appearance, the Court of
Québec ordered him to undergo a psychiatric assessment, which revealed a risk
of violent recidivism and concluded that the applicant met the criteria for classification
as a “long-term offender” under the law. In
addition, a specialized sexual deviance assessment conducted in 2011 indicated
a valid, non-deviant but problematic profile.
[6]
On June 8, 2011, the Court of Québec
sentenced the applicant to four years, two months and 15 days in prison after
he was found guilty of two charges of sexual assault. At that time, the Court
declared the applicant a “long-term offender”
and ordered that his name be added to the sex offender registry for a period of
20 years.
[7]
The applicant is under the legal authority of
the Correctional Service of Canada (the Service) and is subject to an LTSO that
will expire in 2021. Specifically, the Board imposed supervision conditions it
considered reasonable and necessary to protect society and facilitate his
reintegration. In addition to his assignment to a community correctional
centre, the LTSO sets out numerous conditions with which the applicant must
comply, including not consuming alcohol, not communicating directly or
indirectly with the victims or their families, and informing his supervisor if
he begins seeing or having intimate relations with any woman. Agreements were
also made between the applicant and his case management team to restrict his
travel and his use of Facebook among other activities.
[8]
On March 27, 2014, the applicant was released
subject to the special condition of house arrest. However, this release was
suspended on April 14, 2015, after he entered into a relationship with a
woman that resulted in deterioration of his behaviour. The Board agreed
nevertheless to vacate the suspension and to release him again while varying
his release conditions.
[9]
Long-term supervision of the applicant in the
community consequently began on August 22, 2015. However, the Service
suspended the applicant’s community supervision on two occasions as a result of
various breaches of these conditions.
[10]
On September 18, 2015, the applicant’s LTSO
was suspended after he failed to inform his team immediately concerning a new
relationship and then provided a misleading explanation. On November 12,
2015, following this suspension, the Board ordered that a hearing be held.
Before the Board could make a decision concerning the applicant, however, the
Attorney General filed charges against him on November 24, 2015, for
breach of conditions. The applicant eventually pleaded guilty to these charges
and was sentenced to 15 days in prison. He was released on March 4, 2016,
and his long-term supervision resumed a few days later.
[11]
On March 17, 2016, the applicant’s LTSO was
suspended once again due to the applicant’s failure to comply with its
conditions. While supervising the applicant unannounced at the Aboriginal
friendship centre, the applicant’s parole officer surprised him sitting with a
woman, telephone in hand, and talking with her for more than 15 minutes. When
confronted concerning these events by his case management team, the applicant
provided inconsistent and false explanations.
[12]
On March 31, 2016, the applicant was
confronted with the facts alleged against him during a post-suspension
interview conducted by an authorized Service representative. The Service
subsequently decided to maintain the suspension and refer the case to the
Board.
[13]
On April 7, 2016, the Service prepared an “Assessment for Decision” (Assessment), including a
recommendation that an information be laid charging the applicant with an
offence under section 753.3 of the Criminal Code. The Assessment,
which must be read in conjunction with the most recent correctional plan update
and the applicant’s criminal profile, was shared with the applicant on
April 2, 2016.
[14]
On May 9, 2016, counsel for the applicant
submitted written representations to the Board, while requesting an in-person
post-suspension hearing to assess the applicant’s understanding of the numerous
special conditions to which he was subject. Counsel also noted that failure to
hold a hearing would violate the jurisprudential principles established by the
Supreme Court in R. v. Gladue, [1999] 1 S.C.R. 688, and R. v. Ipeelee,
2012 SCC 13, [2012] 1 S.C.R. 433, which provide that members of the justice system
shall take into consideration the specific realities of Aboriginals.
[15]
The request for a post-suspension hearing was
based on two arguments:
a)
Subsection 140(2) of the CCRA – which
provides for a discretionary post-suspension hearing for offenders subject to
an LTSO – violates sections 7 and 9 of the Canadian Charter of Rights and
Freedoms – Part I of the Constitution Act, 1982 [Charter]
[the Charter argument]; and
b)
In the applicant’s case, a hearing is all the
more necessary to maintain procedural fairness, notably in relation to the
cultural considerations specific to the applicant [administrative law
argument].
[16]
On May 24, 2016, the Board expressed its
opinion on the case, finding that the information in its possession was [translation] “reliable
and relevant” and enabled it to make an [translation]
“informed decision.” With respect to the Charter
and administrative law arguments, the Board said nothing in the impugned
decision. With regard to considerations relating to the applicant’s Aboriginal
origins, the Board takes into consideration his childhood and difficult teenage
years but notes regardless that his [translation]
“criminal behaviour calls for the greatest prudence.”
The Board concludes by noting that the applicant needs to show greater [translation] “transparency,
cooperation and understanding in regard to the factors contributing to [his]
criminal behaviour and situations that could lead to additional victims.”
[17]
Examining his behaviour in terms of public
safety and the protection of society, the Board maintained the suspension of
the LTSO and recommended that a new information be laid under section 753.3 of
the Criminal Code, finding that no supervision program could adequately
protect society against the applicant’s risk of recidivism and that, by all
appearances, he had failed to comply with his supervision conditions. That
decision is the subject of this application.
[18]
On June 10, 2016, the attorney general
filed two criminal charges for breach of conditions imposed under the LTSO
against the applicant, concerning which he pleaded guilty and was sentenced to
90 days in prison.
[19]
The Attorney General of Canada is currently the
respondent in this case. In accordance with section 57 of the Federal
Courts Act, RSC 1985, c. F-7, a notice of constitutional question was
duly served on the respondent, as well as on the attorney general of each
province, though they decided not to participate in the hearing.
[20]
At issue is the extent of the Board’s obligations
with respect to natural justice, the law and/or the Charter when,
following the suspension of an LTSO, it decides under subsection 135.1(6)
of the CCRA to maintain the suspension of the LTSO and/or to recommend that an
information be laid charging the offender with an offence under
section 753.3 of the Criminal Code.
[21]
This Court heard the parties’ submissions on the
merits concurrently with the application for judicial review and declaratory
judgment of another long-term offender regarding a similar decision by the
Board, raising the same questions of administrative and constitutional law (see
Bilodeau-Massé v. Attorney General of Canada, 2017 FC 604 [Bilodeau-Massé]).
[22]
At the hearing, counsel for the two applicants
stated that the applicants were abandoning any claim regarding the violation of
section 9 of the Charter, which provides that “[e]veryone has the right not to be arbitrarily detained or
imprisoned.” Nevertheless, counsel for the applicants argues that the
lack of guarantee of a post-suspension hearing violates section 7 of the Charter
[constitutional question]. For one, the suspension of the LTSO and the
resulting reincarceration affect the offender’s residual liberty. Moreover, the
principles of fundamental justice require that the offender be able, in all
cases, to appear in person before the Board for a post-suspension hearing.
The hearing must be held prior to the expiration of the statutory time limit of
90 days set out in section 135.1 of the CCRA, unless the offender
waives this right in writing or refuses to attend the hearing. In addition, the
two applicants argue that the Board also breached procedural fairness, or
otherwise rendered an unreasonable decision, by refusing to hold a
post-suspension hearing, which warrants Court intervention.
[23]
Although the Federal Court has jurisdiction to
decide the constitutional question and make a formal declaration of invalidity,
the respondent defends the constitutionality of subsections 140(1) and (2)
of the CCRA. The Board acted under the authority of the law. The discretion to
hold a hearing granted to the Board in subsection 140(2) of the CCRA does
not violate section 7 of the Charter: the offender’s freedom is not
involved, and the discretion to hold a post-suspension hearing is not
incompatible with the principles of fundamental justice. The Court must
interpret the legislation in a manner that is consistent with these principles.
A hearing is not necessarily required in all cases. Because the
authority to hold a post-suspension hearing is not removed, subsections 140(1)
and (2) of the CCRA do not violate section 7 of the Charter.
Additionally, any violation is justifiable under section 1. Regardless, there
was no breach of procedural fairness, and the impugned decision by the Board is
reasonable in all regards.
[24]
The standard of correctness applies to the
review of the constitutional question, to the determination of the legal scope
of the rules of natural justice or procedural fairness, and to the question as
to whether – given the particular facts of the case – the Board breached
procedural fairness by maintaining the suspension of the LTSO and recommending
that an information be laid charging the offender with an offence under
section 753.3 of the Criminal Code, without having held a hearing.
At the same time, the standard of reasonableness applies to the review of the
Board's determinations regarding the case (Dunsmuir v. New Brunswick,
2008 SCC 9, [2008] SCJ No. 9; Canada (Citizenship and Immigration) v.
Khosa, 2009 SCC 12, [2009] SCJ No. 12 [Khosa]; Gallone v.
Canada (Attorney General), 2015 FC 608, [2015] FCJ No. 598 at
paragraph 7 [Gallone]; Laferrière v. Canada (Attorney General),
2015 FC 612, [2015] FCJ No. 578 [Laferrière FC]).
[25]
The same issues debated by the parties in Bilodeau-Massé
– including the theoretical nature of certain questions or remedies, the
jurisdiction of the Court and discretion to render a declaratory judgment and
the merit of the Charter and administrative law arguments – are raised
in relation to the present application for judicial review and declaratory
judgment. In light of the particular facts of the case and the applicable
federal statutory provisions, and having considered all of the parties’
submissions and the relevant case law, I am satisfied that the Federal Court
has jurisdiction to decide the constitutional question. It is also appropriate
to issue a declaratory judgment on the constitutionality of subsections 140(1)
and (2) of the CCRA, clarifying the extent of the Board’s obligations under the
principles of fundamental justice. The immediate result of the declaratory
judgment that follows these reasons will be to bind the parties to the case and
the tribunal against which it is rendered. The reasoning of the Court in Bilodeau-Massé
is entirely applicable to the present matter.
[26]
For these reasons, the applicant has a right to
a declaratory judgment, which is mentioned in the next paragraph.
[27]
In terms of exercising the jurisdiction set out
in section 135.1 of CCRA, the long-term offender’s residual liberty is limited
through the suspension of an LTSO. The Board must act fairly before upholding
the LTSO suspension and recommending that a charge referring to section 753.3
of the Criminal Code be laid by the Attorney General. The principles of
fundamental justice oblige the Board, before it refuses to hold an in-person,
post-suspension meeting with the offender, to ensure that the reliable and
convincing nature of information in the file enables it to make an informed
decision. When the file contains incomplete or contradictory information that
is relevant to the case review or that could be clarified by the offender, a
post-suspension hearing must be held. This is also the case when the offender
has difficulties (cognitive, mental health, physical or other) that prevent him
from communicating effectively in writing or when a question of credibility is
a determining factor in the file. Any refusal to hold an oral hearing must be
given in writing. Consequently, the legislative discretion to hold a
post-suspension hearing does not violate section 7 of the Charter. Subsections
140(1) and (2) of the CCRA are not constitutionally invalid or inoperative in
the case of long-term offenders whose file is referred to the Board following
the suspension of an LTSO.
[28]
The Court otherwise refuses the other
compensation or statements sought by the applicant. Without costs.
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