Docket: T-865-16
Citation:
2017 FC 836
Toronto, Ontario, September 18, 2017
PRESENT: The
Honourable Mr. Justice Locke
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BETWEEN:
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DAVID EDWARD
FAIRFIELD
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Applicant
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and
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PAROLE BOARD OF
CANADA
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Respondent
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JUDGMENT AND REASONS
I.
Overview
[1]
The applicant is an offender serving an
indeterminate sentence of imprisonment (following his designation as a
dangerous offender) who seeks judicial review of the denial of his application
for parole.
[2]
For the reasons set out below, I have concluded
that the present application should be dismissed.
[3]
At the outset, I wish to warn readers of this
decision that it contains graphic descriptions of the applicant’s crimes and
other acts of a sexual nature.
II.
Backgrounds Facts
A.
Criminal History
[4]
The applicant’s designation as a dangerous
offender, and consequent indefinite imprisonment, followed his conviction on
four counts of attempted sexual assault. This is referred to as the index offence.
It involved two separate attempts by the applicant in September 1989 to lure
young girls into his vehicle. A police search of the applicant’s vehicle at the
time found handcuffs, a knife, rope, a camera, paper towels, a ground sheet,
pills in a container labelled “penis-enlarger”,
a pair of girl’s panties and a teddy bear carrying a beach ball. A subsequent
search of the applicant’s home found:
- A photo album
containing pictures of young girls that appeared to have been taken in a
public place;
- Nightgowns that
would fit young girls;
- Clippings of
newspaper advertisements requesting babysitters for young girls;
- A pornographic
book about a girl’s first sexual experience;
- Documents the
applicant had written, including:
- One detailing a
plan to abduct two young girls called “A True
Story”;
- Another
entitled “Plans for the Future” containing
stories of sexually assaulting little girls, a list of 65 schools in
various towns, complete with the number of students and teachers in each
school, the location of police detachments in the areas, a list of local
motels, and a description of disguises and vehicles for use to commit
these crimes;
- Another
entitled “The Best Years of My Life, The First
Trip” was a detailed story of abducting and murdering young girls
that included the use of handcuffs, a knife and a camera.
[5]
The following table provides information
concerning the applicant’s criminal history prior to the index offence:
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Date
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Offence
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Sentence
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November 7, 1960
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Common Assault
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Suspended sentence, nine months’
probation
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July 29, 1963
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Indecent Assault on Female
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Suspended sentence, 18 months’ probation
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October 26, 1964
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Common Assault
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Three months definite, 18 months
indefinite
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January 6, 1965
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Breach of Recognizance
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Two years definite, two years indefinite
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March 18, 1969
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Indecent Assault on Female, Possession of
a Weapon, and Common Assault
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10.5 years
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August 6, 1980
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Possession of a Weapon
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Seven years and six months
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[6]
According to a psychological/psychiatric
assessment report dated July 20, 2015, that was referred to in the Parole Board
of Canada’s decision, the applicant has acknowledged sexually assaulting or
attempting to sexually assault 17 girls between the ages of 5 and 13 beginning
when he was 17 years old and ending with his indefinite incarceration in 1989
(when he was 50 years old). With one exception, the girls were victimized only
once. The exception was a 7-year-old neighbour of the applicant who was
sexually assaulted about 12 times when he was 17 years old.
[7]
The applicant has also acknowledged having:
- Stolen young
girls’ garments, from clothes lines or by entering back doors of houses,
for masturbatory purposes;
- Made obscene
phone calls to young girls after obtaining phone numbers from babysitting
advertisements;
- Offered rides to
victims;
- Forced or
dragged victims into his car, sometimes at knife point or using an
imitation gun;
- Undressed or
molested some of his victims;
- Masturbated in
front of victims;
- Had his victims
masturbate him;
- Choked one
victim;
- Used a knife to
force victims to comply with his wishes;
- Threatened to
kill one victim if she continued screaming while he dragged her to his
car.
B.
Details of the Applicant
[8]
Including the almost 28 years since being
incarcerated indefinitely for his index offence, the applicant has spent almost
50 years of his life behind bars. He is now 78 years old and in poor health. He
uses a wheelchair and suffers from a litany of ailments. He claims he has not
fantasized about young girls for many years and is no longer interested in
them.
[9]
He is a citizen of the United Kingdom. Though he
has lived in Canada since 1950, he never became a citizen of Canada. Because of
his conviction for an offence punishable with a maximum term of imprisonment of
ten years, he has been subject to a Deportation Order since 1999. Therefore, if
the applicant is granted parole, he is to be released into the custody of
Canadian Border Services Agency (CBSA) for removal to the UK. The applicant
accepts this. In fact, he has expressed a wish to return to his home country, as
well as a concern that he will die in prison first.
[10]
In November 2013 the applicant made a request
under the International Transfer of Offenders Act, SC 2004, c 21, for
transfer to England. Such a transfer would require the consent of Canada, of the
UK and of the applicant. It appears that Canada and the UK have recently
consented to the requested transfer. It remains only for the applicant to
consent. Though it appears that the applicant now has a path to obtaining his
stated goal of returning to his home country before he dies, the parties are
agreed that the present application is not moot. It appears that the
circumstances of the applicant’s return to the UK would be quite different if
he were deported as a parolee as opposed to being transferred under International
Transfer of Offenders Act.
C.
Applicant’s Institutional Behaviour
[11]
It appears that the applicant has behaved well
in prison. He obeys the rules, is respectful toward others and is not engaged
in any criminal or gang activity. He is also not suspected of any substance
abuse.
[12]
In 2001 he completed a high intensity group
therapy program as part of which he wrote a comprehensive crime cycle and
relapse prevention plan. He did well in the program. However, having completed
that program once, he could not repeat it, and was limited thereafter to
maintenance programs. He participated in such programs until 2009, after which
he refused further participation. He also refused to be interviewed about his
refusal to participate. He claims that, after serving 20 years of his
indefinite sentence and being denied parole several times, he lost faith that
further participation would be fruitful.
[13]
The applicant has participated in numerous
Escorted Temporary Absences from prison without incident, and has developed a
pro-social support network.
III.
Impugned Decisions
[14]
The applicant seeks judicial review of a May 2,
2016 decision of the Appeal Division of the Parole Board of Canada which
affirmed an October 21, 2015 decision of the Parole Board denying the
applicant’s application for parole. Hereinafter, these two tribunals will be
referred to the Appeal Division and the PBC, respectively.
[15]
The Appeal Division had the power to reverse,
cancel or vary the decision of the PBC: s. 147(4)(d) of the Corrections and
Conditional Release Act, SC 1992, c 20. In this sense, the Appeal Division
has the power associated with an appeal. However, the grounds of appeal listed
in s. 147(1) are essentially those associated with judicial review: Cartier
v Canada (Attorney General), 2002 FCA 384 at para 6 [Cartier].
Where, as here, the Appeal Division has affirmed the PBC’s decision, the judge
on judicial review of the Appeal Division’s decision is actually required
ultimately to ensure that the PBC’s decision is lawful: Cartier at para
10. Accordingly, it is necessary to look at both decisions.
[16]
The criteria for granting parole are set out in
section 102 of the Corrections and Conditional Release Act:
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102 The Board or a provincial parole
board may grant parole to an offender if, in its opinion,
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102 La
Commission et les commissions provinciales peuvent autoriser la libération
conditionnelle si elles sont d’avis qu’une récidive du délinquant avant
l’expiration légale de la peine qu’il purge ne présentera pas un risque
inacceptable pour la société et que cette libération contribuera à la
protection de celle-ci en favorisant sa réinsertion sociale en tant que
citoyen respectueux des lois.
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(a) the offender will not, by
reoffending, present an undue risk to society before the expiration according
to law of the sentence the offender is serving; and
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[en blanc]
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(b) the release of the offender will
contribute to the protection of society by facilitating the reintegration of
the offender into society as a law-abiding citizen.
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[en blanc]
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A.
The PBC’s Decision
[17]
The PBC began its decision by summarizing its
task as well as some pertinent details of the applicant’s history.
[18]
The PBC also made reference to certain
information and reports that were considered in reaching its decision. In
addition to some of the facts discussed above, these included:
- The increasing
violence of the applicant’s offences over time;
- His offences
were well thought-out in advance of actually committing them;
- Contributing
risk factors identified by Correctional Service Canada (CSC) as requiring
a high level of intervention, such as personal/emotional orientation and
community functioning;
- Reports that the
applicant has not displayed insight into his offences or crime cycle, and continues
to minimize his offences, including stating that he “never hurt anybody” (apparently based on the
fact that he never penetrated any of his victims);
- Because of his
refusal to participate in further treatment programs, he is not considered
engaged in his Correction Plan and his reintegration potential has been
rated as low;
- Psychological
assessments that have diagnosed the applicant as being sexually deviant,
and showing traits of men who tend to reoffend sexually at a high rate,
giving rise to a high risk to reoffend sexually despite his age and
limited mobility, and necessitating significant coordination, information
sharing and strict supervision if released;
- The applicant
has not provided a release plan to address his need for strict supervision
if released, and his relapse prevention plans are superficial;
[19]
After summarizing and balancing the positive and
negative aspects of the applicant’s case, the PBC concluded that the latter
outweigh the former, and the risk that the applicant will reoffend remains
undue. The PBC denied parole on that basis.
B.
The Appeal Division’s Decision
[20]
Based on its limited power, the Appeal Division
indicated that it could intervene only where it found that the PBC’s decision
was unfounded and unsupported by the information that was available at the time;
it does not have the jurisdiction to substitute its discretion for that of the
PBC unless the PBC’s decision was unreasonable or unfounded.
[21]
The Appeal Division summarized the analysis in
the PBC’s decision and the applicant’s arguments, and concluded that there were
no grounds for it to intervene.
[22]
Among its comments, the Appeal Division stated
that the concern for “an undue risk to society”
and the effort to “contribute to the protection of
society” in s. 102 of the Corrections and Conditional Release Act
refer to any society rather than just Canadian society. It concluded
that the PBC was therefore correct to consider society in the UK where the
applicant would be released.
[23]
The Appeal Division also confirmed that the PBC
had accurately summarized the applicant’s criminal history and progress in
addressing his risk factors. The Appeal Division found that the PBC’s
conclusion that the applicant’s sentence was being tailored to meet his needs
was reasonable.
[24]
The Appeal Division summarized the key
conclusions of the relevant Psychological Risk Assessment, and noted CSC’s
assessment of the applicant’s reintegration potential, motivation and level of
accountability as low.
[25]
The Appeal Division also found no merit in the
specific points raised in the applicant’s submission.
IV.
Issues in Dispute
[26]
The applicant argues, on various grounds, that the
Appeal Division’s decision, based as it was on the findings of the PBC, was reviewable.
The following arguments are addressed in the analysis below:
- Erroneous
conclusion that the applicant minimizes his offences and the harm caused
thereby;
- Improper
reliance on reports virtually copied from earlier reports;
- Improper focus
on fictional stories of a sexual nature authored by the applicant long
ago;
- Improper
reliance on alleged acts for which the applicant was not convicted rather
than his criminal record;
- Acting unfairly
and beyond its jurisdiction in thwarting the applicant’s request and the
CBSA’s efforts to return to him to the UK;
- Failure to
contact authorities in the UK to make adequate arrangements for a deported
parolee;
- Erroneous
conclusion that the applicant could/would still lure young girls for
sexual purposes;
- Improper
reliance on the applicant’s refusal to participate in Sex Offender
Maintenance Program;
- Erroneous
conclusion that the applicant still has unaddressed needs;
- Improper use of the
present perfect tense to suggest that the applicant’s acts in the long
past continue to the present.
[27]
The applicant also argues that his continued
incarceration violates ss. 7, 12 and 15 of the Canadian Charter of Rights
and Freedoms, Part I of the Constitution Act, 1982, being Schedule B
to the Canada Act 1982 (UK), 1982, c 11 [Charter], as well as s.
2 of the Canadian Bill of Rights, SC 1960, c 44.
V.
Analysis
A.
Standard of Review
[28]
For the most part, the errors alleged by the
applicant are to be reviewed on a standard of reasonableness. This is certainly
true of arguments by the applicant concerning the weight given to various
issues and evidence related thereto. Though the applicant did not argue the
point, I recognize that his argument that the PBC acted outside its
jurisdiction or failed to perform its duty may be subject to review on a
standard of correctness.
B.
Minimization of Offences
[29]
The PBC appears to have relied on statements by
the applicant that he never penetrated any of his victims as a basis for
concluding that he minimized his offences. The PBC may also have reached this
conclusion based in part on the applicant’s assertion that his index offence
concerned mere attempted (not actual) sexual assaults.
[30]
The applicant asserts that he was simply stating
facts when he noted these things. The applicant argues that it was therefore improper
for the PBC to characterize his statements as minimization of his offences.
[31]
I cannot agree. A person’s statements of mere
facts during a discussion of their offences and the harm those offences have
caused may, in context, reveal that the person does not recognize the
seriousness of their offences. In the applicant’s case, his further statement
that he “never hurt anybody” suggests just that.
His repeated references to not having penetrated his victims and having merely
attempted sexual assault in his index offence also suggest that he considers these
facts to somehow excuse or lessen the severity of his offences. No other reason
for the applicant having repeated these statements has been suggested.
[32]
The applicant seems to wish to emphasize that
the harm he caused his victims was largely mental, not physical. I have two
reactions to this. Firstly, since the applicant has acknowledged that he forced
or dragged some of his victims, that he molested them, had them masturbate him,
and choked one victim, it is difficult to understand any suggestion that harm
to his victims was not physical. I can only think that the applicant’s concept
of physical harm required some sort of permanent injury. I disagree. My second
reaction to the idea that harm to the applicant’s victims was mainly mental is
to note that mental harm, even though it is not visible, can be much more painful
and enduring for the victim than any physical harm.
[33]
Another argument that was raised in the
applicant’s oral argument concerned the only one of his victims who was
assaulted more than once. The applicant’s counsel characterized the series of
interactions between that girl (who was 7 years old at the time) and the
applicant (who was 17 at the time) as an “affair”
and an “ongoing relationship”. I should note
that the applicant’s counsel appears to have been under the impression that
this neighbour girl was 12 years old at the time of the assaults, not 7.
Nevertheless. I cannot accept the characterization of a relationship between a
17 year old boy and a young girl, whether she is 7 or 12, as an affair. The
word “affair” suggests an ongoing consensual
romantic relationship. However, a young girl obviously does not have the
capacity to give the required consent. I also reject counsel’s suggestion that “romantic encounters do happen at that age”, again
regardless of whether the girl was 7 or 12.
[34]
The applicant has not convinced me that it was
unreasonable to conclude that he minimized elements of his offending.
C.
Reports Copied from Earlier Reports
[35]
The applicant complains that many portions of
the PBC’s report are essentially copied from earlier reports, presumably
suggesting that the PBC did not properly consider the situation.
[36]
In my view, it is understandable that the PBC’s
report would contain many passages that are similar to, or even the same as,
passages found in previous PBC reports. Most of the underlying facts appear to
be unchanged, including the applicant’s index offence, his other criminal
convictions, other acts he has acknowledged for which he was not convicted, and
his unwillingness to participate in maintenance programs. To the extent that
the relevant facts are unchanged, it is reasonable that the PBC’s conclusion
would likewise remain unchanged.
[37]
Without any indication that the PBC failed to
consider the relevant facts, or misunderstood them, or applied them
unreasonably, I am not prepared to find that the PBC erred in reproducing
portions of its report from previous reports. To find otherwise would force the
PBC to find different words for each report to say essentially the same things.
This would be a waste of effort.
D.
Fictional Stories
[38]
The applicant complains that the PBC makes too
much of his stories, which are fictional and were written long ago.
[39]
Firstly, I am not convinced that the PBC misunderstood
the fictional nature of the applicant’s stories or that they were written long
ago. Also, it is for the PBC to decide on the weight that should be given to
these stories. The fact that they are fictional and written long ago does not
prevent the PBC from considering them. Moreover, the PBC mentions these stories
only once in its decision. It does not appear that they were given undue
weight.
[40]
The applicant also argues that he has freedom of
thought and of expression, that the writings in question were not criminal in
any way, and that he should not be punished for writing such fantasy. The
respondent counters that the applicant is not being punished for writing. This
is not a matter of freedom of thought or of expression. Rather, the PBC
included the applicant’s writings as a relevant consideration in its
decision-making. I agree. It was not unreasonable for the PBC to make reference
to the applicant’s disturbing writings.
E.
Acts Outside Criminal Record
[41]
The applicant argues that the PBC gives “altogether too much weight” to evidence of acts of a
sexual nature committed by him but for which he was never convicted.
[42]
As noted above with regard to the applicant’s
fictional stories, it is for the PBC to decide on the weight that should be
given to the evidence. The acts in question were admitted to by the applicant.
The fact that the applicant committed these acts is not in dispute.
[43]
The applicant argues that it is unfair to have
encouraged him, as part of his participation in therapy programs, to be open
about his past acts, and then to hold those acts against him later. The
applicant argues that he should be given credit for his frankness.
[44]
In my view, the applicant’s honesty and
frankness with regard to his past acts is an issue that could reasonably be put
to the PBC for its consideration. However, I am not prepared to conclude that
it was unreasonable for the PBC, as part of its decision-making, to consider
acts of a sexual nature committed by the applicant, even if he were not
convicted of any offence in respect of such acts, and even if those acts were
disclosed voluntarily by the applicant.
[45]
The applicant argues that it was highly
prejudicial to use the applicant’s own statements against him. Given that the
fact that the applicant committed these acts is not in dispute, I do not agree
that the PBC’s reliance on them was prejudicial to the applicant.
F.
Thwarting Deportation Efforts
[46]
The applicant argues that, for 17 years, the PBC
has been thwarting efforts by him and by the Canadian Border Services Agency
(CBSA) to have him deported to the UK by refusing to grant him parole. The
applicant argues that, in so doing, the PBC has acted beyond its jurisdiction
and refused to exercise its jurisdiction. In support of his position, the
applicant quotes passages from the Appeal Division’s decision referring to the
CBSA and the applicant’s request for an international transfer. These passages
include the following: “The CBSA states that it had not
been able to remove you from Canada under a deportation order because you were
being held indefinitely in custody as a danger to the public as declared by the
Minister of Citizenship and Immigration.”
[47]
In my view, nothing in the above-quoted passage,
or the rest of the passages cited by the applicant, supports the argument that
the PBC appeared to want to thwart the applicant’s deportation. In fact, from
my reading of the PBC’s decision as a whole, I understand the PBC to have given
fair consideration to the applicant’s wish to return to England, and to the
requirements for granting that wish.
[48]
I do not accept that the PBC acted outside its
jurisdiction when it prevented the applicant’s deportation by refusing to grant
him parole. There is no doubt that the applicant has been subject to deportation
since 1999. However, s. 50(b) of the Immigration and Refugee Protection Act,
SC 2001, c 27, makes it clear that a removal order against a foreign national
sentenced to prison in Canada is stayed until the sentence is completed. It
appears that this provision has been applied as intended.
[49]
The applicant argues that the PBC improperly
assumed that the UK does not have adequate checks on parolees. I disagree. I
think the applicant was closer to the mark with an observation that the PBC
does not want to lose control of the applicant. In my view, that is a reasonable
concern for the PBC to have, given (i) the PBC’s responsibility for the risk to
society wherever it may be (not just in Canada – Collins v Canada (Attorney
General), 2012 FC 268 at para 39; Scott v Canada (Attorney General),
2010 FC 496 at para 49), and (ii) the applicant’s history of offending while on
release from detention.
G.
Duty to Contact UK Authorities
[50]
The PBC’s decision observed that the applicant
had not provided a release plan to his case management team. The applicant
argues that it was unreasonable to expect the applicant to come up with a
release plan because (i) he is incarcerated, and (ii) his release would be in
the UK. The applicant argues that the PBC had a duty to facilitate his building
of a release plan by contacting authorities in the UK. The applicant urges that
the PBC should at least have pressured the applicant’s parole officer to do so.
[51]
I disagree. The job of the PBC was to consider
the applicant’s parole application. A release plan is a document that might be
provided to the PBC as part of a parole application, but I have seen nothing to
indicate that it is the PBC’s duty to work to build that plan.
[52]
The applicant also argues that if the PBC has no
duty to facilitate building a release plan in the UK, then it should follow
that its concern for the protection of society does not extend to the UK.
Again, I disagree. Firstly, as indicated above, the jurisprudence indicates
that “society” is not limited to Canadian
society. Secondly, I do not agree with the logic of tying the scope of the
PBC’s duty to the scope of its concern for the protection of society.
H.
Possibility that Applicant May Still Lure Young
Girls
[53]
With regard to the applicant’s physical capacity
to commit further sexual offenses, the PBC’s decision stated:
At 76 years old you are considerably older
than you were when you committed the index offence. You have experienced a
series of more or less significant health issues since 2001 and are not as
mobile or as healthy as you were when you began to serve your sentence.
[54]
The applicant adds that he is confined to a
wheelchair. However, the PBC concluded that the applicant remained a high risk
to offend.
[55]
The applicant argues that it is unreasonable to
conclude that a wheelchair-bound man could commit sexual offenses of the kind
the PBC is concerned about. Among other things, the applicant argues that the
PBC employs a double standard in that it dismisses his health problems that are
in the past, but dwells on his sexual acts that have not occurred for several
decades.
[56]
I do not accept this “double
standard” argument. I see nothing unreasonable in considering whether
past acts by the applicant (even long past acts) might happen again, and also
not considering health problems that do not currently affect the applicant’s
ability to commit such acts.
[57]
Despite the applicant’s arguments, I am of the
view that the PBC’s conclusion that he remains a high risk to offend was
reasonable. He may be older and less physically able than he was, but he
remains able to lure children. He claims that he no longer has the urges that
led him to commit the sexual acts that concerned the PBC, but the PBC considered
those claims.
I.
Refusal to Participate in Maintenance Programs
[58]
The applicant argues that his refusal to
participate in maintenance programs concerning his therapy should not be held
against him. As discussed above, he explains that he participated actively in
such programs until 2009 when, after serving 20 years of his indefinite
sentence and being denied parole several times, he essentially gave up
believing that his further participation would help him get parole.
[59]
This is an explanation that may or may not have
been given to the PBC in explaining his refusal to participate in maintenance
programs. However, either way, I am not prepared to find that it was
unreasonable for the PBC to conclude that, despite the applicant’s explanation,
his continued refusal was of concern.
J.
Applicant’s Unaddressed Needs
[60]
The applicant notes that the PBC stated: “The most recent program you completed indicated that you
still have a number of unaddressed needs.” The applicant argues that the
PBC failed to identify these unaddressed needs.
[61]
I cannot agree. The PBC’s decision cites several
examples of the applicant’s unaddressed needs, including the superficial nature
of his plans to prevent his relapse.
K.
The Supreme Court of Canada’s Decision in Warden of Mountain Institution v Steele
[62]
The applicant’s memorandum of fact and law
states, somewhat enigmatically: “The Parole Board of
Canada decision is being challenged consistent with Warden of Mountain
Institution v. Steele, [1990] 2 S.C.R. 1385 [(Steele)].” The
applicant expanded little on this at the hearing.
[63]
Steele clarified
requirements for proper assessment of parole applications. As in the present
case, it concerned a prisoner who was serving an indeterminate sentence.
However, the differences between Steele and the present case are
critical. In Steele, parole was denied despite, not because of,
submissions that were received by the National Parole Board (as it was called
then). That is not the case here. Also, the Supreme Court found that
disciplinary breaches that swayed the Board were explicable and not sufficient
to deny parole. In the present case, the PBC’s decision was not based on
disciplinary breaches.
[64]
I am not convinced that, in the present case,
the PBC failed to heed the instructions in Steele.
L.
Use of Present Perfect Tense
[65]
This argument was raised by the applicant during
the hearing, but was not mentioned in his memorandum of fact and law. The
applicant argues that the PBC’s use of the present perfect tense in its
decision improperly suggests that the applicant continues to commit the acts
referred to.
[66]
The only example of this that I have found in
the PBC’s decision is the following passage at page 4: “your
predatory behaviour and deviant sexual attraction to female children is long
standing and has spanned over 60 years of your life” (emphasis
added). The applicant’s counsel cited other examples, but these came from
another document, and were not part of the PBC’s impugned decision.
[67]
The applicant argues that it is untrue that the
applicant’s criminal history has spanned 60 years of his life, since he has
been in prison since 1989, and there is no indication of any criminal activity
by him while incarcerated.
[68]
While the applicant is factually correct, I am
satisfied that the PBC did not misunderstand the fact that the applicant has
not committed a sexual offense since he was incarcerated in 1989. In fact, the
PBC noted his generally appropriate behaviour during that time. I am also
satisfied that there was nothing unreasonable in the PBC’s use of the present
perfect tense.
M.
Charter and Canadian Bill
of Rights Arguments
[69]
As indicated above, the applicant argues that
his rights under ss. 7, 12 and 15 of the Charter, as well as s. 2 of the
Canadian Bill of Rights, have been violated by the PBC’s decision.
[70]
The applicant notes that the PBC acknowledged
during the hearing of his parole application that his was a challenging file, “and not least because you are both a dangerous offender and
a deportation case.” The PBC went on to state: “These
things make it particularly challenging for the board, because for all
practical purposes, I think it’s fair to say that some of the interventions
that are open to other offenders, are effectively closed off to you.”
[71]
Unfortunately, the applicant’s arguments on
these issues are superficial. The applicant cites no jurisprudence and, beyond
citing the PBC’s comments in the preceding paragraph and the applicant’s
situation as a foreign national, the applicant does little more than quote the
relevant provisions of the Charter and the Canadian Bill of Rights.
[72]
Because the applicant has offered little in the
way of reasoned argument, it is difficult to provide detailed reasons in response.
I will say that I am not convinced that there has been any violation of the
applicant’s rights. The applicant remains in prison due to an indefinite sentence
whose validity is not in issue. I have not found any aspect of the PBC’s
decision to be unreasonable.
[73]
Because the applicant seems to place the most
weight on an argument that he was treated differently from a Canadian citizen,
I will make a comment regarding s. 15 of the Charter which guarantees
equal benefit of the law without discrimination based on a number of grounds,
including national origin. I am unable to agree that the complicating fact of
the applicant’s situation as a “deportation case”
is sufficient to entitle him to parole. The PBC’s concern for the protection of
society must be considered a critically important consideration in deciding the
applicant’s parole application, even if his situation is complicated by his
impending deportation. The challenges of the applicant’s situation are not
insurmountable.
[74]
The applicant also notes that s. 2 of the Canadian
Bill of Rights provides that “no law of Canada
shall be construed or applied so as to … authorize or effect the arbitrary
detention, imprisonment or exile of any person”. The applicant argues
that the PBC’s decision subjects him to arbitrary exile from his home country.
In my view, the applicant’s difficulties in returning to the UK can only be
characterized as arbitrary to the extent that some aspect of the PBC’s decision
can be characterized as unreasonable. As I have indicated, I have found no
aspect of the PBC’s decision to be unreasonable.
VI.
Conclusion
[75]
For the foregoing reasons, the present
application should be dismissed with costs.
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