Docket: T-1863-16
Citation:
2017 FC 1030
Ottawa, Ontario, November 10, 2017
PRESENT: The
Honourable Mr. Justice Gleeson
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BETWEEN:
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CHRESTOPHER
BARRETT
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Applicant
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and
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THE MINISTER OF
PUBLIC SAFETY AND EMERGENCY PREPAREDNESS AND THE ATTORNEY GENERAL OF CANADA
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Respondents
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JUDGMENT AND REASONS
I.
OVERVIEW
[1]
Mr. Barrett brings this application for judicial
review pursuant to sections 18 and 18.1 of the Federal Courts Act, RSC,
1985, c F-7, and sections 24 and 52 of the Constitution Act, 1982, being
Schedule B to the Canada Act 1982 (UK), 1982, c 11. He seeks review of a
decision of the Parole Board of Canada, Appeal Division [the AD], dated October
4, 2016, affirming the Parole Board of Canada [PBC] decision to deny him day
parole.
[2]
Mr. Barrett is currently serving an eight-year
sentence at Beaver Creek Institution, a medium-level security facility. He was
sentenced in October 2014 after pleading guilty to possession of proceeds of
crime exceeding $5000 contrary to section 354(1) of the Criminal Code,
RSC 1985, c C-46, exporting cocaine out of Canada contrary to section 6(1) of
the Controlled Drugs and Substances Act, SC 1996, c 19, and conspiracy
to commit an indictable offence contrary to section 465(1)(c) of the Criminal
Code.
[3]
Mr. Barrett argues that the AD decision: (1)
violated his right to the presumption of innocence as guaranteed by section
11(d) 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]
and his section 7 liberty interests; (2) was procedurally unfair; and (3) was
unreasonable, as was the underlying PBC decision. Although the application
indicates reliance upon section 52 of the Constitution Act, 1982 Mr.
Barrett has not challenged the constitutional validity of any of the provisions
of the Corrections and Conditional Release Act, SC 1992, c 20 [CCRA].
His counsel confirmed in oral submissions that he was not taking the position
that the CCRA or any of its provisions are inconsistent with the Constitution.
[4]
For the reasons set out below I am unable to
conclude that the decision was unreasonable, that there was a breach of
procedural fairness or that Mr. Barrett’s Charter rights were violated.
The application is dismissed.
II.
Background
[5]
The Certified Tribunal Record indicates that Mr.
Barrett was placed under surveillance by the RCMP as the result of an arrest in
the United Kingdom involving the importation from Toronto of a large quantity
of cocaine in October 2011. In November 2013, in the course of that
surveillance, Mr. Barrett was observed placing an object in his vehicle and
then meeting a Ms. Simone. He took a picture of Ms. Simone and then drove to
the international airport. He carried luggage into the airport and after Ms.
Simone checked-in he handed the luggage to her. She checked the luggage and
went through security. The luggage was seized by police and was found to
contain nine kilograms of cocaine valued at approximately $350,000. As a result
a search warrant was executed at Mr. Barrett’s home where a number of items
were seized and he was arrested.
[6]
Mr. Barrett pled guilty to possession of
proceeds of crime exceeding $5000, the unlawful exporting of cocaine and
conspiring to export cocaine.
[7]
The sentencing transcript indicates that the
RCMP investigation determined that Mr. Barrett had purchased travel tickets for
different individuals, including Ms. Simone, on a number of occasions over a
two-year period. The sentencing transcript further indicates that Mr. Barrett
was not in the business of cocaine exportation on his own behalf but was acting
on behalf of another person and was paid approximately $3000 each exportation.
He was involved in about five such transactions. He believed the suitcases
contained drugs.
[8]
On October 27, 2014 an eight-year sentence for
the exporting and conspiracy charges and a one-year sentence for the possession
of proceeds of crime charge were imposed. The sentences were to be served
concurrently.
[9]
Mr. Barrett became eligible for day parole on
June 26, 2016. In seeking day parole Mr. Barrett had requested to reside at the
Cornerstone Community Residential Facility [Cornerstone], a halfway house in
Oshawa. His case was presented to the Toronto East Parole Office Community
Assessment Team [CAT]. The CAT was comprised of parole supervisors, parole
officers, Cornerstone staff members, community members and representatives of
the regional police force. After reviewing the case the CAT did not support the
request for day parole release to Cornerstone.
[10]
The Correctional Service of Canada [CSC] did not
recommend Mr. Barrett for day parole before the PBC, citing concerns with his
attitude, unwillingness to take ownership for the offences he had been
convicted of and his failure to secure a spot at Cornerstone.
[11]
A hearing was held before the PBC on May 3, 2016
and Mr. Barrett was denied day parole. That decision was appealed to the AD. On
October 4, 2016 the AD affirmed the PBC decision.
III.
Parole Board of Canada’s Decision
[12]
In denying day parole, the PBC noted that it may
grant parole if, in its opinion, the offender will not, by reoffending, “present an undue risk to society before the end of the
sentence” and if early release “will contribute
to the protection of society by facilitating reintegration into society as a
law abiding citizen.”
[13]
The PBC noted that there were a number of
positive factors to consider including Mr. Barrett’s limited criminal record,
his low risk of reoffending, his good institutional behaviour, and his support
in the community. The PBC indicated that his expressions of remorse were
sincere and identified his pro-social contact with his wife and low SIR score
(which indicate a low risk to reoffend) as positive factors.
[14]
Despite these positive elements, the PBC found
that in the hearing Mr. Barrett denied or minimized the extent of his
involvement in the drug smuggling operation. The PBC concluded that his release
plan was inadequate after finding that he lacked credibility and insight into
his crime, and that his Criminal Profile Report only rated his reintegration
potential, accountability and motivation as medium.
[15]
The Board balanced the positive aspects of the
applicant’s file with the ongoing concerns and concluded his risk to reoffend
was unacceptably high. Day parole was denied.
IV.
Appeal Board Decision
[16]
Before the AD, Mr. Barrett argued that the PBC
had committed numerous errors. Specifically he argued that the PBC:
A.
erred in law by considering allegations and
incidents for which he was neither charged nor convicted or where charges had
been withdrawn;
B.
erred in finding that he had minimized his
offence and did not take responsibility for his actions. On this ground, he
argued further that it was unreasonable for the Board to make conclusions
regarding his finances, travel, failure to file income tax returns in respect
of his business and his denial of criminal charges;
C.
did not give sufficient weight to the positive
factors in his file and unreasonably overrode the determination of the
applicant’s psychologist; and
D.
did not weigh his release plan when it considered
the gains made during his sentence.
[17]
The AD found that in assessing an offender’s
risk of reoffending the PBC was required to take into account all relevant
information, including criminal charges that did not lead to a conviction. The
AD noted that in conducting this assessment the PBC was not bound by the
presumption of innocence or the burden of proof beyond a reasonable doubt and
that the incidents that did not result in convictions were properly considered
because they were indicative of the applicant’s lifestyle and associations. The
AD further found that it was not unreasonable for the PBC to refer to the fact
that Mr. Barrett’s company owed back taxes.
[18]
The AD held that: (1) the PBC appropriately
weighed the identified positive and negative factors; (2) it was appropriate
for the PBC to have considered Mr. Barrett’s involvement in a large
sophisticated drug smuggling operation that caused significant harm to the
community; (3) the PBC did not unreasonably conclude that Mr. Barrett’s
explanations indicated he had minimized his involvement in the crime; and (4)
the PBC provided detailed reasons as to why it did not agree with the
psychological assessment’s conclusions regarding minimized involvement and
insight.
[19]
In affirming the PBC decision the AD noted that
it is not the AD’s role to substitute its discretion for that of the PBC unless
the PBC decision was unreasonable or unfounded. In this case, the AD found that
the decision was reasonable and consistent with the decision-making criteria set
out in law and Board policy.
V.
Relief Sought
[20]
Mr. Barrett seeks the following relief:
A.
A declaration that:
i.
it is contrary to section 7 of the Charter
for the PBC, the AD, or CSC to rely on charges against the applicant which were
dismissed in assessing risks to public safety or otherwise in respect of parole
or correctional decisions;
ii.
it is contrary to section 7 of the Charter
for the PBC, the AD or the CSC to rely on charges against the applicant which
were withdrawn, absent reliable and persuasive information, which must be more
than allegations based on a police synopsis or summary of allegations in
assessing risks to public safety or otherwise in respect of parole or
correctional decisions;
iii.
it is contrary to section 7 of the Charter
for the PBC, the AD or the CSC to rely on any summary of an investigation
without charges being laid, absent reliable and persuasive information which
must be more than a summary of portions of an investigation in assessing risks
to public safety or otherwise in respect of parole or correctional decisions;
iv.
the CSC, PBC and/or AD demonstrated bias or a
reasonable apprehension of bias contrary to the principles of natural justice
and fundamental justice under section 7 of the Charter; and
v.
the CSC, PBC and/or AD acted perversely, unlawfully
and unconstitutionally, contrary to section 7 of the Charter in relying
on risk assessment tests such as the SIR (which disqualified the applicant from
correctional programming) while at the same time using the applicant’s lack of
participation in rehabilitative programs or activities to conclude that the
applicant presents too great a risk of reoffending to be released on parole.
B.
An order:
i.
quashing the CSC decision not to support/approve
a halfway house and refusing day parole;
ii.
quashing the PBC and/or AD decision(s) refusing
day parole; and
iii.
granting Mr. Barrett day parole or, in the
alternative, directing the PBC to conduct a new hearing in accordance with any
direction of this Court;
C.
Costs on a party/party basis.
VI.
Issues
[21]
The applicant raises a number of issues which I
have framed as follows:
1.
Was the process procedurally unfair?
2.
Was the AD decision denying the appeal and
affirming the decision to deny day parole reasonable?
3.
Were Mr. Barrett’s Charter rights violated?
VII.
Standard of Review
[22]
The Supreme Court of Canada has held that a
standard of review analysis need not be performed where the applicable standard
is well-established by previous case law (Dunsmuir v New Brunswick, 2008
SCC 9 at paras 51, 53, 57, 62 [Dunsmuir]; Khosa v Canada (Citizenship
and Immigration), 2009 SCC 12 at para 53).
[23]
This is a judicial review of the AD’s decision
to affirm a PBC decision; in such cases this Court is required to ensure that
the PBC’s decision is lawful (Cartier v Canada (Attorney General), 2002
FCA 384 at para 10; Aney v Canada (Attorney General), 2005 FC 182 at
para 29 [Aney]).
[24]
PBC decisions that engage questions of fact,
mixed fact and law, and of law falling within the PBC’s specialized expertise
are reviewable on a standard of reasonableness (Ngo v Canada (Attorney
General), 2005 FC 49 at para 8; Ye v Canada (Attorney General), 2016
FC 35 at para 9; Aney at para 31). When applying the standard of
reasonableness, the reviewing Court will give deference to the decision under
review and will only intervene where the decision fails to demonstrate the
existence of justification, transparency and intelligibility in the
decision-making process or where the outcome falls outside the range of
possible, acceptable outcomes based on the facts and the law (Dunsmuir
at paras 47 and 50).
[25]
An alleged breach of procedural fairness is to
be considered within the specific context of the matter before the Court (Moreau-Bérubé
v Nouveau Brunswick (Judicial Council), 2002 SCC 11 at paras 74-75) and
will be reviewed against a standard of correctness (Mission Institution v
Khela, 2014 SCC 24 at para 79).
VIII.
Analysis
A.
The legislative framework
[26]
The Parole Board of Canada is provided for at
section 103 of the Corrections and Conditional Release Act, SC 1992, c
20 [CCRA] and includes the Appeal Division (CCRA s 146(1)).
[27]
The purpose of conditional release is to
contribute to the maintenance of a just, peaceful and safe society by deciding
on the timing and conditions of release that “best
facilitate the rehabilitation of offenders and their reintegration into the
community of law-abiding citizens” (CCRA section 100). The “protection of society is the paramount consideration for the
Board and the provincial parole boards in the determination of all cases”
(CCRA section 100.1).
[28]
The CCRA identifies the principles that guide
the PBC in achieving the purpose of conditional release (section 101) and
outlines the conditions under which the PBC may grant parole (section 102),
stating:
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102. The Board or
a provincial parole board may grant parole to an offender if, in its opinion,
(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
(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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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 protection de celle-ci en favorisant sa réinsertion
sociale en tant que citoyen respectueux des lois.
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[29]
Subsection 107(1) provides the PBC with “exclusive jurisdiction and absolute discretion” to
grant parole to an offender; section 147 provides a right of appeal to the AD
on prescribed grounds.
B.
Issue 1: Was the process procedurally unfair?
[30]
Mr. Barrett argues that the manner in which the
PBC assessed and weighed the evidence before it suggests bias or a reasonable
apprehension of bias. He specifically takes issue with the PBC’s reliance in
its risk assessment on (1) past criminal charges that were in one instance
dismissed and in another instance withdrawn, and (2) a Canada Border Services
Agency [CBSA] investigation which did not result in the laying of a charge. He
argues the PBC placed greater weight on this information than it did on the
fact that he had pled guilty to the index offences and that a psychologist
report indicated he accepted responsibility for his offences.
[31]
Mr. Barrett further notes that bias is
demonstrated in the manner in which the SIR score was considered. He submits
that his favourable SIR score, which indicated a low public safety risk and
resulted in him being screened out of programming to address identified risk
factors, was given insufficient weight by the PBC. He also argues that his
failure to participate in any programming to address the PBC’s identified risks
was held against him despite the fact that he was screened out of programming
due to the favourable SIR score. He argues that the reliance on the SIR score
to exclude him from rehabilitation programming and then to rely on the failure
to complete programming was perverse and reflects bias that amounts to a
jurisdictional error.
[32]
I am unpersuaded by Mr. Barrett’s arguments.
What he has characterized as bias is more properly framed as a dispute over
whether the information about past criminal charges, the CBSA investigation,
and the SIR were properly before the PRB, and if so, whether they were weighed
appropriately by the PRB and subsequently the AD.
[33]
The information relating to the CBSA
investigation, the dismissed and withdrawn charges, and the SIR assessment was
all properly before the PBC. The PBC was required to consider this information
in rendering its decision. The weight given to individual pieces of evidence
and inferences drawn are not a basis upon which to argue a reasonable
apprehension of bias (Fernandez v Canada (Attorney General), 2011 FC 275
at para 42).
[34]
Mr. Barrett takes issue with the manner in which
CSC uses the SIR. CSC’s policies and practices are not within the control of
the Board and are not a proper subject of review in the context of this
application.
[35]
Mr. Barrett has not submitted, nor does the
record indicate, that he was denied the right to be heard. He does not submit
that he was not given notice of or that he was unaware of the evidence that was
before the PBC. The SIR assessment, information relating to the CBSA
investigation, and the information relating to withdrawn and dismissed charges
were all before the PBC with Mr. Barrett’s knowledge and he had the opportunity
to make representations in respect of this information.
[36]
Mr. Barrett has also not argued that this
information was irrelevant to the PBC’s paramount consideration, the protection
of society. The PBC was required to consider “all
relevant information” (CCRA sections 100.1 and 101).
[37]
Mr. Barrett’s submissions in relation to how the
evidence was weighed do not raise issues of bias.
[38]
Similarly, Mr. Barrett’s disagreement with the
SIR and its use as a tool within the correctional system is not an issue within
the Board’s control and does not raise the issue of bias. The SIR is
information provided to the Board. It is for the Board to consider and weigh
that information, not to assess the appropriateness of, or alleged shortfalls
with, the tool itself. The Board’s treatment of the SIR information is
addressed in the reasonableness analysis below.
[39]
While I am not convinced the issue of bias
arises on these facts, I would also note that this issue was not raised before
the AD. An objection to the jurisdiction of a decision-maker or tribunal based
upon a reasonable apprehension of bias is to be raised at the earliest
practicable opportunity, failing which a party is deemed to have waived the
right to object (Canada (Human Rights Commission) v Taylor, [1990] 3 SCR
892, 75 DLR (4th) 577; Zündel v Canada (Canadian Human Rights Commission),
[2000] 4 FCR 255, 195 DLR (4th) 399 (FCA)).
C.
Issue 2: Was the AD decision denying the appeal
and affirming the decision to deny day parole reasonable?
[40]
The role and function of the AD is described in Beaupre
v Canada (Attorney General), 2002 FCT 463 at para 19:
In Costiuc, supra, Tremblay-Lamer
J. set out the legal framework within which this court may judicially review a
decision by the NPB Appeal Division. Tremblay-Lamer J., said at para 6:
The Appeal Division’s function is to
ensure that the NPB has complied with the Act and its policies and has observed
the rules of natural justice and that its decisions are based on relevant and
reliable information. It is only where its findings are manifestly unreasonable
that the intervention of this Court is warranted.
[41]
Mr. Barrett argues that the decision to deny
parole was unreasonable for a number of reasons. In challenging the
reasonableness of the decision, the core argument advanced is disagreement with
the Board’s assessment and weighing of the positive and negative factors in
reaching a decision on day parole.
[42]
Mr. Barrett submits that the PBC and in turn the
AD failed to reasonably consider the fact that he had pled guilty to the index
offences, that he had not been convicted of a violent crime, there was no
victim and that the index offences were Mr. Barrett’s first convictions. He
further argues that the PBC failed to consider his prior compliance with bail
conditions and unreasonably rejected a favourable psychologist’s report. These
factors he submits all weighed in favour of granting day parole. Instead, the
PBC unreasonably and unlawfully relied on withdrawn and dismissed charges, a
CBSA investigation that did not result in any charges being laid, and unpaid
taxes as a basis for refusing day parole. I am not convinced by Mr. Barrett’s
arguments.
[43]
As set out above the Board is required to take
into account all relevant and available information (CCRA section 101, Mooring
v Canada (National Parole Board), [1996] 1 S.C.R. 75 at para 29, 132 DLR (4th)
56 [Mooring]). The Board does not act in either a judicial or
quasi-judicial manner; it does not hear evidence but rather acts on information
in an inquisitorial capacity (Mooring at paras 25 and 26).
[44]
In this case, the facts and circumstances as
they related to the offences for which Mr. Barrett was convicted were reviewed.
The PBC acknowledged that Mr. Barrett had no previous criminal convictions but
did note previous charges that had been dismissed or withdrawn and information
relating to the CBSA investigation. With respect to the impact of the crime,
the PBC noted that the drug smuggling operation caused significant harm to the
community over a long period of time.
[45]
The PBC’s consideration of information relating
to the dismissed and withdrawn charges, and the AD’s conclusion that PBC did not
err in doing so is consistent with both the jurisprudence and the Board’s
paramount consideration, the protection of society. The AD cited the decision
of this Court in Prasad v Canada (National Parole Board) (1991), [1992]
51 FTR 300, 5 Admin LR (2d) 251 (TD) [Prasad] which held that such
information was relevant as it was indicative of an individual’s lifestyle and
associations (Prasad at para 15). The AD reasonably concluded that the
information was relied on for this purpose. The AD further found that this
information was not a determining factor in the Board’s decision.
[46]
I would also note that considering charges for
which no conviction has been entered in an administrative proceeding, such as
that before the PBC, is not inconsistent with the right to be presumed innocent
(Giroux v Canada (National Parole Board) (1994), 89 FTR 307 at para 20,
[1994] FCJ No 1750 (TD)).
[47]
The AD also found it was not unreasonable for
the PBC to have noted Mr. Barrett’s back tax situation. Mr. Barrett submits
that this information is of minimal relevance to safety concerns, and that it
renders the decision unreasonable. It does not. The AD reasonably concluded
that it was not unreasonable for the PBC to note this situation. The index
offences include a proceeds of a crime conviction. Financial considerations
were therefore not irrelevant. I would also note that the information was not
identified as a determinative factor in the Board’s weighing of the positive
and negative factors relevant to its decision.
[48]
Mr. Barrett also argues that the PBC and in turn
the AD unreasonably concluded that he had denied or minimized the extent of his
involvement in the crime. He argues that in pleading guilty he acknowledged he
was willfully blind to the contents of the suitcases and that this amounts to
an admission in law of actual knowledge. As such there has been no minimization
of involvement or responsibility.
[49]
The AD’s treatment of the PBC’s conclusions on
this issue is not unreasonable. In this case the Board reached its conclusion
based on the content of Mr. Barrett’s oral submissions: “[a]fter listening to you the Board concludes that you
continue to minimize your involvement in the offences and to demonstrate a lack
of insight into both the causes and consequences of your criminal behavior.”
In his submissions to the PBC Mr. Barrett reported that he suspected the
suitcases contained either drugs or money, and he denied purchasing travel
tickets for couriers on other occasions. These statements were at odds with
other evidence on the record, including the sentencing transcript.
[50]
On appeal, the AD addressed Mr. Barrett’s issues
with the PBC’s minimization finding, and held that the finding was reasonably
available to it. The AD determination was in turn reasonable and provides no
basis for this Court’s intervention.
[51]
Mr. Barrett further submits that the PBC
decision did not provide reasons for rejecting a psychologist’s report stating
he had admitted guilt, was genuinely remorseful, and understood the
consequences of his actions. The AD directly addresses the PBC’s consideration
of the psychologist’s report. In doing so the AD notes that the PBC provided a
detailed analysis as to why it did not agree with the psychologist’s
conclusions and held it was reasonable for the PBC to also weigh the views
expressed by the Case Management Team on the issues of minimized involvement
and insight into the offences committed. In short the PBC and the AD did
address the psychologist’s report and Mr. Barrett’s issue here is simply one of
disagreement.
[52]
Mr. Barrett also argues that the PBC engaged in
unsubstantiated speculation in rejecting his assertion that he was unaware of
the quantity of cocaine being exported and that the AD erred in failing to
address the issue. Contrary to this submission the AD did address the findings
of the PBC broadly noting that the conclusions reached were reasonable. While
the AD did not embark on a detailed analysis of this argument, the failure to
do so does not render the decision unreasonable.
[53]
The PBC decision summarized Mr. Barrett’s
submissions, highlighted concerns the PBC had with those submissions, noted
conflicts between the submissions and other information on the record, and
stated that it preferred that information over Mr. Barrett’s. The PBC then
concluded that Mr. Barrett “did at times present as
less than credible.”
[54]
While I would have preferred the AD to have
directly addressed the submissions relating to unsubstantiated speculation, the
failure to do so does not, as I note above, render the decision unreasonable.
The decision of the AD “must be read together with the
outcome and serve the purpose of showing whether the result falls within a
range of possible outcomes” (Newfoundland and Labrador Nurses’ Union
v Newfoundland and Labrador (Treasury Board), 2011 SCC 62, at para 14 [Newfoundland
Nurses]). As Justice Abella stated at paragraph 16 of Newfoundland
Nurses:
16. Reasons may not include all the
arguments, statutory provisions, jurisprudence or other details the reviewing
judge would have preferred, but that does not impugn the validity of either the
reasons or the result under a reasonableness analysis. A decision-maker is
not required to make an explicit finding on each constituent element, however
subordinate, leading to its final conclusion (Service Employees’
International Union, Local No. 333 v. Nipawin District Staff Nurses Assn., [1975]
1 S.C.R. 382, at p. 391). In other words, if the reasons allow the reviewing
court to understand why the tribunal made its decision and permit it to
determine whether the conclusion is within the range of acceptable outcomes,
the Dunsmuir criteria are met.
[Emphasis added.]
[55]
Finally Mr. Barrett submits that the Board’s
finding that his outstanding risks had not been addressed through programming
was unreasonable. The PBC acknowledged that Mr. Barrett’s SIR score precluded
him from programming within the Integrated Correction Programming Model but the
PBC noted that adequate voluntary steps to address risks had not been taken.
The AD acknowledged this issue on appeal and held the PBC’s conclusions to be
reasonable on the facts. The AD finding is consistent with both the content of
the PBC decision and the information on the record identifying the availability
of a referral option for further education upgrading and skills development.
[56]
The AD reasonably concluded that the PBC’s
findings were consistent with information in the record and the submissions
made to it in the course of the hearing. I am satisfied that the decision
reflects the Dunsmuir criteria of justification, transparency and
intelligibility in the decision making process and reaches a result that falls
within the range of acceptable outcomes based on the facts and the law.
D.
Issue 3: Were Mr. Barrett’s Charter rights
violated?
[57]
Mr. Barrett submits that the PBC’s reliance on
past criminal charges that were in one instance dismissed and in another
instance withdrawn and a CBSA investigation which did not result in the laying
of a charge was contrary to his section 7 liberty interests under the Charter
and his section 11(d) right to the presumption of innocence.
[58]
Mr. Barrett submits that although the PBC can
rely on withdrawn charges or an investigation it can only do so where the
information is persuasive and reliable. In advancing this argument Mr. Barrett
relies on the Supreme Court of Canada decision in Mooring. In this case
he submits that a police synopsis is not reliable and persuasive information
and there was no reliable and persuasive information on the record in respect
of the charges or the investigation.
[59]
Mooring involved
a situation where the respondent had been released on mandatory supervision and
was subsequently arrested and charged with possession of housebreaking
instruments. The charges were later stayed, apparently because the Crown
believed that the search resulting in the seizure of the housebreaking
instruments had been conducted in violation of the Charter and the
evidence would be inadmissible at trial. The issue before the Supreme Court of
Canada was whether the National Parole Board was a court of competent
jurisdiction for the purposes of section 24 of the Charter. Justice
Sopinka, writing on behalf of the majority answered this question in the
negative. He then addressed “what procedures the Board
must follow when faced with evidence that has been gathered in a manner
violating the rights of the parolee” (Mooring at para 33). In
considering this question Justice Sopinka described the content of the Board’s
duty to act fairly (at paragraphs 36 and 37):
36. What is the content of the Board's
"duty to act fairly"? The content of the duty of fairness varies
according to the structure and the function of the board or tribunal in
question. In the parole context, the Parole Board must ensure that the
information upon which it acts is reliable and persuasive. To take an extreme
example, information extracted by torture could not be considered reliable by
the Board. It would be manifestly unfair for the Board to act on this kind of
information. As a result, the Board would be under a duty to exclude such
information, whether or not the information was relevant to the decision.
Wherever information or "evidence" is presented to the Board, the
Board must make a determination concerning the source of that information, and
decide whether or not it would be fair to allow the information to affect the
Board's decision.
37. In determining whether or not it
would be fair to consider a particular piece of information, the Board will
often be guided by decisions of the courts regarding the exclusion of relevant
evidence. For instance, where incriminating statements are obtained from the
offender, the law of confessions based on an admixture of reliability and
fairness will be pertinent although not binding. The Board may, in appropriate
circumstances, conclude that reliance on a coerced confession is unfair.
Decisions concerning s. 24(2) of the Charter will also be relevant to
the Board's final decision. However, cases decided under s. 24(2) should not
be determinative of the Board's decision to exclude relevant information based
on the principles of fairness. Obviously, different considerations will often
apply in the parole context. For example, s. 101 (a) of the Corrections and
Conditional Release Act requires "that the protection of society be
the paramount consideration in the determination of any case". This will
accordingly be a guiding principle where the Board is required to rule on the
admissibility of a particular piece of information. The Board's expertise and
experience concerning the protection of society will aid the Board in arriving
at a decision. Should the Board fail to abide by the principles of fairness in
making those decisions, an appeal lies to the Appeal Division under s. 147(1)
(a) of the Corrections and Conditional Release Act. The Board's decision
is also subject to judicial review.
[Emphasis added.]
[60]
Mooring
recognized that there may be extreme situations that would warrant the Board to
exclude information in a proceeding. The example given being information
obtained by torture or an otherwise coerced confession. The Supreme Court of
Canada held that such an extreme circumstance calls into question the
reliability of the information and it is in these circumstances that the Board
may be under a duty to exclude it.
[61]
The extreme circumstances envisaged in Mooring
do not arise here. However as noted in Mooring the Board does have a
general obligation to ensure that the information it relies on is reliable and
persuasive. This general obligation exists in respect of all information before
the Board. The Board satisfies this obligation to rely on reliable and
persuasive information through the process of receiving, considering and
ultimately weighing the relevant information the Board is required by law to
consider. It is the weighing process that evidences the Board’s determination
of how reliable and persuasive the information before it is. Disagreement with
the weighing process, the issue underlying the argument advanced here, does not
render the process constitutionally deficient.
[62]
Mr. Barrett’s objection to the manner in which
the Board weighed and relied on this information is an issue that relates to
the decision’s reasonableness, not its constitutionality. As I stated earlier
in these reasons Mr. Barrett’s notice of the information and the opportunity to
challenge its reliability and persuasiveness are not in issue here. In other
words the Board applied the rules of fairness and natural justice and having
done so it does not follow, as Justice Sopinka stated in paragraph 38 of Mooring
that there was a failure to comply with section 7 of the Charter:
38. As a statutory tribunal, the Board
is also subject to the dictates of s. 7 of the Charter. In this regard,
it must comply with the principles of fundamental justice in respect to the
conduct of its proceedings. This does not mean that it must possess or
exercise a power to exclude evidence that has been obtained in a manner that
contravenes the Charter. If this were so, it would tend to make the
inclusion of s. 24(2) of the Charter superfluous. While the
principles of fundamental justice are not limited to procedural justice, it
does not follow that a tribunal that applies the rules of fairness and natural
justice does not comply with s. 7. If the myriad of statutory tribunals
that have traditionally been obliged to accord nothing more than procedural
fairness were obliged to comply with the full gamut of principles of
fundamental justice, the administrative landscape in the country would undergo
a fundamental change. The statement in Re B.C. Motor Vehicle Act,
[1985] 2 S.C.R. 486, to the effect that the principles of fundamental justice
involve more than natural justice meant that the Court was empowered in
appropriate circumstances to invalidate substantive law and was not limited to
judicial review of the procedural practices of a statutory body.
[Emphasis added.]
IX.
Conclusion
[63]
The application is denied.
[64]
On the issue of costs, counsel for the
respondent submitted a draft of bill costs in the amount of $2400. In oral
submissions counsel for Mr. Barrett acknowledged that $2400 was a reasonable
assessment of costs regardless of which of the parties were successful. Costs
are therefore awarded to the respondent in the amount of $2400.
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