Docket: T-712-18
Citation: 2018 FC 1190
[UNREVISED CERTIFIED ENGLISH TRANSLATION]
Ottawa, Ontario, November 28, 2018
PRESENT: The Honourable Madam Justice St-Louis
| BETWEEN:
|
| RENFORD FARRIER
|
| Applicant
|
| and
|
| ATTORNEY GENERAL OF CANADA
|
| Respondent
|
JUDGMENT AND REASONS
I.
INTRODUCTION
[1]
Renford Farrier seeks judicial review of the decision handed down by the Appeal Division of the Parole Board of Canada (the Appeal Division) dated March 20, 2018. The Appeal Division dismissed Mr. Farrier’s appeal and upheld the decision of the Parole Board of Canada (the Board) denying him pre-release day parole or parole.
[2]
Central to this case is the Board’s failure to record the hearing held before it. As part of the relief, Mr. Farrier is asking the Court to set aside the Appeal Division’s decision, set aside the Board’s decision and order a new hearing before the latter.
[3]
For the reasons that follow, the Court dismisses the application for judicial review.
II.
BACKGROUND
[4]
Since 1992, Mr. Farrier has been serving a life sentence.
[5]
On December 6, 2017, the Board refused to grant him day parole or full parole.
[6]
At the hearing, the Board received new information that had not been disclosed to Mr. Farrier at least 15 days before the hearing, as required by subsection 141(1) of the Corrections and Conditional Release Act, SC 1992, c. 20 [the Act]. As part of this new information, the Parole Officer informed the Board that an October 2017 incident, initially referred to as an overdose, may not have been one.
[7]
In addition to the aforementioned testimony of the Parole Officer, the Board also received at least the testimony of Mr. Farrier’s assistant and that of the Manager, Assessment and Interventions.
[8]
In its decision, the Board did not disclose the identity of the assistant, but noted that he had presented a detailed release plan in which resources and volunteers would be present to support Mr. Farrier in his social reintegration (page 5 of the Board’s Decision). The Board also noted that the Manager, Assessment and Interventions, strongly argued in favour of Mr. Farrier’s release, essentially on the basis that Mr. Farrier would no longer benefit from his incarceration. The Board finally noted that Mr. Farrier’s Case Management Team (CMT) believes instead that he should not be granted parole.
[9]
On December 8, 2017, Mr. Farrier asked the Board to send him the recording of the hearing. However, on January 8, 2018, the Board replied apologetically for not being able to respond to Mr. Farrier’s request, since the hearing had not been recorded due to technical problems with the recorder.
[10]
On January 31, 2018, Mr. Farrier brought the Board’s decision on appeal to the Appeal Division and, as a claim for relief, asked the Board to order a new hearing. Mr. Farrier then filed written submissions but did not attach any affidavits.
[11]
At the Appeal Division, Mr. Farrier only raised the issue of the Board’s failure to record the hearing held before it. He submitted that the Board (1) contravened paragraph 10 of section 11.1 of the Decision-Making Policy Manual for Board Members [the Policy Manual], which requires the Board to proceed with the audio recording of all hearings; (2) erred in law by contravening subsection 140(13) of the Act, which obliges the Board to allow victims to listen to the audio recording of hearings; and (3) failed to respect the principles of fundamental justice by not making the recording of the hearing available.
[12]
In relation to the non-respect of the principles of fundamental justice, Mr. Farrier submitted to the Appeal Division that (a) it was impossible for the Appeal Division to exercise its jurisdiction without the audio recording or to adjudicate with respect to the procedural guarantee provided for in section 141 of the Act, to the effect that the applicant must receive any information at least 15 days before the hearing; (b) the very short summary in the Board’s decision of the new information shared orally by the CMT at the beginning of the hearing did not allow the Appeal Division to take notice of it fairly; (c) the written documents were not available at the hearing and were not part of the record, so the Appeal Division should not take notice of them; and (d) the summary of the relevant information provided by the assistant at the hearing did not provide an understanding of exactly what support or resources were available as part of Mr. Farrier’s social reintegration (written submissions to the Appeal Division dated January 31, 2018, page 24 of the Applicant’s Record).
[13]
On March 20, 2018, the Appeal Division dismissed Mr. Farrier’s appeal. In a short decision, the Appeal Division concluded that the allegations raised by Mr. Farrier were unfounded because (1) the Board is not required to record its hearings, as confirmed by the Federal Court decision in Giroux v Canada (National Parole Board), [1994] FCJ No. 1750 [Giroux], and the “record of proceedings”
that the Board must maintain pursuant to subsection 143(1) of the Act is constituted rather by the decision and reasons of the Board and does not include recordings of hearings; and (2) the new information shared at the beginning of the hearing was not determinative in the Board’s analysis, which noted that this new information needed to be confirmed since the test results were not yet available.
III.
POSITION OF THE PARTIES
A.
Position of Mr. Farrier
[14]
In support of this application for judicial review, Mr. Farrier filed an affidavit signed on May 9, 2018, in which he states, among other things, that (1) the Board’s decision does not constitute a complete and accurate record of the hearing held before it; (2) the name, position and oral representations of his assistant are completely absent from the Board’s decision, whereas the assistant had presented important information on the possibility of Mr. Farrier volunteering and working at his mosque; (3) the information about his situation in October 2017 is incomplete and inaccurate since Mr. Farrier did not overdose; (4) the finding that the CMT did not recommend parole is incorrect, since the Parole Officer explained why a recommendation remains on file, but also why she recommended day parole, information which is absent from the decision; and (5) the Board’s decision is incomplete and unfair compared to what was said at the hearing.
[15]
In his written representations to the Court, Mr. Farrier submits that the standard of correctness applies to questions of law and procedural fairness and that the standard of reasonableness applies to questions of fact and to questions of mixed fact and law (Dunsmuir v New Brunswick, 2008 SCC 9).
[16]
Next, Mr. Farrier argues that the Appeal Division (1) erred in law in concluding that the Act did not require the audio recording of hearings before the Board; (2) erred in law in concluding that the absence of an audio recording of the hearings was not a ground of appeal under the Act; and (3) erred in concluding that the absence of an audio recording of the hearing did not violate the principles of fundamental justice in this case.
[17]
In relation to the first argument, Mr. Farrier submits that the Appeal Division erred in law by relying on subsection 143(1) of the Act and on the Giroux decision to conclude that the audio recording of Board hearings is not a legal requirement. In fact, Mr. Farrier first contends that his situation differs from that in Giroux, where the Board did not hold a hearing and completed a review of the materials on file, so that it was appropriate not to have a recording (Giroux at para 17).
[18]
Mr. Farrier further acknowledges that the Federal Court in Giroux also determined secondarily that the audio recording of hearings is not legally required, but submits that the subsequent adoption of subsections 140(13) and 140.2(1) of the Act renders the interpretation of Giroux unreasonable. Subsection 140(13) provides that a victim who is not present at the hearing has the right to hear the audio recording of the hearing, and subsection 140.2(1) provides that if the transcription of the audio recording is carried out, the transcript must be provided free of charge.
[19]
With respect to the second argument, Mr. Farrier argues that the Appeal Division should have allowed his appeal as the Board breached or failed to apply its own policy, which is one of the grounds for appeal under paragraph 147(1)(c) of the Act. Indeed, paragraph 10 of section 11.1 of the Policy Manual states that “The Board will make an audio recording of all hearings”
, which the Board did not do. He adds that without recordings of the Board’s hearing, the Appeal Division was unable to verify whether the procedural safeguards had been respected.
[20]
With respect to the third argument, Mr. Farrier argues that the absence of an audio recording of the hearing violates the principles of fundamental justice given that neither the Appeal Division nor the Federal Court is able to assess the reasonableness of the Board’s decision (Canadian Union of Public Employees, Local 301 v Montreal (City), [1997] 1 S.C.R. 793 [CUPE, Local 301]; Razm v Canada (Minister of Citizenship and Immigration), IMM-3796-98; Makarov v Canada (Minister of Citizenship and Immigration), 2001 FCT 55).
[21]
Mr. Farrier concluded that the Court should waive the costs of the parties or limit them to $500.
B.
Position of the respondent
[22]
The respondent submits that the presumed standard of review is reasonableness and that the standard applicable to questions of law and procedural fairness is one of correctness. In addition, with respect to parole, the Court should not intervene unless there is clear and unequivocal evidence that the decision is entirely unfair (Korn v Canada (Attorney General), 2014 FC 590 at para 14; Sychuk v Canada (Attorney General), 2009 FC 105).
[23]
The respondent goes on to state the applicable law and, in the arguments, replies that (1) the absence of a recording does not violate procedural fairness; and (2) the new information presented at the hearing before the Board was not determinative.
[24]
In connection with the first argument, the respondent states that the absence of a recording does not violate procedural fairness since the Board is not legally obliged to provide a recording of the hearing and that, at any event, the absence of a recording did not cause prejudice to the applicant.
[25]
According to the respondent, the Board has no legal obligation to provide a recording of the hearing because: (a) section 143 of the Act only requires the Board to keep a “record of proceedings”
, which is not a recording; (b) the Supreme Court of Canada determined that in the absence of a legal obligation to do so, the absence of a transcript does not violate the rules of natural justice if the record allows the courts to decide appropriately on the application (CUPE, Local 301); (c) the Giroux decision says the same thing; (d) if the legislator had intended to provide for the recording of Board hearings, it would have expressly provided for this, such as for disciplinary hearings, in section 33 of the Corrections and Conditional Release Regulations; and (e) the Policy Manual does not have the force of law.
[26]
In addition, the respondent submits that the absence of a recording does not prejudicially affect the applicant. The Federal Court has recognized that, despite the existence of rules requiring the recording of hearings, for a decision of the Board to be dismissed because of an incomplete recording, the plaintiff must show prejudice (Desjardins v Canada (National Parole Board), [1989] FCJ No. 910, Miller v Canada (Solicitor General), 1999 CanLII 7943 (FC)). Thus, although non-compliance with the Policy Manual is a ground for appeal under the Commissioner’s Directive 712-3: Parole Board of Canada Reviews, the absence of prejudice towards the applicant prevents him from relying on this ground. In addition, the Policy Manual provides that the Appeal Division assesses the content of the recording only “where applicable”
, which means that the recordings are not always available.
[27]
In relation to the second argument, the respondent submits that the new information to which the applicant referred in order to justify the need for the recording is irrelevant. First, the applicant can attest himself whether or not he waived the 15‑day period. Then, in its decision, the Board took note of the new information presented at the hearing, such as the doctor’s overdose testimony and the assistant’s release plan. Finally, despite the fact that the Board did not take into account the opinion of the Manager issued during the hearing, this opinion is not entirely favourable to the plaintiff.
IV.
ANALYSIS
A.
Standard of review
[28]
This Court is guided by the reasonableness standard of review relating to the questions of mixed fact and law of the Appeal Division decision (Cartier v Canada (Attorney General), 2002 FCA 384 at para 9 [Cartier]).
[29]
With respect to procedural fairness, the Federal Court of Appeal recently addressed how to approach the issue in Canadian Pacific Railway Ltd. v Canada (Attorney General), 2018 FCA 69 [Canadian Pacific]. According to this decision, the Court does not apply a standard of review to a question of procedural fairness: it must consider rather whether the process followed was fair and just, paying attention to the nature of the rights at stake and the consequences for affected individuals (Canadian Pacific at para 54).
B.
The Recording of Board Hearings
(1)
The law does not require the Board to record its hearings
[30]
The applicant did not convince the Court that the enactment of subsections 140(13) and 140.2(1) of the Act had the effect of amending the existing law (Giroux, Amable v Canada (Attorney General), 1998 CarswellNat 5066 [Amable]) and of creating, for the Board, a statutory obligation to record its hearings. Thus, the Appeal Division did not err in concluding that the Board is not required to record its hearings.
[31]
The Court, along with the Board and the Appeal Division, is guided by the text of the Act, the case law and the text of the Policy Manual, although the Policy Manual does not have the force of law. The current Act in 1992 replaced the Corrections and Conditional Release Act, RSC 1985, c P-2, for which the Corrections and Conditional Release Regulations, SOR/78-428, provided, in section 16.2, for the recording of the hearing before the Board. This obligation has not been included in the Act or its regulations.
[32]
Part II of the Act deals with conditional release, detention and long-term supervision. In particular, section 140 of the Act deals with hearings before the Board and section 147 with the right of appeal to the Appeal Division. These provisions are fully reproduced in the schedule.
[33]
Subsection 143(1) of the current Act requires the Board to maintain “a record of proceedings”
, which, as decided by the Federal Court in Giroux, consists of the decision and the reasons and does not include the recording of the hearing. The Federal Court specifically noted that the Board was under no obligation to record the hearing (Giroux at paragraph 19) and that even though the Board adopted the prudent practice of recording its hearings, the absence of a transcript does not contravene the law or the principles of natural justice. This position was confirmed in Amable at paragraph 2.
[34]
Mr. Farrier argued that subsections 140(13) and 140.2(1) of the Act, adopted after the Giroux decision, now render the interpretation unreasonable. Subsection 140(13) provides that a victim who is not present at the hearing has the right to hear the audio recording of the hearing, and subsection 140.2(1) provides that if the transcript of the audio recording is carried out, it must be provided free of charge.
[35]
The Court has not been convinced that the adoption of these two paragraphs modified the applicable law to impose on the Board the statutory obligation to record its hearings under penalty of having its decision set aside. Section 143, which provides for the obligation imposed on the Board to keep a record of proceedings, has not been modified and the actual text of the two sections to which the applicant refers does not support a finding that an obligation to record for the benefit of the applicant has been created.
[36]
Finally, the Court notes that paragraph 10 of section 11.1 of the Policy Manual states that “The Board will make an audio recording of all hearings”
. However, the Policy Manual does not have the force of law (Collins v Canada (Attorney General), 2014 FC 439 at para 39; Latimer v Canada (Attorney General), 2010 FC 806 at para 48) and the parties were unable to confirm whether it existed at the time of the Giroux decision.
(2)
The Appeal Division did not violate the principles of fundamental justice
[37]
The finding on the first point, however, does not resolve this litigation, since it would still be possible for the Appeal Division to overturn a decision by the Board for failure to record the hearing.
[38]
Indeed, the Supreme Court stated that “[i]n the absence of a statutory right to a recording, courts must determine whether the record before it allows it to properly dispose of the application for appeal or review. If so, the absence of a transcript will not violate the rules of natural justice”
(CUPE Local 301 at para 81).
[39]
On the other hand, case law also teaches that even when recording is mandatory, failure to do so does not necessarily entail the annulment of the decision. Indeed, the Supreme Court tells us that “[e]ven in cases where the statute creates a right to a recording of the hearing, courts have found that the applicant must show a ‘serious possibility’ of an error on the record or an error regarding which the lack of recording deprived the applicant of his or her grounds of review: Cameron v National Parole Board, [1993] B.C.J. No. 1630 (S.C.), which follows Desjardins v National Parole Board (1989), 29 F.T.R. 38. ”
(CUPE, Local 301 at para 77).
[40]
However, it must be noted that Mr. Farrier did not, before the Appeal Division, show that the latter could not rule on his file or that the absence of a recording prevented him from presenting his grounds of review.
[41]
Before the Appeal Division, Mr. Farrier limited his submissions to the question of whether or not the Board had a legal duty to record his hearings and only made terse allegations relating to the possibility that the Board had ignored or reported incomplete or inaccurate information received during its hearing. Those allegations are contained in paragraph 17 of his written submissions before the Appeal Division and are not supported by any evidence.
[42]
Before this Court, Mr. Farrier submitted an affidavit and asserted that the Board’s decision did not constitute an accurate and complete record of the hearing, stating which conclusions were incorrect, and alleging, in particular, that (1) the name, position and submissions of his assistant, particularly those concerning volunteer and employment opportunities at his mosque’s Café, are completely absent; (2) the summary of new information regarding Mr. Farrier’s condition in October 2017 is incomplete and inaccurate; he did not overdose; (3) the Parole Officer explained the reasons for which she disagrees with the overdose theory and this information is missing from the decision; (4) the allegation that the CMT believes that no parole should be granted is incorrect; (5) the Parole Officer explained at the hearing why she was recommending release and this important information is missing from the decision; and (6) the reasons for the Board’s decision are incomplete and unfair compared to what was said at the hearing.
[43]
This affidavit was not before the Appeal Division, which could not deal with these particular issues.
[44]
Thus, based on the file submitted by the applicant to the Appeal Division, the Court cannot conclude that the latter erred in not setting aside the Board’s decision.
C.
Costs
[45]
The applicant seeks to be exempted from costs, or to limit them to $500, citing the importance of the issues raised and the fact that he has been incarcerated since 1992. The applicant seeks the awarding of costs and has filed a bill of costs, recording the costs of the judicial review at $2,299.98.
[46]
The Court has full discretionary power to impose costs (Rule 400(1) of the Federal Court Rules, SOR/98-106 [the Rules]), and Rule 400(3) sets out the factors that the Court may consider in the exercise of that discretionary power.
[47]
The Court has often been sensitive to the limited means of inmates (St-Pierre v Canada (Attorney General), 2018 FC 1065 at paras 91–92, Barkley v Canada, 2018 FC 227 at para 31, Johnson v Canada (Correctional Service)), 2017 FC 370 at para 36). On the other hand, in other cases, the Court has been less lenient and has refused to waive costs on the basis of limited means, especially where the issue has already been decided by case law (Boucher v Canada (Attorney General General), 2007 FC 893 at paras 38–40) or where the inmate makes numerous appeals (Mapara v Canada, 2014 FC 538 at para 44). In the past, the Court has consistently held inmates accountable for costs and has not awarded them special treatment, adjudicating primarily on the merits of the case (Forrest v Canada (Attorney General), 2002 FCT 539 at para 52).
[48]
In this case, the Court has no information on Mr. Farrier’s financial resources and will therefore award costs against him in the amount of $500.
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