Date: 20241118

Docket: T-2009-23

Citation: 2024 FC 1826

Ottawa, Ontario, November 18, 2024

PRESENT: The Hon Mr. Justice Henry S. Brown

BETWEEN:

CLINTON MAHONEY

Applicant

and

THE ATTORNEY GENERAL OF CANADA

Respondent

JUDGMENT AND REASONS

I. Nature of the matter

[1] This is an application for judicial review of a redetermination decision dated June 15, 2023 [Decision] by the Appeal Division [AD] in respect of a decision of the Parole Board of Canada [Board]. The Decision cancelled the Board’s decision of May 8, 2020 [Board Decision] denying the Applicant full parole, because he did not want it, but affirming the Board’s decision to deny his request for day parole.

[2] This application for judicial review comes to the Court by its permission, because the Applicant is a vexatious litigant as declared in Mahoney v Canada, 2020 FC 975; in Mahoney v Canada, 2023 FC 507 [Mahoney 2023], Justice Favel stated “this designation does not affect the present application.” The application is dismissed for the following reasons.

II. Facts and procedural history

[3] The Applicant is a federal penitentiary system inmate presently serving a life sentence for first-degree murder. He had also been imprisoned for almost 9 years as a result of a conviction for manslaughter, as outlined more fully below. Both crimes involved serious harm, i.e., death of both victims. Both homicides were committed shortly before the Applicant turned 18 years of age—he was tried as an adult. He is self-represented.

[4] In March 2013, the Applicant was convicted of manslaughter. He was sentenced to 8 years and 10 months imprisonment. In February 2015, the Applicant was convicted of first-degree murder and sentenced to life imprisonment. These are the two Index Offences. The Index Offences were committed by the applicant within days of each other in 2010. The underlying Board Decision summarizes these offences as follows (it should be noted the Board’s comment about the Applicant’s manslaughter conviction regarding “shooting the victim in the head” is erroneous, but is at issue in this application:

The official documentation indicates that you committed the index offences in 2010, within days of each other. You committed the manslaughter with an accomplice. You both entered the victim's vehicle under the guise of a drug transaction. Once inside, you brandished a handgun and initiated a robbery of the victim for his drugs. During the robbery, you shot the victim in the head. The victim died of his injuries.

Regarding the murder, the victim was among a group of six men who were enforcing a drug debt. During a break in of the debtor's home, the victim was noted to be in possession of a 9mm handgun. Following this, the group proceeded to your residence and then to a rural area, during which time you came into possession of a shotgun. Overall, the victim suffered an extensive degree of violence as he was shot, beaten with a shotgun, tied up, restrained and strangled. It appears that you strangled the victim first with your hands and then with a bandana. You then drove the group to your residence and left the victim for dead. The coroner noted that strangulation was one of five possible causes of the victim's death.

[5] On May 8, 2020, the Board denied the Applicant both day and full parole. It concluded that by reoffending, the Applicant will present an undue risk to society and that his release will not contribute to the protection of society for a number of reasons, including:

● The serious nature and gravity of the Index Offences which resulted in the death of two victims;

● The Applicant’s extensive criminal history that began at an early age;

● The Applicant’s criminal profile and poor record of compliance, and his criminal involvement which, aside from his first offence, were all committed while under probationary supervision;

● The applicant’s associations with negative peer influences prior to the Index which reinforced criminality;

● The applicant’s involvement in 17 security incidents and receipt of over 200 reports for breaches of institutional regulations while incarcerated;

● The applicant’s caseworkers’ estimation of his risk of violent recidivism to be high despite positive gains made by the applicant in custody;

● The applicant’s tendency when stressed to settle emotionally charged situations with violence; and

● The applicant’s unstructured release plan that does not address the level of intervention and support required.

[6] The AD affirmed the Board’s Decision on August 17, 2020 [2020 AD decision]. This was overturned by the Federal Court on judicial review per Favel J, which on April 11, 2023 granted judicial review and remitted the matter for redetermination (Mahoney 2023). Justice Favel held the AD’s decision was unreasonable because it relied on two erroneous pieces of information: 1) a non-existent policy from the Correctional Service of Canada [CSC] requiring a mandatory two-year placement in a maximum-security institution for an offender serving a life sentence [Two Year Policy], and 2) the incorrect fact that the applicant shot the victim in the head in the manslaughter conviction.

[7] The AD redetermined this matter on June 15, 2023. This Decision is the subject of this judicial review.

III. Decision under review

[8] The AD cancelled the Board’s full parole decision because the Applicant did not want full parole. However, and in detailed reasons, the AD concluded it was satisfied the Board’s decision to dismiss his application for day parole decision is “reasonable and consistent with the principles and decision-making criteria set out in the Corrections and Conditional Release Act, SC 1992, c 20 [CCRA] and the Decision-Making Policy Manual for Board Members [2nd ed]” [Policy Manual]. The following details these decisions.

A. Board’s negative full parole decision cancelled because Applicant did not want full parole

[9] The AD found “merit to [the Applicant’s] submission that he did [not] want to be reviewed for full parole but was not afforded this option” by the Board. The AD held the Board breached its duty of fairness to the Applicant in this regard:

At the beginning of the hearing, the Appeal Division heard you state that you did not want a full parole review. After some discussion between you and the Board, the Board took a break and then informed you that you could not waive on the day of the hearing. Ultimately, you agreed to proceed with your full parole review. However, it was clear that you did not want a full parole review and relied on the advice provided by the Board about this issue. The Appeal Division finds the Board erred here. Consistent with section 123(2), you were entitled to waive the review on that date, albeit in writing; however, the Board did not indicate that this was an option for proceeding.

The Appeal Division is satisfied that in not providing you an option with waiving your full parole review on the day of the hearing, the Board breached its duty to act fairly and did not respect the CCRA. The Appeal Division therefore cancels the full parole decision.

B. AD upholds Board’s decision to deny day parole

[10] Concerning the Board’s denial of day parole, the AD concluded:

The Appeal Division has found no grounds in your application for appeal that would cause it to intervene in the Board's decision to deny your day parole.

The Appeal Division finds that the Board conducted a fair assessment of your risk and arrived at a decision that is reasonable and consistent with the principles and decision-making criteria set out in the CCRA and the Decision-Making Policy Manual for Board Members (Policy Manual). In assessing your risk to reoffend, the Board considered contributing factors related to your past behaviour, the progress that you have made during your sentence, including changes in your attitude and violent behaviour, and your release plans to manage your risk in the community. The Appeal Division finds the Board's conclusions to be reasonable given the facts of your case.

[11] That said (and as determined by Justice Favel when setting aside the earlier AD decision) the AD found the Board erred in relying on the same two pieces of information, namely: 1) that the Applicant was responsible for having shot the victim in reference to his manslaughter conviction, and 2) a non-existent Two Year Policy.

[12] Finally, the AD found the Applicant’s Charter rights were not violated by the Board’s statement that he was “involved with violent incidents since [he] w[as] 9 years old but not charged due to [his] age” or its consideration of institutional charges that did not result in a conviction. The AD held the Board was entitled to do so consistent with Policy 2.1 paragraph 8(i) of the Policy Manual (the Board will consider history of violent behaviour) and s 101(a) of the CCRA (the Board must consider all relevant available information to achieve the purposes of conditional release).

[13] The AD concluded “[t]he Board's reasons were balanced” and that the AD:

…considered the positive aspects of your case, specifically your community supports and a release plan inclusive of financial support. In its final analysis, the Board had the following to say about your proposed release plan within its decision:

You have been institutionalized for some 10 years. You have exhibited compliant behaviour but when stressed with emotionally charged situations you revert back to settling conflict with violence. This indicates to the Board that this continued behaviour is aggravating of your risk to reoffend. On the positive side, at times you have been able to adapt your behaviour and stay away from violence or illicit activities. The Board is of the opinion that you must maintain this behaviour over time, while fully engaging with your CMT which will enable you to develop trust as well. As such, the Board is of the opinion that your release plan does include protective factors which are needed to address the risk you currently pose.

The Board encourages you to consider a more gradual release that may consider ETA's followed by UTA's. This will allow your CMT to observe real progress in more liberal settings as well as allowing you to begin stabilizing your footing in re-entering society.

In the absence of mitigation of risk and documented change at the time of the decision, it was reasonable that the Board found your risk undue. Your Charter rights were not violated because the Board conducted a fair assessment of all the risk factors in your case. It was reasonable, in the absence of a viable release plan and in the face of your elevated documented needs, that the Board expected a confirmed and structured plan for your release back to the community. At that time of the Board's decision, you were in the process of a “security declassification” to medium-security and required a high-level of intervention based on static and dynamic factors. You were assessed as a low accountability and reintegration potential, with a medium motivational level. The Board reasonably found your release back to the community premature. The written reasons clearly set out the basis for the Board's decision and its conclusions are well supported.

IV. Issues

[14] The Applicant raises the following three points in issue relating to the underlying Board Decision and a Psychological Risk Assessment [PRA]:

1. Unlawful enforcement of “2 year rule” or “lifer policy” and segregation — Non acknowledgement of reconciliation of adversities suffered by the Applicant;

2. Manslaughter, findings of fact;

3. “SAVRY” risk assessment.

[15] Respectfully, the issue is whether the decision is reasonable.

V. Standard of review

[16] The Applicant makes no submissions about the standard of review but submits the Decision was unfair and unreasonable. The Respondent submits decisions of the Board and AD are reviewable on a standard of reasonableness and I agree.

[17] With regard to reasonableness, in Canada Post Corp v Canadian Union of Postal Workers, 2019 SCC 67, issued at the same time as the Supreme Court of Canada’s decision in Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65 [Vavilov], the majority per Justice Rowe explains what is required for a reasonable decision, and what is required of a court reviewing on the reasonableness standard:

[31] A reasonable decision is “one that is based on an internally coherent and rational chain of analysis and that is justified in relation to the facts and law that constrain the decision maker” (Vavilov, at para. 85). Accordingly, when conducting reasonableness review “[a] reviewing court must begin its inquiry into the reasonableness of a decision by examining the reasons provided with ‘respectful attention’ and seeking to understand the reasoning process followed by the decision maker to arrive at [the] conclusion” (Vavilov, at para. 84, quoting Dunsmuir, at para. 48). The reasons should be read holistically and contextually in order to understand “the basis on which a decision was made” (Vavilov, at para. 97, citing Newfoundland Nurses).

[32] A reviewing court should consider whether the decision as a whole is reasonable: “what is reasonable in a given situation will always depend on the constraints imposed by the legal and factual context of the particular decision under review” (Vavilov, at para. 90). The reviewing court must ask “whether the decision bears the hallmarks of reasonableness – justification, transparency and intelligibility – and whether it is justified in relation to the relevant factual and legal constraints that bear on the decision” (Vavilov, at para. 99, citing Dunsmuir, at paras. 47 and 74, and Catalyst Paper Corp. v. North Cowichan (District), 2012 SCC 2, [2012] 1 S.C.R. 5, at para. 13).

[33] Under reasonableness review, “[t]he burden is on the party challenging the decision to show that it is unreasonable” (Vavilov, at para. 100). The challenging party must satisfy the court “that any shortcomings or flaws relied on ... are sufficiently central or significant to render the decision unreasonable” (Vavilov, at para. 100).

[Emphasis added]

[18] However, the Supreme Court notes that reasonableness review is not a “line-by-line treasure hunt for error”:

[102] To be reasonable, a decision must be based on reasoning that is both rational and logical. It follows that a failure in this respect may lead a reviewing court to conclude that a decision must be set aside. Reasonableness review is not a “line-by-line treasure hunt for error”: Irving Pulp & Paper, at para. 54, citing Newfoundland Nurses, at para. 14. However, the reviewing court must be able to trace the decision maker’s reasoning without encountering any fatal flaws in its overarching logic, and it must be satisfied that “there is [a] line of analysis within the given reasons that could reasonably lead the tribunal from the evidence before it to the conclusion at which it arrived”: Ryan, at para. 55; Southam, at para. 56. Reasons that “simply repeat statutory language, summarize arguments made, and then state a peremptory conclusion” will rarely assist a reviewing court in understanding the rationale underlying a decision and “are no substitute for statements of fact, analysis, inference and judgment”: R. A. Macdonald and D. Lametti, “Reasons for Decision in Administrative Law” (1990), 3 C.J.A.L.P. 123, at p. 139; see also Gonzalez v. Canada (Minister of Citizenship and Immigration), 2014 FC 750, 27 Imm. L.R. (4th) 151, at paras. 57-59.

[Emphasis added]

[19] In this connection, the Federal Court of Appeal very recently made the same point regarding treasure hunts for error in Canadian National Railway Company v Halton (Regional Municipality), 2024 FCA 160 in relation to direct significant adverse environmental effects on human health as it relates to air quality of a proposed project. The Federal Court of Appeal held reviewing courts must seek to understand the challenged decision with respectful deference to determine if it is rational and logical as a whole, holistically, and contextually, and not seize on inconsequential errors or omissions:

[44] Vavilov tells us that decisions being reviewed for reasonableness must be read in light of the record, holistically, and contextually: paras. 96-97. A reviewing court must give the reasons “respectful attention,” seek to understand the challenged decision, and determine if, as a whole, it is rational and logical—not seize on inconsequential errors or omissions: Vavilov at paras. 84-85 and 99-100.

[Emphasis added]

[20] Furthermore, Vavilov makes it abundantly clear the role of this Court is not to reweigh and reassess the evidence unless there are “exceptional circumstances.” The Supreme Court of Canada instructs:

[125] It is trite law that the decision maker may assess and evaluate the evidence before it and that, absent exceptional circumstances, a reviewing court will not interfere with its factual findings. The reviewing court must refrain from “reweighing and reassessing the evidence considered by the decision maker”: CHRC, at para. 55; see also Khosa, at para. 64; Dr. Q, at paras. 41-42. Indeed, many of the same reasons that support an appellate court’s deferring to a lower court’s factual findings, including the need for judicial efficiency, the importance of preserving certainty and public confidence, and the relatively advantageous position of the first instance decision maker, apply equally in the context of judicial review: see Housen, at paras. 15-18; Dr. Q, at para. 38; Dunsmuir, at para. 53.

[Emphasis added]

[21] The Federal Court of Appeal in Doyle v Canada (Attorney General), 2021 FCA 237 [Doyle] reiterates that the role of this Court on judicial review is not to reweigh and reassess the evidence unless there is a fundamental error:

[3] In doing that, the Federal Court was quite right. Under this legislative scheme, the administrative decision-maker, here the Director, alone considers the evidence, decides on issues of admissibility and weight, assesses whether inferences should be drawn, and makes a decision. In conducting reasonableness review of the Director’s decision, the reviewing court, here the Federal Court, can interfere only where the Director has committed fundamental errors in fact-finding that undermine the acceptability of the decision. Reweighing and second-guessing the evidence is no part of its role. Sticking to its role, the Federal Court did not find any fundamental errors.

[4] On appeal, in essence, the appellant invites us in his written and oral submissions to reweigh and second-guess the evidence. We decline the invitation.

VI. Relevant provisions

[22] The Board and AD are governed by the CCRA. Section 100 of the CCRA states the purpose of conditional release is “to contribute to the maintenance of a just, peaceful and safe society by means of decisions on the timing and conditions of release that will best facilitate the rehabilitation of offenders and their reintegration into the community as law-abiding citizens.”

[23] Parliament has also legislated that protection of society is the paramount consideration for the Board. Section 100.1 of the CCRA instructs that “[t]he protection of society is the paramount consideration for the Board and the provincial parole boards in the determination of all cases.”

[24] Section 101 outlines the principles guiding the Board:

[25] Section 102 outlines the criteria for granting parole: first, “that 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 second that “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”:

VII. Submissions of the parties

A. Preliminary issue: The Attorney General of Canada is the proper respondent

[26] The Respondent submits since the Decision under review was made by the AD, the proper respondent is the Attorney General of Canada per Rule 303 of the Federal Courts Rules, SOR/98-106. The Respondent submits the respondents should be removed from the style of cause and replaced with the Attorney General of Canada. The Applicant disagrees but adds it is a matter for the Court. I agree. The style of cause is amended accordingly with immediate effect.

B. Was the Decision reasonable?

[27] The Applicant submits the Decision is unfair and unreasonable “because there is no proper consideration of the effects and impact, and the harms caused by the policy and “seg[regation]” had on CM’s institutional behaviour. With respect, there is simply no merit in this submission because his submissions regarding institutional context contributing to institutional behaviour was explicitly and in my view reasonably considered by the AD, discussed above (see pages 6–7 of the Decision).

[28] The Applicant further submits the AD’s reasoning “conflicts and is contrary to Justice Favel’s decision” in Mahoney 2023, which found the Board and earlier AD’s reliance on the two pieces of discordant information discussed above was a serious error resulting in the unreasonableness of the 2020 AD decision.

[29] With respect there is no merit in this submission. First of all, in fact, the AD was at pains not only to consider but to agree with the Applicant’s submission that the Board erred both in respect of the erroneous comments regarding the manslaughter conviction and the erroneous reference to the non-existent two-year maximum security policy. To the extent the Applicant seeks to have judicial review granted because the AD agreed with the Applicant, this aspect of this Application is baseless.

[30] Secondly, and in any event, the AD in my view reasonably considered and rejected the Applicant’s arguments that these errors were fatal to the Board’s decision to deny day parole. Specifically and on the record before it, the AD reasonably upheld the Board’s overall decision:

You submit that the Board relied on errors in your file. The Appeal Division agrees that the Board did rely on two pieces of incorrect information in its decision; however, it does not believe that these errors render the decision unreasonable. The reasons follow.

First, the Appeal Division finds that the Board made an error in its decision regarding the details about your Manslaughter conviction as it wrote that you were responsible for having shot the victim in the commission of the offence. The Appeal Division recognizes that this statement is consistent with the information in the Assessment for Decision locked on March 26, 2020:

The Manslaughter pertained to Mr. Mahoney and his co-accused entering the victim's vehicle under the guise of a drug transaction. Once inside, Mr. Mahoney brandished a handgun and initiated a robbery of the victim for his drugs. During the robbery, Mr. Mahoney shot the victim in the head. Serious harm was deemed met as the victim died.

However, this statement is not supported by the Court documents on your file. As per the Judge's Comments dated June 21, 2012, at line 27, the Judge wrote “[f]irst of all, I accept that there is no reliable evidence that the accused shot the deceased”. The Appeal Division finds that the Board was obliged to reconcile this discordant information on your file and base its decision on reliable and persuasive information. That said, it also believes that this error was not a fatal error on the part of the Board, nor one that would warrant the Appeal Division's intervention because the point the Board was making here was that your index offences resulted in the loss of two victims’ lives. The Appeal Division finds that the Board's larger concern in referencing that you shot the victim was to underscore the serious harm you inflicted on the victims. This concern would reasonably hold true even if this error was corrected.

Similarly, the Appeal Division also recognizes that the Board incorrectly wrote in its decision the following statement about spending two years in a maximum-security institution, “[i]n fact, in accordance with the laws and procedures surrounding the CCRA, you had to spend two years in a maximum-security institution because you had just received a life sentence.” To this point, it is noted that you had submitted a lengthy written submission about this matter to the Board, specifically the Offender Final Grievance Response dated January 8, 2018. This document clearly explains that there is no two- year rule policy requiring you to spend two years in a maximum-security institution and went on to state the following:

…that a second assessment for a penitentiary placement was inappropriately completed, that the timeframes, procedures and safeguards outlined in GL 710-2-3 were not followed when you were transferred to Saskatchewan Penitentiary in 2015, and that inaccurate information is recorded in the A4D (dated 2015-05-14) and accompanied decision (dated 2016-02-18).

Despite the direction given by CSC authorities to its own employees in the Final Grievance, the Appeal Division recognizes that CSC continued to state that you were referred to a maximum-security institution because of the nature of your conviction. This is discordant information. See the Assessment for Decision locked on March 26, 2020, about the matter:

In 2014, he was referred to Edmonton Institution (maximum) because of his murder conviction. He then had to spend two years in a maximum-security institution, as he had just received a life sentence, in accordance with the laws and procedures surrounding the CCRA.

The Appeal Division agrees with you that the Board erred when it considered this incorrect information and this oversight is compounded by the fact that you had raised the error in your 46-page written submission, received by the Board on January 10, 2020. That said, the fact that the Board erroneously stated that there were law and procedures around your maximum-security classification does not render its decision unreasonable. This is because the Board's declarative statement about the law was not a determinative element in the Board's analysis to support its conclusion that you were an undue risk. The determinative factor linked to the Board's statement was your negative institutional behaviour while you were in a maximum-security setting. Within this context, the Board reasonably weighed your various incidents of violence against other offenders, physical altercations, armed attacks, and it stated its concerns with the need for a secure setting to manage your behaviour.

[Emphasis added]

[31] The AD found no merit in several other submissions by the Applicant, including that the Board relied on erroneous information in the Psychological Risk Assessment [PRA] and that the Applicant’s living conditions in a maximum-security institution impeded his integration to less secure institutional settings. On these points, the AD in my view reasonably considered and rejected these arguments:

The Appeal Division notes that you believe that the Board relied on erroneous information in the Psychological Risk Assessment (PRA). You raise that the Board incorrectly indicated that the Structured Assessment of Violence Risk in Youth (SAVRY), which is based on the Structured Professional Judgement (SPJ) model, does not provide for a high-risk rating. You also state that the PRA contains information to slander you. The Appeal Division finds no merit to your claims. First, the Appeal Division has no jurisdiction to assess the subjective values, accuracy, or errors linked to the application of the above-noted actuarial tool or related to the assessor's clinical judgement of your character. Second, the Board's decision did not rely on any one specific tool or actuarial score in its decision. To do so would undermine the comprehensive nature of its decision. As such, an error in the tool would not put in question the Board's overall conclusions. Third, if you believe this assessment is incorrect or contains unprofessional statements, you are encouraged to resolve your issue though existing mechanisms in accordance with section 24(2) of the CCRA. It was reasonable, that the Board relied on the PRA as one of the reliable and persuasive documents to inform its decision.

…

The Appeal Division reads in your submissions on file that your time in the maximum-security unit negatively affected your ability to appropriately manage yourself in the institution. The Appeal Division recognizes that there are situational factors within the maximum-security unit, which you believe impeded your integration to a less secure institutional settings (i.e. exposure to gangs). It also finds; however, that the Board reasonably weighed your negative institutional behaviour as aggravating in its decision consistent with Policy 2.1, paragraph 6(d):

However, the Board is also aware that during your incarceration in the various maximum-security penitentiaries, you have been involved in 17 security incidents. In terms of discipline, you have received over 200 reports for breaches of the institution's regulations. The Board also observes that you still have difficulty in dealing with highly emotional situations which have led you to use violence to deal with difficult emotions.

The Appeal Division finds it pertinent to note here that, based on your appeal submission, you do not necessarily disagree with the Board's comments about your use of violence to deal with difficult emotions. In your appeal submission, you wrote that during your time in maximum-security, you took a “fight or flight mindset” in order to protect yourself in the conflictual maximum-security setting. You also explained that you had a “violent mindset” during your time in the maximum-security unit in order to protect yourself. You also indicated that you received charges “every single day at Donnaconna Max because the inmates are not allowed to shower prior to 6:30.” The Appeal Division finds it reasonable therefore, that the Board considered your violence, ongoing physical altercations, and breaches to institutional rules while incarcerated a justifiable demonstration of your use of violence to deal with difficult emotions while incarcerated. It is undoubtedly clear that you believe that your living conditions in a maximum-security institution provided contextual background to explain your violent behaviour, especially given that you felt you were treated unfairly due to a procedural error on your CMT's part to classify you as maximum security. However, your security classification, or an error linked to the assessment to support your security classification, does not reasonably excuse your institutional behaviour.

[Emphasis added]

[32] I understand the Applicant alleges the AD on reconsideration acted unreasonably because it had before it the PRA prepared for the Board in 2020 which does in fact include the same two erroneous references discussed and rejected by Justice Favel, and by the AD. The Applicant says the inclusion of these two inaccuracies in the PRA is fatal to the AD’s decision now under review.

[33] With respect, I disagree. In my view those errors in the PRA are not grounds warranting judicial intervention but simply a treasure hunt for error. Mistakes were made in the PRA, but the Court is not persuaded the Decision is unreasonable.

[34] I reach this conclusion first of all because, if at all and to the extent if any that the AD considered those inaccuracies in its analysis, it is obvious the AD would give them no credit having itself determined they are erroneous.

[35] The Applicant is really arguing the PRA is fatally flawed and thus completely unreliable simply because it contains these two errors. This is a treasure hunt for error and as such must fail because in the Court’s assessment neither erroneous statement, nor their cumulative effect, are sufficiently central to the PRA’s overall conclusions with respect to the Applicant’s risk to society and the protection of society by facilitating his reintegration per s 102 of the CCRA.

[36] In this connection I note the PRA contains a lengthy, very detailed, careful and comprehensive analysis, weighing and assessing a great number of factors over eight single-spaced pages. It covers very much more than just these two points. Nothing suggests either one was central or determinative such as to constitute a fatal flaw or exceptional case warranting judicial intervention.

[37] For example, and without repeating the entire document (upon which the Court relies), the PRA states:

With respect to the elements of community risk management, the subject demonstrates unclear and unrealistic plans (opening up businesses with the money he will receive from a lawsuit he is pursuing alone against CSC), exposure to destabilizing factors (anxiety management, meeting the standards of halfway houses, opportunities for substance use, and affiliations with criminalized individuals), a certain lack of personal support, response to treatment or supervision may be low, and the stress of adapting to his new lifestyle as a father. The assessment of the risk of recidivism in institutions is therefore considered MEDIUM, while the risk of recidivism in the community is considered MEDIUM TO HIGH.

We don’t believe that the subject’s short-term plans are realistic. He would like to receive day parole at a halfway house in the Edmonton area and carry out an unlikely plan to help young people and invest in businesses.

[38] The PRA considers the Applicant’s history of violence:

ANAMNESIS

… [The subject’s] file indicates that the subject was reportedly involved in several violent incidents at school, both against other children and teachers and the administration. He claims that he was even suspended from a daycare centre when he was not even five years old.

…

CRIMINAL HISTORY

All the convictions received prior to the current sentence that are listed in Clinton George Mahoney’s file are for offences committed when he was not yet 18 years old. Between 2008 and 2012, the subject received a total of 15 charges across three different dates. The offences took place in Ontario and Alberta (theft under, assault with a weapon, possession of property obtained by crime, obstruction of a police officer, possession of substances listed in the schedule, threats, mischief, breach of undertaking and conditions to appear). He was admitted to a youth centre a few times to try to stabilize his behaviour, but to no avail. His behaviour was reportedly highly problematic (violent and oppositional) in the centres at which he stayed).

[39] The PRA in my view reasonably concludes:

CONCLUSION AND RECOMMENDATION

…

Clinton George Mahoney, age 27, is serving a first federal life sentence. He previously received a first conviction for manslaughter and was incarcerated for a period of eight years and 10 months on 2013-03-07. However, on 2015-02-27, he was also found guilty of second-degree murder and received a life sentence at that time. Both offences were committed while he was in the community, a few days before his 18th birthday. Mr. Mahoney has been eligible for day parole since 2018-11-10 and will be eligible for full parole on 2020-11-10. During the assessment interview, the subject was incarcerated at Donnaconna Institution but had a medium security rating and was awaiting a transfer to Drummond Institution, which was carried out on April 1 of this year.

The risk assessment gives us a profile that is does [sic] not qualify as psychopathic. In terms of violent recidivism, the results indicate a MEDIUM risk of violent recidivism in correctional institutions and a MEDIUM-HIGH risk in the community.

In terms of institutional functioning, there is no doubt that the subject should once again demonstrate skills to function appropriately in a medium-security environment and stay there appropriately before thinking about returning to the community. The lack of acknowledgement of his responsibility for the offence committed, the clearly present antisocial attitudes, the limited therapeutic gains, and the poorly developed and unrealistic release plan do not correspond to an individual ready for the challenges of community life. However, we have noted that the subject seems to have good intellectual potential, and he should take advantage of this asset to increase his education in a field about which he is passionate. He also has good work skills that he should continue to use.

We believe that supervision provided in the community could not enable the subject to reintegrate into the community in a way that takes into account his needs and that is safe and secure for all. The subject should instead prove that he is capable of staying in a medium-security institution and complete the ICPM [Integrated Correctional Program Model] program there. Education should also be given priority. We therefore believe that a return to the community is premature at this stage of his sentence and that this would represent too great a risk to the community.

[40] I turn now to a third alleged error in the PRA. This concerns a matter also considered and rejected by the AD. The Applicant asserts that any reliance on the PRA renders the AD decision unreasonable because the PRA references a Structured Assessment of Violence Risk in Youth [SAVRY] tool, which the Applicant says (without evidence) does not allow the assessor to render a “very high” risk rating.

[41] In this respect, the PRA notes a similarity between the VRAG (a long-term predictor of violently reoffending), applied in the 2020 PRA itself, and the assessment of the Applicant using the SAVRY tool in March 2013 and February 2015 for sentencing purposes (after his manslaughter and first-degree murder convictions).

[42] The source of the Applicant’s objection is the PRA statement that the VRAG “results are similar to those obtained in the assessment that is a part of the Forensic Psychiatry Report (SAVRY) and that determined a risk of future violence as very high prior to sentencing.”

[43] There is no merit in this line of argument.

[44] First of all, in my respectful view the AD considered and reasonably rejected the Applicant’s arguments:

The Appeal Division notes that you believe that the Board relied on erroneous information in the Psychological Risk Assessment (PRA). You raise that the Board incorrectly indicated that the Structured Assessment of Violence Risk in Youth (SAVRY), which is based on the Structured Professional Judgement (SPJ) model, does not provide for a high-risk rating. You also state that the PRA contains information to slander you. The Appeal Division finds no merit to your claims. First, the Appeal Division has no jurisdiction to assess the subjective values, accuracy, or errors linked to the application of the above-noted actuarial tool or related to the assessor's clinical judgement of your character. Second, the Board's decision did not rely on any one specific tool or actuarial score in its decision. To do so would undermine the comprehensive nature of its decision. As such, an error in the tool would not put in question the Board's overall conclusions. Third, if you believe this assessment is incorrect or contains unprofessional statements, you are encouraged to resolve your issue though existing mechanisms in accordance with section 24(2) of the CCRA. It was reasonable, that the Board relied on the PRA as one of the reliable and persuasive documents to inform its decision.

[45] In this connection, on the jurisdictional points, the AD reasoning is in line with binding jurisprudence of this Court in Smith v Canada (Attorney General), 2018 FC 200 at paragraphs 57-8 [per Southcott J]; Reid v Canada (National Parole Board), 2002 FC 741 at paragraphs 19-21 [per Rouleau J]; and in Eakin v Canada (Attorney General) 2017 FC 394 at paragraph 29 [per Gleeson J].

[46] With respect, re the balance of the AD’s reasons on this point, the Applicant is asking the Court to reweigh and reassess the evidence, and to second-guess the decision-maker, which both the Supreme Court of Canada in Vavilov and the Federal Court of Appeal in Doyle (noted above) have ruled is not proper on judicial review in the absence of exceptional circumstances or fundamental error. Neither are present in this case.

[47] Moreover, it is not clear whether the “very high” comment in reference to the SAVRY assessment is made by the PRA psychologist, or if that language is contained in the SAVRY assessment itself. The Applicant did not include the SAVRY assessment in his Application record.

[48] Notably also, and while at the hearing the Applicant stated he had been told this in the course of his research, he did not point to any evidence in the record to support his argument that the SAVRY tool does not allow for a “very high” assessment of risk of violence.

[49] Finally, the Applicant says his Charter rights were violated by the Board’s statement that he was “involved with violent incidents since [he] w[as] 9 years old but not charged due to [his] age.”

[50] There is no merit in this submission. In my respectful view, the AD reasonably held the Board was entitled to consider these incidents consistent with Policy 2.1 paragraph 8(i) of the Policy Manual (the Board will consider history of violent behaviour) and s 101(a) of the CCRA (the Board must consider all relevant available information to achieve the purposes of conditional release). This consideration is also consistent with binding jurisprudence of this Court – see Fernandez v Canada (Attorney General), 2011 FC 275 at paragraph 26 and Barrett v Canada (Public Safety and Emergency Preparedness), 2017 FC 1030 at paragraphs 45-46. With respect, such consideration is also consistent with the Board’s paramount consideration (per the CCRA, s 100.1.

VIII. Conclusion

[51] Read contextually and holistically, and not as a treasure hunt for errors, the Court concludes the Decision as a whole is “transparent, intelligible, and justified” (Vavilov at para 15). Therefore this Application for judicial review will be dismissed.

IX. Costs

[52] The Applicant seeks “all costs,” clarified in his submissions to be in the lump sum amount of $100 or whatever amount the Court deems to be just. The Respondent requests that the application for judicial review be dismissed with costs in the lump sum amount of $100.

[53] The Applicant sought and had permission to bring this application, and he is now subject to a vexatious litigant order. In my discretion there will be no order as to costs.

JUDGMENT in T-2009-23

THIS COURT’S JUDGMENT is that:

1. The style of cause is amended with immediate effect to show the Attorney General of Canada as the Respondent.

2. The application for judicial review is dismissed without costs.

"Henry S. Brown"

FEDERAL COURT

SOLICITORS OF RECORD

DOCKET:	T-2009-23
STYLE OF CAUSE:	CLINTON MAHONEY v THE ATTORNEY GENERAL OF CANADA
PLACE OF HEARING:	HELD BY WAY OF ZOOM VIDEOCONFERENCE
DATE OF HEARING:	NOVEMBER 6, 2024
JUDGMENT AND REASONS:	BROWN J.
DATED:	NOVEMBER 18, 2024

APPEARANCES:

Clinton Mahoney	FOR THE APPLICANT (ON HIS OWN BEHALF)
Cameron G. Regehr	FOR THE RESPONDENT

SOLICITORS OF RECORD:

Attorney General of Canada Edmonton, Alberta

FOR THE RESPONDENT