Strachan v. Canada (Attorney General), 2006 FC 155

                                                                                                                                   Date: 20060214

                                                                                                                                Docket: T-966-05

                                                                                                                          Citation: 2006 FC 155

BETWEEN:

                                                MICHAEL ANDREW STRACHAN

                                                                                                                                            Applicant

                                                                         - and -

                                             ATTORNEY GENERAL OF CANADA

                                                                                                                                        Respondent

                                                        REASONS FOR ORDER

PINARD J.:

[1]         This is an application for judicial review of the May 2, 2005 decision of the Appeal Division of the National Parole Board (the "Appeal Division") affirming the January 20, 2005 decision of the National Parole Board (the "Board") to revoke the applicant's statutory release.

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[2]         Michael Andrew Strachan (the "applicant") is a federal offender serving an aggregate sentence of 14 years, 30 days commencing October 26, 1994. The applicant's warrant expiry date is November 25, 2008.

[3]         The applicant was denied day parole and full parole on June 11, 2003 but was subsequently released on statutory release on March 16, 2004.

[4]         Warrants of apprehension and suspension of the applicant's statutory release were issued on October 18, 2004 and were executed the following day when information was received by the Correctional Service of Canada ("CSC") implicating the applicant in the introduction of drugs into Mission Institution, a medium security institution.

[5]         On December 9, 2004, the applicant was provided with seven documents including an Assessment for Decision dated November 16, 2004 (the "Assessment for Decision"), receipt of which was acknowledged by the applicant's initialling of a document entitled the Information Sharing Checklist Update.

[6]         The Assessment for Decision included a 'gist' outlining the allegations being made against the applicant.

[7]         The Information Sharing Checklist indicates that all documentary materials before the Board when it was considering its decision had previously been shared with the applicant.

[8]         A hearing was held by the Board on January 20, 2005 and in a decision of the same date, the Board was satisfied that there was adequate and credible evidence that the applicant's risk to reoffend is undue and revoked his statutory release.

[9]         The Appeal Division, in its decision dated May 2, 2005, denied the applicant's appeal and affirmed the Board's decision that the applicant's risk to reoffend is undue and revoked his statutory release.

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[10]       The Appeal Division stated in its decision that it had jurisdiction to reassess the issue of risk to reoffend and substitute its discretion for that of the original decision makers, but only where it finds that the decision was unfounded and unsupported by information available at the time the decision was made.

[11]       In reaching its decision, the Appeal Division addressed the following issues raised by the applicant:

-           The Appeal Division noted that the applicant objected to the Board considering behaviour before his release. In response the Appeal Division specified that when a suspended offender is brought before the Board his full criminal history, past behaviour and criminogenic factors are taken into account in order to assess whether the offender can be released without undue risk to the public.

-           The Appeal Division also recognized that the Board had taken into account Psychological Assessments and actuarial measures, program performance reports, the index crimes for which the applicant was serving his sentence, his criminal record, and history of supervision on prior releases.

-           The Appeal Division noted that alternatives to revocation had been considered by the applicant's Parole Officer and discussed with the applicant.

-           The Appeal Division found that the applicant had been properly informed of the case presented to the Board.

[12]       The Appeal Division concluded that it was satisfied that the Board rendered the proper decision in revoking his statutory release, that the decision was just and reasonable, and based on relevant, credible and persuasive information. It found that the applicant's rights and the Board's policies were respected, and that the hearing was conducted in accordance with the principles of fundamental justice.

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[13]       The relevant provisions of the Corrections and Conditional Release Act, S.C. 1992, c. 20, (the "CCRA") are as follows:

   27. (1) Where an offender is entitled by this Part or the regulations to make representations in relation to a decision to be taken by the Service about the offender, the person or body that is to take the decision shall, subject to subsection (3), give the offender, a reasonable period before the decision is to be taken, all the information to be considered in the taking of the decision or a summary of that information.

   (2) Where an offender is entitled by this Part or the regulations to be given reasons for a decision taken by the Service about the offender, the person or body that takes the decision shall, subject to subsection (3), give the offender, forthwith after the decision is taken, all the information that was considered in the taking of the decision or a summary of that information.

   (3) Except in relation to decisions on disciplinary offences, where the Commissioner has reasonable grounds to believe that disclosure of information under subsection (1) or (2) would jeopardize

(a) the safety of any person,

(b) the security of a penitentiary, or

(c) the conduct of any lawful investigation,

the Commissioner may authorize the withholding from the offender of as much information as is strictly necessary in order to protect the interest identified in paragraph (a), (b) or (c).

   27. (1) Sous réserve du paragraphe (3), la personne ou l'organisme chargé de rendre, au nom du Service, une décision au sujet d'un délinquant doit, lorsque celui-ci a le droit en vertu de la présente partie ou des règlements de présenter des observations, lui communiquer, dans un délai raisonnable avant la prise de décision, tous les renseignements entrant en ligne de compte dans celle-ci, ou un sommaire de ceux-ci.

   (2) Sous réserve du paragraphe (3), cette personne ou cet organisme doit, dès que sa décision est rendue, faire connaître au délinquant qui y a droit au titre de la présente partie ou des règlements les renseignements pris en compte dans la décision, ou un sommaire de ceux-ci.

   (3) Sauf dans le cas des infractions disciplinaires, le commissaire peut autoriser, dans la mesure jugée strictement nécessaire toutefois, le refus de communiquer des renseignements au délinquant s'il a des motifs raisonnables de croire que cette communication mettrait en danger la sécurité d'une personne ou du pénitencier ou compromettrait la tenue d'une enquête licite.

   101. The principles that shall guide the Board and the provincial parole boards in achieving the purpose of conditional release are

(a) that the protection of society be the paramount consideration in the determination of any case;

(b) that parole boards take into consideration all available information that is relevant to a case, including the stated reasons and recommendations of the sentencing judge, any other information from the trial or the sentencing hearing, information and assessments provided by correctional authorities, and information obtained from victims and the offender;

   101. La Commission et les commissions provinciales sont guidées dans l'exécution de leur mandat par les principes qui suivent :

a) la protection de la société est le critère déterminant dans tous les cas;

b) elles doivent tenir compte de toute l'information pertinente disponible, notamment les motifs et les recommandations du juge qui a infligé la peine, les renseignements disponibles lors du procès ou de la détermination de la peine, ceux qui ont été obtenus des victimes et des délinquants, ainsi que les renseignements et évaluations fournis par les autorités correctionnelles;

(c) that parole boards enhance their effectiveness and openness through the timely exchange of relevant information with other components of the criminal justice system and through communication of their policies and programs to offenders, victims and the general public;

(d) that parole boards make the least restrictive determination consistent with the protection of society;

(e) that parole boards adopt and be guided by appropriate policies and that their members be provided with the training necessary to implement those policies; and

(f) that offenders be provided with relevant information, reasons for decisions and access to the review of decisions in order to ensure a fair and understandable conditional release process.

c) elles accroissent leur efficacité et leur transparence par l'échange de renseignements utiles au moment opportun avec les autres éléments du système de justice pénale d'une part, et par la communication de leurs directives d'orientation générale et programmes tant aux délinquants et aux victimes qu'au public, d'autre part;

d) le règlement des cas doit, compte tenu de la protection de la société, être le moins restrictif possible;

e) elles s'inspirent des directives d'orientation générale qui leur sont remises et leurs membres doivent recevoir la formation nécessaire à la mise en oeuvre de ces directives;

f) de manière à assurer l'équité et la clarté du processus, les autorités doivent donner aux délinquants les motifs des décisions, ainsi que tous autres renseignements pertinents, et la possibilité de les faire réviser.

   107. (1) Subject to this Act, the Prisons and Reformatories Act, the Transfer of Offenders Act, the National Defence Act, the Crimes Against Humanity and War Crimes Act and the Criminal Code, the Board has exclusive jurisdiction and absolute discretion

(a) to grant parole to an offender;

(b) to terminate or to revoke the parole or statutory release of an offender, whether or not the offender is in custody under a warrant of apprehension issued as a result of the suspension of the parole or statutory release;

(c) to cancel a decision to grant parole to an offender, or to cancel the suspension, termination or revocation of the parole or statutory release of an offender;

[. . .]

   107. (1) Sous réserve de la présente loi, de la Loi sur les prisons et les maisons de correction, de la Loi sur le transfèrement des délinquants, de la Loi sur la défense nationale, de la Loi sur les crimes contre l'humanité et les crimes de guerre et du Code criminel, la Commission a toute compétence et latitude pour :

a) accorder une libération conditionnelle;

b) mettre fin à la libération conditionnelle ou d'office, ou la révoquer que le délinquant soit ou non sous garde en exécution d'un mandat d'arrêt délivré à la suite de la suspension de sa libération conditionnelle ou d'office;

c) annuler l'octroi de la libération conditionnelle ou la suspension, la cessation ou la révocation de la libération conditionnelle ou d'office;

[. . .]

   135. (5) The Board shall, on the referral to it of the case of an offender serving a sentence of two years or more, review the case and, within the period prescribed by the regulations, unless the Board grants an adjournment at the offender's request,

(a) cancel the suspension, where the Board is satisfied that, in view of the offender's behaviour since release, the offender will not, by reoffending before the expiration of the offender's sentence according to law, present an undue risk to society;

(b) where the Board is not satisfied as provided in paragraph (a), terminate the parole or statutory release of the offender if it was suspended by reason of circumstances beyond the offender's control or revoke it in any other case; or

   135. (5) Une fois saisie du dossier d'un délinquant qui purge une peine de deux ans ou plus, la Commission examine le cas et, dans le délai réglementaire, à moins d'accorder un ajournement à la demande du délinquant :

a) soit annule la suspension si elle est d'avis, compte tenu de la conduite du délinquant depuis sa libération conditionnelle ou d'office, qu'une récidive du délinquant avant l'expiration légale de la peine qu'il purge ne présentera pas un risque inacceptable pour la société;

b) soit, si elle n'a pas cette conviction, met fin à la libération si celle-ci a été suspendue pour des raisons qui ne sont pas imputables au délinquant ou la révoque, dans le cas contraire;

(c) where the offender is no longer eligible for the parole or entitled to be released on statutory release, terminate or revoke it.

c) soit révoque la libération ou y met fin si le délinquant n'y est plus admissible ou n'y a plus droit.

   141. (1) At least fifteen days before the day set for the review of the case of an offender, the Board shall provide or cause to be provided to the offender, in writing, in whichever of the two official languages of Canada is requested by the offender, the information that is to be considered in the review of the case or a summary of that information.

   [. . .]

   (4) Where the Board has reasonable grounds to believe

(a) that any information should not be disclosed on the grounds of public interest, or

(b) that its disclosure would jeopardize

(i) the safety of any person,

(ii) the security of a correctional institution, or

(iii) the conduct of any lawful investigation,

the Board may withhold from the offender as much information as is strictly necessary in order to protect the interest identified in paragraph (a) or (b).

   141. (1) Au moins quinze jours avant la date fixée pour l'examen de son cas, la Commission fait parvenir au délinquant, dans la langue officielle de son choix, les documents contenant l'information pertinente, ou un résumé de celle-ci.

   [. . .]

   (4) La Commission peut, dans la mesure jugée strictement nécessaire toutefois, refuser la communication de renseignements au délinquant si elle a des motifs raisonnables de croire que cette communication irait à l'encontre de l'intérêt public, mettrait en danger la sécurité d'une personne ou du pénitencier ou compromettrait la tenue d'une enquête licite.

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Standard of Review

[14]       The standard of review applicable to Board proceedings has been well canvassed in various decisions of this Court. In Cartier v. Canada (Attorney General), [2003] 2 F.C. 317, the Federal Court of Appeal confirmed that the standard of review to be applied by the Appeal Division when reviewing an appeal from a Board decision is reasonableness on both matters of fact and of law.

[15]       On judicial review, the applicable standard of review to matters of fact determined by the Appeal Division is patent unreasonableness, whereas, on matters of law it is reasonableness (Mahesh Bedi v. The Attorney General of Canada, 2004 FC 1722).

[16]       I agree with the respondent that a pragmatic and functional analysis yields little reason to warrant a departure from the standard of patent unreasonableness in this case as:

(a) the Board has a high level of expertise in these matters as it is charged with determining when an offender can be reintegrated into society under the provisions of the CCRA;

(b) although the CCRA fails to contain a privative clause, at most, this factor should have a neutral effect;

(c) the determination of whether the continued statutory release of an offender would constitute an undue risk to society by reason of the offender reoffending before the expiration of his sentence hinges upon an assessment of the individual offender's behaviour and potential risk which the Board is particularly well suited to address. The determination involves the balancing of societal and individual interests; and

(d) the degree of deference is reinforced by the nature of the problem which is essentially a fact finding exercise in which the Board is required to take into account all available information to determine the level of risk presented (see Dr. Q v. College of Physicians and Surgeons of British Columbia, [2003] 1 S.C.R. 226).

[17]       Given that the core guiding principle is the protection of society and given the Board's expertise relative to the Court in such matters, a high degree of deference to the Board's decision revoking the applicant's statutory release is warranted (Migneault v. Canada (Attorney General), [2003] F.C.J. No. 372 (T.D.) (QL)).

Failing to Disclose Sufficient Information

[18]       The applicant submits that he was not given sufficient information that was collected against him in order that he might be able to defend himself against the allegation that there was an undue risk that he would reoffend and therefore have his statutory release revoked.

[19]       Specifically, the applicant submits that the Protected Information Report, the specific details that the applicant had requested more information with regard to, CPPR#11, CPPR#12, and Community Assessment #007 were not shared with the applicant a reasonable time before the hearing.

[20]       The disclosure obligations of the Board are governed solely by section 141 of the CCRA which requires the Board, at least 15 days before a hearing, to provide in writing the information that is to be considered in the review of the case or a summary of that information. Subsection (4) permits the Board to withhold as much information as is strictly necessary in order to protect specified interests. However, in this case, the Board did not withhold any information from the applicant. Everything that was before the Board was shared with the applicant, including CPPR#11, CPPR#12, and Community Assessment #007 which were shared on April 13^th, June 7^th, and October 5^th, 2004, respectively.

[21]       The only documents which were not shared with the applicant were items that were not before the Board, such as, for example, the Protected Information Report.

[22]       Fundamental justice requires the Board to furnish to the offender the details of the relevant information upon which it will base its decision. This requirement was considered in Re Ross and Warden of Kent Institution (1987), 34 C.C.C. (3d) 452 (B.C.C.A.), where Hinkson J.A. indicated, at page 460, as follows:

. . . It is not essential to comply with the principles of fundamental justice that he know the sources of all the information before the Board as long as he is informed of the substance of that information. . . .

[23]       In Re Ross, Hinkson J.A. further adopted, as a correct statement of the principles to be applied by the Board when considering information supplied by informers, the following statement of Lord Denning, M.R. referred to in [1976] 1 S.C.R. 453">Howarth v. National Parole Board, [1976] 1 S.C.R. 453 at page 462:

. . . But, without disclosing every detail, I should have thought that the board ought in every case to be able to give to the applicant sufficient indication of the objections raised against him such as to enable him to answer them. That is only fair. . . .

[24]       The analysis as to whether, in this case, the applicant received sufficient detail of the allegations to enable him to defend himself is a relatively simple matter of considering the detail of the information contained in the Assessment for Decision, which reveals the following:

(a) the applicant was first spoken to about the allegations being made on or about July 7, 2004, and then again on October 14, 2004;

(b) there were a number of targeted searches conducted of inmates cells at Mission Institution on specified dates between April 16, 2004 and October 22, 2004 (the "searches");

(c) the fruits of those searches are described in detail;

(d) CSC received informant information, the substance of which is described with a good degree of specificity; and,

(e) that a named TD Bank official confirmed the activity on the applicant's bank account is consistent with financial transactions for drug activity.

[25]       It is my opinion that, as the full extent of the Board's documentary record was disclosed to the applicant, and as this afforded the applicant sufficient information to allow him to adequately state his case and answer the objections raised against him, the requirements of procedural fairness were met. Indeed, the disclosure was exhaustive and the detail of the allegations in the Assessment for Decision extensive. The items that the applicant asserts were not disclosed to him were names of individuals, "what time of day this occurred, where the drugs are, and where the camera footage is . . .". None of these items need necessarily be disclosed in order to afford the applicant sufficient detail of the allegations to enable him to defend himself.

[26]       It also must be noted that the Board does not hear and assess evidence, but instead acts on information. In Canada v. Zarzour (2000), 153 C.C.C. (3d) 284, leave to appeal to the Supreme Court of Canada (No. 28438) refused, Létourneau J.A. of the Federal Court of Appeal stated as follows:

[38]       I do not think, as the respondent appears to be arguing, that it is always necessary to conduct an inquiry to verify information that the Board receives. Given its needs, resources and expertise, the Board must be given some latitude, obviously within some legal parameters, as to the appropriate methods for guaranteeing the reliability of information that is supplied to it. It may be appropriate to do so by an investigation or by merely inquiring further. But confronting the person primarily affected with the allegations made in his regard, and enabling him to comment on them and rebut them, is also a significant method of verification . . . Furthermore, in terms of fairness, the confrontation ensures compliance with those principles and, in terms of the release objective, is a way of gauging the inmate's reaction and his sincerity in the face of the allegations.

[27]       The confrontation method of verification outlined by the Federal Court of Appeal in Zarzour is exactly the method used by the Board in the applicant's matter. The applicant was challenged with the allegations and the Board found that the applicant's explanations as to his financial arrangements for paying rent and bills while released were "inadequate and lacking in credibility". It further found as follows:

. . . Your claims to have no knowledge how much money was coming in and out of your account and your suggestion that your friend was using your account for his own drug trafficking purposes without providing an explanation how your friend would have benefited from these arrangements, raises serious doubts in the Board's mind that you have been fully disclosive.

[28]       The Board's process is inquisitorial by nature. In assessing the risk to society the emphasis is on ensuring that all reliable information is considered. In this case, it is implicit from its decision that the Board was satisfied with the fullness of the disclosure of allegations against the applicant as stated in the Assessment for Decision, and satisfied that it had sufficient information before it to conduct a full review of the case. Indeed, the Board expressly stated that it found there was "adequate and credible evidence" that the applicant's risk to reoffend is undue. Had it not been satisfied with the sufficiency of the evidence before it, it would have been open to the Board to request further information from CSC, and in particular request the Security Intelligence Report (SIR).

[29]       The applicant is correct in his assertion that the Rule 318 documents, which are certified as 'all' the material that was before the Board, and the Appeal Division, contain Assessment #009 dated June 3, 2005 which could not possibly have been before the Board or the Appeal Division as is sworn in the certification. While this was an error on the part of the respondent, it does not affect the disposition of this judicial review as it has not been taken into consideration.

[30]       The information contained in the Assessment for Decision and other documents more than met the disclosure obligations on the Board, and indicate that the applicant was made fully aware of the focus of the Board at the hearing. The respondent submits that the Board adequately tested the reliability of the allegations being made about the applicant and gauged the persuasive value. The Board simply did not find the evidence of the applicant credible and it was entitled to find that there was "adequate and credible evidence" that the applicant's risk to reoffend was undue and ultimately that his statutory release should be revoked.

Erroneous Findings Without Regard to the Evidence

[31]       The applicant submits that the Appeal Division made numerous erroneous findings without regard to the evidence including:

-           not giving the applicant more of the information given by bank officials and social workers, as he requested;

-           finding that he suggested his friend was using his bank account for drug trafficking purposes when he did not so suggest;

-           disregarding his argument that the Board had based its decision partly on the erroneous assertion that he was living with Fitzmaurice without permission;

-           disregarding his point that he was not told at least 15 days before the hearing that this information was to be considered;

-           disregarding the chart detailing his income and expenses;

-           stating that Fitzmaurice was a key player in the throw-overs, even though in Community Assessment #007 it is said that he was on the street until August;

-           disregarding the material in the Protected Information Reports (PIRs), and the fact that they were not shared with the Board;

-           disregarding the fact that the gist was not properly prepared in the Procedural Safeguard Declaration;

-           ignoring his explanations concerning his statement that he would return to crime;

-           ignoring that, though required by SOP 700-10, alternatives to revocation were not discussed with him;

-           failing to respond to the applicant's assertion that he no longer has a girlfriend; and

-           disregarding the applicant's assertion that other options to revocation were not considered, though Ray Lee stated otherwise.

[32]       With regard to the applicant's assertion that the Appeal Division disregarded his assertions that he did not suggest that his friend was using his bank account for drug trafficking purposes, that alternatives to revocation were not discussed with him, and that he no longer has a girlfriend, the applicant is incorrect. These items were addressed directly in the Appeal Division's decision.

[33]       The applicant is correct that the other items were not specifically addressed in the Appeal Division's decision. However, there is no requirement that the Appeal Division specifically address all arguments raised by the applicant. In VIA Rail Canada Inc. v. National Transportation Agency et al., [2001] 2 F.C. 25 at 36, the Federal Court of Appeal stated the following:

[22]       The obligation to provide adequate reasons is not satisfied by merely reciting the submissions and evidence of the parties and stating a conclusion. . . . Rather, the decision maker must set out its findings of fact and the principal evidence upon which those findings were based. . . . The reasons must address the major points in issue. The reasoning process followed by the decision maker must be set out . . . and must reflect consideration of the main relevant factors. . . .

[34]       It is my opinion that the Appeal Division did adequately address the major points in issue, set out its findings of fact and the principal evidence upon which those findings were based. The Appeal Division therefore committed no error in its failure to list every single factor raised by the applicant which was considered.

[35]       With regard to the PIRs, the applicant is mistaken that there was any requirement on the Board to consider this item, which was not before it, and therefore is also mistaken that the Appeal Division erred in not finding an error in this regard.

[36]       With regard to the applicant's argument that he did not suggest that his friend was using his bank account for drug trafficking purposes, I am unable to conclusively determine, as the tape of the Board's hearing is not before me, whether or not this was, in fact, suggested by the applicant. However, the Appeal Division indicated that it attentively listened to tape of the hearing, and concluded that the applicant did so suggest. I am inclined to accept this result. However, even if the Appeal Division were mistaken on this point, it is my opinion that the decision of the Appeal Division, and therefore of the Board, could stand without this element of the decision.

[37]       Similarly, with regard to the applicant's argument that the Board disregarded his evidence that other options to revocation were not considered, contrary to what Ray Lee had stated, I disagree. Though we cannot ascertain for certain whether or not Ray Lee did consider other options to revocation, the Board chose to accept the evidence of Ray Lee. This is a finding of fact that the Appeal Division accepted. There is nothing to suggest that this is a patently unreasonable finding of fact.

[38]       Concerning the applicant's argument that the Appeal Division did not furnish him with more information concerning the bank officials and social workers, as he requested, this is of no consequence. As already discussed, the applicant had been provided with sufficient information in the 'gist' portion of the Assessment for Decision to allow him to answer the case against him.

[39]       With regard to the argument that the applicant was not provided with the information before the Board at least 15 days prior to the hearing, this is incorrect. As stated above, all information considered by the Board was disclosed to the applicant at least 15 days prior to the hearing.

[40]       It is therefore my opinion that the Appeal Division did not make any erroneous findings without regard to the evidence.

"Behaviour Since Release" Law Not Respected

[41]       According to the applicant, he submitted in his appeal that the Board wrongly considered in the decision-making process behaviour that occurred before his release, contrary to paragraph 135(5)(a) of the CCRA.

[42]       The respondent submits that it is impossible to conduct a meaningful analysis of continued risk to society without situating the conduct of the plaintiff on release in the context of his full criminal history, past behaviour and the criminogenic factors attributed to the offender. The respondent cites Okeynan v. Prince Albert Penitentiary and [1976] 1 S.C.R. 453">National Parole Board (1988), 20 F.T.R. 270, for the proposition that the Court has found that such information is "reliable information" which the Board is required to take into account.

[43]       However, the Okeynan case is not relevant to the case at bar as it relates to section 15.4 of the Parole Act (since revoked) and to the situation of an inmate who had not yet been released. This is not the situation at hand.

[44]       The case of Rudnicki v. Canada (Attorney General), 2001 FCT 1321, [2001] F.C.J. No. 1811 (T.D.) (QL), is more helpful. In that case, my colleague Justice Paul Rouleau stated:

[37]       The plaintiff submitted that the Appeal Division erred in law in concluding that the Board had jurisdiction to order the revocation of his parole since he had committed no act while on statutory release that increased the risk of a reoffence, legally justifying revocation. I am unable to conclude that the Board drew a mistaken conclusion of fact when it considered the seizure of the 39-page document and other items in the inmate's room, and the fact that he had them in his possession at the time of his parole, as an indication that he was in the same state of mind and still had the same criminal attitude of vengeance and hatred against society. Whether the threatening letter found on December 4, 2000 was written before or after the plaintiff began his statutory release makes little difference, as does the fact that the letter was never mailed. It should also be noted in this regard that the evidence showed that after the documents were discovered in the plaintiff's room he allegedly told the director of the residence to which he was assigned that he intended to send the threats when the term he was currently serving expired, which in my opinion itself constituted conduct tending to further support the Board's conclusion . . . It was not patently unreasonable for the Board to consider this relevant evidence as a whole in arriving at its decision. Concluding that [TRANSLATION] "conduct since release" requires the commission of an act or positive action such as an assault, that would demonstrate that the risk the plaintiff would reoffend before expiry of the sentence he was serving had become an undue risk for society, would be to give an unduly limiting interpretation to paragraph 135(5)(a) that would frustrate the intention of Parliament. Considering all the information available, I am persuaded that the evidence actually received by the Board could reasonably support its decision to revoke the plaintiff's parole.

Additionally, in the cases of R. v. Cadeddu, [1997] O.J. No. 4378, and R. v. Turner, [1993] O.J. No. 4346, the Ontario Court of Justice explained that statutory release could not be revoked if there was no post-release conduct to be considered. In R. v. Turner, the Court stated at paragraph 14:

      In my opinion, conduct preceding an inmate's release will not, save in the most extraordinary circumstances (none of which exist in this case), justify suspension of his statutory release. . . .

[45]       By taking these cases into consideration in conjunction with the fact that the Board's process is inquisitorial in nature and the Board may take into consideration information which does not conform to the strict evidentiary requirements which are crucial in judicial proceedings, it is the case that though the Board may not suspend an inmate's release based solely on the offender's behaviour prior to release, it is not an error for the Board to take such information into account in a minor way to inform the background of the decision.

[46]       In any event, even if I were incorrect in this conclusion, it would not change the outcome of this case, as in this case the Board did in fact suspend the applicant's release based on the offender's behaviour since release, specifically, his involvement, or willingness to be involved, in throw-overs at the institution.

[47]       Additionally, it is of importance to note that the Board did not simply make its decision based on the allegations. Rather, the applicant was challenged with the allegations and his answers were found to be inadequate and lacking in credibility. The decision of the Board revoking the applicant's statutory release was therefore also based on the applicant's evidence as to his financial arrangements and bank account activity lacking credibility.

[48]       I do not find that any error was committed by the Board in this regard, nor any error by the Appeal Division in upholding the Board's decision.

Decision Not Patently Unreasonable

[49]       There is no evidence that the Appeal Division reached a patently unreasonable decision to uphold the decision of the Board to revoke the applicant's statutory release. The Appeal Division found that the Board's decision was lawful, and there was certainly information that it considered could indicate the applicant was an undue risk to reoffend before the expiration of his sentence.

[50]       The decision of the Appeal Division clearly shows that it reviewed the file that was before the Board, reviewed the decision, listened to the taped proceedings, and considered the submissions of the applicant.

[51]       It is my opinion that the Appeal Division did not fail to observe any principles of fundamental justice, and its determination was not patently unreasonable.

[52]       Consequently, the application for judicial review is dismissed with costs.

       JUDGE

OTTAWA, ONTARIO

February 14, 2006

                                                             FEDERAL COURT

                            NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET:                                                       T-966-05

STYLE OF CAUSE:                                      MICHAEL ANDREW STRACHAN v. ATTORNEY GENERAL OF CANADA

PLACE OF HEARING:                                  Vancouver, British Columbia

DATE OF HEARING:                                    January 17, 2006

REASONS FOR ORDER BY:                      Pinard J.

DATED:                                                          February 14, 2006

APPEARANCES:

Michael Andrew Strachan                             THE APPLICANT ON HIS OWN BEHALF

Graham Stark                                                             FOR THE RESPONDENT

SOLICITORS OF RECORD:

John H. Sims, Q.C.                                        FOR THE RESPONDENT

Deputy Attorney General of Canada