Date: 20060303
Docket: T-552-05
Citation: 2006 FC 284
Ottawa, Ontario, March 3, 2006
PRESENT: The Honourable Madam Justice Snider
BETWEEN:
BRYAN R. LATHAM
Applicant
and
HER MAJESTY THE QUEEN, HER SERVANT THE SOLICITOR
GENERAL OF CANADA, AND HIS AGENTS THE NATIONAL PAROLE
BOARD AND THE CORRECTIONAL SERVICE OF CANADA
Respondents
REASONS FOR ORDER AND ORDER
[1] Mr. Bryan R. Latham, the Applicant, is an inmate in the care of the Correctional Service of Canada ("CSC"), serving an indeterminate sentence as a dangerous offender. Because of the undefined length of sentence for offenders such as the Applicant, the offender is entitled to a review of his sentence before the National Parole Board ("NPB" or "Board") every two years, pursuant to s. 761(1) of the Criminal Code, R.S.C. 1985, c. C-46. In accordance with s. 140(1) of the Corrections and Conditional Release Act, S.C. 1992, c. 20 (CCRA), a review of the case of an offender is to be conducted by way of a hearing, unless the offender waives that right or refuses to attend a hearing.
[2] The Applicant's 17th year review was conducted at a hearing held on January 8, 2002. The Applicant's 19th year review, although originally scheduled for hearing in December 2003, was not held until May 12, 2004. At the start of the hearing, the Applicant informed the NPB that it had lost jurisdiction over him by failing to hold a hearing within the mandated two-year time frame. The Applicant then left the hearing, leaving his assistants behind. Given his refusal to attend his hearing, the NPB completed its review and, in a decision dated May 18, 2004, denied parole for the Applicant.
[3] The Applicant appealed the NPB decision to the Appeal Division, and, by decision dated February 7, 2005, the appeal was dismissed. The Appeal Division found that:
- the NPB's decision was "reasonable and well supported by relevant, reliable and persuasive information";
- the NPB had not committed any errors of law or breached the principles of fundamental justice; and
- the NPB had not lost jurisdiction over the Applicant.
[4] The Applicant seeks judicial review of the decision of the Appeal Division. Specifically, he seeks an Order quashing the decision of the Appeal Division and a declaration that the NPB and Appeal Division have lost jurisdiction over the Applicant. He also requests relief under s. 24(1) of the Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11 (the Charter) with respect to his continued incarceration and the failure of the CSC to provide disclosure prior to his hearing before the NPB.
Issues
[5] The issues raised by the Applicant are as follows:
- Did the Appeal Division err by concluding that the NPB had not lost jurisdiction to review the Applicant's sentence, due to the failure of the NPB to hold the Applicant's review within the time frame specified by s. 761(1) of the Criminal Code?
- Is the decision of the Appeal Division in error due to failure of the CSC to provide full and accurate disclosure prior to the NPB review?
- Did the Appeal Division err by concluding that the NPB had adhered to the principles set out in s. 101(1)(b) of the CCRA and Policy 2.1.1?
- Did the Appeal Division err by failing to conclude that the NPB had relied on erroneous and inaccurate information contained within the CSC files?
- Did the Appeal Division err by failing to find that the NPB did not violate procedural fairness or the principles of fundamental justice, pursuant to s. 7 of the Charter, by refusing to hear the Applicant's assistant?
- Did the Appeal Division err by failing to find that the NPB did not violate procedural fairness or the principles of fundamental justice, pursuant to s. 7 of the Charter, by failing to provide adequate disclosure?
Analysis
Standard of Review
[6] The Appeal Division, in its decision, described its function as follows:
The role of the Appeal Division is to ensure that the law and the Board policies are respected, and that the rules of fundamental justice are adhered to and that the Board's decisions are based upon relevant and reliable information.
The Appeal Division reviews the decision-making process to confirm that it was fair and that the procedural safeguards were respected.
The Appeal Division has jurisdiction to re-assess the issue of risk to re-offend and to substitute its discretion for that of the original decision makers, but only where it finds that the decision was unfounded and unsupported by the information available at the time the decision was made.
[7] The Appeal Division is a respected, expert tribunal whose decisions should be given considerable deference by this Court. This view of a high standard of review has frequently been affirmed by this Court (Costiuc v. Canada (Attorney General), [1999] F.C.J. No. 241; Beaupré v. Canada (Attorney General), [2002] F.C.J. No. 595; Ouellet v. Canada (Attorney General), [2001] F.C.J. No. 1924).
[8] Nevertheless, for questions related to the jurisdiction of the Appeal Division to conduct a review, the interpretation of legislative provisions, or alleged breaches of natural justice, the decision must be correct. On my understanding of the issues raised by the Applicant, at least some portion of each of the questions that must be addressed within issues numbered 1, 4, 5 and 6 falls within this category where review is most properly done on a correctness standard. For findings by the Appeal Division related to particular findings of fact, however, the highest level of deference is owed to the Appeal Division. That is, provided that these conclusions are supported by the evidence, the finding should not be disturbed.
Issue #1: Failure to hold the review in the two-year time frame
[9] The Applicant submits that the most serious issue raised by this application is whether the NPB, by failing to hold a review within the two-year time mandated by statute, lost jurisdiction to hold a parole review at all. The Applicant argues that the Appeal Board also therefore lost jurisdiction to review the decision.
[10] The Applicant's position is that the time frame specified in s. 761(1) is imperative. Once the Board failed to hold a review within the limits set out by the Criminal Code, or alternatively delayed the hearing beyond the limits set out in the CCRA and related regulations (Corrections and Conditional Release Regulations, SOR/92-620 (the Regulations)), the Board had no legislative power to hold a review. The Applicant relies on Lyding v. Canada (National Parole Board) (1998), 213 A.R. 323 (Alta.Q.B.) to the extent that it states that continued detention beyond a scheduled review date is contrary to the CCRA and results in a loss of jurisdiction and the release of an offender.
[11] It is necessary at this point to review the legislative scheme governing the review of indeterminate sentences.
(a) Legislative Scheme
[12] An offender such as the Applicant, who receives an indeterminate sentence, is entitled to a review of his case within two years of his previous review, pursuant to s. 761(1) of the Criminal Code.
| 761. (1) Subject to subsection (2), where a person is in custody under a sentence of detention in a penitentiary for an indeterminate period, the National Parole Board shall, as soon as possible after the expiration of seven years from the day on which that person was taken into custody and not later than every two years after the previous review, review the condition, history and circumstances of that person for the purpose of determining whether he or she should be granted parole under Part II of the Corrections and Conditional Release Act and, if so, on what conditions [emphasis added].
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761. (1) Sous réserve du paragraphe (2), la Commission nationale des libérations conditionnelles examine les antécédents et la situation des personnes mises sous garde en vertu d'une sentence de détention dans un pénitencier pour une période indéterminée dès l'expiration d'un délai de sept ans à compter du jour où ces personnes ont été mises sous garde et, par la suite, tous les deux ans au plus tard, afin d'établir s'il y a lieu de les libérer conformément à la partie II de la Loi sur le système correctionnel et la mise en liberté sous condition et, dans l'affirmative, à quelles conditions.
[Non souligné dans l'original.]
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[13] The CCRA describes the constitution and jurisdiction of the NPB and Appeal Division, as well as the procedure to be followed by these tribunals. The NPB has "exclusive jurisdiction and absolute discretion... to grant parole to an offender" (s. 107(a)). Under ss. 122 and 123, the Board has the power to review day and full parole applications. These sections also grant the Board power to adjourn parole reviews, within limits found in the Regulations.
| 122. (1) Subject to subsection 119(2), the Board shall, on application, at the time prescribed by the regulations, review, for the purpose of day parole, the case of every offender other than an offender referred to in subsection (2).
...
(3) With respect to a review commenced under this section, the Board shall decide whether to grant day parole, or may adjourn the review for a reason authorized by the regulations and for a reasonable period not exceeding the maximum period prescribed by the regulations.
...
123. (1) Subject to subsection (2), the Board shall, at the time prescribed by the regulations, review, for the purpose of full parole, the case of every offender who is serving a sentence of two years or more and who is not within the jurisdiction of a provincial parole board.
...
(4) With respect to a review commenced under this section, the Board shall decide whether to grant full parole, or may grant day parole, or may adjourn the review for a reason authorized by the regulations and for a reasonable period not exceeding the maximum period prescribed by the regulations.
[Emphasis added.]
...
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122. (1) Sur demande des intéressés, la Commission examine, au cours de la période prévue par règlement, les demandes de semi-liberté.
...
(3) Lors de l'examen, la Commission accorde ou refuse la semi-liberté, ou diffère sa décision pour l'un des motifs prévus par règlement; la durée de l'ajournement doit être la plus courte possible compte tenu du délai réglementaire.
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123. (1) La Commission examine, aux fins de la libération conditionnelle totale et au cours de la période prévue par règlement, les dossiers des délinquants purgeant une peine d'emprisonnement de deux ans ou plus qui ne relèvent pas d'une commission provinciale.
...
(4) Lors de l'examen, la Commission soit accorde ou refuse la libération conditionnelle totale, soit accorde la semi-liberté, soit diffère sa décision pour l'un des motifs prévus par règlement; la durée de l'ajournement doit être la plus courte possible, compte tenu du délai réglementaire.
[Non souligné dans l'original.]
...
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[14] Reviews are, except in certain circumstances, conducted by way of a hearing. Section 140(1) of the CCRA provides that:
| 140. (1) The Board shall conduct the review of the case of an offender by way of a hearing, conducted in whichever of the two official languages of Canada is requested by the offender, unless the offender waives the right to a hearing in writing or refuses to attend the hearing . . .
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140. (1) La Commission tient une audience, dans la langue officielle du Canada que choisit le délinquant, dans les cas suivants, sauf si le délinquant a renoncé par écrit à son droit à une audience ou refuse d'être présent ...
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[15] According to ss. 157 and 158 of the Regulations, the Board may postpone parole reviews with the consent of the offender and may also adjourn reviews for up to two months, in order to allow the Board to receive all the necessary documentation.
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157. (3) The Board may postpone a day parole review with the consent of the offender.
(4) The Board may adjourn a day parole review for a period of not more than two months where the Board requires
(a) further information relevant to the review; or
(b) further time to render a decision.
...
158. (3) The Board may postpone a full parole review with the consent of the offender.
(4) The Board may adjourn a full parole review for a period of not more than two months where the Board requires
(a) further information relevant to the review; or
(b) further time to render a decision.
[Emphasis added.]
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157. (3) Avec l'accord du délinquant, la Commission peut reporter l'examen visant une mise en semi-liberté.
(4) La Commission peut ajourner, pour une période d'au plus deux mois, l'examen visant une mise en semi-liberté lorsque, selon le cas, elle a besoin :
a) de plus de renseignements pertinents;
b) de plus de temps pour prendre une décision.
...
158. (3) Avec l'accord du délinquant, la Commission peut reporter l'examen visant une libération conditionnelle totale.
(4) La Commission peut ajourner, pour une période d'au plus deux mois, l'examen visant une libération conditionnelle totale lorsque, selon le cas, elle a besoin :
a) de plus de renseignements pertinents;
b) de plus de temps pour prendre une décision.
[Non souligné dans l'original.]
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[16] There are no remedial provisions indicating what should happen if the time limits set out in the regulations are not followed.
(b) Facts applicable to the Applicant
[17] The Applicant contends that the length of delay in question is five months. The period of delay is divided into two parts: the first period during which the Applicant either requested or agreed to two postponements and the second delay initiated by the CSC or the NPB.
[18] With respect to the first postponements, the record is clear that the Applicant assented to two postponements for the purpose of allowing CSC to share required documentation with the Board and the Applicant. While the Applicant now alleges that he was "pressured" into consenting to these postponements, there is no evidence before this Court suggesting any undue influence. It appears that the Applicant is not arguing that the Board lost jurisdiction during these first adjournments since these postponements were made in accordance with powers clearly enumerated in the Regulations (ss. 157(3) and 158(3)) and, thus, form part of the parole review scheme.
[19] The Applicant's arguments before me focus on the second period of delay. A hearing was begun on February 19, 2004, and at this hearing the Board adjourned for a period to allow CSC to share documents with the Board and the Applicant. The Board did not reconvene until May 12, 2004, nearly three months later. In addition to arguing that the Board could not hold a hearing past the two-year time limit under s. 761(1), the Applicant contends that the Board adjourned his review longer than was allowed under ss. 157(3) and 158(3) of the Regulations. Therefore, he says, the Board lost their jurisdiction once that two month limit expired.
[20] The Applicant says that the Board stepped outside of the power granted to it by Parliament in that there was no provision that gave it the power to hold a parole hearing beyond the mandated two-year period. If the Applicant is correct, there are a number of questions that must be asked. What, then, was to become of the Applicant's indeterminate sentence? What tribunal or court, if any, then held the power to review the Applicant's sentence, to tailor it to his circumstances and to consider whether he should be released on parole? The Applicant, relying on the Supreme Court of Canada case of Steele v. Mountain Institution [1990] 2 S.C.R. 1385, argues that he should be freed from his incarceration because the NPB no longer has any jurisdiction to review his parole. If this is not an available remedy, he contends that the jurisdiction to consider his conditional release has defaulted to this Court or to a Superior Court of the provinces.
[21] Despite the sincere submissions of the Applicant, I cannot agree with his position that the NPB and Appeal Division have lost jurisdiction and that either this or another Superior Court should undertake a review of the circumstances of his incarceration once the two-year period has passed. I base this response on three different factors. Firstly, the Supreme Court has clearly expressed the view that the NPB, as an expert tribunal, is the proper body to supervise the release and continued detention of long-term inmates. Secondly, the Applicant has not demonstrated that his sentence is grossly disproportionate. Thirdly, I do not believe that Parliament intended the results advocated by the Applicant. Let me consider each of these factors.
(c) What is the role of the NPB and Appeal Division?
[22] In Steele, above, at para. 83, Justice Cory, speaking for the unanimous Supreme Court, stated that:
[I]t is important that the release of a long term inmate should be supervised by those who are experts in this field. I agree with the comments of Locke J.A.:
In the case of persons subject to an indeterminate sentence who have spent many years in prison, it is highly desirable that their release, if and when it occurs, should be conditional, should be subject to supervision by those experienced in the parole or probation fields, and should be accompanied by the sort of assistance which will increase their likelihood of adjusting to the change in environment and, if possible, becoming self-sufficient and useful members of society. Under the present statutory and administrative arrangements, it seems that this can be achieved only in association with release by the parole board, in the exercise of its discretion under s. 761 of the Criminal Code.
[23] In R. v. Lyons, [1987] 2 S.C.R. 309, where the Supreme Court found that the indeterminate sentencing scheme did not violate the Charter, Justice La Forest also recognized the importance of the parole review process:
[I]t is clear that an enlightened inquiry under s. 12 [of the Charter] must concern itself, first and foremost, with the way in which the effects of punishment are likely to be experienced. Seen in this light, therefore, the parole process assumes the utmost significance for it is that process alone that is capable of truly accommodating and tailoring the sentence to fit the circumstances of the individual offender [at para. 48].
[24] In sum, the Courts are not experts in this field, as are the members of the NPB and the Appeal Division, and it is only in cases of exceptional departure from their mandates that these important components to the maintenance of indeterminate sentences should lose their jurisdiction.
(d) Is the Applicant's sentence "grossly disproportionate"?
[25] What then will give rise to such exceptional circumstances? In response, I refer to the words of Justice Cory in Steele, at para. 80:
It will only be on rare and unique occasions that a court will find a sentence so grossly disproportionate that it violates the provisions of s. 12 of the Charter. The test for determining whether a sentence is disproportionately long is very properly stringent and demanding. A lesser test would tend to trivialize the Charter [at para. 80].
[26] In conjunction with the above, the Applicant argues that an indeterminate sentence that is not properly tailored to the offender through a proper execution of review by the Board becomes grossly disproportionate, violating ss. 7, 9, and 12 of the Charter (R. v. Lyons, above; Steele, above). The Applicant points out that he has been incarcerated almost continuously for 37 years and that there are no remaining programs of rehabilitation available to him within the prison system.
[27] This allegation requires a review of the facts in Steele, above, that gave rise to the Supreme Court's conclusion that Mr. Steele should be released.
[28] In Steele, above, the Supreme Court found that the NPB had consistently applied the wrong legal test to the appellant's parole review for a number of years. The appellant had not committed a crime since his initial conviction at 18 years of age. Although he had breached the conditions of parole in the past, these were understandable incidents related to substance abuse and "institutionalization" and not related to sexual or violent criminal tendencies. The appellant had derived the "maximum benefit from imprisonment" and his continued incarceration was likely to lead to his deterioration. Mental health evaluations recommended his release. The key factor in Steele was that the NPB had failed to properly assess whether the appellant's release would cause an undue risk to society, by focussing on minor, explicable breaches of discipline. Justice Cory stated at para. 79 that:
[a]s a result of these errors, the parole review process has failed to ensure that Steele's sentence has been tailored to fit his circumstances. The inordinate length of his incarceration has long since become grossly disproportionate to the circumstances of this case.
[29] The facts in Steele are substantially different from the facts in this case. The Applicant here re-offended on more than one occasion during conditional release, which led to his classification as a "dangerous offender" and to his indeterminate sentence. The Applicant appears to have derived most, if not all, of the benefit he can from programs available to him in prison, and his psychology evaluations indicate that he is not likely to improve any further within the prison, but the same reports also still judge his risk of recidivism as at least moderate. In my view, the most important difference from Steele, above, is that there is no indication that the NPB has consistently failed to evaluate the Applicant's risk to re-offend. For example, the Applicant's prior review, held in 2002, was appealed to the Appeal Division and eventually reviewed by this Court, and was upheld at all levels (see Latham v. Canada, 2004 FC 1585, [2004] F.C.J. No. 1911 (QL)). Neither the NPB nor Appeal Division committed substantive errors in their analysis of the suitability of parole for the Applicant.
[30] In this case, it cannot be said that, because the NPB held a late hearing, the Applicant's sentence has become grossly disproportionate. Therefore, the result in Steele, above, is not applicable to the present case.
(e) Did failure to adhere to the two-year requirement give rise to exceptional circumstances?
[31] I return, then, to considering whether the Board's failure to conduct the Applicant's 19th year parole review gives rise to exceptional circumstances that could result in a loss of jurisdiction.
[32] As I stated above, the analysis in Steele is relevant. Justice Cory strongly emphasized the crucial role of the Board. The Board is a necessary, essential part of the function of an indeterminate sentence.
[33] Not only is the Board essential to the indeterminate sentencing scheme, but it is the bulwark against the possibility of an indeterminate sentence becoming grossly disproportionate. Viewed in this light, a compelling conclusion is that the jurisdiction of the Board should not be ousted by procedural errors. The power to review the Applicant's sentence and determine or deny conditional release should not shift to this Court or a provincial Superior Court. This would be contrary to the intention of Parliament and would deprive the Applicant of a fair and just determination achieved under the relative expertise of the NPB.
[34] The proper interpretation of s. 761(1) on these exact facts has been considered by the Saskatchewan Court of Appeal. In addition to applications for judicial review to this Court, the Applicant brought an application for a writ of habeas corpus before the Saskatchewan Court of Queen's Bench. His application was dismissed on June 25, 2004 (Latham v. Her Majesty the Queen, 2004 SKQB 292). On October 19, 2004, the Court of Appeal dismissed his appeal (Latham v. Her Majesty the Queen, 2004 SKCA 141 (referred to as "Latham, Sask. C.A.")). These cases are of direct relevance, given that the Courts were faced with exactly the same incident that is before me: the failure to hold the 19th year review by January 8, 2005. Before both Courts, the Applicant argued, just he has before me, that the failure to comply with the time limit resulted in a loss of jurisdictionby the NPB. In rejecting the argument, the Court of Appeal stated that:
In our opinion, the failure to hold the mandated hearing did not render the detention unlawful. In our opinion, Parliament could not have intended that a failure by the National Parole Board to hold the hearing within the time would render the detention unlawful [at para. 10].
[35] I agree with their conclusion. Any other interpretation would, in my view, remove the role of the NPB even where any errors have been non-substantive procedural errors; such a result would be absurd.
[36] I agree with the Applicant that neither the CCRA nor the Regulations provide express authority to the NPB to carry out a later review. Nevertheless, I conclude that this authority must be implied from the legislative scheme. If an inmate such as the Applicant is serving an indeterminate sentence and his statutorily mandated parole review is not heard within the time limit, the best solution is to hold the hearing as soon as possible. As I explained above, this is the superior solution because it maintains the Applicant's review within the system best suited to achieve a just determination. It follows from what I have stated that the Appeal Division did not err when it stated that the NPB "had no other option but to proceed... if only for the purpose of maintaining its jurisdiction in your case."
[37] My conclusion is based on the particular circumstances before me. In this case, the Board adjourned its hearing in order to ensure that both it and the Applicant had all the necessary documentation. The Applicant argues that the Board lost jurisdiction, based on the statement of Justices LeBel and Fish, at para. 77 of May v. Ferndale Institution, 2005 SCC 82">2005 SCC 82, that administrative decisions that violate the Charter are null and void for lack (or "want") of jurisdiction. Notwithstanding that May dealt with a failure to disclose relevant information, the Applicant argued that in both May and this case the principles of fundamental justice were breached. This argument cannot succeed. As the Respondent ably points out, the Board adjourned the hearing in order to allow the Applicant and itself to receive all the documentation required to conduct a fair parole review. Under this circumstance, it would more accurately be said that the principles of fundamental justice were foremost in the Board's mind and were maintained.
[38] The Applicant also submits that Lyding v. Canada(National Parole Board) (1998), 213 A.R. 323 (Alta Q.B.) applies. In that case, the Alberta Court of Queen's Bench ruled that continued detention beyond a scheduled parole review date, for an inmate serving an indeterminate sentence, resulted in a loss of jurisdiction of the Board and the release of the offender. However, in Armaly v. Canada(Parole Service), 2001 ABCA 280, the Court of Appeal expressly overruled Lyding and held that not every breach of procedure goes to jurisdiction. The Court stated that it was not Parliament's intent that a breach of procedure results in a loss of jurisdiction, since the CCRA provides for a comprehensive scheme administering the parole process. The rule in Armaly is in harmony with the scheme described by the Supreme Court in Steele and Lyons, both above, and much preferable.
[39] For these reasons, I conclude that the Board's failure, in this case, to hold a hearing within the statutorily mandated time frame did not result in a loss of jurisdiction. The Appeal Division was correct in its finding on this point.
Issue #2: CSC failure to disclose
[40] The Applicant contends that the CSC violated statutory duties owed to the Applicant and violated the Applicant's section 7 Charter rights, by failing to provide full and accurate disclosure prior to the NPB hearing.
[41] In the Applicant's view, the CSC violated ss. 24 and 25 of the CCRA, which require the CSC to maintain accurate, up-to-date and complete information in the Applicant's parole file and require the CSC to provide all of that information to the NPB.
[42] The main flaw in the Applicant's argument is that this judicial review application is dealing with the decision of the Appeal Division and not with the CSC. A separate grievance procedure exists, beginning with s. 24 of the CCRA, to address the Applicant's concerns. The relevant provisions are as follows:
| 24. (1) The Service shall take all reasonable steps to ensure that any information about an offender that it uses is as accurate, up to date and complete as possible.
(2) Where an offender who has been given access to information by the Service pursuant to subsection 23(2) believes that there is an error or omission therein,
(a) the offender may request the Service to correct that information; and
(b) where the request is refused, the Service shall attach to the information a notation indicating that the offender has requested a correction and setting out the correction requested.
25. (1) The Service shall give, at the appropriate times, to the National Parole Board, provincial governments, provincial parole boards, police, and any body authorized by the Service to supervise offenders, all information under its control that is relevant to release decision-making or to the supervision or surveillance of offenders.
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24. (1) Le Service est tenu de veiller, dans la mesure du possible, à ce que les renseignements qu'il utilise concernant les délinquants soient à jour, exacts et complets.
(2) Le délinquant qui croit que les renseignements auxquels il a eu accès en vertu du paragraphe 23(2) sont erronés ou incomplets peut demander que le Service en effectue la correction; lorsque la demande est refusée, le Service doit faire mention des corrections qui ont été demandées mais non effectuées.
25. (1) Aux moments opportuns, le Service est tenu de communiquer à la Commission nationale des libérations conditionnelles, aux gouvernements provinciaux, aux commissions provinciales de libération conditionnelle, à la police et à tout organisme agréé par le Service en matière de surveillance de délinquants les renseignements pertinents dont il dispose soit pour prendre la décision de les mettre en liberté soit pour leur surveillance.
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[43] The Applicant must utilize the grievance procedure and then, if dissatisfied, seek judicial review of the final decision in that procedure (see A.S.R. v. Canada(National Parole Board), 2002 FCT 741, at paras. 19-21; and, for example, Tehrankari v. Canada(Correctional Service), [2000] F.C.J. No. 495 (T.D.) (QL)). Documents provided by the Applicant indicate that he has pursued that mechanism and achieved redress. Moreover, the Applicant's submission does not relate to the findings made by CSC in the grievance process, but relates only to the effect that inaccuracies in his files may have had on the decisions of the NPB and Appeal Division. As will be discussed below, any alleged inaccuracies in the information relied on by the Board go to the issue of whether the Appeal Division came to a patently unreasonable decision.
[44] It follows that CSC's alleged failure to disclose is not relevant to this application.
Issue #3: Adherenceto the principles set out in s. 101(1)(b) of the CCRA and Policy 2.1.1
[45] The Applicant argues that there is no evidence that the Board followed Policy 2.1.1 (a guideline promulgated by the NPB dealing with the responsibilities of members in conducting reviews) and s. 101(b) of the CCRA in order to determine whether the Applicant's sentence had become grossly disproportionate. Specifically, the Applicant points out that the NPB and Appeal Division failed to mention the comments of the sentencing judge in their reasons.
[46] Section 101(b) of the CCRA states the following:
| 101. The principles that shall guide the Board and the provincial parole boards in achieving the purpose of conditional release are:
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(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[.]
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101. La Commission et les commissions provinciales sont guidées dans l'exécution de leur mandat par les principes qui suivent :
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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;
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[47] Policy 2.1.1 expands on this requirement. In presenting this issue, the Applicant argues that both the NPB and the Appeal Division failed to take certain information into consideration. The record does not support this assertion.
[48] The Appeal Division considered the issue of whether the NPB disregarded evidence with respect to the potential disproportionality of the Applicant's sentence and dealt with it comprehensively. I am in full agreement with the statement made by the Appeal Division that:
the fact that the Board has not made specific reference to the Judge's comments in the Decision Sheet does not mean that the information was not taken into consideration. In this case, the Board has clearly indicated that it had carefully reviewed all file information.
[49] These comments apply equally to the decision of the Appeal Division. It is clear from the thoroughness of their reasons that the Appeal Division reviewed and considered the full record pertaining to the Applicant. I notice, as the Appeal Division did, that this same issue was considered previously by this Court in Latham v. Canada, 2004 FC 1585, [2004] F.C.J. No. 1911 (QL) where the Applicant had challenged the Appeal Division's decision relating to his 17th-year parole review. Justice O'Reilly dismissed this argument as follows, at para. 32:
Obviously, the sentencing judge's comments are not irrelevant. The Board has a duty to consider all relevant and reliable evidence and, clearly, the comments of the trial judge will usually be important. Indeed, the principles that guide the Board specifically refer to the significance of "the stated reasons and recommendations of the sentencing judge". (s. 101(b), Corrections and Conditional Release Act). However, in the circumstances of this case, I cannot find that a failure specifically to mention those comments constitutes, in itself, a faulty analysis of disproportionality. Nor would I conclude that it necessarily amounts to reviewable error.
[50] As did Justice O'Reilly, I conclude that the failure to specifically mention the sentencing judge's comments does not constitute a reviewable error.
Issue #4: Reliance on erroneous and inaccurate information in the CSC files
[51] The Applicant submits that the Board and Appeal Division relied on erroneous information provided by CSC, and that the Board and Appeal Division misinterpreted the evidence before them to arrive at erroneous conclusions. Specifically, the Applicant alleges that the following erroneous propositions were relied upon:
(i) the Applicant was "convicted of Assault on a Female x3 in Australia";
(ii) he did not believe that he required any supervision upon release;
(iii) he indicated that further programming was not required upon release;
(iv) he was still a high risk for sexual recidivism based on a psychological assessment dated January 6, 2004.
[52] According to the Applicant, certain portions of this information have now been amended by the CSC as a result of grievances. A third level grievance decision was made in the Applicant's favour after the decision of the Appeal Division had been rendered.
[53] I have carefully reviewed the reasons of both the NPB and Appeal Division. Before addressing the specific allegations of the Applicant, certain general principles should be considered. The NPB and the Appeal Division are not responsible for correcting an offender's files, but are to consider all relevant and reliable evidence that is put before them, in accordance with ss. 25(1) and 101(b) of the CCRA (Tehrankari, above). It is open to the Board or Appeal Division to not rely on information it perceives as inaccurate (Mooring v. Canada (National Parole Board) (1996), 192 N.R. 161 (S.C.C.), [1996] 1 S.C.R. 75 (QL) at para. 32). Neither the NPB nor the Appeal Division has the mandate to look behind the files provided by CSC (A.S.R. v. Canada (National Parole Board), above). As noted above, under Issue #2, the accuracy of such information can be and, in this case, has been challenged in a different process. To the extent that the information has been amended, it will be considered in the Applicant's next review.
[54] The NPB and Appeal Division cannot be faulted for relying on the information before them, since it was only subsequent to the review that the Applicant's third level of the grievance process successfully challenged the contents of his file. Furthermore, both the decision of the NPB and of the Appeal Division are based on numerous other reports, many not challenged by the Applicant, which support their finding.
[55] The Appeal Division addressed the Applicant's claim that the NPB mistakenly found that he did not believe he required supervision or further programming on release. The Appeal Division concluded that those findings were supported by the record. I am satisfied that the Appeal Division's conclusions in this regard were reasonable, well-written, and based on the record before it.
[56] Additionally, I cannot agree that the description of the Applicant's convictions in Australia as "Assault on a Female (x3)" rather than common assaults is a material error. It was not unreasonable for the Appeal Division to find that, given that the assaults had a sexual nature, the misdescription by the NPB was inconsequential. Justice O'Reilly addressed this concern in Latham v. Canada, above, stating that the discrepancy in description was "clearly not sufficient to discredit the substance of the information contained in those documents".
[57] The Appeal Division stated that the NPB relied on a psychological report, dated January 6, 2004, in coming to the conclusion that the Applicant was still at a high risk for sexual recidivism. Based on information contained within the report, it was open to the Appeal Division to uphold the NPB's conclusion.
[58] The Appeal Division indicated that the Board had based its decision on a number of factors, not all of which are challenged here and which were sufficient to support the Board's decision. Additionally, the Appeal Division made its own finding that the Applicant was not ready for release, based on reports indicating negative and challenging behaviour.
[59] In my review of the record, it is apparent that much of the information that supports the Appeal Division's conclusion has not been challenged by the Applicant, and that the challenges discussed above cannot succeed. Hence, the Appeal Division's affirmation of the NPB decision was reasonable and based on the record.
Issue #5: Refusal to hear the Applicant's assistant
[60] As noted above, the Applicant left at the commencement of his review hearing on May 12, 2004. His assistant remained and the NPB proceeded with its review without a hearing. The Applicant argued before the Appeal Division and before this Court that his assistant should have been allowed to speak on his behalf and that failure to allow her to participate is a breach of natural justice and of his s. 7 Charter rights to procedural fairness.
[61] In its decision, the Appeal Division pointed out that an assistant is entitled to be present at the hearing at all times when the offender is present. The Appeal Division concluded that "because you were not present and in fact there was no hearing, your assistant lost her status as assistant and could not be permitted to address the Board." I agree with this conclusion.
[62] The applicable provisions of the CCRA are ss. 140(7) and (8). They are as follows:
| 140. (7) Where a review by the Board includes a hearing at which the offender is present, the Board shall permit the offender to be assisted by a person of the offender's choice unless the Board would not permit the presence of that person as an observer pursuant to subsection (4).
(8) A person referred to in subsection (7) is entitled
(a) to be present at the hearing at all times when the offender is present;
(b) to advise the offender throughout the hearing; and
(c) to address, on behalf of the offender, the members of the Board conducting the hearing at times they adjudge to be conducive to the effective conduct of the hearing.
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140. (7) Dans le cas d'une audience à laquelle assiste le délinquant, la Commission lui permet d'être assisté d'une personne de son choix, sauf si cette personne n'est pas admissible à titre d'observateur en raison de l'application du paragraphe (4).
(8) La personne qui assiste le délinquant a le droit :
a) d'être présente à l'audience lorsque le délinquant l'est lui-même;
b) de conseiller le délinquant au cours de l'audience;
c) de s'adresser aux commissaires au moment que ceux-ci choisissent en vue du bon déroulement de l'audience.
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[63] The words of the statute are clear and unambiguous. The right to be assisted only arises where there is a "hearing at which the offender is present". In this case, without the presence of the Applicant, there was no "hearing" within the meaning of s. 140 of the CCRA. The NPB conducted its review without a hearing. It follows that the assistant had no status and, therefore, no right to represent an offender in his absence. The Appeal Division correctly interpreted the legislative provisions and committed no error in finding that the Board had not breached procedural fairness by refusing to hear the assistant.
[64] Additionally, under the circumstances of this case, I cannot agree that such a restriction violates his s. 7 Charter rights to procedural fairness. The Applicant was afforded a full opportunity to participate in a hearing, but he voluntarily rejected that opportunity by leaving the hearing. The NPB stated in its decision that the Applicant said, "I'm just leaving, it's up to you guys what you want to do," and left his assistants "sitting there apparently unaware of what you were doing." In my view, the Applicant was afforded a full opportunity to present his case but chose not to take advantage of it.
Issue #6: Disclosure
[65] The Applicant submits that the Board violated his right to know the case against him, thereby breaching the principles of fundamental justice, by failing to provide him with proper disclosure as required under s. 141(1) of the CCRA. The Applicant contends that he had not been provided with copies of a Police Service Report dated July 3, 1971, and a Progress Performance Report, dated May 15, 2002, until after the NPB hearing.
[66] The Appeal Division found, based on an "Information Sharing Checklist Update", that the documents in question had been shared with the Applicant as early as 2002 and 2003. I notice that the Appeal Division indicated that the pertinent Checklist was dated February 12, 2004, whereas upon my own review of the record, the correct Checklist is actually dated March 16, 2004. However, this is an inconsequential error. I also note that the accompanying "Procedural Safeguards Declaration" was not signed by the Applicant, but that the CSC employee in charge of sharing the information checked and dated the box indicating that:
[t]he offender refuses to acknowledge receipt of the documents listed in the Information Sharing Checklist, but a copy nevertheless was given to the offender.
[67] In my opinion, it was open to the Appeal Division to prefer this document over the Applicant's bare allegations, and thus it was reasonable for the Appeal Division to find that disclosure had been made to the Applicant. Since disclosure had been made, there is no basis for a claim that the Applicant's right to know the case against him was violated.
Conclusion
[68] In conclusion, I can see no error in the decision of the Appeal Division. Critically, the failure of the NPB to hold a review within the two years set out in s. 761(1) did not, in these circumstances, result in a loss of jurisdiction. With respect to the other alleged errors, I am satisfied that the Appeal Division correctly interpreted the applicable statutory provisions, and made its decision with due regard to all the evidence before it. For these reasons, the application for judicial review will be dismissed.
ORDER
This Court orders that:
- The application for judicial review is dismissed with costs awarded to the Respondents.
"Judith A. Snider"
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Judge
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