Date: 20030227
Docket: T-1250-02
Neutral Citation: 2003 FCT 245
Ottawa, Ontario, the 27th day of February 2003
Present: THE HONOURABLE MR. JUSTICE LUC MARTINEAU
BETWEEN:
BENOÎT MIGNEAULT
Applicant
- and -
ATTORNEY GENERAL OF CANADA
Respondent
REASONS FOR ORDER AND ORDER
[1] This is an application for judicial review of a decision dated July 10, 2002, by the Appeal Division of the National Parole Board (the NPB) affirming the decision of the NPB dated February 11, 2002, which revoked the day parole granted to the applicant on July 24, 2001.
[2] The applicant was serving a prison term of two years six months for telemarketing fraud involving senior citizens. Under the accelerated parole review by way of pre-release, the NPB granted the applicant day parole and parole. One of the conditions of his release was that he refrain from using all intoxicants. On September 16, 2001, the applicant arrived at the Laferrière Community Correctional Centre (Laferrière CCC) to begin his day parole, which became effective on that date.
[3] However, at the end of November 2001, the staff received information that the applicant was using cocaine in his unit at Laferrière CCC. A urinalysis, which was positive, confirmed the information several days later. As a result, a parole suspension warrant was issued and executed against the applicant for parole violation. Following the suspension, the applicant's case was referred to the National Parole Board, and the Case Management Team recommended that the applicant's parole be revoked for the reasons set out in the Assessment for Decision
[4] On Feb 11, 2002, after meeting with the applicant and his counsel at a hearing, and after analyzing his file, the Board decided that the applicant presented an undue risk to society and, as a result, revoked the applicant's day parole. The applicant appealed that decision to the Appeal Division of the NPB, which, after considering the grounds of appeal and reviewing the file, dismissed the appeal on July 10, 2002, and affirmed the decision of the NPB. Following that adverse decision, the applicant brought this application for judicial review.
[5] As the Federal Court of Appeal recently noted in Cartier v. Attorney General of Canada, [2002] F.C.J. No. 1386, the unaccustomed situation in which the Appeal Division finds itself means caution is necessary in applying the usual rules of administrative law. The judge in theory has an application for judicial review from the Appeal Division's decision before him, but when the latter has affirmed the Board's decision, he is actually required ultimately to ensure that the Board's decision is lawful.
[6] Essentially, the applicant submits that the Appeal Division of the NPB erred in affirming the decision of the NPB because:
- the NPB erred in presuming that the applicant was lying about the information he provided that he might declare bankruptcy and about the fact that he had been accepted into the Pavillon Emmanuel Grégoire (PEG);
- under the circumstances, the NPB should have required more information or simply adjourned the hearing to verify the applicant's statements;
- by refusing to do so, the NPB based its decision on incomplete and erroneous information; therefore, it made an arbitrary decision and breached its obligation to make a decision based on reliable and persuasive information.
[7] The application is dismissed because the applicant has not satisfied me that the NPB breached the principles of fundamental justice or erred in law in its decision. Moreover, I accept the analysis set out in the respondent's memorandum and argued by its counsel at the hearing, which clearly shows that the NPB did not base its decision on erroneous or incomplete information, nor was it required under the circumstances to ask for more information.
[8] First, it should be noted that documents BM-16, BM-17 and BM-18, which the applicant refers to in his application record, were not part of the record of the NPB or the Appeal Division of the NPB when they made their respective decisions on February 11, 2002, and July 10, 2002. In addition, all of those documents, except for the notice of the last creditors' meeting dated July 4, 2002, (BM-17), post date the decisions being challenged. Accordingly, the applicant cannot take issue with the NPB or the Appeal Division of the NPB for not taking those documents into account.
[9] Sections 135 and following of the Corrections and Conditional Release Act, S.C. 1992,
c. 20 (the Act) govern the suspension and revocation of the day parole granted to the applicant on July 24, 2001, by the NPB. In particular, section 135 of the Act reads in part:
| 135. (1) A member of the Board or a person, designated by name or by position, by the Chairperson of the Board or by the Commissioner, when an offender breaches a condition of parole or statutory release or when the member or person is satisfied that it is necessary and reasonable to suspend the parole or statutory release in order to prevent a breach of any condition thereof or to protect society, may, by warrant,
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135. (1) En cas d'inobservation des conditions de la libération conditionnelle ou d'office ou lorsqu'il est convaincu qu'il est raisonnable et nécessaire de prendre cette mesure pour empêcher la violation de ces conditions ou pour protéger la société, un membre de la Commission ou la personne que le président ou le commissaire désigne nommément ou par indication de son poste peut, par mandat :
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| (a) suspend the parole or statutory release;
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a) suspendre la libération conditionnelle ou d'office;
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| (b) authorize the apprehension of the offender; and
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b) autoriser l'arrestation du délinquant;
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| (c) authorize the recommitment of the offender to custody until the suspension is cancelled, the parole or statutory release is terminated or revoked or the sentence of the offender has expired according to law.
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c) ordonner la réincarcération du délinquant jusqu'à ce que la suspension soit annulée ou que la libération soit révoquée ou qu'il y soit mis fin, ou encore jusqu'à l'expiration légale de la peine.
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| (3) The person who signs a warrant pursuant to subsection (1) or any other person designated pursuant to that subsection shall, forthwith after the recommitment of the offender, review the offender's case and
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(3) La personne qui a signé le mandat visé au paragraphe (1), ou toute autre personne désignée en vertu de ce paragraphe, doit, dès que le délinquant mentionné dans le mandat est réincarcéré, examiner son cas et :
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| (b) in any other case, within thirty days after the recommitment or such shorter period as the Board directs, cancel the suspension or refer the case to the Board together with an assessment of the case stating the conditions, if any, under which the offender could in that person's opinion reasonably be returned to parole or statutory release.
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b) dans les autres cas, dans les trente jours qui suivent, si la Commission ne décide pas d'un délai plus court, annuler la suspension ou renvoyer le dossier devant la Commission, le renvoi étant accompagné d'une évaluation du cas et, s'il y a lieu, d'une liste des conditions qui, à son avis, permettraient au délinquant de bénéficier de nouveau de la libération conditionnelle ou d'office.
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| (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,
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(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 :
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| (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;
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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;
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| (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
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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;
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| (c) where the offender is no longer eligible for the parole or entitled to be released on statutory release, terminate or revoke it.
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c) soit révoque la libération ou y met fin si le délinquant n'y est plus admissible ou n'y a plus droit.
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| (10) For the purposes of this Part, an offender who is in custody by virtue of this section continues to serve the offender's sentence.
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| (10) Pour l'application de la présente partie, le délinquant qui est réincarcéré est réputé purger sa peine.(11) For the purposes of this Act, where a suspension of parole or statutory release is cancelled, the offender is deemed, during the period beginning on the day of the issuance of the suspension and ending on the day of the cancellation of the suspension, to have been serving the sentence to which the parole or statutory release applies.
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(11) En cas d'annulation de la suspension de la libération conditionnelle ou d'office, le délinquant est réputé, pour l'application de la présente loi, avoir purgé sa peine pendant la période commençant à la date de la suspension et se terminant à la date de l'annulation.
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[10] Accordingly, the applicant's day parole was suspended under subsection 135(1) of the Act because the applicant had breached one of the conditions of his day parole, namely, to refrain from using all intoxicants. The applicant used cocaine while on day parole.
[11] After the suspension of his day parole, the applicant's file was referred to the NPB for review pursuant to subsections 135(3)(b) and (4) of the Act. At the review on February 11, 2002, the NPB concluded that the applicant presented an undue risk to society and revoked the applicant's day parole pursuant to paragraph 135(5)(b) of the Act.
[12] On that point, it should be noted that, under section 101 of the Act, the protection of society is the paramount consideration in the determination of any case, and that, in achieving the purpose of conditional release, the NPB must take into consideration all available information that is relevant to a case:
| 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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101. La Commission et les commissions provinciales sont guidées dans l'exécution de leur mandat par les principes qui suivent :
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| (a) that the protection of society be the paramount consideration in the determination of any case;
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| a) la protection de la société est le critère déterminant dans tous les cas;(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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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 enseignements et évaluations fournis par les autorités correctionnelles;
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| (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;
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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;
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| (d) that parole boards make the least restrictive determination consistent with the protection of society;
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d) le règlement des cas doit, compte tenu de la protection de la société, être le moins restrictif possible;
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| (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
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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;
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| (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.
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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.
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[13] In this case, it appears from the decision that, after taking into consideration all available relevant information and assessing it, the NPB determined that the applicant presented an undue risk to society and accordingly revoked his day parole.
[14] I stop here to note that, in the course of its duties, the NPB must analyze and assess a great deal of information dealing mainly with human and social facts. The analysis and assessment of those facts is not an easy task; that is why Parliament entrusted the task to a specialized body. Accordingly, the findings of fact made by the NPB may not be changed absent a patently unreasonable error. Such an error has not occurred in this case.
[15] In the case before us, the applicant's submission is based mainly on the premise that the NPB did not believe him at all when he stated that he could declare bankruptcy and that he had been accepted into the PEG. According to the applicant's logic, if the NPB had believed what he said, it would not have revoked his day parole. This premise is false. A careful reading of the decision of the NPB shows, on the one hand, that the NPB took into consideration the information provided by the applicant. However, it did not give the same interpretation or the same weight to it as the applicant would have liked, which is quite different from finding the applicant not credible. On the other hand, the two pieces of information (possibility of declaring bankruptcy and acceptance at the PEG) provided by the applicant to the NPB were not the conclusive elements of its decision. In fact, the NPB took into consideration all the information, which was sufficiently relevant and probative to justify the NPB's decision to revoke the applicant's day parole.
[16] It is clear that the NPB considered the fact that the applicant had justified his cocaine use by the anxiety he felt about his financial problems. The NPB noted that the staff were surprised by this explanation because, according to the latest information, the applicant was awaiting confirmation as to the possibility of declaring bankruptcy. The NPB stated that the applicant then consulted with a lawyer who informed him that he could not declare bankruptcy because he had been implicated in fraudulent activities. At the hearing, the applicant asserted that he had obtained information to the contrary, and that it would now be possible for him to declare bankruptcy. The NPB noted that the applicant had filed a letter in support of that assertion (exhibit MF-3 to the affidavit of Michel Frappier, applicant's record, at page 18). On that point, the NPB merely noted that the letter in question did not confirm the applicant's statements and that the substance of it was quite different.
[17] In the end, what the NPB concluded from this situation was that the applicant used drugs to deal with his financial difficulties. It was the applicant's reaction to this stressful situation that was of interest to the NPB, and not the fact that he could or could not declare bankruptcy. Accordingly, obtaining more information to corroborate the applicant's statements as to the possibility of him declaring bankruptcy would have changed nothing. Moreover, contrary to what the applicant maintained, the NPB never questioned his statement that he had been accepted into the PEG. The NPB merely clarified that there was "[TRANSLATION] however, no available place at the moment." Therefore, no further information was required on that point.
[18] Lastly and above all, the respondent has satisfied me that, when the NPB made its decision, it had enough relevant and credible evidence to justify revoking the applicant's release. In arriving at that conclusion, the NPB considered the following factors in particular:
- the breach of the condition regarding drug use, especially noting that the applicant's preferred method of dealing with a stressful situation was to turn to drugs, while noting in passing that the staff believed that the applicant had fallen back into drug use, and not that it was merely a relapse;
- the applicant's minimal job search;
- the applicant's need to refrain from drug use;
- the problem of compulsive sexuality, which was revealed during the applicant's participation in the PARI program at the Maison d'Arrêt, and the fact that the applicant has made little effort in the past to resolve it;
- the fact that the applicant minimized his criminal acts, and that his introspection remains undeveloped. The applicant is not ready to make efforts to respect society's standards.
[19] In conclusion, it should be noted that evaluating and assessing all this information is at the very core of the NPB's jurisdiction and constitutes findings of fact that must be accorded significant deference by superior courts. Accordingly, the NPB was completely justified in concluding that the applicant's day parole should be revoked, and its decision is completely reasonable under the circumstances. In doing this, the NPB did not breach any principle of fundamental justice and did not err in law. Furthermore, the applicant did not satisfy me that the Appeal Division of the NPB made a reviewable error in dismissing the applicant's appeal and affirming the decision of the NPB. Therefore, no basis exists for intervention by this Court. Lastly, in the exercise of my discretion and taking into consideration all the circumstances of this case, I am of the view that no costs should be awarded.
ORDER
THIS COURT ORDERS that the application for judicial review by the applicant of the decision dated July 10, 2002, by the Appeal Division of the National Parole Board be dismissed without costs.
Judge
Certified true translation
Mary Jo Egan, LLB
FEDERAL COURT OF CANADA
TRIAL DIVISION
SOLICITORS OF RECORD
DOCKET: T-1250-02
STYLE OF CAUSE: BENOÎT MIGNEAULT v. ATTORNEY GENERAL OF CANADA
PLACE OF HEARING: Montréal
DATE OF HEARING: February19, 2003
REASONS FOR ORDER AND ORDER
DATED: February 27, 2003
APPEARANCES:
Sylvie BORDELAIS FOR THE APPLICANT
Nadia HUDON FOR THE RESPONDENT
SOLICITORS OF RECORD:
Sylvie BORDELAIS, Lawyer FOR THE APPLICANT
312-1030, rue Cherrier
Montréal, Quebec
H2L 1H9
Morris Rosenberg FOR THE RESPONDENT
Deputy Attorney General of Canada
Montréal, Quebec
National Parole Board
Complexe Guy-Favreau
200 René-Lévesque Blvd. West
West Tower, Suite1001
Montréal, Quebec
H2Z 1X4
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