Date: 19980604
Docket: T-1181-97
OTTAWA, ONTARIO, THE 4th DAY OF JUNE 1998.
Present: THE HONOURABLE MR. JUSTICE JOYAL
Between:
DENIS AMABLE, inmate, presently incarcerated at
La Macaza Institution, located at 321, chemin de l'Aéroport, La Macaza,
Province of Quebec J0T 1R0
Applicant
- and -
ATTORNEY GENERAL OF CANADA
Respondent
ORDER
The application for judicial review in the case at bar is dismissed.
L-Marcel Joyal
Judge
Certified true translation
Peter Douglas
Date: 19980604
Docket: T-1181-97
Between:
DENIS AMABLE, inmate, presently incarcerated at
La Macaza Institution, located at 321, chemin de l'Aéroport, La Macaza,
Province of Quebec J0T 1R0
Applicant
- and -
ATTORNEY GENERAL OF CANADA
Respondent
REASONS FOR ORDER
THE HONOURABLE MR. JUSTICE JOYAL
[1] This is an application for judicial review under section 18 of the Federal Court Act seeking certiorari against a decision of the National Parole Board, Appeal Division (the Appeal Division), dated May 2, 1997. Certiorari is sought to quash the decision of the National Parole Board (the Board) not to release the applicant on full parole or day parole at a halfway house.
Facts
[2] The applicant is 62 years old. He was first convicted in 1958 for acts of gross indecency involving children aged 5 and 10. In 1961, he was sentenced to two years in a penitentiary and to indeterminate preventive detention for raping two children aged 8 and 10. In 1983, he was granted parole. Three years later, however, he reoffended by raping a 13-year-old boy and was sentenced to nine years in a penitentiary.
[3] From 1993 until January 30, 1995, the applicant was on day parole at l'Intervalle halfway house. Over this period, he attended programs at the Université de Montréal specifically for sexual deviants and participated in community service and in supervised social activities.
[4] On January 30, 1995, the Board revoked the applicant"s day parole on the strength of his doctor"s report, which indicated that his sexual deviance was reappearing despite treatment. He appealed the decision to the Appeal Division of the Board, which dismissed the appeal on July 27, 1995.
[5] On November 22, 1995, the applicant again appeared before the Board and was refused day parole at l'Intervalle halfway house. He appealed this decision. On May 8, 1996, the Appeal Division affirmed the Board"s refusal and dismissed the applicant"s appeal.
[6] On October 17, 1996, the applicant appeared again before the Board and his application for day parole was refused once more. He appealed this decision. On May 2, 1997, the Appeal Division dismissed the appeal and affirmed the decision not to grant him day parole.
[7] On June 4, 1997, the applicant filed an application for certiorari to quash the Appeal Division"s decision of May 2, 1997.
The decision of the appeal division
[8] The Appeal Division reviewed the Board"s decision and found that it was not contrary to section 12 of the Canadian Charter of Rights and Freedoms (the Charter), since the way the applicant had been treated could not be characterized as cruel and unusual punishment. The Appeal Division also found that the Board neither erred in law nor adopted extremely restrictive measures in assessing the applicant"s case. It distinguished the case at bar from Steele v. Mountain Institution , [1990] 2 S.C.R. 1385. Finally, the Appeal Division found that the Board had exceeded its jurisdiction in November 1995 by implying that the applicant should undergo drug therapy to control his sexual urges if he wished to be granted day parole in the future. The Appeal Division added that even if a guarantee of day parole had been given, it could not bind the Board on future reviews.
Issues
| 1. Is the Appeal Division"s decision unreasonable, perverse and capricious having regard to the evidence in the case at bar? |
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| 2. Is the Appeal Division"s decision contrary to sections 7 and 12 of the Charter? |
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| 3. Did the Board err in law by failing to comply with the requirements of paragraph 101(d) and section 102 of the Corrections and Conditional Release Act (the Act)? |
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| 4. Did the Appeal Division violate section 143 of the Act? |
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Submissions of the parties
| (a) Is the Appeal Division"s decision unreasonable, perverse and capricious having regard to the evidence in the case at bar? |
[9] Counsel for the applicant submits that the decisions of the Board and the Appeal Division are unreasonable because they disregard the views and recommendations of various correctional workers and attending professionals involved in the case. It is further alleged that the Board"s decision of October 17, 1996 and the Appeal Division"s decision of May 2, 1997 are perverse because they are the last of a series of refusals of day parole for the applicant stemming from the revocation of his day parole on November 22, 1995. It is also submitted that the decision of October 17, 1996 is perverse and capricious because it disregards the fact that the applicant fulfilled the Board"s November 1995 requirement that he undergo chemical castration. The Board therefore allegedly exceeded its jurisdiction by repeatedly refusing to grant the applicant day parole.
[10] Counsel for the respondent submits that the Appeal Division"s decision is not unreasonable because the Appeal Division considered all the evidence in the record in assessing the applicant"s risk of reoffending. Under section 107 of the Act, the Board is not bound by the recommendations made by the various people involved in the case and may have its own opinion of the risk the applicant might present. Counsel argues that the applicant exercised his right of appeal at the time of the Board"s subsequent refusals and that the only decision to which these judicial review proceedings can relate is the decision of May 2, 1997. That decision is not perverse having regard to the circumstances in the case at bar. The respondent submits that the decision of May 2, 1997 is not capricious because the Appeal Division reviewed all the evidence in the record before making it and did not exceed its jurisdiction by affirming the decision not to grant the applicant day parole.
| (b) Is the Appeal Division"s decision contrary to sections 7 and 12 of the Charter? |
[11] The applicant argues that the Board"s repeated decisions not to grant him day parole to enable him to participate in community reintegration programs constitute cruel and unusual punishment. The inordinate length of the applicant"s incarceration (37 years) has become disproportionate and is contrary to section 12 of the Charter. It is also alleged that the Board"s repeated decisions not to grant the applicant day parole are inconsistent with the principles of fundamental justice referred to in section 7 of the Charter in that the decisions no longer serve any purpose in his rehabilitation.
[12] The respondent in turn alleges that the mere refusal of day parole has not made the length of the sentence the applicant is serving cruel and unusual.
| (c) Did the Board err in law by failing to comply with the requirements of paragraph 101(d) and section 102 of the Act? |
[13] According to the applicant, the Board did not adopt the least restrictive measures when it made its decision of October 17, 1996, and thus failed to comply with the requirements of paragraph 101(d) and section 102 of the Act.
[14] The respondent argues that, as provided by section 102 of the Act, the Board was not satisfied that the applicant would not, by reoffending, present an undue risk to society before the expiration according to law of his sentence.
| (d) Did the Appeal Division violate section 143 of the Act? |
[15] The applicant alleges that the Board did not provide him with a copy of the cassettes of the tape recording of the hearing of November 22, 1995, contrary to subsection 143(1) of the Act.
Analysis
[16] Although I feel great sympathy for the applicant"s sad story, I find no error of fact or law to warrant the Court"s intervention in the case at bar.
| (a) Is the Appeal Division"s decision unreasonable, perverse and capricious having regard to the evidence in the case at bar? |
[17] On judicial review, the burden is on the applicant to prove that the administrative tribunal failed to observe procedural fairness or acted unfairly or unreasonably. It is not enough to show that the tribunal"s decision was wrong; the applicant must establish that the decision is unreasonable, perverse or capricious on its face.
[18] In the case at bar, the applicant submits that the decisions of the Board and the Appeal Division are unreasonable because they disregard the various opinions of the health professionals and other people involved in the case. I cannot agree with those assertions.
[19] In its detailed decision of October 17, 1996, the Board discussed the psychiatric and psychological reports regarding the applicant at length. It stated that the specialists felt he presented an acceptable risk for living in the community and mentioned the various reports by correctional workers who also recommended day parole to help him move toward reintegration into the community.
[20] However, the Board was of the view that, in spite of the applicant"s good intentions, he was still grappling with pedophilic sexual deviance. The medical evidence tends to show that, even after 10 months of drug treatment, the applicant still experiences strong sexual urges. In addition, the Board mentioned that he does not appear to understand fully the effect of his actions on his victims. The Board thought he should undergo introspective psychotherapy if he truly wished to understand the causes and consequences of his deviance.
[21] In my view, there are no errors in the decisions of the Board and the Appeal Division from which it may be concluded that they were unreasonable, perverse or capricious.
| (b) Is the Appeal Division"s decision contrary to sections 7 and 12 of the Charter? |
[22] With respect to section 7, the Supreme Court of Canada has established that section 7 of the Charter, dealing with denial of liberty, implies two questions, namely: (1) Has there been a deprivation of liberty? (2) If so, is the deprivation sufficiently serious to attract Charter protection?1 In the case at bar, the applicant was not deprived of liberty because he was not on parole or day parole. His day parole was revoked in January 1995 and he appealed that decision. The decisions under review merely confirmed an existing fact situation and in no way altered the applicant"s liberty. Therefore, applying the Supreme Court"s test, there can be no violation of section 7 of the Charter in the case at bar.
[23] With respect to section 12, the Appeal Division"s analysis of this issue in its decision of May 7, 1997, is accurate, concise and sound. When weighing such a decision, it is important to consider that the members in question are experts and that their expertise deserves a great deal of respect. I do not find in their treatment of this issue sufficient grounds to warrant my intervention.
| (c) Did the Board err in law by failing to comply with the requirements of paragraph 101(d) and section 102 of the Act? |
[24] Sections 101 and 102 of the Act impose a duty on the Board to pass judgment in each case; while that is not always easy, I would repeat, it is certainly a matter within the competence of its members.
| (d) Did the Appeal Division violate section 143 of the Act? |
[25] Clearly, this point was not argued at any great length and it must also be dismissed. In any event, in Giroux v. Canada, [1994] F.C.J. No. 1750, after a lengthy analysis of the relevant provisions of the Act, Madam Justice McGillis held with regard to subsection 143(1):Although the Board has adopted the prudent practice of tape recording its proceedings, subsection 143(1) of the Act does not require it to do so. Indeed, the Board is only required by law to "...maintain a record of the proceedings..." and, in the French version, it must "...tient un dossier des procédures...". In my opinion, both the English and the French versions of the Act fall short of imposing a statutory obligation on the Board to produce a verbatim recording of its proceedings.
Conclusion
[26] It is clear, in my view, that the Board was dealing with a borderline case. It was therefore perfectly reasonable that counsel for the applicant should wish to put the matter to the test of judicial review. As I said earlier, despite the risks society imputes to him, the applicant deserves a great deal of sympathy. The more the authorities release him from the control exercised by the prison system, the greater the risk of reoffending. The longer he is kept in custody, the more problematic his reintegration into the community. This is the conundrum the Board must address in the case of an indeterminate sentence.
[27] In the matter before me, I do not find sufficient grounds to allow me to intervene. The application for judicial review must be dismissed.
[28] The Court is obliged to point out the exceptionally professional contribution of counsel for the parties in the course of the proceedings and to thank them for their superb participation.
L-Marcel Joyal
J U D G E
O T T A W A (Ontario)
June 4, 1998.
Certified true translation
Peter Douglas
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
COURT NO.: T-1181-97
STYLE OF CAUSE: DENIS AMABLE v. ATTORNEY GENERAL OF CANADA
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: May 12, 1998
REASONS FOR ORDER BY JOYAL J.
DATED June 4, 1998
APPEARANCES:
Bertrane Royer FOR THE APPLICANT
Rosemarie Millar FOR THE RESPONDENT
SOLICITORS OF RECORD:
Bertrane Royer
Montréal, Quebec FOR THE APPLICANT
George Thomson
Deputy Attorney General of Canada FOR THE RESPONDENT
__________________
1 Cunningham v. Canada, [1993] 2 S.C.R. 143, at p. 148.
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