Date: 20050117
Docket: T-1441-04
Citation: 2005 FC 49
Ottawa, Ontario, this 17th day of January, 2005
Present: THE HONOURABLE MR. JUSTICE von FINCKENSTEIN
BETWEEN:
HUU TUAN NGO
Applicant
and
THE ATTORNEY GENERAL OF CANADA
Respondent
REASONS FOR ORDER AND ORDER
[1] In October of 1997, the Applicant was convicted of trafficking and conspiracy to traffic in heroin. The trial judge found his participation in the operation to be that of a "middleman" although he had been described by the authorities as a "ring leader". He was sentenced to eight years in prison. He was released on accelerated day parole in April of 2001 and with full parole in August of 2002.
[2] On August 7, 2003, the Applicant's parole officer became concerned with the Applicant's ability to afford his lifestyle on his declared income. The Applicant bought his second home worth approximately $400,000 in Toronto with money he had allegedly earned working as an independent contractor and with gifts from his friends and family. The parole officer therefore asked the National Parole Board (the "Board") to place a special condition on the Applicant's parole. The Board accordingly imposed the following condition on the applicant: "Must provide full financial disclosure as per the instructions of your parole officer".
[3] In September of 2003, the police were called to a gambling establishment where the Applicant was allegedly threatening someone over a $2,000 debt . He was not arrested but questioned in the back of a police cruiser. Although the terms of the Applicant's parole state that he must inform his parole officer on arrest or if he is questioned by police, he failed to do so.
[4] On March 17, 2004, the Board decided to revoke the Applicant's parole due to a perception of general dishonesty with his parole officer, because he failed to report the incident with the police and due to his failure to provide financial information, a condition of his parole. This decision was reaffirmed by the National Parole Board Appeal Division (the "Appeal Board") July 12, 2004.
[5] The Applicant seeks to have the original decision as affirmed on appeal quashed, or, alternatively, to be granted a new hearing before a differently constituted panel to reassess his fitness for parole.
[6] This application raises the following issues:
1. Did the Board err in imposing the special condition and did it make an inappropriate delegation to the parole officer?
2. Did the Board err in revoking the Applicant's parole rather than using lesser means?
3. Were the Applicant's rights under sections 9 and 11(d) the Canadian Charter of Rights and Freedoms (the "Charter") violated?
Standard of Review
[7] The standard of review regarding decisions of the Appeal Board was established in
Cartier v. Canada, [2002] F.C.J. No. 1386 (C.A.). The Court stated at paras 8 to 10:
Paragraph 147(5)(a) appears to indicate that Parliament intended to give priority to the Board's decision, in short to deny statutory release once that decision can reasonably be supported in law and fact. The Board is entitled to err, if the error is reasonable. The Appeal Division only intervenes if the error of law or fact is unreasonable. I would be inclined to think that an error of law by the Board as to the extent to which it must be "satisfied" of the risk of release -- an error which is alleged in the case at bar -- is an unreasonable error by definition as it affects the Board's very function.
If the applicable standard of review is that of reasonableness when the Appeal Division reverses the Board's decision, it seems unlikely that Parliament intended the standard to be different when the Appeal Division affirms it. I feel that, though awkwardly, Parliament in paragraph 147(5)(a) was only ensuring that the Appeal Division would at all times be guided by the standard of reasonableness.
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.
[8] Accordingly, the standard of review to be applied is reasonableness. As the Appeal Board affirmed the decision of the Board, this Court when reviewing the Appeal Board decision, is, in effect, reviewing the Board's decision. Accordingly, pursuant to Cartier (supra), in this Application, the Court will have to decide if the decision of the Board was reasonable.
Issue 1: Did the Board err in imposing the special condition and did it make an inappropriate delegation to the parole officer?
[9] The Applicant argues that the condition attached to his parole, namely that he "must provide full financial disclosure as per the instructions of his parole officer" is an inappropriate delegation of authority and violates Chapter 7 of the National Parole Board Policy Manual (the "Manual") which provides as follows:
Conditions must be stated clearly and explicitly using wording that specifies the intent of the Board members so that there can be no misinterpretation or misunderstanding. Wording such as "at the discretion of the parole supervisor" is inappropriate as it delegates to the parole supervisor the authority to impose the condition.
[10] This argument rests on a misunderstanding of the statutory scheme. The Board under s. 134 of the Corrections and Conditional Release Act S.C. 1992 c. 20 (the "Act") has the power to impose conditions. Said section provides:
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Instructions to released offenders
134. (1) An offender who has been released on parole, statutory release or unescorted temporary absence shall comply with any instructions given by a member of the Board or a person designated, by name or by position, by the Chairperson of the Board or the Commissioner, or given by the institutional head or by the offender's parole supervisor, respecting any conditions of parole, statutory release or unescorted temporary absence in order to prevent a breach of any condition or to protect society.
Definition of "parole supervisor"
(2) In this section, "parole supervisor" means
(a) a staff member as defined in subsection 2(1); or
(b) a person entrusted by the Service with the guidance and supervision of an offender on parole, statutory release or unescorted temporary absence.
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Instructions
134. (1) Le délinquant qui bénéficie d'une libération conditionnelle ou d'office ou d'une permission de sortir sans escorte doit observer les consignes que lui donne son surveillant de liberté conditionnelle, un membre de la Commission, le directeur du pénitencier ou la personne que le président ou le commissaire désigne nommément ou par indication de son poste en vue de prévenir la violation des conditions imposées ou de protéger la société.
Définition de « _surveillant de liberté conditionnelle_ »
(2) Au présent article, « _surveillant de liberté conditionnelle_ » s'entend d'un agent au sens du paragraphe 2(1) ou d'une personne chargée par le Service d'orienter et de surveiller le délinquant qui bénéficie d'une libération conditionnelle ou d'office ou d'une permission de sortir sans escorte.
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[11] Thus the Board imposes a condition, in this case to furnish financial information. The parole officer then specifies what type of information and when. To make the system workable, such flexibility is needed. The parole officer, familiar with the case and the circumstances, specified four times the information that was required. [See paragraph 15 of these Reasons] She implemented the condition imposed by the Board. The system would be practically unworkable if each of these requests had to be made by the Board. Having the Board specify the type of information required and letting the parole officer specify the precise documents needed, does not constitute an improper delegation, nor does it violate Chapter 7 of the Manual.
[12] As the Applicant could not account for his wealth and as the acquisition of a second house for $400,000 was not possible on his income, it was perfectly reasonable for the Board to impose this condition. Only on the basis of adequate financial data could the parole officer decide if the Applicant was earning his income from legitimate sources or from crime.
Issue 2: Did the Board err in revoking the parole rather than using lesser means?
[13] The Applicant argues that both violations in question, failure to provide financial records and failure to notify his parole officer of contact with the police, are rather technical violations which call for a lesser penalty than the drastic revocation of the parole with the consequent reincarceration.
[14] S. 135(5) of the Act deals with revocations of parole it provides:
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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,
(a) suspend the parole or statutory release;
(b) authorize the apprehension of the offender; and
(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.
Transfer of offender
(2) A person designated pursuant to subsection (1) may, by warrant, order the transfer to penitentiary of an offender who is recommitted to custody pursuant to subsection (1) in a place other than a penitentiary.
Cancellation of suspension or referral
(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
(a) where the offender is serving a sentence of less than two years, cancel the suspension or refer the case to the Board together with an assessment of the case, within fourteen days after the recommitment or such shorter period as the Board directs; or
(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.
Review by Board
(4) The Board shall, on the referral to it of the case of an offender serving a sentence of less than two years, review the case and, within the period prescribed by the regulations, either cancel the suspension or terminate or revoke the parole.
Idem(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
(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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Suspension
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_:
a) suspendre la libération conditionnelle ou d'office;
b) autoriser l'arrestation du délinquant;
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.
Transfèrement
(2) La personne désignée en vertu du paragraphe (1) peut, par mandat, ordonner le transfèrement dans un pénitencier du délinquant réincarcéré, aux termes de l'alinéa (1)c), ailleurs que dans un pénitencier.
Examen de la suspension
(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_:
a) dans le cas d'un délinquant qui purge une peine d'emprisonnement de moins de deux ans, dans les quatorze 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;
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.
Examen par la Commission
(4) Une fois saisie du dossier d'un délinquant qui purge une peine de moins de deux ans, la Commission examine le cas et, dans le délai réglementaire, soit annule la suspension, soit révoque la libération ou y met fin.
Annulation de la suspension ou révocation
(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) 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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[15] In this case the parole officer found the Applicant untrustworthy and could not understand how the Applicant, a convicted heroin drug dealer, could afford to buy a house worth more than $400,000 while not selling the family home valued at $370,000. The income from his flooring business was insufficient to allow such purchases. She found the Applicant untrustworthy and uncooperative. Once the condition was imposed, he refused to supply the requested information. The parole officer made four specific requests for information. These were:
(a) On August 26th, 2003, C.S.C. requested documents regarding the sale of Mr. Ngo's house, Mr. Ngo's income tax returns; and a statement of his current income, expenses and assets,
(b) On October 17th, 2003, C.S.C. requested Mr. Ngo's business income tax return and records of his business' financial transactions,
(c) On October 28th, 2003, C.S.C. requested Mr. Ngo's business income tax return and his business bank deposit book.
(d) On November 12th, 2003, C.S.C. requested Mr. Ngo's business income tax return.
[16] None of these requests were fully complied with. In addition, the Applicant failed to report on his being questioned by police (although not arrested) after an altercation at a known gambling house where he allegedly threatened a person who owed him money.
[17] Section 161(1)(d) of the Corrections and Conditional Release Regulations SOP/92-620 specifically provides:
161. (1) For the purposes of subsection 133(2) of the Act, every offender who is released on parole or statutory release is subjected tot he following conditions, namely, that the offender ...
(d) inform the parole supervisor immediately on arrest or on being questioned by the police ...
[18] In light of these violations, and after hearing from the Applicant, not accepting his explanations and finding him incredible, the Board found:
Nevertheless, the Board found your comments to be lacking in credibility, due to the many inconsistencies in the written information and with respect to your comments made here today and to the Community Parole Officer. In the Board's view, your ability to be supervised a this point in time has been seriously compromised. You are serving a sentence for your involvement in a high-end trafficking transaction involving heroin. You have consistently denied trafficking in illicit drugs but have acknowledged other illegal transactions. In light of your unwillingness to be forthright and honest with your Parole Officer, and given the many inconsistencies in your written materials and comments, the Board is persuaded that your risk has escalated and that you may have re-entered your crime cycle.
For all of these reasons, the Board deems risk to be currently undue and hereby revokes your Accelerated Full Parole.
[19] This decision was upheld by the Appeal Board. The reasons given by the Board are logical and well set out. The Applicant, a convicted, relatively major player in the drug world fails to cooperate with his parole officer, has significant and unexplained sources of income, refuses to cooperate with his parole officer, ignores four specific requests for information and fails to report involvement with the police at a gambling establishment. On this basis, the Board comes to the conclusion that he may have re-entered the crime scene.
[20] The Board when revoking parole is guided by section 101 of the Act. It provides:
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Principles guiding parole boards
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;
(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. [underlining added]
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Principes
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) 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. [souligner]
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[21] Both subsection (a) and subsection (d) make it clear that protection of the society is paramount. An applicant re-entering the crime scene is a danger to society, dealing with him by reprimand will not protect society. Accordingly, the Board's decision under these circumstances, to revoke his parole, is eminently reasonable.
Issue 3: Were the Applicant's rights under sections 9 and 11(d) the Charter violated?
[22] The Applicant argues that "the continued detention of the Applicant and the Board's presumption of guilt rather than innocence in this situation violates sections 9 and 11(d) of the Charter."
[23] The essence of the Applicant's argument is that the Board's hearings should be conducted like trials, with all the applicable protections and governed by the presumption of innocence.
[24] These arguments have no merit. It is well established that the Board's hearings are not trials but administrative review hearings (see Giroux v. Canada [1994] F.C.J. No. 1750). The function of the Board's hearings is to conduct a risk assessment, with the protection of society being the paramount consideration. The presumption of innocence guaranteed under s. 11(d) of the Charter does not apply in this context.
[25] With regard to s. 9 of the Charter, I fail to see how one can characterize as arbitrary the revocation of the Applicant's parole pursuant to a process laid out in the Act, following a hearing revoking his parole on the basis of established parole violations.
[26] Accordingly, there was nothing unreasonable in the Board's decision, consequently the Appeal Board did not err in affirming the decision and this application will not succeed.
ORDER
THIS COURT ORDERS that this application be dismissed.
"K. von Finckenstein"
Judge
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
DOCKET: T-1441-04
STYLE OF CAUSE: HUU TUAN NGO v. ATTORNEY GENERAL OF CANADA
DATE OF HEARING: January 13, 2005
PLACE OF HEARING: Toronto, Ontario.
DATE OF REASONS: January 17, 2005
REASONS BY: THE HON. MR. JUSTICE von FINCKENSTEIN
APPEARANCES BY: Mr. John Hill For the Applicant
Mr. Matthew Sullivan
For the Respondent
SOLICITORS OF RECORD: Mr. John Hill
Toronto, Ont.
For the Applicant
Mr.Matthew Sullivan
Department of Justice Ontario Regional Office.
130 King St. W. Suite 3400, Box 36 Toronto,Ont.
M5X-1K6
For the Respondent
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