Teneycke v. Canada (Attorney General), 2004 FC 397

                                                                                                                               Date: 20040316

                                                                                                                            Docket: T-830-03

                                                                                                                    Citation: 2004 FC 397

Ottawa, Ontario, this 16^th day of March, 2004

PRESENT: THE HONOURABLE MADAM JUSTICE SNIDER

BETWEEN:

                                              RONALD ARTHUR TENEYCKE

                                                                                                                                          Applicant

                                                                        - and -

                                          ATTORNEY GENERAL OF CANADA

                                                                                                                                      Respondent

                                       REASONS FOR ORDER AND ORDER

SNIDER J.

[1]         The Applicant is serving an aggregate sentence of 12 years at the Kent Institution. Pursuant to the Corrections and Conditional Release Act, S.C. 1992, c. 20 (the "CCRA"), the Applicant's statutory release date was January 13, 2003. On December 16, 2002, the Commissioner of Corrections recommended to the National Parole Board ("NPB") that the Applicant be detained beyond this date and be required to reside in a Community Correctional Centre or Community Residential Facility upon release ("Commissioner's Referral").

[2]        On December 31, 2002, the NPB held that the statutory release of the Applicant would be premature absent the successful completion of an intensive treatment program for sexual offenders. It further ordered that special conditions be imposed on the Applicant upon statutory release, including residence in a halfway house and close supervision by a parole officer (the "Detention Order"). With these conditions in place, it was believed that the Applicant could be manageable in the community. The NPB was satisfied that, if the Applicant was released prematurely and without these conditions, he would likely commit an offence causing serious harm to another person.

[3]         The Applicant appealed the Detention Order to the Appeal Division of the NPB. He submitted that the NPB did not have jurisdiction to issue the Detention Order, because the circumstances that led to the Commissioner's Referral failed to meet the criteria set out in subsection 129(3)(a) of the CCRA. Specifically, the basis of his appeal was that "the detention decision be withdrawn as none of the information set forth [is] new, [and, therefore,] does not meet the criteria as [intended] by the statute". By decision dated March 27, 2003, the Appeal Division affirmed the Detention Order. The Applicant seeks judicial review of this decision.

Issues

[4]        The Applicant raises three issues, which I have formulated as follows:

1.          Did the Appeal Division err in its determination that the NPB had jurisdiction to consider the Commissioner's Referral?

2.         Did the NPB fail to comply with subsection 141(1) of the CCRA, thereby breaching the Applicant's right to procedural fairness?

3.         Did the Appeal Division err by ignoring evidence that was relevant to the Applicant's case?

Analysis

Issue #1: Did the Appeal Division err in its determination that the NPB had jurisdiction to consider the Commissioner's Referral?

Statutory Basis for the Commissioner's Referral

[5]        The statutory basis of the initial referral to the NPB is subsection129(3)(a) of the CCRA which states:

Standard of Review

[6]         The Applicant frames the issue in this case as whether information coming into existence within the last six months of detention and showing a reduction in the risk to reoffend is information for purposes of subsection 129(3)(a) of the CCRA. This, in the Applicant's view, is a pure question of law to which the standard of correctness applies. I do not agree with the Applicant's characterization of the issue as one of pure law. In my view, the question before the Appeal Division was not one of whether the information is positive or negative but whether, in the circumstances before it, the information was information obtained during the six months before the Applicant's statutory release date. While this required a consideration of the meaning of subsection 129(3)(a), it also required an analysis of the information. That analysis is fact driven. Thus, the question is one of mixed law and fact. To the extent that conclusions must be drawn of the information, deference is owed to the Appeal Division's expertise.

[7]         If I review the decision on the basis of a functional and pragmatic analysis, I note the following:

a)          the CCRA contains no privitive clause or right of appeal in respect of the Appeal Division's decisions concerning statutory and conditional releases.

b)          According to the CCRA, the purpose of a conditional release is to maintain a just and safe society by fixing times and conditions of release that will best facilitate the rehabilitation of an offender and successful reintegration into the community (s. 100 of the CCRA).

c)         Through experience, the NPB and its Appeal Division have developed considerable expertise in assessing the reasonableness of Commissioner's referrals; whether they are unreasonable or deserve the NPB's serious consideration. In this case, both the NPB and the Appeal Division held that the Commissioner's Referral was reasonable and, therefore, accepted jurisdiction to consider the matter of detention.

d)         This issue raises a question of mixed fact and law.

[8]         Upon balancing these factors, it is my opinion that the Appeal Division of the NPB's finding in this case should be reviewed on at least a standard of reasonableness simpliciter. This is consistent with the high degree of deference demonstrated by this Court in Pierce v. Canada (Commissioner of Corrections) (1987), 13 F.T.R. 218 at p. 222 and Ford v. Canada (Commissioner of Corrections) (1990), 54 C.C.C. (3d) 256 (T.D.).

[9]        With this standard in mind, I turn to the question that was before the Appeal Division. Did the two reports on which the Commissioner based his referral constitute new information as required by subsection 129(3)(a) of the CCRA?

"New" Information

[10]       The information on which the NPB based its decision was:

(a)         a Psychological Assessment dated December 10, 2002, prepared by D. Marxsen, psychologist. It indicated two changes since the Applicant was previously assessed and stated:

"Mr. Teneycke, although still contesting the severity of his sexual attack on his victim, now admits his responsibility for his sexual attack against a 19-year-old female... Mr. Teneycke also freely admitted to me that he requires sexual offender treatment. ... Admitting his offence and expressing willingness for programming are necessary first steps for Mr. Teneycke's eventual return to the community. However, they cannot in themselves sufficiently lower Mr. Teneycke's recidivism risk such so that he would be currently manageable in the community. Despite the relatively restrictive nature of the proposed supervision strategy, it is my opinion that any supervised release at this point would be premature and that Mr. Teneycke currently poses a high risk for violence and sexual reoffending. It is also my opinion, that at present, there is a high likelihood of Mr. Teneycke committing an offence causing serious harm prior to this warrant expiry ... Mr. Teneycke's release at his statutory release date, due perhaps entirely to a clerical error ... would pose an unacceptable risk to public safety. ... Prior to considering any form of conditional release, Mr. Teneycke should successfully complete an intensive program for sexual offenders."

(b)         an Assessment for Decision, also dated December 10, 2002, that cited the findings contained in the Psychological Assessment as support for recommending the Applicant for a Commissioner's Referral for detention.

[11]      The Applicant submits that the only "new" information obtained during the six months was an addendum to the psychological report that the Applicant had recently changed his attitude and had indicated a willingness to participate in an appropriate treatment program. Thus, the Applicant contends, the only "new" evidence satisfying subsection 129(3)(a) was evidence that demonstrated a reduction in his risk to reoffend. In the Applicant's submission, it is contrary to fundamental justice and the rules of natural justice that his previous risk of reoffending would have resulted in his release, but a reduction in this risk would justify the Commissioner's Referral for detention.

[12]       In Cunningham v. Canada, [1993] 2 S.C.R. 143 at paragraph 26, the Supreme Court of Canada held that the test for whether a Commissioner's referral is based on new information is objective and the question to be asked by this Court is "whether the information could be said to be "new" in the substantive sense, rather than merely the temporal sense".

[13]       In Cunningham, supra, much of the information received six months prior to the presumptive release date merely updated information that was already contained in the appellant's file. Nevertheless, the Supreme Court at paragraph 25 held:

"[This should not] prevent the Commissioner from relying on new and revised reports to the same effect when they come to his attention within the six-month period before the prospective release date. Indeed, it would be an unusual case where information coming forward in the six-month pre-release period did not find its echoes and antecedents in the previous prison record, given the long-standing nature of the problems typically involved in these cases."

[14]       Given the factual similarity between Cunningham,supra and the present case, where much of the information in the new reports echoes what was already known, I am not persuaded that the decision of the Appeal Division of the NPB was so unreasonable as to warrant this Court's intervention. I would adopt the comments of Noël J. in Beaulieu v. Ingstrup (1993), 67 F.T.R. 202 at 207:

"Although the conclusions are the same as those reflected in the preceding reports, they are nevertheless new information as to the progress (or lack of progress) of the inmate..."

[15]       While I agree with the Applicant that some of the new information was positive, such as his admission of guilt and willingness to undergo sexual offender treatment, I do not accept that this information indicated a reduction in the risk of recidivism. According to the Psychological Assessment dated December 10, 2002, these positive changes "cannot in themselves sufficiently lower Mr. Teneycke's recidivism risk such ... that he would be currently manageable in he community".

[16]       For these reasons, I conclude that the Appeal Division of the NPB made a reasonable finding when it determined that the NPB did have jurisdiction to consider the Commissioner's Referral.

Issue #2: Did the NPB fail to comply with subsection 141(1) of the CCRA, thereby breaching the Applicant's right to procedural fairness?

[17]       The Applicant's hearing before the NPB was scheduled for 8 days after notification and with Christmas holidays intervening. The Applicant submits that this is contrary to subsection 141(1) and subsection 141(2) of the CCRA, which provide as follows:

[18]       Therefore, in the Applicant's submission, his right to sufficiently prepare for this important hearing was denied to him.

[19]       I question whether this issue is properly before the Court. There is no evidence before this Court that this argument was raised by the Applicant in his submissions to the Appeal Division. As it is the decision of the Appeal Division of the NPB that is being judicially reviewed by this Court, issues of procedural fairness relating to the initial hearing before the NPB cannot be raised for the first time at this stage. Those arguments could and should have been made to the Appeal Division.

[20]       The Applicant submits that the general rule against raising a new argument before a reviewing court that was not argued before a lower court does not apply to tribunal decisions. Thus, in his submission, he should be allowed to argue before this court issues that could have been brought to an administrative appeal body (in this case, the Appeal Division) and that were not. As authority, he relies on the case of Kane v. University of British Columbia, [1979] B.C.J. No. 1502 (B.C.C.A.) (QL).

[21]       In my view, Kane, supra, has no applicability to this case. Dr. Kane was a zoology professor who misbehaved and was subsequently suspended by the president of the university for three months. He appealed this decision to the Board of Governors. At the meeting of the Board of Governors, the president of the university was in attendance. This is because the appeal was to be decided in the course of a regular meeting, which is normal according to the Board's governing statute. The president of the university did not vote on the matter, nor did he ask Dr. Kane any questions. He only responded to questions posed to him by other Board members. In relation to this appeal proceeding, Prof. Kane alleged a breach of procedural fairness, owing to the presence of the president. He lost.

[22]       In this case, the alleged breach of the statutory requirement occurred at the first instance, not at the appeal level. Kane, supra is, therefore, readily distinguishable. The case does not stand for the proposition that new arguments that were not made before the appellate level of an administrative tribunal can be made before the court. The alleged lack of procedural fairness at the appeal to the Board of Governors is not an argument that could have been made before the Board of Governors. In the present case, the Applicant could and should have made his argument in relation to the NPB before the appeal division of the NPB.

[23]       Even if I review this alleged error and determine that there was a breach of subsection 141(1), I note that the statute sets out no remedy. As alluded to in Herman v. Canada (National Parole Board)(1996), 112 F.T.R. 1, the appropriate remedy is certiorari. This is a discretionary remedy that requires a review of all the equities. Accordingly, I should have regard to whether the Applicant was prejudiced by this failure to comply with the statute. There is no evidence before me that the Applicant was prejudiced by any breach of the statute. There are no representations contained in the Certified Tribunal Record and no mention of any prejudice in the Applicant's affidavit in this judicial review application. Accordingly, I would decline to grant the remedy of certiorari at this stage of the proceedings.             

Issue #3: Did the Appeal Division err by ignoring evidence that was relevant to the Applicant's case?

[24]       The Applicant submits that positive evidence of his conduct that was before the Appeal Division of the NPB was not referred to in its decision; that it had a duty to consider all relevant evidence, not just pay lip service to the Applicant (Lee v. Canada (Correctional Service) (1993), 67 F.T.R. 54). The Applicant also raises a number of concerns regarding evidence that was before the NPB that ought not to have been included in the information considered by the NPB.

[25]       Again, it must be recognized that the scope of this application is the decision of the Appeal Division and not that of the NPB. It is simply not appropriate for the Applicant to bring forward arguments that could and should have been made before the Appeal Division and expect this Court to deal with them. The Certified Tribunal Record before me is that of the Appeal Division and not of the NPB. The issues that were considered by the Appeal Division and how they dealt with those issues are the subject of this judicial review.

[26]       The sole issue that was put before the Appeal Board by the Applicant was that of the NPB's jurisdiction to have a hearing in the first instance. Specifically, the Applicant submitted that the "new" material requirement under subsection 129(3) of the CCRA was not met and, therefore, the NPB did not have jurisdiction to consider the Commissioner's request for a detention order. This issue raises a clearly defined and narrow question of mixed fact and law.

[27]       Thus, I cannot agree with the Applicant's understanding of relevant material. The positive information referred to by the Applicant is not relevant to the issue that had to be decided by the Appeal Board. To fully respond to the Applicant's submissions, there was no need for the Appeal Division to make detailed references to the positive or negative conduct exhibited by the Applicant in the past. The sole question to be determined was whether the new reports, namely, the Psychological Assessment Report and the Assessment for Decision, satisfied the requirements under subsection 129(3)(a) of the CCRA.

[28]       With this in mind, I have carefully reviewed the Appeal Division's decision and believe that all of the relevant evidence presented to it was fairly reviewed. In fact, the submissions of the Applicant are set out in the decision in great detail, indicating that serious consideration, not just lip service, was given to them (Lee, supra). There was no reviewable error.

Conclusion

[29]       For these reasons, the application will be dismissed, with costs to the Respondent.

                                                                      ORDER

1.    THIS COURT ORDERS THAT the application is dismissed with costs to the Respondent.

      "Judith A. Snider"

Judge

                                                           FEDERAL COURT

                       NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET:                                      T-830-03

STYLE OF CAUSE:                     RONALD ARTHUR TENEYCKE v.

ATTORNEY GENERAL OF CANADA

PLACE OF HEARING:              Vancouver, British Columbia

DATE OF HEARING:                 March 4, 2004

REASONS FOR ORDER

AND ORDER:                              The Honourable Madam Justice Snider

DATED:                                        March 16, 2004

APPEARANCES:

SOLICITORS OF RECORD: