Ouellet v. Canada (Attorney General), 2001 FCT 1410

                                                                                                                                            Date: 20011219

                                                                                                                                       Docket: T-1476-01

                                                                                                              Neutral citation: 2001 FCT 1410

Ottawa, Ontario, December 19, 2001

BEFORE: BLANCHARD J.

BETWEEN:

                                                                 ADRIEN OUELLET

                                                                                                                                                          Plaintiff

                                                                              - and -

                                                ATTORNEY GENERAL OF CANADA

                                                                                                                                                      Defendant

                                               REASONS FOR ORDER AND ORDER

[1]                 This is an application for judicial review from a decision by the Appeal Division of the National Parole Board ("the NPB") on July 30, 2001, upholding the decision by the NPB on May 24, 2001, denying the plaintiff day parole and full parole.

  

Facts

[2]                 On November 30, 2000, the plaintiff began serving a two-year sentence for offences connected with impaired driving when he had already been prohibited from driving a vehicle. Further, an order prohibiting the plaintiff from driving for three years had also been issued by the Court when the sentence was handed down.

[3]                 Following a hearing on May 24, 2001, the NPB, as part of an accelerated parole review covered by sections 125 and 126 of the Corrections and Conditional Release Act ("the Act"), rendered a decision in which it denied the plaintiff day parole and full parole.

[4]                 After reviewing the file and meeting with the plaintiff, the NPB proceeded to assess the risk represented by him and concluded that there were reasonable grounds to believe that, if released, the plaintiff was likely to commit an offence involving violence before the expiry of his sentence, as provided in sections 125 and 126 of the Act.

[5]                 The plaintiff appealed this decision to the NPB Appeal Division.

[6]                 On July 30, 2001, the NPB Appeal Division, after reviewing the plaintiff's file and considering his arguments (letter of June 18, 2001) and his counsel's written submissions, and after listening to the tape of the hearing of May 24, 2001, upheld the NPB's decision.

Issues

[7]                 Did the NPB Appeal Division make an error of law or fact in upholding the NPB decision not to grant the plaintiff full or day parole? In particular,

(a)        could the NPB conclude that there were reasonable grounds to believe that the plaintiff would commit an offence involving violence despite the fact that the offences of which he was convicted are not in Schedule 1? _

(b)        was the NPB entitled to conclude on the facts in the record that there were reasonable grounds to believe that if released the plaintiff would commit an offence involving violence?

Standard of review

[8]                 The decisions of this Court have many times held that the standard of review of Appeal Division decisions is that of the patently unreasonable decision (see Costiuc v. Canada (Attorney General), [1999] F.C.J. No. 241, para. 6).

Analysis

[9]                 Since the plaintiff was serving an initial sentence in a federal penitentiary for an offence which did not involve physical violence, his case was analyzed by the NPB as part of the accelerated review procedure mentioned in sections 125 and 126 of the Act.

[10]            Section 126(2), (6) and (7) of the Act have a bearing on this analysis.

126(2) Release on full parole (2) Notwithstanding section 102, if the Board is satisfied that there are no reasonable grounds to believe that the offender, if released, is likely to commit an offence involving violence before the expiration of the offender's sentence according to law, it shall direct that the offender be released on full parole. 126(6) Refusal of parole (6) An offender who is not released on full parole pursuant to subsection (5) is entitled to subsequent reviews in accordance with subsection 123(5). 126(7) Definition of "offence involving violence" (7) In this section, "offence involving violence" means murder or any offence set out in Schedule I, but, in determining whether there are reasonable grounds to believe that an offender is likely to commit an offence involving violence, it is not necessary to determine whether the offender is likely to commit any particular offence.		126(2) Libération conditionnelle totale (2) Par dérogation à l'article 102, quand elle est convaincue qu'il n'existe aucun motif raisonnable de croire que le délinquant commettra une infraction accompagnée de violence s'il est remis en liberté avant l'expiration légale de sa peine, la Commission ordonne sa libération conditionnelle totale. 126(6) Refus (6) Dans le cas contraire, la libération conditionnelle totale est refusée, le délinquant continuant toutefois d'avoir droit au réexamen de son dossier selon les modalités prévues au paragraphe 123(5). 126(7) Infractions accompagnées de violence (7) Pour l'application du présent article, une infraction accompagnée de violence s'entend du meurtre ou de toute infraction mentionnée à l'annexe I; toutefois, il n'est pas nécessaire, en déterminant s'il existe des motifs raisonnables de croire que le délinquant en commettra une, de préciser laquelle.

[11]            This is the legislative background against which the NPB had to determine whether it was satisfied that there were reasonable grounds to believe that, if the plaintiff was released before the expiry of his sentence according to law, he would commit an offence involving violence.

[12]            In his memorandum the plaintiff noted that impaired driving is an offence contained in Schedule I of the Act and submitted that, under the Act, the offence is not a violent crime. The plaintiff further submitted that the NPB made an error of law in stating [TRANSLATION] "that driving an automobile while intoxicated is a violent crime". The plaintiff further submitted that the NPB refused to allow him full parole because it considered that impaired driving was part of Schedule I. Thus, in the plaintiff's submission, full parole could only be denied if the offender had committed a Schedule I offence. In the plaintiff's submission, this is a matter which Parliament must decide and the NPB has no right to usurp the powers exercised by Parliament.

[13]            The plaintiff further submitted that the only two offences contained in Schedule I of the Act which have any bearing on the plaintiff's criminal conduct are:

(a)        dangerous driving causing bodily harm or death (249(3) and (4) of the Canada Criminal Code);

(b)        impaired driving causing bodily harm or death (255(2) and (3) of the Canada Criminal Code).

The plaintiff argued that he had no criminal record of this kind and submitted that the NPB had no reasonable grounds to believe that he would commit another offence causing bodily harm or death to any person.

[14]            Analysis of the NPB decision indicates that the latter never considered that impaired driving was an offence mentioned in Schedule I. The decision actually shows that the NPB indicated its disagreement with the opinions about the plaintiff expressed in the record, to the effect that he had not been involved in situations involving violence. The NPB said that actually in its opinion driving an automobile while intoxicated was a violent crime, since it was likely to injure or kill innocent victims.

[15]            The defendant noted that this opinion expressed by the NPB was entirely justifiable in view of R. v. Bernshaw, [1995] 1 S.C.R. 254, in which the Supreme Court of Canada recognized that a driver whose faculties were impaired represented a mortal danger that should be identified and removed from traffic as soon as possible.

[16]            The defendant further noted that nowhere in the Act is it stated that only offenders committing a Schedule I offence may be denied full parole.

[17]            I consider that the fact that the plaintiff is serving a sentence for an offence which is not mentioned in Schedule I does not mean that the NPB cannot conclude that there are reasonable grounds to believe he will commit an offence mentioned in Schedule I. As the Appeal Division of the NPB noted, [TRANSLATION] "the question is not whether the offence is mentioned in the Schedule. Rather, it is to determine in the particular case under review whether the series of repeat offences involving impaired driving represent a situation which create a reasonable belief that a Schedule I crime involving violence will result, and it is not necessary to specify any particular offence" (Appeal Division reasons).

[18]            In its decision the NPB noted inter alia the following factors as justifying its conclusion:

[TRANSLATION]

In 25 years the plaintiff has been arrested and convicted of impaired driving on several occasions;

the plaintiff has even been arrested for driving while under a prohibition not to do so;

the plaintiff is dealing with a serious unresolved drinking problem;

the plaintiff has minimized his drinking problem;

the plaintiff shows little awareness of the impact of his alcohol consumption;

despite repeated convictions, prohibitions from driving, hospitalizations and treatment for alcoholism, the plaintiff has still committed further crimes of the same kind.

  

[19]            Although the offences committed by the plaintiff are not mentioned in Schedule I, it is not unreasonable in my opinion for the NPB to conclude, based on the factors to which it referred in its decision, that there are reasonable grounds to believe that the plaintiff is likely to commit a Schedule I offence before the expiry of his sentence.

[20]            As the plaintiff mentioned in his memorandum, there are two offences mentioned in Schedule I which have a bearing on the plaintiff's criminal conduct, dangerous driving causing bodily harm or death (249(3) and (4) of the Canada Criminal Code) or impaired driving causing bodily harm or death (250(2) and (3) of the Canada Criminal Code).

[21]            I adopt the defendant's arguments on this point: the fact that the offence of which an offender has been convicted is not one involving violence does not mean he cannot commit an offence involving violence if he is released. It is the NPB's function to ensure that offenders to whom it plans to grant full parole before their sentence expires will not commit an offence involving violence.

[22]            The analysis made by the NPB and the assessment of the facts in the case at bar are completely consistent with the function conferred on it by the Act and are an exercise which falls within its jurisdiction and its reason for existing.

[23]            I consider that it was not patently unreasonable for the NPB to conclude that there were reasonable grounds to believe that the plaintiff would commit an offence involving violence if he was released before the expiry of his sentence according to law. I therefore conclude that the NPB Appeal Division's decision was correct in fact and in law and in no way justifies intervention by this Court.

Conclusion

[24]            For all these reasons, the application for judicial review is dismissed.

                                                                            ORDER

THE COURT ORDERS that:

1.         The application for judicial review is dismissed.

   

                                                                                                                                                                       

    

Certified true translation

Suzanne M. Gauthier, LL.L. Trad. a.

                                                    FEDERAL COURT OF CANADA

                                                                 TRIAL DIVISION

                                              NAMES OF SOLICITORS OF RECORD

                                                                                   

  

FILE:                                      T-1476-01

STYLE OF CAUSE:            Adrien Ouellet v. Attorney General of Canada

   

PLACE OF HEARING:      Montréal, Quebec

DATE OF HEARING:        November 8, 2001

REASONS FOR ORDER AND ORDER BY: Blanchard J.

DATED:                                 December 19, 2001

   

APPEARANCES:

Daniel Royer                                                                      FOR THE PLAINTIFF

Martin Latour

  

Nadia Hudon                                                                      FOR THE DEFENDANT

  

SOLICITORS OF RECORD:

Labelle, Boudrault, Côté et Associés    FOR THE PLAINTIFF

Montréal, Quebec

Morris Rosenberg                                                              FOR THE DEFENDANT

Deputy Attorney General of Canada