Rudnicki v. Canada (Attorney General), 2001 FCT 1321

Date: 20011130

Docket: T-1893-01

OTTAWA, Ontario, November 30, 2001

BEFORE: Rouleau J.

BETWEEN:

                                                              ANDREW RUDNICKI

                                                                                                                                                          Plaintiff

AND:

                                                ATTORNEY GENERAL OF CANADA

                                                                                                                                                      Defendant

                                                                            ORDER

[1]        The application for judicial review is dismissed.

Certified true translation

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

Date: 20011130

Docket: T-1893-01

Neutral citation: 2001 FCT 1321

BETWEEN:

                                                              ANDREW RUDNICKI

                                                                                                                                                          Plaintiff

AND:

                                                ATTORNEY GENERAL OF CANADA

                                                                                                                                                      Defendant

                                                            REASONS FOR ORDER

ROULEAU J.

[1]                 This is an application for judicial review pursuant to s. 18.1 of the Federal Court Act, R.S.C. 1985, c. F-7, from a decision on October 1, 2001 that the Appeal Division of the National Parole Board ("the Board") made affirming the decisions at the first level on March 5, 2001 to revoke the plaintiff's statutory release and on August 16, 2001 to keep the plaintiff incarcerated and prohibit his release. The plaintiff sought an order quashing the decision of October 1, 2001 and ordering his immediate release on conditions set by the Board. Alternatively, he asked to be given a new hearing before the Board.

[2]                 The plaintiff has been serving an initial federal sentence since June 1998 of 3 years, 5 months and 17 days for uttering threats (44 counts), criminal harassment (2 counts), failure to comply and public mischief (6 counts).

[3]                 The offences with which he was charged involving following young women between 15 and 25 years old to their homes and then sending them very detailed anonymous, threatening letters. In general the letters contained a description of the clothing worn by and a precise account of the young women's day. The letters also contained personalized details about the victims' way of life and descriptions of the injuries the plaintiff was threatening to inflict on them before killing them.

[4]                 The plaintiff has also incurred provincial sentences in the past, in particular a conviction in 1994 for weapons possession, uttering threats and an armed attack on his own mother.

[5]                 Since October 20, 2000 the plaintiff has been on statutory release in accordance with the right conferred on him by s. 127(1) of the Corrections and Conditional Release Act ("the Act"). This release was subject to special conditions of psychological follow-up, no contact with the victims and a residency requirement.

[6]         On December 4, 2000 a warrant was issued suspending the statutory release after an undated 39-page document was found in the plaintiff's room in which he threatened to kill three members of the Canadian Olympic Team. This letter was never sent. A sketch of the place where Julie Surprenant disappeared, a note in which the name of a young girl killed in May 2000 appeared, about 50 maps of various towns and municipalities and several pages containing names and addresses, including the names of several girls, were also found.

[7]         The plaintiff was arrested the same day but tried to avoid arrest and force had to be used to neutralize him. After the documents were discovered in the plaintiff's room, he allegedly told the director of the residence where he was sent he intended to send the threats when the term he was currently serving expired.

[6]                 On March 5, 2001 the Board revoked the plaintiff's statutory release on the basis of the documents which had been found and on the grounds that the risk of his reoffending had become unacceptable and he had not demonstrated any significant or lasting changes. The plaintiff again became eligible for statutory release on August 13, 2001.

[7]                 On May 4, 2001 the plaintiff appealed the Board's decision to revoke his statutory release.

[8]                 At the same time, in accordance with s. 129(3)(a) of the Act, the Correctional Service commissioner referred the plaintiff's case to the Board chairperson on June 14, 2001 for a review of whether he should continue to be kept in custody during the statutory release period to begin on August 13, 2001.

[9]                 On August 16, 2001 the plaintiff was seen at the hearing by the Board which the same day made a decision ordering that he be kept in custody and prohibiting his release until the remand warrant expired on December 16, 2001.

[10]            On September 18, 2001 the plaintiff appealed this decision by the Board, noting that the Appeal Division had still not responded to his appeal on the revocation of his statutory release.

[11]            In a decision dated October 1, 2001 the Appeal Division affirmed the two first level decisions.

[12]            This decision is the subject of the application for judicial review in the case at bar.

[13]            In its decision of October 1, 2001 affirming the first level decisions of March and August 2001, the Appeal Division noted that the question before it was [TRANSLATION] "whether based on all the information available to the members, including what was presented at the hearing, the decision made was reasonable in the circumstances". It noted that [TRANSLATION] "unless the decision is without foundation and so unreasonable on the facts, the Appeal Division is not justified in intervening". It then set out its reasons regarding the order to revoke the plaintiff's statutory release and the prohibition of his release, considering these two points together. Accordingly, a clear distinction must be made between the reasons which were the basis for the Appeal Division's decision in either case.

[14]            The Appeal Division first reviewed the plaintiff's arguments in support of his appeal of the decision to revoke his statutory release as follows:

[TRANSLATION]

YOU SUBMIT THAT YOUR STATUTORY RELEASE WAS REVOKED NOT BECAUSE OF YOUR CONDUCT WHILE ON RELEASE BUT AS THE RESULT OF THE DISCOVERY OF LETTERS YOU ALLEGEDLY WROTE WHEN AT THE COWANSVILLE INSTITUTION WELL BEFORE YOUR RELEASE . . . YOU CONCLUDE BY SAYING THAT THE BOARD HAD NO JURISDICTION TO ORDER PROHIBITION OF YOUR RELEASE AS YOU HAD COMMITTED NO ACT WHILE ON RELEASE THAT WOULD LEGALLY JUSTIFY A REVOCATION: IF THERE WAS NO LEGAL REVOCATION, NO CONTINUED INCARCERATION WAS POSSIBLE.

It continued, commenting that based on the evidence,

[TRANSLATION]

YOUR STATUTORY RELEASE BEGAN ON OCTOBER 20, 2000. ON DECEMBER 4, 2000, IN A SEARCH OF YOUR ROOM AT THE CCC, THE OFFICER FOUND A DOCUMENT IN WHICH YOU MADE THREATS AGAINST SEVERAL FEMALE MEMBERS OF THE 2000 CANADIAN OLYMPIC TEAM. A SKETCH CONCERNING THE DISAPPEARANCE OF ANOTHER WOMAN, A NOTE IN WHICH THE NAME OF A GIRL WHO WAS KILLED IN MAY 2000 APPEARED, ABOUT 50 MAPS OF VARIOUS TOWNS AND MUNICIPALITIES AND SEVERAL PAGES CONTAINING NAMES AND ADDRESSES, INCLUDING SEVERAL NAMES OF GIRLS, WERE ALSO FOUND. YOU WERE SUSPENDED AND THE BOARD HELD A POST-SUSPENSION HEARING ON MARCH 5, 2001. REGARDLESS OF THE DATE ON WHICH YOU WROTE THE LETTERS, THE BOARD CONSIDERED THAT THE SEIZURE OF THESE ITEMS IN YOUR ROOM AND THE FACT THAT YOU HAD THEM IN YOUR POSSESSION AT THE TIME OF YOUR STATUTORY RELEASE WAS AN INDICATION THAT YOU WERE IN THE SAME STATE OF MIND REGARDING YOUR FEELINGS OF INJUSTICE AND LACK OF UNDERSTANDING. CONSIDERING ALL THE INFORMATION AVAILABLE, IT DETERMINED THAT YOUR RISK HAD BECOME UNACCEPTABLE AND REVOKED YOUR PAROLE.

[15]            The Appeal Division concluded that the decision to revoke was made in accordance with the law.

[16]            The Appeal Division reviewed the plaintiff's arguments in support of his appeal of the decision to prohibit his release as follows:

[TRANSLATION]

YOU SUBMIT THAT SINCE YOUR SENTENCE BEGAN NO PERSON RESPONSIBLE HAS CONSIDERED THAT YOUR OFFENCES CAUSED SERIOUS HARM OR DEATH WITHIN THE MEANING OF THE ACT. YOU TOLD US THAT IT WAS CLEAR SOME PEOPLE HAD SUFFERED INJURY AS A RESULT OF YOUR ACTIONS BUT THERE WAS NO EVIDENCE THAT SUCH SERIOUS HARM WAS CAUSED AS TO MEET THE REQUIREMENTS OF THE ACT FOR CONTINUED DETENTION.

[17]            In response to these arguments the Appeal Division said the following:

[TRANSLATION]

IT MIGHT BE APPROPRIATE HERE TO CONSIDER WHETHER THE FACT THAT YOUR CURRENT CRIMES COULD HAVE CAUSED CONSIDERABLE HARM TO THE VICTIMS IS A RELEVANT POINT FOR CONSIDERATION, BUT AT THE SAME TIME THIS IS NOT A REQUIREMENT ON WHICH THE BOARD RELIES IN ARRIVING AT THE DECISION TO MAKE AN ORDER PROHIBITING RELEASE (SEE SECTION 130(3) OF CCRA). NEVERTHELESS, IN YOUR CASE THE BOARD CONSIDERED THAT YOU HAD UNDOUBTEDLY CAUSED SERIOUS HARM OF A PSYCHOLOGICAL NATURE AND ITS CONCLUSION IN THIS REGARD WAS REASONABLE AND VALID.

[18]            On the question of whether the Board lacked jurisdiction to order prohibition of the plaintiff's release and parallel remedies, the Appeal Division dismissed the plaintiff's argument as follows:

[TRANSLATION]

THE BOARD HAD JURISDICTION TO PROCEED TO REVIEW THE POSSIBILITY OF CONTINUED DETENTION IN YOUR CASE. IT WAS SATISFIED THAT THE CORRECTIONAL SERVICE MEMBER HAD REASONABLE GROUNDS TO BELIEVE THAT, BEFORE THE EXPIRY OF YOUR SENTENCE, YOU WOULD COMMIT AN OFFENCE CAUSING DEATH OR SERIOUS HARM TO ANOTHER PERSON. THE CORRECTIONAL SERVICE MEMBER CONSIDERED SEVERAL FACTORS IN HIS DECISION TO REFER YOUR CASE PURSUANT TO SECTION 129(3) OF THE CCRA, INCLUDING THE CIRCUMSTANCES SURROUNDING YOUR REVOCATION IN MARCH 2001 . . . THE CIRCUMSTANCES SURROUNDING THE REVOCATION WERE RELEVANT TO THE REVIEW OF THE PROHIBITION OF RELEASE.

[19]            It went on to set out its reasons for its decision to dismiss the plaintiff's appeal from the first level decision to prohibit his release:

[TRANSLATION]

IN YOUR CASE, THE APPEAL DIVISION IS SATISFIED THAT THE BOARD HAD RELEVANT AND SUFFICIENT INFORMATION TO ARRIVE AT THE DECISION FROM WHICH YOU ARE APPEALING. THE BOARD ANALYZED THE SAID INFORMATION AND REASONABLY APPLIED THE FACTORS RELATING TO THE PROHIBITION OF RELEASE. THE ANALYSIS OF YOUR CASE IS CLEARLY DESCRIBED IN THE REASONS FOR DECISION RENDERED. IN ARRIVING AT THE DECISION TO ORDER PROHIBITION OF RELEASE THE MEMBERS NOTED THAT YOU HAD EXTREMELY SERIOUS PERSONALITY PROBLEMS AND YOU HAD SHOWN NO SERIOUS INTENT TO BENEFIT FROM THE PROGRAMS TO DEAL WITH SUCH PROBLEMS. THEY CONSIDERED THE CIRCUMSTANCES SURROUNDING REVOCATION OF YOUR STATUTORY RELEASE AND NOTED THAT FOLLOWING REVOCATION YOU WROTE ANOTHER THREATENING LETTER TO YOUR FORMER PAROLE OFFICER. FURTHER, THEY DETERMINED THAT NO SUPERVISORY PROGRAM COULD PROTECT THE PUBLIC IN YOUR CASE, ESPECIALLY TAKING INTO ACCOUNT YOUR PRIOR RELAPSES IN OTHER RELEASE PERIODS.

[20]            The Appeal Division concluded that [TRANSLATION] "the decision rendered on August 16, 2001 is fair and reasonable, is based on relevant, sufficient, reliable and persuasive information, is in accordance with the Act and Board policies regarding prohibition of release and was rendered in keeping with the rules of fundamental justice" and accordingly dismissed the plaintiff's appeal.

[21]            Essentially, the questions raised by this judicial review are, first, whether the Appeal Division erred in law in upholding the first level decision of March 5, 2001 based on the plaintiff's conduct before his statutory release, contrary to the requirement set out in the Act, and second, whether the Appeal Division erred in law in upholding the decision at the first level on August 16, 2001 when the latter had no jurisdiction to impose continued detention and prohibition of release. This case also raises the interesting question of the legislative scope of s. 129(2) and (3) of the Act.

[22]            At the outset the plaintiff noted that the Board's reasons in support of its decision to revoke the plaintiff's statutory release indicated that the suspension was the result of the threatening letter found in his personal effects, which he said was written before his statutory release. Accordingly, it was not due to the plaintiff's conduct since his statutory release, as provided in s. 135(5)(a) of the Act, but rather his conduct before being released. In fact, the plaintiff maintained, the only thing alleged against him was not having made any significant change in his [TRANSLATION] "negative" behaviour. The plaintiff submitted that this fact in no way increased the risk that he would commit a crime and that he did not have to prove any change whatever. It was up to the Board to show there was a change that increased the risk of recidivism, and if that was not the case the right to statutory release became illusory and could be revoked at any time.

[23]            The plaintiff maintained that he was entitled to this statutory release under s. 127(1) of the Act and that reasons prior to that release could not legally be relied on for revoking it. The plaintiff cited the opinion of the Supreme Court of Canada in R. v. Moore (1983), 33 C.R. (3d) 97, affirming R. v. Moore (1983), 33 C.R. (3d) 99, by the Ontario Court of Appeal and reversing the majority judgment of the Alberta Court of Appeal in Oag v. R. (1983), 33 C.R. (3d) 111. In the plaintiff's submission, it was quite clear that since no grounds existed for keeping the plaintiff in custody and so legally depriving him of his statutory release, the Board was in breach of the Act and was usurping the power of Parliament by relying on grounds prior to the plaintiff's statutory release as a basis for withdrawing it.

[24]            Additionally, the plaintiff submitted that the Board's decision was patently unreasonable in fact since, contrary to what the Board maintained, the plaintiff had made significant progress in understanding his criminal conduct by involving himself positively and freely in psychological follow-up. The report by the psychiatrist Renée Fugère submitted to the Board concluded that the problem situation seemed quite stable and that it was preferable to send the plaintiff back to a halfway house for him to continue his therapeutic follow-up rather than revoking his statutory release. Accordingly, the plaintiff respectfully submitted that the Board's decision should be quashed since it contained an error of law as well as being patently unreasonable.

[25]            The plaintiff noted initially that if the decision to revoke his statutory release was unlawful the Board could not proceed with a review concerning his continued detention, since he would have been released.

[26]            The plaintiff submitted that it was apparent from the record that the Appeal Division of the Board had failed to respond to the plaintiff's appeal from the decision to revoke his statutory release. During that time, the Correctional Service ("the Service") again forwarded the plaintiff's file to the Board for a review of his continued detention for the entire period of his sentence, alleging that the offences for which the plaintiff was serving time had caused serious harm to the victims. The plaintiff questioned the motivation of the Service when on May 28, 2001 it decided for the first time that the plaintiff's offences had caused serious harm to the victims, although this had never been mentioned since his sentence began in June 1998. The plaintiff had even received statutory release without a review of continued detention, since his offences had not caused serious harm. In the plaintiff's submission, it goes without saying that if he committed no serious harm to the victims, as specified in s. 129(2)(a)(i), the Board had no jurisdiction to impose continued detention.

[27]            The plaintiff submitted that it was apparent from the Board's decision of August 16, 2001 that in addition to using the wrong test, referring to "tort considérable" [serious harm] rather than to "dommage grave" [serious harm], raising some doubt as to whether this was the same concept, the latter only gave an opinion, based on no "reliable and persuasive" information. The latter test was laid down by the Supreme Court of Canada in Mooring v. Canada (NPB), [1996] 1 S.C.R. 75, at 77, as a prerequisite for the Board using information to support its decisions. Accordingly, the plaintiff submitted that the Board had not acted fairly in the circumstances and had exceeded its jurisdiction by proceeding with a review of continued detention when there was a complete absence of information that the plaintiff's victims had suffered serious harm.

[28]            To begin with, the defendant submitted, the plaintiff appeared to be arguing that his conduct since his release was irreproachable and that the Board had wrongly relied on his conduct prior to his statutory release, since the threatening letter found on December 4, 2000 had apparently been written before the plaintiff began his statutory release. Agreeing with the Appeal Division's reasons on this point, the defendant admitted that the fact of writing a threatening letter is conduct in itself and also submitted that the fact of possession such a document and maintaining an attitude of criminal vengeance and hatred is also conduct, and it is clear that the plaintiff engaged in such conduct during his statutory release.

[29]            The defendant submitted that it was not patently unreasonable to conclude that there was evidence to support the view that the plaintiff's conduct during his statutory release had not persuaded the Board, based on his conduct during his statutory release, that in the event the plaintiff committed another offence before his sentence legally expired it would not represent an unacceptable risk to society. Consequently, the defendant submitted that this Court did not have to intervene in the Appeal Division's decision on this point.

[30]            In the defendant's submission, the plaintiff was arguing that the Board lacked jurisdiction to impose continued detention and prohibition of release since it did not have reliable and persuasive information that the offences committed by the plaintiff, and for which he was serving his term of imprisonment, had caused serious harm to another person in accordance with s. 129(2) of the Act. The defendant submitted that this argument was without foundation.

[31]            The defendant submitted that the case was not referred to the Board by the Service under s. 129(2) of the Act, but was referred by the commissioner to the chairperson of the Board under s. 129(3) of the Act. According to the defendant, this is a significant distinction because, first, the test that the offence must have caused death or serious harm to a person is not set out in s. 129(3). Secondly, under s. 129(3) of the Act, it is the commissioner who takes the decision to refer the plaintiff's case to the Board chairperson for a review of continued detention. That decision by the commissioner is not the subject of the application for judicial review at bar. The defendant relied by analogy on this Court's decision in Larsen v. Canada (National Parole Board), [1999] F.C.J. No. 1682, as a basis for submitting that once the case had been referred to the Board chairperson the latter had a duty under s. 129(5)(a) to proceed with the case review mentioned in s. 130(1). Accordingly, the defendant submitted that not only did the Board have jurisdiction to proceed with the review of continued detention of the plaintiff, it had a duty to do so. Consequently, the defendant asked the Court to dismiss the plaintiff's application for judicial review.

[32]            The plaintiff sought an order quashing the decision by the Appeal Division of the Board on October 1, 2001, which upheld the first level decisions of March 5 and August 16, 2001; and an order granting the plaintiff immediate release on conditions set by the Board. Alternatively, he sought an order requesting a new hearing before the Board as soon as possible.

[33]            The relevant provisions dealing with revocation of an inmate's statutory release and his continued detention are contained in ss. 127 to 135 of the Act. They need to be set out here:

127. (1) Subject to any provision of this Act, an offender sentenced, committed or transferred to penitentiary is entitled to be released on the date determined in accordance with this section and to remain at large until the expiration of the sentence according to law.

129. (1) Before the statutory release date of an offender who is serving a sentence of two years or more that includes a sentence imposed for an offence set out in Schedule I or II or an offence set out in Schedule I or II that is punishable under section 130 of the National Defence Act, the Commissioner shall cause the offender's case to be reviewed by the Service.

(2) After the review of the case of an offender pursuant to subsection (1), and not later than six months before the statutory release date, the Service shall refer the case to the Board together with all the information that, in its opinion, is relevant to it, where the Service is of the opinion

(a) in the case of an offender serving a sentence that includes a sentence for an offence set out in Schedule I, that

(i) the commission of the offence caused the death of or serious harm to another person and there are reasonable grounds to believe that the offender is likely to commit an offence causing death or serious harm to another person before the expiration of the offender's sentence according to law; or

(ii) the offence was a sexual offence involving a child and there are reasonable grounds to believe that the offender is likely to commit a sexual offence involving a child before the expiration of the offender's sentence according to law; or

(b) in the case of an offender serving a sentence that includes a sentence for an offence set out in Schedule II, that there are reasonable grounds to believe that the offender is likely to commit a serious drug offence before the expiration of the offender's sentence according to law.

(3) Where the Commissioner believes on reasonable grounds that an offender who is serving a sentence of two years or more is likely, before the expiration of the sentence according to law, to commit an offence causing death or serious harm to another person, a sexual offence involving a child or a serious drug offence, the Commissioner shall refer the case to the Chairperson of the Board together with all the information in the possession of the Service that, in the Commissioner's opinion, is relevant to the case, as soon as is practicable after forming that belief, but the referral may not be made later than six months before the offender's statutory release date unless

(a) the Commissioner formed that belief on the basis of behaviour of the offender during the six months preceding the statutory release date or on the basis of information obtained during those six months; or

(b) as a result of any recalculation of the sentence under this Act, the statutory release date of the offender has passed or less than six months remain before that date.

(c) [Repealed, 1995, c. 42, s. 44]

130. (1) Where the case of an offender is referred to the Board by the Service pursuant to subsection 129(2) or referred to the Chairperson of the Board by the Commissioner pursuant to subsection (129)(3) or (3.1), the Board shall, subject to subsections 129(5), (6) and (7), at the times and in the manner prescribed by the regulations,

(a) inform the offender of the referral and review, and

(b) review the case,

and the Board shall cause all such inquiries to be conducted in connection with the review as it considered necessary.

(2) An offender referred to in subsection (1) is not entitled to be released on statutory release before the Board renders its decision under this section in relation to the offender.

(3) On completion of the review of the case of an offender referred to in subsection (1), the Board may order that the offender not be released from imprisonment before the expiration of the offender's sentence according to law, except as provided by subsection (5), where the Board is satisfied

. . . . .

(c) in the case of an offender whose case was referred to the Chairperson of the Board pursuant to subsection 129(3) or (3.1), that the offender is likely, if released, to commit an offence causing the death of or serious harm to another person, a sexual offence involving a child or a serious drug offence before the expiration of the offender's sentence according to law.

132. (1) For the purposes of the review and determination of the case of an offender pursuant to section 129, 130 or 131, the Service, the Commissioner or the Board, as the case may be, shall take into consideration any factor that is relevant in determining the likelihood of the commission of an offence causing the death of or serious harm to another person before the expiration of the offender's sentence according to law, including:

(a) a pattern of persistent violent behaviour established on the basis of any evidence, in particular,

(i) the number of offences committed by the offender causing physical or psychological harm,

(ii) the seriousness of the offence for which the sentence is being served,

(iii) reliable information demonstrating that the offender has had difficulties controlling violent or sexual impulses to the point of endangering the safety of any other person,

(iv) the use of a weapon in the commission of any offence by the offender,

(v) explicit threats of violence made by the offender,

(vi) behaviour of a brutal nature associated with the commission of any offence by the offender, and

(vii) a substantial degree of indifference on the part of the offender as to the consequences to other persons of the offender's behaviour;

(b) medical, psychiatric or psychological evidence of such likelihood owing to a physical or mental illness or disorder of the offender;

(c) reliable information compelling the conclusion that the offender is planning to commit an offence causing the death of or serious harm to another person before the expiration of the offender's sentence according to law; and

(d) the availability of supervision programs that would offer adequate protection to the public from the risk the offender might otherwise present until the expiration of the offender's sentence according to law.

135. (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.

[34]            It should be noted at the outset that this Court should only intervene to correct the Board's decisions to revoke the plaintiff's statutory release or prohibit his release if they prove to be patently unreasonable based on the evidence before it. This is what Dubé J. concluded in Hay v. National Parole Board et al. (1991), 48 F.T.R. 164, at 168:^[1]

It is not sufficient to demonstrate that the tribunal was not correct in its decisions. The applicant must establish the unreasonableness or the capriciousness of the application of the legislation to his own case ... It is not for this court to assess the validity of the numerous tests and reports from psychiatrists and psychologists who do not totally agree amongst themselves. It is for the Board to determine whether or not it is safe to release the applicant totally or gradually, escorted or unescorted, into the community.

[35]            The plaintiff submitted that the Appeal Division erred in law in concluding that the Board had jurisdiction to order the revocation of his parole since he had committed no act while on statutory release that increased the risk of a reoffence, legally justifying revocation. I am unable to conclude that the Board drew a mistaken conclusion of fact when it considered the seizure of the 39-page document and other items in the inmate's room, and the fact that he had them in his possession at the time of his parole, as an indication that he was in the same state of mind and still had the same criminal attitude of vengeance and hatred against society. Whether the threatening letter found on December 4, 2000 was written before or after the plaintiff began his statutory release makes little difference, as does the fact that the letter was never mailed. It should also be noted in this regard that the evidence showed that after the documents were discovered in the plaintiff's room he allegedly told the director of the residence to which he was assigned that he intended to send the threats when the term he was currently serving expired, which in my opinion itself constituted conduct tending to further support the Board's conclusion.^[2] It was not patently unreasonable for the Board to consider this relevant evidence as a whole in arriving at its decision. Concluding that [TRANSLATION] "conduct since release" requires the commission of an act or positive action such as an assault, that would demonstrate that the risk the plaintiff would reoffend before expiry of the sentence he was serving had become an undue risk for society, would be to give an unduly limiting interpretation to s. 135(5)(a) that would frustrate the intention of Parliament. Considering all the information available, I am persuaded that the evidence actually received by the Board could reasonably support its decision to revoke the plaintiff's parole.

[36]            The plaintiff submitted that the Appeal Division erred in law in concluding that the Board had jurisdiction to impose continued detention and a prohibition of release since, in his opinion, there was no reliable and persuasive information that the offences committed by the plaintiff, for which he was serving his term of imprisonment, had caused serious harm to any person in accordance with s. 129(2) of the Act. In reply to the defendant's argument that the case was not referred to the Board by the Service under s. 129(2) of the Act, but was referred to the Board chairperson by the commissioner under s. 129(3), the plaintiff relied on a limiting interpretation of s. 129(3) as a basis for arguing that the requirement that the inmate must have caused death or serious harm to another person contained in s. 129(2)(a) is contained in that subsection by implication and was omitted simply to avoid redundancy. He submitted that the legislative scheme set out in s. 129 creates time limits for the disclosure of information and the taking of a decision by the Board which are designed to protect an inmate whose statutory release has been suspended or revoked against unjustified invasion of his freedom. Accordingly, in the plaintiff's submission the only difference between the two aforementioned provisions is that under s. 129(3) a reference can also be made to the Board less than six months before the date set for the statutory release if the conclusion by the commissioner (and not by the Service) that there are reasonable grounds to believe that, if the plaintiff were released before the expiration of his sentence according to law he would commit an offence causing death or serious harm to another person, was based on the offender's conduct or on information obtained during those six months.

[37]            The defendant, for his part, suggested instead a liberal interpretation of the provision and maintained that the purpose of the Act was for protection of society to remain the overriding consideration in any decision-making involving penitentiaries (ss. 3, 4 and 101(a) of the Act), and accordingly that the wording of s. 129(3) is broad enough not to necessarily require the inmate to have caused death or serious harm to another person. He maintained that although in general an inmate's file should be referred to the Board at the latest six months before the date scheduled for statutory release, Parliament intended to create an exception in s. 129(3) in fine without retaining the strict requirements laid down in s. 129(2) of the Act, so as to permit reference to the Board on the basis of information that might not have been drawn to the commissioner's attention six months at the latest before the date for statutory release, but which was so drawn within six months before that date.

[38]            It is clear that the case at bar falls under the scheme set out in s. 129(3) of the Act. It concerned a referral by the commissioner to the Board chairperson, not a referral by the Service to the Board, and this was done less than six months before August 13, 2001, the scheduled date of the plaintiff's statutory release. I agree with the fact that ordinarily, under s. 129(3) of the Act, reference of the file of an offender serving a term of imprisonment should be done at the latest six months before the date scheduled for his or her statutory release, when the commissioner has reasonable grounds to believe that if released before the expiry of the sentence according to law the offender will commit an offence causing death or serious harm to another person. However, s. 129(3)(a) also provides for the possibility of a referral being made to the chairperson of the Board less than six months before the date scheduled for statutory release if the commissioner's conclusion is based on the offender's conduct or on information obtained during those six months. As regards the other requirements set out in s. 129(3), which must be met before the Commissioner can refer the matter to the Board chairperson, s. 129(3) must be interpreted in light of the interpretation given to s. 21.3(3) of the Parole Act, R.S.C. 1985, c. 34 (2d Supp.), s. 5, which reads as follows:

21.3 (3) Where the Commissioner believes on reasonable grounds that an inmate who is serving a sentence imposed in respect of any offence, whether or not that offence is mentioned in the schedule or caused the death of or serious harm to another person, is likely, prior to the expiration according to law of the sentence the inmate is then serving, to commit an offence causing the death of or serious harm to another person, the Commissioner shall refer the case to the Chairman of the Board, together with all information in the possession of the Service that, in the opinion of the Commissioner, is relevant to the case, as soon as practicable after the belief is formed, but not later than six months before the presumptive release date of the inmate unless

(a)            the Commissioner formed the belief on the basis of

(i)             behaviour by the inmate that occurred within those six months, or

(ii)            information obtained within those six months . . .

[41]       In Ford v. Commissioner of Corrections et al. (1990), 54 C.C.C. (3d) 256 (T.D.), at 262-263, MacKay J. clearly explained the old legislative provisions regarding referral of cases for continuing the detention of an inmate during the period specified for his statutory release, contained in s. 21.3(3) of the Parole Act (the old s. 129(3) of the Act) as follows:

Under s. 21.3 there are three circumstances by which cases may be referred to the National Parole Board for consideration for a so-called detention hearing, that is, to consider whether the inmate due for release but with outstanding sentence to serve should continue to serve that sentence in an institution. Under s. 21.3(2) the Correctional Service shall refer to the Board the case of an inmate serving a sentence for conviction of designated crimes of violence, where it is of the opinion that criteria in paras. (a), (b) and (c) set out in this s-s. (2) are met. It shall do this not later than six months before the presumptive release date of the inmate. In Ford's case that six-month deadline meant that the service, if it were to act under s. 21.3(2), would do so before September 27, 1989.

The second circumstance, under s. 21.3(3), is where the Commissioner believes on reasonable grounds that an inmate serving any sentence in an institution, regardless of the offence which led to his incarceration, is likely prior to the expiration date of the sentence he is then serving to commit an offence causing the death of or serious harm to another person. In that event the Commissioner shall refer the case to the chairman of the Board and he may do this at any time up to six months before the presumptive release date of the inmate, i.e., in this case, September 27, 1989.

The third circumstance, also under s. 21.3(3), is where, not having referred the matter to the chairman of the Board prior to six months in advance of the presumptive release date of the inmate, the Commissioner after that date forms the same serious belief on reasonable grounds based on behaviour of the inmate occurring within those six months or on information obtained within those six months. It was in this last circumstance that the Commissioner referred the applicant's case to the chairman of the Board.

[42]       It should be noted that the Parole Act was repealed and replaced by the Corrections and Conditional Release Act on November 1, 1992. Under the old system the Commissioner had the power to refer the file of an inmate serving a term of imprisonment to the chairman of the Board, whether or not he or she was sentenced for an offence mentioned in the schedule and whether or not he or she had caused death or serious harm, when he had reasonable grounds to believe that if released before the expiry of the sentence according to law the inmate would commit an offence causing death or serious harm to another person.^[3] However, the wording of s. 129(3) does not reproduce this language but provides instead that the Commissioner may refer the case of an offender "who is serving a sentence of two years or more", without any further requirement.

[39]            I cannot subscribe to the plaintiff's argument that the requirement that the inmate whose sentence of two years or more includes a sentence for an offence set out in Schedules I or II must have caused death or serious harm to another person, mentioned in s. 129(2)(a), is contained by implication in s. 129(3). Not only would such a limiting interpretation conflict with the wording of the Act, it would completely deprive s. 129(2) of all meaning and would make it pointless, since s. 129(3) would also allow reference less than six months before the scheduled date of the plaintiff's statutory release despite the strict language of s. 129(2), according to which not later than six months before the statutory release date the Service is to refer the case to the Board together with all the information that, in its opinion, is relevant to it, where the Service is of the opinion that in the case of an offender serving a sentence that includes a sentence for an offence set out in Schedule I, the commission of the offence caused the death of or serious harm to another person and there are reasonable grounds to believe that the offender is likely to commit an offence causing death or serious harm to another person before the expiration of the offender's sentence according to law.

[40]            Further, s. 129(1) sets out a procedure of compulsory review of certain cases by the Service before the statutory release date of an offender serving a sentence of two years or more that includes a sentenced imposed for an offence set out in Schedule I or II or an offence set out in Schedule I or II that is punishable under s. 130 of the National Defence Act, at the commissioner's request. Section 129(3) makes no mention of a requirement that the case first have been reviewed by the Service at the commissioner's request and that the latter have referred the results obtained to the commissioner. That provision simply states that the commissioner may refer an inmate's case to the Board chairperson when the information brought to his attention gives him reasonable grounds to believe that, if released before the expiry of the sentence according to law, the inmate will commit an offence causing death or serious harm to another person. Section 129(2), for its part, provides for cases in which referral must be made to the Board as the result of reviews mentioned in s. 129(1). MacKay J. clearly summarized the applicable provisions set out in s. 129(1) and (2) of the Act in Kennedy v. National Parole Board (1991), 47 F.T.R. 55 (T.D.), at 61-62:

Here it is clear that by the amendments introduced in 1986, which substituted a presumptive release date for a mandatory release date, parliament intended, in the case of an inmate serving a sentence upon conviction for one of the serious offenses causing harm to others listed in the Schedule enacted with the amendments, that there be a review by the Correctional Service and in certain circumstances, here met, referral of the case to the Board. Once referred, only the Board can determine whether the inmate is to remain in custody for the remainder of his or her sentence or be released on mandatory supervision with or without additional conditions.

[41]            In creating the scheme set out in s. 129(3) of the Act, Parliament sought to ensure that information relevant to the probability that an inmate serving a sentence of two years or more would be likely, if released before the expiry of the sentence according to law, to commit an offence causing death or serious harm to another person would be provided to the Board so as to enable it to decide whether the inmate should be kept in detention or released. This sharing of information should occur regardless of whether the inmate was serving a sentence for an offence set out in Schedule I or II or not, and whether the information was drawn to the commissioner's attention six months at the latest before the inmate's release date or less than six months before that date. Not only does this represent a literal interpretation of s. 129(3), it also appears to me to be a reasonable result. The purpose of the legislative scheme contained in s. 129 of the Act was summarized by Strayer J. in Scott v. National Parole Board (1987), 14 F.T.R. 154 (T.D.), at 156, as follows:

One must keep in mind that the duty of the National Parole Board in such matters is to assess the current condition of the inmate, as it may change from time to time, in order to determine whether day parole would be warranted, on the one hand as likely to contribute to his rehabilitation at that stage of the serving of his sentence, and on the other hand would not represent an undue risk to society at large . . . I am satisfied that it is the purpose of the Act and Regulations to ensure that the Board when making decisions from time to time about parole is free to look at the best information available to it at that time . . .

[42]            The 1986 amendments to the Parole Act which created the system set out in s. 21.3(3) of that Act, and which is contained in s. 129(3) of the Act, resulted directly from the public interest in protecting society against persons likely to cause serious harm if released under mandatory supervision.^[4] The right of an inmate in a penitentiary to freedom mentioned in s. 127(1) of the Act is a qualified statutory right, not a constitutional right.^[5] It is only limited to the extent that it can be shown that this is necessary in order to protect the public.

[43]            In the case at bar, the plaintiff did not argue that there was no information obtained by the Commissioner during the six months preceding his statutory release date of August 13, 2001 which could have led the latter to reasonably believe that, if released before expiry of his sentence, he would commit an offence causing death or serious harm, which would justify referral of his case to the Board chairperson. He also did not argue that the Board did not have jurisdiction to order prohibition of his release and his continued detention since there was no "new" reliable and persuasive information obtained within six months prior to the plaintiff's scheduled statutory release date which could have persuaded him that if he was released before the expiry of his sentence according to law he would commit one or other of those offences. All the plaintiff submitted was that the Board did not act fairly in the circumstances and exceeded its jurisdiction by undertaking, first, review of his continued detention, and second, imposing continued detention on the plaintiff when there was a total absence of information that the plaintiff's victims had suffered serious harm. As mentioned above, proof that the offences committed by the plaintiff, and for which he was serving a sentence, caused serious harm to his victims under s. 129(2) of the Act, though relevant, is not necessary or conclusive in determining referral of his case by the commissioner to the Board chairperson under s. 129(3) of the Act.

[44]            In any case, I consider that there was sufficient information supporting the conclusion which could reasonably be arrived at by the Board, namely that there were reasonable grounds to believe that the plaintiff would commit an offence causing death or serious harm before expiry of his sentence. The commissioner considered the psychological and psychiatric assessments by Dr. Alfred Thibault on April 18, 2001 and by Nathalie Malhouf on May 9, 2001, the new documents seized in the plaintiff's cell on April 26, 2001 (newspapers, notes about the details of certain articles appearing in a newspaper dealing with the death and murder of young women, a copy of articles about a girl who had disappeared and a collection of prescribed medication), and the threatening letter sent to a co-resident of the Martineau CCC in concluding that the potential for reoffending and violence and the danger level of the plaintiff was high and continuing. All this information was obtained within six months before August 13, 2001, the plaintiff's statutory release date, as appears from the assessment prepared on May 30, 2001 in connection with a referral under s. 129(3)(a) of the Act for the making of a decision by the Board on continued detention of the plaintiff. The latter also submitted that when there is an ambiguity in the Act it should be resolved in the inmate's favour, in light of the general rule of statutory construction when the freedom of an individual is likely to be affected by such an interpretation. I do not find that s. 129(3) of the Act is ambiguous. Under s. 132, both the commissioner and the Board took into account all the factors they were required to consider, including information pertaining to the plaintiff's case that was available before the six-month period,^[6] and as the Board's decision was well within its discretion it cannot be said that the decision cannot be supported by a reasonable interpretation of the facts and the applicable law.

[45]            In my view, the commissioner did not infringe the Act when he referred the plaintiff's case to the Board for it to reconsider his eligibility for release under mandatory supervision, and it did not err in law in ordering prohibition of the release of the plaintiff and his continued confinement. Consequently, the application for judicial review is dismissed.

OTTAWA, Ontario

November 30, 2001

Certified true translation

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

                                                    FEDERAL COURT OF CANADA

                                                                 TRIAL DIVISION

                              NAMES OF COUNSEL AND SOLICITORS OF RECORD

FILE:                                                     T-1893-01

STYLE OF CAUSE:                           Andrew Rudnicki v. Attorney General of Canada

PLACE OF HEARING:                     Montréal, Quebec

DATE OF HEARING:                       November 20, 2001

REASONS FOR ORDER BY:        Rouleau J.

DATED:                                                November 30, 2001

APPEARANCES:

Daniel Royer                                                                      FOR THE PLAINTIFF

Éric Lafrenière                                                                  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

Montréal, Quebec