Date: 20010227
Docket: T-607-99
Neutral Citation: 2001 FCT 121
BETWEEN:
NICHOLAS BONAMY
Applicant
- and -
CHAIRPERSON, NATIONAL PAROLE BOARD OF CANADA
Respondent
REASONS FOR JUDGEMENT
LEMIEUX J.
INTRODUCTION:
[1] Nicholas Bonamy, (hereinafter "the applicant"), a federal inmate, is asking this Court to review, pursuant to s. 18.1 of the Federal Court Act, a decision of the Appeal Division of the National Parole Board (hereinafter "the Appeal Division") made on March 9th, 1999, which dismissed his appeal from a decision of the National Parole Board (hereinafter "the Board") dated July 14th, 1998, denying him day parole. With the consent of the parties, this judicial review application is being dealt with in writing.
FACTS:
[2] The applicant is currently serving an aggregate sentence of nine years for the following convictions: (1) on February 15th, 1996 on one count of theft for stealing $900,000 from a bank account; (2) on December 10th, 1997, of one count of theft and one count of uttering a forged document; and (3) on February 6th, 1998, of six separate offences relating to copyright infringement and fraud.
[3] On August 15th,1998, the applicant became eligible for day parole and for full parole on February 15th, 1999.
[4] At the time of his original conviction in the Province of Alberta, the applicant had been a resident of Victoria, British Columbia. He requested to be placed in a penitentiary near his home community in Victoria, pursuant to sections 28 and 29 of the Corrections and Conditional Release Act, 1992 S.C., c. 20 (hereinafter "the Act").
[5] On March 7th, 1996, a community assessment was requested by the Victoria District Office of Correctional Services Canada ( hereinafter the "CSC"), in furtherance of the applicant's request that he be placed in a penitentiary near his home community of Victoria. His request was refused.
[6] On May 30, 1996, he was given a copy of a report entitled "Statistical Information on Recidivism" prepared by the Board. According to this report, the applicant's recidivism rate was evaluated to be at a very low level.
[7] In July 1997, the applicant applied for day parole. His application included a preliminary release plan with a notation that a more formal plan, along with character references, would be submitted to the Board prior to a parole hearing. The applicant says these were provided on April 28th, 1995 to the Board. However, they were not provided to the CSC who had no opportunity to assess them.
[8] The Board informed the applicant, by letter dated October 2, 1997, that a hearing for day parole was scheduled for February 1998 at which time he would also be considered for full parole. This hearing was postponed at the applicant's request.
[9] On January 12, 1998, the applicant signed a Sharing of Information Form, which acknowledges a sharing of information took place at least fifteen days prior to the hearing.
[10] As noted, the applicant's parole hearing was cancelled and rescheduled several times due to a succession of misunderstandings and administrative errors. A hearing was eventually held on July 14th, 1998. The Board denied the application for day parole on the basis, inter alia, he had prior serious convictions for fraud; there were no indications that any programs or counselling had been entered into or successfully completed, and, the case management team was not supporting any form of conditional release. The following passage at page 3, summarizes the decision:
The Board concluded that you have no insight whatsoever as to what prompts your deceitful behaviour, thus, it would be unable to manage any of your risk factors. The Board has therefore concluded that your risk cannot be managed in the community and day parole is denied.
[11] The applicant appealed this decision to the Appeal Division pursuant to section 147 of the Act.
[12] On March 9, 1999, the Appeal Division affirmed the Board's decision. It found the Board properly applied the facts of the applicant's case to the pre-release criteria, and the decision was reached in a manner consistent with law, Board policy and the rules of fundamental justice.
ISSUES
[13] The applicant invokes sections 7, 9 and 15 of the Charter but, as I see it, his grounds are also based on breach of statute law. The applicant submits:.
(a) the Board failed to take into consideration all available information relevant to the case contrary to paragraph 101(1)(b) of the Act;
(b) the Board failed to make the least restrictive determination consistent with the protection of society contrary to paragraph 101(1)(d) of the Act;
(c) the Board failed to provide the applicant with all of the relevant information and reasons for decision to ensure a fair and understandable conditional release process contrary to paragraph 101(1)(f) of the Act;
(d) the Board violated the applicant's section 9 Charter rights when refusing his release on day parole, he having demonstrated he would not, by reoffending, present an undue risk to society before the expiry of his sentence. On this point, he further argues his release would have contributed to society's protection by facilitating his reintegration; and
(e) the Board violated his section 15 Charter rights when refusing to assess his character and treat him on the same level as other parolees when both met the same criteria set out in section 102 of the Act.
APPLICABLE PROVISIONS
[14] The Act provides :
| Purpose of conditional release
100. The purpose of conditional release is to contribute to the maintenance of a just, peaceful and safe society by means of decisions on the timing and conditions of release that will best facilitate the rehabilitation of offenders and their reintegration into the community as law-abiding citizens.
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Objet
100. La mise en liberté sous condition vise à contribuer au maintien d'une société juste, paisible et sûre en favorisant, par la prise de décisions appropriées quant au moment et aux conditions de leur mise en liberté, la réadaptation et la réinsertion sociale des délinquants en tant que citoyens respectueux des lois.
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| 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.
Criteria for granting parole
102. The Board or a provincial parole board may grant parole to an offender if, in its opinion,
(a) the offender will not, by reoffending, present an undue risk to society before the expiration according to law of the sentence the offender is serving; and
(b) the release of the offender will contribute to the protection of society by facilitating the reintegration of the offender into society as a law-abiding citizen.
1992, c. 20, s. 102; 1995, c. 42, s. 27(F).
141(1) Disclosure to offender
141. (1) At least fifteen days before the day set for the review of the case of an offender, the Board shall provide or cause to be provided to the offender, in writing, in whichever of the two official languages of Canada is requested by the offender, the information that is to be considered in the review of the case or a summary of that information.
Appeal to Appeal Division
147(1) An offender may appeal a decision of the Board to the Appeal Division on the ground that the Board, in making its decision,
(a) failed to observe a principle of fundamental justice;
(b) made an error of law;
(c) breached or failed to apply a policy adopted pursuant to subsection 151(2);
(d) based its decision on erroneous or incomplete information; or
(e) acted without jurisdiction or beyond its jurisdiction, or failed to exercise its jurisdiction.
...
147(4) Decision on appeal
(4) The Appeal Division, on the completion of a review of a decision appealed from, may
(a) affirm the decision;
(b) affirm the decision but order a further review of the case by the Board on a date earlier than the date otherwise provided for the next review;
(c) order a new review of the case by the Board and order the continuation of the decision pending the review; or
(d) reverse, cancel or vary the decision.
[emphasis mine]
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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.
Critères
102. La Commission et les commissions provinciales peuvent autoriser la libération conditionnelle si elles sont d'avis qu'une récidive du délinquant avant l'expiration légale de la peine qu'il purge ne présentera pas un risque inacceptable pour la société et que cette libération contribuera à la protection de celle-ci en favorisant sa réinsertion sociale en tant que citoyen respectueux des lois.
1992, ch. 20, art. 102; 1995, ch. 42, art. 27(F).
Communication de l'information
141(1) Délai de communication
141. (1) Au moins quinze jours avant la date fixée pour l'examen de son cas, la Commission fait parvenir au délinquant, dans la langue officielle de son choix, les documents contenant l'information pertinente, ou un résumé de celle-ci.
Droit d'appel
147. (1) Le délinquant visé par une décision de la Commission peut interjeter appel auprès de la Section d'appel pour l'un ou plusieurs des motifs suivants_:
a) la Commission a violé un principe de justice fondamentale;
b) elle a commis une erreur de droit en rendant sa décision;
c) elle a contrevenu aux directives établies aux termes du paragraphe 151(2) ou ne les a pas appliquées;
d) elle a fondé sa décision sur des renseignements erronés ou incomplets;
e) elle a agi sans compétence, outrepassé celle-ci ou omis de l'exercer.
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147(4) Décision
(4) Au terme de la révision, la Section d'appel peut rendre l'une des décisions suivantes_:
a) confirmer la décision visée par l'appel;
b) confirmer la décision visée par l'appel, mais ordonner un réexamen du cas avant la date normalement prévue pour le prochain examen;
c) ordonner un réexamen du cas et ordonner que la décision reste en vigueur malgré la tenue du nouvel examen;
d) infirmer ou modifier la décision visée par l'appel.
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[15] The National Parole Board Policy Manual states:
| 12 - Appeals
The role of the Appeal Division is to ensure that the law and the Board policies are respected, and that the rules of fundamental justice are adhered to and that the Board's decisions are based upon relevant and reliable information.
The Appeal Division reviews the decision-making process to confirm that it was fair and that the procedural safeguards were respected.
The Appeal Division has jurisdiction to reassess the issue of risk to reoffend and to substitute its discretion for that of the original decision makers, but only where it finds that the decision was unfounded and unsupported by the information available at the time
the decision was made.
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12 - Appels
Le rôle de la Section d'appel est de veiller à ce que la loi, les politiques de la Commission et les règles de justice fondamentale soient respectées et à ce que les décisions de la Commission soient fondées sur des renseignements pertinents et fiables.
La Section d'appel examine le processus décisionnel afin de s'assurer qu'il a été équitable et que les garanties procédurales ont été respectées.
La Section d'appel a compétence pour réévaluer la question du risque de récidive et substituer son jugement à celui des commissaires qui ont étudié le cas. Cependant, elle exerce cette compétence seulement si elle conclut que la décision est sans fondement et qu'elle n'a pas été appuyée par de l'information disponible au moment où la décision a été prise.
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ANALYSIS
(a) Failure to consider all applicable information
[16] The applicant alleges the Appeal Division failed to consider all available information relevant to the case, namely his release plan and character references put forth, in breach of paragraph 101(1)(b) of the Act.
[17] The respondent submits that "it is not a requirement in all cases that the Board consider a release plan from an inmate applying for day parole" because in accordance with section 102 of the Act, which deals with the grant of parole, the Board had concluded there was no way to manage his risk in the community. As counsel for the respondent wrote, the examination of an inmate's release plan is conditional upon a decision there is a way to manage an inmate's risk in the community. He quotes Chapter 2.1 of the Board's Policy Manual.
[18] In Knapp v. Canada (Attorney General) et al. (1997), 138 F.T.R. 201, (T.D.), aff'md (1998), 229 N.R. 22, Noël J., as he then was, stated:
[33] _The applicant also contends that he should have undergone a community assessment.__Paragraph 132(1)(d) of the Act provides as a further factor relevant to the inquiry as to the_ likelihood of recidivism, "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".__According to the applicant, the Board could not make a determination under this paragraph without first having the offender undergo a community assessment.__The Appeal Division concluded however that community assessments are only made when supervision programs capable of managing the risk are in place.__It held in effect that no such program was in place.
[34] The scheme of the Act suggests that the decision to order or not to order a community assessment is discretionary.__The case management team concluded that there were no resources in place which could adequately supervise the applicant within the community having regard to his particular needs.__The Appeal Board adopted this view and hence held that a community assessment was not in order. Nothing suggests that in so doing, the Board acted on wrong principle or by reference to irrelevant or improper considerations. [emphasis mine]
[19] In its response to Mr. Bonamy, the Appeal Division found:
In your case, given the conclusions reached by the members in relation to your level of risk, we find that the Community Assessment verifying your release plan would not have assisted the Board in reaching their determination.
[20] As I see it, the Board is given a discretion in discharging its obligation to consider all available information including information obtained by the offender. That information must be relevant. I agree with counsel for the respondent the Board need not have, in the circumstances of this case, considered the applicant's release plan and character references.
[21] As a matter of statutory construction and statutory imperative, an overeaching principle to the grant of parole is undue risk to society. The Board determined the applicant could not manage his risk in the community. Once that decision is made, the release plan became irrelevant because it deals with how releases should be implemented. My comments also apply to the applicant's argument that a community assessment should have been made by the CSC.
(b) The least restrictive determination
[22] The applicant alleges, because he is a low risk to reoffend, the Appeal Division failed to make the least restrictive determination consistent with the protection of society, contrary to paragraph 101 (1)(d) of the Act. He substantiates this allegation by emphasizing his positive score on the statistical tool known as the Statistical Information on Recidivism (SIR) and the fact he has not been convicted of violent offences.
[23] The respondent submits the SIR is only one factor the Board is required to examine in making a risk assessment. It is argued this tool is based on static factors at the beginning of the inmate's incarceration and does not provide information on the inmate's behaviour during incarceration. In addition, the respondent submits the Courts have been generally reluctant to interfere with findings of fact made by the Board, if they are not patently unreasonable.
[24] Justice Dubé in Hay v. National Parole Board et al. (1991), 48 F.T.R. 165, (T.D.), at paragraph 12, said 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". I agree with that statement and I find no basis for the allegation the Appeal Division erred when it found, having considered all of the evidence, the Board's decision was the least restrictive measure open to it.
(c) Failure to share information
[25] The applicant further alleges the Board failed to share all the information to be considered or a summary of it as required by subsection 141(1) of the Act. The applicant supports this allegation by making reference to the fact the Board made some erroneous statements during his hearing.
[26] The respondent submits the Appeal Division, in its decision, acknowledged the statement by the Board, regarding the applicant's birth certificate being in one name and driver's license in another, was erroneous. Actually, the Appeal Division stated at page 4 of its decision:
We recognize that the RCMP Report was not shared with you, however, we find that a gist was provided according to policy. Therefore, all the information which the Board had on your file at the time of your hearing, was shared accordingly. Although it is regrettable that the Board made the mistake of stating erroneous information, we do not find that you were unduly prejudiced in any way as to cause a change in the Board's overall risk assessment.
[27] The applicant has not persuaded me the Board's reliance on this non shared information, to the degree it was, affected its overall decision. Madam Justice Reed considered a similar situation in Teed v. Canada (National Parole Board), [1990] F.C.J. No. 260, (T.D.), and determined:
There is no reason to find that the Board in this case relied on those references as playing any substantial role in its decision. The record clearly indicates that the Board was aware that the Applicant was convicted of assault only. It is also clear that its Decision was based on overallassessments of the applicant's personality and behaviour characteristics as well as on assessments which indicated that he should undergo further treatment before being released. As indicated, Courts are deferential to decisions of Boards when those decisions fall within the particular expertise of the Board. In this case I could not find that the Board based its decision on a misapprehension of the facts, or that it made a decision in a perverse or capricious manner or without regard to the facts before it. [emphasis mine]
(d) Section 9 of the Charter and the assessment of risk
[28] The applicant also argues the Appeal Division violated his rights under section 9 of the Charter, because the Board failed to properly assess his risk. The applicant is serving a sentence as a result of several criminal convictions and is in no way being arbitrarily detained. Furthermore, "Conditional release from incarceration is an enhancement, not a deprivation, of the measure of liberty the convict has the right to enjoy" stated by Mahoney J.A. for the Federal Court of Appeal in Dempsey v. Canada (1987), 80 N.R. 159, at page 160.
[29] I hold the Appeal Division's refusal to grant day parole does not amount to arbitrary detention or imprisonment.
(e) Section 15 of the Charter
[30] The applicant also alleges the Appeal Division violated his rights under section 15 of the Charter by discriminating against him, in that he should have obtained day parole because he has been in a remand centre serving his sentence and is treated more harshly there than other inmates in penitentiaries. It is my conclusion section 15 is not engaged in the present case. The Supreme Court of Canada has long since established in Andrews v. Law Society of British Columbia, [1989] 1 S.C.R. 143:
[D]iscrimination may be described as a distinction, whether intentional or not but based on grounds relating to personal characteristics of the individual or group, which has the effect of imposing burdens, obligations, or disadvantages on such individual or group not imposed upon others, or which withholds or limits access to opportunities, benefits, and advantages available to other members of society. Distinctions based on personal characteristics attributed to an individual solely on the basis of association with a group will rarely escape the charge of discrimination, while those [page175] based on an individual's merits and capacities will rarely be so classed.
[31] More recently in Law v. Canada (Minister of Employment and Immigration), [1999] 1 S.C.R. 497, at 529, the Supreme Court has stated in relation to rights protected under section 15 of the Charter that:
[T]he purpose of s. 15(1) is to prevent the violation of essential human dignity and freedom through the imposition of disadvantage, stereotyping, or political or social prejudice, and to promote a society in which all persons enjoy equal recognition at law as human beings or as members of Canadian society equally capable and equally deserving of concern, respect and consideration.
[32] Recently, Linden J.A., for the Federal Court of Appeal, concluded in Sauvé v. Canada (Chief Electoral Officer), [2000] 2 F.C. 117, at 194, the status of prisoner did not constitute an analogous ground of discrimination under section 15:
_In my view, the status of prisoner does not constitute an analogous ground for purposes of section 15 of the Charter in this case, and I would therefore conclude that there has been no violation of section 15 of the Charter here.
[33] Given this conclusion, there is no need to pursue the analysis under section 15.
DISPOSITION
[34] For all these reasons, this application for judicial review is dismissed.
"François Lemieux"
J U D G E
OTTAWA, ONTARIO
FEBRUARY 27, 2001
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