Date: 20000908
Docket: T-872-99
BETWEEN:
PAUL UNRAU
Applicant
- and -
THE ATTORNEY GENERAL OF CANADA
Respondent
REASONS FOR ORDER
MacKAY J.
[1] These reasons concern an application for judicial review of a decision of the Appeal Division of the National Parole Board made on April 13, 1999, which dismissed an appeal by the applicant from a decision of the Board dated December 10, 1998. In his application, Mr. Unrau seeks to have both the April 1999 decision and, insofar as it may be necessary, the December 1998 decision reviewed and set aside by this Court.
[2] While the later decision is concerned with the earlier one, the Federal Court Act1 and the Federal Court Rules, 19982 provide that ordinarily, unless the Court otherwise orders, proceedings for judicial review concern a single decision. It is urged by the applicant that in this case where the decision in question is one of an appeal tribunal, the Court should review both the original decision and that of the appellate body or should follow the process for redress adopted by Mr. Justice Campbell in Mackie v. Canada (Attorney General)3. There, his lordship, in judicial review of another decision of the same Appeal Division as in this case, finding that the Appeal Division erred in the same manner as the National Parole Board had, in originally considering an application for parole, set aside the impugned decision of the Appeal Division and referred the matter back with directions that it be returned to the National Parole Board for reconsideration in view of its error in law. That decision demonstrates the Court's preparedness to fashion an effective remedy where it has set aside the decision of an appellate tribunal.
[3] In this case, in my opinion, it is the decision of the Appeal Division that is properly before the Court and review of its decision, if a redressable error be found, can lead to appropriate relief by or through direction to the Appeal Division. Thus, the appellate procedure designed by Parliament is preserved subject only to judicial review of the Appeal Division's decision for perceived errors of law, or even of fact, that would warrant intervention and referring the matter for reconsideration, by the body designated by Parliament under legislation.
[4] In my view, where the statutory scheme provides for an intermediate appeal of a decision of an administrative tribunal, a reviewing Court under section 18.1 of the Federal Court Act is bound to show considerable deference, particularly on questions of fact and inferences made from the evidence before the tribunal. In most cases, intervention by the Court will be based on whether the appellate tribunal committed an error of law in its review of the tribunal's decision. In my opinion, no such error was committed in this case and the Court will not interfere with the decision of the Appeal Division.
[5] The applicant, Mr. Unrau, was serving a six year sentence at the Drumheller Institution for trafficking in narcotics. He entered a guilty plea to charges of trafficking in heroin and cocaine. After serving the requisite minimum portion of his sentence, the applicant became eligible for day parole on September 21, 1998. He became eligible for full parole and had a hearing before the National Parole Board on December 10, 1998. Immediately following the hearing, Mr. Unrau was told that his request was denied. He then appealed the Board's decision to the Appeal Division, which dismissed the appeal.
[6] The applicant alleges that the Appeal Division made substantial errors of law and fact. Specifically, he says that the Appeal Division used the wrong test for parole eligibility, or misapplied the right test. As to errors of fact, he alleges that there were errors of fact that were made in a capricious fashion without regard to the material that was before the board. The applicant also alleges procedures of the Board that did not accord with the principles of natural justice.
Error of law
[7] The applicant argues that the Board, and in turn the Appeal Division, erred in its application of the legal test for granting full and day parole. It is argued that the Board erred in interpreting the term "undue risk to society" as it is used in subsection 102(a) of the statute:
| 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. |
[emphasis added]
|
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.
|
[8] It is said by the applicant that the factors considered by the Board do not support a finding that the applicant's release into the community would present an "undue risk to society". Having reviewed the record and the decision, there is no evidence to say that the Board only considered whether there was any risk, not whether the risk, if found, was undue. The finding of the Board in this regard was confirmed by the Appeal Division. In my view, the Board is given the task of determining, based on the evidence before it, whether a risk of reoffending exists and whether it an "undue" risk in light of the seriousness of the offence(s) an applicant for parole has committed. This is a mixed question of fact and law, and one that is squarely within the expertise of the Board first, and of the Appeal Division as a question of law where it is raised on appeal, as in this case. In fact, the Board is in the best position to determine this question based upon the entirety of the applicant's file, including assessments of him and any representation he may make. In my opinion, the finding of the Appeal Division that the Board's finding in this regard was reasonable on the evidence before it, was itself a reasonable decision, and indeed it was correct. Where there is evidence to support the conclusion arrived at, the conclusion is reasonable and the Court will not intervene, even if the Court's view of the evidence might differ from that of the Board and of the Appeal Division.
Error of Fact
[9] The applicant states that the Board made a number of errors of fact in a capricious manner without regard to the evidence before it. In particular, it is said that the Board erred in concluding that Mr. Unrau refused to engage in programming offered at the institution, that he had less than favourable results in three particular courses taken, that he was "pulling away" from his case management team, and in its implied conclusion that he was violent, by its reference to Mr. Unrau that he has "not generally been violent." In my opinion, the Appeal Division did not err in law in finding there was evidence to support the conclusions reached by the Board, apart from any conclusion regarding violence.
[10] As for the finding of the Board that the applicant has "not generally been violent", in my interpretation of the use of the phrase in the Board's decision, the Board considered it to be one of the positive elements of the applicant's case:
| The Board is also mindful that his history of release is not positive but he has not generally been violent. [emphasis added] |
The Board, in making this statement, that Mr. Unrau has not shown a general predisposition to violence, was describing a positive factor, and it was not expressing a negative conclusion that he had demonstrated violence. The Appeal Division did not err in concluding that this statement of the Board was reasonable and not in error.
Fairness of the Hearing
[11] Before the Appeal Division, the applicant argued that his right to a fair hearing was interfered with by not being permitted to respond to questions about the programming he had taken while incarcerated. The Appeal Division concluded, after reviewing the tape made of the hearing and after considering the applicant's submissions, that the hearing was fair. I have reviewed the transcript of the hearing prepared by the applicant and I agree with the Appeal Division. From the transcript, the hearing appears to have been relatively informal and Mr. Unrau was given the opportunity to "make his case" and respond to the concerns of the Board and the concerns expressed to the Board by the assessments of those in the institution. The transcript of the Board's hearing provides no evidence that the applicant was denied an opportunity to respond to concerns about him and his record.
Conclusion
[12] The Appeal Division did note that the Board made some inaccurate findings, but concluded that the Board's hearing was fair and that the decision it made was reasonable on the evidence before the Board. In reviewing the decision of the Appeal Division, it is my opinion that it did not make any error of law or procedure that would justify the intervention of this Court on judicial review.
[13] For the reasons set out, the application for judicial review is dismissed.
(signed) W. Andrew MacKay
JUDGE
OTTAWA, Ontario
September 8, 2000
__________________
1 R.S.C. 1985, c. F-7, s. 18.1.
2 SOR/90-106, R. 302.
3 [1998] F.C.J. No. 1731.
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