Date: 20020503
Docket: T-1184-01
Neutral citation: 2002 FCT 508
Ottawa, Ontario, the 3rd day of May, 2002
PRESENT: THE HONOURABLE MR. JUSTICE MICHEL BEAUDRY
ENTRE:
ROBERT DUPUIS
Applicant
and
ATTORNEY GENERAL OF CANADA
Respondent
REASONS FOR ORDER AND ORDER
[1] This is an application by the applicant for judicial review of the decision of the Appeal Division of the National Parole Board [hereinafter "the Appeal Division"] dated May 23, 2001, affirming the decision of the National Parole Board [hereinafter "the NPB"] dated
February 12, 2001, ordering the continued detention of the applicant and ordering that he not be released from imprisonment.
ISSUES
[2] Did the Appeal Division make a patently unreasonable decision based on an erroneous finding of fact by upholding the finding by the NPB that there were no supervision programs available that would protect the public from the risk the offender might otherwise present if he were released until the expiration of his sentence according to law?
[3] Did the Appeal Division err in law by affirming the decision of the NPB that there were no supervision programs available, having regard to all the relevant information provided by the Correctional Service of Canada [hereinafter "the CSC"] and the applicant?
[4] The answer to both of these questions is no.
FACTS
[5] The applicant is serving a penitentiary sentence of 11 years and 6 months for attempted murder, breaking and entering, assault, possession of a weapon and sexual assault.
[6] Under section 127 of the Corrections and Conditional Release Act [hereinafter "the Act"], the applicant's statutory release date was April 28, 2001, after he had served two thirds of his sentence. The warrant of committal expires on February 26, 2005.
[7] Under subparagraph 129(2)(a)(i) of the Act, the CSC may refer a case to the NPB to examine the possibility of detaining an offender during the period of his or her statutory release.
[8] On February 12, 2001, the NPB ordered that the applicant be detained until the expiration of his sentence on the ground that it was satisfied that the applicant was likely, if released, to commit an offence causing the death of or serious harm to another person before the expiration of his sentence according to law. Moreover, the NPB found that there were no supervision programs available that were suited to the needs of the applicant and that would offer adequate protection to the public from the risk the applicant presented.
[9] The applicant appealed that decision to the Appeal Division.
[10] On May 23, 2001, the Appeal Division affirmed the decision of the NPB and accordingly dismissed the applicant's appeal on the ground that the decision was supported by credible and persuasive information and was rendered in accordance with the law and policies of the NPB.
[11] The decision of the Appeal Division is now the subject of this application for judicial review.
DECISION CHALLENGED
[12] The Appeal Division, chaired by Mr. Charbonneau, stated, at page 6 of the decision:
In the meantime, we agree with the Board's decision to order detention. We find that the decision is reasonable in the circumstances, is supported by relevant, credible and persuasive information and was rendered in accordance with the law and the Detention policies of the Board. You and your assistant had ample opportunity to present your case and to answer the Board's concerns and we conclude that the hearing was held and conducted in respect of the principles of fundamental justice.
Accordingly, the Appeal is dismissed and the decision of February 12, 2001, affirmed.
SUBMISSIONS OF THE APPLICANT
[13] The applicant submitted that the decision of the NPB was patently unreasonable since it was unreasonable to conclude that there were no supervision programs available that would offer adequate protection to the public.
[14] The applicant contended that the Appeal Division failed to take into consideration all the relevant information in reaching its decision.
SUBMISSIONS OF THE RESPONDENT
[15] The respondent contended that the decision of the NPB was reasonable and that the Appeal Division was correct in affirming that decision because the applicant still presents an unacceptable risk to society; consequently, the NPB was correct to order his continued detention.
[16] The respondent submitted that in the applicant's case, the Appeal Division assessed the relevance of all the available information in accordance with the Act.
RELEVANT LEGISLATION
[17] Section 101 of the Act sets out the purpose and principles of conditional release, detention and long-term supervision.
| 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;
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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;
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[18] Subsection 127(3) of the Act defines the statutory release date of an offender.
| 127. (3) Subject to this section, the statutory release date of an offender sentenced on or after November 1, 1992 to imprisonment for one or more offences is the day on which the offender completes two thirds of the sentence.
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127. (3) La date de libération d'office d'un individu condamné à une peine d'emprisonnement le 1er novembre 1992 ou par la suite est, sous réserve des autres dispositions du présent article, celle où il a purgé les deux tiers de sa peine.
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[19] Under subsection 130(3) of the Act, the NPB may, as an exception, order that an offender not be released from imprisonment and order his or her continued detention.
| 130. (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
(a) in the case of an offender serving a sentence that includes a sentence for an offence set out in Schedule I, or for an offence set out in Schedule I that is punishable under section 130 of the National Defence Act, that the offender is likely, if released, to commit an offence causing the death of or serious harm to another person or a sexual offence involving a child before the expiration of the offender's sentence according to law,
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130. (3) Au terme de l'examen, la Commission peut, par ordonnance, interdire la mise en liberté du délinquant avant l'expiration légale de sa peine autrement qu'en conformité avec le paragraphe (5) si elle est convaincue :
a) dans le cas où la peine d'emprisonnement comprend une peine infligée pour une infraction visée à l'annexe I, ou qui y est mentionnée et qui est punissable en vertu de l'article 130 de la Loi sur la défense nationale, que le délinquant commettra, s'il est mis en liberté avant l'expiration légale de sa peine, soit une infraction causant la mort ou un dommage grave à une autre personne, soit une infraction d'ordre sexuel à l'égard d'un enfant;
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[20] Section 132 provides a non-exhaustive list of factors that the Board must take into consideration before ordering that an offender not be released.
| 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.
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132. (1) Le Service et le commissaire, dans le cadre des examens et renvois prévus à l'article 129, ainsi que la Commission, pour décider de l'ordonnance à rendre en vertu de l'article 130 ou 131, prennent en compte tous les facteurs utiles pour évaluer le risque que le délinquant commette, avant l'expiration légale de sa peine, une infraction de nature à causer la mort ou un dommage grave à une autre personne, notamment :
a) un comportement violent persistant, attesté par divers éléments, en particulier:
(i) le nombre d'infractions antérieures ayant causé un dommage corporel ou moral,
(ii) la gravité de l'infraction pour laquelle le délinquant purge une peine d'emprisonnement,
(iii) l'existence de renseignements sûrs établissant que le délinquant a eu des difficultés à maîtriser ses impulsions violentes ou sexuelles au point de mettre en danger la sécurité d'autrui,
(iv) l'utilisation d'armes lors de la perpétration des infractions,
(v) les menaces explicites de recours à la violence,
(vi) le degré de brutalité dans la perpétration des infractions,
(vii) un degré élevé d'indifférence quant aux conséquences de ses actes sur autrui;
b) les rapports de médecins, de psychiatres ou de psychologues indiquant que, par suite d'une maladie physique ou mentale ou de troubles mentaux, il présente un tel risque;
c) l'existence de renseignements sûrs obligeant à conclure qu'il projette de commettre, avant l'expiration légale de sa peine, une infraction de nature à causer la mort ou un dommage grave à une autre personne;
d) l'existence de programmes de surveillance de nature à protéger suffisamment le public contre le risque que présenterait le délinquant jusqu'à l'expiration légale de sa peine.
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ANALYSIS
Standard of Review
[21] In Costiuc v. Canada (Attorney General), [1999] F.C.J. No 241 (F.C.T.D.), at paragraph 6, Madam Justice Tremblay-Lamer defined the legal situation that will provide grounds for this Court to review a decision of the Appeal Division of the NPB. She stated:
The Appeal Division's function is to ensure that the NPB has complied with the Act and its policies and has observed the rules of natural justice and that its decisions are based on relevant and reliable information. It is only where its findings are manifestly unreasonable that the intervention of this Court is warranted.
[22] The Court will not intervene in this case since, contrary to what the applicant contended, the decision of the Appeal Division does not meet the test stated by Tremblay-Lamer J. in Costiuc, supra.
[23] With respect to the first question, I am satisfied that the Appeal Division did not make a patently unreasonable decision based on an erroneous finding of fact by affirming the finding by the NPB that there were no supervision programs that would adequately protect the public from the risk the offender might otherwise present if he were released until the expiration of his sentence according to law.
The Process of Releasing an Offender
[24] Under section 127 of the Act, an offender is entitled to be released after completing two thirds of his or her sentence. In the applicant's case, he was entitled to be released as of April 28, 2001. The NPB may, as an exception, order that an offender not be released from imprisonment and order his or her continued detention under subsection 130(3) of the Act. To do so, the NPB must be satisfied "... that the offender is likely, if released, 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" under paragraph 130(3)(a) of the Act. To satisfy itself of this, the NPB must take into consideration the non-exhaustive list of factors in subsection 132(1) of the Act. It should be noted that according to Cartier v. Canada (Attorney General), [2001] F.C.J. No. 1089 (F.C.T.D.), the use of the expressions "any factor that is relevant" and "including" in subsection 132(1) confirms that the NPB should make an overall assessment of the risk an offender presents, and that this would be in keeping with the purpose and objective of the protection of society.
The Decision of the NPB
[25] Under paragraph 101(a) of the Act, the NPB's primary objective is to protect society, and so, according to Noël J. in Knapp v. Canada (Attorney General), [1997] F.C.J. No. 1535 (F.C.T.D.), its powers are in fact exercised, as part of a more overall assessment of the risk that an offender presents. In its assessment of the risk, the NPB is not required to take into consideration each and every factor listed in subsection 132(1) if it is not appropriate or relevant. In this case, the NPB found that the applicant was a high risk individual. At pages 3 and 5 of its decision, it said:
Your life has been characterised by adaptation problems, emotional instability, substance abuse, mental health problems, previous violation of parole, all problems leading the professionals to conclude that you represent a high risk individual.
There is, in your case, no reliable information to the effect that you are planning to commit an offence causing the death of or serious harm to another person before the expiration of your sentence. It is pointed out, however, that your violent behaviours are very hard to predict and that your actions are not always planned, as showed by your previous very serious offence. The Board has to consider the fact that you did not participate in programs, psychological follow-up or treatments specific to your problems in a meaningful and complete way, as quoted by the judge in his sentence. Due to these facts and needs, we have to come to the conclusion that even if you are not planning it, there is nothing that restrains you from reoffending in a violent acting-out against a person.
[26] The NPB may take into consideration or not the availability of supervision programs that would offer adequate protection to the public, depending on whether that factor is appropriate or relevant. In this case, the NPB found that the applicant represented a high risk individual and stated at page 6 of its decision:
The Board has examined the availability of supervision programs that would offer adequate protection to the public from the risk you might otherwise present until the expiration of your sentence according to law. Today, taking into account that you meet the detention criteria and according to the information available, the Board comes to the conclusion that there are no resources available to supervise you in the community with the security need to protect the society and to provide you with the specialised care that you need. We have no indication of a community assessment in that sense made by C.S.C.
That excerpt clearly shows that the NPB did examine the availability of supervision programs that would offer adequate protection to the public. However, the NPB found that there were no programs available that were suitable for the applicant given the high level of risk he presented.
Decision of the Appeal Division
[27] The role of the Appeal Division is described at the beginning of its decision as follows:
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.
[28] The Appeal Division examined the three aspects of the applicant's appeal: first, the reasonableness of the decision; second, the assessment of risk; and third, the duty to act fairly. The Appeal Division was completely satisfied with the decision of the NPB. At page 5,
Mr. Charbonneau of the Appeal Divison said:
... The record is very clear about the existence of a pattern of persistent, violent behaviour, past and present, which has been clearly established in many ways and from different sources. Psychiatric and psychological assessments lead to the conclusion that you are a high risk to re-offend violently. The Board has also rightly concluded that, at the moment, there are no resources available in the community to ensure adequate supervision and to manage safely your high risk of re-offending violently.
[29] With respect to the thoroughness of the NPB's decision, the Appeal Division stated at page 5 of its decision:
... The decision is quite exhaustive in the review of all the relevant elements of your case. It is well articulated and reasoned. We do not feel it necessary to review it in detail; however, we suggest that you carefully read it with the assistance of your case managers.
[30] The Appeal Division therefore affirmed the decision of the NPB. The applicant presented such a high level of risk that there was no supervision program available that could adequately protect society. To justify its conclusion, the Appeal Division observed, at page 5 of its decision:
Your assistant relies upon the Board's statement that, "there is, in your case, no reliable information to the effect that you are planning to commit an offence causing the death of or serious harm to another person before the expiration of your sentence" in order to discredit the Board's finding that, even though "you are not planning it, there is nothing to restrain you from re-offending in a violent acting-out against a person". Our answer is that the law does not require evidence of planning, immediately or otherwise, a violent offence. Rather, the Board must be satisfied that the inmate will re-offend violently on the basis of all the information presented to the Board from the file and as a result of the hearing. In our reading of the referred paragraph as a whole, as well as the whole decision itself, we find that the Board reached the right conclusion....
[31] Thus, the NPB took into consideration, first and foremost, the fact that the applicant met the criteria for continued detention set out in subsection 132(1) and went on to conclude that, based on the relevant information available, there were no resources that could both protect society and meet the applicant's particular needs.
[32] With respect to the second issue, I am satisfied that the Appeal Division did not err by affirming the decision by the NPB that there were no supervision programs available, taking into consideration all the relevant information provided by the CSC and the applicant.
[33] Paragraph 101(b) of the Act provides that the NPB must take into consideration all available information that is relevant. Information is relevant insofar as it may apply, in the circumstances, to the case being considered. In Bonamy v. Canada, [2001] F.C.J. No. 273 (F.C.T.D.), Mr. Justice Lemieux observed, at paragraphs 20 and 21:
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.
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.
[34] It is plain from the decision of the NPB that in the applicant's case, it assessed the relevance of all the information available to it, in accordance with the Act. Moreover, the NPB examined the availability of supervision programs that would offer adequate protection to society from the risk the applicant presented but determined that there were no resources available for supervision of the applicant to guarantee the safety of the public. It nonetheless left the door open for another review in order to give CSC the opportunity to assess the case on the basis of the new findings contained in the recent neuropsychological report. At page 6 of its decision, the NPB states the following:
The Board will be ready to see you again in a hearing before the one-year review date if your case management team supports the possibility and the existence of such a resource. The Board considers that the recommendations of the judge are still very important that you receive a treatment so to protect society. Today, during this hearing, your parole officer told the Board that your treatment plan will be shortly adjusted and implemented in accordance with the new findings of the neuropsychological assessment.
[35] The applicant submitted that the NPB was too brief in its analysis of the program he had suggested, in particular Kirkpatrick House in Ottawa.
[36] On the contrary, I believe that the NPB considered that program but, having regard to the risk the applicant presented, concluded that that program, along with others it had examined, did not adequately guarantee that the public would be protected.
CONCLUSION
[37] For these reasons, this application for judicial review is dismissed without costs.
ORDER
THE COURT ORDERS that:
1. The application for judicial review be dismissed without costs.
"Michel Beaudry"
Judge
Certified true translation
Sophie Debbané, LLB
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
COURT FILE NO.: T-1184-01
STYLE OF CAUSE: ROBERT DUPUIS and ATTORNEY GENERAL OF CANADA
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: April 8, 2002
REASONS FOR ORDER AND ORDER OF THE HONOURABLE MR. JUSTICE
MICHEL BEAUDRY
DATED: May 3, 2002
APPEARANCES:
Daniel Royer For the Applicant
Pierre Tabah
Michèle Lavergne For the Respondent
SOLICITORS OF RECORD:
Labelle, Boudrault, Côté et Associés For the Applicant
Montréal, Quebec
Department of Justice For the Respondent
Montréal, Quebec
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