Knapp v. Canada (Attorney General), docket T-641-97

Date: 19971113

Docket: T-641-97

BETWEEN:

     BRUCE LEROY KNAPP

Applicant

- and -

THE ATTORNEY GENERAL OF CANADA

AND THE NATIONAL PAROLE BOARD

Respondents

     REASONS FOR ORDER

NOËL, J.:

[1]      This is an application for judicial review of a decision by the Appeal Division of the National Parole Board, confirming the Board's order that the applicant, an inmate at Warkworth Institution, be detained beyond his statutory release date.

FACTS

[2]      On February 8, 1990, the applicant plead guilty to the offences of attempted murder, sexual assault, and unlawful confinement.¹ He was sentenced to a term of eight and one-half years. The applicant's sentence provided for a statutory release date of October 18, 1995. On October 18, 1995, the Board, acting under the terms of the Corrections and Conditional Release Act² (the Act), decided that the applicant was not eligible for statutory release.

[3]      The Board's October 18 decision was based on the findings that by virtue of the seriousness of the applicant's current offence, the use of a weapon, explicit threats of violence and the brutality with which it was committed, he had established a pattern of persistent violent behaviour. The Board also took into account the applicant's "substantial degree of indifference" to the consequences of his crime on the victim, the lack of any evidence which would indicate that the applicant's offence was the result of mental illness, the admission that he took conscious decisions not only to commit the brutal sexual assault but also to murder his victim and a psychological profile prepared by Dr. Barbaree depicting the applicant's lack of emotional and psychological progress in coming to terms with his offence.³

[4]      The applicant appealed the Board's decision to the Appeal Division on the ground that the Board incorrectly determined that a pattern of persistent violent behaviour had been established based solely on the seriousness of the current offence. On February 1, 1996 the Appeal Division dismissed the appeal and affirmed the Board's decision.

[5]      The Appeal Division agreed with the Board's finding that the number of offences committed by the offender is not the sole factor to be considered when making a determination as to a pattern of persistent violent behaviour. The Appeal Division also concluded that the applicant had been afforded ample opportunity to be heard before the Board arrived at its decision.⁴

[6]      On September 18, 1996 the Board held an annual review of the detention order as required by section 131 of the Act and confirmed its October 18 decision.⁵

[7]      The applicant appealed the Board's annual review decision. This second appeal was also dismissed by the Appeal Division, March 5, 1997, a decision in respect of which the applicant now seeks judicial review.⁶

GROUNDS FOR REVIEW

[8]      The applicant's grounds can be divided into three parts: first, a Charter challenge of section 132 of the Act; second, review for procedural fairness; third, review for legal error stemming from the alleged violation by the Board of certain specific provisions of the Act.⁷

[9]      Section 132 of the Act sets out certain relevant factors the Board is to consider in the context of a detention review. The Board is directed to consider:

... 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.

[10]      The applicant argues that the Board"s initial conclusion (subsequently endorsed by the Appeal Division) that by virtue of one criminal episode he had established a "pattern of persistent violent behaviour" constitutes an error in law. The applicant argues that a single criminal episode is insufficient to establish a "pattern".

[11]      Furthermore, the applicant contends that the Appeal Division's affirmation of the Board's finding on the question of the existence of a "pattern", coupled with its reasoning set out in the following passage, renders section 132 subject to constitutional challenge:

The Appeal Division finds that the emphasis in reviewing any case referred under sections 129, 130 or 131 of the C.C.R.A. must be on determining "the likelihood of the commission of an offence causing the death of or serious harm to another person before the expiration of an offender's sentence according to law" and not on whether one of the relevant factors has been satisfied.8

[12]      In particular, it is the applicant's submission that the Board has given section 132 a "standardless sweep" thereby exposing the section to a Charter challenge for "vagueness" and/or "overbreadth".

[13]      With respect to procedural fairness, the applicant argues that the Board's position, that it is entitled in the context of a detention hearing to rely on its own underlying body of knowledge with "little or no regard" for information bearing upon risk assessment advanced by the offender, is inconsistent with the duty to act fairly.

[14]      The applicant further argues that having regard to what he believes to be "serious questions" raised about the accuracy of Dr. Barbaree's report, the Board's refusal to provide the applicant with a "second opinion" violates the principles of fundamental justice. In the same vein, the applicant argues that, in the circumstances of this case, he should have been afforded an opportunity to examine Dr. Barbaree with respect to his report.

[15]      Subsection 132(1) of the Act includes among the factors relevant to a detention review the "availability of supervision programs that would offer adequate protection to the public". The applicant contends that the decision of the Board denying him a community assessment breaches the Board's duty to act in accordance with the principles of fairness as required by this provision.

[16]      Finally, the applicant contends that in light of the above arguments the Board, in deciding as it did, ignored one of the fundamental principles which governs its mission under the Act, namely, to "make the least restrictive determination consistent with the protection of society".⁹

ANALYSIS AND DECISION

[17]      The applicant's first contention is that the Board erred in finding a "pattern of persistent violent behaviour" by reference to a single criminal offence.

[18]      It is clear from the language of paragraph 132(1)(a) that the legislator contemplated the possibility that "a pattern of persistent violent behaviour" could be said to exist, regardless of the actual number of offences committed by the offender, provided there is "evidence" to support such a finding. That the "number of offences" is one example amongst many of the type of evidence which can establish a pattern highlights the fact that what is contemplated by the section is a pattern of violent "behaviour" and not one of violent "offences". Each example provided by paragraph 132(1)(a) is disjunctive. Given that the Board concluded that the offender's case met five of the seven listed examples set out in the paragraph and held that other factors of relevance were also present, it cannot be said that the Board erred in its interpretation of the legislation. This brings us to the second component of the applicant's argument related to this point: the constitutional question.

[19]      The applicant's Charter challenge to section 132 is vague in its own right. As mentioned earlier, the applicant takes issue with the Appeal Division's assertion that the emphasis of a section 132 inquiry must be on determining "the likelihood of the commission of an offence ... before the expiration of an offender's sentence according to law" and not on whether one or more of the relevant factors has been satisfied. Subsection 132(1) states:

For the purposes of the review and determination of the case of an offender pursuant to section 129, 130 or 131, the Service, the Commission 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 ...

[20]      The applicant argues that the Board's finding of a "pattern" in the present case, examined in the light of the above assertion, renders the section void for "vagueness" and therefore contrary to section 7 of the Charter. The applicant does not purport to argue that the wording of section 132 is in itself vague, but rather that the Board's interpretation makes it so.

[21]      In my opinion neither the wording of the section nor the Board's interpretation renders it vulnerable to a section 7 challenge. Section 132 of the Act directs the Board to consider "any factor" relevant to the likelihood of recidivism "including a pattern of persistent violent behaviour established on the basis of any evidence". The section goes on to enumerate, in particular, seven items of evidence which can serve to establish the existence of a "pattern of persistent criminal behaviour".

[22]      A plain reading of the section indicates that the focus of the inquiry is the determination of "likelihood" and not whether some or all of the stated factors are present. It is also clear that the section does not purport to identify all relevant factors in making this determination, nor does it purport to set out a comprehensive list of the type of evidence which can serve to establish the existence of "a pattern of persistent criminal behaviour".

[23]      That of course does not make the section moot for vagueness. The legislation frames the debate in a very coherent manner by reference to stated criteria. It also allows for the consideration of any other factor relevant to the question as to whether a given offender is likely to again cause death or serious harm to another person. That is a legislative recognition that unidentified factors can be referred to in applying section 132 and as relevance is the statutory precondition to the consideration of any such factor, the section cannot be said to be unconstitutionally vague.¹⁰

[24]      Nor do I believe that the Board's interpretation of section 132 makes it vulnerable to a Charter challenge for "vagueness" and or "overbreadth". The Appeal Division stated in its decision that the guiding criteria is the likelihood that the offender will recidivate and not whether one of the relevant factors had been satisfied. It did so in response to the contention by the applicant that a positive determination under section 132 could only be made by reference to the existence of a "pattern of persistent violent behaviour" and that the Board erred in concluding that such a pattern had been established by reference to a single criminal episode.

[25]      Quite obviously, the Appeal Division was not thereby suggesting that the likelihood of recidivism could be established by reference to any factor. The Board in its decision had identified, in addition to the stated factors which are said to give rise to "a pattern of persistent violent behaviour", a number of other factors relevant to its decision including the applicant's indifference towards his victim, his conscious decision to commit murder, his acknowledged desire for dominance and his lack of progress in coming to terms with his offence. These were factors which the members of the Appeal Division necessarily had in mind when they emphasized that what was in issue was not whether any single factor had been met but whether there was a likelihood of recidivism.

[26]      I therefore come to the conclusion that the arguments advanced by the applicant by reference to the Charter must fail.

[27]      With respect to the use by the Board of its own body of knowledge, the Act stipulates that the Board has the duty to "take into consideration all available information that is relevant to a case".¹¹ So long as information is relevant and reliable, it must be taken into account irrespective of its source.

[28]      Furthermore, I can find no basis on the record for the proposition that the Board " ... declined to give any consideration ... " to specified evidence advanced by the applicant.¹² This evidence was before the Board, and nothing suggests that the members did not give it consideration. Indeed, the Board in its reasons makes specific reference to this evidence. What the applicant takes issue with is the conclusion reached by the Board on the basis of the material before it and not that the Board would have failed to consider this material.

[29]      With respect to the applicant's argument that he should have been entitled to examine Dr. Barbaree regarding his report and given the benefit of a second opinion, I note that the process before the Board is inquisitorial and not adversarial. The introduction of adversarial elements such as the right to cross-examine is not mandatory.¹³ So long as the process is fair and the offender is allowed to make his position known, the requirements of procedural fairness will have been met.

[30]      The applicant appears to recognize this but contends that in the circumstances of this case, the Board had a duty to call for a second opinion. In so stating, he refers in particular to two letters signed by a professor of psychology which criticize the opinion reached by Dr. Barbaree. According to the applicant, this evidence constituted such a challenge to Dr. Barbaree's opinion that the Board had no choice but to seek a further opinion.

[31]      The criticism raised in these two letters is very specific. It deals with the testing methodology used to evaluate the applicant and the scores which were attributed to him. The conclusion reached by the author is that properly administered tests would have yielded different scores suggesting that the probability for sexually violent recidivism in the applicant's case was low to moderate rather than high.

[32]      Dr. Barbaree did conclude that the risk for recidivism was high. However, Dr. Barbaree's opinion was not only a function of test results. He made an overall assessment of risk which took into account clinical impressions developed over hours spent with the applicant during the course of treatment which resulted in limited progress. There is no attack on Dr. Barbaree's clinical findings nor on his conclusion that the applicant was not yet committed to resolving his problems. Keeping this in mind, I do not believe that the letters in question were such as to compel the Board to test the view expressed by Dr. Barbaree.

[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.

[35]      Finally, I can find no basis for the suggestion that the Board failed to "make the least restrictive determination consistent with the protection of society" as required by subsection 101(d) of the Act.

[36]      For these reasons the application is dismissed.

     Marc Noël

     Judge

OTTAWA, ONTARIO

November 13, 1997

__________________

     ¹      The facts giving rise to this guilty plea are as follows:
     On July 30, 1987 the Applicant and another person, Sean Guy Evans, planned to, and in fact did, kidnap a prostitute - a 20 year old woman. The two men approached the victim and asked that she perform oral sex on them, a price was agreed to and the victim got into their vehicle - a yellow taxi cab.
     Mr. Knapp sat in the rear of the cab with the victim and she gave directions to the driver, his accomplice. The victim noticed that the vehicle was heading in another direction than their stated destination and began to panic and scream. The victim attempted to escape through the window of the cab but the Applicant pulled her back into the car, overpowered her and tied her hands and feet together behind her back with some nylon twine. The twine was so tight that it made her wrists and ankles bleed. The Applicant then proceeded to slit off the victim's clothing with his knife, blindfolded her and stuffed clothing into her mouth to stifle her cries. Then he demanded that the victim perform fallatio [sic] on him, to which she complied. The Applicant and his accomplice drove the vehicle to a secluded field in the Halton Hills area.
     The victim was then forced to have vaginal and anal intercourse with both men. Following this, both the Applicant and the accomplice dragged the victim out of the car. Both men collaborated on a plan to murder the victim so that she could not identify them. In putting this plan into effect, the victim was repeatedly punched and then was stabbed in the neck. She was then dragged into the bushes where the two men left her for dead.
     Psychological/Psychiatric Assessment Report, and R. v. Evans (January 16, 1990)      Court File No.: DCOM 2628/88 (Ont. Dist Ct.) Applicant's      Application Record at 57 and 92-105.

     ²      S.C. 1992, c. 20, as amended.

     ³      Applicant's Application Record, Vol. 1 at p.11.

     ⁴      Applicant's Application Record, Vol. 1 at p.14.

     ⁵      Applicant's Application Record, Vol. 1 at p.17.

     ⁶      Applicant's Application Record, Vol. 1 at p.25.

     ⁷      Applicant's Application Record, Vol. 2, paragraphs 44 to 50.

⁸      Appeal Division's February 1, 1996 decision, Applicant's Application Record, Vol. 1 at p. 15.

⁹      Subsection 101(d) of the Act .

¹⁰      A law will only be found to be unconstitutionally vague if it "so lacks in precision as not to give sufficient guidance for legal debate". R . v. Nova Scotia Pharmaceutical Society 1992, 2 S.C.R. 606 at 632 and 643. Where the purpose of a legislative provision is clear, a requirement that it be applied by reference to factors which are relevant to that purpose is equally clear.

¹¹      Section 101(d) of the Act.

¹²      Applicant's Application Record, Vol. 2, paragraphs 31, 41, 61 and 79.

¹³      MacInnis v. Canada (Attorney General) 1 C.R. (5th) 144 (FCA) at p. 153.