Date: 20120301
Docket: T‑493‑11
Citation: 2012 FC 284
[UNREVISED
ENGLISH CERTIFIED TRANSLATION]
Ottawa, Ontario, March 1, 2012
PRESENT: The Honourable Madam Justice Bédard
BETWEEN:
|
|
GILLES OUELLETTE
|
|
|
|
Applicant
|
|
and
|
|
|
ATTORNEY GENERAL OF CANADA
|
|
|
|
Respondent
|
|
|
|
|
REASONS FOR
JUDGMENT AND JUDGMENT
[1]
This is an application for
judicial review of a decision by the Appeal Division of the National Parole
Board (the Board) which confirmed a decision by the Board dated June 16,
2010. In that decision, the
Board denied the applicant’s application for day parole and parole because it
was of the opinion that the offender presented a risk of reoffending that is
unacceptable to society.
[2]
For the following reasons, the application for
judicial review is dismissed.
I. Background
[3]
Since 1989, the applicant has been serving a
life sentence, with no parole eligibility for 25 years, for two first‑degree
murders. The murders committed were violent and senseless. The applicant has
always denied having committed the murders.
[4]
Although he has been eligible for day parole
since January 7, 2005, and for full parole since January 7, 2008, the
applicant has not been granted any form of release into the community to date,
aside from authorizations for escorted temporary absences for medical reasons. The
Board analyzed the applicant’s file on several occasions between 2005 and 2010.
[5]
In December 2009, the Board denied the
applicant’s application for day parole and parole. However, at that time, the
Board exceptionally set a date to review the file six months later. This
review of the file led to the decision made on June 16, 2010, which is the
subject of this application for judicial review.
[6]
It is therefore useful to return to the December 2009
decision, which set the stage for the review of the applicant’s file.
[7]
In its decision on December 16, 2009, the
Board refused to grant the applicant day parole and full parole. It was of the
opinion that these forms of release were premature because, in its opinion, the
applicant presented an unacceptable risk to society. This basis for this
decision included the following elements:
a.
The applicant’s criminal record begins in 1974
and contains planned, structured crimes, some of which involved violence,
including the use of weapons;
b.
The principal factors contributing to the
applicant’s criminal behaviour are related to greed, personality disorders, a
significant potential for violence, emotional deprivation and shortcomings in
his social and structural development;
c.
The various professionals who assessed the
applicant diagnosed him with narcissistic personality disorder with paranoid features
and antisocial traits. They assessed the applicant’s risk of violent re‑offence
as moderate in the short, medium and long terms, linked to an unpredictable and
impulsive personality;
d.
The last psychological assessment, dated
October 26, 2009, repeats the diagnoses previously given. The psychologist
noted, among other things, that some paranoid elements seem to complicate the
applicant’s self‑questioning and his ability to trust and form positive
relationships with others. She also noted that the applicant continues to be unreceptive
to coaching and uses defence mechanisms that are very rigid. She assessed the
applicant’s risk of violently reoffending as moderate and concluded that his return
to the community had to be very gradual;
e.
The applicant’s case management team (CMT)
states that he has always denied having committed the crimes of which he was
found guilty and that his offence cycle and contributing factors have not been
treated. The CMT assessed the applicant’s potential for social reintegration as
low and is of the opinion that there is still a high risk that he will commit
further criminal offences;
f.
The CMT finds it worrisome to note that, after
over 20 years of imprisonment, the applicant is still unable to identify
the sources of his criminal behaviour and is not truly prepared to know the
reasons for them. The CMT also noted, as have a number of persons involved,
that the applicant exhibits some emotional instability;
g.
The CMT is also of the opinion that the
applicant has not made observable or measurable progress since the beginning of
his imprisonment and recommends that he be denied day parole and full parole;
h.
The applicant’s resistance to treatment is clear
from the fact that he has not participated in any prison programs to counter
the factors contributing to his criminal behaviour;
i.
In 2005 and 2007, the applicant was reminded by
the Board that it was essential for him to develop trust with the members of
his CMT and to participate in his correctional plan.
[8]
The Board also noted that all of the negative
decisions since 2005 went against the applicant because of his rigidity and the
fact that he has not made use of the internal programs to work on the factors
contributing to his criminal behaviour.
[9]
The Board also stated that the applicant had
made some headway and that it perceived some degree of flexibility, which was
new. The Board referred to, among other elements, the fact that he had begun a psychological
follow‑up with a psychologist, Dr. Saint‑Amant, during which
he seemed to have begun reflecting on his criminal behaviour. The Board noted
that the psychologist had emphasized that the applicant was making an effort to
open up, despite the fact that it was still difficult to establish trust with
him, and that he deemed it necessary to continue the follow‑up.
[10]
As well, the Board noted that the applicant was
also meeting with a representative from Option‑Vie on a regular basis, had
established a good bond with him and had shown openness on an emotional level. The
Board stated that this step seemed to have enabled him to better understand his
criminal behaviour and to reduce the negative legalistic aspect of his
arguments.
[11]
Despite those steps, the Board was of the
opinion that the applicant still presented an unacceptable risk to society. The
steps taken by the applicant had, nonetheless, led the Board to set a date to
review his file six months later. The Board also informed the applicant that
it had the following expectations: (1) he had to work closely with his parole
officer (PO) to identify goals to meet in order to lower his security classification
and become eligible for “security cascading”; (2) he had to continue his
psychological follow‑up; (3) he had to focus on developing greater
flexibility and openness; and (4) he had to work with his CMT on developing a
release plan.
[12]
This, therefore, is the specific context in
which the hearing of June 16, 2010, was held. The Board had the applicant’s
entire file on hand, including the psychological therapy report prepared by
Dr. St‑Amant on February 10, 2010, and the Assessment for
Decision prepared for the Board by the applicant’s CMT on April 11, 2010. The
applicant also testified at the hearing.
[13]
Dr. Saint‑Amant’s therapy report
summarizes the follow‑up the applicant received from September 14,
2009, to January 21, 2010. Dr. Saint‑Amant states that the
applicant participated well in the follow‑up process, but that there is
still work to be done in terms of his offence cycle and social skills. He also
noted that the applicant has demonstrated his capacity to make a positive
contribution to his own therapy, which is a step forward. However, he also
stated that the process had not reduced the applicant’s risk of reoffending.
[14]
The CMT prepared an Assessment for Decision in
which it recommended that the applicant’s application for day parole and parole
be denied because it was of the opinion that the applicant still presented a
risk of reoffending that was unacceptable to society. The CMT set out the full
history of the applicant’s file, his various psychiatric and psychological
assessments, the steps he has taken and the headway he has made since the
hearing in December 2009. The CMT stated not having noted any significant,
long‑lasting progress over the period covered by the assessment, despite
the fact that the applicant has completed his psychological follow‑up. As
well, the CMT stated that the applicant still had not created a bond of trust
with his PO, that his requests remained utilitarian and that he was not dealing
with the aspects of his criminal behaviour. The CMT further noted that the
applicant seemed to believe that he would not reoffend, without having
demonstrated that he knew himself well or having addressed the principal anxiety
triggers that he could encounter upon his release.
[15]
The Board denied the applicant’s application,
being of the opinion that he still presented a risk of reoffending that is
unacceptable to society. In its decision, the Board re‑summarized the
applicant’s entire file and his progress and dealt with the expectations set
out by the Board at the hearing in December 2009.
[16]
First, the Board stated that the goal of the
close work which the applicant had to engage in with his CMT to enable him to lower
his security classification and become eligible for “security cascading” had
not been met. The Board noted that the applicant was still a demanding, self‑rationalizing
and self‑centred individual and that he seemed determined to hold fast to
his position.
[17]
Second, the Board
acknowledged that the applicant had completed the psychological follow‑up
begun with Dr. Saint‑Amant, but it also noted that the psychologist
had been unable to conclude that the psychological follow‑up had reduced
the applicant’s risk of reoffending. However, the Board noted that the fact that he was able to
engage in this process with someone from the Correctional Service was a sign
that he was opening up. The Board also made
note of the applicant’s follow‑up with an Option‑Vie
representative.
[18]
In addition, the Board was
of the opinion that the applicant would benefit from continuing his
introspection through therapy. The
Board noted that the applicant was unable to identify the obstacles that could
arise upon his release, which attested to a misconception of the daily reality
he would have to face.
[19]
Third, the Board noted that
the applicant had presented a release plan which included receiving support
from various sources, including support from members of his family. However, it was of the opinion that the
applicant’s release plan was [translation]
“clearly premature”. The Board made the
following comments on the applicant’s release plan:
[translation]
After 28 years of incarceration, it would be very
naive and presumptuous to believe that your return to the community will be problem‑free. The Board finds it difficult to believe
that you would be capable of demonstrating openness, cooperation and
transparency towards CSC workers in the community when you are unable to do so
in the institution.
Your release plan may be well prepared, but it is clearly
premature. All of the
professionals who have worked on your case agree unanimously that it is
necessary for your security cascading process and temporary absence program to
be gradual. There is no point in cutting corners, since the consequences could
be even more severe for society and for yourself.
III. Decision
of the Appeal Division of the Board
[20]
The applicant appealed the Board’s decision to
the Appeal Division. In his appeal, the applicant
contended, first, that the Board had violated the rules of procedural fairness
because he had been unable to provide a complete testimony on account of the
numerous interruptions and interventions of the board members who prevented him
from giving complete answers to their questions.
[21]
The applicant also criticized
the Board for having made statements that were unsupported by the facts and
incomplete. As well, the
applicant criticized the Board for having failed to take into account his
particular situation with the Correctional Service that had resulted in the
government’s paying substantial compensation. The
applicant further criticized the Board for having erred in its assessment of his
risk of violently reoffending. The Board’s
Appeal Division dismissed the appeal in a decision dated February 17,
2010.
[22]
The Appeal Division was of
the opinion that the rules of procedural fairness had not been breached and
that the applicant had had ample opportunity to present his case, express his
point of view and answer the Board’s questions. It also took the view that the interventions by the Board
members had been intended to redirect the discussion onto the matter of the
applicant’s risk of reoffending and the progress he had made since the hearing
in December 2009 and that the Board had given him a just and fair hearing.
The Appeal Division further deemed the Board’s
assessment of the evidence to be reasonable and in compliance with the criteria
set out in the Corrections and Conditional Release Act, SC 1992, c 20
(the Act) and with the Board’s statements. In
addition, the Appeal Division found that the Board had not made any erroneous
statements.
III. Issues
[23]
This is an application for judicial review of
the decision by the Appeal Division which confirmed the Board’s decision. The
case law has recognized that, in such a situation, the Court’s role is
essentially to ensure that the Board’s decision is lawful (Cartier v Canada
(Attorney General), 2002 FCA 384, [2003] 2 FC 317 [Cartier]); Mymryk
v Canada (Attorney General), 2010 FC 632, 382 FTR 8).
[24]
The applicant’s criticisms of the Board’s
decision are essentially the same as those argued in the appeal of that
decision. This case therefore raises the following issues:
(1) Did the Board
breach the rules of procedural fairness by not allowing the applicant to fully
participate in the hearing held on June 16, 2010?
(2) Did the Board
err in its assessment of the file and of the applicant’s circumstances?
IV. Standards
of review
[25]
A breach of procedural fairness would render the
Board’s decision invalid (Sketchley v Canada (Attorney General), 2005
FCA 404 at paragraph 53, [2006] 3 FCR 392).
[26]
In addition, the Court must show deference in
respect of the Board’s decision on the merits. The Board’s decision falls
within its particular area of expertise and essentially involves an assessment
of the facts and circumstances of the applicant’s file. Such a decision must be
reviewed on the reasonableness standard (Cartier, above at paragraphs 6‑10,
Dunsmuir v New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190 [Dunsmuir]).
[27]
The Court’s role in reviewing a decision on the
reasonableness standard was expressed as follows in Dunsmuir, above, at
paragraph 47:
47 Reasonableness
is a deferential standard animated by the principle that underlies the
development of the two previous standards of reasonableness: certain questions
that come before administrative tribunals do not lend themselves to one
specific, particular result. Instead, they may give rise to a number of
possible, reasonable conclusions. Tribunals have a margin of appreciation
within the range of acceptable and rational solutions. A court conducting a
review for reasonableness inquires into the qualities that make a decision
reasonable, referring both to the process of articulating the reasons and to
outcomes. In judicial review, reasonableness is concerned mostly with the
existence of justification, transparency and intelligibility within the
decision‑making process. But it is also concerned with whether the
decision falls within a range of possible, acceptable outcomes which are
defensible in respect of the facts and law.
V. Analysis
(1) Did the Board breach the rules of procedural fairness by not
allowing the applicant to fully participate in the hearing held on
June 16, 2010?
[28]
The applicant submits that the hearing on
June 16, 2010, was made invalid by a significant number of interruptions
by the Board members which prevented him from providing complete answers, explaining
his situation and testifying about the conflict between himself and the Correctional
Service representatives. The applicant submits that he pointed out the problem
at the hearing and asked the Board members to let him complete his answers, but
to no avail.
[29]
The respondent rebuts this allegation and
submits that the applicant received a fair hearing and that the Board members’
interventions were intended to focus the discussion and were appropriate.
[30]
It is important to bear in mind the fact that
the hearing on June 16, 2010, was held as part of a follow‑up on the
Board’s decision dated December 16, 2009, and that the purpose of the
hearing was to check up on the applicant’s progress and headway with regard to
the openness noted six months earlier and the specific expectations set
out by the Board. The hearing therefore had a specific objective and purpose.
[31]
Furthermore, the Board’s role is circumscribed
by the Act. Section 100 of the Act sets out the purpose of conditional
release, which “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.” Paragraph 101(a)
of the Act states that the protection of society is the paramount consideration
in the determination of any case and, in accordance with section 102 of
the Act, the Board may grant parole if, in its opinion, the offender will not,
by reoffending, present an undue risk to society. The Board’s mandate was
therefore to assess that risk. To do so, it took into account all of the
relevant, available information (paragraph 101(b) of the Act),
including the applicant’s representations. Furthermore, the Board’s hearings
are inquisitorial, not adversarial (Mooring v Canada (National Parole Board),
[1996] 1 S.C.R. 75), at paragraphs 26–27 (available on CanLII); Yaari v
Canada (Attorney General), 2005 FC 1353 at paragraph 7, 275 FTR 291).
Therefore, it was normal for the Board to ask pointed questions.
[32]
I have reread the full transcript of the hearing
before the Board, and I share the opinion of the Board’s Appeal Division. It is
true that the Board members intervened on a number of occasions, but their
interventions were intended to re‑centre the debate. Considering the
Board’s role and the purpose of the hearing, I am of the opinion that the
applicant had the opportunity to participate fully in the process and to
express himself on all of the relevant aspects of the decision to be made by
the Board. The applicant was able to answer the Board members’ questions and
had the opportunity to make submissions and provide the Board with the explanations
that were relevant to examining the headway he had made over the course of the
past six months.
(2) Did the Board err in its assessment of the file and of the
applicant’s circumstances?
[33]
The applicant criticizes the Board for having
made statements that are incomplete and false. He submits that in so doing, the
Board drew conclusions by ignoring important pieces of evidence, which would
contravene paragraph 101(b) of the Act. He also criticizes the
Board for having refused to take into consideration the very particular
situation between himself and the Correctional Service, which was relevant
information that could not be ignored.
[34]
The applicant further submits that the Board
conducted an incomplete analysis of his risk of reoffending and failed to
consider the criteria set out at sections 100 to 102 of the Act, which spring
from the criteria stated by the Supreme Court in Steele v Mountain
Institution, [1990] 2 S.C.R. 1385 (available on CanLII).
[35]
The respondent, for its part, submits that the
Board’s decision was reasonable. I agree.
[36]
The purpose of the review was to measure the
applicant’s progress over the past six months and assess whether the
headway he had made had reduced the risk of reoffending which he represents for
society. The Board’s review focused on this issue and analyzed the evidence in
respect of the expectations the Board had established in December 2009. I
am of the opinion that the Board analyzed and considered all of the elements
that were relevant for the purposes of its review and that the conclusions it
drew were reasonable with regard to all of the information it had and the
applicant’s testimony. The Board’s decision also shows that that it reviewed
the applicant’s case in accordance with the parameters set out in the Act; although
it wishes to facilitate the applicant’s reintegration into society, the Board
had to determine whether the applicant’s release would result in an
unacceptable risk for society, the protection of society being the paramount
consideration, and it had to conduct its analysis on the basis of all of the
relevant information available.
[37]
In setting out his criticisms against the Board,
the applicant dissects and isolates elements in his file and passages from his
testimony before the Board. He asks the Court to conduct a microscopic analysis
of both the evidence and the Board’s reasons. The Board was not required to mention
all of the elements in the applicant’s file or the entirety of his testimony.
The Board’s decision is sufficiently detailed and deals with elements that were
relevant to deciding the issue regarding the applicant’s risk of reoffending in
the specific context of the process engaged in over the past six months.
In Newfoundland and Labrador Nurses’ Union v Newfoundland and Labrador
(Treasury Board), 2011 SCC 62, at paragraphs 14–16, 424 NR 220, the
Supreme Court stated that the reasons for a decision must be read together with
the outcome and in light of the file as a whole:
14 . . .
It is a more organic exercise — the reasons must be read together with the
outcome and serve the purpose of showing whether the result falls within a
range of possible outcomes. This, it seems to me, is what the Court was saying
in Dunsmuir when it told reviewing courts to look at “the qualities that
make a decision reasonable, referring both to the process of articulating the
reasons and to outcomes” (para. 47).
15 In assessing whether the decision is
reasonable in light of the outcome and the reasons, courts must show “respect
for the decision‑making process of adjudicative bodies with regard to
both the facts and the law” (Dunsmuir, at para. 48). This means that courts should not substitute their own reasons, but
they may, if they find it necessary, look to the record for the purpose of
assessing the reasonableness of the outcome.
16. Reasons may not include all the arguments,
statutory provisions, jurisprudence or other details the reviewing judge would
have preferred, but that does not impugn the validity of either the reasons or
the result under a reasonableness analysis. A
decision‑maker is not required to make an explicit finding on each
constituent element, however subordinate, leading to its final conclusion (Service
Employees’ International Union, Local No. 333 v. Nipawin District Staff Nurses
Assn., [1975] 1 S.C.R. 382, at p. 391). In other words, if the reasons
allow the reviewing court to understand why the tribunal made its decision and
permit it to determine whether the conclusion is within the range of acceptable
outcomes, the Dunsmuir criteria are met.
[38]
In this case, it was reasonable for the
Commission to conclude that the applicant’s progress over the previous
six months had not reduced his risk of reoffending. The evidence clearly
showed that the applicant had not improved his relationship with the CMT during
the period at issue and had therefore not worked with his PO to set goals with
the aim of having his security classification reduced. It is evident from the
file as a whole that the applicant must develop a relationship of trust with
his CMT, with which he will have to maintain close ties even after his release.
The evidence has also shown that the psychological follow‑up conducted
with Dr. Saint‑Amant did not reduce his risk of reoffending. I am
also of the view that, in light of the applicant’s testimony, it was reasonable
for the Board to find that the applicant had not fully taken stock of the
difficulties he may face upon his release and that he still had some self‑analysis
to do.
[39]
The passages the applicant focuses on in the
decision must be read in the decision’s overall context while bearing in mind
that the Board does not have to mention every piece of evidence. After having
analyzed all of the evidence in the file, including the applicant’s testimony
before the Board, I am of the opinion that the Board’s statements were
reasonably grounded in the evidence and that the conclusions it drew fell
within “a range of possible, acceptable outcomes which are defensible in
respect of the facts and law (Dunsmuir, above, at paragraph 47). In
addition, the reasons for the decision do make it possible to understand the basis
on which it was made.
[40]
Therefore, this Court should not intervene.
JUDGMENT
THE COURT ORDERS AND ADJUDGES that the
application for judicial review is dismissed with costs.
“Marie‑Josée Bédard”
Certified true
translation
Sarah Burns
Email this Content