Date:
20120515
Docket:
T-1315-11
Citation:
2012 FC 584
[UNREVISED
CERTIFIED ENGLISH TRANSLATION]
Ottawa, Ontario, May 15, 2012
PRESENT: The
Honourable Mr. Justice Shore
BETWEEN:
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DENIS ALBERT
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Applicant
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and
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ATTORNEY GENERAL OF
CANADA
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Respondent
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REASONS FOR
JUDGMENT AND JUDGMENT
I. Introduction
[1]
This is an application for judicial review of a
decision rendered January 31, 2011, affirmed by the Appeal Division of the
National Parole Board [NPB] on June 20, 2011, in which the NPB, in accordance
with the Corrections and Conditional Release Act, SC 1992, c 20 [CCRA], continued
the applicant’s detention.
II. Facts
[2]
The applicant, Mr. Denis Albert, has been
serving a 12-year sentence of imprisonment for manslaughter since July 26,
2000. On May 21, 1999, he struck and strangled his ex-wife, leaving her
unconscious in her bed. He then set fire to the mattress by throwing his lit
cigarette on it. The victim regained consciousness and tried to open her
bedroom door but was unable to do so. She was the mother of two young
children of a previous union.
[3]
The trial brought episodes of conjugal violence
to light through the testimony of the applicant’s former spouses.
[4]
The applicant has a lengthy criminal record,
which begins in 1997 with his conviction for pointing a firearm and careless
use of a firearm. He was convicted of assault later that year.
[5]
On January 16, 2008, the NPB granted day parole
with the following conditions, among others: enrol in and follow a program for
substance abusers; and notify his parole officer of any new conjugal
relationship.
[6]
From October 24, 2007, to January 16, 2008, the
applicant took part in the National Family Violence Maintenance Program. The
program counsellors noted that they were unable to ascertain the applicant’s
intentions with respect to the fire that caused the death of his ex-spouse, and
they recommended that he participate in the Maintenance Program.
[7]
It appears that the applicant met Francine
Carrière around March 2008 and had a serious relationship with her. On March
26, 2008, the Correctional Service of Canada [CSC] conducted a Community
Assessment with the assistance of the applicant’s new girlfriend and concluded
that the relationship posed a risk and that it was not recommended to allow the
couple to benefit from leave during unsupervised weekends.
[8]
It appears that, without his parole officer’s
knowledge, the applicant met with his girlfriend in places that were not
public. On May 1, 2008, as a condition of the applicant’s day parole, the NPB
forbade any contact with Ms. Carrière and required him to notify his parole
officer of any new conjugal relationship or friendship.
[9]
On June 3, 2008, a day parole suspension warrant
was issued due to the applicant’s lack of cooperation with his supervisors.
[10]
On September 22, 2008, the NPB revoked day
parole due to the applicant’s potential for violence.
[11]
The applicant’s relationship with his parole
officer was characterized by conflict. Based on the Protected Information
Reports and the Security Intelligence Report dated July 14 and July 16, 2009
[the CSC Reports], the applicant had made plans to kill his officer. The
applicant was met by the Sûreté du Québec. On July 15, 2009, the applicant was
placed in administrative segregation on the basis that he was planning to
commit an act of violence against a staff member.
[12]
On March 31, 2010, the NPB barred parole and day
parole on the basis of the applicant’s involvement in tobacco trafficking and
his threats against his parole officer. This decision was confirmed by the NPB’s
Appeal Division, which rejected the applicant’s argument that the content of
the CSC Security Intelligence Reports had not been disclosed to him, thereby breaching
his right to procedural fairness.
[13]
On September 23, 2010, the applicant’s
psychological profile was updated and disclosed a high risk of reoffending.
[14]
On June 20, 2011, the NPB’s Appeal Division
confirmed the NPB’s decision to continue the applicant’s detention.
[15]
The end of the warrant of committal was scheduled
for July 25, 2012.
III. The decision that is the subject of
this application for judicial review
[16]
The NPB concluded that if the applicant were
paroled before the expiration of his sentence, he would be likely to commit an
offence causing serious harm to another person.
[17]
The NPB stressed the applicant’s continued
violent conduct. It noted that the applicant did not acknowledge his guilt
following his conviction for manslaughter. It was only in 2002, after all
avenues for appeal were exhausted, that he admitted to committing the offence.
The NPB also emphasized the applicant’s violent conduct in the context of
conjugal relationships, making reference to the testimony of his former spouses
at his trial.
[18]
In addition, the NPB analysed the applicant’s plan
to punish his parole officer, stressing what it considered to be the
applicant’s proclivity for violence against women. In so doing, the NPB
rejected the applicant’s submission that the information contained in the CSC
Reports associated with this matter are not reliable and were not disclosed to
him. On this point, the NPB concluded that the applicant was acquainted with
the essential information and had the ability to answer it. Among other things,
the NPB’s decision notes:
[translation]
. . . At the hearing,
you acknowledged feeling frustration about your officer following the events
that led to your suspension. You have denied any vindictive intent concerning
her.
(NPB decision at 5).
[19]
The NPB emphasized the applicant’s conduct in
2008 when he was on day parole. Specifically, he refused to acknowledge the
risk posed by his relationship with his then girlfriend, and he lacked
transparency. He also failed to cooperate with the competent authorities. Moreover,
the NPB noted that the applicant refused to submit to the psychological
assessment required for the hearing. As a result, the psychologist relied on
the documentary evidence and found, among other things, that the risk of
violence in the context of a conjugal relationship remained high.
[20]
The NPB was not satisfied with the applicant’s
parole plan to live in a halfway house; it found that he does not have a
realistic view of the situation because he does not question himself.
[21]
The Appeal Division of the NPB confirmed the
NPB’s decision. It explained that the applicant’s claim that his right to
procedural fairness was breached had already been considered. Specifically,
although the CSC Reports were not disclosed to him, the applicant was familiar
with all the information about him through other documents in his possession.
The Appeal Division of the NPB acknowledged the NPB’s error of fact in finding
that the applicant had not completed programmes reducing the risk of
reoffending after his day parole was revoked. However, the Appeal Division
found that this was not a material error.
IV. Points in
issue
[22]
(1)
Has the debate become moot?
(2) Did the NPB’s failure to disclose the CSC Security
Intelligence Reports amount to a breach of procedural fairness?
(3)
Is the NPB’s decision reasonable?
V. Relevant
statutory provisions
[23]
The following provisions of the CCRA are
relevant:
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Accuracy, etc., of information
24.
(1) The Service shall take all reasonable steps to ensure that any
information about an offender that it uses is as accurate, up to date and
complete as possible.
Correction of information
(2) Where an
offender who has been given access to information by the Service pursuant to
subsection 23(2) believes that there is an error or omission therein,
(a)
the offender may request the Service to correct that information; and
(b)
where the request is refused, the Service shall attach to the information a
notation indicating that the offender has requested a correction and setting
out the correction requested.
Service to give information to parole
boards, etc.
25.
(1) The Service shall give, at the appropriate times, to the National Parole
Board, provincial governments, provincial parole boards, police, and any body
authorized by the Service to supervise offenders, all information under its
control that is relevant to release decision-making or to the supervision or
surveillance of offenders.
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.
Principles guiding parole boards
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.
Review
of cases by service
129.
(1) Before the statutory release date of an offender who is serving a
sentence of two years or more that includes a sentence imposed for an offence
set out in Schedule I or II or an offence set out in Schedule I or II that is
punishable under section 130 of the National Defence Act, the
Commissioner shall cause the offender’s case to be reviewed by the Service.
Referral of certain cases to Board
(2) After the
review of the case of an offender pursuant to subsection (1), and not later
than six months before the statutory release date, the Service shall refer
the case to the Board together with all the information that, in its opinion,
is relevant to it, where the Service is of the opinion
(a) in
the case of an offender serving a sentence that includes a sentence for an
offence set out in Schedule I, that
(i) the
commission of the offence caused the death of or serious harm to another
person and there are reasonable grounds to believe that the offender is
likely to commit an offence causing death or serious harm to another person
before the expiration of the offender’s sentence according to law, or
(ii) the
offence was a sexual offence involving a child and there are reasonable
grounds to believe that the offender is likely to commit a sexual offence
involving a child before the expiration of the offender’s sentence according
to law; or
(b) in
the case of an offender serving a sentence that includes a sentence for an
offence set out in Schedule II, that there are reasonable grounds to believe
that the offender is likely to commit a serious drug offence before the
expiration of the offender’s sentence according to law.
Annual review of orders
131.
(1) The Board shall review every order made under subsection 130(3) within
one year after the date the order was made, and thereafter within one year
after the date of each preceding review while the offender remains subject to
the order.
Board to inquire
(2) The Board
shall cause such inquiries to be conducted in connection with each review
under subsection (1) as it considers necessary to determine whether there is
sufficient new information concerning the offender to justify modifying the
order or making a new order.
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.
Idem
(2) Where
information referred to in subsection (1) comes into the possession of the
Board after the time prescribed in that subsection, that information or a
summary of it shall be provided to the offender as soon as is practicable
thereafter.
Waiver
(3) An
offender may waive the right to be provided with the information or summary
referred to in subsection (1) or to have it provided within the period
referred to, but where an offender has waived that period and any information
is received by the offender, or by the Board, so late that the offender or
the Board is unable to sufficiently prepare for the review, the offender is
entitled to, or the Board may order, a postponement of the review for such
reasonable period as the Board determines.
Exceptions
(4) Where the
Board has reasonable grounds to believe
(a)
that any information should not be disclosed on the grounds of public
interest, or
(b)
that its disclosure would jeopardize
(i) the
safety of any person,
(ii) the
security of a correctional institution, or
(iii) the
conduct of any lawful investigation,
the Board may
withhold from the offender as much information as is strictly necessary in
order to protect the interest identified in paragraph (a) or (b).
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Exactitude des renseignements
24.
(1) Le Service est tenu de veiller, dans la mesure du possible, à ce que les
renseignements qu’il utilise concernant les délinquants soient à jour, exacts
et complets.
Correction des renseignements
(2) Le
délinquant qui croit que les renseignements auxquels il a eu accès en vertu
du paragraphe 23(2) sont erronés ou incomplets peut demander que le Service
en effectue la correction; lorsque la demande est refusée, le Service doit
faire mention des corrections qui ont été demandées mais non effectuées.
Communication de renseignements
25.
(1) Aux moments opportuns, le Service est tenu de communiquer à la Commission
nationale des libérations conditionnelles, aux gouvernements provinciaux, aux
commissions provinciales de libération conditionnelle, à la police et à tout
organisme agréé par le Service en matière de surveillance de délinquants les
renseignements pertinents dont il dispose soit pour prendre la décision de
les mettre en liberté soit pour leur surveillance.
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.
Principes
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.
Examen
de certains cas par le Service
129.
(1) Le commissaire fait étudier par le Service, préalablement à la date
prévue pour la libération d’office, le cas de tout délinquant dont la peine
d’emprisonnement d’au moins deux ans comprend une peine infligée pour une
infraction visée à l’annexe I ou II ou mentionnée à l’une ou l’autre de
celles-ci et qui est punissable en vertu de l’article 130 de la Loi sur la
défense nationale.
Renvoi à la Commission
(2) Au plus
tard six mois avant la date prévue pour la libération d’office, le Service
défère le cas à la Commission — et lui transmet tous les renseignements en sa
possession et qui, à son avis, sont pertinents — s’il estime que :
a) dans le cas où l’infraction commise relève de l’annexe I :
(i) soit elle
a causé la mort ou un dommage grave à une autre personne et il existe des
motifs raisonnables de croire que le délinquant commettra, avant l’expiration
légale de sa peine, une telle infraction,
(ii) soit
elle est une infraction d’ordre sexuel commise à l’égard d’un enfant et il
existe des motifs raisonnables de croire que le délinquant commettra, avant
l’expiration légale de sa peine, une telle infraction;
b) dans le cas où l’infraction commise relève de l’annexe II, il y
a des motifs raisonnables de croire que le délinquant commettra, avant
l’expiration légale de sa peine, une infraction grave en matière de drogue.
Réexamen annuel
131.
(1) Dans l’année suivant la prise de toute ordonnance visée au paragraphe
130(3) et tous les ans par la suite, la Commission réexamine le cas des
délinquants à l’égard desquels l’ordonnance est toujours en vigueur.
Enquêtes de la Commission
(2) Lors du
réexamen, la Commission procède à toutes les enquêtes qu’elle juge
nécessaires pour déterminer si de nouvelles informations au sujet du
délinquant permettraient de modifier ou de prendre une autre ordonnance.
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.
Idem
(2) La
Commission fait parvenir le plus rapidement possible au délinquant
l’information visée au paragraphe (1) qu’elle obtient dans les quinze jours
qui précèdent l’examen, ou un résumé de celle-ci.
Renonciation
(3) Le
délinquant peut renoncer à son droit à l’information ou à un résumé de
celle-ci ou renoncer au délai de transmission; toutefois, le délinquant qui a
renoncé au délai a le droit de demander le report de l’examen à une date
ultérieure, que fixe la Commission, s’il reçoit des renseignements à un
moment tellement proche de la date de l’examen qu’il lui serait impossible de
s’y préparer; la Commission peut aussi décider de reporter l’examen lorsque
des renseignements lui sont communiqués en pareil cas.
Exceptions
(4) La
Commission peut, dans la mesure jugée strictement nécessaire toutefois,
refuser la communication de renseignements au délinquant si elle a des motifs
raisonnables de croire que cette communication irait à l’encontre de
l’intérêt public, mettrait en danger la sécurité d’une personne ou du
pénitencier ou compromettrait la tenue d’une enquête licite.
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VI. The
parties’ positions
[24]
The applicant submits that the NPB erred in law
in refusing to follow the relevant case law concerning clear and persuasive
evidence. In this regard, the applicant cites Mooring v Canada (National
Parole Board), [1996] 1 S.C.R. 75 [Mooring] and Zarzour v Canada (Attorney
General) (2000), 176 FTR 252, [2000] FCJ No 103 (QL/Lexis), which stand for
the proposition that the NPB should not consider information of questionable
reliability lest it breach its duty of fairness.
[25]
In the case at bar, the applicant objects to the
use of the information to the effect that he has a hostile relationship with
his parole officer, that he planned to take a contract on her life, and that he
is allegedly involved in institutional tobacco trafficking.
[26]
The applicant further submits that the NPB
breached its duty to provide all the information in its possession. The
applicant specifies that he only knows the information contained in the
Assessment for Decision [AFD] dated July 28, 2009, and that he never obtained
the CSC Reports. The applicant alleges that, during the hearing, the NPB
stated that such reports are never disclosed. The applicant submits that this
practice is contrary to section 141 of the CCRA.
[27]
In addition, the applicant argues that the NPB
made a decision based on erroneous findings of fact. He also criticizes the
content of the last psychological report on which the NPB relied, because it
does not take into account his participation in the family violence program.
The applicant submits that the NPB erred in its assessment of his former
spouses’ testimony at his trial for manslaughter. He claims that the testimony
in question does not support the NPB’s finding that the applicant caused them
serious harm. He says that the NPB also erred in finding that the parole
officer suffered serious harm as a result of his actions. He adds that the NPB
was incorrect in finding that his risk of reoffending in a conjugal context is
high.
[28]
First and foremost, the respondent is of the
opinion that the debate concerning the decision of January 31, 2011, has become
moot because the CCRA provides that orders continuing detention must be reviewed
by the NPB the following year and every year thereafter.
[29]
Moreover, the respondent argues that the hearing
before the NPB is not the appropriate venue in which to contest the contents of
the Security Intelligence Reports issued by the CSC. The NPB must simply
ensure that the information is reliable and persuasive. Another process is
available to the applicant if he wishes to contest these reports.
[30]
Lastly, the respondent argues that the decision
of January 31, 2011, is reasonable, because the reasons do not rely on the
contested reports, but rather, on the applicant’s attitude, which reflects a
lack of transparency and a lack of cooperation with the supervisors while he
was on day parole.
VII. Analysis
(1) Has the debate
become moot?
[31]
First of all, the Court does not consider the debate
moot within the meaning of Borowski v Canada (Attorney General),
[1989] 1 S.C.R. 342. Subsection 131(1) of the CCRA provides for a review of the
decision in question within one year of the decision being rendered. At the
hearing, the parties confirmed that no new decision had been rendered, since
the applicant asked the NPB for postponements pending the present decision.
(2) Did the NPB’s failure to disclose the CSC Security
Intelligence Reports to the applicant amount to a breach of procedural
fairness?
[32]
The correctness standard of review applies to
this type of question (Dunsmuir v New Brunswick, 2008 SCC
9, [2008] 1 S.C.R. 190 [Dunsmuir]).
[33]
The NPB’s duty of disclosure must be analysed in
light of the following principle:
10 There is, of
course, no doubt that the authorities were entitled to protect confidential
sources of information. A penitentiary is not a choir school and, if informers
were involved (the record here does not reveal whether they were or not), it is
important that they not be put at risk. But even if that were the case it
should always be possible to give the substance of the information while
protecting the identity of the informant. The burden is [page78] always on the
authorities to demonstrate that they have withheld only such information as is
strictly necessary for that purpose. A blanket claim, such as is made here,
that “all preventive security information” is “confidential and (cannot) be
released”, quite apart from its inherent improbability, is simply too broad to
be accepted by a court charged with the duty of protecting the subject’s right
to fair treatment. In the final analysis, the test must be not whether there
exist good grounds for withholding information but rather whether enough
information has been revealed to allow the person concerned to answer the case
against him. But whichever way it be stated, the test is not met in the present
case. [Emphasis added.]
(Demaria v Regional
Classification Board, [1987] 1 FC 74, [1986] FCJ No 493 (CA) (QL/Lexis)).
[34]
In addition, subsection 141(4) of the CCRA,
which provides for exceptions to the disclosure of information, requires the
NPB to justify its decision.
[35]
In this case, no information concerning the
reason for non-disclosure was provided. It is impossible to know whether the
protected reports were in the NPB’s possession when it made its decision. The
NPB has not provided any justification whatsoever for the non-disclosure, and
this is problematic in view of the law. Consequently, this lack of
justification results in a finding that procedural fairness has been breached.
[36]
The Court should specify that certain
information from the CSC Reports was also contained in the AFD dated July 28,
2009, in Correctional Plan Progress Report No. 9 dated September 14, 2009,
and in the AFD dated August 17, 2010. Nonetheless, a summary of certain
information from the CSC Reports does not release the NPB from justifying its
decision not to disclose those reports to the applicant.
[37]
In light of this finding, it is not necessary to
examine in greater detail the question of the NPB’s duty to clearly substantiate,
in its decision, that the information on which that decision is based is
reliable, in accordance with the principles enunciated in Mooring.
[38]
This Court has no choice but to find that the
lack of justification requires that the decision be referred back to a
differently constituted panel so that if certain information contained in the
CSC Reports is once again not disclosed, that non-disclosure is justified.
[39]
Having come to this conclusion, the Court is not
required to continue its analysis. However, this analysis is necessary because
the NPB’s decision is based in large part on other evidence, as the following
finding by the NPB demonstrates:
[translation]
The Board must also
examine whether there is reliable information based on which it must conclude
that you plan to commit an offence causing serious harm to another person before
the expiration of your sentence. Although there is no such information, your
criminal record, your supervision failures, your violent pattern of behaviour and
the absence of significant changes in regard to your contributing factors, call
for the greatest of caution.
(NPB decision at 6).
(3)
Is the NPB’s decision reasonable?
[40]
Courts must show a high degree of deference
toward the NPB’s factual analysis within its area of expertise (Dunsmuir).
In McDougall v Canada (Attorney General), 2011 FC 285, 386 FTR 8,
this Court remarked as follows:
[1] Protection
of society is the paramount consideration in decision-making in the context of
conditional releases in the federal correctional system (Corrections and
Conditional Release Act, RSC 1992, c 20 [CCRA] at para 4(a)).
The federal system aims to contribute to the maintenance of a just, peaceful
and safe society (s 3 of the CCRA).
[41]
First of all, the hearing underscored the applicant’s
lack of transparency in relation to his parole officer. The applicant himself
confirmed the tension between the applicant and his parole officer, as the
hearing transcript attests:
[translation]
THE CHAIRPERSON:
So once your parole
officer expressed concern about this relationship, that it might not be a good
idea in your situation, a dynamic of concealment set in, right? No transparency
and no collaboration between yourself and your officer. Would you agree with
that observation?
DENIS ALBERT:
Yes, toward the end;
yes, it’s true that it grew… But toward the end, before it stopped in April, I
think the interruption happened.
. . .
SUZANNE CHARTRAND:
Are you able to say
how you felt in this situation? Because in your file, it says that when you say
something, it stays at the cognition stage . . .
DENIS ALBERT:
No, that’s it, well,
I was frustrated. When she told me that, I wasn’t happy. At the beginning,
I wasn’t happy; I said . . .
I said, “No, no, she
has no record.” I argued with her a bit. I was definitely frustrated.
. . .
THE CHAIRPERSON:
The story of the
threats, um, toward the parole officer, what is that?
DENIS ALBERT:
No, forget about it,
there’s nothing. There’s nothing to that. No. No.
THE CHAIRPERSON:
It’s completely made
up?
DENIS ALBERT:
Oh! I don’t
understand that. I don’t understand where that can come from. Maybe the program
there, in Ste-Anne-des-Plaines? And he asked me what happened in the program,
and my officer brought me back, and I wasn’t happy, and I was frustrated,
that’s all. But there were never any threats or anything in that. That, you
know, is … no. No, really, no.
. . .
DENIS ALBERT:
Yes, I know that. But
where does it come from? I don’t know, I don’t know. To take out a
contract requires money, and I have no money. I have nothing, and I have
nothing against that guy.
SUZANNE CHARTRAND:
So why, then, when
the Sûreté du Québec met with you, did you not demonstrate forthrightness, and
explain … they say you didn’t cooperate. You didn’t cooperate…
DENIS ALBERT:
I had nothing to say,
I knew nothing about that. It’s not true, and I have never made up anything,
and it ended there. I had nothing to say about it, it isn’t true. Elaborate on
what? I don’t know what happened, I don’t know. Where does that come from?
SUZANNE CHARTRAND:
Well, it’s about
cigarette trafficking. All the reports talk about that and the trafficking.
DENIS ALBERT:
There is no, there is
no contract for murder. No such contract was made and there will never be such
a contract.
SUZANNE CHARTRAND:
And the trafficking?
DENIS ALBERT:
The trafficking …
yes, it’s true that I sold three (3) pouches of tobacco; that’s the only thing
I did. Three (3) pouches of tobacco for a guy. . . .
(Applicant’s
Record [AR] at 252-253, 256-257, 263-264 and 276-277; in addition, see 250-253,
256-257, 265-267, 276 and 283).
[42]
Moreover, the AFD – change
of security classification and involuntary transfer, dated
July 28, 2009, discusses the applicant’s lack of transparency and the
tense climate between himself and his parole officer in the following terms:
[translation]
In its interview with
Denis Albert, the CMT made findings similar to those of the program officer. In
this regard, the CPPR dated 10/06/2009 specifies: [translation] “It is difficult for him to take full
responsibility for the events that led to his suspension. He tends to blame his
CPO and imagine negative situations in which he is subject to her whim. He
expresses impatience and dissatisfaction with the management of his sentence
and must regularly be reminded of his responsibilities. The more we try to
explain to him the reasons for returning to the program and stress our concerns
about his relationship, the more he wallows in self-pity . . .
It seems clear to us
that the subject continued to imagine negative situations involving this staff
member, making her the personal embodiment of his problems . . .
(AR at 141).
[43]
The documentary evidence in the record also
showed the violent pattern to the applicant’s behaviour. For example, the summary
of the psychological report for a parole hearing, dated November 5, 2009, made
the following finding:
[translation]
. . . However, the
subject’s conduct while on day parole, and his intense and quick involvement in
a conjugal relationship with a woman who was a victim of spousal violence,
suggest that the lessons learned in the program are not yet sufficiently
integrated on an emotional level to be generalized to new conjugal
relationships. Indeed, it appears that the concepts worked on as part of the
program were mainly understood on a cognitive level and somewhat rigidly.
(AR at153).
[44]
The NPB’s Appeal Division properly noted the
error committed by the NPB when it found that the applicant had ceased to
participate in programs intended to reduce the risk of reoffending. This error
alone does not vitiate the decision because the NPB’s decision concluded, based
on the psychological assessments and other evidence, that there was a risk of
reoffending in a conjugal context (NPB decision at 5) and noted that the
applicant refused to submit to the psychological assessment because he thought
that it would prejudice his chances of release.
[45]
The applicant also questions the NPB’s finding about
the harm caused to his ex-spouses on the basis that the evidence does not show
that serious harm was caused. However, at his hearing, the applicant admitted
causing that harm and even went so far as to characterize it:
[translation]
THE CHAIRPERSON:
This was not the
first time that you had episodes of conjugal violence?
DENIS ALBERT:
No, I had a few prior
to that.
THE CHAIRPERSON:
In previous
relationships?
DENIS ALBERT:
Yes, verbal,
psychological violence.
(AR at 228).
[46]
Upon considering the record as a whole, this
Court finds that, in terms of the factual analysis, the decision has the
characteristics of a reasonable decision, except for the procedural fairness
defect stemming from the failure to justify the non-disclosure of the CSC
Reports.
VIII. Conclusion
[47]
For
all the above reasons, the applicant’s application for judicial review is
allowed.
JUDGMENT
THIS
COURT ORDERS that the
applicant’s application for judicial review is allowed, without costs.
“Michel
M.J. Shore”
Certified
true translation
Monica
F. Chamberlain
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