Date: 20091027
Docket: T-270-09
Citation: 2009 FC 1094
Ottawa, Ontario, October 27,
2009
PRESENT: The Honourable Mr. Justice Near
BETWEEN:
JULIAN
BROWNING
Applicant
and
THE ATTORNEY GENERAL
OF CANADA
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This
is an application for judicial review in respect of a decision of the National
Parole Board Appeal Division dated January 19, 2009, which affirmed the
decision of the National Parole Board dated August 22, 2008. The National
Parole Board denied the Applicant’s application for accelerated day parole.
I. Background
[2]
The
Applicant is a federal inmate currently incarcerated in a medium security
institution. On August 22, 2008, he was scheduled to appear before a panel of
the National Parole Board (the Board) for a hearing to assess if he should
be released on day parole. Prior to the hearing, the Applicant’s common-law
spouse submitted two letters of support to the Board for consideration. The
Applicant was also informed by his Counsel on the appropriate process and forms
required from his common-law spouse for her to attend the hearing as an
observer. The common-law spouse did not submit the forms.
[3]
The
common-law spouse did not appear at the Applicant’s hearing. At the start of
the hearing, the Applicant requested an adjournment to allow his spouse to
attend as an observer. The Applicant argued before this court that he wanted
his spouse to be present at the hearing for three reasons: to help him face the
Board’s questions; to add credibility to his denial that he ever assaulted her,
and to involve her personally in an important part of his sentence.
[4]
At
the Parole Board Hearing, the Applicant acknowledged that he had Counsel
present who was acting as his assistant, that his common-law spouse would not
be speaking, that she had submitted two letters for the Board’s consideration,
that she had not submitted the forms required to attend, and that he did not
know if she was in transit to the hearing. The Applicant stated he would waive
his rights with regard to the relevant statutory timeframe requirements if the
hearing was adjourned.
[5]
The
Board considered the Applicant’s request but declined to adjourn the hearing. The
Applicant refused to participate further, acknowledging that the Board would
proceed without his input and make their determination on a file-review only. The
Board did not direct accelerated day parole and denied full parole.
[6]
The
Applicant appealed the Board’s decision to the Appeal Division of the National
Parole Board. The Appeal Division denied the appeal and affirmed the decision
of the Board, inter alia, to deny the Applicant’s request to postpone
the hearing as reasonable and justified.
II. The
Decision
[7]
The
Board denied the Applicant’s request for an adjournment. In their written
decision, dated August 22, 2008 the Board wrote:
At the start of the hearing, your
assistant requested a postponement as your common-law spouse, who was to attend
as a support observer, was not present. You had been unable to reach her by
telephone and did not know if she was en-route. Your assistant acknowledged
that your common-law would not be speaking to the Board and as such, would have
no impact on the Board’s decision. Nevertheless, the Board agreed to caucus to
consider your request. It was the decision of the Board that we were going to
proceed with the hearing, as we were in receipt of two letters of support from
your common-law and that you had your assistant present. When presented with
this position, you declined to proceed with the hearing even after being
informed that the Board would be making a decision today.
[8]
The
Appeal Division determined that the Board’s decision to deny the Applicant’s
request for a postponement and proceed with the hearing was reasonable and that
the written reasons clearly set out the reasons for denying the request and
were well supported. The Appeal Division noted that it was the Board’s
discretion to decide whether to postpone and reschedule the hearing and that
the Applicant could not explain at the time why his common-law spouse had not
submitted the required forms or why she was not present at the hearing.
III. Standard
of Review
[9]
When
reviewing a decision of the National Parole Board Appeal Division, the standard
of review for questions of law and procedural fairness is correctness while
other issues are reviewable on a reasonableness standard (Dunsmuir v. New
Brunswick,
2008 SCC 9, [2008] 1 S.C.R. 190; Latham v. Canada, 2006 FC
284, 288 F.T.R. 37).
[10]
The
Court should show a high degree of deference to decisions of the Appeal
Division as it is a respected expert tribunal (Canada (Citizenship and
Immigration) v. Khosa, 2009 SCC 12, [2009] 1 S.C.R. 339; Latham,
above).
III. Issues
[11]
The
issues raised by the Applicant can be set out as such:
(a) Was the decision of the Appeal
Division to uphold the Board’s refusal to grant an adjournment unreasonable?
(b) Did
the decision violate the principles of procedural fairness or result in a denial
of natural justice?
[12]
It
is important to note that the Applicant did not have an absolute right to an
observer at his hearing. Section 9.3 of the National Parole Board Policy
Manual (the Manual) states that the purpose of observers at hearings is to
increase the openness and public understanding of the Board’s decision making
and increase the accountability of the Board.
[13]
I
agree with the Respondent that the language in the Corrections and
Conditional Release Act, S.C. 1992, c. 20 s. 140(4) is clear that to attend
a hearing as an observer the person must apply in writing. I also agree that
the Board’s Policy Manual states that a person who wants to attend a hearing as
an observer must submit a request in writing sufficiently far in advance of the
hearing to permit the Board to make an informed decision (see the Manual,
section 9.3).
A. Adjournments
[14]
The
Applicant agrees that the Board’s power to grant an adjournment under sections
157 and 158 of the Correction and Release Regulations, SOR/92-620 is
discretionary, but argues that this power must be exercised with a balanced,
judicious and fair approach. I note that these sections do envision the
involvement of the offender in the process, as subsections 157(3) and 158(3)
address the discretion of the Board to postpone a review with the “consent of
the offender”.
[15]
Under
section 9.8 of the Manual, reviews may be postponed for reasons such as, but
not limited to, when procedural safeguards cannot be met or the offender’s assistant
is unable to be present. The Manual continues setting out that a hearing may be
postponed at the request of the offender for a valid reason, but not to
frustrate the system. The Applicant takes the position that the possible
“valid” reasons for an adjournment are unlimited. He argues that his reasons
were valid and that there was no evidence that the he was using the adjournment
request to frustrate or control the system, or in any capricious or vexatious
manner.
[16]
However,
section 9.8, in which the issue of “valid” reasons is raised, is not relevant
to this case. Section 9.8 addresses postponements and in this matter the Applicant
wanted an adjournment. Adjournments are addressed in section 9.6 of the Manual.
Section 9.6 states that the Board may adjourn a detention review at the request
of an offender. This is a discretionary decision.
[17]
In
the event that section 9.8 is considered relevant, as I note that the term
postponement was used by the Board and Appeal Division, I agree with the
Applicant that the list of possible “valid” reasons is not limited to those
listed in section 9.8. However, the Board retains the discretionary decision to
determine when a reason is “valid”.
[18]
The
Board’s exercise of its discretion, either under 9.6 or 9.8 of the Manual, was
reasonable and fit within the regulatory scheme and the stated purpose of having
observers at the hearing. The Board caucused to consider the Applicant’s
request, but did not adjourn the hearing as the Applicant’s common-law wife had
submitted two letters of support and would not be speaking at the hearing and
the Applicant’s assistant was present. This was reasonable.
B. Procedural
Unfairness and Natural Justice
[19]
It
is the Applicant’s position that the Board ignored or misunderstood the
fundamental reason for the adjournment, which was the support of his common-law
wife, and in doing so acted unreasonably resulting in procedural unfairness.
[20]
The
duty of fairness requires that there is an opportunity to be heard and present
proofs and arguments to the decision maker. The Applicant was given that
opportunity, with the assistance of his Counsel. There is no evidence that that
Board denied the adjournment in an unreasonable manner or in a violation of
justice (see Jones & de Villars, Principles of Administrative Law (Toronto: Thomson
Canada Limited, 2004), pp. 309-313; B.S.O.I.W., Local 752 v. Millwright
& Machine Electors, Local 1178 (1992), 114 N.S.R. (2d) 303, 7 Admin.
L.R. (2d) 179 (NSTD)).
[21]
Finally,
it is the Applicant’s position that the Appeal Division relied on irrelevant
information when it noted that the Applicant could not explain why the Applicant’s
common-law spouse had not submitted the required forms and by asserting that
his common-law spouse would have no impact on the decision. In its written
decision the Board relied on the fact that they were in receipt of two letters
of support from the Applicant’s common-law spouse and that the Applicant had
his assistant present. The Appeal Division’s upholding of these reasons did not
result in procedural fairness or offend natural justice.
[22]
The
decision of the Appeal Division to uphold the decision of the Board was
reasonable and there were no errors in procedural fairness or denials of
natural justice.
JUDGMENT
THIS COURT
ORDERS AND ADJUDGES that this
application for judicial review is dismissed with costs to the Respondent.
“ D.
G. Near ”
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