Date: 20070529
Docket: T-1041-06
Citation: 2007 FC 562
Ottawa, Ontario, May 29,
2007
PRESENT: The Honourable Madam Justice Snider
BETWEEN:
INDERJIT SINGH REYAT
Applicant
and
THE ATTORNEY GENERAL OF CANADA
Respondent
REASONS FOR ORDER AND ORDER
1. Introduction
[1] The Applicant, Inderjit
Singh Reyat, seeks to set aside a decision of the Appeal Division of the
National Parole Board (Appeal Division) dated May 29, 2006. In that decision,
the Appeal Division affirmed a decision of a panel of the National Parole Board
(the Board) to detain the Applicant until the end of his sentence (referred to
as the warrant expiry date).
[2] The facts of this
particular application begin on February 10, 2003, when the Applicant entered a
guilty plea to the charge of manslaughter in connection with the incident
commonly referred to as the Air India bombing. In 1991, the Applicant had been
convicted and served a ten year sentence for manslaughter related to the
explosion at Narita Airport in Japan that killed two baggage
handlers. For his part in the Air India bombing, the Applicant was sentenced to
five years incarceration.
[3] Under s. 127 of the Corrections
and Conditional Release Act, S.C. 1992, c. 20 (the CCRA), the
Applicant was eligible for statutory release in June 2006. Following a
recommendation by the Institutional Detention Review Board that his detention
be continued, the case was referred to the Board for a detention review. In a
decision dated March 13, 2006, the Board was satisfied that, if released, the Applicant
is likely to commit an offence causing death or serious harm to another person
prior to the expiration of his sentence and concluded that the Applicant was to
“be held in confinement until the expiration, according to law, of the sentence
being served at the time of the Order or until such time as the National Parole
Board otherwise so directs”.
[4] The Applicant’s appeal
to the Appeal Division was denied. The Appeal Division concluded that:
[T]he
Appeal Division is satisfied that the Board conducted a fair risk assessment.
In our view, the Board’s conclusion to detain you is reasonable, supported by
relevant, reliable and persuasive information and is consistent with the
detention criteria set out in law and Board policy. The Board’s decision is the
least restrictive determination consistent with the protection of society.
[5] In this case, the Appeal
Division affirmed the decision of the Board. In the circumstances of this
application for judicial review, it follows that this Court is, in effect,
reviewing the Board’s decision (Ngo v. Canada (Attorney General), 2005 FC 49, 268 F.T.R.
64, [2005] F.C.J. No. 71 at para. 8 (F.C.) (QL); Ng v. Canada, 2003 FCT
781, 236 F.T.R. 129, [2003] F.C.J. No. 1018 at para. 15 (F.C.T.D.) (QL)).
2. Issues
[6] The only issue in this
application is whether the Board (and, thus, the Appeal Division) erred in
determining that the Applicant is likely, if released, to commit an offence
causing the death of or serious harm to another person (CCRA, s.
130(3)(a)). The Applicant raises three related issues specific to the Board’s
decision in this case:
- Did the Board err by making its decision
without evidence before it that the Applicant was likely to re-offend?
- Did the Board make an error of fact by
concluding that “a pattern of persistent, violent behaviour has been
established”?
- Did the Board err by relying on a finding
that the Applicant was not credible?
[7] I will discuss each of
these alleged errors in the analysis section that follows.
3. Analysis
3.1 Statutory scheme
[8] Let me begin by
reviewing the task before the Board and the Appeal Division. Under the
provisions of the CCRA, the Applicant was entitled to be released on his
“statutory release date”. That is, the CCRA provides that the Applicant was
subject to statutory release on “the day on which the offender completes two
thirds of the sentence” (CCRA, s. 127(3)). A statutory release is not
automatic, however. Every case of statutory release must be reviewed (CCRA,
s. 129). Where there is an opinion that “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”, the matter is referred to the Board for a hearing (in this case, under
s. 129(2) of the CCRA). The Board, under the provisions of s. 130,
conducts a detention review. The Board has a number of options open to it; the
one of relevance to this application is set out in s. 130(3)(a). Under this
provision the Board may order that the offender not be released until the
expiration of his sentence where the Board is satisfied that the offender is
likely, if released, to commit an offence causing the death of or serious harm
to another person. In s. 132(1) of the CCRA, the Board is directed to
take into consideration any factor that is relevant, including the following:
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(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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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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[9] The Appeal Division’s
mandate in this case is set out in s. 147 of the CCRA. The grounds upon
which an appeal of the Board’s decision may be brought are set out in s.
147(1):
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147.1 (1) An offender may appeal a decision of the Board to the Appeal
Division on the ground that the Board, in making its decision,
(a) failed to observe a principle of fundamental justice;
(b) made an error of law;
(c) breached or failed to apply a policy adopted pursuant to subsection
151(2);
(d) based its decision on erroneous or incomplete information; or
(e) acted without jurisdiction or beyond its jurisdiction, or failed to
exercise its jurisdiction.
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147.1 (1) Le
délinquant visé par une décision de la Commission peut interjeter appel
auprès de la Section d’appel pour l’un ou plusieurs des motifs suivants :
a) la Commission a violé un principe de justice
fondamentale;
b) elle a commis une erreur de droit en rendant sa
décision;
c) elle a contrevenu aux directives établies aux termes
du paragraphe 151(2) ou ne les a pas appliquées;
d) elle a fondé sa décision sur des renseignements
erronés ou incomplets;
e) elle a agi sans compétence, outrepassé celle-ci ou
omis de l’exercer.
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[10] Finally, I note that
Parliament has established principles to guide those persons and bodies
responsible for granting parole. These are set out in s. 101 of the CCRA:
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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.
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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;
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.
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[11] In discussing these
principles, Justice Décary of the Federal Court of Appeal stressed the
importance of the protection of society in Cartier v. Canada (Attorney
General), 300 N.R. 362, [2003] 2 F.C. 317 at paras. 13 and 19:
[W]hether
parole or statutory release is in question, when the time comes for the Board
to exercise its discretion it is the overriding interests of society which must
take precedence over the offender's interests.
.
. .
The
proposition that in the event of ambiguity the Act should be interpreted in the
offender's favour is correct in so far as it means that once society's
protection is guaranteed the Board should, in a given case, choose the solution
which is less injurious to the offender's freedom. However, it is incorrect
insofar as the Act has to ensure at the outset that society is protected: if
there is any ambiguity in that regard, it will operate in favour of the public
interest rather than in the interests of the offender. I understand from s.
101(a) of the Act that Parliament's intention was to make the "protection
of society" test the "paramount consideration". This concern to
give priority to the protection of society is also expressed in s. 101(d),
according to which "parole boards [shall] make the least restrictive
determination consistent with the protection of society".
[12] This is the statutory
context in which the Board and the Appeal Division made their decisions that
the Applicant should not be released before his warrant expiry date. This is
also the context in which I must review their decisions.
3.2 Standard of Review
[13] The parties are agreed
that, overall, the standard of review to be applied to the decision of the
Appeal Division is that of reasonableness simpliciter (Cartier,
above at para. 9). However, the Respondent submits that the overarching issue
in this proceeding involves the weighing of the evidence before the Board and
the Appeal Division; the question should be determined on a standard of patent
unreasonableness (Scott v. Canada (Attorney General), 2003 FC 1215, 58
W.C.B. (2d) 605, [2003] F.C.J. No. 1541 at para. 15 (F.C.) (QL)). It is
unnecessary to make a final determination on the question of standard of review
since, for the reasons below, I am satisfied that, regardless of which of the
two standards is applied, there is no basis to intervene in the decision.
3.3 Analysis of the Decision and Alleged
Errors
[14] Overall, the decision of
the Board is detailed and well-reasoned. The Board did not fail to consider any
of the factors set out in s. 132(1) or any of the evidence before it. In its
decision, the Board explains each of its findings. Similarly, the decision of
the Appeal Division shows that it considered all of the submissions of the
Applicant in coming to its conclusion that the Board’s decision should be
affirmed.
[15] Before me, the Applicant
acknowledges that, in reaching its decision, the Board did not ignore any
evidence before it. Further, the Applicant does not argue that the Board (or
the Appeal Division) applied the wrong legal test. Rather, the Applicant
submits that the Board had no evidence before it upon which to conclude
that the Applicant is likely to commit an offence causing the death or serious
harm to another person prior to the expiration of his sentence. Further, the
Applicant asserts that the Board made one factual error upon which, at least in
part, it based its decision. Thus, the Applicant points to three areas where
the Board allegedly erred in its assessment of the evidence before it.
- The Board erred in concluding that there
was a pattern of violent behaviour;
- The Board ignored the psychiatric report of
Dr. De Freitas where she concluded that the Applicant was not likely to
cause death of serious harm to others; and
- The Board erred by relying on its lack of
credibility finding.
[16] I will consider each of
these areas of alleged errors.
3.3.1 The “pattern” of violence
[17] In its decision, the Board
concluded that “a pattern of persistent, violent behaviour has been
established”. The Appeal Division, in its review, found no error in that
conclusion.
[18] The Applicant submits
that the Board erred in its statement that the two convictions of the Applicant
“constitutes a pattern of persistent violent behaviour”. In fact, the Applicant
argues, both his manslaughter conviction in 1991 for the explosion at Narita Airport and his conviction for
his role in the Air India bombing relate to the same transaction by the
Applicant. Specifically, he asserts that he only once purchased materials for
the making of the bombs used in both instances. Thus, he argues, there is no
“pattern”.
[19] Pursuant to s.
132(1)(a), the Board is required to consider whether there was a “pattern of
persistent violent behaviour” (s. 132(1)(a)). The provision continues by
listing the types of evidence that the Board should take into account in
establishing a “pattern”. Included in that list is “the number of offences
committed by the offender” (s. 132(1)(a)(i)). While it may be true that the
Applicant made only one purchase of materials used to make explosive devices,
it is undisputed that he was convicted of two separate offences. In
addition, as noted by the Board and the Appeal Division, the Applicant’s record
also include a weapons offence (possession of an unregistered 357 magnum
handgun) that was unrelated to the manslaughter convictions. On this evidence,
it was not unreasonable for the Board to conclude that there was a “pattern of
persistent violent behaviour”.
3.3.2 The psychiatric reports
[20] As noted above, Dr. De
Freitas concluded that the Applicant was not likely to cause death or serious
harm. A second report, entitled, “Pre-parole Psychiatric Assessment”, was prepared
by Dr. Dickey. The Applicant points out that, in this report, Dr. Dickey did
not express an opinion that the Applicant was likely to re-offend. In light of
this evidence, the Applicant submits that the Board erred in its assessment. I
do not agree.
[21] The Board is not bound
by the psychiatric reports; rather, the Board must bring its own expertise to
bear on the assessments. The Federal Court of Appeal has stated that the
expert opinions, although relevant and important, cannot, in most cases, be determinative
(Condo v. Canada (Attorney General), 2005 FCA 391, 67 W.C.B. (2d) 847,
[2005] F.C.J. No. 1951 at para. 42 (F.C.A.) (QL)). They are a factor to be
considered with all other relevant factors (Condo, above at para. 42).
[22] In this case, it is
important to read the reports carefully. Although Dr. De Freitas concluded that
the Applicant was unlikely to re-offend, she also acknowledged difficulties in
assessing risk in “this type of violence”. In contrast to Dr. De Freitas’
conclusion, Dr. Dickey expressed the view that:
All
that one can say from a psychiatric perspective is that his current
presentation does not engender confidence in his abstaining from well organized
behaviour or involvement associated with very bad trouble, be it directly or indirectly
and this, in turn, being related to serious victim impact.
[23] The Board’s decision
demonstrates that the Board carefully reviewed the psychiatric reports.
However, the Board concluded that it “can put little weight on such assessments
in determining the risk in your specific area”. Given the content of those
reports, this statement is not unreasonable.
3.3.3 Credibility
[24] The Board found that,
during his testimony in the hearing before the Board, the Applicant had
provided “answers to questions . . . that are at variance with statements that
you have made, or have been ascribed to you on previous occasions”. The Board
stated that:
The
Board finds these discrepancies to be relevant to our decision, as they have
led the Board to conclude that you have been evasive and contradictory in your
statements today and that as a consequence, you have very little credibility.
[25] The Applicant argues
that the Board cannot rely on a lack of credibility when there is no other
evidence capable of supporting a conclusion that the Applicant is likely to
commit an offence, relying on D.W. v. The Queen, [1991] 1 S.C.R. 742 at
757, 122 N.R. 277, 63 C.C.C. (3d) 397. The Applicant interprets the conclusion
of the majority of the Supreme Court as “even if the accused is disbelieved in
total but there is reasonable doubt on the accepted evidence, an acquittal
should ensue”. As applied to this application, the Applicant asserts that, even
if the Board did not believe him, the remaining evidence does not support a
finding that he is likely to re-offend. Thus, argues the Applicant, his
credibility should not be a relevant factor.
[26] The main problem with
this argument is that the Board is not conducting a criminal trial. In the
context of administering the parole and statutory release provisions of the CCRA,
the Board is applying a statutory scheme with the protection of society being
the paramount consideration (CCRA, s. 101; Ngo, above at
paras. 22 - 24 and should not import criminal standards into their hearings (Ngo,
above; Giroux v. Canada (National Parole Board), 89 F.T.R. 307 at 313 -
314, 51 A.C.W.S. (3d) 1057, [1994] F.C.J. No. 1750 (F.C.T.D.) (QL)).
[27] In
undertaking its review, it appears to me that the Applicant’s credibility is
very relevant to the Board’s assessment of the likelihood that the Applicant
may commit another offence that could cause death or serious harm. Reliance on
credibility does not, as asserted by the Applicant, reverse the onus. Rather,
the Board is merely examining credibility as a factor in its decision making.
It is entitled to do so.
4. Conclusion
[28] In
summary, I can see no error that requires the intervention of the Court. A
review of the decision of the Board shows that the Board considered all of the
relevant factors as required under the CCRA, did not ignore any evidence
before it, did not take irrelevant considerations into account and explained –
in a logical and thoughtful manner – the reasons for its conclusions. In
rejecting the appeal of the Board’s decision, the Appeal Division was similarly
reasonable. In other words, the decisions of the Board and the Appeal Division
can withstand a somewhat probing examination. Accordingly, the Application for
Judicial Review will be dismissed with costs to the Respondent.
ORDER
This Court orders that:
1.
The application for judicial review is dismissed with costs to the Respondent.
“Judith A. Snider”
______________________________
Judge
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