Date: 20080225
Docket: T-802-07
Citation:
2008 FC 248
Ottawa, Ontario, February 25,
2008
Present:
The Honourable Mr. Justice de Montigny
BETWEEN:
JEAN-CLAUDE
BOUCHARD
Applicant
and
NATIONAL PAROLE BOARD
AND
ATTORNEY GENERAL OF CANADA
Respondents
REASONS FOR JUDGMENT AND JUDGMENT
[1]
The
applicant is currently being detained at the Laval Federal Training Centre, a
minimum security penitentiary. His application for judicial review concerns a
decision of the Appeal Division of the National Parole Board (the Appeal
Division) dated April 10, 2007. This decision dismissed the applicant’s appeal against
a decision of the National Parole Board (the Board) denying him any type of parole.
For the reasons that follow, I am of the opinion that this application for judicial
review must be dismissed.
I. Facts
[2]
The
applicant has a significant criminal record which began in 1972 with
convictions for property offences as well as for assaulting a peace officer. He
also admitted to having committed several robberies not appearing in his
record.
[3]
After completing
a term of mandatory supervision in 1974, he reoffended and was sentenced a
second time in 1976 for three counts of rape. During this sentence, there were
suspensions and revocations of release because of breaches of conditions and
repeat offences. In 1980, he committed new armed robberies with a loaded
revolver. Finally, he was arrested for first-degree murder in 1982, after he
had been on mandatory supervision for about one month. He was then sentenced to
life imprisonment without eligibility for parole for 25 years.
[4]
During the
first years of his incarceration, Mr. Bouchard was viewed as a leader
within the maximum security institution where he was detained. According to
various sources of information, he was apparently involved in drug trafficking
and in terrorizing, threatening and assaulting other inmates. However, a few
years later, he stopped taking drugs and alcohol and began to take part in
rehabilitation programs.
[5]
Because of
his exemplary conduct, he was transferred to a medium-security institution in
1991, and then to a minimum-security one in 1997. The applicant was also
entitled to several escorted temporary absences between 2000 and 2003.
[6]
In 2002, Mr.
Bouchard applied for judicial review to obtain a reduction in the number
of years of imprisonment without eligibility for parole, pursuant to section 745.6 of the Criminal
Code, R.S.C. 1985, c. C-46. On December 12, 2002, the Quebec Superior Court
allowed his application and consequently brought forward his eligibility to
apply for parole to the very day of the judgment.
[7]
Following
this decision, the Board scheduled a hearing for the month of May 2003.
For reasons which are not quite clear, it seems that the applicant’s conduct took
a turn for the worse following the decision of the Superior Court. He stopped
taking part in programs and allegedly had problems during his temporary
absences and threatened an inmate. Accordingly, his case management team
recommended that he postpone his hearing before the Board. Mr. Bouchard,
who was of the view that his right to parole had been infringed, refused to
postpone his hearing.
[8]
In mid February,
Mr. Bouchard sent a letter to the Board in which he denounced certain
activities of other inmates and complained that he had been denied certain
privileges which had nevertheless been granted to other less-deserving inmates.
A few days later, after having read this letter, the warden of the institution
authorized Mr. Bouchard’s involuntary confinement in administrative segregation.
This decision was based on Mr. Bouchard’s refusal to change his behaviour and
acknowledge his difficulties with staff members and inmates. It was also determined
that Mr. Bouchard’s letter to the Board was evidence of [translation] “serious personal
disorganization.” The applicant remained in segregation for 70 days and
was then transferred to a medium security institution. It was also decided that
his security rating be raised to medium.
[9]
These
decisions of the Correctional Service were grieved by the applicant. In a
decision dated June 16, 2003, my colleague Madam Justice Johanne Gauthier
allowed Mr. Bouchard’s application for judicial review and referred the applicant’s
grievance back for rehearing. This decision was rendered on the basis of the fact
that the decision-maker had breached its obligation to act fairly because the relevant
evidence on record had not been considered. However, Gauthier J. was
careful to note that the Court did not have jurisdiction to order the
Correctional Service or the Board to do anything in connection with the
applicant’s parole. The redetermination of the applicant’s grievance was
subject to a new application for judicial review, which was dismissed by my
colleague Mr. Justice Michel Shore on June 7, 2007.
[10]
The applicant’s
hearing before the Board, which was initially to have been held in May 2003,
was initially postponed for 60 days because of a failure to file required
documents. It was once again postponed at Mr. Bouchard’s request, who was
of the view that a security rating of medium reduced his chances of succeeding.
In September 2003, the claimant’s security rating was reduced to “minimum,”
and he was transferred to a minimum-security institution in early October 2003.
[11]
The Board
hearing was finally held on February 25, 2004. The Board dismissed Mr. Bouchard’s
application for parole and stated that he would not be allowed to reappear
before the Board for two years. This decision was upheld by the Appeal Division
on May 3,
2004, and no
application for judicial review was brought against this decision.
[12]
On July
25, 2006, the Board held a new hearing to consider the applicant’s eligibility for
various types of parole. Once again, the Board concluded that it was
inappropriate to award any type of parole to the applicant.
[13]
After
reviewing the applicant’s record and criminal behaviour and analyzing the
various assessments conducted since 1995, the Board noted the applicant’s
significant improvement in behaviour. However, the Board also noted the
deterioration in his behaviour in recent years and, in particular, his negative
and inadequate attitude, which had resulted in the end of his program of escorted
temporary absences in 2003. The applicant had been in this program for two
years.
[14]
The Board reported
that this change in behaviour coincided with the favourable decision the
applicant had obtained in 2002, making him immediately eligible for parole. The
applicant’s subsequent negative attitude led to his placement in administrative
segregation and to his transfer to a medium security institution. Nevertheless,
the Board noted that the applicant had shown a more positive attitude and had become
involved in social and academic activities in prison since returning to a
minimum-security institution.
[15]
The Board reported
the applicant’s refusal to participate in an emotion management program and in
escorted temporary absences, thereby slowing down his gradual release process.
It also stated that his intransigence, his [translation]
“confrontational way of interacting” and his propensity for making a lot
of demands had hindered his rehabilitation.
[16]
Finally,
the Board took into consideration the case management team’s assessment, which
concluded that any type of release for the applicant still represented an unacceptable
risk for society, taking into account the high risk of reoffending, his
difficulty complying with his periods of release, his refusal to participate in
programs, his intransigent attitude and his denial of his offences. The team
concluded that it was up to the applicant to shore up his credibility by
participating in programs for his escorted gradual release back into the
community. The Board concluded as follows:
[translation]
For now, the Board is of the opinion that
it is not appropriate to grant the applicant a program of unescorted temporary
absence, day parole or full parole. In fact, considering the present situation
which persists in your relationship with your case management team, it is
wishful thinking to think that you would be more co-operative in the community.
Therefore, this situation makes the risk of these types of release unacceptable.
Board record, tab 3, page 5.
[17]
The
applicant appealed this decision before the Appeal Division, pursuant to
section 147 of the Corrections and Conditional Release Act, S.C.
1992, c. 20 (the Act).
II. Impugned decision
[18]
The Appeal
Division concluded that the Board had rendered a reasonable decision that was
based on the evidence and that was the least restrictive possible, taking into
consideration the applicant’s risk to society.
[19]
After
having listened to the recording of the Board hearing and after having read its
reasons, the Appeal Division endorsed the Board’s assessment of the evidence
which had been submitted to it. It concluded that the Board members were well
aware of the violent nature of the applicant’s criminality, the nature of his
offences, the denial of his crime, the progress he had made and of his deterioration
in recent years. The Appeal Division also noted that the Board had taken into
consideration the 2005 psychological assessment of the applicant’s significant
risk of reoffending, of his lack of involvement in his correctional plan and of
his mistrust of the Correctional Service.
[20]
Taking all
these factors into consideration, the Appeal Division concluded that the
applicant’s meagre progress, his hostility toward the Correctional Service and
his high level of risk
warranted the Board’s decision to the effect that he was not likely to be more
co-operative in the community. Here is what the Appeal Division wrote on this
point:
[translation]
Considering the nature of your
criminality, the denial of the offence of murder, your refusal to participate
in programs, your level of risk of violent recidivism and the mistrust you have
of your case management team, the Board has concluded that it would be
difficult to your risk with any type of release.
Mr. Bouchard, the Appeal Division is
satisfied that the Board’s decisions are reasonable and based on relevant,
sufficient and reliable information. You are serving a life sentence for first
degree murder, and the addendum to the Assessment for Decision dated June 27, 2006, and the Assessment for
Decision dated December 9, 2005, clearly show your lack of progress and your
hostility toward the CSC. Considering the relationship
you have with CSC staff and of the level of risk you present, it was not
unreasonable for the members to conclude that you would not be able to be more
co-operative with the CSC staff in the community. In
addition, the results of the psychological assessment conducted on May 5, 2003,
show your disorganization and problem behaviour at that time. Finally, the
Federal Court decision was in fact discussed at the hearing. Therefore,
contrary to the arguments raised in your submissions on appeal, the Appeal
Division concludes that the Board had sufficient credible information and more
than enough discretion to render the decisions made in your case. In addition,
we are satisfied that the decisions made by the Board in your case last July
are reasonable and in compliance with the Act and NPB policies. The Board
rendered the least restrictive decisions possible, taking the protection of
society into consideration.
Board record, tab 1, pages 3-4.
III. Issues
[21]
The
applicant, who represented himself, raised numerous issues to be dealt with in
this present application for judicial review. However, some of them cannot be
considered for the purposes of this application, insofar as they had not been
submitted to the Appeal Division and to the Board. Others had already been
dealt with in other proceedings initiated by the applicant. After having
attentively considered Mr. Bouchard’s written and oral submissions, it seems to
me that his arguments, which were very well presented, essentially focus on the
following two issues:
·
Did the
Board and the Appeal Division err in their analysis of the risk posed by the
applicant?
·
Does the continuing
detention of the applicant constitute cruel and unusual punishment within the
meaning of section 12 of the Canadian Charter of Rights and Freedoms
(the Charter)?
IV. Relevant statutory provisions
Corrections and Conditional Release Act (1992, c. 20)
|
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.
Criteria
for granting parole
102.
The Board or a provincial parole board may grant parole to an offender if, in
its opinion,
(a)
the offender will not, by reoffending, present an undue risk to society
before the expiration according to law of the sentence the offender is serving;
and
(b)
the release of the offender will contribute to the protection of society by
facilitating the reintegration of the offender into society as a law-abiding
citizen.
Conditions
for authorization
116.
(1) The Board may authorize the unescorted temporary absence of an offender
referred to in paragraph 107(1)(e) where, in the opinion of the Board,
(a) the offender will not, by
reoffending, present an undue risk to society during the absence;
(b) it is desirable for the
offender to be absent from penitentiary for medical, administrative,
community service, family contact, personal development for rehabilitative
purposes, or compassionate reasons, including parental responsibilities;
(c) the offender’s behaviour
while under sentence does not preclude authorizing the absence; and
(d) a structured plan for the
absence has been prepared.
Idem
(2)
The Commissioner or the institutional head may authorize the unescorted
temporary absence of an offender, other than an offender referred to in
paragraph 107(1)(e), where, in the opinion of the Commissioner or the
institutional head, as the case may be, the criteria set out in paragraphs
(1)(a) to (d) are met.
Medical
reasons
(3)
An unescorted temporary absence for medical reasons may be authorized for an
unlimited period.
Personal
development or community service
(4)
Subject to subsection (6), an unescorted temporary absence for reasons of
community service or personal development may be authorized for a maximum of
fifteen days, at the rate of not more than three times a year for an offender
classified by the Service as a medium security offender and not more than
four times a year for an offender classified as a minimum security offender.
Intervals
(5)
An unescorted temporary absence authorized for reasons referred to in
subsection (4) must be followed by a period of custody of at least seven days
before the next such absence.
Exception
(6)
An unescorted temporary absence for purposes of a specific personal
development program may be authorized for a maximum of sixty days and may be
renewed, for periods of up to sixty days each, for the purposes of the
program.
Absences
for other reasons
(7)
Unescorted temporary absences for reasons other than those referred to in
subsection (3) or (4) may be authorized for a maximum total of forty-eight
hours per month for an offender classified by the Service as a medium
security offender, and for a maximum total of seventy-two hours per month for
an offender classified as a minimum security offender.
Regulations
(8)
The circumstances and manner in which, and the time at which, an application
for an unescorted temporary absence must be made shall be prescribed by the
regulations.
Travel
time
(9)
In addition to the period authorized for the purposes of an unescorted
temporary absence, an offender may be granted the time necessary to travel to
and from the place where the absence is authorized to be spent.
Cancellation
of absence
(10)
The Board, the Commissioner or the institutional head, whichever authorized a
particular unescorted temporary absence of an offender, may cancel that
absence, either before or after its commencement,
(a) where the cancellation is
considered necessary and reasonable to prevent a breach of a condition of the
absence or where such a breach has occurred;
(b) where the grounds for
granting the absence have changed or no longer exist; or
(c) after a review of the
offender’s case based on information that could not reasonably have been
provided when the absence was authorized.
Right
of appeal
147.
(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.
Decision
of Vice-Chairperson
(2)
The Vice-Chairperson, Appeal Division, may refuse to hear an appeal, without
causing a full review of the case to be undertaken, where, in the opinion of
the Vice-Chairperson,
(a) the appeal is frivolous or
vexatious;
(b) the relief sought is beyond
the jurisdiction of the Board;
(c) the appeal is based on
information or on a new parole or statutory release plan that was not before
the Board when it rendered the decision appealed from; or
(d) at the time the notice of
appeal is received by the Appeal Division, the offender has ninety days or
less to serve before being released from imprisonment.
Time
and manner of appeal
(3)
The time within which and the manner in which a decision of the Board may be
appealed shall be as prescribed by the regulations.
Decision
on appeal
(4)
The Appeal Division, on the completion of a review of a decision appealed
from, may
(a) affirm the decision;
(b) affirm the decision but
order a further review of the case by the Board on a date earlier than the
date otherwise provided for the next review;
(c) order a new review of the
case by the Board and order the continuation of the decision pending the
review; or
(d) reverse, cancel or vary the
decision.
Conditions
of immediate release
(5)
The Appeal Division shall not render a decision under subsection (4) that
results in the immediate release of an offender from imprisonment unless it
is satisfied that
(a) the decision appealed from
cannot reasonably be supported in law, under the applicable policies of the Board,
or on the basis of the information available to the Board in its review of
the case; and
(b) a delay in releasing the
offender from imprisonment would be unfair.
|
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.
Critères
102.
La Commission et les commissions provinciales peuvent autoriser la libération
conditionnelle si elles sont d’avis qu’une récidive du délinquant avant l’expiration
légale de la peine qu’il purge ne présentera pas un risque inacceptable pour
la société et que cette libération contribuera à la protection de celle-ci en
favorisant sa réinsertion sociale en tant que citoyen respectueux des lois.
Motifs
de l’octroi
116.
(1) La Commission peut autoriser le délinquant visé à l’alinéa 107(1)e) à
sortir sans escorte lorsque, à son avis, les conditions suivantes sont
remplies :
a) une récidive du délinquant pendant
la sortie ne présentera pas un risque inacceptable pour la société;
b) elle l’estime souhaitable pour des
raisons médicales, administratives, de compassion ou en vue d’un service à la
collectivité, ou du perfectionnement personnel lié à la réadaptation du
délinquant, ou pour lui permettre d’établir ou d’entretenir des rapports
familiaux notamment en ce qui touche ses responsabilités parentales;
c) sa conduite pendant la détention ne
justifie pas un refus;
d) un projet de sortie structuré a été
établi.
Idem
(2)
Le commissaire ou le directeur du pénitencier peut accorder une permission de
sortir sans escorte à tout délinquant, autre qu’un délinquant visé à l’alinéa
107(1)e), lorsque, à son avis, ces mêmes conditions sont remplies.
Raisons
médicales
(3)
Les permissions de sortir sans escorte pour raisons médicales peuvent être
accordées pour une période illimitée.
Services
à la collectivité et perfectionnement personnel
(4)
Les permissions de sortir sans escorte pour service à la collectivité ou pour
perfectionnement personnel peuvent être accordées pour une période maximale
de quinze jours au plus trois fois par an dans le cas des délinquants qui, en
application d’une décision du Service font partie de la catégorie dite « à
sécurité moyenne », et quatre fois par an dans le cas de ceux qui font partie
de la catégorie dite « à sécurité minimale ».
Intervalle
minimal
(5)
L’intervalle minimal de détention entre les sorties visées au paragraphe (4)
est de sept jours.
Exception
(6)
Lorsque le délinquant suit un programme particulier de perfectionnement
personnel, la permission de sortir peut toutefois être accordée pour une
période maximale de soixante jours et renouvelée pour des périodes
additionnelles d’au plus soixante jours.
Autres
cas
(7)
Pour des raisons autres que celles qui sont mentionnées aux paragraphes (3)
ou (4), des permissions de sortir sans escorte peuvent être accordées pour
une période maximale de quarante-huit heures par mois, dans le cas des
délinquants qui font partie de la catégorie dite « à sécurité moyenne », et
de soixante-douze heures par mois, s’ils font partie de celle dite « à
sécurité minimale ».
Demandes
de permission
(8)
Les demandes de permission de sortir sans escorte se font selon les modalités
réglementaires de temps et autres.
Temps
de déplacement
(9)
La durée de validité de la permission de sortir sans escorte ne comprend pas
le temps qui peut être accordé pour les déplacements entre le lieu de
détention et la destination du délinquant.
Annulation
de la sortie
(10)
L’autorité qui a accordé une permission de sortir sans escorte peut, soit
avant, soit après la sortie du délinquant, l’annuler dans les cas suivants :
a) l’annulation paraît nécessaire et
justifiée par suite de la violation d’une des conditions ou pour empêcher une
telle violation;
b) les motifs de la décision d’accorder
la permission ont changé ou n’existent plus;
c) on a procédé au réexamen du dossier
à la lumière de renseignements qui ne pouvaient raisonnablement avoir été
communiqués lors de l’octroi de la permission.
Droit
d’appel
147.
(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.
Décision
du vice-président
(2)
Le vice-président de la Section d’appel peut refuser d’entendre un appel sans
qu’il y ait réexamen complet du dossier dans les cas suivants lorsque, à son
avis :
a) l’appel est mal fondé et vexatoire;
b) le recours envisagé ou la décision
demandée ne relève pas de la compétence de la Commission;
c) l’appel est fondé sur des
renseignements ou sur un nouveau projet de libération conditionnelle ou d’office
qui n’existaient pas au moment où la décision visée par l’appel a été rendue;
d) lors de la réception de l’avis d’appel
par la Section d’appel, le délinquant a quatre-vingt-dix jours ou moins à
purger.
Délais
et modalités
(3)
Les délais et les modalités d’appel sont fixés par règlement.
Décision
(4)
Au terme de la révision, la Section d’appel peut rendre l’une des décisions
suivantes :
a) confirmer la décision visée par l’appel;
b) confirmer la décision visée par l’appel,
mais ordonner un réexamen du cas avant la date normalement prévue pour le prochain
examen;
c) ordonner un réexamen du cas et
ordonner que la décision reste en vigueur malgré la tenue du nouvel examen;
d) infirmer ou modifier la décision
visée par l’appel.
Mise
en liberté immédiate.
(5)
Si sa décision entraîne la libération immédiate du délinquant, la Section d’appel
doit être convaincue, à la fois, que :
a) la décision visée par l’appel ne
pouvait raisonnablement être fondée en droit, en vertu d’une politique de la
Commission ou sur les renseignements dont celle-ci disposait au moment de l’examen
du cas;
b) le retard apporté à la libération du
délinquant serait inéquitable.
|
V. Analysis
(1) The applicable standard of
review
[22]
At the
hearing, counsel for the respondents submitted that the applicable standard of
review should be patent unreasonableness. In support of his arguments, he relied
on the decision of this Court in Costiuc v. Canada (Attorney General), [1999] F.C.J. No. 241 (QL) [Costiuc],
while admitting that subsequent case law was contradictory and that the issue of
the applicable standard of review was still an open question.
[23]
In Costiuc,
Madam Justice Tremblay-Lamer wrote the following:
[6] The Appeal Division’s function is to
ensure that the NPB has complied with the Act and its policies and has observed
the rules of natural justice and that its decisions are based on relevant and
reliable information. It is only where its findings are manifestly unreasonable
that the intervention of this Court is warranted.
[24]
Following
this decision, the Federal Court of Appeal dealt with the specific role of the
Appeal Division. In Cartier v. Canada (Attorney General), [2003] 2 F.C. 317, the Court
concluded that the Appeal Division was halfway between a court of appeal and a
court of judicial review. This is what it wrote on this point:
[6] The Appeal
Division is a hybrid. It hears the offender’s “appeal” and s. 147(4)(d)
authorizes it to reverse, cancel or vary the decision made by the Commission
against him. That is a power associated with an appeal. However, the grounds of
appeal listed in s. 147(1) are essentially those associated with judicial
review and s. 147(4) uses the phrase “on the completion of a review” (my
emphasis). What is more, s. 147(5)(a) considerably reduces the Appeal
Board’s power of intervention, and at the same time significantly reinforces
the status of the Commission’s decision, when it requires the Appeal Division
to be “satisfied” before rendering a decision “that results in the immediate
release of an offender”
. . . .
[25]
The
Federal Court of Appeal then concluded that the role of the Appeal Division
consisted in ensuring the reasonableness of the Board’s decision. Accordingly,
the Federal Court of Appeal must conduct an analysis of the Board’s decision to
ensure the legality of the decision of the Appeal Division:
[9] If the
applicable standard of review is that of reasonableness when the Appeal
Division reverses the Board’s decision, it seems unlikely that Parliament
intended the standard to be different when the Appeal Division affirms it. I
feel that, though awkwardly, Parliament in s. 147(5)(a) was only
ensuring that the Appeal Division would at all times be guided by the standard
of reasonableness.
[10] The unaccustomed situation in which
the Appeal Division finds itself means caution is necessary in applying the
usual rules of administrative law. The judge in theory has an application for
judicial review from the Appeal Division’s decision before him, but when the
latter has affirmed the Board’s decision he is actually required ultimately to
ensure that the Board’s decision is lawful.
[26]
What is to
be concluded from these excerpts? At first sight, it would seem that this Court
must apply the same standard of review as the Appeal Division, because the
decision subject to judicial review is ultimately that of the Board. This is
the conclusion reached by most of the judges of this Court ruling on issue in
recent years: see for example Ngo v. Canada (Attorney General),
2005 FC 49; Fournier v. Canada (Attorney General), 2004 FC
1124; Aney v. Canada (Attorney General), 2005 FC 182; Tozzi
v. Canada (Attorney General), 2007 FC 825.
[27]
The
respondent, meanwhile, submitted that if the Federal Court were to apply the same
standard of review to Appeal Division decisions that the Appeal Division
applies to Board decisions, judicial review in this Court would in a sense be
transformed into a disguised appeal de novo. According to this logic,
the Court would in a sense be asked to substitute its decision for that of the
Appeal Division.
[28]
Considering
the special facts in this case, I do not think that it is necessary to decide
this issue. For the following reasons, I am of the opinion that this Court
should not interfere with either the Board’s decision or its confirmation by
the Appeal Division, regardless of whether the standard of reasonableness simpliciter
or that of patent unreasonableness is applied.
(2) Did the Board and the
Appeal Division err in their analysis of the risk posed by the applicant
represented?
[29]
The Board
and the Appeal Division must be guided by two factors in their analysis of the advisability
of granting parole to an inmate. Protection of society is undoubtedly a
paramount factor to be considered, as the risk of on an inmate’s reoffending
must not be unacceptable for society. The Board and Appeal Division must also
choose the least restrictive solution, taking into consideration the risk the
inmate poses. Because the Act focuses on the protection of society, an inmate
who poses a risk that cannot be managed in the community will not be granted parole.
[30]
The
applicant has had an exemplary disciplinary record since the early 1990s, and
his progress while in prison is testimony to his good behaviour. This is what
led the Superior Court to bring forward his eligibility for parole in 2002. However,
in spite of this decision in his favour, the Board subsequently refused to
grant the applicant any type of parole.
[31]
Everything
indicates that the applicant’s behaviour changed radically following this
decision by the Superior Court. Perhaps the decision gave Mr. Bouchard a false
hope of impending release, and he felt frustrated when he realized that there
were other hurdles to jump before being released. In any event, his level of co-operation
with prison staff rapidly deteriorated, and in the eyes of the Board, his risk
of reoffending upon release thus increased.
[32]
Regardless
of the reasons for the change in the applicant’s behaviour, I am of the opinion
that the Board and, subsequently, the Appeal Division were warranted in
refusing him parole, given the evidence on record. It was certainly not
unreasonable to think that this lack of co-operation in prison increased his
risk of reoffending and made the risk he posed to society difficult to manage
effectively.
[33]
What do
the assessments of Mr. Bouchard in recent years show? First of all, a
psychological assessment completed on September 23, 2005, concluded that there would
be difficulty in managing full parole or day parole for the applicant because
of his lack of co-operation and his high static risk of reoffending. However,
the psychologist stated that he was in favour of resuming escorted absences to
start and then eventually permitting unescorted absences if the applicant demonstrated
good behaviour.
[34]
Then, on
November 11, 2005, his case management team prepared a new Correctional Plan
Progress Report. In spite of his conformity and lack of violent behaviour, it
was noted that no goals could be established in the applicant’s correctional
plan as long as he continued to have a negative attitude. It was explained in
this follow-up that the applicant refused to get involved in his correctional
plan and had not made any progress since his last assessment. Therefore, the
case management team concluded that full parole for the applicant would not be
realistic, nor would day parole or a program of unescorted temporary absences.
Instead, it was recommended that Mr. Bouchard accept a gradual release, beginning
with a program of escorted temporary absences, which Mr. Bouchard still
refused to accept at that time.
[35]
On December 7, 2005, an Assessment for Decision
recommended denying the applicant’s applications for full parole, day parole
and unescorted temporary absences. The applicant’s risk of reoffending was
considered to be unacceptable because of his high static risk, the difficulty
he had in complying with periods of absence, his refusal to participate in
programs, his intransigent attitude and his denial of his crime. It was stated
that the applicant had a moderate to high risk of violent recidivism which
could not be managed in an acceptable manner in the community. In spite of a
low security rating, the Correctional Service was of the view that three out of
five inmates in the applicant’s situation would commit a criminal offence after
release. It was even noted that, in his current situation, the applicant’s risk
of reoffending was even higher than what the score indicated. Therefore, the Assessment
recommended that Mr. Bouchard participate in an anger and emotion management
program and/or psychological follow-up to develop his introspection, encourage
him to be more flexible in his way of thinking and lead him to accept
responsibility for his crime, which he continued to deny.
[36]
The
Assessment for Decision completed on June 22, 2006, did not show any
improvement in the applicant since the last assessment. More specifically, it noted
his persistently combative attitude and of his lack of co-operation with his
case management team. It also stated that his narrow-mindedness made his
relationships with Correctional Service staff members difficult.
[37]
Considering
this evidence, I do not think that the decisions of the Board and Appeal
Division may be characterized as unreasonable. It is trite law that release is
not automatically granted on the date of eligibility for parole. It is up to
the Board to assess the risk involved in parole, having regard to the
overriding purpose of protection set out in the Act. The Court has no mandate to
substitute its decision for that of the Board; in the absence of an unreasonable
analysis of the evidence on record, intervention by this Court is not
appropriate. As Evans J.A. (dissenting, but not on this point) wrote in Canada (Attorney General) v. Coscia, 2005
FCA 132:
[44] No inmate has a right to be granted
parole. Parole is granted in the exercise of the Board’s “exclusive
jurisdiction and absolute discretion”: Corrections and Conditional Release
Act, S.C. 1992, c. 20 (“CCRA”), paragraph 107(1)(a).
[45] This unusually broad grant of
statutory power is a recognition by Parliament of the Board’s extremely
important and delicate responsibilities, as is the statutory limitation on the
Appeal Division’s jurisdiction to reverse for error of law (see Cartier v.
Canada (Attorney General), [2003] 2 F.C. 317, 2002 FCA 384, at paras. 6-10).
In particular, the Board is charged with finding the least restrictive
determination that is consistent with its paramount responsibility, namely,
protecting society from crime, on the basis of a process that is fair and
understandable: see CCRA, section 101.
[46] The Court should approach with great
caution its review of the Board’s exercise of its broad discretion, lest it
jeopardise the Board’s ability to discharge its statutory mandate. Thus, the
Board’s reasons should not be subject to overly close scrutiny. Because of its
expertise, its assessment of the risk that an applicant for parole will
re-offend if released warrants the utmost deference: Migneault v. Canada (Attorney General), 2003 FCT 245 at paras. 14
and 19, aff’d. 2003 FCA 287. Nor should the Board be discouraged from asking
probing questions relevant to its risk assessment.
[47] Hence, the
Court should only intervene if an unsuccessful applicant for parole clearly
establishes that the Board breached the duty of fairness, or its decision was
either erroneous in law, based on a finding of fact unsupported by the evidence
before it, or otherwise patently unreasonable.
[38]
Considering
these principles, I am of the opinion that the Appeal Division was warranted in
upholding the Board’s decision.
[39]
Moreover,
I cannot agree with the applicant’s submissions to the effect that the Board had
failed to take into consideration the decision of the Federal Court rendered in
2006. As previously mentioned, Gauthier J. had allowed the applicant’s application
for judicial review in connection with the challenge of his segregation, the
increase in his security rating and his transfer to a medium-security
institution. This decision did not concern a Board decision refusing parole,
but a grievance against the Correctional Service. Therefore, I can hardly take
the view that the Board failed to take into consideration this Federal Court decision
in which my colleague expressly stated that she had no authority to order the
Board to do anything.
(3) Does the continued
detention of the applicant constitute cruel and unusual treatment within the
meaning of section 12 of the Charter?
[40]
The
applicant submits that his continued detention is cruel and unusual punishment contrary
to the Charter. He relies on Steele v. Mountain Institution,
[1990] 2 S.C.R. 1385 [Steele], in which the Supreme Court considered the
three criteria applicable at that time to determine whether or not the detention
was an infringement of section 12 of the Charter. Paragraph 16(1)(a) of the Parole
Act, R.S.C. (1985), c. P-2, provided that the Board could grant parole to
an inmate if it was of the opinion that the following conditions had been met: the
inmate had derived the maximum benefit from imprisonment, the reform and
rehabilitation of the inmate would be aided by the grant of parole, and the
release of the inmate on parole would not constitute an undue risk to society.
[41]
After
reiterating that an indefinite sentence is not in itself contrary to the
Charter, the Court stated that it could nevertheless become so if it is not made
to fit the circumstances of the offender. Here is what the Court wrote on this
point:
[67] It is
only by a careful consideration and application of these criteria that the
indeterminate sentence can be made to fit the circumstances of the individual
offender. Doing this will ensure that the dangerous offender sentencing
provisions do not violate s. 12 of the Charter. If it is clear
on the face of the record that the Board has misapplied or disregarded those
criteria over a period of years with the result that an offender remains
incarcerated far beyond the time he or she should have been properly paroled,
then the Board’s decision to keep the offender incarcerated may well violate
s. 12. In my opinion, this is such a case.
[42]
Therefore,
the Board must analyze the statutory criteria and have reasonable grounds to
refuse parole. If it misapplies these criteria or refuses to conduct the
required analysis, the Board’s decision may infringe section 12 of the
Charter and warrant the Court’s intervention.
[43]
The
criteria which the Board had to take into consideration at the time when Steele
was handed down have since changed (Corrections and Conditional Release Act,
S.C. 1992, c. 20). Section 101 of the current Act provides that the
paramount consideration is now the protection of society. This same section
provides that parole boards must make the least restrictive determination
consistent with the protection of society. In this case, I am of the opinion
that the Board took into account the criteria set out under the Act when it refused
to grant the applicant parole.
[44]
It should
be mentioned that, in Steele, the Supreme Court also noted that “in the ordinary course of events the assessment as to
whether or not an inmate’s release would pose an undue risk to the community is
best left in the discretion of the experts who participate in the Parole Board
review decisions” (paragraph 71).
[45]
I am well aware
that this decision does not deal with the issue as to whether the current
legislative scheme complies with section 12 of the Charter, regardless of how
it is applied. Since no submissions were made in this case with regard to this
issue, I will refrain from dealing with it. It is by far more preferable that
an issue of this nature be dealt with in a case where it is explicitly argued
by both parties and where the underlying factual basis is adequate.
[46]
In conclusion,
I do not see any ground for this Court to intervene and set aside the decision of
the Appeal Division. That being said, I must admit that Mr. Bouchard has
reached a dead end. The frustration he has been feeling since the Quebec Superior
Court rendered its decision in 2002 and advanced his eligibility for parole and
the despair that seems to have overcome him following his fruitless attempts to
obtain parole have led to some backsliding and a defensive attitude on his part
which can only hinder his chances of obtaining parole. The Court can only
deplore this vicious circle in which Mr. Bouchard finds himself and hopes that
he will adopt a more positive attitude, which is the only way he can
demonstrate his good faith and resolve the impasse he is currently facing so that
he can resume a normal life after this too-long interruption.
[47]
The
applicant’s application for judicial review is therefore dismissed without
costs.
ORDER
THE COURT ORDERS that the application for judicial
review be dismissed, without costs.
“Yves
de Montigny”
Certified
true translation
Michael
Palles
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