Date:
20130719
Docket:
T-340-11
Citation: 2013 FC 803
Ottawa, Ontario, July 19, 2013
PRESENT: The Honourable Madam Justice Heneghan
BETWEEN:
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JOHN CHARLES CAMPBELL
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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
INTRODUCTION
[1]
Mr.
John Charles Campbell (the “Applicant”) seeks judicial review of the decision
dated January 17, 2011, in which the National Parole Board Appeal Division (the
“Appeal Division”) dismissed his appeal of the decision of the National Parole
Board (the “Parole Board”), denying his request for day parole and full parole.
In this proceeding, the Attorney General of Canada (the “Respondent”)
represents the Appeal Division, pursuant to Rule 303(2) of the Federal Court
Rules, SOR/98-106 (“the Rules”).
BACKGROUND
[2]
The
Applicant is an inmate of Mission Institute, Mission, British Columbia. He is
serving a life sentence for a conviction of second-degree murder in connection
with the death of a former girlfriend in 1981.
[3]
In
1994, the Applicant was granted day parole. In 1997, he obtained full parole.
The parole was revoked in 1999 because the Applicant had been involved in a
series of incidents of inappropriate sexual advances toward women. He has
remained in prison since the revocation of his parole on December 2, 1999.
[4]
As
well as the conviction for second-degree murder, the Applicant has a history of
sexually-aggressive behaviour toward women, including a 1963 conviction of
assault against a woman, an incident of alleged rape or attempted rape in which
no charge was laid in 1968, complaints in 1972 from three women that the
Applicant had been aggressive in seduction attempts, a report in 1973 from a
woman who was frightened by his sexual advances, and an incident in 1979 when
he threatened to harm or kill a nurse.
[5]
The
Applicant has undergone several psychiatric and psychological assessments. In
2001, two psychologists found that he was at a moderate risk to violently reoffend.
A similar finding was made in 2004 by a psychiatrist. In 2006, yet another psychologist
found that although the Applicant had not been convicted as a sex offender, he
met the criteria for sex-offender treatment programming (“SOP”). Although his
conviction was not for a sexual offence, this psychologist observed that there was
evidence that the offence was sexually motivated.
[6]
The
Applicant did not participate in SOP, even though such treatment had been
recommended by Correctional Services of Canada (“CSC”) clinicians. He refused
to follow such a program because he did not consider himself to be a sexual
offender. In a report dated February 7, 2009, Dr. Robert Ley, a clinical
psychologist who had assessed the Applicant over a number of years, expressed
the opinion that the Applicant did not need an “institutionally-based SOP”. He
also expressed the opinion that the Applicant is at “low to low-moderate risk
for future sexual offending.”
[7]
The
Applicant is now aged 76. He says that he is suffering physical limitations,
including a reduced libido. His wife confirmed this.
[8]
The
Parole Board, in its decision of May 14, 2010, reviewed the Applicant’s history
of criminal activity. It noted that his sentence had begun on December 8, 1981,
with eligibility for full parole set at 10 years. It noted the risk factors
contributing to the Applicant’s criminal behaviour and noted that actuarial
risk estimates showed a moderate risk of reoffending. It noted the Applicant’s
parole history, including the events that led to revocation of full parole in
December 1999.
[9]
The
Parole Board also reviewed the various psychological and psychiatric
assessments that the Applicant underwent over a number of years. A tendency of
inappropriate sexual behaviour towards women was a continuing concern. The
Parole Board referenced its decision in February 2009 to deny day and full
parole; “aggressive sexuality” was identified as a concern when that decision
was made.
[10]
The
Parole Board, in its May 2010 decision, referred to the psychological assessment
dated February 7, 2009, by Dr. Ley. He had previously assessed the Applicant in
1987, 1989 and 2001.
[11]
The
Parole Board noted that submissions were made by a lawyer assistant on behalf
of the Applicant and summarized those submissions, including the argument that
the Applicant was no longer a threat to society and that the Applicant was
willing to agree to a condition not to have contact with women, in the absence
of another adult.
[12]
The
Parole Board acknowledged that the Applicant had gained insight into the
relationship between substance abuse and his offending behaviour. At the same
time it commented upon the fact that the Applicant had not followed “recent
correctional programming” to deal with his aggression toward women. It
concluded that the risk had not been mitigated by “age, declining health,
medication or counselling to the extent that your risk can safely be managed on
day or full parole.” It also noted that the Applicant did not present a viable
release plan since he had not been accepted at a community residential facility
(“CRF”) and release to his home would be premature.
[13]
Upon
appeal to the Appeal Division, the Applicant argued that the hearing before the
Parole Board was unfair because that Board took into account the fact that he
had not been accepted into a CRF. He also argued that the CRFs should have had
access to Dr. Ley’s report. He also submitted that the Parole Board failed to
give enough weight to the positive aspects of his history and erred by not
considering the report prepared by Dr. Ley that disputed the characterization
of the Applicant as a sex offender. Finally, he argued that the Parole Board
failed to consider the least restrictive means of controlling the risk of
reoffending.
[14]
The
Appeal Division, after summarizing the Applicant’s submissions, described the
criteria for granting parole, first that the Applicant’s release does not pose
a risk to society and second, that his release will contribute to the
protection of society by facilitating re-entry to society as a law-abiding
citizen.
[15]
The
Appeal Division found that the Applicant had not raised any grounds which would
cause it to intervene in the Parole Board’s decision. The Appeal Division
reviewed the Parole Board’s reasons, including the Parole Board’s consideration
of the Applicant’s murder conviction, his history of problematic behaviour with
women and the revocation of his parole due to inappropriate sexual behaviour.
[16]
The
Appeal Division also stated that the Parole Board had noted that the Applicant
had acknowledged his history of aggression against women and had made some gains
in understanding his substance abuse, but that the Case Management Team did not
support his release since the Applicant did not want to participate in SOP.
[17]
The
Appeal Division determined that it was reasonable for the Parole Board to find
that the negative aspects of the Applicant’s file outweighed the positive
aspects. It concluded that the Parole Board had considered the psychological
assessment of February 7, 2009, as provided by the Applicant, and that the
Parole Board was mandated to reach its own conclusions on risk, without being
bound by the opinions of others.
[18]
The
Appeal Division highlighted its role, that it is not to reassess risk but to
assess the reasonableness of the decision of the Parole Board. The Appeal
Division found that the Parole Board had given sufficient reasons for its
decision and that the decision was reasonable. Accordingly, the Appeal Division
dismissed the appeal.
SUBMISSIONS
i) The Applicant
[19]
In
this application for judicial review, the Applicant seeks an Order setting
aside the decision of the Appeal Division. He argues that the Appeal Division
erred by failing to respect subsection 101(d) of the Corrections and
Conditional Release Act, S.C. 1992, c. 20, (the “Act”), that is “to make
the least restrictive determination consistent with the protection of society.”
He submits that the Parole Board ignored his offer to be subject to a condition
not to have any contact with women.
[20]
Further,
the Applicant argues that he is entitled to the duty of fairness and that the
duty “includes a fair opportunity to obtain parole.” He submits that he did not
receive such a fair chance because the Parole Board unfairly weighed the
negative factors over the positive ones, including the failure to make Dr.
Ley’s February 2009 report available to potential CRFs. He says that those
facilities may have ultimately rejected him but they did not have the
opportunity to make an informed decision about him because they did not have
all the information about him.
[21]
Finally,
the Applicant argues that the Appeal Division’s decision is unreasonable,
according to the test set out in Dunsmuir v. New Brunswick, [2008] 1 S.C.R.
190.
ii) The Respondent
[22]
The
Respondent submits that the Appeal Division made a reasonable decision and
committed no reviewable error. He submits that the Appeal Division is mandated
to intervene only if the decision of the Parole Board is unreasonable.
DISCUSSION AND
DISPOSITION
[23]
The
first matter to be addressed is the applicable standard of review. Questions of
procedural fairness are reviewable on the standard of correctness and findings
of fact are reviewable on the standard of reasonableness; see the decision in Dunsmuir,
supra, at paras. 51, 129. Reasonableness is concerned with the existence
of justification, transparency and intelligibility within the decision-making
process, as well as with whether the decision falls within a range of possible,
acceptable outcomes which are defensible in respect of the facts and law.
[24]
The
role of the Appeal Division, as a reviewing body, was discussed in the decision
of Cartier v. Canada (Attorney General), [2003] 2 F.C. 317 (F.C.A.) at
paras. 8-9 where the Federal Court of Appeal said the following:
Paragraph 147(5)(a) appears to indicate that
Parliament intended to give priority to the Board’s decision, in short to deny
statutory release once that decision can reasonably be supported in law and
fact. The Board is entitled to err, if the error is reasonable. The Appeal
Division only intervenes if the error of law or fact is unreasonable. I would
be inclined to think that an error of law by the Board as to the extent to
which it must be “satisfied” of the risk of release -- an error [page327] which
is alleged in the case at bar -- is an unreasonable error by definition as it
affects the Board’s very function.
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 paragraph
147(5)(a) was only ensuring that the Appeal Division would at all times be
guided by the standard of reasonableness.
[25]
It
is not to make independent factual findings or risk assessments, but to review
the decision of the Parole Board upon a standard of reasonableness. According
to the decision in Aney v. Canada (Attorney General) (2005), 270 F.T.R.
262 at para. 38, the Parole Board is the authorized finder of fact and has the
power to weigh the evidence before it and to draw its own conclusion from the
evidence.
[26]
The
authority of the Parole Board is set out in section 102 and paragraph 107(1)(a)
of the Act which provide as follow:
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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.
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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.
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107.
(1) Subject to this Act, the Prisons and Reformatories Act, the International
Transfer of Offenders Act, the National Defence Act, the Crimes Against
Humanity and War Crimes Act and the Criminal Code, the Board has exclusive
jurisdiction and absolute discretion
(a)
to grant parole to an offender;
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107.
(1) Sous réserve de la présente loi, de la Loi sur les prisons et les maisons
de correction, de la Loi sur le transfèrement international des délinquants,
de la Loi sur la défense nationale, de la Loi sur les crimes contre
l’humanité et les crimes de guerre et du Code criminel, la Commission a toute
compétence et latitude pour :
a)
accorder une libération conditionnelle;
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[27]
The
purpose of Parole is described in section 100 of the Act as follows:
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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.
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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.
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[28]
The
powers of the Appeal Division are set out in subsections 147(4) and (5) of the
Act as follow:
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147.
(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.
(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.
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147.
(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.
(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.
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[29]
The
sole question before this Court is whether the Appeal Division’s decision,
dismissing the Applicant’s appeal, is reasonable. This issue is subject, of
course, to respect for procedural fairness.
[30]
In
my view, the Applicant’s submissions about the lack of a fair hearing before
the Parole Board really raises an issue about the manner in which the Board
dealt with the evidence. He complains that the Parole Board should have
disclosed the more recent report of Dr. Ley to potential CRFs. With respect,
the report was part of the evidence before the Parole Board. The Parole Board,
not the CRFs, is to weigh relevant evidence. There was no breach of procedural
fairness in the non-disclosure by the Parole Board of the evidence to the CRFs.
[31]
In
assessing the negative decision of the Appeal Division, this Court must
consider the reasonableness of the Parole Board’s ultimate conclusion that the
Applicant’s release on either day or full parole would constitute undue risk.
In my opinion, the availability of a CRF for the Applicant was only one part of
the evidence and factors to be assessed by the Parole Board. I am not persuaded
that the Parole Board committed any reviewable error in the manner in which it
considered this factor.
[32]
The
Applicant also argues that the Parole Board erred in denying his parole on the
grounds that he is a sexual offender.
[33]
This
is incorrect. In my opinion, the basis of the Parole Board’s decision is not
that he is a sexual offender, but that he has a documented history, over many
years, of aggressive behaviour towards women. The Board noted a pattern of that
behaviour, as well as the Applicant’s failure to participate in SOP or recent
correctional programming addressing his violence towards women.
[34]
It
was not necessary for the Parole Board to find the Applicant to be a sexual
offender in order to find that his release on either day or full parole would
pose an undue risk to the public.
[35]
As
noted above, the Act requires the Parole Board to consider public safety in
deciding an application for parole.
[36]
The
Appeal Division was tasked with assessing the reasonableness of the Parole
Board’s decision. It considered all the relevant arguments presented by the
Applicant, as well as evidence in the record, including Dr. Ley’s report of
February 2009. Its rejection of the Applicant’s appeal, in my opinion, was
reasonable.
[37]
In
the result, the application for judicial review is dismissed. Although the
Respondent seeks costs, in the exercise of my discretion pursuant to Rule
400(1) of the Rules, I decline to make any award of costs.
JUDGMENT
THIS
COURT’S JUDGMENT is that this
application for judicial review is dismissed, in the exercise of my discretion
no order as to costs.
“E.
Heneghan”
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