Docket: A-396-13
Citation:
2015 FCA 127
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CORAM:
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NOËL C.J.
DAWSON J.A.
TRUDEL J.A.
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BETWEEN:
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PAUL FISHER
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Appellant
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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
DAWSON J.A.
[1]
The appellant, Paul Fisher, was released from
prison on full parole in 1983. On September 24, 1991, the National Parole Board
granted Mr. Fisher parole reduced status. This status relieved him of certain
terms and conditions imposed upon him on his release from prison. The effect
was that the only conditions imposed on Mr. Fisher’s continued release were
that he report once per year in writing, or by phone or in person to the Vancouver
Central Parole Office and that he notify that office whenever he changed his
residential address.
[2]
On February 19, 1996, the Parole Board of Canada
made a decision that persons on parole reduced status were required to report
to their parole supervisor as instructed by the parole supervisor (Decision).
The effect of the Decision was that Mr. Fisher was required to meet face-to-face
with his parole supervisor at least every three months. This was, and remains,
the lowest possible reporting requirement authorized by Commissioner’s
Directive 715-1 relating to community supervision.
[3]
As a result of the Decision, Mr. Fisher has been
reporting to his parole supervisor every three months since 1996.
[4]
In 2012, Mr. Fisher brought an application for
judicial review of the Decision, seeking a remedy under subsection 24(1) of the
Canadian Charter of Rights and Freedoms. Amongst other relief, he sought
a declaration that rights guaranteed to him by section 7 of the Charter had
been, and continue to be, infringed, and an order quashing all conditions
currently in place upon him, other than those in place prior to the Decision.
[5]
For reasons cited as 2013 FC 1108 a judge of the
Federal Court dismissed the application with costs. While the Judge concluded
that the application was not time-barred, he found that Mr. Fisher had failed
to establish a liberty interest that had been curtailed as a result of the
Decision.
[6]
This is an appeal from the decision of the
Federal Court.
I.
The Issues
[7]
It is now well-settled law that an analysis under
section 7 of the Charter requires a two-step analysis. To trigger the operation
of section 7 one must first establish that there has been a deprivation of the
right to “life, liberty and security of the person”.
Second, one must establish that the deprivation is contrary to the principles
of fundamental justice. The analysis is contextual; section 7 must be construed
in light of the interests it was meant to protect (R. v. Beare; R. v.
Higgins, [1988] 2 S.C.R. 387, at page 401).
[8]
It follows that the issues raised on this appeal
are:
i)
Was Mr. Fisher deprived of his liberty by the
Decision?
ii)
If so, was the deprivation of liberty contrary
to the principles of fundamental justice?
iii) If so, was the violation justifiable under section 1 of the Charter?
[9]
For the reasons that follow, I conclude that Mr.
Fisher did establish that he was deprived of his liberty by the Decision. I
also conclude, however, that he did not establish that the deprivation of his
liberty was contrary to the principles of fundamental justice. It follows that
it is not necessary to consider section 1 of the Charter. As a result of these
conclusions, I would dismiss the appeal. In the circumstances, I would not
award costs.
II.
The Facts
[10]
In 1972, when he was 15 years old, Mr. Fisher
fatally shot his father and stabbed his mother. His mother survived the attack.
Mr. Fisher was tried and convicted as an adult and sentenced to life in prison.
[11]
While in prison, Mr. Fisher learned how to
repair saxophones and how to read, play and write music. Music became, and
remains, the focus of his professional and social life. Following his release
on full parole, Mr. Fisher has pursued a successful career as a jazz musician.
[12]
From the time of his release until the present,
Mr. Fisher complied with the law and all of his parole conditions.
[13]
At the time he was granted his parole reduced
status, his parole supervisor reported that Mr. Fisher “has
adjusted beyond all expectations”. As his counsel observed, Mr. Fisher’s
story is “tragic in terms of the terrible crimes he
committed, but inspiring in terms of his rehabilitation and reconciliation both
with himself and his victims”.
[14]
It is in this context that Mr. Fisher complains
that, since the Decision, he has been continuously resentenced and punished
without being given any reason and without having done anything to deserve it.
In his affidavit, Mr. Fisher complains about other requirements and conditions
imposed upon him since 1996. However, as the Judge correctly noted in his
reasons at paragraph 65, those decisions were not before the Federal Court on
the application for judicial review. In any event, as the Judge also noted, the
Decision did not authorize the imposition of conditions such as travel
restrictions. Any condition or restriction unrelated to the nature and frequency
of the reporting requirements would require a basis in law other than the
Decision.
III.
The Decision
[15]
The Decision is not lengthy, and is attached to
these reasons in the appendix.
[16]
Briefly stated, the Parole Board noted that the
Decision followed a revision of its decision-making policies and its mission,
and also followed events that had occurred in the community related to
offenders on parole reduced status. Some offenders had been involved in further
criminal activity; difficulties had been encountered maintaining contact with
others.
[17]
As a result, the Parole Board concluded it was
not possible to adequately monitor the on-going risk presented by offenders in
the community on parole reduced status who were required to report, in person
or in writing, on only a single occasion each year.
[18]
The Decision was therefore viewed by the Parole
Board to be reasonable and necessary for the protection of society.
IV.
Consideration of the Issues
A.
Was Mr. Fisher deprived of his liberty by the
Decision?
[19]
The Judge found that the change effected by the
Decision carried with it the “inevitable consequence”
that Mr. Fisher would be required to report at least once every three months
instead of annually (reasons, at paragraphs 66 and 83). He then went on to
consider whether that change affected Mr. Fisher’s liberty interest. This was a
question of law, reviewable on the standard of correctness (Housen v.
Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235, at paragraph 8).
[20]
In my view, for the reasons that follow, the
Judge took a more meagre interpretation of the interest protected by section 7
of the Charter than that articulated in the jurisprudence of the Supreme Court
of Canada.
[21]
In order to consider whether the Decision
deprived Mr. Fisher of his liberty, it is first necessary to ascertain the
consequences of the Decision upon him. The Corrections and Conditional
Release Act, S.C. 1992, c. 20 (Act) governs the implementation of a
custodial sentence exceeding two years. Under the Act, an “offender” is defined to mean an inmate or a
person who, having been sentenced, committed or transferred to a penitentiary is
outside of penitentiary by reason of parole or other specified grounds not
relevant to this appeal (section 2). Thus, an offender released into the
community on parole continues to serve his or her sentence until its expiration
(subsection 128(1)). Subject to the Act, an offender released on parole is
entitled to remain at large and is not liable to be returned to custody unless
the parole is suspended, cancelled, terminated or revoked (subsection 128(2)).
If an offender breaches a condition of parole, the parole may be suspended, the
offender may be apprehended and the offender may be recommitted to custody
(subsection 135(1)).
[22]
Flowing from the Judge’s finding that the “inevitable consequence” of the Decision was that Mr.
Fisher must report quarterly and not annually, and from the requirement that
the report be face-to-face (not in writing or by telephone), there is a further
consequence: failure to report could result in the suspension of Mr. Fisher’s
parole and his re-committal to custody. This consequence, coupled with the
increased frequency of the required reporting, is such that the effect of the
Decision was to deprive Mr. Fisher of his liberty interest.
[23]
This conclusion flows from the following
decisions of the Supreme Court:
i)
R. v. Beare; R. v. Higgins, cited above, where rights guaranteed by section 7 were infringed
by provisions that required a person to appear at a specific time and place and
obliged the person to go through an identification process on pain of
imprisonment for failure to comply (see page 402 of the decision).
ii)
Cunningham v. Canada, [1993] 2 S.C.R. 143, where legislation which affected the manner
in which an offender could serve part of his sentence by curtailing the
probability of release on mandatory supervision was found to deprive the
offender of liberty (see pages 148 to 150 of the decision).
iii)
R. v. Malmo-Levine; R. v. Caine, 2003 SCC 74, [2003] 3 S.C.R. 571, where the
availability of a term of imprisonment for the offence of simple possession of
marijuana was found sufficient to engage section 7 of the Charter (see
paragraph 84 of the decision).
[24]
Having found that Mr. Fisher established that he
has been deprived of liberty, I move to the second step of the section 7
analysis.
B.
Was the deprivation of liberty contrary to the
principles of fundamental justice?
[25]
In Re B.C. Motor Vehicle Act, [1985] 2
S.C.R. 486, at page 512, the Supreme Court stated that the principles of
fundamental justice are found in the basic tenets and principles, not only of
our judicial process, but also of other components of our legal system. Flowing
from this, when the Supreme Court considered whether the dangerous offender
provisions of the Criminal Code infringed section 7 of the Charter, the majority
of the Court found it was necessary to examine the impugned provision in light
of “the basic principles of penal policy that have
animated legislative and judicial practice” (R. v. Lyons, [1987]
2 S.C.R. 309, at page 327).
[26]
As noted above, the Act governs the
implementation of custodial sentences that exceed two years. Part II of the Act
deals with conditional release, detention and long-term supervision. Section
100 of the Act sets out the purpose of conditional release:
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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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[27]
In the determination of all cases, the
protection of society is the paramount consideration for the Parole Board and
provincial parole boards (section 100.1 of the Act).
[28]
Consistent with the balance found within section
100, the principles of fundamental justice are concerned not only with the
interest of the person whose liberty has been affected; fundamental justice
requires that a fair balance be struck between the interests of the individual
and the protection of society (Cunningham, cited above, at page 152).
[29]
When considering the balance, the first question
is whether, from a substantive point of view, the impugned provision or action
strikes the right balance between the individual’s interests and society’s
interests. The next question is whether the nature of the impact of the
impugned provision or action violates the Charter. That is, the liberty
interest is limited only to the extent that this is shown to be necessary for
the protection of the public (Cunningham, at pages 152 to 153).
[30]
Dealing with the first question, I begin from
the observation that a change in the form in which a sentence is served,
whether favourable or not, is not itself contrary to any principle of fundamental
justice (Cunningham at page 152; May v. Ferndale Institution,
2005 SCC 82, [2005] 3 S.C.R. 809, at paragraph 82). In my view, this comment
would apply equally to changes in reporting requirements as a condition of
release to serve one’s sentence in the community.
[31]
As for whether the Decision strikes the right
balance between the competing interests of an offender and society, society has
a clear interest in being protected from criminal activity perpetrated by
offenders on parole reduced status serving their sentence in the community.
This risk is managed through adequate monitoring of the risk posed by such
offenders. Equally, society has an interest in ensuring that those on parole
reduced status remain in contact with their parole supervisor. On the other
side of the balance is an offender’s interest in rehabilitation and
reintegration into the community, unhindered by unnecessary restrictions and
conditions.
[32]
In my view, the Decision, which requires an
offender to report to his or her parole supervisor as instructed by the parole
supervisor, strikes the right balance between the interests of society and
offenders. Once the Parole Board concluded that it was not possible to monitor
adequately the ongoing risk posed by offenders in the community on parole
reduced status, a decision not challenged by Mr. Fisher, more frequent
reporting was required in order to protect society. The Decision strikes an
appropriate balance between the interests of offenders and the interests of
society by allowing parole supervisors to determine the required reporting
frequency for individual offenders based on their individual circumstances.
[33]
The next required inquiry asks whether the
nature of the change to the reporting requirements violates the Charter. In my
view, it does not because the change is directly related to the public interest
in monitoring the ongoing risk posed by offenders in the community on parole
reduced status. I note as well that the impact of the Decision upon Mr. Fisher
and other similarly situated individuals is much less than the impact of the
legislation under consideration in Cunningham and the policy under
review in Ferndale Institution.
[34]
In oral argument, counsel for Mr. Fisher argued
that the Decision was not consistent with fundamental justice because it was
arbitrary and overbroad.
[35]
In R. v. Heywood, [1994] 3 S.C.R. 761,
the Supreme Court considered the overbreadth analysis in the context of section
7 of the Charter. The majority of the Court noted, at page 793, that the effect
of overbreadth is that in some applications a law is arbitrary or
disproportionate.
[36]
More recently, in R. v. Clay, 2003 SCC
75, [2003] 3 S.C.R. 735, at paragraph 38, the majority of the Supreme Court
stated that overbreadth addresses the potential infringement of fundamental
justice where the adverse effect of state action on the individuals subject to
the action is “grossly disproportionate”
to the state interest the impugned action seeks to protect (emphasis in
original).
[37]
In my view, Mr. Fisher’s argument that the
Decision is arbitrary and overbroad must fail for the following reasons.
[38]
As the Supreme Court noted in Ferndale Institution,
at paragraph 83, a change in circumstance affected by a general policy is not,
in itself, arbitrary.
[39]
As explained above, the Decision struck an
appropriate balance between the interests of offenders and society by allowing
parole supervisors to determine the reporting frequency for individual
offenders based on their individual circumstances. A quarterly reporting
requirement cannot be said to be grossly disproportionate when viewed against
the societal interest described above.
[40]
For these reasons, I conclude that Mr. Fisher
has not met the onus upon him to prove on the evidence that the deprivation of
his liberty was contrary to the principles of fundamental justice enshrined in
section 7 of the Charter. In light of this conclusion, it is unnecessary to
consider section 1 of the Charter, and I decline to do so.
[41]
It follows that I would dismiss the appeal. In
the circumstances, I would not award costs.
“Eleanor R. Dawson”
“I agree.
Marc Noël C.J.”
“I agree.
Johanne Trudel J.A.”
APPENDIX
Decision
Conditions
altered to require compliance with the condition to report to the parole
supervisor as instructed by the parole supervisor, as prescribed by
subparagraph 161(1)(a) of the Corrections and Conditional Release
Regulations.
Reasons
The Board
is taking this action following a revision of its decision-making policies and
its mission, and because of events that have occurred in the community related
to offenders on “parole reduced
status”. Difficulties have been encountered in maintaining
contact with some offenders, and other offenders have become involved in
further criminal activity.
In view
of the foregoing, the Board is of the view that it is not possible to monitor
adequately the on-going risk presented by offenders in the community who are on “parole reduced” status,
given the requirement only to report (in person or in writing) once per year.
Parole
and statutory release supervision is the responsibility of the Correctional
Service of Canada. Supervision required the management of the released offender
in the community and the reporting to the Board, for its review, of any
significant change in the level of risk. As such, the Board is convinced that
frequency of supervision contact be determined by the parole supervisor. This
is stipulated in subparagraph 161(1)(a) of the Correction and
Conditional Release Regulations and governed by general supervision
standards established by the Service in consultation with the National Parole
Board.
In view
of the above, the Board considers it reasonable and necessary for the
protection of society to require compliance with the condition prescribed by
the regulations – to report to the parole supervisor as instructed by the
parole supervisor.
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