Docket: T-335-16
Citation:
2017 FC 258
[ENGLISH TRANSLATION]
Montréal, Quebec, March 2, 2017
PRESENT: The
Honourable Mr. Justice Bell
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BETWEEN:
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PIERRE GAGNON
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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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JUDGMENT AND REASONS
I.
Overview
[1]
The applicant, Pierre Gagnon [Mr. Gagnon], seeks
the judicial review of a decision by the Parole Board of Canada’s Appeal
Division [Appeal Division], dated January 26, 2016. The Appeal Division
confirmed the decision of the Parole Board of Canada [PBC] and denied full
parole [FP] and day parole to Mr. Gagnon.
[2]
For the reasons that follow, I would dismiss the
application for judicial review.
II.
Background
[3]
Mr. Gagnon’s criminal and prison record dates to
1970. In 1973, Mr. Gagnon was incarcerated for two years, after he committed
arson by setting fire to the sugar shack of his spouse’s parents. About two
months after he began his incarceration in a minimum-security institution, Mr.
Gagnon escaped. He discharged his firearm on his spouse a few days later and
was found guilty of manslaughter. He was given a life sentence on March 17,
1975.
[4]
Mr. Gagnon obtained day parole in 1980, and FP
in 1981. His release was suspended three times between 1991 and 2000, because
of violent recidivism against his former spouse.
[5]
In 2005, when Mr. Gagnon was incarcerated at
Montée-St-François Institution, he escaped during a temporary group absence; he
remained unlawfully at large for about three months. Consequently, he was given
a two-month custodial sentence.
[6]
In 2008, while Mr. Gagnon was incarcerated at
the Ste-Anne-des-Plaines Institution, he took advantage of an escorted
temporary absence to escape again. He remained at large for about two years
and, in September 2010, he surrendered to Archambault Institution, so he was no
longer unlawfully at large. A three-month sentence was imposed for this
incident.
III.
Impugned decisions
[7]
The PBC found that the factors bearing on Mr.
Gagnon’s criminal behaviour include emotional dependency, unstable emotional
relationships, a domestic violence dynamic, aggressiveness, immaturity,
substance abuse, deficient problem-solving, and idleness. The most recent
psychological assessment revealed that Mr. Gagnon had [translation] “borderline and
histrionic” traits, and that his risk level was connected to his environment
and to his intimate relationships. The PBC recognized that Mr. Gagnon had
completed several correctional programs, including a problem-solving program,
and that he showed a sincere interest in investing in his case management
[CMT]. However, it found that Mr. Gagnon had not [translation] “achieved all the
objectives sought”. Accordingly, the PBC followed the guidance of its
case management team and denied him FP and day parole.
[8]
The Appeal Division analyzed the issues
submitted by the applicant, namely, the PBC decision’s lack of intelligibility,
correctness, and precision. The Appeal Division found that the decision
contained adequate reasons to understand its finding. Further, the Appeal
Division found that the decision was supported by relevant, reliable, and
persuasive information. It found that the PBC’s decision was reasonable and
therefore confirmed it.
IV.
Relevant statutory provisions
[9]
Section 101 of the Corrections and
Conditional Release Act, SC 1992, c. 20 [Act] points out the principles
that guide the Appeal Division and the PBC:
101 The
principles that guide the Board and the provincial parole boards in achieving
the purpose of conditional release are as follows:
(a) parole boards take into consideration
all relevant available information, including the stated reasons and
recommendations of the sentencing judge, the nature and gravity of the offence,
the degree of responsibility of the offender, information from the trial or
sentencing process and information obtained from victims, offenders and other
components of the criminal justice system, including assessments provided by
correctional authorities;
(b) parole boards enhance their
effectiveness and openness through the timely exchange of relevant information
with victims, offenders and other components of the criminal justice system and
through communication about their policies and programs to victims, offenders
and the general public;
(c) parole boards make decisions that are
consistent with the protection of society and that are limited to only what is
necessary and proportionate to the purpose of conditional release;
(d) parole boards adopt and are guided by
appropriate policies and their members are provided with the training necessary
to implement those policies; and
(e) offenders are 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.
[10]
Further, section 102 establishes the criteria
that must guide the PBC in its decision whether or not to authorize FP:
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.
[11]
However, section 100.1 states that the paramount
consideration is the protection of society.
V.
Issues and standard of review
[12]
The issues are the following:
- Was the Appeal
Division’s decision reasonable?
- Did the Board’s
decision respect the principles of procedural fairness?
[13]
The first issue involves the Appeal Division’s
and the PBC’s findings of fact, as well as the application of their enabling
legislation to those findings of fact. Both of these tribunals are recognized
as experts in conditional release; it is the standard of reasonableness that
applies (Fernandez v Canada (AG), 2011 FC 275 at para 20, [2011] FCJ No.
320). The reasonableness is concerned mostly with the justification,
transparency, and intelligibility within the decision-making process and with
whether the decision falls within a range of possible, acceptable outcomes
which are defensible in respect of the facts and law (Dunsmuir v New
Brunswick, 2008 SCC 9 at para 47, [2008] 1 S.C.R. 190 [Dunsmuir]).
[14]
With regard to the second issue and the
principle of procedural fairness, it is the standard of correctness that
applies: see, Canada (Citizenship and Immigration) v Khosa, 2009 SCC 12
at para 42, [2009] 1 S.C.R. 339.
VI.
Analysis
A.
Reasonableness of the Appeal Division’s decision
[15]
The applicant submits that the reasons for the
decisions of the Appeal Division and the PBC are not adequate. He relies on the
decision Andrade v Canada (Citizenship and Immigration), 2012 FC 1490 at
para 12, [2012] FCJ No. 1594, which states that if a decision’s reasons “allow the reviewing court to understand why the tribunal
made its decision and permit it to determine whether the conclusion is within
the range of acceptable outcomes, the Dunsmuir criteria are met”.
[16]
Essentially, the applicant submits that the
reasons do not respect paragraph 101(e) of the Act and that they do not allow
the applicant to understand the PBC’s finding that Mr. Gagnon had not achieved
all the objectives sought.
[17]
Mr. Gagnon raised these arguments before the
Appeal Division; and I agree with that tribunal’s reply:
[translation]
The Board noted that your criminal history
includes an extremely high level of violence, that a person’s death was caused,
and that one of your victims suffers from significant psychological sequelae.
However, the Board noted interesting progress from all your involvement in the
course of your sentence, but that, despite the significant number of
correctional programs and psychological follow-ups that you completed, you have
not achieved all of the objectives sought. The Board was of the opinion that
the management of your emotions and frustrations as well as problem-solving
require significant work. The Board also weighed in their analysis both
incidents of your THC use.
[18]
Even though the Appeal Division and the PBC did
not explicitly refer to the objectives at issue, this Court can understand that
Mr. Gagnon still had to improve on the management of his emotions. The findings
were based on, and confirmed by, the 2015 psychological assessment, where it
was indicated that Mr. Gagnon had continued behavioural problems. In fact, the
applicant has [translation] “borderline and histrionic” traits, and his recidivism
risk was assessed as moderate to high. Mr. Gagnon also had his urine test
positive twice for THC in February 2014 and in January 2015. The PBC however
recognized several times that Mr. Gagnon had made many strides and that he had
cooperated with his CMT. According to Newfoundland and Labrador Nurses’
Union v Newfoundland and Labrador (Treasury Board), 2011 SCC 62, [2011] 3
SCR 708, the reasonableness criteria
of Dunsmuir, above, are met if the reviewing court can understand
why the tribunal made its decision and the conclusion is within the range of
acceptable outcomes. That is indeed
the case here.
[19]
The applicant criticizes the PBC for not
adequately applying the Decision Policies, in particular, section 2.1., which
proposes a list of factors for the PBC to consider when it is assessing the
release plan. It is also settled law that policy manuals are not law and as
such are not binding on the decision-maker (Sychuk v Canada (AG), 2009
FC 105 at para 11, [2009] FCJ No. 136). They can help to “in assessing whether the decision was an unreasonable
exercise of . . . power” (Baker v Canada (Minister of Citizenship and
Immigration), [1999] 2 S.C.R. 817, [1999] SCJ No. 39 at para 72). I agree with
the respondent’s submission that the PBC considered at least two of these
criteria:
13a. the type
of release and whether or not the community supervision strategies are
appropriate and adequate; and
13b. the
offender’s support in the community.
[20]
Further, as argued by the respondent, the
principle that must guide the PBC is the protection of society (see section
100.1 of the Act). In the opinion of the Appeal Division and the PBC, FP and
day parole were not possible because it would cause an unacceptable risk for
society if Mr. Gagnon were to reoffend before the end of his sentence.
[21]
I must show deference to the Appeal Division’s
and the PBC’s decisions and, in my opinion, their findings were entirely
reasonable.
B.
The PBC’s procedural fairness
[22]
The applicant argues that the PBC did not
respect the principles of procedural fairness. More specifically, he argues
that it did not comply with its mandate under paragraph 101(c) of the Act with
respect to the decision’s proportionality, and that it failed to consider all the
relevant evidence. In fact, the applicant claims that the PBC simply followed
Correctional Services Canada’s decision. I cannot support this proposition,
because the applicant is asking the Court to reconsider the weighing of the
evidence.
[23]
The PBC considered the various pieces of
evidence, including several psychological and psychiatric assessments. The PBC
had the right to give more weight to the 2015 report, rather than the reports
of 2014 and 2013. I would note that this is not, in my opinion, an argument
based on procedural fairness.
[24]
As the respondent noted, the principle of
procedural fairness requires the PBC to provide offenders with the information
that was considered when the decision was made, as well as with reasons for the
decision. The PBC provided the applicant with the documents relevant to its
decision and gave him the opportunity to refute their trustworthiness. The PBC
therefore also fulfilled its duty to ensure that the information relating to
this documentation was reliable and persuasive (Mooring v Canada (National
Parole Board), [1996] 1 S.C.R. 75, [1996] S.C.J. No. 10). Accordingly, the PBC
respected the principles of procedural fairness and it was reasonable for the
Appeal Division to confirm that decision.
VII.
Conclusion
[25]
For the reasons set out above, the Appeal
Division’s decision, which confirms the PBC’s decision, is reasonable and I
would dismiss this application for judicial review.
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