Docket: T-581-18
Citation: 2018 FC 1183
[UNREVISED CERTIFIED ENGLISH TRANSLATION]
Montréal, Quebec, November 26, 2018
PRESENT: The Honourable Madam Justice St-Louis
| BETWEEN:
|
| JEAN-SYLVAIN CHARTRAND
|
| Applicant
|
| and
|
| THE ATTORNEY GENERAL OF CANADA
|
| Respondent
|
JUDGMENT AND REASONS
I.
INTRODUCTION
[1]
Mr. Jean-Sylvain Chartrand is seeking judicial review of a decision, dated February 22, 2018, by the Parole Board of Canada’s Appeal Division [Appeal Division], which affirmed a decision of the Parole Board of Canada [the Board].
[2]
In short, the Appeal Division affirmed the Board’s decision to impose certain conditions on Mr. Chartrand’s statutory release, including that of being assigned residency. The applicant confirmed at the hearing that this was the only condition being challenged before this Court.
[3]
As a remedy, Mr. Chartrand is asking that the Court allow his application, declare the Appeal Division’s decision to be unreasonable, alter the conditions that were imposed on his statutory release, and withdraw the condition to reside at a specific place.
[4]
For the reasons that follow, the Court will dismiss the application for judicial review. To summarize, the Court finds that (1) the decisions of the Appeal Division and the Board are reasonable; (2) the argument according to which the Appeal Division allegedly made erroneous findings based on inaccurate, incomplete and outdated information is not supported by the evidence in the record; (3) the fact that the Appeal Division failed to address three of the matters raised before it does not invalidate its decision; and (4) the Court is not convinced that a psychological risk assessment was needed in this case under section 5 of Policy 2.2 of the Decision-Making Policy Manual for Board Members [Policy Manual], that a new risk assessment under section 9 of the same Policy Manual was needed or, alternatively, that the Appeal Division relied on the 2015 psychological assessment to determine the risk posed by Mr. Chartrand.
II.
BACKGROUND
[5]
Since May 6, 2015, Mr. Chartrand has been serving his third federal sentence. His statutory release was scheduled for March 5, 2018, and was carried out under the conditions imposed by the Board. His warrant is set to expire on August 5, 2019.
[6]
On October 5, 2017, in anticipation of his statutory release, the Correctional Service of Canada [the Service] supervisor signed an Assessment for Decision [A4D] and recommended that the Board impose a certain amount of conditions on Mr. Chartrand, among which was a residency condition and an obligation to report all friendships or intimate relationships with women.
[7]
Thus, at pages 8 to 11 of the A4D, the supervisor set out the factors related to the residency condition, under section 5 of Policy 5.1 of the Policy Manual, and analyzed Mr. Chartrand’s situation, where applicable, with respect to each of those factors.
[8]
On January 8, 2018, the Board rendered its decision and imposed a number of conditions on Mr. Chartrand’s statutory release, including reporting any intimate relationships with women and the residency condition. In that regard, the Board concluded that, in the absence of a residency condition, Mr. Chartrand would present an undue risk to society by committing, before the expiration of his sentence according to law, an offence set out in Schedule I or an offence under sections 467.11, 467.12 or 467.13 of the Criminal Code (subsection 133(4.1) of the Corrections and Conditional Release Act, SC 1992, c 20 [the Act]).
[9]
On January 19, 2018, in accordance with subsection 147(1) of the Act, Mr. Chartrand appealed the Board’s decision before the Appeal Division and challenged the two conditions imposed on him, namely the obligation to report his intimate relationships with women and the residency condition. As a remedy, he requested that he be granted statutory release with the modifications to the conditions sought and that he not be subject to the residency condition.
[10]
He argued that the Board committed an error of law by imposing a residency condition on him when the criteria for doing so had not been met, and that it considered erroneous and incomplete information, namely, that (1) he had not exhibited positive institutional behaviour; (2) he had two positive urine tests; (3) he associated with criminal peers; (4) he has a criminal history of domestic violence; (5) he filed for divorce after finding out that his ex-wife had become pregnant with another man’s child; (6) he was verbally aggressive; and (7) he was stressed about dealing with the Direction de la protection de la jeunesse [Director of Youth Protection].
[11]
On February 22, 2018, the Appeal Division dismissed Mr. Chartrand’s appeal and affirmed the Board’s decision. In essence, it determined that Mr. Chartrand had failed to raise grounds that would warrant it to intervene and found that the Board had weighed all of the factors in the record in a fair and equitable manner in accordance with the Act. The Appeal Division found the Board’s decision to be reasonable and supported by relevant, reliable and persuasive information.
[12]
It is this decision by the Appeal Division that is the subject of the present application for judicial review.
III.
PARTIES’ POSITIONS
A.
Applicant’s Position
[13]
In support of his application, Mr. Chartrand filed a sworn affidavit on April 20, 2018, wherein he stated, among other things, that: 1) only one of his urine tests was positive; 2) he has no criminal history of domestic violence; 3) he has committed no acts of violence during his up-to-date sentence; and 4) he has been attending the Restorative Justice program, Alcoholics Anonymous meetings and 81 out of 90 sessions of the high intensity Multi-Target program. His affidavit was accompanied by seven exhibits, namely, the A4D, the Board’s decision, his submissions before the Appeal Division, a Quebec Court decision, dated November 25, 2016, regarding visits by his children, the Appeal Division’s decision, a psychological evaluation from March 3, 2017, and his certificate of statutory release.
[14]
Mr. Chartrand argues that the Appeal Division erred because it (1) made erroneous findings based on information that was not accurate, up-to-date, or complete; (2) failed to address points raised in his submissions before the Appeal Division, namely that the Board considered erroneous information with respect to his alleged domestic violence, aggressive behaviour and association with criminal peers; and (3) relied on a psychological risk assessment from 2015 that was no longer valid.
(1)
The Appeal Division made erroneous findings based on information that was not accurate, up-to-date or complete
[15]
With respect to the erroneous findings, Mr. Chartrand points out that the Court must analyze the decisions by the Board and the Appeal Division in their entirety. He notes that the imposition of conditions pursuant to section 133 of the Act is reviewable on a reasonableness standard, but that the deference the Court must normally grant to the Board’s expertise is not immutable or indisputable.
[16]
Mr. Chartrand points out the legislative context imposed by the Act. He contends that section 24 of the Act provides that the Service is required to take all reasonable steps to ensure that any information about an offender that it uses is as accurate, up-to-date and complete as possible.
[17]
Thus, Mr. Chartrand cites the criteria set out at section 5 of Policy 5.1 of the Policy Manual with regard to the imposition of a residency condition, and contends that erroneous or incomplete information was used in the assessment of a criterion or that none of the information allowed for such an assessment.
[18]
Thus, citing examples of such erroneous information, Mr. Chartrand claims, inter alia, that:
·
The argument to the effect that several offences against the person were of a violent nature was based on charges of domestic assault, when none of the charges had led to convictions;
·
Information about his lack of openness towards his Case Management Team (CMT), his potential for being arrogant and/or becoming verbally aggressive was not detailed and was therefore not validated, confirmed, reliable or convincing;
·
The decision of the Court of Quebec, dated November 25, 2016, imposed no specific conditions on Mr. Chartrand and he was permitted to have contact at any time and without supervision with his children, according to all agreements between him and the Direction de la protection de la jeunesse. The stress thus created was at the low end of the scale and it is incorrect to suggest that it could have been a source of violent behaviour;
·
The Appeal Division assessed the risk of reoffending at moderate to high, while the Board referred to a moderate risk of violent recidivism;
·
Information on the two positive urine tests was erroneous given that Mr. Chartrand objected to the result of the test from July 2017 and that since then, that charge had been dismissed; nevertheless, the Appeal Division cited the A4D word-for-word without correction;
·
The finding that Mr. Chartrand would not be able to apply the progress he had made was based solely on his expulsion on two occasions from the high-intensity Multi-Target ICPM program, while the Appeal Division’s decision contained no reference to the 92 sessions he had completed and only paid lip service to the other efforts he had made.
[19]
Thus, Mr. Chartrand maintains that the Court should intervene because a review of all of the relevant information in the record leads to the conclusion that the Board and its Appeal Division failed to exercise their broad discretion in a reasonable, transparent or intelligible manner.
(2)
The Appeal Division failed to address several of the grounds raised in his submissions before it
[20]
With respect to the Appeal Division’s failure to address some of the grounds of his appeal, Mr. Chartrand argues that it is first and foremost a matter of procedural fairness and that, as a result, a correctness standard of review applies.
[21]
He contends that the Appeal Division breached procedural fairness by failing to address all of his grounds for appeal or respond to the matters raised, some of which were nonetheless central to the justification of the imposition of the residency condition, such as the absence of a history of domestic violence, alleged aggressive behaviours and association with criminal peers.
(3)
The Appeal Division relied on a psychological risk assessment that was no longer valid
[22]
Regarding the invalid psychological risk assessment, the applicant maintains that a correctness standard also applies, given that it is a matter of procedural fairness. He argues that section 7 of Policy 2.2 of the Policy Manual grants a validity period of two years for psychological risk assessments. Given that the Board relied on an assessment from July 2015 for imposing the residency condition, the Appeal Division breached its duty of procedural fairness by affirming the Board’s decision and the Court should have the decision re-determined (Demaria v Canada (Attorney General), 2017 FC 45 at para. 31).
[23]
At the hearing, the applicant added that his case fell under section 5 of this chapter of the Policy Manual, that a new psychological risk assessment was required and that section 9 required the Board to obtain a new assessment.
B.
Respondent’s Position
[24]
The respondent is relying on documents in the Certified Tribunal Record.
[25]
The respondent argues that (1) the imposition of the residency condition was reasonable, as both the Board and Appeal Division decisions were reasonable; and (2) the applicant’s arguments fail to show that the imposition of the residency condition was unreasonable and do not warrant the Court’s intervention.
[26]
First, the respondent asserts that the Board’s decision to impose the residency condition to the applicant’s statutory release was reasonable. Indeed, the Board reviewed all of the information in the applicant’s record, then concluded that the condition should be imposed. The information supports the inferences made by the Board, therefore the decision was reasonable.
[27]
Second, the respondent submits that the Appeal Division’s decision affirming the Board’s decision was also reasonable. The Appeal Division indicated its role, identified the grounds of appeal raised by the applicant and carefully reviewed the Board’s decision.
[28]
Lastly, the respondent argues that the applicant’s arguments are unfounded and fail to show the residency condition to be unreasonable.
[29]
First, in response to the applicant’s claim that the Appeal Division considered inaccurate and incomplete evidence, the respondent pointed out that the Board must consider “all available information that is relevant to a case”
(Mooring v Canada (National Parole Board), [1996] 1 S.C.R. 75 at para. 21 [Mooring]), even information about charges for which the applicant has been acquitted (Fernandez v Canada (Attorney General), 2011 FC 275 at para. 26 [Fernandez]; Barrett v Canada (Public Safety and Emergency Preparedness), 2017 FC 1030 at paras. 32-33, 36 [Barrett]). In addition, the relevance of dealings with the Direction de la protection de la jeunesse should be considered in light of the applicant’s overall record (Migneault v Canada (Attorney General), 2004 FC 468 at para. 21). Furthermore, despite the discrepancy between the findings of the Appeal Division and the Board on the risk of reoffending, the fact remains that this risk was deemed to be at least “moderate”
. Moreover, both decisions acknowledged the efforts made by the applicant in various programs.
[30]
Second, in response to the applicant’s claim that the Appeal Division failed to review all of the grounds of his appeal, the respondent argues that the Appeal Division is presumed to have considered all of the available information and the fact that certain arguments were not addressed in its decision does not mean that it was unreasonable (Ross v Canada (Attorney General), 2011 FC 829 at para. 26). Moreover, its role is limited to ensuring that the Board’s decision was founded and based on information available to it at the time of the decision.
[31]
Third, in response to the applicant’s claim that the psychological risk assessment from 2015 breached procedural fairness, the respondent argues that only seven months had elapsed since the end of the assessment’s validity period. The Appeal Division had also relied on a Correctional Plan from September 2017 and on the A4D from October 2017. Furthermore, contrary to what the applicant asserts, the residency condition had been imposed after having considered his record as a whole.
IV.
ANALYSIS
A.
Issues
[32]
Given that Mr. Chartrand is not challenging the residency condition, the Court must determine whether it was reasonable for the Appeal Division to affirm the Board’s decision that it was “satisfied that in the absence of such a condition the offender will present an undue risk to society by committing, before the expiration of their sentence according to law, an offence set out in Schedule I or an offence under section 467.11, 467.12 or 467.13 of the Criminal Code”
(subsection 133(4.1) of the Act).
[33]
In this context, the Court must determine whether Mr. Chartrand’s arguments are founded and whether, as he has argued, the Appeal Division (1) made erroneous findings on the basis of information that was not accurate, up-to-date or complete; (2) failed to address several matters raised in his submissions before the Appeal Division; and (3) relied on a psychological risk assessment that was no longer valid.
B.
Legislative Environment
[34]
Sections 100 and 101 of the Act deal with the purpose and principles of conditional release, detention and long-term supervision. They state in part that the protection of society must be the paramount consideration in the determination of any case by the Board (section 100.1) and that the Board must consider all available relevant information (paragraph 101(a)). For the sake of brevity, the relevant provisions are appended to this judgment.
[35]
Subsection 24(1) of the Act, for its part, provides that the Service is to take all reasonable steps to ensure that any information about an offender that it uses is as accurate, up-to-date and complete as possible.
[36]
Statutory release is governed by sections 127 et seq. of the Act and the imposition of specific conditions and the residency requirement associated thereto are governed by subsections 133(3) and (4) to (4.4) of the Act. Thus, to impose a residency condition, the Board must be “satisfied that, in the absence of a such a condition, the offender will present an undue risk to society by committing, before the expiration of their sentence according to law, an offence set out in Schedule I or an offence under section 467.11, 467.12 or 467.13 of the Criminal Code”
(subsection 133(4.1) of the Act).
[37]
To assess such risk, section 5 of Policy 5.1 of the Policy Manual counsels Board members to weigh all relevant information to determine the risk and to consider, in particular, the following factors: (a) the potential for violent behaviour; (b) stressors/factors in the release environment which may be predictive of violent behaviour; (c) psychological information; (d) information concerning any attempts by the offender to reduce/mitigate the possibility of future violent behaviour; and (e) information that the offender is or will be participating in treatment and/or interventions appropriate to the prevention of violence and observable and measureable gains derived from them.
C.
Conclusions of the Appeal Division
[38]
The parties agree that questions of mixed fact and law are reviewable on a reasonableness standard. Moreover, when an Appeal Division’s decision affirms the decision of the Board, the Court is required to ensure that the Board’s decision is lawful
(Cartier v Canada (Attorney General), 2002 FCA 384 at para. 10).
[39]
Thus, the Court will review whether the decisions were justified, transparent and intelligible and whether they fell within the 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 [Dunsmuir]).
[40]
The courts have recognized that the Board and its Appeal Division have expertise in conditional release-related decisions and that, as a result, considerable deference should be given to their fact-finding and to their application of the governing statutes and regulations to those facts (Fernandez at para. 20).
[41]
In short, the applicant has not convinced the Court that the Appeal Division’s findings were based on information that was erroneous, inaccurate, out-of-date or incomplete. The Court has reviewed the allegations that Mr. Chartrand submitted in his memorandum and addressed certain concerns with the applicant at the hearing. It has concluded that:
The Board’s finding that a number of offences against the person were of a violent nature was not based on charges of domestic assault, but rather, on [translation] “convictions for robberies, some of which were committed using a firearm, breaking and entering, thefts, failure to comply with undertakings, trafficking in narcotics and possession of a credit card”
(Board’s decision at page 4, paragraph 7);
Additionally and in any event, the Board may consider charges that have been withdrawn (Mooring at para. 18; Barrett at paras. 32-33; Fernandez at para. 26);
Information that Mr. Chartrand showed little openness toward his CMT, could be arrogant and/or become verbally aggressive can be found in the A4D (page 4, 2nd paragraph; page 9, 1st paragraph; page 10, 5th paragraph), in the Correctional Plan dated September 27, 2017 (page 7), in the progress report from July 5, 2017 (page 5) and in the progress report from October 4, 2017 (page 20);
Counsel for the applicant confirmed to the Court that the parties were now in agreement about the children’s visits. However, this agreement was not adduced, there is nothing to indicate that it was brought to the attention of the Board or its Appeal Division and its contents are not known. Thus, in light of the decision of the Court of Quebec dated November 25, 2016, it appears reasonable for the Board and its Appeal Division to have concluded that restrictions regarding Mr. Chartrand’s wishes to see his children could have been a stress factor;
The Appeal Division and the Board did not contradict each other with respect to the level of risk. Rather, they referred to different sources to place the risk level at moderate or moderate/high. The Board referred to the Statistical Information on Recidivism [SIR] scale, which found there to be a “moderate/high” risk of recidivism
, and to the A4D, which assessed a “moderate”
risk of “violent recidivism”
. The Appeal Division referred instead to the Correctional Plan from September 27, 2017, when it assessed the risk to be “between moderate and high”
.
To be sure, the Court notes that the Board referred to the fact that Mr. Chartrand was guilty of having had two positive urine tests, that the Appeal Division cited the Board in that regard and that it would have been preferable for them to have used a different terminology. That said, the Appeal Division noted that the disciplinary court had not made a determination on the second offence report and counsel for the applicant confirmed that this information was accurate at the time the Appeal Division issued its decision. The poor choice of terminology in this context is not sufficient to render the decision unreasonable.
The finding that Mr. Chartrand would not be able to apply the progress he had made was based on the observations of the CMT, which noted both his expulsions from the Multi-Target program as well as his having attended Alcoholics Anonymous meetings, the restorative justice program and psychological follow-ups (page 6, 1st paragraph of the decision; page 6, 8 and 11 of the A4D). In addition, contrary to Mr. Chartrand’s claims and statement in his affidavit, he attended only 27 out of 92 sessions of the first ICPM high intensity program (page 7 of the Correctional Plan from September 27, 2017) and 78 of the 92 sessions of the second program (page 5 of the progress report from July 5, 2017).
[42]
The evidence in the record does not support Mr. Chartrand’s arguments and the Court cannot conclude that the Appeal Division
made erroneous findings based on information that was not accurate, up-to-date and complete, as Mr. Chartrand maintains.
D.
Violation of Procedural Fairness by Failing to Address Grounds for Appeal
[43]
With regard to procedural fairness, the Court normally applies a standard of correctness. However, the Federal Court of Appeal recently addressed the manner in which to approach this issue in Canadian Pacific Railway Company v Canada (Attorney General), 2018 FCA 69 [Canadian Pacific] and Vavilov v Canada (Citizenship and Immigration), 2017 FCA 132 (at paras. 11 to 14). According to these decisions, the Court does not apply a standard of review to matters of procedural fairness: rather, it must ask itself whether a fair and just process was followed, focusing on the nature of the rights involved and the consequences for the affected parties (Canadian Pacific at para. 54). In this case, the distinction matters little, given that the intervention of the Court is not warranted, even on a standard of correctness.
[44]
Indeed, Mr. Chartrand is seeking the intervention of the Court because the Appeal Division failed to address three points, which he described as grounds in his memorandum, to which he referred in the written submissions made to it. However, the Supreme Court confirmed that a “decision-maker is not required to make an explicit finding on each constituent element, however subordinate, leading to its final conclusion”
and that “if the 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”
(Newfoundland and Labrador Nurses’ Union v Newfoundland and Labrador (Treasury Board), 2011 SCC 62 at para. 16).
[45]
In this case, the Court can understand the reasons for the decision, and the omission of the points referred to by the applicant is not fatal.
E.
Violation of Procedural Fairness by Relying on the 2015 Psychological Assessment
[46]
Lastly, section 2.2 of the Policy Manual deals with psychological risk assessments and psychiatric assessments required. Its purpose is to guide Board members with regard to their review of the assessments during the decision-making process.
[47]
Section 5 of Policy 2.2 states that a risk assessment is required for temporary absence reviews, pre-release reviews for parole and detention reviews. Section 7 provides that psychological risk assessments are considered to be valid for a two-year period and section 9 provides for situations in which a new assessment is required.
[48]
Mr. Chartrand argues that the Board and its Appeal Division based their risk assessment on the 2015 psychological risk assessment or on documents that cite it verbatim. This assessment would be invalid, given that it dated back to 2015 and the Appeal Division’s decision would therefore be fatally flawed.
[49]
At the hearing, the applicant’s counsel added (1) that statutory release is covered by section 5 of Policy 2.2 of the Policy Manual, despite the fact that it is not mentioned in that section, and that a psychological risk assessment was therefore required in Mr. Chartrand’s case; and (2) that a new psychological assessment ought to have been obtained in accordance with section 9.
[50]
Unfortunately, the psychological assessment from 2015 is not in the Court record. The parties nonetheless confirmed that the only information in it that would be relevant to this case is that cited in the A4D, that is to say, that [translation] “the level of violent recidivism is assessed at moderate in the short, medium and long term”
. The parties also confirmed the accuracy of this quote.
[51]
The Court was not convinced that Policy 2.2 of the Policy Manual would apply here, given the wording in its section 5, or that a new assessment was required. Unfortunately, the applicant failed to adduce any decision in support of his late arguments in this regard.
[52]
Moreover, it is clear that neither the Board, nor the Appeal Division based their risk assessment exclusively on the 2015 assessment.
[53]
In fact, the Board referred to the SIR and added further relevant information in determining that the risk remained an issue (page 7, 5th paragraph of the Board’s decision). The Appeal Division specifically mentioned that the 2015 assessment was more than two years old and referred instead to the Correctional Plan dated September 27, 2017, in determining that the risk of reoffending was moderate to high.
[54]
The evidence in the record does not support Mr. Chartrand’s argument and the Court shall not intervene.
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