Date: 20020514
Docket: T-1369-01
Neutral citation: 2002 FCT 548
Ottawa, Ontario, May 14, 2002
Before: MICHEL BEAUDRY J.
BETWEEN:
JEAN-YVES MIGNEAULT
Plaintiff
and
M. CHARBONNEAU, C. KENNEDY,
NATIONAL PAROLE BOARD
Defendants
REASONS FOR ORDER AND ORDER
[1] This is an application for judicial review from a decision by the Appeal Division of the National Parole Board (hereinafter "the Appeal Division") on June 14, 2001 in which the Appeal Division affirmed the decision by the National Parole Board (hereinafter "the NPB") to revoke the plaintiff's statutory release pursuant to s. 135(5) of the Corrections and Conditional Release Act, R.S.C. c. C-44.6 (hereinafter "the Act"), since he did not observe the special conditions of his release and so presented an undue risk to society.
PRELIMINARY QUESTION
[2] The defendant argued that the application for judicial review is belated and I should consequently dismiss it on that ground alone.
[3] At the very start of the hearing by teleconferencing call, I heard the plaintiff, representing himself, and the defendant's representative on this question, and decided to take the objection under reserve and decide it before proceeding to the arguments put forward by the plaintiff on the substance of the case.
DECISION ON PRELIMINARY OBJECTION
[4] The plaintiff is an inmate and alleged that he received the first page of the decision of June 14, 2001 on June 22 or 23, 2001, and received the decision as such on June 27 or 28, 2001. He claimed that he was within the 30 days laid down by the Act as, he said, his application for judicial review was filed on July 27, 2001.
[5] He mentioned that he had always intended to challenge a decision which was unfavourable and asked for an extension of time if I ever came to the conclusion that he had exceeded the thirty-day statutory deadline for filing his application for judicial review.
[6] The defendant, for his part, did not file a receipt for the disputed decision.
[7] I therefore grant the plaintiff the extension requested and rule that he filed his application for judicial review at the proper time.
[8] Accordingly, the question that remains is whether the plaintiff was right in seeking judicial review of the Appeal Division's decision on June 14, 2001.
POINT AT ISSUE
[9] Did the Appeal Division render a patently unreasonable decision based on a mistaken finding of fact when it affirmed the NPB's decision that the plaintiff had not observed the special conditions of his parole, and so presented an undue risk to society if he was released?
[10] I am persuaded that there was no patently unreasonable error in the decision made.
PLAINTIFF'S ARGUMENTS
[11] The plaintiff maintained that the two NPB members refused to accept his evidence at the hearing, contrary to the law.
[12] The plaintiff submitted that there was no psychological report to indicate that he may commit illegal or violent acts.
[13] The plaintiff argued that the NPB based its decision on erroneous facts and that no rule of law or justice was observed at the hearing. Further, he alleged that there was no affidavit to support the bases of the disputed decision.
[14] Finally, the plaintiff alleged that the Appeal Division erred in affirming the NPB's decision to revoke his parole.
DEFENDANT'S ARGUMENTS
[15] The defendant submitted that this application for judicial review should be dismissed because the plaintiff did not observe the special conditions of his statutory release imposed by the NPB.
[16] The defendant considered that the NPB properly revoked the plaintiff's statutory release and the Appeal Division properly dismissed his appeal.
FACTS
[17] The plaintiff is serving a sentence of 12 years, 7 months and 28 days for the offences of sexual assault with a weapon, possession of a weapon, robbery, use of a firearm and escaping from lawful custody.
[18] The plaintiff is currently at the La Macaza institution.
[19] On May 23, 2000 the NPB imposed two special further conditions on the plaintiff with a
view to his forthcoming release, effective on July 10, 2000, namely a residence requirement and participation in the CERUM sex offender program, pursuant to ss. 133(3) and (4.1) of the Act.
[20] On July 10, 2000 the plaintiff was given statutory release.
[21] On December 13, 2000 the persons responsible for the halfway house (CRC) where the plaintiff was staying conducted a clarification interview.
[22] He was asked to observe the curfew and the requirement in the release that he be present for seven hours in the residence, and to use [TRANSLATION] "respectful and proper" language towards the staff.
[23] On December 21, 2000 Jean-Guy Desrosiers, a member of the NPB, issued an arrest warrant and suspension of parole for the plaintiff pursuant to s. 135(1) of the Act.
[24] On December 22, 2000 the warrant was executed and the plaintiff was arrested.
[25] On March 15, 2001 the NPB conducted the plaintiff's post-release hearing and decided to revoke his statutory release.
[26] On March 16, 2001 the plaintiff appealed that decision to the Appeal Division.
[27] On June 14, 2001 the Appeal Division affirmed the NPB's decision and dismissed his appeal.
[28] On July 27, 2001 the plaintiff filed in the Registry of this Court an application for judicial review of the decision by the Appeal Division of the NPB.
DECISION AT ISSUE
[29] The Appeal Division, presided over by M. Charbonneau, concluded at p. 4 of its decision:
[TRANSLATION]
The Appeal Division concludes that the decision at issue was fair and reasonable, based on relevant, credible and reliable information and in accordance with the Act and the post-release policies of the Board. We also find that you and your assistant had every opportunity to speak at the hearing and that it was conducted in accordance with the rules of fundamental justice.
ANALYSIS
Standard of judicial review
[30] In Costiuc v. Canada (Attorney General), [1999] F.C.J. No. 241 (F.C.T.D.), Tremblay-Lamer J. explained the legal limits within which this Court is authorized to judicially review a decision by the Appeal Division of the NPB. At para. 6, Tremblay-Lamer J. said:
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.
NPB DECISION
[31] On March 15, 2001 the NPB members came to the conclusion that the plaintiff's statutory release should be revoked. At p. 4 of the NPB decision there is the following:
[TRANSLATION]
In view of all the circumstances which led to the suspension of your statutory release, your case management team recommended that your statutory release be revoked. In its opinion this is the least restrictive measure which can be taken to protect society. At this stage, your parole officer considers that the intervention should continue with treatment for offenders with personality disorders at the Institut Philippe Pinel.
Unfortunately, today's hearing did not allow us to reach any other conclusion. The Board revokes your statutory release as it considers that you present an undue risk to society.
[32] I have carefully re-read the entire transcript (pp. 48 to 116 of the defendant's record) and have also listened to the cassette of that hearing supplied by the plaintiff.
[33] I find that on several occasions the presiding member interrupted the plaintiff, but the latter did the same thing. What I found most striking was at p. 116 of the transcript:
[TRANSLATION]
210 Q - Did you say everything you wanted to say there?
A- Yes.
211 Q- You asked me to let you finish several times.
A- Yes. I am sorry that I . . .
212 Q- I could have asked the same thing: "Let me finish my questions before you answer".
A- Yes, yes, you could have said that.
213 Q- Do you have anything else . . .
A- No, that's right.
214 . . . you feel it is important to tell us?
A- No, that's right.
215 Q- Is that okay?
A- Yes.
[34] Additionally, the plaintiff's former counsel Martin Latour, when he wrote the Appeal Division on May 8, 2001 (at p. 143 of the defendant's record) said the following:
[TRANSLATION]
Mr. Migneault was suspended as a result of "unacceptable behaviour" and breaches of CRC regulations. It is true that our client has had an opportunity to give his version of the facts, which differs considerably from that of the CSC . . . [My emphasis.]
[35] Accordingly, I am satisfied that the rules of fundamental justice and procedural fairness were observed.
PLAINTIFF'S CREDIBILITY
[36] The assessment of credibility is within the NPB's jurisdiction and this Court should only intervene where it is shown that the conclusion arrived at by the NPB is perverse, arbitrary or patently unreasonable. Zarzour v. Canada, [2000] F.C.J. No 2070 (F.C.A.), confirms that the assessment of an offender's credibility is a matter for the NPB. Décary, Létourneau and Noël JJ.A. held at para. 38:
I do not think, as the respondent appears to be arguing, that it is always necessary to conduct an inquiry to verify information that the Board receives. Given its needs, resources and expertise, the Board must be given some latitude, obviously within some legal parameters, as to the appropriate methods for guaranteeing the reliability of information that is supplied to it.
[37] Further, the NPB ruled on this point at p. 4:
[TRANSLATION]
What is especially clear from your actions while on statutory release is your inability to act openly and honestly. The nature of your offence, the seriousness of the offence, the considerable harm you have caused the victims, do not allow the Board to exercise any tolerance. The CSC is facing a therapeutic impasse, since despite the fact that technically you participated in the CERUM program, you were not open to any kind of assistance by CSC representatives as you did not trust them. You even obtained a microphone to record your conversation with them.
[38] I also feel that para. 41 of Zarzour, supra should be applied here:
I am also satisfied that the Board assessed the persuasive value of Ms. Bélanger's allegations. The prohibition on contact imposed by the Board, which was much more limited than the one requested, indicates that the Board weighed the allegations against the information obtained and put things in perspective. It convinces me that the Board, in the exercise of its mandate of ensuring the protection of society, and given the respondent's violent record and his personality, preferred to act prudently, while continuing to be fair to the respondent.
[39] Accordingly, it was not necessary, as the plaintiff maintained, for affidavits to be filed by the plaintiff's brother and mother for the Board to make an unfavourable ruling against the latter.
VIOLENCE BY PLAINTIFF
[40] On this point, the Appeal Division said at pp. 3-4:
[TRANSLATION]
You have several breaches of conditions to your credit and did not succeed in observing the instructions and regulations of the CRC. The Board noted that when your requests are not promptly approved or answered, your negative reaction is consistent with your cycle of offences. In this regard, the Board cannot ignore the very serious level of violence accompanying your offences, the victims of which suffered serious injury. It told you at the hearing that such a criminal record requires the greatest caution . . . Based on your recent reported conduct, the Board considers that your tendency to violence is continuing . . .
ABSENCE OF PSYCHOLOGICAL DIAGNOSIS OF PLAINTIFF
[41] At p. 3, the Appeal Division said:
[TRANSLATION]
The same comment applies to your statement in the appeal notice regarding the incompetence of the two case management officers to assess you for psychiatric and psychological purposes without requiring written reports. The Appeal Division notes that at the hearing the case management officer made a brief reference to Dr. Rouleau, according to whom the risk factors "are still there" and what you are trying to do is "to control and manipulate". The two officers must have been aware from reading the record of the content of the psychiatric and psychological reports concerning you, and it was quite natural for them to refer to those reports verbally at the hearing, or in writing, and to take them into account in their recommendations.
[12] I do not intend to intervene, because I consider it is natural for the officers responsible for the plaintiff's case to refer to therapeutic documents at the hearing before the NPB.
CONCLUSION
[43] The Appeal Division's decision on June 14, 2001 in my opinion is fair and reasonable. It is based on credible and reliable information and in accordance with the Act, and NPB policies, and it observes the rules of natural justice and procedural fairness.
[44] The application for judicial review is dismissed without costs.
ORDER
THE COURT ORDERS that:
18. The application for judicial review is dismissed without costs.
| Michel Beaudry
Judge |
Certified true translation
Suzanne M. Gauthier, C. Tr., LL.L.
FEDERAL COURT OF CANADA
TRIAL DIVISION
SOLICITORS OF RECORD
FILE: T-1369-01
STYLE OF CAUSE: Jean-Yves Migneault v. M. Charbonneau et al.
PLACE OF HEARING: Montréal, Quebec by teleconferencing call
DATE OF HEARING: April 9, 2002
REASONS FOR ORDER BY: BEAUDRY J.
DATE OF REASONS: May 14, 2002
APPEARANCES:
Jean-Yves Migneault FOR THE PLAINTIFF
(for himself)
Dominique Guimond FOR THE DEFENDANTS
SOLICITORS OF RECORD:
Jean-Yves Migneault FOR THE PLAINTIFF
(for himself)
La Macaza, Quebec
Morris Rosenberg FOR THE DEFENDANTS
Deputy Attorney General of Canada
Montréal, Quebec