PRESENT: The Honourable Mr. Justice Lemieux
BETWEEN:
and
THE ATTORNEY GENERAL OF CANADA
REASONS FOR ORDER AND ORDER
[1] James Clayton Collier, (the applicant) seeks judicial review of the decision of the Appeal Division of the National Parole Board dated November 14, 2005 (the Tribunal) which dismissed his appeal from and affirmed the decision of the National Parole Board (NPB) dated May 12, 2005 to deny him full parole.
[2] It should be noted that on November 5, 2004, the NPB denied Mr. Collier full parole but took the unusual step of ordering a further review of his case to determine whether in fact his medical condition would preclude him from taking a High Intensity Sex Offender Program (the Program) and if he was medically ineligible, what other alternatives existed. The decision which the Tribunal reviewed was the NPB's accelerated review after the receipt of information that he was medically fit to undertake the Program.
[3] Mr. Collier, 72 years of age, is a fourth time federal recidivist. In December of 1985, he was declared a dangerous offender and has served twenty-two years of an indeterminate sentence. All of his convictions were sexual offences predominately involving the fondling of children in the age range of eight to thirteen. His first offence dates back to 1955; he committed his most recent offences in the summer of 1984 while on mandatory supervision.
[4] According to the evidence, he is assessed as posing a high to very high risk of sexual recidivism with an admitted attraction to children. He has been referred to the Regional Treatment Centre's High Intensity Sex Offender Program, a program which he had completed in 1993 without his risk being reduced. According to the evidence, he meets the criteria for a delusional disorder and pedophilia.
[5] It is acknowledged Mr. Collier is in very poor health. He has been confined to a wheelchair for a number of years although he is able to walk short distances. In May, 1993 he was diagnosed with diabetes whose debilitating effects have progressively increased. He now takes insulin daily.
[6] In May 2001, he had three toes amputated from his right foot due to a toe infection which was not healing properly. He is now partially blind and has limited diminishing vision in his good eye. He has high blood pressure; he has osteoarthritis in both knees and suffers from chronic pain as a result.
[7] Before the NPB and the Tribunal, Mr. Collier was represented by counsel. His counsel submitted documentary evidence and made argument. That evidence covered two points: Mr. Collier's health and his good behaviour in prison over the last seven years.
[8] The nature of his health problems were described in the affidavit of Maurice Giroux at the time employed as the Chief of Health Services at the Warkworth Institution, a medium security federal prison. He also tendered a letter dated February 15, 2005 from Doctor McKeough the last sentence of which reads:
"Without commenting specifically on Mr. Collier's health, and not knowing if he will be required to undergo penometric testing, men who have had diabetes as long as he are often physically incapable of arousal."
[9] Evidence of his good behaviour can be found in the Correctional Service of Canada's (CSC) reports on him by his case management team and in testimonial letters from his three teachers from whom he was taking courses. Mr. Giroux stated he had been at Warkworth Institution since August, 2003 and during this time Mr. Collier has had no inappropriate behaviour or threatening incidences towards the nursing staff.
[10] Counsel for Mr. Collier raises two main points in support of his judicial review application. First, he argues the Tribunal ignored or failed to consider in connection with the risk factors as related to his parole, both the evidence concerning Mr. Collier's health conditions as well as the reforming effects of his good behaviour. On this issue he also argues the psychologist's report by Dr. Harris dated June 16, 2004, relied upon by both the Tribunal and the NPB suffers from the same defect.
[11] In essence, he argues, where the Tribunal and the NPB make mention of his positive good behaviour and health problems, it was not in connection with discharging the mandate Parliament entrusted which is assessing the risk for parole purposes but rather was an assessment connected to his correctional plan and as such constitutes an irrelevant consideration.
[12] The second point argued by counsel for Mr. Collier is that the Tribunal's decision is not in conformity with the principles set out by the Supreme Court of Canada in its decision Warden of Mountain Institution v. Steele [1990] 2 S.C.R. 1385, a case involving a federal inmate who had been imprisoned for thirty-seven years serving an indeterminate detention after having been declared a criminal sexual psychopath. The Supreme Court of Canada examined the conditions of his detention in order to assess whether his continuing detention was a violation of section 12 of the Charter of Rights and Freedoms which provides "Everyone has the right not to be subjected to any cruel and unusual treatment or punishment".
[13] Counsel for Mr. Collier states the NPB's November 2004 decision must be read together with its May 2005 decision since the first decision was rolled into the May, 2005 decision in order to ensure Mr. Collier was offered a suitable correctional plan in the circumstances which, in part, contemplated his successfully completing the Program.
[14] Before the second hearing in May, 2005, as previously noted the NPB received information Mr. Collier was medically fit to take the Program. During that hearing, the NPB was advised Mr. Collier's entry into the Program had been deferred from March 2005 to February 2007, a program which, as noted, he must successfully complete if he is to have any chance of parole.
[15] Counsel argues the NPB's admonition to the CSC on this issue was not sufficient. The Tribunal should have found a breach of the Steele principles in these circumstances.
[16] I quote the following extract from the NPB's May 12, 2005 decision on this point:
"At your hearing today you indicated that you are clearly amenable to participating in the Regional Treatment Centre Program and would be prepared to participate immediately. Your assistant [legal counsel] commented on your mounting frustration that the revised date for your participation is now scheduled for March 2007. The Board agrees with your assistant in this regard and would strongly urge the Correctional Service of Canadato refer you to this program as soon as reasonably possible." [Emphasis mine]
Analysis
[17] I cannot accept the applicant's counsel's argument the Tribunal erred in its review of the NPB's decision to refuse Mr. Collier full release.
[18] In terms of the standard of review I cite the Federal Court of Appeal's decision in Cartier v. Canada (Attorney General) [2003] 2 F.C. 317 where that Court dealing with the standard of review to be applied by the Appeal Division when dismissing and affirming a decision of the NPB is patent unreasonableness on matters of fact and reasonableness on questions of law (See also Bedi v. Canada (Attorney General) 2004 FC 1722).
[19] In my view, a plain reading of the Tribunal's decision shows it properly focused on Mr. Collier's health situation as it related to his risk to society and not as it concerned his correctional plan. Moreover, it took into account his improved behaviour for this purpose.
[20] Parliament made it plain in sections 101 and 102 of the Corrections and Conditional Release Act (the Act) the NPB, in achieving the purpose of conditional release, must be guided by the protection of society as a paramount consideration in the determination of parole balanced with making the least restrictive choice.
[21] As a matter of convenience I set out below sections 100, 101 and 102 of the Act:
| Purpose and Principles
Purpose of conditional release
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.
Principles guiding parole boards
101. The principles that shall guide the Board and the provincial parole boards in achieving the purpose of conditional release are
(a) that the protection of society be the paramount consideration in the determination of any case;
(b) that parole boards take into consideration all available information that is relevant to a case, including the stated reasons and recommendations of the sentencing judge, any other information from the trial or the sentencing hearing, information and assessments provided by correctional authorities, and information obtained from victims and the offender;
(c) that parole boards enhance their effectiveness and openness through the timely exchange of relevant information with other components of the criminal justice system and through communication of their policies and programs to offenders, victims and the general public;
(d) that parole boards make the least restrictive determination consistent with the protection of society;
(e) that parole boards adopt and be guided by appropriate policies and that their members be provided with the training necessary to implement those policies; and
(f) that offenders be 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.
Criteria for granting parole
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.
1992, c. 20, s. 102; 1995, c. 42, s. 27(F). |
Objet et principes
Objet
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.
Principes
101. La Commission et les commissions provinciales sont guidées dans l'exécution de leur mandat par les principes qui suivent :
a) la protection de la société est le critère déterminant dans tous les cas;
b) elles doivent tenir compte de toute l'information pertinente disponible, notamment les motifs et les recommandations du juge qui a infligé la peine, les renseignements disponibles lors du procès ou de la détermination de la peine, ceux qui ont été obtenus des victimes et des délinquants, ainsi que les renseignements et évaluations fournis par les autorités correctionnelles;
c) elles accroissent leur efficacité et leur transparence par l'échange de renseignements utiles au moment opportun avec les autres éléments du système de justice pénale d'une part, et par la communication de leurs directives d'orientation générale et programmes tant aux délinquants et aux victimes qu'au public, d'autre part;
d) le règlement des cas doit, compte tenu de la protection de la société, être le moins restrictif possible;
e) elles s'inspirent des directives d'orientation générale qui leur sont remises et leurs membres doivent recevoir la formation nécessaire à la mise en oeuvre de ces directives;
f) de manière à assurer l'équité et la clarté du processus, les autorités doivent donner aux délinquants les motifs des décisions, ainsi que tous autres renseignements pertinents, et la possibilité de les faire réviser.
Critères
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.
1992, ch. 20, art. 102; 1995, ch. 42, art. 27(F). |
[22] One of the central arguments submitted by Mr. Collier's counsel to the Tribunal was that the NPB failed to adequately consider Mr. Collier's appropriate institutional conduct over the past seven years, including the positive reports written by individuals who had daily contact with Mr. Collier. The Tribunal also noted in his argument "that the Board also failed to consider your physical health in assessing your risk, instead, you believe the Board relied heavily upon the recent psychological report by Dr. Harris which omitted any consideration of your physical health and your conformist behaviour."
[23] In response to this argument, the Tribunal wrote:
In our view the Board properly assessed your risk in light of the principles set out in the Steele decision and Board policy pertaining to dangerous offenders. It focused on the central issue on whether granting your full parole would constitute an undue risk to society. In so doing, it considered the particular circumstances of your case, including the new information related to whether you could participate in sex offender programming despite your health problems. Contrary to what you submit, the Board was well aware of your medical issues. Your medical needs were documented in your file and raised at the hearing. The Board fully assessed and weighed your medical issues in reaching its decision. In particular, it properly considered that the Regional Treatment Centre's (RTC) High Intensity Sex Offender Treatment Program could accommodate your medical needs and your doctor was of the view that your medical issues did not preclude you from participating in classes, counselling and group discussions."
[24] Similarly, the Tribunal also considered the applicant's argument concerning his improved institutional behaviour. The Tribunal wrote:
"We find no merit to your claim that the Board did not properly consider improved institutional behaviour during the past seven years. This matter was discussed at the hearing and reference was made to the positive letters written by individuals who dealt with you. The Board considered and weighed your institutional behaviour in its decision and noted that your institutional stability demonstrated that you were amenable to advancing your correctional plan."
[25] In my view, Mr. Collier failed to demonstrate the Tribunal's decision was unreasonable. The Tribunal had before it the NPB's record and reasons. In its November 2004 decision the NPB had written:
"You have previously stated that your limited mobility would prevent you from re-offending. However, the assessing psychologist states that you could victimize a child from a distance given your history of exposure, sub-stimulation and un-moderated sexual attraction to children."
[26] I quote another statement made by the NPB in its November 2004 decision:
"Your health has clearly deteriorated in recent years as you now spend most of your time in a wheelchair due to your severe arthritis. You have had three of your toes amputated."
[27] The NPB also considered submissions that "your eyesight and physical mobility has served to mitigate your risk." Moreover in is May 12, 2005 decision the NPB specifically refers to Dr. McKeough's February 15, 2005 letter to it.
[28] Also in its November 2004 decision, the NPB had noted Mr. Collier's release plans were vague including the purchase of a motor home in which to reside, to a return to a city in Saskatchewan to be near his family and an indication, at the hearing, that he would like to begin gradual release to a Community Correctional Centre. The NPB noted no community strategy had been conducted in his case and he had no family support.
[29] I carefully reviewed Dr. Harris' report which is found at tab 3 of the Applicant's application record. There is no merit to the argument Dr. Harris who interviewed Mr. Collier for a period of five hours over a five-day period was not aware of and did not take into account his health problems and his improved behaviour. At page 15 of his report, Dr. Harris specifically states that "his risk for violent action may be attenuated by present medical disabilities." At page 16 of his report, Dr. Harris stated his medical problems may somewhat reduce his risk of recidivism but nonetheless the risk was high to very high. Finally, at page 15 of his report, Dr. Harris identifies as positive factors and strengths for Mr. Collier his improved behaviour and his excellent reports from the schools.
[30] The entire medical evidence was not seriously challenged by counsel for the applicant. Mr. Collier did not adduce before the NPB any evidence rebutting the psychiatric and psychological assessments about him except to say those assessments may be dated because of his state of health and good behaviour.
[31] It is not the function of this Court on judicial review to re-weigh the evidence before the Tribunal. Based on that evidence the Tribunal could reasonably come to the conclusion it did, namely, that on a review of the record before the NPB and a review of the two NPB decisions the NPB had taken into account the factors of Mr. Collier's health and improved behaviour in assessing his risk to society.
[32] The issue raised in Steele, supra, was whether the National Parole Board erred in refusing to release Mr. Steele on parole with the result that his continuing imprisonment constituted cruel and unusual punishment.
[33] In Steele, supra, the Supreme Court of Canada built on the decision which it had rendered in R. v. Lyons, [1987] 2 S.C.R. 309 where Justice La Forest found that the requirements for regular parole review of an offender's continuing detention ensured an indeterminate sentence would be tailored to fit the circumstances of the individual and the offence thus ensuring there would be no violation of section 12 of the Charter.
[34] In that case, the Supreme Court focused on the statutory criteria contained in the now repealed section 16(1) of the Parole Act which provided that the National Parole Board may grant parole where: (1) the inmate has derived the maximum benefit from imprisonment; (2) the inmate's reform and rehabilitation will be aided by the grant of parole; and (3) the inmate's release would not constitute an undue risk to society. The Parole Act was repealed by Parliament and replaced by the Corrections and Conditional Release Act.
[35] In Lyons, supra, Justice La Forest had indicated the parole release process "assumed the utmost significance for it is that process alone that is capable of truly accommodating and tailoring the sentence to fit the circumstances of the individual offender."
[36] It was Justice Cory who wrote the Supreme Court of Canada's Reasons for Judgment in Steele, supra. He examined each of the statutory criteria in the then section 16(1) of the Parole Act. He expressed his conclusion at paragraph 67 of his reasons which I cite:
¶ 67 It is only by a careful consideration and application of these criteria that the indeterminate sentence can be made to fit the circumstances of the individual offender. Doing this will ensure that the dangerous offender sentencing provisions do not violate s. 12 of the Charter. If it is clear on the face of the record that the Board has misapplied or disregarded those criteria over a period of years with the result that an offender remains incarcerated far beyond the time he or she should have been properly paroled, then the Board's decision to keep the offender incarcerated may well violate s. 12. In my opinion, this is such a case.
[Emphasis mine]
[37] Justice Cory examined each of the then three criteria governing the Parole Board's decision whether to release or not a person who was serving an indeterminate detention. First, he considered the evidence whether Mr. Steele had derived the maximum from imprisonment. He wrote the following at paragraphs 68 and 69 of his reasons:
¶ 68 First, Steele's imprisonment had long ago reached the point at which he had derived "the maximum benefit from imprisonment". During his incarceration governments have changed, wars have begun and ended and a generation has grown to maturity. He has been in prison longer than the vast majority of the most cruel and callous murderers. Indeed, it is uncertain whether imprisonment provided Steele with any benefit at all. During the first 20 years of his detention there were no facilities in British Columbia that could provide the psychiatric treatment Steele needed. By the time it was available, Steele was a middle-aged institutionalized offender who, not surprisingly, viewed the treatment program as a means of [page1413] gaining his release rather than as an opportunity for rehabilitation.
¶ 69 Throughout the period of his imprisonment, numerous observers expressly stated not only that Steele had received the maximum benefit from imprisonment, but also that continued detention would cause him to deteriorate. As early as 1960, Dr. P. Middleton warned that any treatment facilities available in the penitentiary would not offset "the pernicious effects of association" with other inmates. Others who made this same point include: Dr. D. C. MacDonald, Deputy Warden W. H. Collins and Field Representative P. D. Redecopp in 1964; Dr. J. C. Bryce in 1968; Mr. Lee Pulos in 1970; Field Parole Officer William F. Foster and Mr. Pulos, again, in 1972; Dr. Milton H. Miller and Dr. A. Saad in 1974; and Dr. W. J. Ross in 1981. Even Dr. Noone, who testified for the Crown in this application, acknowledged the detrimental effects of indeterminate sentencing for dangerous offenders. While some observers expressed the opinion that Steele should not be released, not one of them appears to have argued that continued incarceration had been or would be beneficial for Steele.
[38] He analysed the second criteria which he said had long been satisfied. In reviewing the evidence, he stated Mr. Steele had deteriorated in the prison environment and the vast majority of psychiatric and psychological evidence expressed the opinion his rehabilitation could only be facilitated and attained by his gradual, supervised release into the community.
[39] He then considered the third criteria which he characterized as the most important, namely, whether the offender constitutes an undue risk to society. He wrote the following at paragraph 71:
¶ 71 There remains then the third and most important criterion, namely whether the offender constitutes an undue risk to society. If an inmate's release continues to constitute an undue risk to the public, then his or her detention can be justifiably maintained for a lifetime. There can be no doubt that in the ordinary course of events the assessment as to whether or not an inmate's release would pose an undue risk to the community is best left in the discretion of the experts who participate in the Parole Board review decisions. However, in light of the inordinate length of Steele's period of incarceration, it is appropriate to consider whether the Board erred in its evaluation that Steele did in fact constitute a danger to the community. [Emphasis mine]
[40] He reviewed the medical evidence of psychiatrists and psychologists who interviewed Mr. Steele and whose reports were provided to the Parole Board. He concluded sixteen of those experts had expressed a recommendation as to whether or not he should be paroled. Thirteen of the sixteen recommended he should be released on some form of supervised parole.
[41] At paragraph 75, Justice Cory stated "It is difficult to find any evidence of acts committed by Mr. Steele during the past two decades that would suggest that he remained an undue risk to society. His parole violations resulted not from a tendency to repeatedly engage in violent or sexual deviant behaviour, but from the difficulties he had in abiding by parole curfew restrictions and abstaining from drinking alcohol. He concluded at paragraph 78 and 79 as follows:
¶ 78 The statutory criteria should be applied to the individual inmate and considered in light of all the relevant circumstances. One of those circumstances will be length of the term served. The passage of several decades in prison may not in itself justify parole. However, it may well serve as an indication that the inmate is no longer dangerous. Surely with the passage of very long periods of time sexual appetite might reasonably be expected to decline to an extent that it may at least be controlled, if not extinguished. As well, a lengthy incarceration with the concomitant institutionalizing [page1417] effect upon the inmate may serve to explain and perhaps to some extent excuse certain breaches of discipline.
¶ 79 In my view the evidence presented demonstrates that the National Parole Board has erred in its application of the criteria set out in s. 16(1)(a) of the Parole Act. The Board appears to have based its decision to deny parole upon relatively minor and apparently explicable breaches of discipline committed by Steele, rather than focussing upon the crucial issue of whether granting him parole would constitute an undue risk to society. As a result of these errors, the parole review process has failed to ensure that Steele's sentence has been tailored to fit his circumstances. The inordinate length of his incarceration has long since become grossly disproportionate to the circumstances of this case.
[42] I agree with the observation made by counsel for the Attorney General of Canada the conditions of Mr. Collier's incarceration are totally different than those in Mr. Steele's case. The medical evidence in the record both before the Tribunal and the NPB establishes Mr. Collier remains an undue risk to society.
[43] On this issue related to the Steele criteria the applicant is critical of the Appeal Division's endorsement of Mr. Collier's correctional plan as being suitable notwithstanding the fact that his eligibility to take the needed Program has been pushed back to 2007. The applicant says it was not sufficient for the Appeal Division to simply urge the CSC to refer Mr. Steele to the Program as soon as reasonably possible. He argues the Tribunal failed to apply the criteria in Steele in deciding whether Mr. Collier's incarceration had become an infringement of section 12 of the Charter.
[44] I do not agree with counsel for the applicant's submissions on this point. Once again, the reasons in the NPB's decisions shows it was very aware of the Steele criteria and their significance in the discharge of its mandate when making parole decisions in respect of persons serving indeterminate sentences and in the context of the new parole criteria contained in the Act where protection of society is a paramount factor, (see Fournier v. Canada (Attorney General) 2004 FC 1124. It seems to me much of the focus of the NPB's decisions are on Mr. Collier's risk to society should he be granted parole. The NPB also expressed concern on the vagueness of his release plan.
[45] The NPB's concern with Steele led it to inquire into Mr. Collier's fitness to enter the Program being of the view "it will be imperative for you to reduce your risk prior to being considered for any form of conditional release." The same approach was adopted by the Tribunal when it said "the Board properly assessed your risk in light of the principles set out in the Steele decision and the Board policy pertaining to dangerous offenders. It focused on the central issue of whether granting you full parole would constitute an undue risk to society."
[46] In terms of the recommendation made to CSC that Mr. Collier start the Program as soon as possible, the jurisprudence would suggest the NPB does not have jurisdiction over an inmate's correctional plan (see Stoddart v. Canada(National Parole Board) 2004 FC 1350).
[47] In any event, at this stage, it is premature or speculative to anticipate Mr. Collier will not start the Program as soon as possible. If he does not, CSC's failure will become a factor which the NPB will be obliged to take into account in the application of the Steele principles.
[48] Finally, I note Mr. Collier sent directly to the Court a copy of a letter dated May 16, 2006 which he had written to his counsel. I have not taken this letter into account as no copy was provided to counsel for the Respondent and, in any event, it raises matters which the applicant had an opportunity to put before the NPB and the Tribunal.
ORDER
THIS COURT ORDERS this judicial review application is dismissed with costs to the Respondent to be assessed at the mid-range of units provided for in Column III of Tariff B.
FEDERAL COURT
NAME OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-2240-05
STYLE OF CAUSE: JAMES CLAYTON COLLIER
v.
THE ATTORNEY GENERAL OF CANADA
PLACE OF HEARING: Kingston, Ontario
APPEARANCES:
| Mr. Sean Ellacott
|
|
|
Mr. R. Jeff Anderson
|
|
SOLICITORS OF RECORD:
| Sean Ellacott Law Office 204-275 Ontario Street Kingston, ON K7K 2X5
|
|
|
John H. Sims, Q.C. Deputy Attorney General for Canada |
|