Date: 20041001
Docket: T-395-04
Citation: 2004 FC 1350
Ottawa, Ontario, this 1st day of October, 2004
Present: THE HONOURABLE MR. JUSTICE MOSLEY
BETWEEN:
WILLIAM ALAN STODDART
Applicant
and
NATIONAL PAROLE BOARD
Respondent
REASONS FOR ORDER AND ORDER
[1] On January 26, 2004 the Appeal Division of the National Parole Board (NPB) affirmed a decision made by the Board on September 19, 2003 denying Mr. Stoddart full parole. Mr. Stoddart was not, however, seeking parole at either hearing. Nor has he argued before this court that he is ready for release into the community, despite having served nearly twenty years in custody. Rather, the applicant seeks to have the NPB accept responsibility for the management of his correctional program. That the NPB declined to do. Mr. Stoddart has brought this application not for judicial review of that decision, but for a declaration that the NPB erred in law in not applying the principles set out by the Supreme Court of Canada in Steele v. Mountain Institution, [1990] 2 S.C.R. 1385. He requests an Order remitting the matter to the NPB to be dealt with in accordance with the proposed declaration. For the reasons set out below, I decline to issue such a declaration and this application will be dismissed.
[2] The primary issue before me is whether the NPB erred in declining to apply Steele to Mr. Stoddart's situation. A secondary issue arises from the Board's treatment of a privately commissioned psychologists report.
Background:
[3] Mr. Stoddard is serving a life sentence for second degree murder imposed in 1985 - when he was 19 - for an offence committed when he was 17. He was tried as an adult. Because of a number of aggravating factors related to the killing and disposal of the victim's body, the offender's history, psychological profile and role in the crime, the sentencing court determined that he should be ineligible for parole for 18 years. As calculated at the time of his admission to penitentiary, he would have been eligible for day parole in January 1999, and full parole in January 2002.
[4] For reasons not explained in the proceedings before me, Mr. Stoddart's appeal from this conviction and sentence was not heard until 1998. The conviction appeal was dismissed. However, the Ontario Court of Appeal while noting that a substantial increase in the period of parole ineligibility was fully justified by the facts of the case, concluded that it was obliged to reduce the parole ineligibilty period to seven years, that being the maximum then allowed for persons 17 years of age at the time of the commission of a second degree murder. This result was due to amendments to the Young Offenders Act and the Criminal Code enacted subsequent to Mr. Stoddart's conviction, and the operation of section 11(i) of the Charter, entitling him to the benefit of the lesser sentence.
[5] The NPB took steps to convene a parole hearing following the Court of Appeal decision, but Mr. Stoddart waived the hearing or requested postponements until the September 2003 hearing was scheduled preemptorily. A hearing was required under subsection 123(1) of the Corrections and Conditional Release Act (the CCRA) and section 158 of the CCR Regulations.
[6] In the early years of his incarceration, Mr. Stoddart participated in programmes and had some success in meeting the goals of the institutional plan developed for him by the Correctional Service of Canada ("CSC). He claims that his behaviour, which began deteriorating in late 1995, would have been quite different had he known that he had some prospect of day parole at a less distant point in the future. From 1995 forward, he had 32 institutional charges on his record. In 1999, he was convicted of assaulting a correctional officer arising from an incident in the penitentiary and he was sentenced to an additional five months imprisonment.
[7] Much of Mr. Stoddart's custodial term has been served in protective custody - at his own request, due to concerns of harm from other inmates - or segregation. He had been in segregation from May 1998 until quite recently, initially as punishment, but later at his own request.
[8] Test results indicate that Mr. Stoddart is of above average to superior intelligence. He apparently is capable of excellent abstract reasoning. However, he is also an individual who is easily angered and frustrated with violations of what he perceives to be unfair treatment and errors made by those responsible for his case management within the institutional setting. This is evident from the material which was before the Board, consisting of information obtained from CSC and the applicant (affidavit of John B. Wilson). The file discloses an escalating breakdown in the relationship between the inmate and CSC case management staff, attributable in part, it seems, from errors in CSC records and a lack of continuity in the staff dealing with Mr.Stoddart.
[9] These interactions are outlined in the Psychological/ Risk Assessment Report commissioned by the applicant from Dr. William R. Palmer (Exhibit A to Mr. Stoddart's affidavit). He notes that by 1997 Mr. Stoddart had become increasingly consumed with airing the injustices done to him and had effectively withdrawn from the case management process. One consequence has been that he has remained in segregation in a maximum security institution despite repeated recommendations that he be moved to a medium security facility and receive training in the life skills necessary for progressing to minimum security and, ultimately, release on day parole and full parole. In Dr. Palmer's view, new action on the part of Correctional Services, as well as of Mr. Stoddart would be necessary to break the impasse.
[10] At Mr. Stoddart's NPB hearing in September 2003, no current Correctional Progress Report was filed by CSC and it was apparent that the Service had no plan for getting past the stalemate with this inmate at that time.
[11] In its decision of September 19, 2003, the NPB denied Mr. Stoddart full parole. The NPB assessed his criminal history, his conduct within the institution, and his plans for release. It found that the risk he presented could not be managed in the community. It also found that it was up to CSC to manage Mr. Stoddart's case, not the NPB. It rejected his submission, based on Steele, supra, that the NPB should attempt to move Mr. Stoddart's case forward by exerting influence on CSC. The NPB also held that it would place diminished weight on Dr. Palmer's report (A) because it was commissioned independently and reviewed by the applicant's assistant prior to finalization and (B) because of what it characterized as a "somewhat unusual way of reporting risk". Mr. Stoddart appealed the NPB's decision to the NPB Appeal Board.
[12] The Appeal Board found that the NPB did not err in making a decision in the absence of a current Correctional Plan Progress Report because there was sufficient relevant information to assess risk. Further, the Appeal Board found that the NPB made no error in refusing to apply the Steele case to Mr. Stoddart's situation and take over management of his case.
[13] The Appeal Board also found that the NPB made no error in giving less weight to Dr. Palmer's report. It found that regardless of the weight given to Dr. Palmer's report, it recommended transfer to medium security, not release into the community on full parole.
[14] At the hearing, I was advised that subsequent to the filing of this application, CSC has taken steps to begin the process of "cascading" Mr. Stoddart down through the classification levels. He has been moved, involuntarily, to the general population of a medium security institution and has access to the programs available at that facility.
ARGUMENT AND ANALYSIS
The application of Steele:
[15] Mr. Stoddart submits that in Steele, supra, the Supreme Court of Canada expanded on its jurisprudence concerning indeterminate confinement. It held that regular parole review is what saves the system from potential Charter breaches. The case emphasizes that detention and sentence must be tailored to fit the circumstances of the individual and the offence. The NPB's mission statement recognizes its role in the effective administration of sentences. Mr. Stoddart submits that with the shortage of programming, the NPB should not be limited to rejecting applicants because of lack of progress without comment or indicating that the inmate needs to do better. The NPB needs to take ownership of custodial aspects and programming in certain cases, as is done by Review Boards for those found not responsible by reason of mental disorder under the Criminal Code. Parole Boards are expected to adopt and be guided by appropriate policies, and to make the least restrictive determination consistent with the protection of society: CCRA s. 101 (d) and (e). Mr. Stoddart was not expecting nor asking to be released. Rather, he was asking the NPB to take a more interventionist role. Failure to do so was an error of law.
[16] I agree with the respondent that the responsibility for case management rest with the CSC. The remedy sought by Mr. Stoddart is not one that the NPB can give. The CSC has jurisdiction to deal with the case management of inmates and parolees: CRRA ss. 3 (a) and (b), 4(a), (b), (h) and (i) and 5. The NPB has jurisdiction to determine whether the offender meets the relevant criteria for release in accordance with the CCRA: CCRA ss. 100, 101, 102, and 107. It is not within the purview of the NPB to look beyond the evidence before it, nor to add matters to the hearing that are not mandated: Andrew Scott Reid v. NPB and CSC 2002 FCT 741; Michael Tessier v. AG Canada 2004 FC 775.
[17] Steele is distinguishable on its facts. That case dealt with a sexual offender who had been given an indeterminate sentence and had served 37 years when he sought release through an application for habeas corpus. The Supreme Court found that the inordinate length of his incarceration had become grossly disproportionate to the nature of his crime and therefore constituted cruel and unusual punishment in violation of section12 of the Charter. Justice Cory, for the Court, held that such a violation would only arise, in the case of an otherwise constitutionally valid indeterminate sentence, where the NPB errs in failing to tailor the sentence to the circumstances of the offender. In the rare circumstances of Mr. Steele's case, the NPB had erred in the execution of its duty. I would note that the Supreme Court also held that the appropriate avenue for relief in this case was judicial review of the NPB decision. Due to Steele's advanced age, the Court confirmed his release on the basis of the habeas corpus application.
[18] Mr. Stoddart is serving a life sentence. There is no allegation before me that his continued detention amounts to cruel and unusual punishment and, therefore, a violation of section 12 of the Charter. Mr. Stoddart's counsel suggests, however, that it could well reach that stage should the stalemate with CSC continue for a further prolonged period. Without expressing any opinion as to whether a section 12 violation could arise in the context of a determinate life sentence, I would observe that the correct route to challenge the situation would be, as indicated by the Supreme Court in Steele, through an application for judicial review of a decision by CSC or the NPB, rather than the approach taken by the applicant in this matter.
The assessment of Dr. Palmer's report:
[19] Mr. Stoddart submits that there is no reason to discount an outside report simply because it was not ordered by CSC or because it was reviewed by counsel. Outside reports are not inherently less reliable than those commissioned by CSC or done by its personnel. It is also recommended practice for a draft report to be reviewed by the counsel because it assists communication and there is no evidence that the review in question resulted in influence or compromise to the report. It is in fact CSC policy to go over reports commissioned by the CSC with the client's representative. There was no reason to discount the report on this basis. Mr. Stoddart also submits that the NPB's finding that the report used a somewhat unusual manner of reporting risk was unreasonable. Dr. Palmer is an expert in risk assessment, so his methods should have been accepted. Finally, Mr. Stoddart submits that the absence of a current Correctional Plan meant that the decision was based on incomplete information and was contrary to NPB practice.
[20] The respondent argues that the standard of review for decisions of the NPB is high. In terms of the assessment of expert reports, interference by this Court should only take place in situations where the NPB's assessment is patently unreasonable: Hay v. Canada (NPB), [1991] FCJ No. 561; D.T. v. Canada (AG), [2003] FCJ No. 1452 (TD) at paras 9-10. The applicant has not established that the NPB's assessment of the evidence was patently unreasonable. Dr. Palmer's report was directed at a proposed transfer to medium security and a new Correctional Plan, not release on parole. The NPB had no obligation to obtain and consider an up to date Correctional Plan. There were up to date documents related to Mr. Stoddart's progress and old Plans. There was no reason to have a new Plan, since there was no allegation that Mr. Stoddart had met the conditions of his Plan and should be released.
[21] As this matter is not properly before me for judicial review as part of the NPB Appeal Division's decision, I donot need to determine the appropriate standard of review nor to determine whether the treatment of Dr. Palmer's report constituted reviewable error. In my view, however, while it was within the discretion of the NPB to decide what weight they should give the report and, in particular, whether they would accept Dr. Palmer's method of reporting risk, it was inappropriate for the Board to discount the report simply because it had been commissioned by the applicant and reviewed by his counsel prior to its submission to the NPB. Expert opinion reports must be neutral and objective and the lack of such qualities may indeed have a significant impact on the weight to be afforded the report. In reading Dr. Palmer's report, I saw nothing to suggest that it was other than neutral and objective. On the question of the independence of experts generally and the weight to be given their reports see R.v.Klassen, [2003] M.J. No. 417 (Man.Q.B.) dealing with Crown experts.
[22] It is appropriate, in my view, for counsel, or "assistants" in NPB proceedings, to review such reports prior to their submission as they may identify factual errors or irrelevant content that may mislead or otherwise not be helpful to the Board. It should only be in the extreme case - where a report becomes clearly compromised and is no longer objective and reliable - that it should be discounted by reason of counsel's intervention: see for example Vancouver Community College v. Phillips Barratt, [1988] B.C.J. No. 710, 26 B.C.L.R. (2d) 296.
ORDER
THIS COURT ORDERS that the application is hereby dismissed. No order as to costs.
"Richard G. Mosley"
F.C.J.
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: T-395-04
STYLE OF CAUSE: WILLIAM ALAN STODDART
AND
NATIONAL PAROLE BOARD
PLACE OF HEARING: Ottawa, Ontario
DATE OF HEARING: September 20, 2004
AND ORDER BY: The Honourable Mr. Justice Mosley
DATED: October 1, 2004
APPEARANCES:
Ronald J. Price FOR THE APPLICANT
R. Jeff Anderson FOR THE RESPONDENT
SOLICITORS OF RECORD:
RONALD J. PRICE FOR THE APPLICANT
Faculty of Law
Queen's University
Kingston, Ontario
MORRIS ROSENBERG FOR THE RESPONDENT
Deputy Attorney General of Canada
Ottawa, Ontario