Date: 20030613
Docket: T-204-02
Citation: 2003 FCT 747
BETWEEN:
ÉRIC LÉONARD
Applicant
and
THE ATTORNEY GENERAL OF CANADA
Respondent
REASONS FOR ORDER
LEMIEUX J.
INTRODUCTION AND FACTS
[1] In this application for judicial review, the applicant, an inmate in the Leclerc Institution, attacks the decision of the Appeal Division ("Appeal Division") of the National Parole Board ("NPB") dated January 25, 2002, upholding an October 31, 2001, decision of the NPB denying him both full parole and day parole.
[2] The applicant argues that his application raises only one issue:
[translation] Does subsection 141(1) of the Corrections and Conditional Release Act (the Act) give the NPB the discretion to provide the inmate with either the documents containing the relevant information or a summary of that information before the day set for the review of his case?
[3] The applicant argues that prior to the review of his case by the NPB he was entitled to the disclosure of the full text of the transcript of the wiretap of his telephone conversations with his relations or friends recorded between July 18, 2001, and August 6, 2001, and not simply a summary of these conversations.
[4] On July 18, 2001, the applicant was placed under wiretap surveillance by the department of preventive security (the "department") in the institution, in this case the Federal Training Centre ("FTC"). The department had received information to the effect that the applicant had brought in three ounces of hashish upon his return from an unescorted temporary absence ("UTA") on July 12, 2001. According to this information, the applicant had purchased fourteen grams of hashish for $150.
[5] Following the wiretaps, upon his return from a UTA on August 6, 2001, the applicant, who was suspected of having narcotics in his possession, was subjected to a body search and a radiograph. The results were negative.
[6] Mr. Léonard alleges that the two NPB members who were reviewing his case asked him a number of specific questions concerning the circumstances that had led the Correctional Service of Canada (CSC) to upgrade his security classification from minimum to medium and to recommend his involuntary transfer from the FTC to the Leclerc Institution following his segregation on August 6, 2001, decisions that Mr. Léonard did not grieve.
[7] This interrogation, he argues, was based on a document that seemed to contain several pages from a transcript of his telephone conversations, the interception of which had been authorized by the FTC authorities.
[8] The respondent, for its part, would expand the argument, which in its view bears on the following issue:
[translation] Was there a breach of the audi alteram partem principle because the full text of the wiretap of the applicant's telephone conversations was not disclosed to him prior to the hearing before the NPB?
[9] The respondent argues that the gist of these conversations, in the form of summaries, was shared with the applicant when the CSC gave him two documents: one entitled Assessment for Decision (AFD) dated September 4, 2001, and an AFD dated September 13, 2001.
[10] The respondent further states that Mr. Léonard had been orally confronted with his intercepted telephone conversations as a whole by the correctional officer Pierre Nabelsi, and later by the Segregation Review Board. Furthermore, Mr. Léonard, during his hearing, had no difficulty, the respondent says, in replying to the specific questions put to him by the Board members and did not feel he had been taken by surprise because the full text of the wiretap transcript had not been disclosed to him.
[11] To facilitate our understanding of the significance of the telephone conversations to the NPB decision to deny him full or day parole, I note that his case management team ("the management team"), in an AFD dated June 27, 2001, had recommended that he be given day parole, a recommendation that was altered by the AFD of September 13, 2001, following his segregation, the upgrading of his security classification, and his involuntary transfer to the Leclerc Institution.
[12] The applicant's file contains the background on the information that was shared with him in anticipation of his hearing before the NPB. It is contained in two updates to the Sharing of Information Checklist ("the checklist"). It is the second list that is important, since it reveals that Mr. Léonard received in full two AFDs recommending his eligibility to the UTA program, two follow-ups to his correctional plan dated July 14, 2001, and September 9, 2001, the AFD dated September 4, 2001, concerning his involuntary transfer and the AFD dated September 13, 2001, concerning his day parole or full parole.
[13] The statement concerning the procedural guarantees also demonstrates that four reports were not disclosed to the applicant, on the grounds set out in subsection 141(4) of the Act: two Security Information Reports ("SIR") and two Protected Information Reports ("PIR"). The statement affirms that the gist of these undisclosed reports was communicated to the applicant through the AFDs of September 4, 2001 and September 13, 2001.
[14] The AFD of September 4, the respondent says, contains a summary of the applicant's telephone conversations intercepted by the CSC. The summary is underscored in the following text:
[translation]
Last August 6, the subject was placed in administrative segregation in the wake of the accumulation of information by the department of preventive security linking him to some unlawful activities. Upon his return from a UTA that day, he was body-searched and x-rayed on the suspicion that he was in possession of narcotics. No drugs could be detected on this examination. However, the information was considered sufficiently credible to decide to place the subject in administrative segregation. In fact, a telephone wiretap was placed on the subject in July, on the 18th, because some information had linked him to drug trafficking within the institution. Conversations were recorded involving money and bank deposit issues. Some moves were planned outside the territory authorized for his UTA and the subject even used the PIN of his accomplice, who is incarcerated at MSFI, to contact a resource who was to open the bank account. During the five-day board, the subject denied any involvement in drug trafficking. He admitted having loaned $200 to a peer and sold for $300 in the canteen, to cover his expenses on his temporary absence. He said that because of his placement in segregation, he was in debt and needed his canteen, but he was experiencing no pressure. Given the information at our disposal, his version has little credibility with the block committee.
In our estimate, the subject has directly or indirectly been associated with some unlawful activities. Such conduct may have consequences on the security of the institution, and this leads us to revise upward his security classification. The present involuntary transfer proceeding is in response to a request for changes in the security measures.
[15] I note that this AFD of September 4, 2001, states that the management team consulted Mr. Pierre Nabelsi, a preventive security officer, and refers to the PIR of September 8, 2001, which "[translation] contains a report of the recorded telephone conversations", and to an SIR written on August 9, 2001, which reads:
[translation] Finally, the SIR written 9/08/01 following the placement in administrative segregation of the subject and other individuals associated with institutional drug-trafficking details the steps used to break up this trafficking. A coded source advises that the subject is assisting a big trafficker and his role is to bring in some drugs when he returns from UTA.
[16] The summary contains further particulars:
[translation] In the course of the wiretap, the subject contacts a friend to get her to open a bank account, prior to his UTA scheduled for 03/08/01. On at least one occasion he becomes insistent. Moreover, he does not want his resource to come and get him at the penitentiary since he has to go to Longueuil and Montréal and possibly St-Jean. Let us note that this is in a diametrically opposite direction, since his sister lives in Ste-Agathe. Moreover, another PIR is written up on 06/08/01 in the wake of information obtained that a fellow inmate was asking his mother to deposit $500 in the subject's bank account. [Emphasis added]
[17] The AFD of September 13, 2001, is an update of the AFDs drafted on June 17 and July 27, 2001, with a view to the decision to be made by the NPB. The overall assessment of the inmate repeats the explanation of why he was placed in administrative segregation on August 6, 2002, as a result of "[translation] a number of reports compiled in preventive security linking the subject to an institutional trafficking network".
[18] This AFD continues:
[translation]
The subject denies any involvement in this drug trafficking. He admits loaning $200 to a fellow inmate and later he advanced $300 from his canteen in order to have more money during his UTAs and to give a birthday gift to his nephew. The subject acknowledges that this kind of conduct violates the regulations but he denies any criminal activity. Furthermore, he states that he chose the people he mixed with according to their reputation in order to safeguard his image. We note his need for appreciation and acceptance from his peers. This attitude ultimately indicates that this aspect (social/associated interaction) remains problematic. Furthermore, we can strongly doubt his version even if the search proved negative (absence of drugs) upon his return from UTA on 06/08/01. The subject would have had ready access to $200 to loan to someone else, from what he says, and subsequently he advanced his canteens for his expenses. The information that he kept a quantity of drugs for himself may serve to explain his investment in order to obtain a good percentage.... A new SIR was written up recently, on 10/09/01, pursuant to information that the subject and another individual had 28 grams of hash hidden inside the penitentiary. Attention focussed on their canteen which was being sent to them and 15 grams of hash were seized in a cereal box... that was intended for his sidekick. Insofar as the subject was concerned, there was a discrepancy between the order and the merchandise that was received.
Thus, the subject's credibility is seriously shaken. Without completely questioning the efforts he has made during therapy... the subject has opted for some unlawful means of obtaining monetary returns. Moreover, the subject remains susceptible to harmful influences. [Emphasis added]
DECISION OF THE NPB
[19] At the end of the hearing on October 31, 2001, the presiding Board member delivered an oral judgment. She said:
[translation]
... So, Mr. Léonard, as you have seen, we had carefully examined your file before meeting with you, we listened carefully at the hearing to you and your agent and your assistant and we are denying you any form of parole.
It is our opinion that the risk to society remains unacceptable. This is unfortunate, because you were being given a positive recommendation, and when we look at the file until quite recently, things were going well for you.
This does not mean that those... changes are not made, and that your efforts are not taken into consideration.
We note that you have remained abstinent since ninety-seven ('97), which is not so easy in a penitentiary, because we know there are drugs there.
You are capable of succeeding, so, the remainder also, you are going to have to finish by working on it, your entire credibility, everything in relation to your image.
We also have to take into consideration that the offences are violent, there was a lot of violence. You have worked on that, but you will have to continue to put the achievements into practice.
So, the whole history of the credibility, too, which is to be redone, everyone was trusting you, and we noticed that everything seemed to be going well despite that, so you have realized, you said during the hearing that perhaps you were not ready... at the point of being able to make some gifts and to take the resources, not to... your officers had warned you, had told you, you knew, there were some things you couldn't do when you are in an institution.
So that is the Board's decision. You are young, you still have time to get a hold of yourself. All right? [Emphasis added]
DECISION OF THE APPEAL DIVISION
[20] The applicant's counsel had submitted to the Appeal Division, in her written argument, that the NPB had violated a principle of fundamental justice, in that it breached subsections 141(1) and (4) of the Act by refusing to share the information that was essential to its decision, namely the transcript of the telephone conversations.
[21] She states that the NPB's main concern was addressed to the suspicions that had led to his transfer to the Leclerc Institution, that the Board members asked a lot of questions about this, that the point of departure of their questions "[translation] was formed on the basis of a document that seemed to contain a number of pages of transcript of telephone conversations held against the appellant and considered incriminating by the Correctional Service", and that the Board members were referring "[translation] continually to this transcript and taking bits of sentences from it out of context".
[22] The applicant objected to the NPB "[translation] that we did not have this document and it was impossible for the appellant to reply properly to these questions without its being disclosed and shared with us". Before the Appeal Division, the applicant's counsel submitted that the NPB refused the request "[translation] on the pretext that the summary of this information was to be found in the documents submitted by the Correctional Service", but that it "[translation] was clear that the summary did not report comments that were contained in the transcript of the telephone conversations" and that "[translation] one of the Board members himself admitted this, in a way, when attempting to justify the use of snatches of conversations in order to 'provide some context' to the questions and answers."
[23] The Appeal Division dismissed Mr. Léonard's appeal. The gist of its decision reads as follows:
[translation]
A careful study of the documents making up your file reveals to us that the Preventive Security reports containing the transcript of your telephone conversations had all been shared with you, on September 13, 2001, both within an Assessment for Decision, with a view to an unsolicited transfer dated September 4, 2001, and in an update to an Assessment for Decision dated September 13, 2001.
Furthermore, listening to the recording of your hearing demonstrates to us that, during the questioning by the Board members on the protected information reports, you personally were not surprised in any way and you had answers and justifications for all the questions, even adding that the information in question had already been discussed with your case officer, although at one point your assistant-counsel questioned and expressed doubt about the complete sharing of this protected information.
LEGISLATION
[24] Section 141 of the Corrections and Conditional Release Act (the "Act") reads:
| 141. (1) At least fifteen days before the day set for the review of the case of an offender, the Board shall provide or cause to be provided to the offender, in writing, in whichever of the two official languages of Canada is requested by the offender, the information that is to be considered in the review of the case or a summary of that information.
Idem (2) Where information referred to in subsection (1) comes into the possession of the Board after the time prescribed in that subsection, that information or a summary of it shall be provided to the offender as soon as is practicable thereafter.
Waiver (3) An offender may waive the right to be provided with the information or summary referred to in subsection (1) or to have it provided within the period referred to, but where an offender has waived that period and any information is received by the offender, or by the Board, so late that the offender or the Board is unable to sufficiently prepare for the review, the offender is entitled to, or the Board may order, a postponement of the review for such reasonable period as the Board determines.
Exceptions (4) Where the Board has reasonable grounds to believe (a) that any information should not be disclosed on the grounds of public interest, or (b) that its disclosure would jeopardize (i) the safety of any person, (ii) the security of a correctional institution, or (iii) the conduct of any lawful investigation, the Board may withhold from the offender as much information as is strictly necessary in order to protect the interest identified in paragraph (a) or (b). [Emphasis added] |
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141. (1) Au moins quinze jours avant la date fixée pour l'examen de son cas, la Commission fait parvenir au délinquant, dans la langue officielle de son choix, les documents contenant l'information pertinente, ou un résumé de celle-ci.
Idem (2) La Commission fait parvenir le plus rapidement possible au délinquant l'information visée au paragraphe (1) qu'elle obtient dans les quinze jours qui précèdent l'examen, ou un résumé de celle-ci.
Renonciation (3) Le délinquant peut renoncer à son droit à l'information ou à un résumé de celle-ci ou renoncer au délai de transmission; toutefois, le délinquant qui a renoncé au délai a le droit de demander le report de l'examen à une date ultérieure, que fixe la Commission, s'il reçoit des renseignements à un moment tellement proche de la date de l'examen qu'il lui serait impossible de s'y préparer; la Commission peut aussi décider de reporter l'examen lorsque des renseignements lui sont communiqués en pareil cas.
Exceptions (4) La Commission peut, dans la mesure jugée strictement nécessaire toutefois, refuser la communication de renseignements au délinquant si elle a des motifs raisonnables de croire que cette communication irait à l'encontre de l'intérêt public, mettrait en danger la sécurité d'une personne ou du pénitencier ou compromettrait la tenue d'une enquête licite.
[Non souligné dans l'original] |
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ANALYSIS
(i) The approach
[25] In Rizzo and Rizzo Shoes Ltd., [1998] 1 S.C.R. 27, at page 40, the Supreme Court of Canada instructs us in the method to be followed in interpreting a statutory provision. Mr. Justice Iacobucci writes on behalf of the Court:
¶ 20 At the heart of this conflict is an issue of statutory interpretation. Consistent with the findings of the Court of Appeal, the plain meaning of the words of the provisions here in question appears to restrict the obligation to pay termination and severance pay to those employers who have actively terminated the employment of their employees. At first blush, bankruptcy does not fit comfortably into this interpretation. However, with respect, I believe this analysis is incomplete.
¶ 21 Although much has been written about the interpretation of legislation (see, e.g., Ruth Sullivan, Statutory Interpretation (1997); Ruth Sullivan, Driedger on the Construction of Statutes (3rd ed. 1994) (hereinafter "Construction of Statutes"); Pierre-André Côté, The Interpretation of Legislation in Canada (2nd ed. 1991)), Elmer Driedger in Construction of Statutes (2nd ed. 1983) best encapsulates the approach upon which I prefer to rely. He recognizes that statutory interpretation cannot be founded on the wording of the legislation alone. At p. 87 he states:
Today there is only one principle or approach, namely, the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament.
Recent cases which have cited the above passage with approval include: R. v. Hydro-Québec, [1997] 1 S.C.R. 213 2 ; Royal Bank of Canada v. Sparrow Electric Corp., [1997] 1 S.C.R. 411; Verdun v. Toronto-Dominion Bank, [1996] 3 S.C.R. 550; Friesen v. Canada, [1995] 3 S.C.R. 103.
¶ 22 I also rely upon s. 10 of the Interpretation Act, R.S.O. 1980, c. 219, which provides that every Act "shall be deemed to be remedial" and directs that every Act shall "receive such fair, large and liberal construction and interpretation as will best ensure the attainment of the object of the Act according to its true intent, meaning and spirit".
¶ 23 Although the Court of Appeal looked to the plain meaning of the specific provisions in question in the present case, with respect, I believe that the court did not pay sufficient attention to the scheme of the ESA, its object or the intention of the legislature; nor was the context of the words in issue appropriately recognized. I now turn to a discussion of these issues.
(ii) Discussion
[26] In 1992 the Act was radically amended in the wake of a number of decisions in which the Supreme Court of Canada and the Federal Court of Appeal ruled on the obligation to respect procedural fairness in the decisions made by the prison authorities. As amended, the Act reflects the requirements of the courts (see Martineau v. Matsqui Institution Disciplinary Board (No. 2), [1980] 1 S.C.R. 602,Cardinal v. Director of Kent Institution, [1985] 2 S.C.R. 643, Demaria v. Regional Classification Board, [1987] 1 F.C. 74 (C.A.), and Gallant v. Canada, [1989] 3 F.C. 329 (C.A.)).
[27] I think it is worth reproducing in part the reasons for judgment of Mr. Justice Hugessen, then a member of the Federal Court of Appeal, in Demaria, supra, a case in which the Court held that the notice received by an inmate in preparation for his unsolicited transfer to a maximum security penitentiary was insufficient to enable him to intelligently argue why he should not be transferred.
[28] Here is what Hugessen J.A. writes, at pages 77 and 78 of the reported judgment:
There is, of course, no doubt that the authorities were entitled to protect confidential sources of information. A penitentiary is not a choir school and, if informers were involved (the record here does not reveal whether they were or not), it is important that they not be put at risk. But even if that were the case it should always be possible to give the substance of the information while protecting the identity of the informant. The burden is always on the authorities to demonstrate that they have withheld only such information as is strictly necessary for that purpose. A blanket claim, such as is made here, that "all preventive security information" is "confidential and (cannot) be released", quite apart from its inherent improbability, is simply too broad to be accepted by a court charged with the duty of protecting the subject's right to fair treatment. In the final analysis, the test must be not whether there exist good grounds for withholding information but rather whether enough information has been revealed to allow the person concerned to answer the case against him. But whichever way it be stated, the test is not met in the present case. [Emphasis added]
[29] Gallant, supra, is similar to Demaria, supra, but in that case it was clear that the information given by the Warden of the institution to the inmate to justify his unsolicited transfer was limited by the need to protect informants. I note as well the judgment of Marceau J.A., who distinguishes Demaria, supra, on the facts, on the ground that "the information given is definitely more substantial - including the inmate's Progress Summary Report in its entirety, the extent of the concern of the Warden, and cogent reasons for non-disclosure of further particulars."
[30] The applicant's main submission to me is that the non-disclosure of the full transcript of the intercepted telephone conversations of the applicant breaches a principle of fundamental justice because the Board contravened subsections 141(1) and (4) of the Act.
[31] The applicant alleges that subsection 141(1) of the Act must be read together with subsection 141(4) to mean that an inmate is entitled to any information other than that specified in subsection (4).
[32] The applicant alleges that in this case there is no doubt that the wiretap transcript constituted not only relevant information but the chief information on which the Board members relied in interrogating the applicant and questioning his rehabilitation.
[33] He concedes that a brief summary of his conversations was shared with the applicant but alleges that the exchanges during the hearing generally went beyond that summary, and that this prevented the applicant from clearly situating the remarks and refreshing his memory on the context in which he might have uttered these words.
[34] The issue, he says, is not whether the summary of the information was sufficient but whether the NPB had reasonable grounds to deprive him of this information, as provided in subsection 141(4) of the Act.
[35] To summarize, the applicant argues that if subsection 141(4) cannot be relied on (and it could not, in this case, since it was the applicant himself who was being overheard and not an informant), the applicant was entitled to the full transcript and not simply a summary. In the circumstances, he says, the NPB had no discretion to provide him with a summary.
[36] The applicant's submission is in conflict with the decision of Mr. Justice Blais in Hudon v. Canada (Attorney General), [2001] FCT 1313, a case reviewing the lawfulness of a decision of the Appeal Division of the NPB. Hudon, the inmate, had been given a copy of a CSC report entitled "Assessment for Decision". Here is what Blais J. says about this:
According to the legislation, the relevant information does not have to be disclosed in full: a summary will suffice. The CSC report titled "Assessment for Decision" dated December 8, 1999, and prepared by N. Desrosiers, is a summary within the meaning of the Act.
[37] Before I proceed to my conclusions, in Mooring v. Canada (National Parole Board), [1996] 1 S.C.R. 75, the Supreme Court of Canada addresses the nature of the functions of the NPB in the context of its judgment that the Board was not a court of competent jurisdiction within the meaning of section 24 of the Charter.
[38] Sopinka J., for the majority, writes at paragraph 25 that the Parole Board acts in neither a judicial nor a quasi-judicial manner and that several elements of the hearing distinguish Board proceedings from those which take place before a traditional court. For example, counsel appearing before the Parole Board serve an extremely limited function, the Board lacks the power to issue subpoenas, evidence is not presented under oath, and the panel presiding over the hearing may have no legal training.
[39] At paragraphs 26 and 27 of his reasons, he concludes:
¶ 26 In the decision currently under review, the Appeal Division of the Board described its function in the following terms:
The function of the Board at a post-suspension review is quite distinct from that of the courts. The Board must decide whether the risk to society of [the respondent's] continued conditional release is undue. In making that determination, the Board will review all information available to it, including any information indicating a return to criminal activity in the community. This applies whether or not the charges in court have been withdrawn, stayed or dismissed.
Clearly then, the Parole Board does not hear and assess evidence, but instead acts on information. The Parole Board acts in an inquisitorial capacity without contending parties -- the state's interests are not represented by counsel, and the parolee is not faced with a formal "case to meet". From a practical perspective, neither the Board itself nor the proceedings in which it engages have been designed to engage in the balancing of factors that s. 24(2) demands.
¶ 27 In the risk assessment function of the Board, the factors which predominate are those which concern the protection of society. The protection of the accused to ensure a fair trial and maintain the repute of the administration of justice which weighs so heavily in the application of s. 24(2) is overborne by the overriding societal interest. In assessing the risk to society, the emphasis is on ensuring that all reliable information is considered provided it has not been obtained improperly. As stated by Dickson J., as he then was, in R. v. Gardiner, [1982] 2 S.C.R. 368, at p. 414, in relation to sentencing proceedings:
One of the hardest tasks confronting a trial judge is sentencing. The stakes are high for society and for the individual. Sentencing is the critical stage of the criminal justice system, and it is manifest that the judge should not be denied an opportunity to obtain relevant information by the imposition of all the restrictive evidential rules common to a trial. Yet the obtaining and weighing of such evidence should be fair. A substantial liberty interest of the offender is involved and the information obtained should be accurate and reliable.
(iii) Conclusions
[40] I am unable to subscribe to the principal argument advanced by Mr. Léonard's counsel, that subsection 141(1) of the Act gives no discretion to the NPB to provide, prior to the hearing, either the documents encapsulating the relevant information (that is, referring to the English text of this subsection, "the information that is to be considered in the review of the case...") or a summary of that information other than in the context of subsection 141(4), where a summary is necessary in order to protect an informant's identity and is required in order to satisfy the requirements of procedural fairness that the NPB must observe in the exercise of its administrative duties.
[41] The plain meaning of the word "or" in subsection 141(1) of the Act introduces the notion of alternative, choice and discretion. I see nothing in the overall context or in the requirement of harmonization that would limit the scope of this discretion to provide a summary to the sole situation in which the NPB is faced with a situation contemplated by subsection 141(4).
[42] It seems to me that Parliament intended to provide the NPB with the option in the appropriate circumstances of providing a summary of the relevant information to be used in the hearing not only by the inmate but by the Board members for decision-making purposes. Depending on the circumstances, the volume and nature of the information, and the documentation containing that information, it is readily conceivable that a summary, provided it is accurate and reliable, would be more useful for identifying what is important than the filing of a lot of disparate documents in which the relevant information would be dispersed.
[43] Furthermore, subsection 141(1) does not in my opinion impose any obligation on the NPB to justify its choice between producing the documents containing the information or a summary of those documents. I note, however, that the summary that is produced must be complete and must contain all of the information that will be used as a backdrop for the Board during the hearing, failing which the resulting decision could be overturned.
[44] I come now to the issue raised by the respondent. A reading of the proceedings of the hearing before the NPB leaves no doubt that the applicant was questioned intensively about the content of the wiretaps of his telephone conversations, the main summary of which is contained in the AFD of September 4, 2001.
[45] The question is whether there was a breach of procedural fairness because the full text of the wiretap of his telephone conversations was not shared with him prior to the hearing.
[46] To answer this question, the summaries communicated to the applicant and used by the Board members cannot, in my opinion, be considered in isolation from the AFDs in which they are located and the other documentation that was shared with the applicant.
[47] From this perspective, I am inclined from my review of the case to conclude that there was no breach of procedural fairness in Mr. Léonard's hearing with the NPB as a result of the fact that the full transcript was not given to Mr. Léonard before his hearing, for the following reasons.
[48] First, the documentation disclosed to Mr. Léonard, including the summaries of the telephone wiretaps, presented him with an accurate portrayal of the reasons why the Correctional Services had altered its positive recommendation. Mr. Léonard knew very well why this recommendation was altered, based on a number of reasons and on various sources of information including, but not limited to, the wiretaps of his telephone conversations after July 18, 2001. It was believed that he was involved or associated "directly or indirectly ... in some unlawful activities".
[49] Second, his management team had concluded that the risk of a day parole was unacceptable not only because of the probability that he was associated with drug-trafficking within the penitentiary but because "[translation] of the presence of his flexible values, his associations with negative peers and his lack of transparency".
[50] Third, Mr. Léonard was questioned on some specific topics in regard to his conversations, and on this the summaries provided to him appeared to be complete and reliable. They reported the money loaned by Mr. Léonard to a fellow inmate and his sale to that inmate of his canteen; of the opening of a bank account by his girlfriend; and that during his UTA he wanted to go to Longueuil and St-Jean, which were in the opposite direction from Ste-Agathe where his sister was living. These summaries also adverted to Mr. Léonard's borrowing of the personal identification number of an accomplice in the crimes for which he had been convicted, and the NPB's fear that he intended to renew or maintain contact with that accomplice through the latter's wife.
[51] I note that when he was confronted on these facts by the Board members, Mr. Léonard provided ample explanations and expressed his point of view quite clearly.
[52] Fourth, it seems to me that the questions asked by the Board members were based not on a full transcript of the telephone wiretaps but rather on a summary drafted by Diane Allard, which is contained in a protected information report: see proceedings, exhibit R-1, pages 24, 27, 28, 29 and 30, where Diane Allard explains the content of her report, page 31, where she states that the Board member asked some questions about the summary she had made, and where the Board member says he has read the summary, and page 32, where he states "[translation] that they were talking, during the recess, about the protected information reports concerning the telephone calls".
[53] Taking into consideration all of these factors, I conclude that the applicant had a fair hearing before the NPB.
[54] For all of these reasons, this application for judicial review is dismissed with costs.
"François Lemieux"
Judge
Ottawa, Ontario
June 13, 2003
Certified true translation
Suzanne Gauthier, C.Tr., LL.L.
FEDERAL COURT OF CANADA
TRIAL DIVISION
SOLICITORS OF RECORD
DOCKET: T-204-02
STYLE: ÉRIC LÉONARD v. AGC
PLACE OF HEARING: Montréal
DATE OF HEARING: January 29, 2003
REASONS: Mr. Justice François Lemieux
DATED: June 13, 2003
APPEARANCES:
Daniel Royer FOR THE APPLICANT
Éric Lafrenière FOR THE RESPONDENT
SOLICITORS OF RECORD:
Labelle, Boudrault, Côté et Ass. FOR THE APPLICANT
Montréal, Quebec
Morris Rosenberg FOR THE RESPONDENT
Deputy Attorney General of Canada