Date: 20020301
Docket: T-1418-01
Ottawa, Ontario, the 1st day of March, 2002
Present: The Honourable Mr. Justice Pinard
Between:
ÉRIC TURCOTTE
Applicant
- and -
ATTORNEY GENERAL OF CANADA
Respondent
ORDER
The application for judicial review is dismissed, with costs.
JUDGE
Certified true translation
Suzanne M. Gauthier, C. Tr., LL.L
Date: 20020301
Docket: T-1418-01
Neutral Citation: 2002 FCT 230
Between:
ÉRIC TURCOTTE
Applicant
- and -
ATTORNEY GENERAL OF CANADA
Respondent
REASONS FOR ORDER
PINARD J.:
[1] This application for judicial review seeks the vacating of a decision of the Appeal Division of the National Parole Board (the "Appeal Division") rendered July 23, 2001 by Board members M. Charbonneau and A. Bachand upholding the prevention of the applicant's release.
[2] The applicant is an inmate in the maximum security penitentiary in Port-Cartier. He is currently serving a prison sentence that will expire July 8, 2003 for assault and sexual assault offences.
[3] On July 5, 2000, the National Parole Board (the "NPB") ordered that he be kept in incarceration and prevented from release until the legal expiration of his sentence, as an exception to his right under section 127 of the Corrections and Conditional Release Act, R.S. 1992, c. 20 (the "Act") to be released upon serving two-thirds of the sentence.
[4] Dissatisfied with this decision, the applicant appealed to the Appeal Division which, on November 1, 2000, upheld the NPB decision.
[5] Under subsection 131(1) of the Act, the NPB reviewed the applicant's case in the year following the July 5, 2000 decision to keep him incarcerated.
[6] On May 9, 2001, after a hearing had been held, the NPB decided to confirm the applicant's prevention of release.
[7] Dissatisfied with this decision, the applicant appealed to the Appeal Division which, on July 23, 2001, upheld the NPB decision and consequently dismissed the applicant's appeal.
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[8] To order that an inmate be kept in incarceration during the statutory release period, the NPB must, pursuant to paragraph 130(3)(a) of the Act, be satisfied that an offender is likely, if released, to commit an offence causing the death of or serious harm to another person or a sexual offence involving a child before the expiration of the offender's sentence according to law:
| 130. (3) On completion of the review of the case of an offender referred to in subsection (1), the Board may order that the offender not be released from imprisonment before the expiration of the offender's sentence according to law, except as provided by subsection (5), where the Board is satisfied (a) in the case of an offender serving a sentence that includes a sentence for an offence set out in Schedule I, or for an offence set out in Schedule I that is punishable under section 130 of the National Defence Act, that the offender is likely, if released, to commit an offence causing the death of or serious harm to another person or a sexual offence involving a child before the expiration of the offender's sentence according to law, |
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130. (3) Au terme de l'examen, la Commission peut, par ordonnance, interdire la mise en liberté du délinquant avant l'expiration légale de sa peine autrement qu'en conformité avec le paragraphe (5) si elle est convaincue :
a) dans le cas où la peine d'emprisonnement comprend une peine infligée pour une infraction visée à l'annexe I, ou qui y est mentionnée et qui est punissable en vertu de l'article 130 de la Loi sur la défense nationale, que le délinquant commettra, s'il est mis en liberté avant l'expiration légale de sa peine, soit une infraction causant la mort ou un dommage grave à une autre personne, soit une infraction d'ordre sexuel à l'égard d'un enfant;
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[9] After being so satisfied and ordering that the inmate be kept in incarceration during the statutory release period, the NPB shall, pursuant to section 131 of the Act, review its order within one year after the date the order was made, and thereafter within one year after the date of each preceding review while the offender remains subject to the order:
| 131. (1) The Board shall review every order made under subsection 130(3) within one year after the date the order was made, and thereafter within one year after the date of each preceding review while the offender remains subject to the order.
(2) The Board shall cause such inquiries to be conducted in connexion with each review under subsection (1) as it considers necessary to determine whether there is sufficient new information concerning the offender to justify modifying the order or making a new order.
(3)The Board, on completing a review under subsection (1), shall
(a) with respect to an order made under subsection 130(3) or paragraph 130(3.3)(b), (i) confirm the order, (ii) order the statutory release of the offender subject to the condition that the offender reside in a community-based residential facility, psychiatric facility or, subject to subsection (4), a penitentiary designated pursuant to subsection (5), where the offender has been detained for a period during statutory release and the Board is satisfied that the condition is reasonable and necessary in order to protect society and to facilitate the successful reintegration into society of the offender, or (iii) order the statutory release of the offender without such a residence requirement; or
(b) with respect to an order made under subparagraph (3)(a)(ii), (i) confirm or modify the order, or (ii) order the statutory release of the offender without such a residence requirement.
(4) A condition under subparagraph (3)(a)(ii) that an offender reside in a penitentiary designated pursuant to subsection (5) is valid only if consented to in writing by the Commissioner or a person designated, by name or by position, by the Commissioner.
(5) The Commissioner may designate penitentiaries for the purposes of orders made under subparagraph (3)(a)(ii). |
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131. (1) Dans l'année suivant la prise de toute ordonnance visée au paragraphe 130(3) et tous les ans par la suite, la Commission réexamine le cas des délinquants à l'égard desquels l'ordonnance est toujours en vigueur.
(2) Lors du réexamen, la Commission procède à toutes les enquêtes qu'elle juge nécessaires pour déterminer si de nouvelles informations au sujet du délinquant permettraient de modifier ou de prendre une autre ordonnance.
(3) Au terme de chaque réexamen, la Commission, selon le cas :
a) soit reconduit l'interdiction de mise en liberté visée au paragraphe 130(3) ou à l'alinéa 130(3.3)b), soit ordonne la libération d'office en l'assortissant d'une assignation à résidence dans un établissement communautaire résidentiel, un établissement psychiatrique ou, sous réserve du paragraphe (4), un pénitencier désigné au titre du paragraphe (5), si elle est convaincue qu'une telle condition est raisonnable et nécessaire pour protéger la société et faciliter la réinsertion sociale du délinquant après son incarcération au cours de la période prévue pour la libération d'office, soit ordonne la libération d'office sans l'assortir d'une assignation à résidence;
b) confirme ou modifie l'ordonnance d'assignation à résidence imposée conformément à l'alinéa a) ou ordonne la libération d'office sans l'assortir d'une assignation à résidence.
(4) Toute assignation à résidence - dans un pénitencier désigné en application du paragraphe (5) - ordonnée par la Commission est subordonnée, pour devenir opérante, au consentement écrit du commissaire ou de la personne qu'il désigne nommément ou par indication de son poste.
(5) Le commissaire peut désigner un pénitencier pour l'assignation à résidence prévue à l'alinéa (3)a).
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[10] The issue in this application for judicial review is simply whether the Appeal Division erred in law in its interpretation and application of the audi alteram partem rule.
[11] It is worth reproducing here the following extract from the decision in question:
[Translation]
After listening closely to the hearing, the Appeal Division observes that you have elected to focus the hearing on the comments of your case management team and the way in which the said management of your case is being handled by your case workers. After hearing from you by way of preliminary remarks on what you had to say concerning the summary of your case by the CLO at the beginning of the hearing, the Board made insistent inquiries on more than one occasion, without success, with the participation of each of the three Board members, to find out from you personally what changes you had made since the previous decision of July 2000 that would favour the removal of the prevention of release. You were told that the Board was not interested, because it is not within its jurisdiction, in a discussion on the assessment of the management of your case or of your case workers but that it wished instead to hear from you on the results of your progress since last year.
The Appeal Division concludes that the Board did indeed grant you the right to be heard but that you were unable to exercise that right in such a way as to pinpoint yourself, for the purposes of the decision, the relevant changes that you might have made since the last hearing, notwithstanding the repeated invitations to do so.
Moreover, having analyzed the decision that was rendered based on the items in the record and what came out at the hearing, it is clear to us that the Board had no option but to render the decision that you are appealing. The decision articulates very well the reasons that support it and we do not think it is necessary to conduct at this point an analytical account of the details. The decision speaks for itself and is fully justified.
Conclusion:
The Appeal Division concludes that the decision of May 9, 2001 is fair and reasonable and that it is supported by information that is considered relevant, credible and persuasive. Contrary to your submissions, the Act and the policies of the Board were complied with, and in particular your right to a hearing. Moreover, in that context, we consider that the hearing was held in compliance with the principles of fundamental justice.
The appeal is therefore dismissed and the decision of May 9, 2001 is confirmed.
[12] It is trite law that the rules of natural justice are variable standards. The content of these rules is inferred taking into account all of the circumstances in which the tribunal in question functions. In S.E.P.Q.A. v. Canada (Canadian Human Rights Commission), [1989] 2 S.C.R. 879, at pages 895 and 896, Sopinka J. expressed the following opinion on the applicability of natural justice:
... Both the rules of natural justice and the duty of fairness are variable standards. Their content will depend on the circumstances of the case, the statutory provisions and the nature of the matter to be decided. The distinction between them therefore becomes blurred as one approaches the lower end of the scale of judicial or quasi-judicial tribunals and the high end of the scale with respect to administrative or executive tribunals. Accordingly, the content of the rules to be followed by a tribunal is now not determined by attempting to classify them as judicial, quasi-judicial, administrative or executive. Instead, the court decides the content of these rules by reference to all the circumstances under which the tribunal operates. ...
[13] It is also trite law that procedural fairness includes at minimum the right of each party to present its case and an opportunity to be heard. At pages 238 and 239 of Principles of Administrative Law, 3rd ed. (Scarborough: Carswell, 1999), by David Jones and Anne de Villars, the authors note:
The content of the audi alteram partem principle is difficult to determine in particular circumstances, and what fairness requires has altered over time and circumstance.
At the very least, the rule requires that the parties affected be given adequate notice of the case to be met, the right to bring evidence and to make argument.
. . .
[14] And clearly, procedural fairness must, generally speaking, be respected in the prison environment (see Cardinal v. Director of Kent Institution, [1985] 2 S.C.R. 643).
[15] In the case at bar, the NPB noted at the outset of the hearing that the applicant had signed a shared-information form stating that he understood all of the information it would be considering in its decision. The NPB correctly summarized its role, then, and explained the factors that would be analyzed in the course of the hearing. Furthermore, the applicant was given an opportunity, as indicated in pages 6 to 11 of the hearing transcript, to make his preliminary remarks concerning his management team, even though it was not the purpose of this hearing to evaluate that group. The applicant was invited several times to present his case, but he simply did not avail himself of this right, as the following extract goes to show (pages 12 and 13):
[Translation]
NPB - This is not the report. We're here to see if you have changed, and you are telling us how the others should change. Now we do want to hear that, but we are still waiting to hear some things concerning the changes....
NPB - At the end of the hearing, the question we are going to have to ask ourselves is, how has Mr. Turcotte changed and how can he convince us that he has reduced the risk to the point that we could remove the prohibition on release. And it's on that question that we would now like to hear from you.
NPB - Correct.
NPB - You have understood correctly.
ET - No. No, because I....
. . .
NPB - Look, the questions the Board is putting to you clearly are what changes do you think you have made since the last meeting? Since the last hearing, did you mention it?
ET - Yes.
NPB - Say so.
ET - Before getting to that, as I told you earlier....
NPB - So, we offered you, of course, something quite clear, we are asking that you withdraw with your personal effects, and we will render the decision to you in a few minutes.
[16] The record satisfies me, therefore, that the Appeal Division could reasonably conclude as it did, in compliance with procedural fairness and in particular the audi alteram partem rule.
[17] Consequently, the application for judicial review is dismissed, with costs.
JUDGE
OTTAWA, ONTARIO
March 1, 2002
Certified true translation
Suzanne M. Gauthier, C. Tr., LL.L
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET NO: T-1418-01
STYLE: Éric Turcotte v. Attorney General of Canada
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: February 27, 2002
REASONS FOR ORDER OF THE HONOURABLE MR. JUSTICE PINARD
DATED: March 1, 2002
APPEARANCES:
Daniel Royer for the applicant
Michelle Lavergne for the respondent
SOLICITORS OF RECORD:
Labelle, Boudeault, Coté et Associés for the applicant
Montréal, Quebec
Morris Rosenberg for the respondent
Deputy Attorney General of Canada
Ottawa, Ontario