Ottawa, Ontario, November 29, 2005
PRESENT: THE HONOURABLE MADAM JUSTICE MACTAVISH
BETWEEN:
and
REASONS FOR ORDER AND ORDER
[1] The National Parole Board ("NPB") refused to grant accelerated day parole to Troy Constantineau, and his subsequent appeal of that decision to the Appeal Division of the NPB was also dismissed. The Appeal Division found that there was sufficient information before the NPB as to constitute reasonable grounds for believing that if he were released, Mr. Constantineau was likely to commit an offence involving violence prior to his warrant expiry date.
[2] Mr. Constantineau now seeks judicial review of the Appeal Division's decision, arguing that the Appeal Division erred in ascribing too much weight to allegations that he had assaulted and threatened his former common-law spouse. These allegations, which were contained in a police report that was before the Board, were denied by Mr. Constantineau. Moreover, Mr. Constantineau says that on the basis of the record before the Appeal Division, the Appeal Division erred in finding that he was "likely" to commit an offence prior to the expiry of his sentence.
[3] For the reasons that follow, I am of the view that the Appeal Division did not commit a reviewable error in Mr. Constantineau's case. As a consequence, his application for judicial review will be dismissed.
Background
[4] Mr. Constantineau was twice convicted of assault as a juvenile, serving 30 and 90 day sentences in 1992 and 1996 respectively. The latter conviction involved an assault on his then-girlfriend.
[5] On May 16th, 2003, Mr. Constantineau was convicted of mischief, failure to attend court, mischief under $5,000, failure to comply with a recognizance and failure to comply with conditions of undertaking given by the officer in charge. For this, Mr. Constantineau was sentenced to two years and 13 days in prison.
[6] At this time, Mr. Constantineau was also facing charges of uttering threats against and aggravated assault on his former common-law spouse. Because of her failure to appear for the trial, these charges were withdrawn.
[7] Upon being sentenced, it was determined that Mr. Constantineau would have to attend a family violence program. In January, 2005, Mr. Constantineau requested an Accelerated Parole Review. In support of his Review application, Mr. Constantineau's parole officer arranged for him to be admitted to a half-way house in Kingston upon his release, where he would be able to participate in an off-site family violence program.
[8] The NPB denied Mr. Constantineau accelerated parole, finding that he continued to present a high risk of violence towards his female partners, that he needed to participate in a High Intensity Family Violence program, and that he had demonstrated a flagrant disregard for conditions that had previously been imposed upon him.
[9] The Appeal Division of the NPB affirmed that decision, finding that there was sufficient relevant information before it as to constitute reasonable grounds to believe that Mr. Constantineau was likely to commit an offence involving violence prior to the end of his sentence.
Issues
[10] Mr. Constantineau argues that the Appeal Division breached the duty of fairness by relying on allegations contained in a police report, when these allegations were denied by Mr. Constantineau.
[11] Mr. Constantineau also submits that the Appeal Division erred in finding that he was "likely" to commit an offence involving violence, based on the record before it.
Relevant Statutory Provisions
[12] Before turning to consider the arguments advanced by Mr. Constantineau, it is helpful to have an understanding of the principles which guide the NPB and the Appeal Division in exercising their jurisdiction with respect to conditional release. These are set out in sections 102, 125 and 126 of the Corrections and Conditional Release Act, 1992, c.20, the relevant portions of
which provide:
| 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.
125. (2) The Service shall, at the time prescribed by the regulations, review the case of an offender to whom this section applies for the purpose of referral of the case to the Board for a determination under section 126.
(3) A review made pursuant to subsection (2) shall be based on all reasonably available information that is relevant, including:
(a) the social and criminal history of the offender obtained pursuant to section 23;
(b) information relating to the performance and behaviour of the offender while under sentence; and
(c) any information that discloses a potential for violent behaviour by the offender.
126. (1) The Board shall review without a hearing, at or before the time prescribed by the regulations, the case of an offender referred to it pursuant to section 125.
(2) Notwithstanding section 102, if the Board is satisfied that there are no reasonable grounds to believe that the offender, if released, is likely to commit an offence involving violence before the expiration of the offender's sentence according to law, it shall direct that the offender be released on full parole. (3) If the Board does not direct, pursuant to subsection (2), that the offender be released on full parole, it shall report its refusal to so direct, and its reasons, to the offender.
(4) The Board shall refer any refusal and reasons reported to the offender pursuant to subsection (3) to a panel of members other than those who reviewed the case under subsection (1), and the panel shall review the case at the time prescribed by the regulations.
(5) Notwithstanding section 102, if the panel reviewing a case pursuant to subsection (4) is satisfied as described in subsection (2), the panel shall direct that the offender be released on full parole.
(6) An offender who is not released on full parole pursuant to subsection (5) is entitled to subsequent reviews in accordance with subsection 123(5).
(7) In this section, "offence involving violence" means murder or any offence set out in Schedule I, but, in determining whether there are reasonable grounds to believe that an offender is likely to commit an offence involving violence, it is not necessary to determine whether the offender is likely to commit any particular offence.
126.1 Sections 125 and 126 apply, with such modifications as the circumstances require, to a review to determine if an offender referred to in subsection 119.1 should be released on day parole. |
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.
125. (2) Le Service procPde, au cours de la période prévue par rPglement, B l'étude des dossiers des délinquants visés par le présent article en vue de leur transmission B la Commission pour décision conformément B l'article 126.
(3) L'étude du dossier se fonde sur tous les renseignements pertinents qui sont normalement disponibles, notamment :
a) les antécédents sociaux et criminels du délinquant obtenus en vertu de l'article 23;
b) l'information portant sur sa conduite pendant la détention;
c) tout autre renseignement révélant une propension B la violence de sa part.
126. (1) La Commission procPde sans audience, au cours de la période prévue par rPglement ou antérieurement, B l'examen des dossiers transmis par le Service ou les autorités correctionnelles d'une province.
(2) Par dérogation B l'article 102, quand elle est convaincue qu'il n'existe aucun motif raisonnable de croire que le délinquant commettra une infraction accompagnée de violence s'il est remis en liberté avant l'expiration légale de sa peine, la Commission ordonne sa libération conditionnelle totale. (3) Si elle est convaincue du contraire, la Commission communique au délinquant ses conclusions et motifs.
(4) La Commission transmet ses conclusions et motifs B un comité constitué de commissaires n'ayant pas déjB examiné le cas et chargé, au cours de la période prévue par rPglement, du réexamen du dossier.
(5) Si le réexamen lui apporte la conviction précisée au paragraphe (2), le comité ordonne la libération conditionnelle totale du délinquant.
(6) Dans le cas contraire, la libération conditionnelle totale est refusée, le délinquant continuant toutefois d'avoir droit au réexamen de son dossier selon les modalités prévues au paragraphe 123(5).
(7) Pour l'application du présent article, une infraction accompagnée de violence s'entend du meurtre ou de toute infraction mentionnée B l'annexe I; toutefois, il n'est pas nécessaire, en déterminant s'il existe des motifs raisonnables de croire que le délinquant en commettra une, de préciser laquelle.
126.1 Les articles 125 et 126 s'appliquent, avec les adaptations nécessaires, B la procédure d'examen expéditif visant B déterminer si la semi-liberté sera accordée au délinquant visé B l'article 119.1.
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[13] With this understanding of the statutory scheme, I turn now to address the arguments advanced by Mr. Constantineau.
Did the Appeal Division Breach the Duty of Fairness by Relying on Allegations Contained in a Police Report, Which Allegations Were Denied by Mr. Constantineau?
[14] A question as to whether there was a breach of the duty of procedural fairness owed to Mr. Constantineau is to be reviewed against a standard of correctness: Coscia v. Canada (Attorney General), [2005] F.C.J. No. 607, 2005 FCA 132, at ¶ 33.
[15] Based upon the record before me, I am not persuaded that either the NPB or the Appeal Division acted in an unfair manner in relation to the evidence in question. It is clear that the concerns as to Mr. Constantineau's potential propensity for violence were put to him at his hearing before the NPB, and he was afforded a full and complete opportunity to respond to these concerns. Indeed, there is no suggestion here that he was caught by surprise, or that he did not have a full opportunity to respond to the allegations.
[16] As he conceded before this court, the Appeal Division was entitled to consider the unproven allegations contained in the police report. What he really takes issue with is the weight that the Appeal Division ascribed to these allegations. I do not see this as raising an issue of procedural fairness, and thus reject this aspect of Mr. Constantineau's application.
[17] Whether the Appeal Division in fact erred in the weight that it ascribed to the allegations in the police report will be addressed in the next section.
Did the Appeal Division Err in Finding That Mr. Constantineau Was "Likely" to Commit an Offence Involving Violence, Based on the Record Before It?
[18] It should be noted that while the Appeal Division hears an offender's 'appeal', the grounds of appeal are essentially those associated with judicial review: Cartier v. Canada (Attorney General), [2003] 2 F.C. 317, 2002 FCA 384, at ¶ 6. While what is before this Court is, in theory, an application for judicial review, where the Appeal Division has affirmed the decision of the NPB, the Court is ultimately required to ensure that the decision of the NPB was lawful: Cartier, at ¶ 10.
[19] Insofar as the standard of review is concerned, there is a disagreement between the parties as to whether the decision of the Appeal Division should be reviewed against the standard of reasonableness or that of patent unreasonableness. It is unnecessary to resolve this issue in this case, however, as I am satisfied that the Appeal Division decision can withstand scrutiny under the more exacting standard of reasonableness.
[20] The criteria for granting Accelerated Day Parole are set out in section 126 of the CCRA. Subsection 126(2) provides that Accelerated Day Parole may be granted where the Board is satisfied that there are no reasonable grounds to believe that the offender, if released, is likely to commit an offence involving violence.
[21] The parties are in agreement that the NPB is not bound by the strict rules of evidence, and that it is entitled to take into account police reports or any other information that is relevant to the question of the risk posed by an offender: Latham v. Canada (Attorney General), [2004] F.C.J. No. 1911, 2004 FC 1585, at ¶ 13-15. See also Mooring v. Canada(National Parole Board), [1996] 1 S.C.R. 75, at ¶ 25-30.
[22] In this case, the allegations in the police report were made by Mr. Constantineau's former common-law spouse. While Mr. Constantineau denied punching the woman in the face, he did acknowledge that there was a great deal of conflict in the relationship. He admitted that his behaviour was 'definitely not normal', and that he had frequently been unable to control his anger, 'acting out' by kicking, screaming and hollering. Mr. Constantineau also admitted breaking a car window when he was upset, and punching a hole in the wall on another occasion. On at least one occasion, Mr. Constantineau admitted to "definitely .. losing it".
[23] Mr. Constantineau also admitted that he repeatedly violated Court-imposed conditions to stay away from his former common-law spouse, acknowledging that he has 16 convictions for failing to comply with such conditions. He could not offer any explanation for his conduct in this regard, and admitted that his past behaviour could reasonably cause the NPB to be concerned about his ability to comply with any conditions that might be attached to his release.
[24] In light of this evidence, the NPB found reasonable grounds to believe that if Mr. Constantineau were released, he would likely be involved in an offence involving violence.
[25] Mr. Constantineau's contention that the NPB wrongfully assumed that he committed the assault and threatening offences against his former common-law spouse is simply not borne out by the record. The Board's conclusion was based, to a large extent, on Mr. Constantineau's own admissions. In my view, the decision was one that was reasonably open to the NPB, and I see no basis for intervening in the decision of the Appeal Division to affirm the NPB's decision.
Conclusion
[26] For these reasons, the application is dismissed.
ORDER
THIS COURT ORDERS that this application for judicial review is dismissed.
JUDGE
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: T-624-05
STYLE OF CAUSE: TROY CONSTANTINEAU v.
ATTORNEY GENERAL OF CANADA
PLACE OF HEARING: Ottawa, Ontario
DATE OF HEARING: Monday, November 28, 2005
AND ORDER: The Honourable Madam Justice Anne Mactavish
APPEARANCES:
| Mr. John Dillon
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| Ms. Lynn Marchildon
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SOLICITORS OF RECORD:
| MR. JOHN DILLON Kingston, Ontario
JOHN H. SIMS, Q.C. |
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| Deputy Attorney General of Canada
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