OTTAWA, Ontario, this 4th day of November, 2005
PRESENT: THE HONOURABLE MR. JUSTICE TEITELBAUM
BETWEEN:
and
REASONS FOR ORDER AND ORDER
[1] This is an application for judicial review by Shaun Joshua Deacon (the "Applicant") in respect of two discretionary conditions confirmed by the National Parole Board ("NPB") in its February 8, 2005 decision confirming all the discretionary conditions of the Applicant's long-term offender order.
[2] The Applicant has a lengthy history of sexual offences against children. He has been diagnosed as a homosexual pedophile. The British Columbia Court of Appeal in R. v. Deacon, 2004 BCCA 78 provides a straightforward history of the Applicant's sexual offences. Although the full criminal history need not be reproduced here, it should be noted that the Applicant's offences follow a predictable pattern in which the Applicant wins the affection and confidence of children and then sexually abuses them (Deacon, supra at para. 4).
[3] Mr. Deacon was declared a long-term offender, pursuant to s.753.1(1) of the Criminal Code, R.S.C. 1985, c. C-46, on August 4, 1998, and was made subject to a long-term supervision order for the ten year maximum period available. On October 22, 2004, the NPB established conditions for Mr. Deacon's long-term supervision.
[4] Mr. Deacon challenged two discretionary conditions established by the NPB. The conditions are:
- No direct contact or indirect contact with any child under the age of 16 and women or guardians of children under the age of 16 unless pre-approved by your Parole Supervisor (challenges the underlined portion of the condition).
- Take medication as prescribed by a physician.
[5] On February 8, 2005, the NPB confirmed all the discretionary conditions that it had previously established. The Applicant now applies for judicial review of the NPB's decision to uphold these two discretionary conditions.
[6] The parties make several submissions that are based on statutory interpretation or that require an examination of the legislation that established the long-term offender program. It is therefore necessary to provide an overview of the legislative scheme of the long-term supervision orders.
[7] A long-term offender may be subject to an additional period of supervision upon the expiration of the offender's sentence (Cr.C, s.753.1). The supervision falls within the jurisdiction of the National Parole Board.
[8] Section 99 of the Corrections and Conditional Release Act, S.C. 1992, c. 20("CCRA") provides that a person who is under a long-term supervision order is deemed to be an offender. Section 99.1 also explicitly provides that ss.100 ("purpose of conditional release"), 101 ("principles guiding parole boards"), 109 to 111 (respecting "prohibition orders", "clemency", "dissemination of information"), and sections detailing various rights related to review hearings apply to offenders subject to long-term supervision, with such modifications as the circumstances may require.
[9] Section 101 establishes the principles guiding the NPB. Although the protection of society remains "a paramount consideration in the determination of any case" (s.101(a)), the NPB must also "make the least restrictive determination consistent with society" (s.101(d)). As Russell J. explains in McMurray v. Canada(National Parole Board), 2004 FC 462, at para. 26:
One of the stated purposes of the federal correctional system is to assist the rehabilitation of offenders, including those persons subject to a long-term supervision order, and their reintegration into the community as law-abiding citizens. One of the enunciated principles to guide Correctional Services Canada in the achievement of this purpose is the presumption in favour of liberty. This means that offenders retain the rights and privileges of all members of society except those that are necessarily removed or restricted as a consequence of a long-term supervision order.
[10] Section 161(1) of the Corrections and Conditional Release Regulations ("Regulations") provides the NPB authority to impose certain general conditions of supervision. For example, this section requires the offender to remain at all times within territorial boundaries fixed by the parole supervisor (s.161.(1)(b)), to obey the law and keep the peace (s.161.(1)(c)), and to report changes that could reasonably be expected to affect the offender's ability to comply with conditions of parole or statutory release ((s.161.(1)(g)(iv)).
[11] In addition to the general conditions prescribed by s.161.(1) of the Regulations, section 134.1(1) and (2) of the CCRA state:
| 134.1 (1) Subject to subsection (4), every offender who is required to be supervised by a long-term supervision order is subject to the conditions prescribed by subsection 161(1) of the Corrections and Conditional Release Regulations, with such modifications as the circumstances require. (2) The Board may establish conditions for the long-term supervision of the offender that it considers reasonable and necessary in order to protect society and to facilitate the successful reintegration into society of the offender.
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134.1 (1) Sous réserve du paragraphe (4), les conditions prévues par le paragraphe 161(1) du Règlement sur le système correctionnel et la mise en liberté sous condition s'appliquent, avec les adaptations nécessaires, au délinquant surveillé aux termes d'une ordonnance de surveillance de longue durée. (2) La Commission peut imposer au délinquant les conditions de surveillance qu'elle juge raisonnables et nécessaires pour protéger la société et favoriser la réinsertion sociale du délinquant.
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Neither subsection expressly provides the NPB to impose a condition that an offender takes medication as prescribed by a doctor.(emphasis mine)
[12] The Applicant seeks an order to quash the condition requiring him to take medication as prescribed by a physician. The Applicant also seeks an order setting aside the no contact condition, and seeks an order sending this second condition back for determination.
1. The condition to take medication
[13] The Applicant submits that the NPB erred in confirming this first condition. The Applicant challenges the condition first on the ground that the NPB infringed the Applicant's s.7 Charter right to liberty and security of the person, and second, on the basis that the NPB acted without jurisdiction.
a) The condition infringes the Applicant's s.7 Charter rights
Standard of Review
[14] The Applicant submits that the exercise of discretion on constitutional grounds is reviewed under the standard of review under the Charter rather than the administrative law standard of review (Ross v. New Brunswick School District No. 15, [1996] 1 S.C.R. 825 at para. 32). The Applicant submits that no deference should be granted to the NPB's decisions regarding the Charter (Fehr v. National Parole Board et al. (1995), 93 F.T.R. 161 at para. 30).
The NPB Did Not Have Jurisdiction to Confirm the Condition
[15] The Applicant submits that the NPB acted without jurisdiction in confirming the condition. The NPB only has jurisdiction to establish reasonable conditions (CCRA, s.134.1(2)). The Applicant submits that the condition violates his s.7 Charter rights, and is therefore unreasonable. It follows that the NPB acted without jurisdiction in confirming the condition. In the alternative, the Applicant submits that the NPB exceeded its jurisdiction in confirming the condition by making an order that violates the Charter. Even if the NPB had the broad jurisdiction to make orders, the Board "exceeds its jurisdiction" if the order infringes the Charter (Ross v. New Brunswick School District No. 15, [1996] 1 S.C.R. 825 at para. 31-32). The Applicant argues that either approach leads to the finding that the condition infringes the Applicant's s.7 Charter rights to liberty and security of the person.
The condition is a deprivation of liberty and security of the person
[16] The Applicant submits that the condition requires the Applicant to ingest prescribed medication, which violates his right to physical and psychological integrity and infringes on his security of the person. The Applicant submits that the medication affects his mind, and leads to side effects such as vomiting, large discolourations visible on his body, and more serious side affects such as bone density loss. These side effects generate significant psychological stress.
[17] The Applicant also submits that the condition deprives him of his liberty (R. v. Rogers (1990), 61 C.C.C. (3d) 481 (B.C.C.A.) at 488; Fleming v. Reid (1991), 4 O.R. (3d) 74 (Ont. C.A.) at 88).
The deprivation is not in accordance with the principles of fundamental justice
[18] The Applicant submits that the deprivation of the Applicant's security of the person is not authorized by law. The Applicant also submits that the deprivations of the Applicant's liberty and security of the person are not in accordance with the principle of fundamental justice that every competent person has the right to be free from unwanted medical treatment
i) The deprivation is not in accordance with the principle of fundamental justice because that deprivation is not authorized by law
[19] The Applicant submits that it is a principle of fundamental justice that a delegated statutory decision-maker may only deprive a person of his or her security of the person if the legislature has expressly provided that authority in clear statutory language, and even then the provision may be challenged under s.7 of the Charter (Jackson v. Joyceville Penitentiary, [1990] 3 F.C. 55 (F.C.T.D.); Fleming v. Reid (1991), 4 O.R. (3d) 74 (Ont. C.A.)).
[20] The Applicant relies on the Law Reform Commission of Canada's Working Paper 26, Medical Treatment and Criminal Law (1980) for the proposition that there are only two exceptions, emergencies and "state enforced compulsory treatment situations" to the principle of fundamental justice that treatment should not be administered against an individual's refusal. The "state enforced compulsory treatment situations", the Applicant submits, must be instances in which there are clear, specific legislative enactments that dispense with the need of consent.
[21] The Applicant submits that Supreme Court jurisprudence highlights the need for express authorization to deprive a person of their security of the person. In R. v. Stillman, [1997] 1 S.C.R. 607, the Supreme Court held that the taking of hair samples, dental impressions and buccal swabs from the applicant where there was no statutory authority to do so violated the individual's s.8 Charter right, and was also a deprivation of the individual's security of the person (R. v. Stillman, supra at para. 51). The Applicant submits that the principle that state authorized violations of a person's security of the person must be express follows from the seriousness of a violation of "a person's bodily integrity" (R. v. Stillman, supra at para. 39).
[22] The Applicant submits that if requiring a person to take bodily substances out of a body (R. v. Stillman) amounts to a deprivation of the individual's security of the person, then requiring the taking of medication into a body must equally amount to a violation of the s.7 right. As will be seen, I do not agree with this submission.
[23] The Applicant turns to Parliamentary intent to buttress the argument that the deprivation of his s.7 rights has not been authorized by law. The Applicant notes that Parliament has passed legislation so that treatment required by an inmate to obtain a temporary absence, work release or parole is considered voluntary, and refusal of treatment may forfeit his or her opportunity to obtain those forms of discretionary release (CCRA, s.88(3)). The Applicant submits that Parliament did not include the terms "statutory release" or "long-term supervision" in this exception to the rule against treatment without consent, and that such an omission must be construed as a deliberate legislative choice (R. v. Clark, [2005] S.C.J. No. 4 (QL) at para. 53, 2005 SCC 2).
[24] Since there is no clear statutory language in this case to authorize the NPB to deprive long-term offenders of their security of the person interests, the Applicant submits that he has been deprived of both his common law right to refuse medical treatment and his right to security of the person as protected under s.7 of the Charter.
[25] The Applicant also reminds the Court that long-term offenders whose sentences have been completed have a greater claim to liberty than offenders whose sentences subsist (McMurray v. Canada, supra at para. 61).
ii) The deprivations of the Applicant's liberty and security of the person are not in accordance with the principle of fundamental justice that every competent person has the right to be free from unwanted medical treatment
[26] The Applicant submits that there are very limited exceptions to the fundamental principle that a person has the right to be free from unwanted medical treatment. The Applicant submits that the limited exceptions to the principle include where the person is incompetent, there is a medical emergency, the control of infectious diseases, or where a person is unfit to stand trial (Fleming v. Reid, supra at 85; Law Reform Commission of Canada at 73-74; Cr.C, s.672.58). The Applicant submits that his circumstances do not fall into any of the limited exceptions.
[27] The Applicant notes that in Fleming v. Reid, (supra), the Ontario Court of Appeal upheld the exception for forced treatment of involuntary, incompetent patients, but only after finding that the legislation violated s.7 of the Charter.
[28] In R. v. Rogers, (supra), the British Columbia Court of Appeal held that the forced treatment of a competent person in the criminal context violated the appellant's s.7 rights because the treatment order was not in accordance with the principles of fundamental justice. The order was not saved under s.1.
[29] The Applicant submits that the Court should follow the Charter analysis provided in R. v. Rogers, (supra). In that case, the Court only considered the "protection of the public" justification for the condition under the s.1 analysis. The Applicant submits that protection of the public from criminal offending is not one of the exceptions to the fundamental principle of justice that competent persons have the right to be free from unwanted medical treatment.
The condition cannot be saved under s.1
[30] When turning to s.1, the Applicant submits that if the deprivation of the Applicant's security of the person was not authorized by law, then s.1 does not apply because the limit on that right was not "prescribed by law".
[31] However, if a full s.1 analysis is required, the Applicant submits that s.1 only saves the constitutionality of s.7 violations in "rare" and "exceptional" circumstances (New Brunswick (Minister of Health and Community Services) v. G.(J.), [1999] 3 S.C.R. 46 at para. 99).
[32] The Applicant submits that this case is similar to R. v. Rogers, (supra), where the Court held that the probation order compelling an accused to take psychiatric treatment or medication violated the individual's s.7 Charter rights and could not be saved by s.1 because there were other, "less drastic means" to protect the public (R. v. Rogers, supra at 488). The Court in R. v. Rogers did not find any "exceptional circumstances" (R. v. Rogers, supra at 488) that would save the impugned probation order.
[33] The Applicant submits that there are less drastic means of protecting the public in this case. The Applicant proposes that requiring Mr. Deacon to disclose his refusal to take medication as prescribed would be a less drastic means of protecting the public. The Applicant notes that under this less drastic condition, the community parole officer would still be made aware of any potential increase in risk to the public and, if necessary, could apply for additional discretionary conditions.
b) The NPB acted without jurisdiction in confirming the medication condition
[34] In addition to the Charter argument, the Applicant submits that the NPB acted without jurisdiction in confirming the treatment requirement. The Applicant submits that the long-term offender legislation and Parliament's actions reveal that there is no intention to grant the NPB jurisdiction to require a long-term offender to take medication.
[35] The Applicant submits that where a decision-maker exercising discretion does not have the power to make a decision, the decision must be set aside regardless of however reasonable or desirable the decision may be (Syndicat des employés de production du Québec v. CLRB, [1984] 2 S.C.R. 412 at 440).
[36] The Applicant submits that Parliament did not intend to remove the Applicant's common law right to refuse treatment. When a Court orders an applicant to long-term supervision in the community pursuant to section 753.2 of the Criminal Code, the judge must, "order the offender to be supervised in the community" (s.753.1(3), Applicant's emphasis). The Applicant notes that the term "supervised" is undefined in the Criminal Code and the CCRA, but submits that the statutorily-mandated conditions to which long-term offenders are subject informs the interpretation of the jurisdiction of the NPB to establish discretionary conditions (CCRA, s.131.1; CCRA Regulations, s.161.(1)).
[37] The Applicant notes that in R. v. Keiling (1991), 64 C.C.C. (3d) 124 (Sask C.A.), the Court held that sentencing judges do not have jurisdiction to require offenders on probation to submit to medical treatment. The Applicant submits that the residual jurisdiction of sentencing judges to prescribe probation conditions is virtually the same language as found in s.134.1(2) of the CCRA which establishes discretion of the Board to establish conditions for the long-term supervision of offenders. The Applicant submits that the reasoning in Keiling equally applies to the statutory scheme governing conditions imposed on long-term offenders.
[38] The Applicant also argues that had Parliament intended to give the NPB jurisdiction to impose treatment conditions, it would have created a more specialized Board. The Applicant compares the NPB to the expert boards to issue dispositions for accused found unfit to stand trial and not criminally responsible. In addition to having expertise in these areas, the Applicant notes that these review boards may only order treatment with the consent of the accused (Cr.C, s.672.38, 672.39, 672.4, 672.41, 672.55(1)).
[39] The Applicant further notes that, as noted above in his Charter argument, ss.88(3) and 88(5) of the CCRA deems certain inmates to consent to treatment in certain circumstances, but long-term offenders were not included in those sections.
[40] The Applicant recognizes that there is case law to support a finding that the NPB has jurisdiction to establish a condition requiring a long-term offender to take medical treatment. However, the Applicant submits that these holdings were all based on R. v. Payne (2001), 41 C.R. (5th) 156 at para. 133-138 (Ont. Sup. Ct.J). The Applicants submits that all of these decisions are obiter dicta, and that the Courts in those cases had failed to first conduct the requisite exercise in statutory interpretation. The Applicant submits that a statutory analysis reveals that Parliament intended to respect the common law right to refuse medical treatment, and therefore did not provide the NPB with the jurisdiction to remove this right. According to the Applicant, the NPB acted without jurisdiction in confirming the condition that the Applicant takes medication as prescribed by a physician.
2. The no-contact condition
[41] Counsel for the Applicant is relying solely on his written submissions, believing that it was not necessary to submit oral argument. I believe it was wise of him to have done so as, I am satisfied, that the "no-contact" condition is just the type of condition that the NPB is there to impose. Nevertheless, I shall deal with the written submissions of the Applicant.
[42] The Applicant submits that the NPB must apply the legal standards of reasonableness and necessity when establishing a condition of long-term supervision, and a review of the application of those standards is on a standard of reasonableness (Tehrankari v. Correctional Services of Canada (2000), 188 F.T.R. 206 at para. 44).
[43] The Applicant notes that the NPB Policy Manual requires that discretionary conditions imposed upon release must be ones which can be complied with, and should be written so that they are "clear, reasonable, and enforceable" (NPB Policy Manual s.7.1, s.8.3).
[44] The Applicant submits that the requirement that he cannot have contact with women or guardians of children under the age of 16 does not meet the requirements of the NPB Policy Manual because the condition is overly broad. The Applicant submits that it is impossible for him to comply with this condition, as it is impossible for him to know whether such persons have children or are guardians of children under the age of 16.
[45] Since the concern underlying the imposition of the condition is that the Applicant will enter into "a relationship with a vulnerable woman who has children", the Applicant submits that the non-contract condition should be varied to read:
No direct contact or indirect contact with any child under the age of 16, unless pre-approved by your Parole Supervisor, and shall not develop any relationships with parents or guardians of children under 16, unless approved by your Parole Supervisor (Applicant's Memorandum of Fact and Law at paragraph 119).
[46] The Respondent submits that the Applicant is trying to have his liberty granted on his own terms. The Respondent submits that the conditions have assisted the offender in avoiding dangerous offender consideration, under which the Applicant could face indeterminate incarceration. The Respondent submits that the offender did not object to the imposition of a condition that permitted the offender to gain supervised release. The Respondent submits that the subsequent objection to the imposition of the conditions cannot be valid. The Respondent submits that the long-term offender provisions were never intended to allow an individual to agree that treatment is required to secure a greater degree of liberty, and then, once liberty has been granted, challenge the conditions so as to gain liberty without conditions.
[47] The Respondent submits that the primary objective of sentencing of long-term offenders is the protection of the public (R. v. Johnson 2003 SCC 46 at para. 29). The Respondent reminds the Court that long-term offenders may be subject to additional periods of supervision, and that the NPB has jurisdiction over the review of the offender's circumstances. It submits that the NPB is guided by principles based on the protection of society (CCRA, s.101; Mooring v. Canada (NPB), [1996] 1 S.C.R. 75).
[48] The Respondent submits that Parliament has provided the NPB with the power to impose conditions of supervisions upon long-term offenders in order to ensure the attainment of the goal of the protection of society (CCRA, s.134.1(1)). The Respondent submits that in this case, the NPB determined that several special conditions were required as part of the Applicant's long-term supervision in order to reduce the level of risk that the Applicant posed to the public to an acceptable one.
Standard of review
[49] The Respondent submits that on matters of law the NPB is reviewed on a reasonableness standard, while on a matter of fact the Board is determined on a patent unreasonableness standard (Cartier v. Canada [2003] 2 F.C. 317 (C.A.)). Given the Board's high level of expertise in the case, the balancing of individual and societal interests, and the nature of the problem, which is essentially a fact-finding exercise, the Respondent submits that a high degree of deference should be accorded the Board's decision.
1. The condition to take medication
[50] The Respondent submits that the treatment condition must be viewed within the context of the long-term offender designation. The Respondent submits that the primary purpose of the long-term offender provisions is to avoid incarceration where management in the community can control the risk of re-offending. The Respondent submits that the possibility of management in the community is a pre-condition of any long-term offender's liberty. If management is not possible, then the offender could be deemed a dangerous offender, resulting in indeterminate incarceration.
[51] The goal is management and not rehabilitation, so Parliament has recognized that individual's choice in such matters is subordinate to society's needs.
[52] The Respondent submits that the term "take medication as prescribed by a physician" does not require the taking of medication against one's will. The Applicant can choose not to take the medication. The Respondent submits that although that choice would likely result in incarceration, the choice is left to the Applicant. It is not imposed on the individual by the Board.
[53] The Respondent submits that the Courts have examined the issue of imposing treatment conditions. In R. v. W. (H.P.) 2003, 175 C.C.C. (3d) 56 the Alberta Court of Appeal upheld the condition that the individual abstain from the use of alcohol. The Respondent submits that the condition to abstain from alcohol is no different from a condition to take medication. The Respondent submits that failure to adhere to either condition is a choice made by the offender.
[54] The Respondent also submits that the Applicant cannot rely on R. v. Rogers, (supra),in a case involving a long-term offender. In that case the Court found that a parole term ordering an accused suffering from schizophrenia to take medication violated s.7 of the Charter, and found that "save in exceptional circumstances" such an order could not be justified (R. v. Rogers (1990), 61 C.C.C. (3d) 481 (B.C.C.A.) at page 488).
[55] R. v. Rogers is distinguished in the case of R. v. V.M. [2003] O.J. No. 436, where the Ontario Superior Court of Justice held that an individual was a long-term offender. The Court examined whether the condition that Mr. V.M. take antabuse and sex drive reduction medication was enforceable if Mr. V.M. would subsequently withdraw his consent. The Court held at para 126:
... that it was constitutionally permissible for the NPB to impose a condition requiring an offender to comply with medical treatment prescribed by a doctor as part of a long term supervision order. Included in this condition is the requirement to take prescribed medication.
[56] The Court in R. v. V.M. held that the medical treatment requirement constituted an "exceptional circumstance" as contemplated in R. v. Rogers (R. v. V.M., supra at para. 132.
Charter submissions
[57] The Respondent relies on R. v. V.M. where the Court held that any violation to Mr. V.M.'s s.7 Charter rights was in accordance with the principles of fundamental justice (R. v. V.M., supra at para. 135). The Court held that the supervision order requiring the offender to take medication safeguarded against forced medical treatment. The order did not require the physician to impose treatment, and Mr. V.M. could refuse treatment (R. v. V.M., supra at para. 136). Although refusing treatment would amount to a breach of the order and grounds for suspension, the Court still held the individual retained the final say on whether to take medication.
[58] The Respondent further submits that the principles of fundamental justice in the context of s.7 involve a balancing between the fundamental interests of the individual and the protection of society. In Cuningham v. Canada [1993] 2 S.C.R. 143 at page 152, the Court held that, "The balance is struck by qualifying the prisoner's expectation regarding the form in which the sentence would be served".
[59] In this case, the Respondent submits that the Applicant may have served his sentence, but the state's control over the individual's liberty interest remains. The risk of re-offending reaches an unacceptable level when the Applicant refuses treatment. At this point, the risk to society becomes too great.
[60] Even if the Court were to find that the Applicant's s.7 rights were breached, the Respondent submits that the impugned treatment condition should be saved by s.1, since the Respondent meets the test for justification set out in (R. v. Oakes [1986] 1 S.C.R. 103). The Respondent submits that the long-term offender legislative scheme is designed to protect the public, and that this is a pressing and substantial objective. The imposition of conditions that lessen the risk that individuals present to society is rationally connected to the objective. In addition, the Respondent submits that the legislation minimally impairs any infringed right by providing an increased measure of liberty to individuals who otherwise could be subject to indefinite incarceration. The deleterious effect of the legislation, that an individual may refuse treatment and possibly be returned to custody, is offset by ensuring that society is protected from an offender whose successful management depends on treatment.
[61] The Respondent reminds the Court that it would be unable to reduce the risks to society to an acceptable level without being able to impose treatment conditions on offenders, and submits that the condition in this case does not breach the Applicant's Charter rights.
2. The no-contact condition
[62] The Respondent reminds the Court that the basis of the condition forbidding the Applicant from coming into direct or indirect contact with any child under the age of 16, and women or guardians of children under the age of 16, was that the Applicant has manipulated women and guardians of children under the age of 16 in order to gain access to children.
[63] The Respondent submits that that the condition may be broad, but that the scope of the condition need not be examined now. Rather, the condition's scope can be resolved by an appropriate court if the Applicant is charged with a breach of the condition.
[64] The Respondent suggests alternative wording that could be employed. The Respondent submits that the Applicant's suggested alternative wording, that the Applicant "shall not develop any relationships" unless approved by his Parole Supervisor, is problematic. The Applicant could be wilfully blind to the issue until he has already breached his conditions. The Respondent submits that the term "not have any non fortuitous contact", wording which was already judicially reviewed and found not to be overbroad (Re Bryntwick and National Parole Board (1986) 32 C.C.C. (3d) 321), could be more appropriate.
[65] However, the Respondent ultimately submits that the question of alternative terminology should be left to the Board rather than to the Court.
ANALYSIS:
1. The condition to take medication
a) Administrative law arguments
Standard of Review
[66] The Respondent suggests that a high degree of deference should be accorded the Board's decision, while the Applicant submits that no deference should be granted. In order to determine the appropriate standard of review the pragmatic and functional approach should be applied (Dr. Q v. College of Physicians and Surgeons of British Columbia, [2003] 1 S.C.R. 226). The four factors to consider are: the presence or absence of a privative clause; the purposes of the legislation as a whole and the provision in particular; the expertise of the tribunal relative to that of the reviewing court on the issue in question; and the nature of the question.
[67] In Normandin v. Canada(Attorney General), 2004 FC 1404, the Court was asked to determine whether the NPB has the power to impose a residency condition. In that case, Justice Tremblay-Lamer reasoned at paragraphs 19-20:
The main purpose of the Act is contained in section 100 of the Act. It is to contribute to the maintenance of a just, peaceful and safe society by allowing the NPB to impose the conditions necessary to protect society and facilitate the reintegration of the offender into the community. The NPB's function is guided by the principles set out in section 101 of the Act. There is no doubt that Parliament intended the NPB to use its expertise in taking the appropriate decisions to protect society while facilitating the reintegration of the offender into the community. The Court must treat this type of expertise with the greatest restraint.
However, when the question is simply that of deciding whether, based on the relevant legislative provisions, the NPB has the power to impose a residency condition, the question is purely one of law which requires little or no deference. Questions of legislative interpretation are submitted to the courts every day and do not come within the NPB's expertise. The Court is therefore in a better position that the NPB to decide the question. Accordingly, it is the correctness standard which is appropriate. Moreover, this is the standard of review which was applied in McMurray v. Canada(National Parole Board) (2004), 249 F.T.R. 118 249 ( F.C.), in which Russell J. had to determine whether Parliament intended to give dangerous offenders the right to appeal to the Appeal Division [of the National Parole Board].
[68] Similarly in this case, the question whether the NPB had the power to impose a condition to take medication is purely a question of law, and can be best determined by the Court. The applicable standard of review in this case is that of correctness.
Applying the Correctness Standard
[69] The Supreme Court of Canada's guiding principle for matters of legislative interpretation is that, "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" (Re Rizzo and Rizzo Shoes Limited, [1998] 1 S.C.R. 27 at para 21).
[70] The Applicant submits that the NPB was not explicitly conferred the jurisdiction to impose treatment conditions, and that it follows that the power was not conferred at all. Section 134.1 addresses conditions which may be imposed by the NPB on an offender subject to a long-term supervision order:
[71] The subsection 161(1) of the Corrections and Conditional Release Regulations (the "Regulations"), sets out a list of conditions which does not include a treatment condition.
[72] In Normandin v. Canada (Attorney General), Justice Tremblay-Lamer held that the conditions in subsection 161(1) of the Regulations provided the basic conditions, and that Parliament intended, through the broad wording of s.134.1(2) of the CCRA, to leave the NPB with broad discretion to impose any condition it considers reasonable and necessary to protect society (Normandin v. Canada, supra at para. 36). Justice Tremblay-Lamer's holding on this point was recently upheld by the Federal Court of Appeal in Normandin c. Le procureur général du Canada 2005 CAF 345 at paras. 44-46, 52, and 64.
[73] The Applicant also compares the residual jurisdiction of sentencing judges and submits that just as the Court in Keiling, (supra), found that the sentencing judge did not have jurisdiction to require offenders on probation to submit to medical treatment, the NPB in this case did not have jurisdiction to require long-term offenders to submit to medical treatment.
[74] A similar argument was presented in Normandin v. Canada, supra with respect to the imposition of residency conditions on dangerous offenders. Justice Tremblay-Lamer held at para. 37 that:
Parliament enacted a flexible residual legislative provision which serves the general purpose of the Act and Parliament's intention to protect society while facilitating the reintegration into society of the offender. It would be contrary to the scheme of the Act, read together with the applicable provisions of the Cr. C., to exclude the NPB's power to impose a residency condition on a dangerous offender when such a condition is considered reasonable and necessary in the offender's particular situation, but would not be so in the case of some other offender.
[75] Once again, Justice Tremblay-Lamer's decision was upheld by the Federal Court of Appeal. Although the above analysis refers to a dangerous offender, it applies with equal force in the current matter. It would be contrary to the dual goals of protecting the public and facilitating the offender's reintegration into society (Regulations, s,134.1(2)) to exclude the NPB's power to impose a treatment condition when the NPB considers such a condition to be reasonable. In the present case, the NPB noted that medical treatment will reduce the Applicant's risk to re-offend.
[76] In McMurray, supra, Russell J. noted at para. 84 that the plain wording of the section suggests that the NPB is "entitled to impose any condition that it considers reasonable or necessary to protect society and facilitate the successful reintegration of the offender into society". Russell J. also noted that in R. v. V.M. supra, Wilson J. analysed three additional rules of general statutory interpretation to conclude that the NPB had jurisdiction to impose residency conditions. I examine these here, as the reasoning applies to the current case.
[77] Wilson J. reasoned in R. v. V.M. at paragraph 157 that:
First, when a provision in penal statutes are (sic) capable of two interpretations, it should be interpreted in a manner favourable to the accused. If the NPB does not have the jurisdiction to impose residency requirements during long-term supervision order, then, for many offenders, the risk they pose would not be reasonably capable of being eventually managed in the community. These offenders would in all probability be classified as dangerous offenders.
[78] This argument was advanced by the Respondent in relation to treatment requirements, and the facts of this case lead me to agree with the Respondent on this point. If the NPB does not have jurisdiction to impose medical requirements on the long-term supervision order, it is likely that the Applicant would be the subject of a dangerous offender procedure. As the NPD Pre-Release Decision Sheet (22 October 2004) indicates, Mr. Deacon's risk to re-offend "will greatly escalate in the absence of taking these medications" (Applicant's Record, Volume I at page 79).
[79] In R. v. V.M., (supra), Wilson J. also held that legislation should be interpreted so as to avoid unreasonable results. She held at paragraph 158 that it would be an absurd result, "to interpret legislation that is primarily intended to protect the public from high risk offenders as precluding the jurisdiction to impose a residency requirement, when jurisdiction exists to make such orders for lower risk individuals who are on parole."
[80] In this case, the issue is whether it would be unreasonable to find that the NPB does not have jurisdiction to impose a treatment requirement, treatment meaning the taking of medication. The Applicant argues that s.88(3) of the CCRA provides that treatment required by an inmate to obtain a temporary absence, work release or parole is considered voluntary, and refusal of treatment may forfeit the inmate's opportunity to obtain those forms of discretionary release. The Applicant suggests that Parliament deliberately omitted the terms "statutory release" and "long-term supervision", and submits that treatment under a long-term supervision order must be by consent.
[81] The Applicant's argument cannot be accepted. The long-term supervision order is not akin to a regular "statutory release". Rather, it is a form of statutory conditional release. The NPB imposes tailored conditions. If the conditions are breached, then the offender is guilty of an indictable offence and liable to imprisonment for up to a ten year term (Cr.C, s.753.3(1)). Moreover, s.99 of the CCRA states that a person under a long-term supervision order is deemed to be an offender. To find that the omission of the term "long-term supervision" prohibits the NPB from imposing medical restrictions in a long-term supervision would also lead to the absurd result that jurisdiction exists to make treatment orders for lower risk individuals on parole, but not for long-term offenders who are subject to long-term supervision orders.
[82] To allow an Applicant to be released on a long-term supervision order without a necessary medical requirement would also be an unreasonable result. The dual intent of the legislation is to protect the public and provide reintegration through supervision within the community. In this case, it seems clear that the Applicant would not reintegrate into the community, nor would his risk to the community be sufficiently reduced without medical treatment.
[83] Without the treatment requirement, the Applicant would have likely been designated a dangerous offender.
[84] Last, Wilson J. stated that where a provision may be interpreted in more than one manner, the Court should select the interpretation that is consistent with the Charter (R. v. V.M., supra at para. 195, referring to See R. v. Wust (2000), 143 C.C.C. (3d) 129 (S.C.C.) at para. 34.) I address the Charter issues in this matter below, and suggest that the condition passes Charter scrutiny.
[85] It therefore follows that the NPB's decision to impose a treatment condition on the Applicant's long-term supervision order was correct.
b) Charter considerations
[86] An application was made by the Respondent whereby the Respondent stated that in order for the Applicant to make a Charter argument, it would have been necessary for the Applicant to have served a section 57 notice on the Attorney General of Canada and the Attorney General of each province. In that I have concluded that the Charter submissions made by the Applicant are saved pursuant to s.1 of the Charter, I do not find it necessary to determine whether or not I need to examine a s.57 submission.
[87] As noted in the administrative law analysis above, the condition does not violate a principle of fundamental justice by depriving the Applicant's security of the person in a manner that was not authorized by law. Although there is no statutory language specifically identifying medical treatment as an available condition, it is clear from the statutory scheme and Parliamentary intent that the NPB has the discretionary power to impose such a condition.
[88] However, the condition may violate the principle of fundamental justice that individuals should be free from unwanted medical treatment. In my view, it is not enough for the Respondent to say that the Applicant's s.7 Charter rights have not been violated since he retains the final right to refuse treatment. The Respondent acknowledges that if the Applicant refuses treatment, he would be in breach of a condition of his release, and would likely face further incarceration. When the Applicant is required to decide whether to take medication as prescribed by a doctor, he is forced to choose between his right to security of the person and his liberty interest. Under such circumstances, the Applicant may be forced into taking medication against his better judgment. The choice between the losses of s.7 Charter rights is not a choice that the State should normally be imposing on an individual. There is therefore a prima facie violation of the Applicant's s.7 Charter rights.
[89] I am satisfied the infringement on the Applicant's s.7 Charter rights is saved under s.1. The protection of the public is a pressing and substantial objective, and the condition affirmed by the NPB is rationally connected to the objective. The condition meets the minimal impairment requirement of the Oakes test (supra). In this case, it is highly unlikely that the Applicant would have gained supervised release without the condition that he takes medication as prescribed by a physician. In this case, the condition is tailored to impair the Applicant's rights no more than is necessary (RJR-MacDonald Inc. v. Canada (Attorney General), [1995] 3 S.C.R. 199 at para. 160).
[90] The Applicant submits that the condition could have been made less drastic by requiring Mr. Deacon to disclose his refusal to take medication rather than making it a condition that he takes the medication. Although the proposed condition would impair the Applicant's rights to a lesser extent, this condition would not have sufficiently protected the public. The Applicant's long history of sexual offences against children has led the NPB to determine that the Applicant can only be managed with the assistance of medical treatment. The parole officer should not have to apply for additional discretionary conditions upon learning that the Applicant has refused treatment. Rather, the NPB correctly determined that the protection of the public requires that the Applicant take medication as prescribed, and that any breach of this condition immediately amounts to a breach of his long-term supervision order.
[91] Unlike R. v. Rogers, where there were other, "less drastic means" to protect the public (R. v. Rogers, supra at 488), in this case, the imposition of the condition to take medication as prescribed was a necessary condition. This amounts to one of the "exceptional circumstances" (R. v. Rogers, supra at 488) that would save an impugned probation order.
[92] The s.7 Charter violation can be saved under s.1. The NPB had the jurisdiction to impose the condition that the Applicant takes medication as prescribed by a physician, and therefore the condition will not be interfered with by this Court.
2. The no-contact condition
[93] The standard of reasonableness simpliciter applies to the question of whether the NPB should have varied the condition contained in the offender's order, since the issue is a question of mixed fact and law.
[94] Recall the no-contact provision:
No direct contact or indirect contact with any child under the age of 16 and women or guardians of children under the age of 16 unless pre-approved by your Parole Supervisor (Applicant challenges the underlined portion of the condition).
[95] The NPB established that the condition was imposed out of a fear that the Applicant will enter into a relationship with a vulnerable parent or guardian in order to access children. I am satisfied the NPB clearly had reason to be concerned for the welfare of young children. With the Applicant's record and his behaviourwith children, I am satisfied this condition is a reasonable one.
CONCLUSION:
[96] The condition that the Applicant takes medication as prescribed by a medical doctor is upheld.
[97] The condition that the Applicant not contact any child under the age of 16, or any parent or guardian under the age of 16, is upheld.
ORDER
THIS COURT ORDERS that the Application for judicial review is denied. Costs in favour of the Respondent, if requested.
JUDGE
FEDERAL COURT
NAME OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-410-05
STYLE OF CAUSE: Shaun Joshua Deacon v. Attorney General of Canada
PLACE OF HEARING: VANCOUVER, British Columbia
DATE OF HEARING: October 25, 2005
REASONS FOR ORDER: TEITELBAUM J.
APPEARANCES:
| Mr. Garth Barrière
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| Mr. Curtis Workun Mr. Graham Stark
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SOLICITORS OF RECORD:
| Garth Barrière Barrister and Solicitor Vancouver, B.C.
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| John H. Sims, Q.C" Deputy Attorney General of Canada OTTAWA, Ontario
|