Ottawa (Ontario), November 8, 2006
PRESENT: The Honourable Mr. Justice Simon Noël
BETWEEN:
and
THE ATTORNEY GENERAL OF CANADA
REASONS FOR JUDGMENT AND JUDGMENT
[1] This is an application for judicial review of a September 26, 2005 decision of the Appeal Division of the National Parole Board (Appeal Division) which dismissed François Boucher (applicant)’s appeal and affirmed the National Parole Board (NPB)’s May 20, 2005 decision to deny the applicant any form of conditional release. The Appeal Division’s decision was based on its finding that the applicant if released was likely to re-offend, pursuant to the Corrections and Conditional Release Act, S.C. 1992, c.20, sections 102 and 116 (Act). This application raises issues of procedural fairness such as the right to an impartial decision maker and the right to the opportunity to be heard.
I. Background
[2] The applicant’s criminal history began in 1975 and includes violent crimes, notably an assault on a police officer, and an indecent assault. In 1977, the applicant was sentenced to life for second degree murder. In 1993, he was convicted of manslaughter for his role in the 1977 death of the mother of two officers of the Montreal Police Service and the R.C.M.P. and was given a concurrent sentence of 14 years.
[3] In 1995, the applicant became eligible for full parole. However, as it stands, the applicant has served 29 years and has not benefited from any form of release, including temporary absences, day parole or full parole.
[4] During his 29 years of incarceration, the applicant has pursued higher education, has successfully held various jobs, has participated in institutional programs and has completed all mandated programs and counselling requirements of his correctional plan.
[5] Moreover, the applicant’s correctional record indicates that he has not acted out violently over the past 24 years, whether verbally or physically and there have been no allegations that the applicant has been involved in the drug subcultures at the institutions where he has resided.
[6] Nonetheless, Correctional Service Canada (CSC) alleges that the applicant still presents a moderate to high risk of re-offending if released as he has failed to address the reasons for his criminal wrongdoings. For instance, he continues to rationalize his crimes and still cannot explain the reasons they occurred or how he could prevent himself from committing future offences.
[7] On May 20, 2005, the applicant appeared before the NPB to request conditional release on day parole, full parole or on an unescorted temporary absence basis. After the hearing, the NPB denied the applicant all forms of release.
[8] After the NPB members finished reviewing the situation with the applicant at the May 20, 2005 hearing, the applicant’s counsel, at the beginning of her submissions, presented a motion to recuse the chairperson (Mr. Dagenais) based on his behaviour during the hearing. The chairperson refused to recuse himself and thus the hearing resumed.
[9] The applicant appealed the decision of the NPB to the Appeal Division for the following reasons: the NPB chairperson’s conduct and the fact that he was a retired Montreal Police Service officer gave rise to a reasonable apprehension of bias; there was a violation of his right to the opportunity to be heard; and the NPB failed to consider or improperly considered information pertinent to the decision to be made.
[10] On September 26, 2005, the Appeal Division dismissed the applicant’s appeal with reasons, therefore, affirming the NPB decision.
II. Issues
- What is the appropriate standard of review applicable to decisions of the Appeal Division?
- Was there a reasonable apprehension that the chairperson of the NPB was bias?
- Did the NPB violate procedural fairness at the May 20, 2005 hearing by failing to identify some of their concerns relating to the potential conditional release of the applicant?
- Was the NPB’s decision to deny the applicant any type of conditional release based on their failure to consider or their improper consideration of pertinent information?
III. Analysis
1. What is the appropriate standard of review applicable to decisions of the Appeal Division?
[11] Having reviewed the Act, it is observed that: there is no express privative clause or right of appeal in what concerns the Appeal Division’s statutory and conditional releases decisions; and the purpose of the relevant sections of the Act is polycentric namely to maintain a just, peaceful and safe society and to best facilitate the rehabilitation of offenders and their reintegration into the community (see section 100 of the Act). This being said, the Court’s jurisprudence has consistently shown substantive deference for the findings of expert tribunals such as the Appeal Division. Consequently, on findings of fact the standard of review for decisions of the Appeal Division is patently unreasonable, whereas on matters of law the standard of review is correctness and lastly on questions of mixed fact and law, the standard of review of reasonableness shall apply. These standards of review are supported by this Court’s case law (see Cartier v. Canada [2002] F.C.J. No. 1386 (C.A.), paras. 8 to 10; Latham v. Canada [2006] F.C. 284, paras. 7 and 8; and Latham v. Canada [2006] F.C.J. No. 362, paras. 7 and 8).
[12] Thus, for issues 2 and 3 of this decision, the standard of review will be that of correctness as both raise issues of procedural fairness, which the Federal Court of Appeal determined should always be reviewed on the standard of review of correctness (Sketchley v. Canada (Attorney General), 2005 FCA 404). The appropriate standard of review for issue 4, which relates to a question of fact, is that of patent unreasonableness and as such substantial deference must be applied.
2. Was there a reasonable apprehension that the chairperson of the NPB was bias?
[13] The test for reasonable apprehension of bias was set out by Justice de Grandpré, writing in dissent in Committee for Justice and Liberty v. Canada (National Energy Board), [1978] 1 S.C.R. 369 at page 394, and has been endorsed by the Supreme Court on numerous occasions, most recently in Wewaykum Indian Band v. Canada, [2003] 2 S.C.R. 259. The test does not ask whether actual bias can be shown but instead asks whether an informed person viewing the matter realistically and practically and having thought the matter through would conclude there is a likelihood of bias. Such a test was identified as the one to be used for the purpose of a judicial review of a decision of the NPB (see Denvries v. Canada (National Parole Board [1993] B.C.J. No. 966 (B.C.S.C.) at page 6).
[14] The NPB, at the applicant’s May 20, 2005 hearing, simply dismissed the applicant’s motion to recuse the chairperson without providing any reasons. On September 26, 2005, the Appeal Division upheld the NPB’s decision that the chairperson did not need to recuse himself, concluding that there was no reasonable apprehension of bias. The Appeal Division’s reasons for finding the chairperson was not bias, read as follows:
You submit that the Board’s decision is tainted by bias and/or a clear apprehension of bias. The presiding Board member, as you learned after the hearing, is a retired officer from the Montreal police services. Your manslaughter victim was the mother of two Montreal police officers. You say this Board member was emotionally affected, aggressive, had shaking hands, and continually interrupted your answers in a belittling tone of voice. This Board member was intransigent in his stance and appeared to have already made up his mind.
For the above-mentioned reasons, after the discussion with the Board members, through the intervention of your assistant, you requested that the presiding Board member withdraw from your case.
Mr. Boucher, the issue of whether a decision maker should withdraw from a case must be examined in the light of the circumstances particular to the case. In other words, every case where a member’s potential withdrawal is at issue is a test case. Section 155(2) of the Act provides that “(2) A member of the Board may not participate in a review of a case in circumstances where a reasonable apprehension of bias may result from the participation of that member”.
After attentively reading the documents in your file, we found that, in his capacity as an officer with the Montreal police service, there is no evidence that the member presiding at your hearing had any connection with the investigation in your case. The Appeal Division had no reason to believe that the member presiding at your hearing lacked the necessary integrity and objectivity to make unbiased decisions in the cases given to him to review in the performance of his duties.
After listening to the tape recording, the Appeal Division noted that, throughout the hearing the Board members demonstrated thorough knowledge of the case and they asked direct and sometimes forthright questions to allow you to express your comments with respect to the information contained in your file.
Where you claim the presiding Board member interfered with your answers, was aggressive and used a belittling tone of voice, we find that the interventions were dictated by a necessity to keep the focus on relevant information and to counterbalance your attempts to elude direct questions from the Board members.
We agree with the Board’s decision that, on more than one occasion, you provided answers inconsistent with the information in your file as well as your previous statements. More particularly, we note some inconsistencies with your version of the manslaughter; your opinion of Correctional Services of Canada (CSC) staff members; your nebulous reasons for refusing to participate in psychological counselling and to comply with a request for a urinalysis test.
The audio-recording does not indicate whether or not the president Board member was emotionally affected or had shaking hands. If such a situation existed, you had an obligation to interrupt the hearing process, without delay, and to request that the presiding Board member withdraw from your case. You elected to wait until the end of the discussion, by which time it was too late.
We find no merit to your claim that thre (sic) was a reasonable apprehension of bias from the participation of a retired officer with the Montreal police services acting as the presiding Board member. The audio-recording indicates a hearing that is focussed on information in your file, with direct questioning to obtain precise and complete answers on your part.
[15] Having reproduced the Appeal Division’s conclusions on the issue of bias, it is important to note that the Appeal Division is empowered through subsection 147 of the Act to deal with the following issues of law when they are reviewing an NPB decision:
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147. (1) An offender may appeal a decision of the Board to the Appeal Division on the ground that the Board, in making its decision, (a) failed to observe a principle of fundamental justice; (b) made an error of law; (c) breached or failed to apply a policy adopted pursuant to subsection 151(2); (d) based its decision on erroneous or incomplete information; or (e) acted without jurisdiction or beyond its jurisdiction, or failed to exercise its jurisdiction.
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147. (1) Le délinquant visé par une décision de la Commission peut interjeter appel auprès de la Section d’appel pour l’un ou plusieurs des motifs suivants : a) la Commission a violé un principe de justice fondamentale; b) elle a commis une erreur de droit en rendant sa décision; c) elle a contrevenu aux directives établies aux termes du paragraphe 151(2) ou ne les a pas appliquées; d) elle a fondé sa décision sur des renseignements erronés ou incomplets; e) elle a agi sans compétence, outrepassé celle-ci ou omis de l’exercer. |
[16] The question of bias, brought up by the applicant, is clearly a question of law which demands that the test established by the Supreme Court of Canada in Committee for Justice and Liberty be applied. The Committee for Justice and Liberty test to determine whether there is a reasonable apprehension of bias is four-fold:
1) there must be a likelihood bias;
2) perceived by a reasonable and right minded person;
3) viewing the matter realistically and practically;
4) and having thought the matter through.
[17] When dealing with the issue of bias, the Appeal Division and the NPB are not required to refer to jurisprudence. However, they are required in their analysis to demonstrate that their determination, as to whether a particular decision gives rise to a reasonable apprehension of bias, is based on the four-fold test established in Committee for Justice and Liberty. In other words, the Appeal Division and the NPB must demonstrate that they had the test from Committee for Justice and Liberty in mind when they arrived at a decision as to whether a particular decision maker’s conduct or history gives rise to a reasonable apprehension of bias.
[18] In the case at hand there is no indication in the decision of the NPB or the Appeal Division that the key elements of the Committee for Justice and Liberty test were, either explicitly or implicitly, taken into consideration in arriving at their respective conclusion that there was no reasonable apprehension of bias. Focusing specifically on the Appeal Division’s decision, as it is the decision under review, a reader reviewing the Appeal Division’s decision would not comprehend that the Appeal Division undertook an objective analysis of the situation, as is required by the Committee for Justice and Liberty test, which led it to conclude that the actions of the chairperson at the May 20, 2005 hearing would lead a reasonable and right minded person to conclude that there was no reasonable apprehension of bias. Instead, a reader reviewing the Appeal Division’s reasons would believe that the Appeal Division undertook a subjective review of the NPB decision and concluded that due to the fact that the chairperson, although a former officer for the Montreal Police service, was in no way involved in the investigation of the applicant’s crime, there was no reasonable apprehension of bias.
[19] Consequently, the analysis undertaken by the Appeal Division of the question of whether there was a reasonable apprehension of bias, is not in line with what the Committee for Justice and Liberty test requires. Both issues raised by that the applicant as indicators that there was a reasonable apprehension of bias, namely the behavior of the chairperson during the hearing and his past occupation as an officer of the Montreal Police service, were not dealt with in accordance to the Committee for Justice and Liberty test, which is evident from the Appeal Division’s September 26, 2005 reasons.
[20] On an important question of law such as a motion to recuse the chairperson of the NPB for reasons of bias, it seems to me that the Appeal Division must rely, at least implicitly in their analysis, on the test established by the jurisprudence, if only to insure consistency in their decisions. Decisions relating to whether there was a reasonable apprehension of bias must be structured in such a way as to permit a reader to assess the test that was applied in arriving at such a determination. To fail to do so, as is the case here, is an error of law.
3. Did the NPB violate procedural fairness at the May 20, 2005 hearing by failing to identify some of their concerns relating to the potential conditional release of the applicant?
[21] Having decided that the Appeal Division erred in law by failing to apply the test for determining whether there was a reasonable apprehension of bias and this conclusion being determinative of the present judicial review, I am not obliged to undertake an analysis of the remaining issues. This being said, in the interest of providing future guidance and because issue 3 raises questions of procedural fairness, namely whether the applicant’s right to heard was violated, this issue will be addressed.
[22] The Supreme Court of Canada in Mooring v. Canada (NPB), [1996] 1 S.C.R. 75 at paragraph 36, found that the duty to act fairly in the parole context entails that:
…the Parole Board must ensure that the information upon which it acts is reliable and persuasive … Whether information of “evidence” is presented to the Board, the Board must make a determination concerning the source of that information, and decide whether or not it would be fair to allow the information to affect the Board’s decision.
[23] In what concerns his hearing before the NPB, the applicant alleges that he was not given the opportunity to speak to a variety of issues to which the NPB made reference in their decision not to grant him any form of release. These issues are:
- that during his first federal sentence the applicant had difficulties respecting his conditions of release when on statutory release;
- that the applicant had assaulted correctional service employees in 1983 and 1984;
- that the applicant was involved in gambling and “trafic d’influence” while at La Macaza institution in July 2002;
In what concerns these issues, the applicant alleges that he did not assault a correctional service employee in 1983 or 1984 and that he was not involved in “trafic d’influence” while at La Macaza. Moreover, the applicant suggests that had he had the opportunity to speak to the issue of his failure to respect the conditions of his statutory release during his first federal sentence, he could have explained his deemed failure to respect the conditions of release to the satisfaction of the NPB.
[24] More specifically in what concerns these issues, the applicant states that his first federal sentence’s conditional release was suspended because he was charged with a criminal offence, an offence for which he was later acquitted. As for the assaults on correctional staff in 1983 and 1984, the applicant maintains that during 1983 and 1984 he was in a super maximum security institution where he had no direct contact with correctional officers and thus an assault on correctional staff was impossible or at the very least unlikely. In what concerns the incidents at La Macaza, the applicant points to correctional service records that refer to the applicant potentially being involved in gambling, but do not speak of the applicant being involved in “trafic d’influence”.
[25] In response, the Attorney General of Canada, the respondent in this application, states that the applicant was provided with the full opportunity to be heard in regard to every issue as:
- he was provided with all the information contained in the NPB’s file before the hearing;
- the applicant was told at the hearing that he could provide information to the NPB that related to any of the information contained in his file (Applicant’s Record, Transcript of the NPB hearing, page 41) and according to Justice Pinard in Lauzon v. Canada, 2003 FC 812 at paragraph 15, allowing an applicant to know which information will be used by the NPB at a review allows him to be duly informed and to preserve procedural fairness;
- the applicant was asked at the end of the hearing if he wanted to add anything to his submissions (Applicant’s Record, Transcript of the NPB hearing, page 119), a similar question asked by the NPB was found to be sufficient by Justice Beaudry to allow him to make a determination that procedural fairness was not violated at the NPB hearing in question in Migneault v. Canada (National Parole Board), 2002 FCT 548 at paragraphs 32-35;
[26] In my opinion, the Appeal Division’s reasons makes reference to the issues which the applicant believes the NPB unfairly prevented him from addressing at his hearing. In regards to the applicant’s denial that he assaulted correctional service staff in 1983 and 1984, the Appeal Division points to an Assessment for Decision dated December 12, 2002 (NPB Record, Tab 6) which makes reference to such incidents. As for the applicant’s alleged involvement in gambling and “trafic d’influence” the Appeal Division points to an Addendum to an Assessment for Decision dated December 8, 2003 (NPB Record, Tab 12) which makes reference to the fact that the applicant was involved in gambling at La Macaza, whereas a Correctional Plan Progress Report dated December 18, 2002 (NPB Record, Tab 8) makes reference to the applicant being accused by another detainee as being involved in a “lending tobacco for interest” scheme at La Macaza and to the fact that CSC guards found 19 surplus cigarettes in his cell at La Macaza during a search. In what concerns his difficulties in respecting the conditions of his statutory release during his first federal sentence, the Appeal Division states that this information is contained within a Criminal Profile Report dated October 25, 1989. As this report is not within the record, I will accept the applicant’s submissions as to the details surrounding that event.
[27] This being said, I feel it is important to point out that the catchall statement made by the NPB relating to an inmate’s right to respond to all information contained within an NPB file may not be sufficient to meet procedural fairness requirements in all NPB pre-release hearings, as it is well accepted that the content of procedural fairness is flexible as it varies depending on the particulars of the decision to be made and the rights affected by the decision (Knight v. Indian Head School Division No. 19, [1990] 1 S.C.R. 653, at page 682; Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817 at paragraphs 20-21). It goes without saying that given the inherent time limitations of a pre-release hearing, it would be unfair to expect an inmate to speak to the entirety of his CSC record and NPB file without being given any indication as to what factors or issues are the most important to the NPB in assessing whether conditional release can be granted. I believe that in the interest of procedural fairness the NPB has a duty, to at least some extent in the pre-release hearing and more so as in the case at hand when it is dealing with an applicant that has a correctional history that goes back close to 30 years, to raise issues not addressed by the applicant or their representative in their submissions that the NPB considers of importance to their decision. As Justice Dickson found in Kane v. University of British Columbia, [1980] 1 S.C.R. 1105, referring to the influential decision of Lord Loreburn L.C., of the House of Lord in Board of Education v. Rice, [1911] A.C. 179 (H.L.) at page 182:
the Tribunal must listen fairly to both sides, giving the parties to the controversy a fair opportunity “for correcting or contradicting any relevant statement prejudicial to their views”.
Furthermore, as Justice Reed stated in Gough v. Canada (National Parole Board), [1990] 2 F.C. 117:
It is trite law that both at common law and under s.7 of the Charter the rules of fundamental justice require that an individual is entitled to know the case against him in a decision-making process which leads to a diminution of his liberty…
The requirement that an individual is entitled to know and be given the opportunity to respond to the case against him is essential not only to prevent abuses by people making false accusations but also to give the person who has been accused the assurance that he or she is not being dealt with arbitrarily or capriciously.
[28] Upon reading the transcript it is clear to me that the NPB did, through their questioning of the applicant, indicate which parts of his record were of concern to them in making their decision. Of utmost concern to the NPB in the applicant’s case was, in general terms, his failure after such a long period of incarceration to develop a sense of empathy and a better understanding of the factors leading him to pursue criminal activity. The applicant’s failure to understand these factors is demonstrated through, for example: the applicant’s continuous attempts to rationalise his criminal actions; his refusal to participate in certain psychological evaluations and programs; and the applicant’s continual refusal to admit to the facts of his offences, as accepted by judges at his respective criminal trials. All the above noted reasons are stated in the NPB’s decision rejecting conditional release and all were addressed in length at the applicant’s hearing.
[29] Although briefly mentioned in NPB’s reasons, the applicant’s difficulties in respecting his conditions of statutory release during his first federal sentence, his alleged assault on correction service employees in 1983 and 1984 and his alleged involvement in gambling and “trafic d’influence” while at La Macaza, did not influence the NPB in arriving at its conclusion that the applicant should be denied all forms of conditional release. As previously mentioned, the NPB’s decision to deny the applicant any form of conditional release was made on the basis that the applicant has still not dealt with the psychological factors that led to his criminal offences, continues to rationalise his crimes, and has refused to participate in a number of psychological assessments and rehabilitation programs. Consequently, the failure by the NPB to ask the applicant for submissions in what concerns the specific issues raised in this application (enumerated at paragraph 25 of this decision) was not a violation of procedural fairness as these issues were not determinative to the NPB deciding to deny the applicant all forms of conditional release on the basis that he was likely to re-offend.
4. Was the NPB’s decision to deny the applicant any type of conditional release based on their failure to consider or their improper consideration of pertinent information?
[30] As stated above, an analysis of this issue is not necessary due to the finding on the issue of reasonable apprehension of bias and I will not undertake to analyse this issue since it does not raise an issue of procedural fairness. It can then be dealt by the new panel of the Appeal division.
IV. Conclusion
[31] For the reasons given above and my conclusion that the Appeal Division erred in law by failing to analyse the issue of reasonable apprehension of bias on the basis of the test set out by the Supreme Court of Canada in Committee for Justice and Liberty, the judicial review is granted, as the Appeal Division’s error of law invalidates its decision as a whole. Consequently, the matter will be sent back to a differently constituted panel of the Appeal Division.
V. Costs
[32] Both parties have requested costs. Because of the main determination made, they are in favour of the applicant.
JUDGMENT
THIS COURT ORDERS THAT:
- The application for judicial review is granted, and the matter is to be sent back to a different panel of the Appeal Division so that the remaining issues can be dealt with in accordance with the present Reasons for judgment and judgment;
- Costs are in favour of the applicant.
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: T-1923-05
STYLE OF CAUSE: FRANCOIS BOUCHER v. ATTORNEY GENERAL OF CANADA
DATE OF HEARING: October 16, 2006
REASONS FOR JUDGMENT: NOËL S. J.
APPEARANCES:
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Me Diane Condo
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Me Marc Ribero
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SOLICITORS OF RECORD:
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Me Diane Condo - Ottawa
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John H. Sims QC. Deputy Attorney General of Canada Department of Justice - Montreal
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