Date: 20000106
Docket: T-223-99
BETWEEN:
MARCUS SOBERS
Applicant
and
THE ATTORNEY GENERAL OF CANADA
Respondent
REASONS FOR ORDER
TEITELBAUM, J:
[1] This is an application pursuant to section 18.1 of the Federal Court Act, R.S.C. 1985, c. F-7 (Act) and Rule 300 of the Federal Court Rules, 1998 SOR/98-106 (Rules) for judicial review of a decision taken by André Bachand, member of the Appeal Division of the National Parole Board of Canada (Appeal Division) dated November 6, 1998, directing that the applicant not be released from prison on day parole on the basis that there were reasonable grounds to believe that the applicant was likely to commit an offense involving violence before the expiration of his sentence.
[2] The negative vote of André Bachand was one vote of the two member panel. The two members were unable to agree and therefore the decisions of both members were disregarded and the matter was referred to a newly constituted panel of the Appeal Division.
[3] The applicant seeks an order setting aside the decision of Appeal Board member André Bachand, reinstating the positive vote of Appeal Board member Catherine Kennedy and assigning a new Appeal Board member to replace André Bachand and complete the work of the Appeal Committee.
FACTS
[4] The applicant is serving a federal sentence of seven years for drug related offences and is now incarcerated at the Leclerc Institute.
[5] Acting under section 125 of the Corrections and Conditional Release Act, S.C. 1992, c. 20, Corrections Service Canada referred the applicant"s case to the Quebec region of the National Parole Board of Canada for an accelerated review study pursuant to sections 126 and 126.1 of the Correctional and Conditional Release Act .
[6] The Act required the Board to review the case without a hearing and then to direct release on day parole so long as it was satisfied that there were not reasonable grounds to believe that the applicant was likely to commit an offence involving violence before the expiration of his warrant.
[7] As a decision to direct release requires a positive vote from both members of the subsection 126(2) panel, a single member is assigned to the file initially. If that member casts a negative vote, a second member is not assigned and a refusal to direct is registered. In the applicant"s case, the file review was conducted on February 25, 1998 by the Quebec Board Region section member J.P. Beauchesne, who rendered a negative vote.
[8] As the file study had resulted in a decision not to direct release, the case was referred to a new regional panel for a review by way of hearing, as required by paragraphs 3 to 5 of section 126 of the Correctional and Conditional Release Act.
[9] On March 26, 1998 a panel consisting of members M. Hétu and R. Dutil conducted a hearing and recommended that the applicant not be released.
[10] The applicant then submitted written arguments dated June 29, 1998 appealing the March 26, 1998 decision to the Appeal Division of the Board.
[11] In order for the Appeal Division to reach a decision, both members appointed to the panel must reach the same conclusion. When this is not possible, the matter is referred to a new panel of two different members for reconsideration and, again, a decision only becomes effective if the two members are able to reach a mutual conclusion.
[12] On the first panel who considered the applicant"s appeal, the two members of the panel were Ms. Judith Hendin and Ms. Catherine Ebbs-Lepage. They were not able to agree on a decision and therefore the case was referred to a newly constituted panel.
[13] The second panel of the Appeal Division consisted of members M. André Bachand and Ms. Catherine Kennedy who also voted differently on the applicant"s appeal and therefore no decision was rendered.
[14] The third panel of the Appeal Division, consisting of members Dion and Charbonneau, reached a unanimous negative decision on January 4, 1999 which affirmed the March 26, 1998 decision refusing to direct day parole.
[15] The applicant is now seeking judicial review of the decision of Appeal Board member André Bachand on November 6, 1998 who concluded that the applicant should not be released.
STATUTORY PROVISIONS
Corrections and Conditional Release Act, S.C. 1992, c. 20
| 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. 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. 101. The principles that shall guide the Board and the provincial parole boards in achieving the purpose of conditional release are (a) that the protection of society be the paramount consideration in the determination of any case; (b) that parole boards take into consideration all available information that is relevant to a case, including the stated reasons and recommendations of the sentencing judge, any other information from the trial or the sentencing hearing, information and assessments provided by correctional authorities, and information obtained from victims and the offender; (c) that parole boards enhance their effectiveness and openness through the timely exchange of relevant information with other components of the criminal justice system and through communication of their policies and programs to offenders, victims and the general public; (d) that parole boards make the least restrictive determination consistent with the protection of society; (e) that parole boards adopt and be guided by appropriate policies and that their members be provided with the training necessary to implement those policies; and (f) that offenders be provided with relevant information, reasons for decisions and access to the review of decisions in order to ensure a fair and understandable conditional release process. 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. |
| 126. (1) La Commission procède sans audience, au cours de la période prévue par règlement ou antérieurement, à l'examen des dossiers transmis par le Service ou les autorités correctionnelles d'une province. (2) Par dérogation à 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. 126.1 Les articles 125 et 126 s'appliquent, avec les adaptations nécessaires, à la procédure d'examen expéditif visant à déterminer si la semi-liberté sera accordée au délinquant visé à l'article 119.1. 101. La Commission et les commissions provinciales sont guidées dans l'exécution de leur mandat par les principes qui suivent_: a) la protection de la société est le critère déterminant dans tous les cas; b) elles doivent tenir compte de toute l'information pertinente disponible, notamment les motifs et les recommandations du juge qui a infligé la peine, les renseignements disponibles lors du procès ou de la détermination de la peine, ceux qui ont été obtenus des victimes et des délinquants, ainsi que les renseignements et évaluations fournis par les autorités correctionnelles; c) elles accroissent leur efficacité et leur transparence par l'échange de renseignements utiles au moment opportun avec les autres éléments du système de justice pénale d'une part, et par la communication de leurs directives d'orientation générale et programmes tant aux délinquants et aux victimes qu'au public, d'autre part; d) le règlement des cas doit, compte tenu de la protection de la société, être le moins restrictif possible; e) elles s'inspirent des directives d'orientation générale qui leur sont remises et leurs membres doivent recevoir la formation nécessaire à la mise en oeuvre de ces directives; f) de manière à assurer l'équité et la clarté du processus, les autorités doivent donner aux délinquants les motifs des décisions, ainsi que tous autres renseignements pertinents, et la possibilité de les faire réviser. 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. |
ISSUES
[16] This application raises three issues:
| (1) Is the negative vote by Appeal Division Commissioner André Bachand on November 6, 1998 subject to judicial review? |
| (2) If this is a proper matter for judicial review, was Commissioner Bachand"s negative vote patently unreasonable? |
| (3) If this matter is subject to judicial review, did the involvement of Commissioner Bachand give rise to a reasonable apprehension of bias? |
POSITIONS OF THE PARTIES
Applicant"s Position
[17] The applicant argues that Appeal Division Commissioner André Bachand made a patently unreasonable finding in his negative vote of November 6, 1998 as it does not reflect the material in the applicant"s file, specifically the psychological report by the March 26, 1998 regional parole panel.
[18] Secondly, the applicant contends that the involvement of André Bachand in the panel on November 6, 1998 gives rise to a reasonable apprehension of bias on the grounds that there exists a close connection and frequent interaction between M. Bachand and the regional member of the Board in Quebec, J.P. Beauchesne, who articulated the reasons why the applicant should be refused release.
[19] As support for the assertion that there was a reasonable apprehension of bias, the applicant refers to the fact that André Bachand sat on the same panel of the National Parole Board as member J.P. Beauchesne at the Donnacona Institution on October 7, 1998. Less than a month following this panel, Mr. Bachand was a member of the panel reviewing the decision of J.P. Beauchesne.
Respondent"s Position
[20] The respondent submits that the vote taken by André Bachand on November 6, 1998 is not subject to judicial review as there was no decision taken by that panel. The two panel members could not agree on a decision and therefore the applicant"s case was remitted for consideration before a newly constituted panel of the Appeal Division.
Thus, there was no decision made by André Bachand.
[21] The respondent states that the only decision rendered by the Appeal Division was on January 4, 1999 and it is that decision which may be subject to judicial review. However, the applicant makes no submissions in this application regarding the decision of January 4, 1999 but rather focuses entirely on the vote taken by André Bachand on November 6, 1998.
[22] It is submitted by the respondent that this application for judicial review must be dismissed for these reasons.
[23] In the alternative, if the Court finds that the vote taken by André Bachand on November 6, 1998 is subject to judicial review, the respondent submits that his finding was not unreasonable and raises no reasonable apprehension of bias.
ANALYSIS
[24] At the outset, it is necessary to consider whether the impugned decision, that taken by André Bachand on November 6, 1998, is properly a matter that is subject to judicial review.
[25] Section 154 of the Corrections and Conditional Release Regulations states as follows:
| A decision of the Board in respect of any review of the case of an offender shall be rendered by a majority of the members of the panel but where there is no majority, the case of the offender shall be referred to a new panel of members who were not members of the previous panel and the decision shall be rendered by a majority of the members of the new panel. |
[26] The respondent has argued that, pursuant to the terms of this provision, no decision was made by the Appeal Division other than the decision of January 4, 1999, affirming the March 26, 1998 regional Board decision, which was rendered by Appeal Board members Charbonneau and Dion.
[27] The terms of this provision are unambiguous - there is no decision of the Appeal Division until a majority of the members of the panel reach an agreement. Where there is no majority agreement, the case is referred to a new panel and the decision is taken by that panel if there is a majority consensus. Therefore, the panel which André Bachand was a member of did not render a decision on the applicant"s case.
[28] Given that this is not a proper matter for judicial review, I find it unnecessary to consider the applicant"s other arguments. The application must be dismissed. I say this because even if I allowed the judicial review and found in favour of the applicant, which I do not, I would only refer the matter back for a new hearing before a differently constituted board, which in reality took place.
[29] With respect to the assertion that the negative vote of André Bachand was an unreasonable error as it did not reflect the contents of the psychological report, the panel had numerous pieces of documentary evidence before them, as well as the cassette of the hearing before the regional Board. The psychological report prepared by Mme Lucie Dufour was relevant to the assessment of whether the applicant would be likely to commit a violent act in the future, but there were many other considerations which informed the panel"s assessment of the applicant.
[30] The applicant contends in paragraph 40 of the memorandum of law that the Board made a patently unreasonable error in that the expert opinion of Mme Lucie Dufour was not fairly considered in their assessment. I have carefully read the impugned reasons and I find that the panel did consider, and in fact mentioned the professional assessment conducted by Mme Dufour.
[31] Mr. André Bachand states in his reasons dated November 6, 1998 at page 2, paragraph 3:
| The Board also noted that, according to a professional assessment, "The violence has long been your only means of protecting yourself from a perceived rejection by those around you." |
[32] I am satisfied that the Board properly considered and weighed the evidence before them. The negative finding of André Bachand was not patently unreasonable. The evidence before the panel indicates that in addition to the applicant"s present conviction for drug trafficking, conspiracy to commit, import and possession of narcotics, and the charge of conspiracy to traffic seven kilograms of cocaine, he was also convicted and sentenced to jail in 1989 for robbery and two counts of assault.
[33] I am satisfied that André Bachand considered the totality of the evidence, both the positive and negative elements, as stated at page 2 of his reasons, found at page 131 of the applicant"s record. There is sufficient evidence to support the finding that the applicant was likely to commit an offence involving violence before the expiration of his sentence.
[34] Lastly, on the issue of a reasonable apprehension of bias, I find that this argument is completely without merit. There is no evidence to suggest that the panel did not observe the principles of natural justice and fairness, or that there was any bias or appearance of bias. The fact that Mr. Bachand comes from Quebec or sits with other members of the Quebec Region Board when required or that he may know or is a friend of Mr. Beauchesne is not enough for me to conclude that there exists a reasonable apprehension of bias.
[35] For the above stated reasons, the application is dismissed with costs if requested by the respondent.
"Max M. Teitelbaum"
J.F.C.C.
Ottawa, Ontario
January 6, 2000