PAROLE |
Aney v. Canada (Attorney General)
T-1318-02
2005 FC 182, Beaudry J.
7/2/05
33 pp.
Judicial review of National Parole Board Appeal Division decision dated July 15, 2002 approving National Parole Board (NPB) decision revoking applicant's parole--Applicant, Dangerous Sexual Offender, sentenced to period of preventive detention in 1977--Between 1988 and 2001, applicant had parole suspended, reinstated on several occasions--Arrested December 17, 2001, parole revoked February 22, 2002 following hearing before NPB--Appeal Division dismissing appeal from that decision on July 15, 2002--Review of Appeal Division's decision by Federal Court not limited to findings of Appeal Division--As Appeal Division simply confirming NPB decision, Federal Court required, in light of Cartier v. Canada (Attorney General), [2003] 2 F.C. 317 (C.A.), to determine lawfulness of NPB decision rather than that of Appeal Division--NPB having absolute discretion under Corrections and Conditional Release Act (CCRA), ss. 107(1)(b), 135 to terminate parole for breach of condition, or to protect society--Decision reviewed based on reasonable-ness standard--NPB not erring in fact--Fact NPB members previously participating in earlier parole hearing of applicant in 2001 not creating reasonable apprehension of bias as members now sitting on different parole review hearing (rather than a re-hearing of 2001 hearing)--Foreseeable same NPB member will eventually adjudicate subsequent parole review hearing for same applicant as inmates having such hearing every two years--Parliament not intending to avoid such situation as not so expressly legislating--Majority of NPB's reasons directed toward assessment of applicant's risk to society--NPB thus not erring in law--Unavailability of information (in this case polygraph test (to ascertain applicant not involved in crime since granted full parole)) causing adjournment, postponement of hearing only if NPB believing information significant enough that it cannot assess risk without it--Here, NPB did consider all significant information--Polygraph test results would not have changed NPB's decision--Applying Dumas v. Leclerc Institute, [1986] 2 S.C.R. 459, applicant, having obtained status of parolee, deprived of liberty by revocation of parole--As applicant had been given opportunity to serve sentence in community, revocation significant enough to attract Charter protection-- Fundamental justice requiring fair balance between individual (i.e. liberty), public (protection) interests--NPB not erring in risk assessment of applicant's behaviour, Charter, s. 7 not violated--Applicant's indeterminate sentence not cruel, unusual punishment contrary to Charter, s. 12 in light of circumstances of case (e.g. applicant's numerous breaches of parole conditions, need for further programming to resolve dysfunctional sexual activities)--Application dismissed-- Corrections and Conditional Release Act, S.C. 1992, c. 20, ss. 107(1)(b) (as am. by S.C. 1995, c. 22, s. 13; 1998, c. 35, s. 110; 2000, c. 24, s. 36), 135 (as am. by S.C. 1995, c. 22, s. 18; 1995, c. 42, ss. 50, 69(E), 70(E); 1997, c. 17, ss. 32(F), 32.1--Canadian Charter of Rights and Freedoms, being Part I of the Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44], ss. 7, 12.