[1993] 1 F.C. 613
T-2345-92
Kenneth Dale Bennett (Applicant)
v.
The National Parole Board (Respondent)
Indexed as: Bennett v. Canada (National Parole Board) (T.D.)
Trial Division, Joyal J.—Ottawa, December 10 and 16, 1992.
Parole — Application to quash revocation of day parole by National Parole Board — Applicant convicted of drug trafficking, released on day parole on conditions — Conditions not met as parolee continuing drug addiction, not accepting rehabilitation programmes — NPB decision based on experts’ recommendation, collective opinion rather than findings of fact — Opinion evidence admissible — Correctional system relying on professional or expert opinion in making decisions — Ontario Court (General Division) decision opinion as to treatment efficacy could not justify revocation considered and distinguished — No palpable error in NPB decision justifying Court intervention.
STATUTES AND REGULATIONS JUDICIALLY CONSIDERED
Federal Court Act, R.S.C., 1985, c. F-7, s. 18.
CASES JUDICIALLY CONSIDERED
DISTINGUISHES:
Veysey v. Millhaven Institution (1992), 15 C.R. (4th) 272 (Ont. Gen. Div.).
REFERRED TO:
Re Moore and The Queen (1983), 41 O.R. (2d) 271; 147 D.L.R. (3d) 528; 4 C.C.C. (3d) 206; 33 C.R. (3d) 99; 52 N.R. 258 (C.A.); Bains v. Canada (National Parole Board), [1989] 3 F.C. 450; (1989), 39 Admin. L.R. 39; 71 C.R. (3d) 343; 27 F.T.R. 316 (T.D.); Canada (Attorney General) v. Public Service Alliance of Canada, [1991] 1 S.C.R. 614; (1991), 80 D.L.R. (4th) 520; 48 Admin. L.R. 161; 91 CLLC 14,017; 123 N.R. 161; MacInnis v. Canada (Attorney General) (1986), 4 F.T.R. 211 (F.C.T.D.).
APPLICATION under section 18 of the Federal Court Act to quash a decision of the National Parole Board revoking the applicant’s day parole. Application dismissed.
COUNSEL:
Elizabeth A. Thomas for applicant.
Wayne Garnons-Williams for respondent.
SOLICITORS:
Elizabeth A. Thomas, Kingston, for applicant.
Deputy Attorney General of Canada for respondent.
The following are the reasons for order rendered in English by
Joyal J.: This is an application under section 18 of the Federal Court Act [R.S.C., 1985, c. F-7] to quash a decision of the National Parole Board revoking the applicant’s day parole.
It was on August 14, 1990 that the applicant began serving a five-year sentence following his conviction for trafficking in narcotics and conspiracy to traffic in narcotics. On November 26, 1991, the applicant was released on day parole so long as he complied with the following conditions:
1. to reside at Keele Centre, a half-way house run by the Correctional Service of Canada;
2. to abstain from drugs other than prescribed medications and over-the-counter drugs taken as recommended by the manufacturer;
3. to accept treatment/counselling as arranged by supervisor;
4. to submit to urinalysis as requested by supervisor.
The whole purpose of this scheme was obviously to provide, under controlled conditions, a process of rehabilitation to enable the applicant to kick his drug dependency and eventually enjoy unrestricted day parole. Obviously also, the conditions imposed on the applicant were of a nature not only to limit the scope of his freedom and conduct but to charge him with the added responsibility of pursuing actively the therapeutic programmes which the Keele Centre and other institutions had developed.
According to a staff report dated April 3, 1992, the applicant originally showed promise, but towards the latter part of March 1992, evidence disclosed that the applicant had continued his drug addiction. When faced with a urinalysis showing positive cocaine and heroine, as well as codeine or morphine, which had been from a pain-killing drug Tylenol 3 taken for migraine, the applicant denied any drug use, alleging the positive indicators were caused by second-hand smoke. He later admitted, however, that the facts were true. This breach of conditions alone might have provided sufficient grounds for revocation.
The applicant, however, was treated more leniently. Keele Centre staff recommended to the National Parole Board that the applicant be permitted to stay on day parole for up to three months. Concurrently, the applicant renewed his commitment to the ongoing process of rehabilitation, including drug-related programmes both in-house at Keele Centre as well as at Clarke Institute.
On April 8, 1992, the respondent Board endorsed the Keele Centre staff recommendation, continued the day parole and added, however, another condition, namely that the applicant was not to associate with anyone whom he knew or had reason to believe was involved in the use or traffic of illegal drugs. The Board noted that this new condition was imposed to reduce risks and to assist the applicant in distancing himself from negative influences.
However, by May 14, 1992, Keele Centre had reasons to believe that the applicant had continued his drug habit. According to the staff reports, the applicant, suffering from a lengthy history of substance abuse, had been given every opportunity to change his life, and the Centre had made available to him all professional help possible, including the Clarke Institute programme, the in-house relapse programme and a medically-assisted withdrawal programme. It was staff’s opinion that the applicant had not made serious efforts at rehabilitation. Specifically, staff found that the applicant had obtained Tylenol 3 capsules despite instruction to the contrary, and that he had surreptitiously disposed of a vial of these capsules in a washroom immediately prior to his suspension hearing. In the view of staff, these were unproveable but nevertheless peculiar incidents indicative of the applicant’s less than adequate commitment to his drug cure.
There was further evidence from Clarke Institute as to whether the applicant’s motivation level to remaining substance-free was high enough, or whether the applicant had any idea of what direction he wanted to take with his life. Further, Centre staff conducting the relapse programme felt that remaining substance-free was not the applicant’s priority and that he was not aware of what direction he should take with his life.
On the basis of the foregoing, Centre staff made an assessment. Staff concluded that the applicant’s performance while at the Centre could best be described as dismal. It was noted that in spite of several opportunities to receive the assistance he needed, he chose other priorities. The assessment report noted also that the applicant had lied to staff, that he had used drugs on a regular basis and that until confronted with hard evidence, he had not acknowledged that he was experiencing any difficulties. The conclusion reached by all who had worked with him was that he lacked the motivation to remain substance-free.
As a consequence, a decision was made to recommend that day parole be terminated. This was followed by a Board hearing where the applicant was assisted by counsel. The Board’s decision of July 10, 1992 terminated the applicant’s day parole.
In the face of this, applicant’s counsel, by way of judicial review, stressed that the Board had made an error in failing to make a finding of fact necessary to support a termination of day parole. Further, counsel alleged that there had been no conduct by the applicant, subsequent to the Board’s April 8, 1992 decision, upon which termination could be based. Finally, counsel stated that the Board’s decision relied on the applicant’s conduct prior to its April 8 decision and was in effect a revision of that decision. In fact, said counsel, the Board had no evidence upon which it could decide as it did, and the decision was unreasonable.
In support, applicant’s counsel cited the case of Re Moore and The Queen, an Ontario Court of Appeal decision reported at (1983), 41 O.R. (2d) 271; Veysey v. Millhaven Institution [(1992), 15 C.R. (4th) 272], a decision of Hurley J. of the Ontario Court (General Division) dated June 16, 1992; Bains v. Canada (National Parole Board), a decision of Muldoon J. of this Court, reported at [1989] 3 F.C. 450.
Of particular interest is the Veysey case where the applicant, on full parole, but subject to treatment at the Clarke Institute, had his parole revoked because, notwithstanding full compliance by the applicant with his therapeutic programme, staff were of the opinion that his deviant sexual anomalies could not be reduced in any significant manner and progress had been only marginal. The Board, on the staff’s recommendation, revoked the applicant’s full parole. In turn, Hurley J. quashed the Board’s decision on the ground that significant improvement was not a condition of the continuance of his parole and that an opinion as to treatment efficacy could not justify revocation.
In the case before me, respondent’s counsel relied, of course, on the facts set out in the Court’s record. Although the language used in the Keele Centre staff reports might have lacked precision, to some degree, counsel stated that it was clear, in all the circumstances of the case, there was evidence in its report of May 29, 1992 that the applicant had effectively lost support of staff for day parole release. The Board found that in these circumstances, the risks of day parole were no longer manageable. Counsel concluded that in the circumstances, there was evidence on which the Board could properly rely in revoking day parole. Furthermore, the Board’s decision, coming from an authority which is given wide jurisdiction and which has accumulated wide experience and expertise, is not the kind of decision which should be lightly interfered with by way of judicial review.
Respondent’s counsel quoted in support Canada (Attorney General) v. Public Service Alliance of Canada, [1991] 1 S.C.R. 614, per Sopinka J. at pages 628-629; MacInnis v. Canada (Attorney General) (1986), 4 F.T.R. 211 (F.C.T.D.). Counsel also traversed the authorities cited by the applicant, namely the Moore case and the Bains case to distinguish them from the case at bar. Both of these cases dealt with the process of “gating” when dealing with release on parole.
On the foregoing facts which I have recited at some length and on review of applicable case law, I am not persuaded that there was an error or excess of jurisdiction on the part of the Board.
It is evident that in the case before me, the conditions imposed on the applicant included not only an abstention from drugs and acceptance of treatment and counselling to help him in the rehabilitation process, but in my view, an undertaking by the applicant to submit willingly, constantly and wholeheartedly to the programme designed to cure him.
When the Keele Centre staff and the Board adopted a more negative view of the applicant’s conduct, it was not by reason of the inability of the programmes to cope and assist with the applicant’s addiction, but his failure to make fundamental and essential commitments to them. Absent these commitments, it was their opinion that the whole scheme of the operation was a waste of time and a waste of human and financial resources. In other words, the applicant was getting a free ride.
Admittedly, the Board had to rely on what might be called soft data, as against hard, objective or tangible evidence. In the field of relief from drug addiction, conditions involving therapeutic measures cannot be subjected to the same kind of scrutiny as conditions regulating curfew, or disassociation, or other conditions the breach of which is more readily ascertainable. It must, in my respectful view, deal with a constant process of observations involving the exercise of disciplines which have nothing to do with the more normal restrictions or obligations imposed on inmates or parolees. It requires the conjunction of many members of a treatment staff, each contributing his or her own expertise and each dealing with the very tenuous and shifting fields of psychology, physiology and pharmacology. It also requires that there be maintained as accurate a profile of a patient as the experience and knowledge at that esoteric level can provide, and thereby permit updated assessments of progress or regress.
It is no wonder, in such a context, that any hard evidence of breach of conditions be circumstantial and perhaps inconclusive. It is not surprising that any recommendation made is more a matter of collective opinion than of findings of facts in the traditional sense.
In the circumstances, therefore, I see no error in admitting and recognizing opinion evidence. Such opinion evidence is in my view admissible, especially when dealing with the very nature of the programmes to which the applicant was admitted. I can take notice that at the current acceptance of psychological, psychiatric and behavioural sciences in dealing with conduct, the whole correctional system in Canada, including such programmes as rehabilitation and parole, rely on professional or expert opinion in making decisions. If such evidence be admissible and indeed essential in making a proper assessment with respect to segregation, incarceration in minimum or maximum security establishments, or the granting of day passes and the like, it would be in my view equally admissible in the circumstances of the case before me. In the event, I should find no palpable error in the Board’s decision which would justify my intervention.
I appreciate that these findings appear to go against the grain of the Veysey decision cited by applicant’s counsel. I must admit that the two cases have somewhat similar scenarios. Nevertheless, I like to think that in the Veysey case, one of the conditions imposed on the applicant in granting him full parole was to enter Clarke Institute and there submit to psychological counselling. To this, according to the evidence, he readily subscribed. The Court found that although Clarke Institute had determined after a while that its programmes could not benefit the applicant, causing the Parole Board to revoke his parole, this did not constitute a breach of his parole conditions and the Board’s decision was quashed and the applicant released.
In the case before me, I have found that it was a condition imposed on the applicant that he accept (underlining mine) treatment/counselling conducted at Keele Centre and elsewhere. Acceptance, in my view, implies a personal commitment to subscribe to the counselling techniques and programmes developed by experimental methods to cure a particular deficiency. This personal commitment is all the more a binding one when the incumbent is granted day parole for that purpose. Day parole in such circumstances not only releases the incumbent from incarceration after serving but a relatively short period of his sentence, but also places him in an environment where he may freely exercise all of his normal skills, find avenues for his initiatives and concurrently submit to therapy or counselling of a nature to cure him of any deviant form of behaviour or drug dependency. Failure to accept, as found by his counsellors, constitutes a breach of the conditions imposed on him.
In spite of all this, there is no doubt that the applicant had nevertheless many things going for him. He had entered into a business called “Rolling Tones Painting Company”, which appeared to be successful. He was described as a quiet individual who kept to himself. He was doing well. This no doubt prompted the Parole Board to accept the earlier recommendations of staff to continue day parole in spite of the obvious breaches of his conditions. He was given another chance.
Perhaps the applicant is now in a better position to focus his mind on what is required of him should he have a further opportunity to participate on a parole basis in the kind of programme established for him. In this respect, it might be observed that prison officials might monitor the situation very carefully on his behalf. I should therefore be prepared to make of that observation a recommendation.
Otherwise, the application is dismissed.