Date: 20030829
Docket: T-2141-02
Citation: 2003 FC 1012
Vancouver, British Columbia, August 29, 2003
Present: The Honourable Madam Justice Tremblay-Lamer
BETWEEN:
ROBERT PETANIC
Applicant
and
ATTORNEY GENERAL OF CANADA
Respondent
REASONS FOR ORDER AND ORDER
[1] This is an application for judicial review of the decision of the Appeal Division of the National Parole Board ("the Appeal Division") dated November 19, 2002, affirming the September 13, 2002 decision of the National Parole Board (the "Board") ordering that the applicant be detained until his warrant expiry date of November 19, 2003.
[2] The applicant is serving an aggregate sentence of 3 years and 4 months in respect to two sentences imposed at different times. He received a 3 year sentence in March 2001 following his conviction of one count each of aggravated assault and possession of a weapon. He also received a 4 month sentence in February 2001 following his conviction of one count each for harassment and uttering threats.
[3] The applicant's statutory release date, pursuant to section 127 of the Corrections and Conditional Release Act, S.C. 1992, c. 20 (the "Act") was to have been October 10, 2002.
[4] On September 13, 2002, following a detention hearing, the Board decided to detain the applicant until his warrant expiry date of November 19, 2003. The Board was satisfied that if released, the applicant would likely commit an offense causing serious harm prior to the expiration of his sentence.
[5] The applicant initiated an appeal to the Appeal Division. By letter dated November 19, 2002, the Appeal Division denied the applicant's appeal and affirmed the Board's decision of September 13, 2002.
[6] The applicant seeks judicial review of the Appeal Division's decision.
[7] In Costiuc v. Canada (Attorney General), [1999] F.C.J. No. 241 (Q.L.), I held that the Appeal Division's function is to ensure that the Board has complied with the Act and its policies and has observed the rules of natural justice and that its decisions are based on relevant and reliable information. It is only where its findings are patently unreasonable that the intervention of this Court is warranted.
[8] The crux of the applicant's argument is that the Board, in its decision of September 13, 2002, relied on incorrect information in his file, in particular, the threatening telephone calls that he had allegedly made in the spring and summer of 1998. The applicant points out that although he was originally charged with 12 counts involving criminal harassment and uttering threats, he was only convicted of two of those counts, which arose from a single transaction involving the mailing of an Easter card in April 1998. He was acquitted on the remaining ten counts, which contained allegations of uttering threats by means of telephone calls between July 19 and September 29, 1998. Although he was acquitted of the charges and informed the Board of the errors in his file at the hearing, the Board nevertheless relied on this information in its decision.
[9] The applicant argues that the Appeal Division erred by failing to exercise its jurisdiction to recognize and rectify the Board's breach of the duty of fairness. Alternatively, he argues that the Appeal Division's decision was patently unreasonable in that it affirmed a decision of the Board that was based on an erroneous finding of fact made in a perverse and capricious manner and without regard to the material before it.
[10] Subsection 132(1) of the Act provides that the Board shall take into consideration any factor that is relevant in determining the likelihood of the commission of an offence causing the death or of serious harm to another person before the expiration of the offender's sentence according to law, including:
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(a) a pattern of persistent violent behaviour established on the basis of any evidence, in particular,
(i) the number of offences committed by the offender causing physical or psychological harm,
(ii) the seriousness of the offence for which the sentence is being served,
(iii) reliable information demonstrating that the offender has had difficulties controlling violent or sexual impulses to the point of endangering the safety of any other person,
(iv) the use of a weapon in the commission of any offence by the offender,
(v) explicit threats of violence made by the offender,
(vi) behaviour of a brutal nature associated with the commission of any offence by the offender, and
(vii) a substantial degree of indifference on the part of the offender as to the consequences to other persons of the offender's behaviour;
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a) un comportement violent persistant, attesté par divers éléments, en particulier :
(i) le nombre d'infractions antérieures ayant causé un dommage corporel ou moral,
(ii) la gravité de l'infraction pour laquelle le délinquant purge une peine d'emprisonnement,
(iii) l'existence de renseignements sûrs établissant que le délinquant a eu des difficultés à maîtriser ses impulsions violentes ou sexuelles au point de mettre en danger la sécurité d'autrui,
(iv) l'utilisation d'armes lors de la perpétration des infractions,
(v) les menaces explicites de recours à la violence,
(vi) le degré de brutalité dans la perpétration des infractions,
(vii) un degré élevé d'indifférence quant aux conséquences de ses actes sur autrui;
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[11] It is clear from the Appeal Division's decision that the Board considered a number of factors, based on accurate and reliable information, and not only the charges pertaining to the threatening telephone calls, when it made its decision. This included the applicant's extensive criminal history which included threats and acts of violence; use of weapons; the facts of his index offence; his refusal to take treatment or co-operate with CSC staff; the psychological assessments (moderate-high); his C.M.T.'s assessment of his risk as high; his present maximum security classification based on his conduct; his minimal insight into his criminal offending; his conditional release history which was fraught with violations; his denial and minimalization of his criminal history; and his history of limited anger control.
[12] While it is true that the applicant was not convicted of the charges pertaining to the telephone calls and the Board should have recognized this fact, I am of the view that this information was only a small factor and was not determinative in the Board's decision that the applicant should be detained until his warrant expiry date. As stated above, there was ample evidence upon which the Board could conclude that if released, the applicant would likely commit an offense causing serious harm prior to his warrant expiry date.
[13] In fact, in the addendum to his psychological report, Dr. Marxsen acknowledges that although there were factual errors in his original report consisting of references to charges for which the applicant was never convicted, these errors did not substantially modify his conclusion that the applicant's risk for violent re-offending should be considered moderate to high.
[14] For these reasons, I believe that even had the Appeal Division determined that the Board should not have referred to the charges against the applicant pertaining to the threatening telephone calls, the Appeal Division would have still affirmed the Board's decision, based on the substantial evidence highlighting the applicant's extensive history of threatening behaviour and harassment.
[15] As a result, I am of the opinion that it was not patently unreasonable for the Appeal Division to uphold the Board's decision to detain the applicant until his warrant expiry date.
[16] This application for judicial review is therefore dismissed without costs.
ORDER
THIS COURT ORDERS that the application for judicial review is dismissed without costs.
(Sgd.) "Danièle Tremblay-Lamer"
J.F.C.
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-2141-02
STYLE OF CAUSE: Robert Petanic v. Attorney General of Canada
PLACE OF HEARING: Vancouver, B.C.
DATE OF HEARING: August 26, 2003
REASONS FOR ORDER
AND ORDER: Tremblay-Lamer, J
APPEARANCES:
Michael D. Smith FOR APPLICANT
Malcolm Palmer FOR RESPONDENT
SOLICITORS OF RECORD:
Legal Services Society FOR APPLICANT
Vancouver, B.C.
Morris Rosenberg FOR RESPONDENT
Department of Justice
Vancouver Regional Office