Date: 20030704
Docket: T-590-02
Citation: 2003 FC 812
Between:
ROBERT LAUZON
Applicant
- and -
ATTORNEY GENERAL OF CANADA
Respondent
REASONS FOR ORDER
PINARD J.:
[1] This is an application for judicial review to set aside the decision of the Appeal Division (the Appeal Division) of the National Parole Board (the NPB) dated March 12, 2002, by Board members A. Bachand and C. Kennedy. That decision dismissed the applicant's appeal and affirmed the decision dated December 6, 2001, by the NPB refusing to grant an unescorted temporary absence to the applicant for family contact purposes (UTA FC).
[2] The applicant is currently an inmate at the Montée St-François Institution in Laval. He has been serving a life sentence for murder since September 30, 1983.
[3] In September 2001, the applicant was granted an unescorted temporary absence program (UTA).
[4] A statutory pre-release hearing before the NPB had been scheduled for December 2001. In September 2001, he asked that he also be considered for a six-month UTA program.
[5] On September 21, 2001, the applicant was placed in administrative segregation at the Federal Training Centre because he was suspected of being the head of an institutional narcotics trafficking network.
[6] On October 19, 2001, the applicant signed a waiver in which he claims to have waived his right to a complete review of his case. However, the respondent maintains that the applicant waived only the review of his application for full parole (FP) and the hearing, not the review, scheduled for December 2001 concerning his applications for UTA FC and UTA for personal development (PD).
[7] On December 6, 2001, after reviewing the case without a hearing, the NPB made a decision refusing to grant the applicant's application for UTA FC.
[8] The applicant appealed this decision to the Appeal Division on January 16, 2002, which dismissed the appeal on March 12, 2002, and stated the following:
[TRANSLATION]
The National Parole Board authorized a temporary absence program (TAP) for you for personal development, as indicated in the file. The program was renewed several times so that you could complete the program at the centre d'intervention et de recherche en violence (CIRV).
The Board has before it a report that states you have been implicated in a narcotics distribution network at the institution. It also alleges that you took advantage of your temporary absences to bring narcotics into the institution for distribution.
Your behaviour is unacceptable and this activity must be regarded as reflecting an entrenched criminal personality. The goals of the program that you were permitted to take were not met and, on the contrary, you took advantage of these absences to engage in criminal activities within the institution.
On September 24, 2001, you asked to be granted a temporary absence for family contact purposes to renew your relationship with your sister. In light of the above-noted facts, the Board considers that you now represent a high risk of re-offending and therefore refuses to authorize an unescorted temporary absence program for family contact purposes.
[9] Affirming the NPB's decision, the Appeal Division wrote:
[TRANSLATION]
A review of the documentation in your file indicates that on October 19, 2001, you signed a waiver that contained the following statements, among others:
(a) "I understand that I am entitled to a review and/or hearing of my case by the National Parole Board related to my . . . 2. Full Parole, UTA FC (family contact purposes) and post-cancellation hearing UTA PD(personal development)."
(b) "Review of day parole, full parole, long term supervision and residency condition application."
You indicated under that heading: "I do not wish to be considered for full parole and hereby waive my right to a review."
(c) "Above your signature you added the following two handwritten sentences: "I waive my hearing scheduled for December 2001 (UTA FC and FP) and "I waive the post-cancellation hearing for my UTA PD program (CIRV)."
We note that you have not, either in the waiver signed October 19, 2001, or in any other document, waived a review of the unescorted temporary absence program for family contact purposes. You only waived your hearing and not the review of the file. The decision rendered refers to the Assessment for Decision and the Update of the Correctional Plan Program Report, both dated September 24, 2001.
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[10] The applicant essentially submits that the Appeal Division erred in finding that he had not waived the review by the NPB of his request for UTA FC, but that he had only waived the hearing of this request. In the alternative, the applicant argues that the Appeal Division should not have affirmed the NPB's decision because it had not complied with its duty of fairness to him at the review of his case concerning the UTA FC.
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[11] At the outset, it is important to situate the dispute in its particular statutory and regulatory framework. Section 116 of the Corrections and Conditional Release Act, S.C. 1992, c. 20 (the Act) confirms that the NPB has the power to authorize the unescorted temporary absence of an offender under certain conditions. Subsection 8 of that provision states that the circumstances and the manner in which, and the time at which, an application for an unescorted temporary absence must be made are prescribed by the regulations. Sections 155 and 156 of the Corrections and Conditional Release Regulations, SOR/92-620 (the Regulations) set out the terms and conditions of granting and applying for such authorization. More specifically, subsection 156(3) of the Regulations specifies that the releasing authority shall review the case within six months after receiving the application. Subsection 140(1) of the Act provides for reviews to be conducted by the NPB, which necessarily involve a hearing, while subsection 140(2) provides that the NPB has discretion to hold such a hearing in other cases. Lastly, subsection 164(1) of the Regulations provides for cases where the NPB must review an application for a UTA by way of hearing.
[12] It is useful to reproduce here the statutory and regulatory provisions (except for section 116 of the Act):
Corrections and Conditional Release Act:
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123. (1) Subject to subsection (2), the Board shall, at the time prescribed by the regulations, review, for the purpose of full parole, the case of every offender who is serving a sentence of imprisonment of two years or more and who is not within the jurisdiction of a provincial parole board. |
123. (1) La Commission examine, aux fins de la libération conditionnelle totale et au cours de la période prévue par règlement, les dossiers des délinquants purgeant une peine d'emprisonnement de deux ans ou plus qui ne relèvent pas d'une commission provinciale. |
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(2) The Board is not required under subsection (1) or (5) to review the case of an offender who has advised the Board in writing that the offender does not wish to be considered for full parole and who has not in writing revoked that advice. |
(2) Malgré les paragraphes (1) et (5), la Commission n'est pas tenue d'examiner le cas du délinquant qui l'a avisée par écrit qu'il ne souhaite pas bénéficier de la libération conditionnelle totale et n'a pas révoqué cet avis par écrit. |
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140. (1) The Board shall conduct the review of the case of an offender by way of a hearing, conducted in whichever of the two official languages of Canada is requested by the offender, unless the offender waives the right to a hearing in writing or refuses to attend the hearing, in the following classes of cases: (a) the first review for day parole pursuant to subsection 122(1), except in respect of an offender serving a sentence of less than two years; (b) the first review for full parole pursuant to subsection 123(1), including the review conducted pursuant to subsection 126(4), and subsequent reviews pursuant to subsection 123(5);
. . .
(2) The Board may elect to conduct a review of the case of an offender by way of a hearing in any case not referred to in subsection (1).
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140. (1) La Commission tient une audience, dans la langue officielle du Canada que choisit le délinquant, dans les cas suivants, sauf si le délinquant a renoncé par écrit à son droit à une audience ou refuse d'être présent : a) le premier examen du cas qui suit la demande de semi-liberté présentée en vertu du paragraphe 122(1), sauf dans le cas d'une peine d'emprisonnement de moins de deux ans; b) l'examen prévu au paragraphe 123(1), le réexamen visé au paragraphe 126(4) et chaque réexamen prévu en vertu du paragraphe 123(5);
[. . .]
(2) La Commission peut décider de tenir une audience dans les autres cas non visés au paragraphe (1). |
Corrections and Conditional Release Regulations:
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155. For the purposes of sections 116 and 117 of the Act, the releasing authority may authorize an unescorted temporary absence of an offender . . . (d) for family contact purposes to assist the offender in maintaining and strengthening family ties as a support to the offender while in custody and as a potential community resource on the offender's release; . . . (f) for personal development for rehabilitative purposes to allow the offender to participate in specific treatment activities with the goal of reducing the risk of the offender re-offending, and to allow the offender to participate in activities of a rehabilitative nature, including cultural and spiritual ceremonies unique to Aboriginal peoples, with the goal of assisting the reintegration of the offender into the community as a law-abiding citizen; and |
155. Pour l'application des articles 116 et 117 de la Loi, l'autorité compétente peut accorder au délinquant une permission de sortir sans surveillance dans l'un des cas suivants : [. . .] d) à des fins de rapports familiaux, afin de lui permettre d'établir et d'entretenir des liens avec sa famille pour qu'elle l'encourage durant sa détention et, le cas échéant, le soutienne à sa mise en liberté; [. . .] f) pour du perfectionnement personnel lié à sa réadaptation, afin de lui permettre de participer à des activités liées à un traitement particulier dans le but de réduire le risque de récidive ou afin de lui permettre de participer à des activités de réadaptation, y compris les cérémonies culturelles ou spirituelles propres aux autochtones, dans le but de favoriser sa réinsertion sociale à titre de citoyen respectueux des lois;
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156. (1) An offender may apply in writing to the releasing authority for an unescorted temporary absence for a purpose described in section 155.
. . . |
156. (1) Le délinquant peut présenter par écrit à l'autorité compétente une demande de sortie sans surveillance pour l'un des motifs visés à l'article 155.
[. . .] |
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(3) Subject to subsection (4), the releasing authority shall review the case of an offender who applies for an unescorted temporary absence within six months after receiving the application, but in no case is the releasing authority required to review the case before the two months immediately preceding the offender's eligibility date for unescorted temporary absence.
(4) The releasing authority may postpone an unescorted temporary absence review with the consent of the offender.
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(3) Sous réserve du paragraphe (4), l'autorité compétente doit examiner le cas du délinquant qui présente une demande de sortie sans surveillance dans les six mois suivant la réception de la demande, mais elle n'est pas tenue de le faire plus de deux mois avant la date de l'admissibilité du délinquant à une telle sortie.
(4) Avec l'accord du délinquant, l'autorité compétente peut reporter l'examen visant une sortie sans surveillance. |
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164. (1) Any review by the Board of the case of an offender who is serving, in a penitentiary, a sentence of life imprisonment imposed as a minimum punishment or commuted from a sentence of death, or a sentence of detention for an indeterminate period, and who applies for an unescorted temporary absence, shall be by way of hearing until a first unescorted temporary absence is authorized or a first day parole is granted by the Board. |
164. (1) Tant que la Commission n'a pas accordé une première sortie sans surveillance ou une première mise en semi-liberté au délinquant qui purge dans un pénitencier soit une peine d'emprisonnement à perpétuité infligée comme peine minimale ou à la suite de commutation d'une peine de mort, soit une peine d'emprisonnement d'une durée indéterminée, la Commission doit examiner par voie d'audience le cas de ce délinquant lorsqu'il demande une permission de sortir sans surveillance. |
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[13] With regard to the applicant's main argument that the Appeal Division erred in finding that he had not waived the review of his application for UTA FC, but that he had only waived the hearing of the application, the Board's record contains a two-page waiver dated October 19, 2001. In this document are three types of clarifications by the applicant: first, he indicated that he understood he was entitled to a review and/or a hearing of his case by the NPB related to his applications for full parole, UTA FC and UTA PD; second, in a section of the document that does not deal with UTA applications but with other types of applications including the application for full parole, the applicant stated that he waived his right to a review; third, in a section entitled "Reasons", he stated: "[TRANSLATION] I waive my hearing scheduled for December 2001 (UTA-FC and FP). I waive the post-cancellation hearing of my UTA PD (CIRV) program." Further down, the applicant's signature and the date, October 19, 2001, are found on the first page of the document under the comment " I understand the rights to which I am entitled as detailed on page 2 of this form." Finally, on the second page of the document, in the section entitled "In the case of a Parole Board hearing" the following is stated:
If the offender chooses to waive the right to a hearing but not to the statutory review, (when this is possible), the Board will proceed to decide whether or not the release should be granted after reviewing the information on file, including any written representations the offender may wish to make.
[14] In my view, this document is a very important piece of evidence that allowed the Appeal Division to find as it did. The applicant makes much of the fact that the NPB confirmed in a letter dated October 23, 2001, that following his waiver signed on October 19, 2001, his "case" would not be the subject of a hearing, and that a review date had been set for November 2003. Considering the details provided by the applicant on the waiver form in question, it was not unreasonable to consider that the letter referred only to the application for full parole. If the applicant had any doubts, they should have faded when he later signed a "Procedural Safeguard Declaration" to which was attached a document indicating December 2001 as the "anticipated date of panel/paper review." It is true that above "December '01", the box "panel" was checked off by mistake. It was not unreasonable to ignore this unimportant error, since the applicant knew that he had waived his right to a hearing.
[15] The applicant's alternative argument that the NPB failed in its duty of fairness to him also has no merit. The "Procedural Safeguard Declaration" to which is attached the "Information Sharing Checklist Update" was duly received and signed by the applicant on November 6, 2001. These documents show that the applicant was duly informed about the information that would be used at the review in December 2001, and about his right to make written submissions to the NPB about the review. The applicant did not state that he wished to make written submissions. Under the circumstances, procedural equity was preserved.
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[16] Therefore, it appears to me that the decision by the Appeal Division was based on all the documents that I referred to above, and that those documents constitute important evidence that
appears to me to have been interpreted reasonably and with respect for the applicable statutory and regulatory law. The application for judicial review is accordingly dismissed with costs.
"Yvon Pinard"
Judge
OTTAWA, ONTARIO
July 4, 2003
Certified true translation
Mary Jo Egan, LLB
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-590-02
STYLE OF CAUSE: ROBERT LAUZON v. ATTORNEY GENERAL OF CANADA
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: June 6, 2003
REASONS FOR ORDER BY: The Honourable Mr. Justice Pinard
DATED: July 4, 2003
APPEARANCES:
Robert Lauzon THE APPLICANT REPRESENTING HIMSELF
Dominique Guimond FOR THE RESPONDENT
SOLICITORS OF RECORD:
Morris Rosenberg FOR THE RESPONDENT
Deputy Attorney General of Canada
Ottawa, Ontario
Date: 20030704
Docket: T-590-02
Ottawa, Ontario, the 4th day of July 2003
Present: the Honourable Mr. Justice Pinard
Between:
ROBERT LAUZON
Applicant
- and -
ATTORNEY GENERAL OF CANADA
Respondent
ORDER
The application for judicial review to set aside the decision dated March 12, 2002, by the
Appeal Division of the National Parole Board is dismissed with costs.
"Yvon Pinard"
Judge
Certified true translation
Mary Jo Egan, LLB