Date: 20110520

Docket: T-1604-10

Citation: 2011 FC 599

[UNREVISED ENGLISH CERTIFIED TRANSLATION]

Ottawa, Ontario, May 20, 2011

PRESENT:     The Honourable Mr. Justice Scott

 

BETWEEN:

	STEVE HURDLE
		Applicant
	and
	ATTORNEY GENERAL OF CANADA
		Respondent

 

         REASONS FOR JUDGMENT AND JUDGMENT

 

[1]               This is an application for judicial review of a decision of the National Parole Board (the Board), dated September 1, 2010, imposing special conditions on the applicant in a long-term supervision order under section 134.1 of the Corrections and Conditional Release Act, SC 1992, c 20 (the Act).

 

 

I.          Background

 

[2]               On April 19, 2007, the applicant was convicted by the Court of Québec, Criminal and Penal Division (the Criminal Court), of sexual assault against a child under the age of 14, under paragraph 271(1)(a) of the Criminal Code, RSC 1985, c C-46 [Criminal Code]. He was sentenced to a term of imprisonment of four months, taking into account that he had been in preventive detention for a period equivalent to 52 months. The Criminal Court declared him a long-term offender for a period of 7 years, under subsection 753(1) of the Criminal Code. It also ordered the applicant to comply with the Sex Offender Information Registration Act, SC 2004, c 10, for a period of 20 years, under section 490.012 of the Criminal Code, as well as section 161 of the Criminal Code, which seeks to prevent a sexual offender from coming into contact with persons under the age of 16 years and lists various restrictions to this effect.

 

[3]               On June 28, 2007, the Board imposed five conditions on the applicant in his long-term supervision order. It imposed a condition of residency of 180 days, but it did not mention a specific duration for the other conditions. On January 8, 2008, the Board added a six-month extension to the applicant’s residency condition. On February 7, 2008, the Board imposed a new condition on the applicant, prohibiting him from entering a children’s store or the children’s section of any other store without being accompanied by a responsible adult who is aware of his sexual offending and authorized by his supervision officer.

 

[4]               On April 10, 2008, the Board was once again seized of the applicant’s file, in the context of a hearing following the suspension of his long-term supervision, as the applicant had contacted his wife in violation of the orders of his case management team. The Board cancelled the suspension put in place by the Correctional Service of Canada (Corrections Canada) and imposed a new condition on the applicant, prohibiting him from contacting his wife without obtaining prior authorization from his supervision officer.

 

[5]               Corrections Canada asked the Board to add a condition to the applicant’s long-term supervision certificate. The Board was again seized of the applicant’s file on June 27 and July 2, 2008. On July 2, the Board imposed a new restriction on the applicant with respect to contact with minors, as well as his daughter.  

 

[6]               On September 8, 2008, the Board extended his residency condition by 180 days and extended all of the other conditions without mentioning a specific duration. On September 14, 2009, the Board extended all of the conditions that had been imposed on the applicant since the beginning of his long-term supervision. It also added the following three new conditions:

 

            [translation]

(1)               Not to use or possess a cellular telephone or paging device or any other portable telecommunications device;

 

(2)               To inform his employer of his status;

 

(3)               To disclose in full his financial situation in accordance with the instructions of his supervision officer.

 

[7]               On August 25, 2010, the applicant filed his written submissions regarding the conditions imposed and made specific requests with respect to their duration. He asked for a hearing. On September 1, 2010, the Board extended the residency condition for a period of 180 days. It also amended three of the conditions imposed. It also added a further condition that the applicant must keep his supervision officer informed of all of his movements. It also withdrew the condition whereby the applicant had to disclose in full his financial situation to his supervision officer.

 

II.         Issues

 

[8]               The applicant worded as follows the issues arising from the Board’s decision of September 1, 2010:

 

            [translation]

(1)               Did the Board err in refusing to indicate durations for the conditions imposed in the applicant’s long-term supervision order and failing to provide reasons for its decision with respect to the duration of these conditions?

 

(2)        Did the Board err in adding the following three special conditions to the applicant’s long-term supervision order?

 

(a)                         Not to use or possess a cellular telephone or paging device or any other portable telecommunications device;

 

(b)                        To inform his employer of his status;

 

(c)                         To inform the officer of his movements.

 

III.       Applicable standards of review

 

[9]               The first issue implies two sub-issues. The Court must first determine whether the Board had a legal obligation to indicate an explicit duration with respect to the conditions imposed in its decision. This is a question of law to which the standard of correctness applies (Normandin v Canada (Attorney General), 2005 FC 1605, at paragraph 32):

 

[32] It is uncontested that the appropriate standard of review is correctness. The issue before us is purely a question of law, since we must determine the meaning and scope of a statutory provision by considering its legislative framework. The Board has no special expertise in this area and is in no better position than this Court to resolve the issue. I note, furthermore, that the correctness standard was recently applied by this Court in similar situations: see McMurray v. Canada (National Parole Board), [2004] F.C.J. No. 565 (Q.L.); Normandin v. Canada (Attorney General), [2004] F.C.J. No. 1701 (Q.L.).

 

[10]           The second sub-issue relates to procedural fairness. Did the Board provide adequate reasons for its decision? Here, the standard of correctness applies (Cyr v Canada (Attorney General), 2010 FC 94, at paragraph 18; and Tozzi v Canada (Attorney General), 2007 FC 825, at paragraph 34 [Tozzi]).

 

[11]           As for the second main issue, under section 134.1 of the Act, the Board has the power to impose special conditions of supervision according to the risk of recidivism particular to each case. The Court must show deference to the Board’s expertise, and it is therefore the standard of reasonableness that applies (Deacon v Canada (Attorney General), 2005 FC 1489, at paragraph 67; and Miller v Canada (Attorney General), 2010 FC 317, at paragraph 42).

 

(1)        Did the Board err in refusing to indicate durations for the conditions imposed in the applicant’s long-term supervision order and failing to provide reasons for its decision with respect to the duration of these conditions?

 

A.        Specifying the duration of the conditions

 

[12]           The applicant submits that the Board erred in failing to specify the duration of the conditions imposed in the applicant’s long-term supervision order. Only the residency condition was accompanied by a duration, 180 days. According to the applicant, it is not open to the Board to proceed in this way and wait for Corrections Canada to seek a change to or withdrawal of a condition before acting. Such conduct on the Board’s part is equivalent to delegating the decision-making power granted to it under section 134.1 of its enabling statute. The applicant submits that the Board must impose a time limit on each of the conditions it imposes at the beginning of the long-term supervision. The Board required the applicant to undergo psychiatric treatment. This condition not only has no time limit attached to it, but, according to the applicant, it constitutes a delegation by the Board of its power to a third party, in this case, the psychiatrist, despite the fact that section 134.1 of the Act specifies that the Board is the sole authority with the jurisdiction to set a time limit on the conditions it imposes.

 

[13]           The respondent, on the other hand, submits that the Board enjoys a discretionary power to specify a time limit on the conditions imposed. This does not, however, constitute a legal duty, as the applicant claims. In the case of silence with respect to the duration of the conditions imposed, they are always applicable for the term of the order, i.e. for the full period of supervision, subject to amendment in the case of a change in circumstances within the meaning of subsection 134.1(4) of the Act.

 

[14]           Section 134.1 of the Act governs the imposition of conditions by the Board in the context of a long-term supervision order:

 

 

 

[15]           Section 100 of the Act sets out its main purpose:

 

 

[16]           In Normandin v Canada (Attorney General), 2004 FC 1404, at paragraph 19, Justice Tremblay-Lamer analyzed and defined the legislator’s intent regarding the Board’s role in applying the Act and regarding this purpose:

 

. . . There is no doubt that Parliament intended the NPB to use its expertise in taking the appropriate decisions to protect society while facilitating the reintegration of the offender into the community. The Court must treat this type of expertise with the greatest restraint.

 

[17]           In a judgment upholding Justice Tremblay-Lamer’s decision, the Federal Court of Appeal noted that the Board has a “broad and flexible” discretionary power to apply section 134.1 of the Act. This power includes the authority to impose conditions on the offender’s release and to establish the duration (Normandin v Canada (Attorney General), 2005 FCA 345, paragraphs 44 and 52):

[44] The authority given to the Board by subsection 134.1(2) is a broad and flexible discretionary authority and the discretion is exercised at three levels. First, the Board may or may not impose conditions for supervision of the long-term offender. Second, the Board is also given the authority to determine whether it is reasonable and necessary to do so in order to ensure the protection of the public and to facilitate the successful reintegration into society of the offender. Third, the Board establishes the duration of the supervision.

 

[52] Parliament did not want to introduce this limitation in the case of long-term offenders, who begin their period of extended supervision while the offender on statutory release is reaching the end of his sentence. The risk of recidivism is high for long-term offenders and the period of supervision is a lengthy one, so it is not unreasonable to think that Parliament intended to leave intact the extensive discretionary authority it has granted the Board in subsection 134.1(2) of the Act in order to allow it to meet the specific needs of long-term offenders (if they are to be successfully reintegrated into society) and of the community which is being made to assume the risk of the offender's release.

 

[18]           It therefore appears from the legislation and case law that Parliament did not intend to impose a strict legal obligation on the Board to establish a duration for the conditions imposed, granting it a broad discretionary power in this respect. Contrary to the applicant’s position, the fact that the Board did not explicitly set durations for the conditions imposed does not mean that no time limits apply. The conditions imposed are automatically lifted with the expiry of the supervision order. Contrary to the applicant’s submissions, all of the conditions imposed are of a limited duration.

 

[19]           In this case, the Board retained some room to manoeuvre in order to assess the applicant’s conduct, as his likelihood of rehabilitation was considered low. It decided not to bind itself by specifying a term shorter than the duration of the order for the conditions that had already been imposed. The Board was attempting to protect society from the applicant’s deviant conduct while promoting gradual reintegration and avoiding repeat offences. Such a measure is fully consistent with the purpose of the Act and the Board’s powers thereunder. The Court can identify no error in this respect; our intervention would therefore be unjustified.

 

[20]           As for the applicant’s claim that the imposition of psychiatric treatment for an indeterminate period constitutes a delegation of the Board’s power, the Court cannot adopt such reasoning. It goes without saying that the Board must rely on third parties possessing the necessary expertise to help the applicant reintegrate into the community while reducing the risk of repeat offences, as required by the Act. In this case, only a psychiatrist can assist the applicant along this path. This is not a delegation of its power, as it remains up to the Board to determine whether the applicant has made sufficient progress to justify the lifting of some of the conditions.

 

[21]           Moreover, as pointed out by counsel for the respondent at the hearing in response to a question from the Bench, and contrary to the applicant’s submissions, the following is specified on the face of the text of the decisions dated September 14, 2009, and September 1, 2010: “ADDITIONAL CONDITION(S) IMPOSED AND PERIOD OF TIME FOR WHICH THEY ARE VALID (Apply until the end of the release unless a fixed period of time is specified)”. There is therefore no doubt that a duration has been established for each of the conditions listed in the Board’s order.

 

B.         Reasons for the decision

 

[22]           The applicant also submits that the Board must provide reasons for its decisions, and that it therefore erred in law by failing to state why it had selected a duration for the imposed conditions that he characterized as indeterminate. He argues that this duty takes on even more importance and requires a high level of specificity given that the conditions imposed restrict the freedom of a Canadian citizen. He also claims that the Board should have provided its reasons for imposing a residency condition of 180 days, given that this constitutes a major restriction on his freedom.

 

[23]           The respondent submits that the Board’s decision is reasoned, limited in duration and intelligible, given that the conditions imposed by the Board are valid for the duration of the applicant’s long-term supervision order. The conditions were imposed on the applicant as a result of his uncooperative conduct during his long-term supervision and the information contained in his corrections file. They were also justified by his lack of cooperation and transparency and his repeated violations of his special conditions. 

 

[24]           Paragraph 101(f) of the Act sets out the following principles:

 

 

[25]           In Tozzi, cited above, at paragraphs 63, 64 and 65, Justice Gauthier explained what constituted adequate reasons for a decision by the Board under paragraph 101(f) of the Act:

 

[63] Finally, as paragraph 101(f) of the Act indicates, the NPB and the Appeal Division are obliged to provide reasons for their decisions.

 

[64] The question of whether the reasons are adequate depends on the particular circumstances of each case. As a general rule, adequate reasons are those that serve the functions for which the duty to provide them was imposed (Via Rail v. Lemonde, [2000] F.C.J. No. 1685, at paragraph 21).

 

[65] It was the intention of Parliament here to ensure a fair and understandable process and provide the offender with access to the review of the decision.

 

[26]           In this case, the reasons for the decision of September 1, 2010, run to about five pages. Among other things, the Board lists the factors contributing to the applicant’s criminal behaviour, and notes that the Centre d’évaluation et de recherche de l’Université de Montréal [CERUM] [Université de Montréal centre for evaluation and research] considers the applicant a high risk for repeat sexual offences involving a child. It also relates the applicant’s conduct throughout his post-detention supervision and notes, among other things, that the applicant violated some of the conditions that had been imposed on him. Before elaborating on each of the conditions imposed, it explains the considerations that led to their imposition:

 

[translation]

. . . Having completed its analysis, the Board notes that you remain a high risk for repeat sexual offences involving very young girls. You do not seem to understand this risk and have made no apparent effort to reduce it and avoid potential new victims. This is your second conviction for breach of conditions, and despite the suspensions, you continue to reoffend.

 

Moreover, those in charge of your supervision are constantly obliged to seek new special conditions or to elaborate on those already imposed, as you are constantly attempting to circumvent them. For example, while in a facility, you refused to take the medication prescribed for your sexual delinquency on the grounds that you were only required to take it when in the community.

 

The Board notes that you refuse to recognize high-risk situations. You do whatever you feel like doing, making you a high risk to reoffend, as confirmed by CERUM’s final report.

 

[27]           The Board’s decision is clear and reasoned, as it explains to the applicant why it imposed the conditions it did. The Board is not obliged to specify the duration of each condition. When no duration is specified for a condition, it is valid until the end of the applicant’s supervision period, as stated on the face of the text of the decision.

 

[28]           The Court rejects the applicant’s argument that adequate reasons were not provided for the imposition of 180 days of residency in a community facility. To the contrary, the Board clearly explains that this condition is justified by the sexual assaults against a child for which the applicant was convicted; his high risk of reoffending, as confirmed by several professionals; his unwillingness to cooperate during his supervision period and his repeated violations of the conditions imposed on him. The Board has respected procedural fairness by providing adequate reasons for its decision. It is unnecessary for this Court to intervene.

 

(2)        Did the Board err in adding the following three special conditions to the applicant’s long-term supervision order?

 

[translation]

(a)        Not to use or possess a cellular telephone or paging device or any other portable telecommunications device;

 

[29]           The applicant submits that the Board erred in its decision dated September 1, 2010, in imposing as a condition the prohibition against the use of a cellular telephone or any other portable telecommunications device without explaining why such a restriction was reasonable and necessary to protect the public. The explanation can be found in an earlier decision dated September 14, 2009. According to the applicant, the explanation that these measures are reasonable and necessary because of the risk he represents to society is too general, merely repeats the text of the Act and does not satisfy the requirements of procedural fairness.

 

[30]           The applicant also submits that the wording of this condition is too broad. It is not necessary to achieve the purpose of the Act, which is to protect the applicant’s victims and society in general. According to the applicant, it would be unreasonable to conclude that he would use such devices to commit a sexual offence. The applicant has never been convicted of crimes related to the possession or distribution of pornographic material. The Board has failed to take into account the principles of rehabilitation, social reintegration and the least restrictive determination for the applicant, which, he submits, violates sections 100, 101(d) and 134.1(2) of the Act. The Board erred by failing to consider less restrictive alternatives to this absolute prohibition and by failing to consider that these devices could be useful for the applicant’s reintegration into the community (for example, for academic purposes or to report his movements). Nor did it consider the fact that under section 161 of the Criminal Code, the applicant is already prohibited from using a computer system for the purpose of communicating with a person under the age of sixteen years.

 

[31]           The respondent submits that this condition was first established by the Board in its decision of September 14, 2009, and not in the decision that is currently under judicial review. Because this decision is not currently under judicial review, it cannot be challenged at this time. According to the respondent, the applicant has failed to demonstrate that the condition is unreasonable. There has been no change between the applicant’s situation on September 14, 2009, and his situation today. The applicant continues to require close supervision because of his risk of reoffending.

 

[32]           It has been well established judicially that a condition that has been renewed in a new decision rendered by the Board may be subject to judicial review. In Normandin v Canada (Attorney General) 2005 FC 1605, the judicial review heard by Justice De Montigny involved a decision in which the condition at issue had been established in an earlier decision of the Board. This condition was being renewed for the third time:

 

[1] This application for judicial review seeks to set aside a decision by the National Parole Board (the “Board”) dated November 8, 2004 renewing for the third time a 90-day residency requirement, as part of a community supervision order issued under section 753.1 of the Criminal Code.

 

[33]           What about the reasonableness of the condition? The purpose of the Act, as set out in section 100, is to protect society while promoting the reintegration of offenders into the community. Section 101 of the Act states the principles by which the Board shall be guided in carrying out its mandate. The protection of society remains the paramount consideration, but other factors must also be considered:

 

 

[34]           Under subsection 134.1(2) of the Act, the conditions established must be reasonable and necessary in order to protect society and to facilitate the successful reintegration into society of the offender. In this case, and in light of the evidence in the record, this Court is of the view that the establishment of a prohibition against the possession of a cellular telephone, paging device or any other portable telecommunications device is not unreasonable as things currently stand. The reasons provided by the Board seem reasonable in the circumstances. The applicant has been uncooperative and has breached his conditions. He has, in the past, committed more than one sexual offence against children, including a very young girl, and has demonstrated little promise of rehabilitation.

 

(b)                To inform his employer of his status;

 

[35]           The applicant also submits that this condition is excessive. The applicant has never committed an offence in the context of his employment, nor has he ever abused the position of authority associated with his employment to commit a sexual offence. He argues that such a condition opens him up unnecessarily to reprisals and places him in a vulnerable situation. He also submits that sections 100 and 101 and 134.1(2) of the Act have not been respected. The Board also failed to consider the fact that the applicant is already bound by section 161 of the Criminal Code, which prohibits him from seeking, obtaining or continuing any employment, whether or not the employment is remunerated, that involves being in a position of trust or authority towards persons under the age of sixteen years.

 

The respondent raised the same argument as before, that this decision cannot be judicially reviewed because it was established in the decision dated September 14, 2009, and that the applicant has not demonstrated that the decision was unreasonable. It also submits that there has been no change in the situation of the applicant, who still requires close supervision.

 

[36]           A condition that has been renewed in a new Board decision may be open to judicial review. That is the case here. As for the reasonableness of the condition, the Court is of the view that the Board, given its specialized expertise, is best placed to decide this issue. The Court may only intervene if there are gross errors in the appreciation of the facts or if the Board’s decision displays a total lack of transparency or intelligibility, which is not the case here. This Court’s intervention is therefore not warranted.

 

(c)           To inform the officer of his movements.

 

[37]           The applicant submits that this condition, too, is excessive, goes beyond what is necessary to achieve the purpose of the Act and constitutes an obstacle to his reintegration. It represents an excessive burden on the applicant that is impossible to respect. The condition is too vague and gives the supervision officer absolute discretion with respect to the terms of its enforcement. The word déplacement [the French for movement] has not been defined. Moreover, argues the applicant, the Board has in no way weighed the principles of reintegration into the community and rehabilitation. The Board has a duty to make the least restrictive determination possible under sections 100, 101(d) and 134.1(2) of the Act. In the document entitled “Assessment for Decision”, dated August 5, 2010, Corrections Canada recognized that such a decision was not the least restrictive measure and that alternatives existed.

 

[38]           The respondent submits that this decision is justified for the protection of society and for the applicant’s reintegration into the community, the potential for which has already been assessed as weak. Under paragraph 101(a) of the Act, the protection of society remains the paramount consideration in all cases. The Court must show deference to the Board’s decision.

 

[39]           Keeping track of the applicant’s whereabouts allows for his conduct to be more carefully monitored for the purpose of protecting society. In light of the Board’s reasons and the applicant’s conduct, the Board’s decision appears reasonable in the circumstances. It falls within the range of possible, acceptable outcomes (see Dunsmuir v Nouveau-Brunswick, 2008 SCC 9, at paragraph 47). This Court’s intervention is not warranted.

 

IV.       Conclusion

 

[40]           For all of these reasons, the application for judicial review is dismissed without costs.

JUDGMENT

THIS COURT’S JUDGMENT IS that the application for judicial review is dismissed without costs.

 

 

“André F.J. Scott”

Certified true translation

Johanna Kratz

FEDERAL COURT

 

SOLICITORS OF RECORD

 

 

DOCKET:                                          T-1604-10

 

STYLE OF CAUSE:                          STEVE HURDLE

 

                                                            v

 

                                                            ATTORNEY GENERAL OF CANADA

 

 

PLACE OF HEARING:                    Montréal, Quebec

 

DATE OF HEARING:                      May 11, 2011

 

REASONS FOR JUDGMENT

AND JUDGMENT BY:                    SCOTT J.

 

DATED:                                             May 20, 2011

 

 

 

APPEARANCES:

 

Maxime Hébert Lafontaine	FOR THE APPLICANT
Nicholas R. Banks	FOR THE RESPONDENT

 

SOLICITORS OF RECORD:

 

Labelle, Boudrault, Côté et Associés Montréal, Quebec	FOR THE APPLICANT
Myles J. Kirvan Deputy Attorney General of Canada Montréal, Quebec	FOR THE RESPONDENT