McLean v Canada (Correctional Service), 2016 ABQB 673

Court of Queen’s Bench of Alberta Citation: McLean v Canada (Correctional Service), 2016 ABQB 673 Date: 20161130 Docket: 160713004X1 Registry: Edmonton Between: Peter Charles McLean Applicant - and - Correctional Service of Canada, Bowden Penitentiary and Parole Board of Canada Respondents _______________________________________________________ Reasons for Decision of the Honourable Mr. Justice John T. Henderson _______________________________________________________ I. OVERVIEW [ 1 ] Peter Charles McLean applies for an order in the nature of habeas corpus , with certiorari in aid.

He claims entitlement to this relief by asserting that the revocation of his parole by the Parole Board of Canada (the “Parole Board”) was unlawful, unreasonable, and procedurally unfair. [ 2 ] Mr. McLean raised numerous issues on this motion. However, his primary argument is that the Parole Board revoked his parole by relying on text messages, which were obtained through a search of the cell phone which he was using at the time. He argues that this warrantless search was unreasonable and was a violation of his rights guaranteed by the Canadian Charter of Rights and Freedoms (the “ Charter ”).

He argues that the Parole Board acted in error when it relied on this “tainted” evidence, and that the Appeal Division of the Parole Board (the “Appeal Division”) was in error in dismissing his appeal. [ 3 ] Mr. McLean also argues that the decisions of the Parole Board and the Appeal Division were simply unfair and unreasonable and therefore, unlawful. [ 4 ] For the Reasons which follow, I conclude that the revocation of the Applicant’s parole by the Parole Board and the dismissal of the appeal by the Appeal Division were reasonable and thus lawful, and that the process followed was procedurally fair.

I therefore dismiss Mr. McLean’s application.

II. FACTS [ 5 ] On September 5, 2013, Mr. McLean entered pleas of guilty to 3 counts of bank robbery, contrary to s 344 of the Criminal Code and to one count of causing damage to premises, contrary to s 441 of the Criminal Code . At the sentencing hearing, Mr. McLean and the Crown presented a joint sentencing submission, which was accepted. After credit for pre-disposition custody, the Court imposed a sentence of 5 years and 1 month in custody. [ 6 ] Mr. McLean was transferred to the Drumheller Institution on September 23, 2013.

Correctional Services Canada (CSC) determined that his Statutory Release date would be January 24, 2017 and the Warrant Expiry date would be October 4, 2018. [ 7 ] While in custody, Mr. McLean successfully participated in programs which were designed to assist him in overcoming serious drug addiction issues and to provide him with coping mechanisms to deal with the triggers and high risk situations. He managed his addiction issues through a methadone program and identified his high-risk situations as: “stress, girlfriends that use, offer of drugs, people that use and depression”. [ 8 ] Mr.

McLean became eligible for day parole on November 16, 2014 and eligible for full parole on May 16, 2015. [ 9 ] On July 24, 2014, Mr. McLean completed and submitted an “Application for Parole” in which he explained that he planned to move to Edmonton to “get a fresh start” and to “get away from ex-friends & ex-girlfriends that are still involved in drug lifestyle”. [ 10 ] By letter dated August 7, 2014, the Parole Board acknowledged receipt of his application for day parole and proposed that a hearing be held in December 2014.

The Parole Board advised that the hearing would consider both the potential for day parole and the potential for full parole. [ 11 ] The December 2014 Parole Board hearing was postponed to March 2015 at the request of Mr. McLean and, again, postponed to September 2015. The hearing was ultimately held on October 8, 2015. [ 12 ] Following the hearing on October 8, 2015, the Parole Board prepared a written decision which denied the application for full parole but granted day parole for a period of 6 months at a Community Correctional Centre/Community Residential Facility.

The granting of day parole was subject to several “special conditions” including the following: Report Relationships: Immediately report all intimate sexual and non-sexual relationships and friendships with females to your parole officer. Avoid Certain Persons Not to associate with any person you know or have reason to believe is involved in criminal activity. [ 13 ] A copy of the decision of the Parole Board was provided to Mr. McLean by letter dated October 9, 2015. Mr.

McLean was advised of his right of appeal and also of his right to apply to be relieved of any of the “special conditions” which were imposed in conjunction with the granting of day parole. Mr. McLean did not appeal the Parole Board decision of October 8, 2015, and did not apply for relief from any of the “special conditions”. [ 14 ] Mr. McLean was released to the Stan Daniels Healing Centre, in Edmonton, on October 27, 2015. He had trouble interacting with others at this Center, was often emotional and had thoughts of suicide.

Therefore, on November 17, 2015, he was transferred to Independence Apartments, a residential facility operated by the John Howard Society. [ 15 ] On January 10, 2016, staff at Independence Apartments conducted a random search of Mr. McLean’s room and the cell phone he was using at the time. The cell phone search revealed a series of text messages between Mr. McLean and his former girlfriend, Nicole Claxton (“Nicole”). [ 16 ] Mr. McLean’s parole officer, Tina Brochu, conducted a review of the case in which she considered a

summary of the text messages. She concluded that Mr. McLean’s “behaviour had escalated to an unmanageable risk”. Thus, Mr. McLean’s day parole was suspended, and a warrant for his arrest was issued and executed on January 11, 2016. [ 17 ] On January 14, 2016, Mr. McLean was transferred to the Bowden Institution to continue serving his custodial sentence.

He was interviewed on January 18, 2018, by his parole officer, at which time he denied that he was in a relationship with his former girlfriend, Nicole, despite the text messages which were found on the cell phone. [ 18 ] CSC staff recommended to the Parole Board the Mr. McLean’s day parole be revoked. [ 19 ] On February 10, 2016, Mr. McLean, in a written submission provided the Parole Board with a detailed rebuttal to his parole officer’s report in relation to the suspension of his day parole.

He also provided to the Parole Board copies of the text messages which he had exchanged with Nicole while he was on day parole. Mr. McLean requested a “second chance at day parole” and requested an “in person meeting/hearing” to discuss the situation. [ 20 ] On March 21, 2016, the Parole Board advised Mr. McLean in writing that a Panel Hearing of the Parole Board would be held at the Bowden Institution to address the issue of his day parole. [ 21 ] The Panel Hearing of the Parole Board was conducted on April 12, 2016. Mr.

McLean was in attendance and made submissions to the Parole Board and was assisted by his brother, Geoffrey McLean. Following the hearing, the Parole Board issued a written decision revoking Mr. McLean’s day parole. In arriving at the decision, the Parole Board made specific reference to the text messages as evidence of “an unhealthy and stressful relationship that you spent considerable energy pursuing”. The Parole Board

concluded that Mr. McLean knowingly engaged in a high-risk relationship and failed to use any of the supports available to assist withthe management of the risk. Thus, the Parole Board concluded the Mr. McLean presented an undue risk to the public. [22] On May 19, 2016, CSC revised Mr. McLean’s Statutory Release date to November 6, 2017 from January 24, 2017. Mr.McLean was advised of the new Statutory Release date by letter dated May 25, 2016. [23] On July 8, 2016, Mr.

McLean brought an appeal to the Appeal Division from the decision of the Parole Board. [24] On August 3, 2016, the Appeal Division dismissed the appeal with written reasons. In those reasons the Appeal Divisionconcluded that it was not unreasonable for the Parole Board to have concluded that Mr. McLean’s risk had become undue and thus it wasnot unreasonable for the Parole Board to have revoked his day parole. III. ISSUES TO BE DECIDED [25] Mr. McLean raises several issues in relation to this application. They are: 1.

Was the decision to revoke day parole unlawful because, in reaching its decision, the Parole Board considered the content of textmessages which were seized in a random search of his room and cell phone in violation of his rights under ss 7, 8, 9 and 24 of theCharter? 2. Was the decision to revoke day parole unlawful because the Parole Board failed to consider Mr. McLean’s rights under s 2(b)(freedom of expression), s 2(d) (freedom of association), s 6(2)(b) (mobility rights) and s 15 (equality rights) of the Charter? 3.

Was the decision of the Parole Board unreasonable and thus unlawful based on a proper consideration of the reliable informationbefore it? 4. Did the Parole Board breach Mr. McLean’s right to procedural fairness when they revoked his day parole? 5. Was the decision of the Appeal Division which dismissed the appeal from the decision of the Parole Board unreasonable and thusunlawful? 6. On this application for habeas corpus, does the Court have jurisdiction to review decisions of CSC in relation to the revision of Mr.McLean’s Statutory Release date from January 24, 2017 to November 6, 2017? IV. DISCUSSION A.

General Principles [26] Before addressing the specific issues raised by Mr. McLean on this application, I will first outline some of the generalprinciples which are applicable in relation to applications for habeas corpus. 1) Jurisdiction to grant habeas corpus [27] An application for an Order in the nature of habeas corpus is a form of judicial review of an administrative decision. As ageneral rule, courts have an inherent discretion to decide whether to exercise jurisdiction and undertake a judicial review. However, thatdiscretion is limited in circumstances where a prisoner seeks habeas corpus.

The Supreme Court of Canada in May v Ferndale, 2005SCC 82 , 2005 SCJ 84, at para 44, made it clear that a court should only decline to exercise its habeas corpus jurisdiction in thefollowing limited circumstances: i. Where a statute such as the Criminal Code confers jurisdiction on a Court of Appeal to correct the errors ofa lower court and release the applicant if need be; or ii.

Where there is in place a complete, comprehensive and expert procedure for review of an administrativedecision – citing Peiroo v Canada (Minister of Employment and Immigration, (ON CA), 69 OR (2d) 253 (ONCA). [28] May was considered by the Alberta Court of Appeal in D.G. v Bowden Institution (Warden), 2016 ABCA 52. In D.G., theChambers Judge exercised her jurisdiction and granted an Order in the nature of habeas corpus in circumstances where a prisoner’sparole had been revoked by the Parole Board and an appeal to the Appeal Division had been dismissed.

At para 49, Justice Bielbyconcluded (Justice Wakeling concurring with separate reasons) that after the dismissal of an appeal by the Appeal Division, access to theFederal Court judicial review process (and an appeal to the Federal Court of Appeal) is not a “complete, comprehensive and expertprocedure” as contemplated in May. As a result, it was appropriate for the Chambers Judge to exercise her habeas corpus jurisdiction.

The appeal was therefore dismissed. [29] Thus, in Alberta, where the Parole Board has revoked parole and where an appeal to the Appeal Division has been dismissed,the prisoner has an option to proceed either with the Federal Court Judicial Review process or to proceed with an application for habeascorpus in the Court of Queen’s Bench of Alberta.

If the prisoner elects to proceed with the habeas corpus application, the Court shouldaccept jurisdiction and hear the merits of the application. [30] The same considerations would not necessarily apply where a prisoner’s parole is revoked by the Parole Board, but where noappeal is brought to the Appeal Division: see LeBlanc v Canada (Attorney General), 2016 ABQB 350.

[31] In the present case, Mr. McLean’s parole was revoked by the Parole Board and an appeal to the Appeal Division wasdismissed. He elected to proceed with an application for habeas corpus, with certiorari in aid.

His election must be respected and thus Iconclude that I must assume jurisdiction to hear the merits of the habeas corpus motion. 2) Procedure on habeas corpus application [32] When an applicant seeks an order in the nature of habeas corpus, the motion proceeds by way of an originating applicationfor Judicial Review and is governed by Rules 3.15 to 3.24 of the Alberta Rules of Court. [33] Rule 3.16 provides that an application for habeas corpus may be filed at any time and must be filed and served as soon aspracticable after filing.

Any affidavit or other evidence to be used on the application must be filed and served on each of the other partiesat least 10 days before the hearing of the application. [34] Despite the reference to an “affidavit” or “other evidence” in Rule 3.16, the evidence which can be used on a judicial review islimited by Rule 3.22. Generally, the application must proceed based on the Record before the administrative tribunal making thedecision which is the subject of the review.

Any additional evidence or affidavits should be permitted only in exceptional circumstances:Alberta Liquor Store Assn v Alberta (Gaming and Liquor Commission), 2006 ABQB 904, at para 40; White v Alberta (Workers’Compensation Board Appeals Commission), 2006 ABQB 359; F. Prins Potatoes Ltd v Agriculture Financial Services Corp, 2015ABQB 335, at para 23. The rationale for the restriction on the use of additional evidence lies in the nature of judicial review.

The processis not an appeal of the tribunal’s decision but is instead a review to determine whether the decision meets the requisite standard ofreview. [35] Any additional evidence to be used on a judicial review application must be “permitted” by the court or by another rule orenactment: Rule 3.22 (b), (

c) and (d). No application was made in the present case for the use of additional evidence. [36] The Respondents before me filed two affidavits for the purpose of supplementing the evidence before the Parole Board. However, the Respondents fairly conceded in oral submissions that no exceptional circumstances existed to justify this additionalevidence and, therefore, submitted that I should ignore the two affidavits. I have, therefore, not taken those supplemental affidavits intoconsideration in arriving at my decision. [37] The materials filed by Mr. McLean on the application are unusual.

The materials consist of what appear to be writtensubmissions which were not styled as an affidavit but which seem to have been sworn to. In large part, the submissions are merely arestatement of the lengthy written submissions he made to the Parole Board. In addition, Mr. McLean filed a 3 paragraph affidavit whichcontains objective evidence regarding the nature of his convictions, his age and the sentence he received. All of this information wasbefore the Parole Board, although not in affidavit form. Mr.

McLean is a self-represented litigant who has done his best to put togetherthe material which he felt was needed to argue his motion for habeas corpus. There is very little new information in his materials. Iconclude that fairness dictates that I consider all of the materials which he provided to me. 3) Requirements for habeas corpus [38] Both the common law and s 10(

c) of the Charter maintain and uphold the evolving purposes of the writ of habeas corpus:Mission Institution v Khela 2014 SCC 24 , [2014] SCJ 24 (“Khela”), at para 29. The remedy is important because it protectstwo fundamental rights: (1) the right to liberty of the person and the right not to be deprived of that right except in accordance with theprinciples of fundamental justice (s 7 of the Charter); and (2) the right not to be arbitrarily detained or imprisoned (s 9 of the Charter):May, at para 22. [39] The basic question on a habeas corpus application is whether the decision to detain was made lawfully.

A decision to detainis unlawful if the detention is unlawful, if the decision maker lacks jurisdiction to detain the applicant or if there has been a breach ofprocedural fairness. The lawfulness of a detention may also require an assessment of the reasonableness of the decision: Khela, at para52. [40] In Khela, at para 30, the Supreme Court discussed the requirements which an applicant for habeas corpus must satisfy to beentitled to relief: To be successful, an application for habeas corpus must satisfy the following criteria. First, the applicant must establish that he or shehas been deprived of liberty.

Once a deprivation of liberty is proven, the applicant must raise a legitimate ground upon which to questionits legality.

If the applicant has raised such a ground, the onus shifts to the respondent authorities to show that the deprivation of libertywas lawful (Farbey, Sharpe and Atrill, at pp 84-85; May, at paras 71 and 74). [41] The requirement that the applicant has been deprived of his liberty can be met where the applicant’s “residual liberty” hasbeen reduced by, for example, administrative segregation, confinement in a special handling unit, a transfer to a higher securityinstitution or a change to his parole status: Khela, at para 34; D.G. v Bowden Institute (Warden) 2015 ABQB 373, at para 2. [42] Mr.

McLean has established that the revocation of his day parole has reduced his “residual liberty”. He has therefore met thefirst requirement. [43] In relation to the second requirement, Mr. McLean has raised several grounds on which to challenge the legality of therevocation of parole. He refers to the decision of Justice Pentelechuk in D.G., where the Parole Board’s decision to revoke parole wasfound to have been based on information obtained through a “warrantless and arbitrary search which was not authorized by statute” andwhich could not be condoned by the Court.

This called into question the reliability and persuasiveness of the information and an Orderin the nature of habeas corpus was granted. Mr. McLean argues that his situation is identical to that in D.G.. [44] While there are significant differences between Mr. McLean’s situation and that of D.G., which I will discuss later in these

reasons, I am satisfied that there are sufficient similarities to conclude that Mr. McLean has raised a “legitimate ground” on which tochallenge the reasonableness of the decision to detain. [45] Thus, I conclude that Mr. McLean has met both requirements described by Khela and therefore, the Respondents have theburden to show that the revocation of Mr. McLean’s day parole was reasonable, and thus lawful, and that it was procedurally fair. 4) Standard of Review [46] The Parole Board and the Appeal Division have specific expertise in relation to decisions involving risk assessment associatedwith granting and revoking parole for federal prisoners. Their decisions involve the

interpretation of the Corrections and ConditionalRelease Act, SC 1992, c 20 (“CCRA”) and their powers involve the exercise of discretion. Pursuant to s 107(1)(

b) of the CCRA, theParole Board has the “absolute discretion” to revoke parole.

Thus, considerable deference should be given to their fact finding and totheir application of the governing statute to those facts: Fernandez v Canada (Attorney General), 2011 FC 275 , [2011] FCJ320, at para 20; Korn v Canada (Attorney General), [2014] FCJ 611, at paras 14 to 15; R v Mitchell, (SCC), [1976] 2SCR 570, at pp 593 to 594; Najar v Canada (Attorney General) [2015] FCJ 1498, at para 41. [47] Therefore, the standard of review in relation to decisions granting and revoking parole (including day parole) by the ParoleBoard is one of “reasonableness”.

This standard of review was explained in Khela, at para 73. To be reasonable, the decision must fallwithin “a range of possible acceptable outcomes which are defensible in respect of the facts and law” (Dunsmuir v New Brunswick 2008SCC 9 , [2008] SCJ 9, at para 47). The decision must contain “justification, transparency and intelligibility”. To be lawful, thereasons for and record of the decision must “in fact or in principle support the conclusion reached” (Newfoundland and LabradorNurses’ Union v.

Newfoundland and Labrador (Treasury Board) 2011 SCC 62 , [2011] SCC 62, [2011] 3 SCR 708, at para12). [48] The standard of review in relation to whether the Parole Board and the Appeal Division complied with the duty of proceduralfairness is “correctness”: Khela, at para 79. B. Issue 1 – Use of Information Obtained via Warrantless Search [49] While not expressed in precisely these terms, the thrust of Mr.

McLean’s argument is that the search of his room and the cellphone was undertaken without any judicial authorization and therefore should be considered to be presumptively unreasonable: Hunter vSoutham (SCC), [1984] 2 SCR 145. Furthermore, while s 66 of the CCRA permits frisk and property searches on areasonable suspicion standard, the Parole Board was not provided with any information to suggest that CSC or its agents had anysuspicion that he had breached any of his parole conditions and thus the search was not authorized by statute. [50] On this basis, Mr.

McLean argues that the search was conducted in violation of his s 8 Charter rights and that the ParoleBoard was in error in relying on the information contained in the text messages which were discovered in the unlawful search. [51] The Respondent argues that even if the search of Mr. McLean’s cell phone resulted in a violation of his Charter rights, thiswould not preclude the Parole Board from relying on the information discovered in the search, provided that the information was“reliable and persuasive”.

The Respondent argues that the Supreme Court of Canada in Mooring v Canada (National Parole Board) (SCC), [1996] 1 SCR 75 has conclusively determined this point. [52] In Mooring, police were conducting a break and enter investigation during which they found Mr. Mooring (a federal prisonerwho was on parole) in a motor vehicle with another man. A search of the vehicle resulted in the seizure of a handgun and break-in tools. Mr. Mooring was charged with several offences arising from the items seized. Before trial, a stay of proceedings was entered becausethe Crown felt that the search violated Mr.

Mooring’s rights under s 8 of the Charter and that the tainted evidence would have beenexcluded by the trial judge pursuant to s 24(2) of the Charter. In the meantime, the parole officer recommended to the Parole Boardthat Mr. Mooring’s parole be revoked. The Parole Board did revoke the parole and after an unsuccessful appeal to the Appeal Division,Mr.

Mooring applied for habeas corpus. [53] The issue before the Supreme Court of Canada was whether the Parole Board was a “court of competent jurisdiction” for thepurpose of excluding evidence pursuant to s 24(2) of the Charter. [54] Justice Sopinka, writing for the majority of the Court, concluded that the Parole Board was not a “court of competentjurisdiction” and had no ability to exclude evidence from a post suspension hearing merely because the evidence had been collected inviolation of Charter rights.

He arrived at this conclusion for several reasons including: • The Parole Board does not meet the three-tiered test in R v Mills (SCC), [1986] 1 SCR 863 primarilybecause the statutory authority under which it operates, the CCRA, does not empower the Parole Board to make the order sought; • The Parole Board acts in neither a judicial nor a quasi-judicial manner; • Counsel have a limited function at the Parole Board hearing which is inquisitorial rather than adversarial; • The traditional rules of proof and evidence do not apply; • The Parole Board members do not regard themselves as being constrained by the formal rules of criminal law respecting o the admissibility of evidence,

o the presumption of innocence or o the necessity for proof beyond a reasonable doubt. • The Parole Board’s enabling statute, the CCRA , makes it clear that the Board lacks the ability or jurisdiction to exclude relevant evidence. [ 55 ] At paras 26 to 27, Justice Sopinka summarized as follows: ... Clearly then, the Parole Board does not hear and assess evidence, but instead acts on information. The Parole Board acts in an inquisitorial capacity without contending parties -- the state's interests are not represented by counsel, and the parolee is not faced with a formal "case to meet".

From a practical perspective, neither the Board itself nor the proceedings in which it engages have been designed to engage in the balancing of factors that s 24(2) demands. In the risk assessment function of the Board, the factors which predominate are those which concern the protection of society. The protection of the accused to ensure a fair trial and maintain the repute of the administration of justice which weighs so heavily in the application of s 24(2) is overborne by the overriding societal interest.

In assessing the risk to society, the emphasis is on ensuring that all reliable information is considered provided it has not been obtained improperly... [ 56 ] Mooring therefore makes it clear that the Parole Board is not a “court of competent jurisdiction” and has no ability to exclude evidence pursuant to s 24(2) of the Charter on the basis of the violation of a parolee’s Charter rights. However, that does not end the analysis. The Parole Board has a duty to act fairly when making decisions regarding the rights of federal prisoners.

The duty of fairness may in some circumstances require the Parole Board to ignore or place little or no weight on information which has been gathered through a process which violates the rights of the prisoner. Justice Sopinka explained the duty to act fairly at para 36: What is the content of the Board's "duty to act fairly"? The content of the duty of fairness varies according to the structure and the function of the board or tribunal in question. In the parole context, the Parole Board must ensure that the information upon which it acts is reliable and persuasive .

To take an extreme example, information extracted by torture could not be considered reliable by the Board. It would be manifestly unfair for the Board to act on this kind of information. As a result, the Board would be under a duty to exclude such information, whether or not the information was relevant to the decision.

Wherever information or "evidence" is presented to the Board, the Board must make a determination concerning the source of that information, and decide whether or not it would be fair to allow the information to affect the Board's decision. (emphasis added) [ 57 ] D.G. is an illustration of a case in which the Parole Board, when revoking day parole, considered information which had been seized through a “warrantless and arbitrary search which was not authorized by statute”.

The information consisted of a history of searches on a computer indicating that the computer had been used to access pornography on the internet. Justice Pentelechuk noted that when granting day parole, the Parole Board had not imposed a condition prohibiting access to pornography, thus calling into question the relevance of the pornography to the issue of the risk of re-offending. Equally importantly, the parolee denied accessing pornography with the computer and, since no steps were taken to preserve information seized from the computer, it was impossible to test the reliability of the parolee’s information.

The Court concluded that the use of this information by the Parole Board to revoke day parole was not fair to the parolee and did not meet the test of being “reliable and persuasive”. For that reason, the decision of the Parole Board was unreasonable. [ 58 ] In the present case the Parole Board used information from the text messages to revoke Mr. McLean’s day parole. It is not necessary for me to speculate as to whether a Court of competent jurisdiction would have considered the search of the cell phone to have been a breach of Mr.

McLean’s rights under s 8 of the Charter or whether the balancing process undertaken through a s 24(2) analysis would have resulted in the exclusion of the evidence. Instead, it is necessary to consider whether the source of the text messages was “reliable and persuasive” and whether it was fair to permit the content of the text messages to have affected the decision of the Parole Board. [ 59 ] The information considered by the Parole Board regarding the text messages did not consist of simply a

summary of what had been viewed by CSC or by their agent at the time of the search. Instead, Mr. McLean provided actual copies of the text messages directly to the Parole Board as part of his February 10, 2016 written submissions (see Certified Record of Proceedings pp 65 to 221). In those submissions, Mr. McLean commented upon and explained many of the individual text messages. At no point in the proceedings before the Parole Board, the Appeal Division or before this Court did Mr. McLean argue that the text messages were not sent and received by him.

Nor did he argue that the text messages were inaccurate in some way. Rather, he has always focused on the argument that the text messages were merely an innocent exchange of communication with Nicole. I conclude that the text messages which were relied on by the Parole Board had a very high level of reliability. [ 60 ] In terms of persuasiveness, many of the text messages clearly demonstrate Mr. McLean’s infatuation with Nicole and his desire to reunite with her. For example: • “I love you so fucking much Nicole I want you to understand that. You’re everything to me more than you ever were.

I thought about you everyday in prison and fell more and more in love with you the more I thought about things that happened with a sober clear mind” (Certified Record of Proceedings p 111). • “I am going to spend a lot more time pleasing you. I was too high before to appreciate as you deserve to be it won’t happen again” (Certified Record of Proceedings p 115); • “I will take care of you. I plan to be in this for the long haul Nicole I want to marry you” (Certified Record of Proceedings p 119);

• “You’re all I think about all I care about. The ONLY person I am attracted to. Other girls do nothing for me.” (CertifiedRecord of Proceedings p 130). • “please please please please please talk to me Nicole please I just got out of jail I miss you I’m lonely I need you in mylife” (Certified Record of Proceedings p 136) [61] In addition, there are several sexually charges text messages which clearly showed Mr. McLean’s interest in Nicole. [62] To be fair to Mr. McLean, many of the text messages do demonstrate a commitment to the terms of his day parole.

Forexample, in response to a text message from Nicole in which she asked for help and implored Mr. McLean to “do something don’t sitthere in fucking halfway house telling me to do better I need help”, Mr. McLean responded: • “I have to stay in half way house for six months that is what day parole is and that’s what the parole board gave me dayparole for six months” (Certified Record of Proceedings p 135). [63] At this stage of the analysis it is not a question of trying to reach a conclusion based on the totality of the exchange of textmessages.

Instead, at this stage it is only a question of assessing whether the text messages contain persuasive information which wouldassist the Parole Board to come to a proper conclusion regarding the status of Mr.

McLean’s day parole. [64] In this regard it is important to remember that the paramount responsibility of the Parole Board is the “protection of society”(CCRA s 100.1) and that the Parole Board is mandated to consider whether the offender will “present an undue risk to society” by re-offending before the expiration of the sentence (CCRA s 135(5)(a)). [65] It is also important to consider the background which the Parole Board was faced with. The information available to theParole Board was that Mr.

McLean had previously been a productive member of society but then became involved in very serious drugaddiction issues and had been manipulated by women, including Nicole, an escort who had her own serious drug addiction issues. Thiswas the context in which the bank robberies occurred. It is also the context within which the Parole Board determined what “specialconditions” it would impose in relation to Mr.

McLean’s day parole. [66] When considering the statutory provisions under which the Parole Board operates and the factual context within which theParole Board was asked to consider a recommendation to revoke day parole, I conclude that the text messages were highly persuasive tothe issue of whether Mr.

McLean presented an undue risk of re-connecting with Nicole, reverting to a lifestyle involving drug addictionand committing further offences which would pose a risk to society. [67] I conclude that the text messages are both “reliable” and “persuasive”, thus meeting the specific elements of the fairnessanalysis mandated by Mooring. More broadly on the issue of fairness, an offender who is serving a federal sentence has a diminishedexpectation of privacy. Even while on parole, these individuals are monitored to ensure compliance with the conditions of their parole. Mr.

McLean recognized this in his lengthy written submissions to the Parole Board, dated February 10, 2016. He explained that hisbrother tried to persuade him to use an app on his cell phone to hide text messages from the scrutiny of persons searching the phone. Headvised the Parole Board that he did not use any of these types of apps because “I had nothing to hide”. (Certified Record of Proceedingp 85). Mr. McLean also delivered a complete series of the text messages to the Parole Board. He had not been asked to make thisdisclosure and he had no obligation to do so.

In these circumstances, the Parole Board did not unfairly rely on the text messages whichMr. McLean had himself produced to the Board. [68] This is a much different case than the extreme example given by Justice Sopinka in Mooring at para 36 of a confessionextracted by torture with the result that it would be unreliable and thus not properly considered by the Parole Board.

It is also muchdifferent than the information accumulated in D.G. which was lacking in both reliability and persuasiveness because the prisoner had notbeen prohibited from accessing pornography and, in any event, he denied accessing pornography. [69] As a result, I conclude that the text messages were properly considered by the Parole Board. C. Issue 2 – Other Alleged Charter Violations [70] In Mr. McLean’s written submissions, he referred to several additional alleged Charter violations.

Specifically, he referred tobreaches of his rights under s 2(b) (freedom of expression), s 2(d) (freedom of association), s 6(2)(b) (mobility rights) and s 15 (equalityrights) of the Charter. He did not explain the basis of the alleged breaches and did not pursue this argument in his oral submissions. [71] At its highest level, his argument must be that he was entitled to express himself in whatever way he wanted via text messageor otherwise; he was free to associate with Nicole if he wished to do so; and he was free to travel to Calgary to be with Nicole if hewished to do so. [72] Mr.

McLean did not explain what, if any relief the Parole Board should have given, even assuming there was any merit to theposition regarding the breaches. If the remedy was the exclusion of evidence, then the issue cannot stand on any higher ground than hisassertions with respect to the alleged s 8 Charter breach described above. [73] Mr. McLean was an offender serving a federal sentence. His sentence continued even though he was on day parole.

While onparole serving the sentence, his liberty remained “significantly curtailed” and his right to privacy was diminished, even though hecontinued to have many Charter protected interests. See Ouellette v Canada (Attorney General), 2013 FCA 54, at para 31 citing R vCAM, (SCC), [1996] 1 SCR 500, at para 62. [74] When he was released on day parole he became subject to several “special conditions” which he specifically acknowledged inwriting (Certified Record of Proceedings p 254). The Parole Board had the jurisdiction to impose those conditions. Mr.

McLean wasadvised of the right to appeal in relation to the decision which granted parole and was also advised of his right to apply for relief from

any of the “special conditions” (Certified Record of Proceedings p 258). He did neither. The imposition of the “special conditions” wasreasonable and did not constitute Charter violations. [75] There is simply no merit to the argument in relation to these alleged Charter violations. D. Issue 3 - Was the Decision of the Parole Board Unreasonable and thusUnlawful? [76] Mr.

McLean argues that even if the Parole Board properly considered the text messages when reaching its decision regardingthe revocation of his day parole, the decision was unlawful. [77] No issue was raised regarding the jurisdiction of the Parole Board to grant and revoke Mr. Mclean’s parole and none wasapparent from a review of the CCRA and the Certified Record of Proceedings. Therefore, the lawfulness of the decision of the ParoleBoard is challenged by Mr. McLean based on unreasonableness (Khela, at para 52). He also raises a challenge based on lack ofprocedural fairness which will be dealt with in the next

section of these reasons. [78] The reasonableness of the decision to revoke Mr. McLean’s parole can only be assessed after considering the statutoryprovisions which govern and guide the Parole Board when making its decisions.

Some of those statutory provisions can be summarizedas follows: • CCRA s 100.1 - the protection of society is the paramount consideration which the Parole Board must take into consideration; • CCRA s 101(a) – in making its decisions the Parole Board must take into consideration “all relevant available information” fromseveral sources including assessments provided by correctional authorities; • CCRA s 107(1)(b) – the Parole Board has “exclusive jurisdiction and absolute discretion” to terminate or revoke parole; • CCRA s 135(5)(a)(ii) – the Parole Board must consider recommendations for revocation of parole and must revoke parole if it “issatisfied that the offender will, by reoffending before the expiration of their sentence according to law, present an undue risk to society”. [79] From a review of the CCRA, it is apparent that the Parole Board is mandated to review all relevant material information andmake its decision regarding whether an offender’s parole should be revoked by assessing the risk which the offender then presents tosociety, specifically with respect to the potential for reoffending within the time remaining to be served on his sentence. [80] Against this backdrop, Mr.

McLean challenges the reasonableness of the decision of the Parole Board essentially on groundswhich can be summarized as follows: 1) He was not involved in a sexual or any other relationship with Nicole while on day parole; he never met with her while onday parole and he did not speak to her while on day parole.

Thus, he contends that he did not breach any of the “special conditions” andit was unreasonable for the Parole Board to revoke his day parole on this basis; 2) A fair and reasonable reading of the text messages demonstrates that he was attempting to comply with his obligationswhile on parole; 3) He is a low risk to re-offend as demonstrated by the comments of a member of the Calgary Police Service and the supportwhich he has received from this police officer; 4) Many of the documents relied on by the Parole Board in reaching its decision contain errors.

He argues that when thisinformation is corrected it should be clear that the revocation of parole was unreasonable. [81] As noted earlier in these reasons, to be reasonable, the decision must fall within “a range of possible acceptable outcomeswhich are defensible in respect of the facts and law” (Dunsmuir v New Brunswick, 2008 SCC 9, at para 47). The decision must contain“justification, transparency and intelligibility”.

To be lawful, the reasons for and record of the decision must “in fact or in principlesupport the conclusion reached” (Newfoundland and Labrador Nurses’ Union v Newfoundland and Labrador (Treasury Board), 2011SCC 62 , [2011] SCJ 62, [2011] 3 SCR 708, at para 12). [82] It is also important to remember that the decision of the Parole Board must be approached “as an organic whole, without a lineby line treasure hunt for error (Newfoundland and Labrador Nurses’ Union v Newfoundland and Labrador (Treasury Board), 2011SCC 62 , [2011] SCJ 62, at para 14).

In the absence of finding that the decision, based on the record, is outside the range ofreasonable outcomes, the decision should not be disturbed”: Communications, Energy and Paperworkers Union of Canada, Local 30 vIrving Pulp & Paper, Ltd, 2013 SCC 34 , [2013] SCJ 34, at para 54. [83] Mr. McLean’s assertion that the “special conditions” of his day parole were not breached, even if true, does not necessarilyrender the decision of the Parole Board unreasonable.

A breach of one or more parole conditions has significance primarily when paroleis suspended pursuant to s 135(1), as it was in this case when the parole officer, Tina Brochu, suspended his day parole on January 11,2016. However, when the suspension of parole is reviewed by the Parole Board pursuant to s 135(5) much broader considerationsapply.

In that review an alleged breach of parole conditions is only one of many factors which the Parole Board must consider,specifically for the purpose of determining whether the parolee presents an “undue risk to society”. [84] At the Parole Board hearing which resulted in the revocation of parole, Mr. McLean’s arguments were fully considered andwere summarized in the Parole Board reasons (see Certified Record of Proceedings p 007). Despite Mr. McLean’s argument that he wasnot in a relationship with Nicole, the Parole Board concluded otherwise (Certified Record of Proceedings p 008).

There is nothing aboutthis conclusion which is unreasonable based upon the extensive exchange of text messages between Mr. McLean and Nicole.

[ 85 ] There is some support for Mr. McLean’s argument that the text messages demonstrate his attempts to comply with the conditions of his parole. However, this does not affect the reasonableness of the decision of the Parole Board. The favourable text messages must be viewed as being simply one part of a much larger picture. Some of the text messages give rise to very real concerns. For example, on December 17, 2015 (approximately 3 weeks before the suspension of parole) Nicole sent a text message asking whether Mr. McLean could join her in Calgary for Christmas.

His response was: That is just what I was thinking How could I swing that Do you still have a car I applied for my first weekend pass to go to my brothers but maybe I could sneak down to see you for a day or two. (emphasis added) [ 86 ] This is a clear indication that Mr. McLean was attempting to form a plan to visit Nicole in a way which would deceive the parole authorities. His explanation that the plan was qualified by the words “maybe I could” and that it was clear that neither he nor Nicole had a car to follow through with the plan is simply not compelling.

The text messages present a very clear indication of Mr. McLean’s willingness to violate the conditions of his parole. The parole authorities do not need to wait for these types of plans to come to fruition before taking action. Here the parole officer felt that there was a breach of the “special conditions” and suspended the parole. The Parole Board agreed and concluded that Mr. McLean presented an undue risk to society. As a result, parole was revoked. [ 87 ] The fact that a member of the Calgary Police Service was supportive of Mr.

McLean’s original parole application (Certified Record of Proceedings p 278) and the fact that this police officer may have felt that Mr. McLean was a low risk of re-offending is a factor which the Parole Board could take into account, and likely did take into account when the decision was made to grant day parole. However, circumstances changed after day parole was granted when Mr. McLean began communicating with Nicole.

Thus, the earlier input from the Calgary Police Service was of very limited value when the Parole Board was considering the updated information which specifically addressed the risk to society which Mr. McLean presented. [ 88 ] Mr. McLean argues that the Parole Board based its decision to revoke bail on a series of documents which “are full of errors, lies, gross exaggerations, misquotes and mistakes”. He argues that when the true facts are considered it was unreasonable to revoke day parole. [ 89 ] When Mr.

McLean’s submissions are distilled it is apparent that the errors he refers to relate to his assertion that he did tell CSC staff that he was texting with Nicole and, most importantly that the documentation which suggests that Nicole was “his downfall” and that he committed the bank robberies as a means to fund her drug habit is completely false. [ 90 ] The suggestion that Mr. McLean told CSC staff about the text messages with Nicole is simply not supported by the evidence which was before the Parole Board. It is only the bald statement by Mr. McLean which supports this version of the facts. Mr.

McLean’s statement must be viewed in light of the nature of the communications in the text messages. It is completely counterintuitive to believe that Mr. McLean would make disclosure to CSC staff that, for example, he was planning to “sneak” away to Calgary for Christmas with Nicole. Furthermore, according to Mr. McLean’s written submissions he asked CSC staff to come forward to acknowledge that they were aware of the text messages and they refused to do so. What is clear is that the parole officer Tina Brochu was not aware of the text messages.

What is also clear is that the Parole Board felt that the text messages were of concern specifically with respect to Mr. McLean’s risk to society. The decision to revoke parole was made on that basis. [ 91 ] The alleged errors with respect to Nicole being his “downfall” are detailed in Mr. McLean’s written submissions. Essentially, he argues that long before he was with Nicole he was addicted to OxyContin which had been legally prescribed to deal with injuries suffered in a motor vehicle accident and which he later bought on the street. He progressed from an addiction to OxyContin to becoming an IV heroin user.

He acknowledges full responsibility for this and suggests that his own drug problems were the downfall which ultimately culminated in the bank robberies for which he alone accepts full responsibility. He insists that the bank robberies were not done to support Nicole’s drug habit. These assertions must be considered in light of the evidence in the Certified Record of Proceedings, a sample of which is as follows:

a) As part of the process leading to the guilty plea, Mr. McLean was assessed at the Southern Alberta Forensic Psychiatry Centre. In the report which flowed from that assessment, the psychiatrist recorded Mr. McLean’s explanation for the bank robberies. In part the psychiatrist said: • “He blamed his last common law partner Nicole who, according to him, convinced him to engage in criminal behaviour in order to provide her with money”. • “He said she was a prostitute/escort, which continued throughout her relationship with Mr. McLean. He met Nicole when seeking an escort date.

He said that he felt that there was “instant sexual chemistry” between them”. • “He also reported sexual arousal from being choked by Nicole during sexual intimacy. He acknowledged his sexual attraction to

Nicole and their “kinky” sexual activities overpowered his common sense and all sense of practicality. He described being so sexually aroused by her that he would do almost anything for her and she used same to manipulate him. Mr. McLean believes he has lost his house, job, friends and now his freedom (committing of offences), in order to provide money to Nicole and no matter how much he gave her.” (Certified Record of Proceedings pp 535 to 536)

b) As part of the intake process the Calgary Urban Parole Office prepared a Preliminary Assessment Report dated September 6, 2013. That report records Mr. McLean’s version of the offence in the following way: • “The subject shared his robberies occurred in support of his ex-girlfriend’s drug addiction. He shared that he had met Nicole Claxton 3 years ago while she worked as an escort.” • “The subject shared in order to support Nicole’s drug addiction and some of his own he committed three robberies against banks. He claims that he entered the bank, handed the teller a note demanding money and after receiving some money he fled the area.” (Certified Record of Proceedings pp 503 to 504)

c) On his “Application for Parole” dated July 24, 2014, Mr. McLean explained that he planned to move to Edmonton to “get a fresh start” and to “get away from ex-friends & ex-girlfriends that are still involved in drug lifestyle”.

d) As part of the process leading to the hearing, CSC prepared an updated Correctional Plan dated August 27, 2015 which describe several outstanding risk factors which included: • McLean has been able to demonstrate that he can abide by conditions and rules placed on him while in the institution. McLean’s criminal behaviour is directly linked to him involving himself in dysfunctional relationships with high risk individuals. McLean’s low self-esteem allows himself to become manipulated by the woman he forms a relationship with.

In his index offence he states that he was trying to “keep up” with his escort girlfriend to the amount of drugs he was using. With his drug usage, it exhausted his financial resources and led him to committing his offences. He believes women are his downfall and it is believed that McLean needs to monitor this area closely.”

e) A psychological assessment dated August 10, 2015 was also completed as part of the process leading to the Parole Board hearing. In that assessment, the psychologist came to the following conclusions: • “... Mr. McLean’s difficulty with relationships and substance use hold the highest significance to risk of reoffending; therefore, monitoring of these two areas will be important.” • “If Mr. McLean were to commit a similar offence as his index offences in the future, it would likely be the result of substance use and/or being in a volatile relationship in which his partner also abuses substances.” (Certified Record of Proceedings pp 340 to 341)

f) Mr. McLean spoke at the Parole Board hearing on October 8, 2015 and was assisted by his brother. The decision of the Parole Board includes the following references: • “You were associating with individuals involved in criminal activity and the drug subculture during the commission of your offences.

As such, it is imperative that you ensure you associate with pro-social individuals only during your conditional release as this is considered a risk factor for you” • “You involved yourself in dysfunctional relationships which led to your addiction to drugs and willingness to commit crime to sustain these addictions. As such, the area of relationships and friendships with females must be monitored closely to ensure you do not engage in these types of situations in the future.” (Certified Record of Proceedings p 265)

g) In a psychological report prepared after Mr. McLean had been released on day parole the psychologist said: • “During his initial session of November 5, 2015, Mr. McLean explained the circumstances that had led to his incarceration. He noted that he had a tendency to become involved in volatile relationships with controlling women; he indicated that the reason for his crime was to please his prior girlfriend. Through discussion it became apparent that Mr.

McLean had difficulty asserting himself, managing his emotions, and tolerating distress and these areas became the focus of therapy.” (Certified Record of Proceedings p 235) [ 92 ] The information in the Certified Record of Proceedings is all very consistent and leads to several overwhelming conclusions including the following: • Nicole was an escort with drug addiction issues; • Mr. McLean had a relationship with Nicole which was volatile; • Mr.

McLean was controlled by Nicole and that the bank robberies were committed to fund drug addictions. [ 93 ] The information which supports these conclusions is contained in documents, many of which were prepared by professional sources who relied on information provided by Mr. McLean himself. The reports were prepared over a two year period beginning prior

to his guilty plea. Additional reports were prepared during his intake process, while he was in Drumheller, when he applied for parole, while he was being assessed for parole, and after he was released on day parole. [ 94 ] Mr.

McLean is not being genuine when he now tries to distance himself from the comments which he made to the authorities who were attempting to assist with his rehabilitation and reintegration into society. [ 95 ] I conclude that there was nothing unreasonable about the Parole Board relying on this material when it made its decision to revoke parole. [ 96 ] The written reasons, dated April 12, 2016, make it clear that the Parole Board was concerned that Mr. McLean was pursuing an “unhealthy and stressful relationship” which was of a “high risk” nature. The Parole Board was also concerned with Mr.

McLean’s issues with respect to emotional management and decision making. Taking all of these factors into consideration the Parole Board found that Mr. McLean’s “risk became undue”. For this reason, day parole was revoked. [ 97 ] When the reasons of the Parole Board are considered in conjunction with the information in the Certified Record of Proceedings, including the content of the text messages, I conclude that revocation of day parole was within a range of possible acceptable outcomes. The decision of the Parole Board was not unreasonable and was therefore not unlawful. E.

Issue 4 – Did the Parole Board Breach its Duty of Procedural Fairness? [ 98 ] Mr. McLean argues that the duty of procedural fairness was violated in three ways. First, at the oral hearing a Parole Board member on more than one occasion called a “time out” using a hand gesture that is commonly seen at sporting events. Second, Mr. McLean says that he has never been provided with the “New Matrix Scoring” to “explain the increase or whatever may be changed or his or her security rating”. Third, Mr.

McLean argues that his security classification has been changed from the minimum security he was assigned in Drumheller to the medium security which he is now in at Bowden Institution. [ 99 ] In relation to the first argument, how an administrative tribunal calls an adjournment is of little consequence. Mr. McLean suggests that a Parole Board member gestured with her hands to signal a break. This may not be the most professional manner of calling an adjournment but nothing flows from that. Mr. McLean was given ample opportunity to make his submissions both in writing and orally. He was not impeded in any way.

This argument has no merit. [ 100 ] The second argument in relation to the absence of “New Matrix Scoring” is founded on the decision of the Supreme Court in Khela in which a transfer decision was made in relation to an inmate from a medium security institution to a maximum security institution. In making that decision the Warden failed to disclose information about the reliability of the sources, the specific statements made by the sources, and the scoring matrix that informed Mr. Khela’s security classification.

These failures to disclose resulted in the Court concluding that the transfer decision was procedurally unfair. [ 101 ] The Supreme Court in May , at paras 90 to 93 and in Khela , at para 83 discussed the disclosure which is required by the Parole Board to meet the duty of procedural fairness. The Court made it clear that disclosure in the context of decisions made by the Parole Board need not meet the same standards as is required in Stinchcombe disclosure.

Instead, the Parole Board must disclose all material taken into account in reaching its decision but need not disclose evidence in their possession which was not taken into consideration. [ 102 ] Mr. McLean concedes that there was no scoring matrix prepared in this case and thus there is no suggestion that such a document was relied on by the Parole Board in revoking parole. Mr. McLean was provided with a comprehensive set of materials which the Parole Board did rely on.

He signed a “Procedural Safeguard Declaration” acknowledging his receipt of the information (Certified Record of Proceedings at p 54). [ 103 ] The absence of a “New Scoring Matrix” does not give rise to a lack of procedural fairness. [ 104 ] The third argument made by Mr. McLean in relation to the duty of procedural fairness is that he is now in medium security institution in Bowden whereas before he was granted day parole he was in minimum security in Drumheller. This is not an issue of procedural fairness. It was not an issue that was raised at the Parole Board hearing or at the Appeal Division.

It was raised as an afterthought at the conclusion of oral submissions before me. There may be other remedies or forums to deal with this issue but this is not the place to deal with it at first instance. [ 105 ] The Parole Board hearing was one which Mr. McLean attended in person. He received appropriate disclosure. He made submissions directly to the Parole Board. He was assisted by his brother who also made submissions. There is simply nothing on the Record which suggests any procedural unfairness. I conclude that the proceedings before the Parole Board were procedurally fair. F.

Was the Decision of the Appeal Division Unreasonable and thus Unlawful? [ 106 ] Mr. McLean exercised his right to appeal to the Appeal Division. The grounds on which an appeal can be brought are outlined in s 147 of the CCRA . Mr. McLean brought his appeal on the following grounds: • Duty to act fairly • Reasonableness of the Decision • Erroneous and/or incomplete information [ 107 ] Those grounds were considered in the decision of the Appeal Division dated August 3, 2016. In arriving at its decision, the

Appeal Division reviewed the audio recording of the proceedings before the Parole Board. The Appeal Division concluded that the Parole Board proceeded based on reliable and persuasive information and concluded that the decision was reasonable. Thus, the appeal was dismissed. [ 108 ] Mr. McLean did not raise any specific issues in relation to the proceedings before the Appeal Division. Instead, his grounds for seeking relief on this motion are founded on his concerns in relation to the Parole Board. [ 109 ] I conclude that the decision of the Appeal Division was reasonable and therefore not unlawful. G.

Recalculation of Statutory Release Date [ 110 ] Mr. McLean seeks supplemental relief on this motion in connection with the recalculation by CSC staff of his Statutory Release date to November 6, 2017 from January 24, 2017. He seeks an order requiring the reinstatement of original Statutory Release date. [ 111 ] The Respondents argues that on a habeas corpus motion my sole jurisdiction is to determine that the detention is unlawful and then rule on a motion for discharge: Khela , at para 39 . [ 112 ] Even if I had jurisdiction to deal with Mr. McLean’s request, I would decline to exercise that jurisdiction.

The calculation of Statutory Release dates is governed by the CCRA . In circumstances where parole has been revoked, s 127(5)(

a) governs the calculation. It mandates that the Statutory Release date is the day on which the offender has served 2/3 of the unexpired portion of his sentence after the revocation of parole. This seems to be precisely what the CSC has done. I see no basis on which to conclude that there was any error in the application of s 127(5)(a). I. CONCLUSON [ 113 ] On application for habeas corpus , with certiorari in aid, Mr. McLean has established that he has been deprived of liberty. He was also successful in raising a legitimate ground upon which to question the legality of his detention.

As a result, the burden shifted to the Respondents to show that the deprivation of liberty was lawful. The Respondents have met that onus. I conclude that the decisions of the Parole Board and the Appeal Division to revoke Mr. McLean’s day parole were reasonable and thus lawful. I also conclude that the process followed was procedurally fair. [ 114 ] As a result, I dismiss Mr. McLean’s application. Heard on the 16 th day of November, 2016. Dated at the City of Edmonton, Alberta this 30 th day of November, 2016. John T. Henderson J.C.Q.B.A. Appearances: Mr. Peter Charles McLean Self-Represented Litigant Ms.

Darcie E. Charlton Department of Justice Canada for the Respondents