2013 FC, 2013 FC 1175

Federal Court Cour fédérale Date: 20131119 Docket: T-1720-12 Citation: 2013 FC 1175 Ottawa , Ontario , November 19, 2013 PRESENT: The Honourable Mr.

Justice Russell BETWEEN: NEIL VAN BOEYEN Applicant and ATTORNEY GENERAL OF CANADA Respondent REASONS FOR JUDGMENT AND JUDGMENT INTRODUCTION [ 1 ] This is an application under subsection 18.1 of the Federal Courts Act , RSC 1985, c F-7, for judicial review of the decision of the Parole Board of Canada, Appeal Division [Appeal Board] dated August 7, 2012 that denied the Applicant’s appeal of the Parole Board of Canada’s [PBC] decision to deny him both full parole and day parole.

BACKGROUND [ 2 ] The Applicant has been serving an indeterminate sentence in a federal penitentiary since he was designated as a dangerous offender on May 4, 1990. This sentence followed convictions for several offences, including sexual assault with a weapon, sexual assault, kidnapping and attempted kidnapping, stemming from four separate attacks on female victims ranging in age from 12 to 30.

Counting pre-trial detention, he has been incarcerated since December 7, 1988. [ 3 ] During his incarceration, the only correctional programming in which the Applicant participated up until 2011 was the Offender Substance Abuse Program in 1994 and the Caregiver/Peer Counselling Program in 1999. The Applicant says that he did not

participate in more programs because he was not allowed to enter treatment programs up until 2006. Thereafter, he says he refused to participate because he feared he would be kicked out of the treatment programs and then labelled “untreatable,” since he continued to maintain his innocence. He wanted written assurances that he could participate and successfully complete the programs while maintaining his innocence, and that he would not suffer negative consequences for doing so. [ 4 ] After being told by way of letter dated November 4, 2010 (Van Boeyen Affidavit, Respondent’s Record, Exhibit

B) that he could enrol in the Integrated Correctional Program Model Sex Offender High Intensity Program [ICPM Program] while maintaining his innocence, and that he would not suffer negative consequences for doing so, the Applicant enrolled in and successfully completed the ICPM Program on June 17, 2011. [ 5 ] On December 20, 2011, the Applicant’s Institutional Parole Officer [IPO] completed an Assessment for Decision (A4D) for the purpose of assessing the Applicant’s suitability for full parole and day parole (Van Boeyen Affidavit, Respondent’s Record, Exhibit D).

The Parole Officer acknowledged that the Applicant had successfully completed the ICPM Program, but observed that because the Applicant had not acknowledged guilt for any of his offences that were sexual in nature, all the skills the Applicant acquired through the ICPM Program were obtained in the context of his non-sexual offences. The Parole Officer noted that the sexual offences were the Applicant’s index offences – that is, the offences that resulted in his designation as a dangerous offender – and that the Applicant remained an untreated sexual offender.

The Applicant was rated as presenting a moderate to high risk for general and violent recidivism and a high risk for sexual recidivism. His reintegration potential was rated as low. As such, his case management team [CMT] recommended against day or full parole. [ 6 ] On December 22, 2011, a psychological report was completed for the purposes of the Applicant’s upcoming parole hearing by Dr. Robert Zanatta, a Clinical Psychologist at the Mountain Institution (Van Boeyen Affidavit, Respondent’s Record, Exhibit F).

The report noted that the Applicant had successfully completed the ICPM Program, but that this was in the context of treating his prior lifestyle as a crime cycle and not for any of the sexual offences for which he was convicted. Dr. Zanatta stated that due to the Applicant’s denial of the index sexual offences, a more accurate appraisal of his crime cycle, underlying sexual deviancy, and other risk factors was not possible.

His overall assessment was that the Applicant remained at least a moderate risk to reoffend, despite his advancing age and apparent physical difficulties. [ 7 ] The Applicant took issue with a number of observations in Dr. Zanatta’s report, and wrote a detailed letter seeking changes or clarification. While this letter did not receive a response, it was provided to the PBC at the Applicant’s parole hearing. The PBC Decision [ 8 ] On January 24, 2012, the PBC held a hearing to review the Applicant’s case for day and full parole (Hymander Affidavit, Respondent’s Record, Exhibit A).

At the hearing, the Applicant submitted that because he was convicted and sentenced before the Corrections and Conditional Release Act , SC 1992, c 20 [CCRA] came into force, that law could not be applied to his parole hearing. Rather, he argued, the law governing parole at the time of the offence had to be applied. [ 9 ] The PBC heard submissions related to the Applicant’s programming and his ongoing denial of the index offences, and questioned both the Applicant and his IPO. The Applicant submitted a detailed rebuttal to the psychological report and a relapse prevention plan.

The Applicant requested an opportunity to ask questions of his IPO, which the Board refused. The Applicant’s mother attended the hearing as his assistant and spoke in favour of his release. [ 10 ] The PBC found that the Applicant remained a moderate to high risk to re-offend generally, violently and sexually, despite having completed programming. A particular concern was that the Applicant did not believe a special condition was necessary requiring him not to associate with females of 18 years of age and under unless supervised.

The PBC noted that the Applicant’s improvements in programming were recent, and that he had not had an opportunity to internalize the gains. [ 11 ] The PBC concluded that the Applicant would pose an undue risk if released and denied day and full parole. On May 24, 2012, the Applicant appealed this decision to the Appeal Board. DECISION UNDER REVIEW

[ 12 ] On August 7, 2012, the Appeal Board affirmed the decision of the PBC to deny the Applicant day and full parole. The Applicant’s appeal submissions involved issues of bias, sharing of information, and errors of law. [ 13 ] The Applicant submitted that the PBC displayed bias because he was not allowed to question his Parole Officer, the PBC placed little value on his submissions, and erroneous statements were made about his life.

The Applicant said that the PBC interrupted him and redirected his submissions. [ 14 ] The Appeal Board reviewed the pertinent case law on bias, and noted that an “alleged apprehension of bias must be based on substantial and serious grounds, not mere suspicion.” The Appeal Board reviewed the audio-recording of the hearing, and found that a reasonable and informed person would not conclude that the PBC members had predetermined views or displayed bias.

The members had asked him fair and relevant questions, and had interacted with the Applicant in a professional manner that provided him with a full opportunity to respond to their questions, express his views and present his case. [ 15 ] The Applicant argued that the PBC erred in law and prevented him from making full answer and defence by: denying him an opportunity to introduce relevant case law and to question his IPO; failing to properly consider the manual for the ICPM Program, which he presented as a rebuttal to the view that treatment while maintaining his innocence would not be effective in preventing future sexual offences; and relying on information that was not shared with him in advance, which he claimed was contained in the testimony of his IPO.

The Appeal Board rejected each of these arguments. It found that the Applicant was not unduly refused the opportunity to question his IPO, as the case law established that the PBC is not a judicial or quasi-judicial body. Hearings before the PBC are administrative in nature, with no formal rules of evidence. Based on a review of the audio recording, the Appeal Board found that the IPO’s testimony did not contain information that had not been shared with the Applicant in advance.

It found that the program manual for the ICPM Program was a general information document that did not need to be admitted into the record, as the final report following his completion of the program contained sufficient relevant, reliable and persuasive information to allow the PBC to assess his risk factors following this treatment. [ 16 ] The Applicant also submitted that the PBC had erred by considering a Criminal Profile Report [CPR] compiled in 1990, which he did not remember having seen before, and which he claimed was inaccurate, out of date and unreliable.

The Appeal Board pointed out, however, that this issue was raised by the PBC and the Applicant confirmed that the CPR had been shared with him in 1996. The PBC noted that the document was in the Applicant’s file and that he had options available to him should he wish to challenge its accuracy.

The Applicant confirmed to the PBC that he did not want to postpone the hearing in order to make such a challenge. [ 17 ] The Applicant argued that the PBC did not have jurisdiction to apply the CCRA in the Applicant’s case, and that legislation that was in place at the time the Applicant was sentenced (namely the Parole Act , RSC 1985, c P-2 [ Parole Act ], and the Penitentiaries Act , RSC 1985, c P-5) should have been applied to his case. The Appeal Board determined that there was no merit to this argument and that, consistent with

section 223 of the CCRA, any offender who began his sentence under the former legislation was to be treated as if he had begun his sentence under the CCRA. [ 18 ] The Applicant also argued that it was unreasonable for the PBC to consider him an untreated sex offender. He alleged that the PBC had made a variety of factual errors, and that the PBC’s conclusions were based on incomplete or inaccurate information.

The Appeal Board found no merit to these arguments, and stated that the PBC’s reasons were clearly set out and based on relevant, reliable and persuasive information that was discussed at the hearing and contained in the Applicant’s file. The PBC also specifically discussed the Applicant’s status as a sex offender, and did not conclude that the Applicant was an untreated sex offender. Rather, the PBC noted that he had successfully completed the sex offender program.

The PBC determined that the Applicant’s refusal to admit his guilt was not an impediment to him eventually being granted parole, but found that he had yet to mitigate his risk despite some recent gains. [ 19 ] The Appeal Board considered both the psychological report and the A4D to contain accurate, reliable and persuasive information that was accurately considered by the PBC. The psychological report included statements that the Applicant had previously admitted to his involvement in the index offences, and had offered a plethora of excuses for not participating in treatment programs.

The report and the Applicant’s rebuttal submissions were discussed at the hearing. The PBC considered the reasons the Applicant did not previously want to attend sex offender programming, and his explanations regarding the gains he had made. The PBC also raised the CMT’s position that his sexual behaviour remained unaddressed, and provided an opportunity for the Applicant to respond. [ 20 ] The Appeal Board noted that, according to

section 102 of the CCRA , the criteria for granting parole are that the Applicant’s release does not constitute an undue risk to the public, and that the Applicant’s release will contribute to the protection of society by facilitating his re-entry into the community as a law-abiding citizen. Undue risk is determined based on the likelihood of re-offending,

taking into consideration the nature and severity of the offence. [ 21 ] In conclusion, the Appeal Board found that the PBC came to a decision that was reasonable and well supported, and that weighed positive and negative factors in a fair manner. The PBC had noted its extraordinary responsibility in dealing with an inmate with an indeterminate sentence, and that it had to ensure that his incarceration did not become grossly disproportionate. The Appeal Board affirmed the PBC’s decision, and denied the Applicant full and day parole.

ISSUES [ 22 ] The Applicant has raised numerous issues in this application, but his principal grounds of review are as follows: a. Whether the Appeal Board erred by retrospectively applying the CCRA in rendering the decision; b. Whether the Appeal Board erred by using the label “untreated sex offender” in reference to the Applicant; c. Whether the Appeal Board erred by failing to take into consideration the sentencing judge’s intention in imposing the indeterminate sentence; d.

Whether the Appeal Board committed a breach of procedural fairness by altering the wording of the grounds provided by the Applicant in his written appeal before responding to them; e. Whether the Appeal Board failed to effect service of its Decision upon the Applicant as required by law and within the mandated timeframe. STATUTORY PROVISIONS [ 23 ] The following provisions of the CCRA , as it read on the date of the Applicant’s hearing before the PBC, are applicable to this proceeding: Accuracy, etc., of information 24.

(1) The Service shall take all reasonable steps to ensure that any information about an offender that it uses is as accurate, up to date and complete as possible. Correction of information

(2) Where an offender who has been given access to information by the Service pursuant to subsection 23(2) believes that there is an error or omission therein, (

a) the offender may request the Service to correct that information; Exactitude des renseignements 24.

(1) Le Service est tenu de veiller, dans la mesure du possible, à ce que les renseignements qu’il utilise concernant les délinquants soient à jour, exacts et complets. Correction des renseignements

(2) Le délinquant qui croit que les renseignements auxquels il a eu accès en vertu du paragraphe 23(2) sont erronés ou incomplets peut demander que le Service en effectue la correction; lorsque la demande est refusée, le Service doit faire mention des corrections qui ont été demandées mais non effectuées. […] Objet

[…] Purpose of conditional release 100. The purpose of conditional release is to contribute to the maintenance of a just, peaceful and safe society by means of decisions on the timing and conditions of release that will best facilitate the rehabilitation of offenders and their reintegration into the community as law- abiding citizens. Principles guiding parole boards 101. The principles that shall guide the Board and the provincial parole boards in achieving the purpose of conditional release are (

a) that the protection of society be the paramount consideration in the determination of any case; (

b) that parole boards take into consideration all available information that is relevant to a case, including the stated reasons and recommendations of the sentencing judge, any other information from the trial or the sentencing hearing, information and assessments provided by correctional authorities, and information obtained from victims and the offender; […] Criteria for granting parole 102. The Board or a provincial parole board may grant parole to an offender if, in its opinion, (

a) the offender will not, by reoffending, present an undue 100. La mise en liberté sous condition vise à contribuer au maintien d’une société juste, paisible et sûre en favorisant, par la prise de décisions appropriées quant au moment et aux conditions de leur mise en liberté, la réadaptation et la réinsertion sociale des délinquants en tant que citoyens respectueux des lois. Principes 101. La Commission et les commissions provinciales sont guidées dans l’exécution de leur mandat par les principes qui suivent :

a) la protection de la société est le critère déterminant dans tous les cas;

b) elles doivent tenir compte de toute l’information pertinente disponible, notamment les motifs et les recommandations du juge qui a infligé la peine, les renseignements disponibles lors du procès ou de la détermination de la peine, ceux qui ont été obtenus des victimes et des délinquants, ainsi que les renseignements et évaluations fournis par les autorités correctionnelles; […] Critères 102.

La Commission et les commissions provinciales peuvent autoriser la libération conditionnelle si elles sont d’avis qu’une récidive du délinquant avant l’expiration légale de la peine qu’il purge ne présentera pas un risque inacceptable pour la société et que cette libération contribuera à la protection de celle-ci en favorisant sa réinsertion sociale en tant que

risk to society before the expiration according to law of the sentence the offender is serving; and (

b) the release of the offender will contribute to the protection of society by facilitating the reintegration of the offender into society as a law-abiding citizen. […] Reviews in progress 223. A review of the case of an offender begun under the former Act shall be continued after the commencement day as if it had been begun under this Act. citoyen respectueux des lois. […] Examen des dossiers en instance 223. L’examen des dossiers en instance se poursuit indépendamment de la loi antérieure sous le régime de la présente loi.

STANDARD OF REVIEW [ 24 ] The Supreme Court of Canada in Dunsmuir v New Brunswick , 2008 SCC 9 [ Dunsmuir ] held that a standard of review analysis need not be conducted in every instance. Instead, where the standard of review applicable to a particular question before the court is settled in a satisfactory manner by past jurisprudence, the reviewing court may adopt that standard of review.

Only where this search proves fruitless, or where the relevant precedents appear to be inconsistent with new developments in the common law principles of judicial review, must the reviewing court undertake a consideration of the four factors comprising the standard of review analysis: Agraira v Canada (Minister of Public Safety and Emergency Preparedness) , 2013 SCC 36 at paragraph 48 [ Agraira ] . [ 25 ] Some of the issues which the Applicant brings forward are matters of statutory jurisdiction and

interpretation. The appropriate standard of review for questions of law, including matter of vires , is that of correctness ( Dunsmuir , above; Canada v Canadian Council for Refugees , 2008 FCA 229 ). [ 26 ] Other matters brought forward by the Applicant are matters of procedural fairness.

In Canadian Union of Public Employees (C.U.P.E.) v Ontario (Minister of Labour) , 2003 SCC 29 , the Supreme Court of Canada held at paragraph 100 that it “ is for the courts, not the Minister, to provide the legal answer to procedural fairness questions. ” Further, the Federal Court of Appeal in Sketchley v Canada (Attorney General) , 2005 FCA 404 at paragraph 53 held that the “ procedural fairness element is reviewed as a question of law. No deference is due.

The decision-maker has either complied with the content of the duty of fairness appropriate for the particular circumstances, or has breached this duty.” The standard of review applicable to these issues is correctness. [ 27 ] Other issues raised by the Applicant involve an evaluation of the Board’s factual determinations, which are reviewable on a reasonableness standard ( Fournier v Canada (Attorney General) , 2004 FC 1124 ; Cotterell v Canada (Attorney General) , 2012 FC 302 ).

When reviewing a decision on the standard of reasonableness, the analysis will be concerned with “the existence of justification, transparency and intelligibility within the decision-making process [and also with] whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law.” See Dunsmuir , above, at paragraph 47 , and Canada (Minister of Citizenship and Immigration) v Khosa , 2009 SCC 12 at paragraph 59 .

Put another way, the Court should intervene only if the Decision was unreasonable in the sense that it falls outside the “range of possible, acceptable outcomes which are defensible in respect of the facts and law.”

ARGUMENTS The Applicant [ 28 ] According to the Applicant, it was an error for the Appeal Board to retroactively apply the CCRA to his case. The legislation that was in effect when he was sentenced should have been applied. The Applicant submits that this is a jurisdictional error because there is no transitional provision in the CCRA. [ 29 ] In support of this argument, the Applicant points to Langard v Canada (National Parole Board) , [1993] FCJ No 1168 (QL) (FCTD) [ Langard ] at paragraphs 17-21 : 17 In my view, both the Board and the applicant have given

interpretations to Sections 225. (1) and 139. (1) which they cannot bear. The language of

Section 225. (1) is very clear in my view. It is a substantive transitional provision. Parliament clearly intended that the CCRA would not have retroactive effect and that sentences imposed under the Parole Act regime would, for the purposes of day parole calculations, be treated according to the Parole Act formula. 18 In light of the clear language of the

section and the absence of any qualifying or contrary language elsewhere in the CCRA , I'm of the opinion that

Section 225 . (1) applies to sentences imposed before November 1st, 1992, whether or not there are additional sentences imposed on an offender under the CCRA. The Board erred in law in disregarding

Section 225. (1) in this case and treating the entire 10- year sentence as one imposed under the CCRA and subject only to its formula. 19 Counsel for the Board submitted that

Section 139. (1) was an

interpretation

section and that

Section 15. (2) (

a) of the

Interpretation Act applies. Without deciding whether

Section 139. (1) is an

interpretation section, I have concluded that

Section 15. (2) (

a) is not helpful because, in my view,

Section 225. (1) of the CCRA is evidence of contrary intention. That is that sentences imposed under the Parole Act are not brought under the CCRA formula for the calculation of day parole. 20 I also find that the applicant's position strains the language of Sections 225. (1) and 139. (1).

The applicant's reading of 139. (1) is unreasonable as it unduly expands the operation of the transitional provision by extending it to sentences imposed under the CCRA . 21 As counsel for the Parole Board pointed out, transitional provisions are intended to have a certain finality and should not be read to extend unduly into the future. [ 30 ] The Applicant provided the PBC with the decision in Abel v Edmonton Institution for Women , 2000 ABQB 851 [ Abel ] , which holds as follows: 16 The Gamble decision makes it clear that it is fundamental to any legal system which recognizes the rule of law, that an accused must be tried and punished under the law in force at the time of the offence.

Gamble goes on in interpreting that statement to include parole eligibility as an element of “punishment”. While the Respondents say that those cases that clearly follow that principle all deal with the issue at the time that the trial judge imposes sentence, they do not apply where the provisions of the Corrections and Conditional Release Act affect eligibility for parole. That is a distinction without a material difference.

It is firmly established in our law that the availability of parole is an element that fits within the concept of punishment and so the law that was applicable at the time that the offence occurred should be the law that governs the terms of the accused’s punishment.

As a result I have concluded that it is appropriate for this Court to issue a declaration that the eligibility for parole of this Applicant should be determined by the provisions of the Corrections and Conditional Release Act in effect at the time of the commission of the offence. [ 31 ] By retrospectively applying the CCRA in determining his eligibility for day or full parole, the Applicant argues that the PBC and Appeal Board acted outside their jurisdiction and outside of the laws of Canada: Abel , above; Langard , above; and Le v Canada (Attorney General) , [2001] FCT 156 (FCTD) [ Lee ].

He says that the only parole regime that can properly be applied to his parole determinations, currently and at all times since he was incarcerated, is the Parole Act , RSC 1985, c P-2, as am. by c 35 (2 nd Supp) [ Parole Act ] and the Parole Regulations , SOR/78-428. [ 32 ] The Applicant also says that he was not allowed to introduce relevant jurisprudence on this point into the record while presenting his case before the PBC, and that it was an error for the Appeal Board to state that it was an administrative tribunal and did not need to follow the formal rules of evidence.

The Applicant contends that this jurisprudence was essential to his position, and there is

no provision in the CCRA that gives the PBC or the Appeal Board the power to exclude or prevent the introduction of relevantinformation. He says it was unreasonable for the Appeal Board to conclude that the PBC did not err by disallowing the Applicant topresent it. [33] The Applicant further submits that he has been incarcerated far beyond the time when he should have been paroled, and this isin violation of

section 12 of the Charter. His argument is that the PBC and the Appeal Board failed to tailor his indeterminate sentence tothe circumstances, resulting in cruel and unusual punishment contrary to

section 12 of the Charter (Steele v Mountain Institution, (SCC), [1990] 2 SCR 1385 [Steele]). [34] The Applicant says that the reasoning in Steele applies to his case, because the Appeal Board in denying him paroleimproperly applied the objective stated in

section 100.1 of the CCRA (subsection 101(

a) at the time of the PBC hearing), which makesthe protection of society the paramount consideration for parole determinations. In doing so, it disregarded the criteria that should havebeen applied to his case, as set out in subsection 16(1) of the former Parole Act. He argues that

section 100.1 of the CCRA effectivelyoperates as an override clause that allows the PBC to disregard his liberty and security of the person interests under sections 7 and 12 ofthe Charter in favour of the “protection of society”. [35] He also argues that the Appeal Board should have considered the sentencing judge’s estimated time in custody as an effectivemeans of gauging the duration of time he should have spent in custody under the parole regime that existed when he was sentenced.

Bythis measure, he has suffered cruel and unusual punishment due to the repeated application of the wrong statute to his paroledeterminations over the course of many years. [36] The Applicant refers to the reasoning in Galbraith v Mountain Institution, [1988] BCJ No 2043 (QL) (BCSC) at page 9,which he says should have been applied in his case: The Parole Board must consider specific criteria that are set out in s. 10 of the Parole Act, R.S.C. 1970, c.P-2. That

section reads: “10.

(1) The Board may: (

a) grant parole to an inmate, subject to any terms and conditions it considers desirable, if the Board considers that: (

i) In the case of a grant of parole other than day parole, the inmate has derived the maximum benefit from imprisonment, (ii) The reform and rehabilitation of the inmate will be aided by the grant of parole and; (iii) The release of the inmate on parole would not constitute an undue risk to society;” La Forest J. held that the mandatory review based on the criteria outlined above save the indeterminate term of imprisonment fromviolating s. 12. His Lordship stated on p. 342 that: “While the criteria embodied in s. 10(l)(

a) do not purport to replicate the factual findings required to sentence the offender to anindeterminate term of imprisonment, they do afford a measure of tailoring adequate to save the legislation from violating s. 12. It must beremembered that the offender is being sentenced indeterminately because at the time of sentencing he was found to have a certainpropensity. The sentence is imposed “in lieu of any other sentence” that might have been imposed and, like any other such sentence mustbe served according to its tenor.

The offender is not being sentenced to a term of imprisonment until he is no longer a dangerousoffender. Indeed, s. 695.1 provides that the circumstances of the offender be reviewed for the purpose of determining whether paroleshould be granted and, if so, on what conditions; it does not provide that the label of dangerous offender be removed or altered. Finally,the very words of s. 695.1 of the code and s. 10(l)(

a) of the Parole Act establish an on-going process for rendering the sentence meted outto a dangerous offender, one that accords with his or her specific circumstances.” [37] The Applicant submits that it was unreasonable for the Appeal Board to find that he had not yet mitigated his risk, despiterecent gains. The Applicant went through the high-intensity ICPM program, and successfully completed the program with improvements

in all areas. He received an overall rating of “good,” which is the highest grade available, as the policy amongst facilitators is to leaveroom for improvement. The conclusion that the Applicant had not yet mitigated his risk was central to the Decision, and it wasunreasonable. [38] Further, he says it was unreasonable for the Appeal Board to refer to the Applicant as an “untreated sex offender,” or to statethat he has yet to mitigate his risk despite undergoing treatment, which the Applicant submits is an equivalent phrase.

The Applicant hassuccessfully completed available programming, so he should not be referred to as “untreated.” The Applicant is also not permitted to takethe program again, which leaves him in a position where he will never be considered to be “treated.” In Pinkney v Canada (CorrectionalService), 2001 FCT 1053 (FCTD), the Court ordered that the Correctional Board refrain from using the “psychopath” label arising froma questionable risk assessment. [39] The Applicant says that it was also unreasonable for the Appeal Board not to take into account the statements of thesentencing judge that he expected the Applicant would serve between 5 and 7 years in prison.

The Applicant says that the purpose of theCCRA, as set out in

section 100, and the guiding principles set out in

section 101 require that the sentencing judge’s intentions beconsidered, as indicated by the words in subsection 101(

b) that “parole boards take into consideration all available information that isrelevant to a case, including the stated reasons and recommendations of the sentencing judge”. [40] The Appeal Board also improperly altered the wording of the CCRA when it stated: “Please note that consistent with section223 of the CCRA, any offender who began his sentence under the former Act will be dealt with as if he had begun his sentence underthis Act.” The Applicant points out that

section 223 actually reads: “A review of the case of an offender begun under the former Act shallbe continued after the commencement day as if it had been begun under this Act.” The Applicant says that this constitutes a failure of theAppeal Board to comply with its statutory mandate, and causes it to lose jurisdiction.

The Applicant suggests that as a result of this lossof jurisdiction, all subsequent decisions are invalid, his detention is unlawful, and the Court ought to examine the remedy of habeas corpus: Fraser v Kent Institution, (1997) (BC CA), 167 DLR (4th) 457 (BCCA) [Fraser]. [41] The Applicant also says the Appeal Board failed to fully address the issues raised in his appeal.

Acknowledging the groundsraised does not equate to responding to them, and the failure to do so amounts to a failure to exercise the Appeal Board’s jurisdiction.The Applicant asks the Court to issue a declaration that this was unlawful. [42] The Applicant further argues that having denied him permission to cross examine his IPO, the PBC failed in its duty to ensurehe received a fair hearing by refusing to put questions to the IPO which were raised by the Applicant.

Given the objections raised by theApplicant about the factual accuracy of the information before the PBC, the Board had a duty to at least make a reasonable attempt toascertain whether the information was false or in some way compromised. [43] The Applicant also submits that he did not receive all relevant materials 15 days before the hearing, and that this constituted abreach of procedural fairness: Fraser, above. [44] The Applicant argues that the above-noted breaches of procedural fairness should result in the quashing of the Decision,whether or not they resulted in a substantial miscarriage of justice: Pickard v Mountain Institution (1994), (FC), 75FTR 147 (FCTD).

The Respondent Procedural Fairness [45] The Respondent submits that the Applicant does not have the right to cross-examine at a parole hearing before the PBC or theAppeal Board. Neither body acts in a judicial or quasi-judicial capacity, and the traditional rules of evidence do not apply (Mooring vCanada (National Parole Board), (SCC), [1996] 1 SCR 75 [Mooring] at paragraphs 25-29). [46] The PBC’s alleged failure to accept case law put before it by the Applicant also does not constitute a breach of proceduralfairness. The Appeal Board did not err in concluding that the PBC acted reasonably on this issue.

The PBC did accept a copy of the Abeldecision for their record, and did consider it, but found that it did not apply. Further, even if the PBC had not considered this decision, itwould not be tantamount to a breach of procedural fairness or any other unlawful act. As noted above, the hearing was an administrativeprocess with no formal rules of evidence, and there was no requirement that the PBC interpret and apply jurisprudence. The PBC was

acting in an inquisitorial capacity to determine whether the Applicant would present an undue risk to society if released on parole. [ 47 ] As regards the Applicant’s contention that there was a breach of procedural fairness because he did not receive all relevant materials within the statutory timeframe, this would not have affected the ultimate reasonableness of the Decision, so judicial review should not be granted.

The process does not have to be executed perfectly for it to be fair: Yu v Canada (Attorney General) , 2009 FC 1201 [ Yu ] at paragraphs 28-30 ; Uniboard Surfaces Inc. v Kronotex Fussboden GmbH and Co. , 2006 FCA 398 [ Uniboard Surfaces ] at paragraph 48 . [ 48 ] In this case, there was no omission on the part of the PBC, but rather an administrative delay of nine days in delivering the reasons for its decision to the Applicant. The Applicant had already been informed of the decision to deny him parole at the conclusion of his parole hearing on January 24, 2012.

The Applicant was not prejudiced by this delay in any way ( Yu , above, at paragraph 30 ). The Applicant was able to bring his appeal before the Appeal Board. Jurisdiction [ 49 ] The Applicant states that the Appeal Board’s application of provisions of the CCRA is constitutionally invalid and is a violation of his rights under

section 12 of the Charter , but the Respondent says that the Appeal Board was correct in referring to

section 223 of the CCRA in finding that the CCRA applies as of the commencement date of the Act, which is 1 November 1992. The Appeal Board did not apply the wrong statute: Roxborough v Canada (National Parole Board) , (1994) 80 FTR 26 (FCTD) [ Roxborough ] at paragraphs 37 , 44. [ 50 ] Furthermore, the manner in which the Appeal Board referred to

section 223 of the CCRA did not cause it to lose jurisdiction. The Appeal Board did not modify the language of the CCRA; it simply explained to the Applicant that his sentence, including his parole reviews, is governed by the CCRA, despite the fact that he commenced his sentence under the former legislation. [ 51 ] Even if the Court were to find that the Appeal Board erred in paraphrasing

section 223 of the CCRA , the Respondent submits that this is not a material error. It has no impact on the legal test that was required to be applied in determining whether the Applicant should be granted parole. The CCRA clearly applies to the Applicant. The PBC conducted a full review of the Applicant’s file, heard the Applicant’s submissions and applied the correct legal criteria to determine whether the Applicant’s release would constitute an undue risk to the public: Cartier v Canada (Attorney General) , 2002 FCA 384 [ Cartier ] at paragraphs 29-36 .

Errors of Law [ 52 ] There is no merit to the Applicant’s argument that it was an error for the PBC not to explicitly consider the sentencing judge’s intention in imposing the Applicant’s sentence, the Respondent argues. There is an obligation under subsection 101 (

a) of the CCRA to consider the reasons for the sentence, but there is no obligation to consider a sentencing judge’s “intentions”. [ 53 ] Moreover, a tribunal member is presumed to have considered all the evidence unless the Applicant provides evidence to the contrary: Florea v Canada (Minister of Employment and Immigration) , [1993] FCJ No 598 (FCA) . The Applicant has not demonstrated that the PBC failed to consider the sentencing judge’s reasons for the sentence.

Furthermore, the Applicant did not raise this as an issue before the Appeal Board, so there can be no issue in the Appeal Board failing to consider an issue that was not placed before it. [ 54 ] The Applicant also claims that the Appeal Board failed to respond to the grounds listed in the Applicant’s appeal of the PBC decision. The Applicant, however, has failed to articulate what grounds of appeal the Appeal Board did not address.

Moreover, although the Appeal Board may have summarized some of the grounds of appeal, a review of the Decision makes it clear that the Appeal Board responded to all of the Applicant’s concerns. Reasonableness [ 55 ] The Applicant objects to the use of the term “untreated sex offender,” and says that the Appeal Board erred by failing to recognized that this term is based on unsupported and false information. The Respondent submits that there is no merit to this argument.

[ 56 ] First, the professional opinions included in the Applicant’s file fully take into account his successful completion of the ICPM Program. Second, the Appeal Board is not in a position to second guess the opinions of these experts. The Appeal Board and the PBC are entitled to rely on whatever materials in the Applicant’s file they find to be reliable and persuasive: A.S.R. v Canada (National Parole Board) , 2002 FCT 741 (FCTD) .

Finally, as noted by the Appeal Board, if the Applicant believes that his assessment as an “untreated sex offender” in the psychological report is an error, the proper recourse is to make a request pursuant to subsection 24(2) of the CCRA to correct information that he considers to be erroneous. Charter Rights [ 57 ] The Respondent submits that there is no merit to the Applicant’s argument that he has suffered a breach of his

section 12 Charter rights. The Applicant’s submissions in this respect are based on his erroneous argument that the repealed former legislation applies to his parole review. As outlined above, it is the CCRA that applies to the Applicant’s parole review: Collier v Canada (Attorney General) , 2006 FC 728 [ Collier ] . [ 58 ] Moreover, the application of the CCRA to the Applicant’s parole review did not result in a breach of his

section 12 Charter rights. In the case of someone serving an indeterminate sentence, the offender’s continued incarceration may be found to infringe

section 12 of the Charter if the PBC fails to apply the statutory criteria for parole to the individualized circumstances of the offender’s case: Steele , above, at paragraphs 61-67 ; Bouchard v Canada (National Parole Board) , 2008 FC 248 at paragraphs 42-44 . [ 59 ] In this case, the Appeal Board correctly noted that the PBC considered whether the circumstances of the Applicant’s case were properly addressed to ensure that his continued incarceration had not become grossly disproportionate.

The PBC did a full review of the Applicant’s file, and concluded that the gains he had made were recent and that these gains were not sufficient to mitigate the risk that he may re-offend. The PBC also referenced efforts to accommodate the Applicant’s needs and the progress that he is making in his correctional plan. Thus, the PBC reasonably concluded that the circumstances of the Applicant’s case do not establish a breach of

section 12 of the Charter . Remedy [ 60 ] Should the Court find that the Appeal Board erred in its consideration of the documents referring to the Applicant as an “untreated sex offender,” the Respondent submits that the remedies requested by the Applicant are not appropriate. The appropriate recourse is for the Applicant to pursue a grievance by way of subsection 24(2) of the CCRA . In any event, the psychological report and the A4D are not before this Court for review.

ANALYSIS [ 61 ] The Applicant has made extensive written submissions in this application, some of which are irrelevant to the issues before me and some of which are highly repetitive.

As the Applicant explained in the hearing before me, as a self-represented litigant, he has had to undertake considerable research and self-education so that he now understands far better than he did when he composed his Memorandum of Fact and Law how to frame and argue his points of concern. [ 62 ] By the time of the hearing before me, in fact, I am satisfied that the Applicant had a solid grasp of the relevant issues he raises on review and of the applicable legal principles. He is highly articulate and demonstrated considerable skills as an advocate.

Applicability of CCRA [ 63 ] Underlying the Applicant’s grounds for review is a central allegation that it was an error of law and an excess of jurisdiction for the PBC and the Appeal Division to assess his eligibility for day or full parole under the CCRA . He says that he should have been assessed under the former Parole Act and he relies upon the cases of Steele , Le , Langard and Abel , above, as authority for this proposition. My review of these cases suggests to me that they do not address the issue.

[64] This matter was raised by the Applicant before the Appeal Board which found that, as a consequence of

section 223 of theCCRA, the Applicant’s request for parole was correctly dealt with under the CCRA.

Section 223 reads as follows: 223. A review of the case of anoffender begun under the formerAct shall be continued after thecommencement day as if it hadbeen begun under this Act. 223. L’examen des dossiers eninstance se poursuitindépendamment de la loiantérieure sous le régime de laprésente loi. [65] The Applicant argues that this

section means that the CCRA, insofar as the criteria for assessment are concerned, is notapplicable to his assessment. He says it only applies to the “review of the case,” so that the review will continue under CCRA but will beconducted in accordance with the criteria set forth in the old Parole Act. [66] The Respondent takes the view that the Appeal Division correctly referred the Applicant to

section 223 of the CCRA, and thatRoxborough, above, has settled this issue. [67] The Respondent argues, by analogy with Roxborough, that since the Applicant’s hearing with the PBC took place on January24, 2012, it did not begin under the Parole Act, and therefore “it is the law that existed at the time the [parole hearing] took place whichmust be applied.” The Applicant says that this

interpretation of

section 223 by Justice Teitelbaum in Roxborough has been reversed andsuperseded by the decisions in Steele, Le, Langard and Abel, all above, but he fails to explain how. Overview of Conclusions Regarding Applicability of the CCRA [68] Based upon a review of the relevant jurisprudence, the Court cannot accept the Applicant’s argument that, while the CCRAmay govern the parole review process, it is the criteria set out in subsection 16(1) of the former Parole Act that must govern paroledeterminations in his case.

In coming to this conclusion, I make the following general observations, before coming to a more detaileddiscussion of the relevant case law: • The transitional provisions of the CCRA do not provide for the application of the former Parole Act in the Applicant’scircumstances. They do provide for such application in other specific circumstances (see Langard, above), suggesting that if Parliamenthad intended the Parole Act to apply to the present circumstances, it would have said so; •

Section 223 of the Act, discussed in Roxborough, above and cited by the Respondent in explaining why the CCRA applies, isrelevant here, but only indirectly. The CCRA applies, but not by virtue of

section 223; • The Federal Court of Appeal has recently affirmed, in response to an argument very similar to the Applicant’s argument here, thatit is the criteria set out in the CCRA that apply to offenders sentenced before that Act came into force, at least in the absence of asuccessful constitutional challenge (see Ouellette c Canada (Procureur général), 2013 CAF 54 [Ouellette], discussed below but not citedby the parties); • From a constitutional perspective, the issue of retrospective application must be considered in the context of the specific Charterprovision at issue.

While subsection 11(i) (at issue in Abel, above) is not relevant here, subsection 11(h) (at issue in Whaling v Canada(Attorney General), 2012 BCSC 944, aff’d 2012 BCCA 435, leave to appeal granted [2012] SCCA No 431 [Whaling], discussed belowbut not cited by the parties) could be. Most relevant is

section 12 (discussed in Steele, above and R v Lyons, (SCC),[1987] 2 SCR 309), upon which the Applicant bases his argument about retrospective application of the CCRA; • In the end, it is my view that the constitutional concern that arises is not one of retrospective application, but whether the newcriteria are capable of ensuring that the punishment does not become grossly disproportionate to the crimes committed, contrary tosection 12 of the Charter; • It seems to me that Parliament has raised the bar for parole determinations (at least in the context of indeterminate sentences)

through the enactment of subsection 102(

b) of the CCRA. The Applicant argues that

section 100.1 also raises the bar. Whether this couldresult in grossly disproportionate (and thus cruel and unusual) punishment I discuss below; • If I were to conclude that the CCRA criteria themselves pass constitutional scrutiny under

section 12 (or that the issue has notbeen properly raised), Steele, above, mandates that the Court consider whether the PBC has properly applied those criteria to theindividual case so as to ensure that the punishment does not become cruel and unusual; • It is not clear to me that there is a sufficient record or sufficient argument on point before me to determine whether theapplication of subsection 102(

b) and

section 100.1 of the CCRA to an offender with an indeterminate sentence could result in cruel andunusual punishment contrary to

section 12 of the Charter. Because I have concluded that the punishment of the Applicant personally hasnot reached the level of gross disproportionality, in my view it is not necessary to decide this question; it can be deferred to a proper case. [69] My review of the relevant case law leads me to the following conclusions: • Langard, above, does not assist the Applicant, as it dealt with the

interpretation of a specific transition provision (dealing withday parole eligibility) that is not at issue here. If anything, the existence of that provision supports the Respondent’s position: whereParliament intended parts of the former Parole Act to still apply, it specifically provided for this in the CCRA; • Le, above, dealt with similar facts to Langard in light of subsequent amendments that are not relevant here.

While it dealt brieflywith the issue of retroactivity, the analysis is not of much assistance here: the Court did not decide whether it is acceptable to applyparole eligibility provisions retrospectively; it simply found that what occurred in Le did not amount to a retrospective application of theAct. I come to a similar conclusion regarding the current matter, but for different reasons than those cited in Le; • In Roxborough, above, the Court found that the current provisions of the CCRA applied, essentially because neither thetransitional provisions nor

section 7 of the Charter entitled the applicant to have the former Parole Act apply to him. This is relevant tothe current matter, but Ouellette (discussed below) is more directly on point. Note, too, that in my view

section 223 was not decisive inRoxborough and is not directly applicable here (see discussion below); • Abel, above, and two other cases, which come to the opposite conclusion on the same point (Berenstein v Commission nationaldes liberation conditionnelles, (1996) 111 FTR 231 (FCTD) [Berenstein] and R v Caruna, (ON SC), [2002] OJ No162 (QL) (Ont Sup Ct) [Caruna]), are not directly relevant here because: 1) they dealt with parole eligibility, which is not at issue here;and 2) they dealt with changes to the law that occurred between the offence and sentencing and not (as here) changes to the law aftersentencing.

Thus (although the language in Abel, above, obscures this somewhat), these cases turned on the proper application ofsubsection 11(

i) of the Charter, which is not relevant here; • Steele, above, is relevant to the present case, and must be read in conjunction with Lyons, also above, where the Supreme Courtof Canada found that the parole review process saved the indeterminate sentencing provisions of the Criminal Code from constitutionalinvalidity. In Steele, the Court found that the PBC erred in applying the statutory criteria for parole, resulting in a punishment that wasgrossly disproportionate to the crimes committed and was thus cruel and unusual contrary to

section 12 of the Charter. In my view (seealso Ouellette, above, on this point), Lyons and Steele do not say that the criteria set out in subsection 16(1) of the former Parole Act areconstitutionally mandated. On the other hand, they make it clear that the specific criteria to be applied on parole review are relevant tothe constitutional validity of the indeterminate sentence regime: the criteria must be capable of ensuring that the punishment does notbecome grossly disproportionate. As such, amendments to those criteria are a proper subject for constitutional scrutiny under

section 12of the Charter in relation to the indeterminate sentence regime. In other words, it is my view that the Applicant has at least raised alegitimate constitutional concern; • Ouellette, above, involved an offender sentenced to life in prison who argued, based on Steele, above, that the PBC had toconsider whether he had derived the maximum benefit from imprisonment (one of the criteria under the former Parole Act). The FederalCourt of Appeal found that the applicant misunderstood Steele: that case did not state that the criteria from the former Parole Act wereconstitutionally mandated.

The Court affirmed that, absent a constitutional challenge, it is the criteria for parole set out in CCRA thatapply to individuals serving sentences that were imposed before that Act came into force. However, the Court did not rule out thepossibility of a successful constitutional challenge, and emphasized the unique circumstances of those sentenced to indeterminatesentences; • Whaling, above, is a recent B.C. case where both the trial court and the B.C.

Court of Appeal found to be unconstitutional theretrospective application of amendments to the CCRA that extended the plaintiffs’ parole ineligibility by eliminating accelerated day

parole. The Supreme Court of Canada has just heard an appeal in this case and reserved judgment. The B.C. trial and appeal courts foundthat the retrospective application of the amendments violated subsection 11(

h) of the Charter, because it made the sentence more harshand amounted further punishment. [70] The question this finding from Whaling, above, raises for the present matter is whether a change in the statutory test for parole(as opposed to parole eligibility) can have the same effect. My view is that there is an important difference: parole determinations turn onconsiderations that are not related to the fitness of the sentence (they relate rather to fitness for release).

By contrast, the Court found inWhaling that prior determinations of parole ineligibility really relate to considerations of punishment, at least in part. In view of thisdistinction, retrospective application does not arise here: the CCRA applies current criteria to current circumstances in making paroledeterminations.

Parole review does not relate to punishment for past crimes, but rather involves a determination of whether an applicantis (in the present) fit for release. [71] This analysis suggests to me that whether or not the CCRA criteria can lawfully be applied to parole determinations in theApplicant’s case turns on whether doing so violates

section 12 of the Charter. [72] I will now review the important and relevant cases in more detail. Review of Case Law Regarding “Retrospective Application” of the CCRA [73] In my view, Roxborough, above, does not address circumstances directly analogous to the current case, but it does speak torelevant principles, at least by implication. The transitional provision in question,

section 223 of the Act, is the same one raised in thepresent proceeding. [74] The case involved a prisoner who was granted day parole under the former Parole Act, breached a parole condition on the dayof his release by consuming alcohol, and had his parole suspended and was taken back into custody under the former Parole Act.However, by the time the post-suspension hearing was conducted by the PBC (to determine the longer term implications of his parolebreach), the CCRA had come into force. The old law provided greater scope for leniency than the new law, so Mr.

Roxborough arguedthat he was entitled to have the old law applied on constitutional grounds. He argued that delays in having him transferred back to afederal institution led to delays in his post-suspension hearing, which negatively impacted his liberty interests under

section 7 of theCharter. [75] Justice Teitelbaum reviewed the different types of liberty interest involved in the context of correctional law, as set out inDumas v Leclerc Institute, (SCC), [1986] 2 SCR 459, and was not persuaded that any of them were negatively impacted.Thus,

section 7 of the Charter did not entitle Mr. Roxborough to have his case considered under the Parole Act (paragraph 46). [76] Justice Teitelbaum also found that the fact that the parole suspension occurred under the Parole Act did not mean that the“review” had commenced under that Act. While the language of the judgment (at paragraph 44) obscures this point, on a plain reading ofsection 223, the opposite finding would not have led to the Parole Act being applied. In fact,

section 223 has exactly the opposite import: 223. A review of the case of an offender begun under the former Act shall be continued after the commencement day as if it had beenbegun under this Act. [77] Thus,

section 223 did not have direct application in Roxborough, above (the review at issue had not begun under the ParoleAct), and it has no direct application in this case (the review at issue here did not begin under the Parole Act either). If

section 223 hasrelevance it is by implication: if reviews commenced under the previous Parole Act are to be treated as if they began under the currentAct, surely reviews begun after the CCRA came into force must be conducted in the same manner, as the opposite conclusion would beabsurd. Thus in my view, the Appeal Board in the present case was correct in stating that it is “consistent with”

section 223 to apply theCCRA to the Applicant’s case, though it would not be correct to say that the CCRA applies “by virtue of”

section 223. [78] The real import of Roxborough, above, for the current case, in my view, is the finding that it was the Act in effect at the dateof the hearing that had to be applied (see also Ouellette, above, discussed below). This was so because neither the constitution nor thetransitional provisions of the CCRA entitled the applicant to have the provisions of the former Parole Act applied. This is in contrast toLangard, above, where there was a specific transitional provision that applied to the facts of the case, making certain provisions of the

previous Parole Act applicable. [79] Abel, above, is one of several decisions that have addressed situations where the law regarding parole eligibility has changedbetween the commission of the offence and the date of sentencing. These cases have considered whether subsection 11(

i) of the Charterrequires that the previous (more lenient) parole eligibility provisions be applied, and have come to different conclusions. [80] Subsection 11(

i) of the Charter provides that: 11. Any person charged with anoffence has the right […] (

i) if found guilty of the offenceand if the punishment for theoffence has been varied betweenthe time of commission and thetime of sentencing, to the benefitof the lesser punishment. 11. Tout inculpé a le droit : […]

i) de bénéficier de la peine lamoins sévère, lorsque la peinequi sanctionne l’infraction dont ilest déclaré coupable est modifiéeentre le moment de laperpétration de l’infraction etcelui de la sentence. [81] Abel, above, found at paragraph 16 (relying on R v Gamble, (SCC), [1988] 2 SCR 595 [Gamble]) that paroleineligibility, whether imposed by a judge or by statute, is part of the punishment imposed, and so the more lenient provision (or “the lawthat was applicable at the time that the offence occurred”) must govern.

Two other cases, Berenstein and Caruna, both above, have cometo the opposite conclusion, finding that parole ineligibility imposed by statute affects only the “manner in which a sentence of detentionis to be served” and thus “does not impose a ‘punishment’” within the meaning of subsection 11(

i) of the Charter (Berenstein at 236,quoted with approval in Caruna at paragraph 7). As such, it is the law in force at the time of sentencing that controls “the conditionsunder which a judicial sentence must be served,” including parole ineligibility (Caruna at paragraph 9). [82] Abel, Berenstein and Caruna are not, in my view, directly applicable to the present circumstances, for two reasons. First, thiscase does not relate to parole eligibility (Mr. Van Boeyen is eligible for parole but the PBC has decided not to grant it).

Second, nochange in the law between the commission of the offence and sentencing is at issue here. Rather, it is a change in the law subsequent tosentencing that is at issue. Thus, subsection 11(

i) of the Charter is not relevant, though there could be an argument that subsection 11(h)is relevant if the change in the test for parole amounts to an increase in the “punishment” imposed on the Applicant: see Whalingdiscussed below. [83] Some confusion regarding the basis for the decision in Abel could arise from the language of paragraph 16, which is cited bythe Applicant and appears on the surface to base the outcome not on subsection 11(

i) of the Charter but on the principle stated inGamble, above, that “an accused must be tried and punished under the law in force at the time of the offence.” However, in my view, thatparagraph must be read in conjunction with the preceding one, which makes it clear that the case turns on the proper application ofsubsection 11(i) (see Whaling, above, at paragraph 71, which also adopts this reading of Abel, also above). The relevant paragraphs readas follows: 15 The Respondents referred me to Berenstein v. Commission nationale des liberations conditionnelles (1996) 111 F.T.R. 231.

Inthat case a similar fact situation arose in that the Applicant committed an offence at a time when day parole could be available afterserving one-sixth of the sentence but was sentenced after changes were made to the Act increasing the period of parole ineligibility toone-third of the sentence. The National Parole Board refused to hold a hearing on day parole after he had served one-sixth of the sentenceand the inmate applied for a mandamus to compel the Board to hold a hearing claiming that s. 11(

i) of the Charter of Rights andFreedoms entitled him to the benefit of lesser "punishment". The Court found in dismissing the application that s. 11(1) [sic] of theCharter applied only to the process of indictment, trial and sentencing. It did not apply to the Corrections and Conditional Release Actwhich did not impose "punishment" within the meaning of s. 11(

i) but merely set out how a sentence was to be served. 16 The Gamble decision makes it clear that it is fundamental to any legal system which recognizes the rule of law, that an accusedmust be tried and punished under the law in force at the time of the offence. Gamble goes on in interpreting that statement to includeparole eligibility as an element of "punishment".

While the Respondents say that those cases that clearly follow that principle all dealwith the issue at the time that the trial judge imposes sentence, they do not apply where the provisions of the Corrections andConditional Release Act affect eligibility for parole. That is a distinction without a material difference. It is firmly established in our law

that the availability of parole is an element that fits within the concept of punishment and so the law that was applicable at the time that the offence occurred should be the law that governs the terms of the accused's punishment.

As a result I have concluded that it is appropriate for this Court to issue a declaration that the eligibility for parole of this Applicant should be determined by the provisions of the Corrections and Conditional Release Act in effect at the time of the commission of the offence. [ 84 ] The determinative finding (that parole ineligibility forms part of the punishment) is made in the context of distinguishing the analysis in Berenstein , above, on the proper application of subsection 11(

i) of the Charter . In addition, the principle that “an accused must be tried and punished under the law in force at the time of the offence” was stated in Gamble , above, as a fundamental principle of justice within the context of

section 7 of the Charter , not as a free-standing common law principle (in which case it could be displaced by statue), and it must be understood and applied in the Charter context. This principle was used in Abel , above, to inform the proper application of subsection 11 (i), while in Gamble (discussed below) it was the basis of a successful argument based on

section 7. [ 85 ] Based on the above discussion, Gamble and Abel do not have the effect of preventing the application to the Applicant’s case of statutory criteria for parole that were enacted after he was sentenced. Rather, the application of the new criteria would be prohibited only if it is established that applying the new test would violate the Charter . I believe the recent Federal Court of Appeal decision in Ouellette (discussed below) is conclusive on this point.

See also Whaling (discussed below). [ 86 ] Steele , above, is relied upon heavily by the Applicant but Steele must be understood in conjunction with the Supreme Court of Canada’s prior decision in Lyons , above. In that case, the Supreme Court considered whether the dangerous offender provisions in the Criminal Code (and specifically the provision for an indeterminate sentence) violated sections 7 , 9 , 11 or 12 of the Charter . Particularly relevant to Steele is the Court’s consideration in Lyons of the

section 12 issues. The Court found that

section 12 concerns are heightened in the dangerous offender context, giving parole determinations special constitutional significance: 47 In truth, there is a significant difference between the effect of a

Part XXI [now

Part XXIV] sentence and other, more typical, sentences. When a person is imprisoned for an absolute and determinate period, there is at least the certainty that the incarceration will end at the termination of that period... For the offender undergoing an indeterminate sentence, however, the sole hope of release is parole… [W]hatever the legal nature of the interest in the availability of parole may be in general, it seems to me that, as a factual matter, the availability of parole is not as important a factor in deciding whether a determinate sentence is cruel and unusual as it is in assessing the constitutionality of a

Part XXI [now

Part XXIV] sentence. 48 This is so because in the context of a determinate sentencing scheme the availability of parole represents an additional, superadded protection of the liberty interests of the offender. In the present context, however, it is, subsequent to the actual imposition of the sentence itself, the sole protection [page341] of the dangerous offender's liberty interests. Indeed, from the point of view of the dangerous offender his or her detention is never complete until it is factually complete.

In this sense, each opportunity for parole will appear to the dangerous offender as the sole mechanism for terminating his or her detention, for rendering it certain. Moreover, it is clear that an enlightened inquiry under s. 12 must concern itself, first and foremost, with the way in which the effects of punishment are likely to be experienced.

Seen in this light, therefore, the parole process assumes the utmost significance for it is that process alone that is capable of truly accommodating and tailoring the sentence to fit the circumstances of the individual offender. [Emphasis added] [ 87 ] The Supreme Court of Canada in Lyons , above, found that in the absence of regular individualized review, the dangerous offender provisions would be likely in some cases to result in grossly disproportionate punishment contrary to

section 12 of the Charter , but that the provisions were saved from unconstitutionality by the parole review process itself: 49 In my opinion, if the sentence imposed under

Part XXI was indeterminate, simpliciter, it would be certain, at least occasionally, to result in sentences grossly disproportionate to what individual offenders deserved. However, I believe that the parole process saves the legislation from being successfully challenged under s. 12 , for it ensures that incarceration is imposed for only as long as the circumstances of the individual case require. [Emphasis added] [ 88 ] The Supreme Court in Lyons , above, undertook a careful analysis of the criteria applied to such parole reviews, by virtue of (then) subsection 695.1(1) of the Criminal Code (now subsection 761(1) ) and (then) subsection 10(1)(

a) of the Parole Act , which were the same as the criteria set out in subsection 16(1) of the Parole Act when Mr. Van Boeyen was sentenced as a dangerous offender. While the Supreme Court did not state that these criteria were constitutionally mandated ( see Ouellette , above, discussed below), the Court’s opinion that these criteria were well-suited to the purpose of tailoring indeterminate sentences to the specific circumstances of each case was clearly important to its finding that the parole review process saved the dangerous offender provisions from constitutional

invalidity. Put differently, it cannot be assumed that this process would pass constitutional muster in relation to dangerous offenders regardless of the criteria applied: the criteria were central to the constitutional analysis in Lyons (see paragraphs 50-56 ). At the same time, the Supreme Court observed that the term “grossly proportionate” indicates that Courts should “not hold Parliament to a standard so exacting, at least in the context of

section 12, as to require punishments to be perfectly suited to accommodate the moral nuances of every crime and every offender.” [ 89 ] Against this backdrop, the Court in Steele , above, considered whether the continued imprisonment of a dangerous offender who had been incarcerated for 37 years amounted to cruel and unusual punishment contrary to

section 12 of the Charter . The Court found that the “inordinate length” of Mr. Steele’s incarceration had “long since become grossly disproportionate to the circumstances of this case” (paragraph 79). This was not the result of structural flaws in the scheme governing indeterminate sentences, but due to the failure of the PBC to properly apply the criteria for parole (paragraphs 63, 67).

The Court placed significant emphasis on these criteria, citing Lyons for the proposition that “it is fundamentally important that the Board consider these criteria” and “[i]t is only by a careful consideration and application of these criteria that the indeterminate sentence can be made to fit the circumstances of the individual offender. Doing this will ensure that the dangerous offender sentencing provisions do not violate

section 12 of the Charter ” (at paragraphs 66-67; see also paragraph 83). [ 90 ] In Steele , the PBC had “misapplied or disregarded those criteria over a period of years” (paragraph 67). In particular, the PBC placed undue focus on parole violations (missing curfews and drinking alcohol) that occurred on each occasion that Mr. Steele was released on day parole, which were indicative of minor adjustment issues, “rather than focusing upon the crucial issue of whether granting him parole would constitute an undue risk to society” (paragraph 79).

In consequence, “the parole review process has failed to ensure that Steele’s sentence has been tailored to fit his circumstances” (paragraph 79). The Court found that it was “difficult to find any evidence of acts committed by Steele during the past two decades that would suggest that he remained an undue risk to society” (paragraph 75), and noted that thirteen of sixteen psychiatrists and psychologists who expressed an opinion over the years on whether Mr. Steele should be paroled had recommended some form of parole (paragraph 72).

The Court’s assessment of the case, and of the threshold for similar findings, is reflected in the following paragraphs: 79 In my view the evidence presented demonstrates that the National Parole Board has erred in its application of the criteria set out in s. 16(1)(

a) of the Parole Act. The Board appears to have based its decision to deny parole upon relatively minor and apparently explicable breaches of discipline committed by Steele, rather than focusing upon the crucial issue of whether granting him parole would constitute an undue risk to society. As a result of these errors, the parole review process has failed to ensure that Steele's sentence has been tailored to fit his circumstances.

The inordinate length of his incarceration has long since become grossly disproportionate to the circumstances of this case. 80 It will only be on rare and unique occasions that a court will find a sentence so grossly disproportionate that it violates the provisions of s. 12 of the Charter . The test for determining whether a sentence is disproportionately long is very properly stringent and demanding.

A lesser test would tend to trivialize the Charter . [ 91 ] As in Lyons , the Court in Steele , both above, stopped short of saying that the criteria set out in subsection 16(1) of the former Parole Act were constitutionally mandated, but placed significant emphasis on those criteria in its constitutional analysis.

It also signalled that whether an offender continues to pose an undue risk to society was the “most important factor,” and stated that “[i]f an inmate’s release continues to constitute an undue risk to the public, then his or her detention can be justifiably maintained for a lifetime” (paragraph 71). [ 92 ] It is also notable, in relation to the Applicant’s argument in the present case, that the Supreme Court in Steele applied the law on parole as it existed at the time of the PBC decision under review, not the law as it existed when Mr. Steele’s indeterminate sentence was imposed. Mr.

Steele was sentenced in 1953. At that time, the provision governing parole was subsection 8(

a) of the Parole Act , which did not include risk to the public as a criterion ( see Steele , above, at paras 64-65 ). [ 93 ] Collier , above, like the present case, involved a dangerous offender sentenced to an indeterminate sentence prior to the coming into force of the CCRA . The applicant argued, based on Steele , that his continuing imprisonment amounted to grossly disproportionate punishment contrary to

section 12 of the Charter . [ 94 ] In reviewing the Steele precedent, above, Justice Lemieux noted the repeal and replacement of the former Parole Act (paragraph 34). He seemed to accept that it was the new parole criteria set out in the CCRA that applied (see paragraph 44), including the requirement embodied in sections 101 and 102 of the Act that the PBC must be guided by the protection of society as a paramount consideration in the determination of parole, balanced with making the least restrictive choice (see paragraph 20).

The applicant in that case does not appear to have argued that the provisions of the former Parole Act should have applied, and so there is no discussion on this point.

[95] In Ouellette, above, the Federal Court of Appeal considered the situation of an individual sentenced to life in prison with noeligibility of parole for 25 years. The sentence was imposed in 1989, prior to the coming into force of the CCRA. The Court affirmedthat the criteria governing release on parole were those set out in

section 102 of the CCRA. [96] The Court considered the applicant / appellant’s argument, based on Steele (see paragraph 40), that in order to comply withsection 12 of the Charter, the PBC had to consider whether he had derived the maximum benefit from imprisonment – one of the criteriaset out in subsection 16(1) of the former Parole Act, which does not appear in the CCRA. The Court found that this argumentmisunderstood Steele in two ways.

First, it is important to distinguish between individuals sentenced to life in prison, such as theappellant in that case, and dangerous offenders sentenced to indeterminate sentences. Steele dealt with the latter case, and was notnecessarily relevant in relation to a sentence of life imprisonment. Second, the Court’s analysis in Steele simply reflects the criteria forparole set out in the legislation in force at the time, which have since changed. The Supreme Court of Canada did not say in Steele thatthose specific criteria were constitutionally mandated.

Parliament is free to change these criteria or put new ones in place provided theyconform with the Charter. Since the constitutionality of the new criteria was not challenged, there was no basis for finding that thePBC’s decision was contrary to the Charter or the principles in Steele (see paragraphs 46 – 50). [97] In my view, the analysis in Ouellette, above, is highly relevant to the present case.

First, the Court of Appeal affirmed that,absent a constitutional challenge, it is the criteria for parole set out in the CCRA that apply to individuals currently serving sentences thatwere imposed prior to the coming into force of that Act. Second, the Court did not rule out the possibility that the application of thesecriteria to individuals sentenced prior to 1992 could be challenged on the basis of

section 12 of the Charter. Third, the Court’s analysisof Steele suggests that constitutional scrutiny of those criteria may be particularly appropriate in relation to indeterminate sentences. [98] In Whaling, above, (appeal heard and judgment reserved by the Supreme Court of Canada on October 15, 2013), threeplaintiffs challenged the retrospective application of the Abolition of Early Parole Act, SC 2011, c 11, which amended the CCRA toeliminate accelerated day parole.

According to the law when they were sentenced, these offenders would have been eligible for release toa halfway house after serving one-sixth of their sentences. After the amendments, they would have to serve one-third of their sentences,and would have to go through the normal parole review process rather than the more streamlined parole review process that previouslyapplied to accelerated day parole. The normal parole review process also involved a more onerous test for parole. The plaintiffs arguedthat these changes amounted to additional “punishment” imposed after sentencing, thus violating subsection 11(

h) of the Charter whichprotects offenders who have been punished for their offences from being punished for those same offences again (paragraph 3). Theyalso argued that his violated their rights under

section 7 of the Charter, but this question was not decided by either the trial or appealcourts in light of their conclusions on the subsection 11(

h) issue. [99] Subsection 11(

h) of the Charter reads: 11. Any person charged with anoffence has the right […] (

h) if finally acquitted of theoffence, not to be tried for itagain and, if finally found guiltyand punished for the offence,not to be tried or punished for itagain; 11. Tout inculpé a le droit : […]

h) d’une part de ne pas être jugéde nouveau pour une infractiondont il a été définitivementacquitté, d’autre part de ne pasêtre jugé ni puni de nouveau pourune infraction dont il a étédéfinitivement déclaré coupable etpuni; [100] The Crown argued that the CCRA amendments changed only the manner in which the plaintiffs’ sentences were served, sincethe offenders are still serving their sentence whether incarcerated or out on parole – that is, the amendments affected “sentenceadministration” and not the punishment itself.

The trial Court reviewed Supreme Court of Canada jurisprudence that has drawn adistinction between a criminal sentence and the manner in which it is served (including R v Chaisson, (SCC), [1995] 2SCR 1118; R v Zinck, 2003 SCC 6, [2003] 1 SCR 41; R v CAM, (SCC), [1996] 1 SCR 500; Cunningham v Canada, (SCC), [1993] 2 SCR 143; R v Wust, 2000 SCC 18, [2000] 1 SCR 455), but found that, when closely examined, thesecases show that while “[t]he sentencing and parole regimes have different functions and spheres of responsibility,… they do not exist inseparate watertight compartments” (paragraph 112).

Changes in parole law were capable of increasing the “harshness” of the sentence,which amounts to additional punishment (paragraph 114). Here, the retrospective increase in the period of parole ineligibility was found

to amount to additional punishment, contrary to s

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