JOHN CHARLES CAMPBELL Applicant v. ATTORNEY GENERAL OF CANADA, 2013 FC 803

Date: 20130719 Docket: T-340-11 Citation: 2013 FC 803 Ottawa , Ontario , July 19, 2013 PRESENT: The Honourable Madam Justice Heneghan BETWEEN: JOHN CHARLES CAMPBELL Applicant and ATTORNEY GENERAL OF CANADA Respondent REASONS FOR JUDGMENT AND JUDGMENT INTRODUCTION [ 1 ] Mr. John Charles Campbell (the “Applicant”) seeks judicial review of the decision dated January 17, 2011, in which the National Parole Board Appeal Division (the “Appeal Division”) dismissed his appeal of the decision of the National Parole Board (the “Parole Board”), denying his request for day parole and full parole.

In this proceeding, the Attorney General of Canada (the “Respondent”) represents the Appeal Division, pursuant to Rule 303(2) of the Federal Court Rules , SOR/98-106 (“the Rules”). BACKGROUND [ 2 ] The Applicant is an inmate of Mission Institute, Mission, British Columbia. He is serving a life sentence for a conviction of second-degree murder in connection with the death of a former girlfriend in 1981.

[ 3 ] In 1994, the Applicant was granted day parole. In 1997, he obtained full parole. The parole was revoked in 1999 because the Applicant had been involved in a series of incidents of inappropriate sexual advances toward women.

He has remained in prison since the revocation of his parole on December 2, 1999. [ 4 ] As well as the conviction for second-degree murder, the Applicant has a history of sexually-aggressive behaviour toward women, including a 1963 conviction of assault against a woman, an incident of alleged rape or attempted rape in which no charge was laid in 1968, complaints in 1972 from three women that the Applicant had been aggressive in seduction attempts, a report in 1973 from a woman who was frightened by his sexual advances, and an incident in 1979 when he threatened to harm or kill a nurse. [ 5 ] The Applicant has undergone several psychiatric and psychological assessments.

In 2001, two psychologists found that he was at a moderate risk to violently reoffend. A similar finding was made in 2004 by a psychiatrist. In 2006, yet another psychologist found that although the Applicant had not been convicted as a sex offender, he met the criteria for sex-offender treatment programming (“SOP”). Although his conviction was not for a sexual offence, this psychologist observed that there was evidence that the offence was sexually motivated. [ 6 ] The Applicant did not participate in SOP, even though such treatment had been recommended by Correctional Services of Canada (“CSC”) clinicians.

He refused to follow such a program because he did not consider himself to be a sexual offender. In a report dated February 7, 2009, Dr. Robert Ley, a clinical psychologist who had assessed the Applicant over a number of years, expressed the opinion that the Applicant did not need an “institutionally-based SOP”. He also expressed the opinion that the Applicant is at “low to low-moderate risk for future sexual offending.” [ 7 ] The Applicant is now aged 76. He says that he is suffering physical limitations, including a reduced libido.

His wife confirmed this. [ 8 ] The Parole Board, in its decision of May 14, 2010, reviewed the Applicant’s history of criminal activity. It noted that his sentence had begun on December 8, 1981, with eligibility for full parole set at 10 years. It noted the risk factors contributing to the Applicant’s criminal behaviour and noted that actuarial risk estimates showed a moderate risk of reoffending.

It noted the Applicant’s parole history, including the events that led to revocation of full parole in December 1999. [ 9 ] The Parole Board also reviewed the various psychological and psychiatric assessments that the Applicant underwent over a number of years. A tendency of inappropriate sexual behaviour towards women was a continuing concern.

The Parole Board referenced its decision in February 2009 to deny day and full parole; “aggressive sexuality” was identified as a concern when that decision was made. [ 10 ] The Parole Board, in its May 2010 decision, referred to the psychological assessment dated February 7, 2009, by Dr. Ley.

He had previously assessed the Applicant in 1987, 1989 and 2001. [ 11 ] The Parole Board noted that submissions were made by a lawyer assistant on behalf of the Applicant and summarized those submissions, including the argument that the Applicant was no longer a threat to society and that the Applicant was willing to agree to a condition not to have contact with women, in the absence of another adult. [ 12 ] The Parole Board acknowledged that the Applicant had gained insight into the relationship between substance abuse and his offending behaviour.

At the same time it commented upon the fact that the Applicant had not followed “recent correctional programming” to deal with his aggression toward women.

It concluded that the risk had not been mitigated by “age, declining health, medication or counselling to the extent that your risk can safely be managed on day or full parole.” It also noted that the Applicant did not present a viable release plan since he had not been accepted at a community residential facility (“CRF”) and release to his home would be premature. [ 13 ] Upon appeal to the Appeal Division, the Applicant argued that the hearing before the Parole Board was unfair because that Board took into account the fact that he had not been accepted into a CRF.

He also argued that the CRFs should have had access to Dr. Ley’s report. He also submitted that the Parole Board failed to give enough weight to the positive aspects of his history and erred by not considering the report prepared by Dr. Ley that disputed the characterization of the Applicant as a sex offender. Finally, he argued that the Parole Board failed to consider the least restrictive means of controlling the risk of reoffending.

[14] The Appeal Division, after summarizing the Applicant’s submissions, described the criteria for granting parole, first that theApplicant’s release does not pose a risk to society and second, that his release will contribute to the protection of society by facilitatingre-entry to society as a law-abiding citizen. [15] The Appeal Division found that the Applicant had not raised any grounds which would cause it to intervene in the ParoleBoard’s decision.

The Appeal Division reviewed the Parole Board’s reasons, including the Parole Board’s consideration of theApplicant’s murder conviction, his history of problematic behaviour with women and the revocation of his parole due to inappropriatesexual behaviour. [16] The Appeal Division also stated that the Parole Board had noted that the Applicant had acknowledged his history ofaggression against women and had made some gains in understanding his substance abuse, but that the Case Management Team did notsupport his release since the Applicant did not want to participate in SOP. [17] The Appeal Division determined that it was reasonable for the Parole Board to find that the negative aspects of theApplicant’s file outweighed the positive aspects.

It concluded that the Parole Board had considered the psychological assessment ofFebruary 7, 2009, as provided by the Applicant, and that the Parole Board was mandated to reach its own conclusions on risk, withoutbeing bound by the opinions of others. [18] The Appeal Division highlighted its role, that it is not to reassess risk but to assess the reasonableness of the decision of theParole Board. The Appeal Division found that the Parole Board had given sufficient reasons for its decision and that the decision wasreasonable. Accordingly, the Appeal Division dismissed the appeal. SUBMISSIONS

i) The Applicant [19] In this application for judicial review, the Applicant seeks an Order setting aside the decision of the Appeal Division. Heargues that the Appeal Division erred by failing to respect subsection 101(

d) of the Corrections and Conditional Release Act, S.C. 1992,c. 20, (the “Act”), that is “to make the least restrictive determination consistent with the protection of society.” He submits that theParole Board ignored his offer to be subject to a condition not to have any contact with women. [20] Further, the Applicant argues that he is entitled to the duty of fairness and that the duty “includes a fair opportunity to obtainparole.” He submits that he did not receive such a fair chance because the Parole Board unfairly weighed the negative factors over thepositive ones, including the failure to make Dr.

Ley’s February 2009 report available to potential CRFs. He says that those facilities mayhave ultimately rejected him but they did not have the opportunity to make an informed decision about him because they did not have allthe information about him. [21] Finally, the Applicant argues that the Appeal Division’s decision is unreasonable, according to the test set out in Dunsmuir v.New Brunswick, 2008 SCC 9 , [2008] 1 S.C.R. 190. ii) The Respondent [22] The Respondent submits that the Appeal Division made a reasonable decision and committed no reviewable error.

He submitsthat the Appeal Division is mandated to intervene only if the decision of the Parole Board is unreasonable. DISCUSSION AND DISPOSITION [23] The first matter to be addressed is the applicable standard of review. Questions of procedural fairness are reviewable on thestandard of correctness and findings of fact are reviewable on the standard of reasonableness; see the decision in Dunsmuir, supra, atparas. 51, 129.

Reasonableness is concerned with the existence of justification, transparency and intelligibility within the decision-making process, as well as with whether the decision falls within a range of possible, acceptable outcomes which are defensible in

respect of the facts and law. [24] The role of the Appeal Division, as a reviewing body, was discussed in the decision of Cartier v. Canada (Attorney General),2002 FCA 384 , [2003] 2 F.C. 317 (F.C.A.) at paras. 8-9 where the Federal Court of Appeal said the following: Paragraph 147(5)(

a) appears to indicate that Parliament intended to give priority to the Board’s decision, in short to deny statutoryrelease once that decision can reasonably be supported in law and fact. The Board is entitled to err, if the error is reasonable. The AppealDivision only intervenes if the error of law or fact is unreasonable. I would be inclined to think that an error of law by the Board as to theextent to which it must be “satisfied” of the risk of release -- an error [page327] which is alleged in the case at bar -- is an unreasonableerror by definition as it affects the Board’s very function.

If the applicable standard of review is that of reasonableness when the Appeal Division reverses the Board’s decision, it seems unlikelythat Parliament intended the standard to be different when the Appeal Division affirms it. I feel that, though awkwardly, Parliament inparagraph 147(5)(

a) was only ensuring that the Appeal Division would at all times be guided by the standard of reasonableness. [25] It is not to make independent factual findings or risk assessments, but to review the decision of the Parole Board upon astandard of reasonableness. According to the decision in Aney v. Canada (Attorney General) (2005), 2005 FC 182 , 270 F.T.R.262 at para. 38, the Parole Board is the authorized finder of fact and has the power to weigh the evidence before it and to draw its ownconclusion from the evidence. [26] The authority of the Parole Board is set out in

section 102 and paragraph 107(1)(

a) of the Act which provide as follow: 102. The Board or a provincialparole board may grant parole toan offender if, in its opinion, (

a) the offender will not, byreoffending, present an unduerisk to society before theexpiration according to law ofthe sentence the offender isserving; and (

b) the release of the offenderwill contribute to the protectionof society by facilitating thereintegration of the offender intosociety as a law-abiding citizen. 102. La Commission et lescommissions provincialespeuvent autoriser la libérationconditionnelle si elles sont d’avisqu’une récidive du délinquantavant l’expiration légale de lapeine qu’il purge ne présenterapas un risque inacceptable pour lasociété et que cette libérationcontribuera à la protection decelle-ci en favorisant saréinsertion sociale en tant quecitoyen respectueux des lois. 107.

(1) Subject to this Act, thePrisons and Reformatories Act,the International Transfer ofOffenders Act, the NationalDefence Act, the Crimes AgainstHumanity and War Crimes Actand the Criminal Code, theBoard has exclusive jurisdictionand absolute discretion (

a) to grant parole to an offender; 107.

(1) Sous réserve de laprésente loi, de la

Loi sur lesprisons et les maisons decorrection, de la

Loi sur letransfèrement international desdélinquants, de la

Loi sur ladéfense nationale, de la

Loi surles crimes contre l’humanité etles crimes de guerre et du Codecriminel, la Commission a toutecompétence et latitude pour :

a) accorder une libérationconditionnelle; [27] The purpose of Parole is described in

section 100 of the Act as follows:

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. 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. [ 28 ] The powers of the Appeal Division are set out in subsections 147(4) and (5) of the Act as follow: 147.

(4) The Appeal Division, on the completion of a review of a decision appealed from, may (

a) affirm the decision; (

b) affirm the decision but order a further review of the case by the Board on a date earlier than the date otherwise provided for the next review; (

c) order a new review of the case by the Board and order the continuation of the decision pending the review; or (

d) reverse, cancel or vary the decision.

(5) The Appeal Division shall not render a decision under subsection (4) that results in the immediate release of an offender from imprisonment unless it is satisfied that (

a) the decision appealed from cannot reasonably be supported in law, under the applicable policies of the Board, or on the basis of the information available to the Board in its review of the case; and (

b) a delay in releasing the offender from imprisonment would be unfair. 147.

(4) Au terme de la révision, la

Section d’appel peut rendre l’une des décisions suivantes :

a) confirmer la décision visée par l’appel;

b) confirmer la décision visée par l’appel, mais ordonner un réexamen du cas avant la date normalement prévue pour le prochain examen;

c) ordonner un réexamen du cas et ordonner que la décision reste en vigueur malgré la tenue du nouvel examen;

d) infirmer ou modifier la décision visée par l’appel.

(5) Si sa décision entraîne la libération immédiate du délinquant, la

Section d’appel doit être convaincue, à la fois, que :

a) la décision visée par l’appel ne pouvait raisonnablement être fondée en droit, en vertu d’une politique de la Commission ou sur les renseignements dont celle- ci disposait au moment de l’examen du cas;

b) le retard apporté à la libération du délinquant serait inéquitable. [ 29 ] The sole question before this Court is whether the Appeal Division’s decision, dismissing the Applicant’s appeal, is

reasonable. This issue is subject, of course, to respect for procedural fairness. [ 30 ] In my view, the Applicant’s submissions about the lack of a fair hearing before the Parole Board really raises an issue about the manner in which the Board dealt with the evidence. He complains that the Parole Board should have disclosed the more recent report of Dr. Ley to potential CRFs. With respect, the report was part of the evidence before the Parole Board. The Parole Board, not the CRFs, is to weigh relevant evidence.

There was no breach of procedural fairness in the non-disclosure by the Parole Board of the evidence to the CRFs. [ 31 ] In assessing the negative decision of the Appeal Division, this Court must consider the reasonableness of the Parole Board’s ultimate conclusion that the Applicant’s release on either day or full parole would constitute undue risk. In my opinion, the availability of a CRF for the Applicant was only one part of the evidence and factors to be assessed by the Parole Board.

I am not persuaded that the Parole Board committed any reviewable error in the manner in which it considered this factor. [ 32 ] The Applicant also argues that the Parole Board erred in denying his parole on the grounds that he is a sexual offender. [ 33 ] This is incorrect. In my opinion, the basis of the Parole Board’s decision is not that he is a sexual offender, but that he has a documented history, over many years, of aggressive behaviour towards women.

The Board noted a pattern of that behaviour, as well as the Applicant’s failure to participate in SOP or recent correctional programming addressing his violence towards women. [ 34 ] It was not necessary for the Parole Board to find the Applicant to be a sexual offender in order to find that his release on either day or full parole would pose an undue risk to the public. [ 35 ] As noted above, the Act requires the Parole Board to consider public safety in deciding an application for parole. [ 36 ] The Appeal Division was tasked with assessing the reasonableness of the Parole Board’s decision.

It considered all the relevant arguments presented by the Applicant, as well as evidence in the record, including Dr. Ley’s report of February 2009. Its rejection of the Applicant’s appeal, in my opinion, was reasonable. [ 37 ] In the result, the application for judicial review is dismissed. Although the Respondent seeks costs, in the exercise of my discretion pursuant to Rule 400(1) of the Rules , I decline to make any award of costs. JUDGMENT THIS COURT’S JUDGMENT is that this application for judicial review is dismissed, in the exercise of my discretion no order as to costs. “E. Heneghan” Judge

FEDERAL COURT SOLICITORS OF RECORD DOCKET: T-340-11 STYLE OF CAUSE: JOHN CHARLES CAMPBELL v. ATTORNEY GENERAL OF CANADA PLACE OF HEARING: Vancouver, British Columbia DATE OF HEARING: December 11, 2012 REASONS FOR JUDGMENT AND JUDGMENT : HENEGHAN J. DATED: July 19, 2013 APPEARANCES : Tony Zipp FOR THE APPLICANT Jennifer Dagsvik FOR THE RESPONDENT SOLICITORS OF RECORD : Zipp & Company Quesnel, British Columbia FOR THE APPLICANT

William F. Pentney Deputy Attorney General of Canada Vancouver, British Columbia FOR THE RESPONDENT