ARLÈNE GALLONE Applicant v. THE ATTORNEY, 2015 FC 608

Date: 20150508 Docket: T-882-14 Citation: 2015 FC 608 [UNREVISED ENGLISH CERTIFIED TRANSLATION] Ottawa, Ontario, May 8, 2015 PRESENT: The Honourable Madam Justice Tremblay-Lamer BETWEEN: ARLÈNE GALLONE Applicant and THE ATTORNEY GENERAL OF CANADA Respondent JUDGMENT AND REASONS [ 1 ] The applicant is challenging the lawfulness of a decision of the Parole Board of Canada [PBC] recommending a laying of information charging her with an offence under

section 753.3 of the Criminal Code , RSC 1985, c C-46. I. Facts [ 2 ] The applicant is a 22-year old woman who pleaded guilty to charges of robbery, criminal harassment, assaulting a peace officer and breach of conditions on June 22, 2012, for which she received a sentence of ten months and fifteen days’ imprisonment plus a long term supervision order (LTSO) for a six-year period.

The applicant has been subject to the LTSO since the end of her incarceration, namely, since January 18, 2013; the LTSO came with a number of conditions, including residing at a Community Correctional Centre or a Community Residential Facility for a period of 180 days, refraining from consuming or possessing alcohol or drugs, not communicating with people who have a criminal record or who are involved in criminal activities, and following all recommended psychiatric treatment.

On May 24, 2013, the PBC added another condition: to seek or remain employed or pursue academic upgrading. [ 3 ] Since January 18, 2013, community supervision of the applicant was suspended on three occasions, which resulted in additional periods of incarceration for her. The first two suspensions occurred between February 1 and May 1, 2013, and between June 7 and September 4, 2013.

The last suspension occurred on November 25, 2013, and due to new criminal charges, the applicant was incarcerated until the PBC decision in January 2015. [ 4 ] After the suspension on November 25, 2013, counsel for the applicant filed written representations with the PBC and requested that it hold a hearing in order for the PBC to be able to better assess the behaviour and intellectual capacities of the applicant and her explanations with regard to the incidents having led to the suspension; the request was not granted.

As with the previous two suspensions, the PBC made its decision on the basis of the record, without holding a hearing. [ 5 ] On January 31, 2014, the PBC recommended the filing of a charge under

section 753.3 of the Criminal Code . In its decision, the PBC noted that there was sufficient information in the record for it to make a well-informed decision, even without holding a hearing. The PBC considered the applicant’s criminal history, her psychiatric and psychological assessments, the comments of the applicant’s case management team and parole supervisor, the applicant’s behaviour since the beginning of the community supervision, the applicant’s submissions and her post-suspension interview.

Despite the case management team’s recommendation that the suspension be cancelled, the PBC found that the applicant’s behaviour over the past months demonstrated that she knowingly breached her conditions and that she presented a high risk of recidivism, and as a result the PBC did not cancel the suspension and instead recommended the filing of a criminal charge. II. Issues and standard of review [ 6 ] This case raises the following issues: 1. Is this application moot? If so, should the Court exercise its discretion to hear the matter? 2.

If so, did the PBC breach procedural fairness and the principles of natural justice by refusing to hear the applicant viva voce ? [ 7 ] Questions of procedural fairness are reviewable on a standard of correctness ( Dunsmuir v New Brunswick , 2008 SCC 9 ; Canada (Citizenship and Immigration) v Khosa , 2009 SCC 12 ). III. Analysis A. Mootness of the application

[8] The respondent submits that the application has been rendered moot. Indeed, recent documents support this claim becausethe applicant was released and her LTSO conditions, which are not part of this judicial review, were determined by the most recentdecision of the PBC, dated January 16, 2015. I share this view.

As the Supreme Court of Canada pointed out in Borowski v Canada(Attorney General), (SCC), [1989] 1 SCR 342 [Borowski], if, subsequent to the introduction of the action orproceeding, events occur which affect the relationship of the parties so that no present live controversy exists which affects the rights ofthe parties, the case is said to be moot. [9] Such is the case here, as the Court cannot provide any remedy. Should the Court exercise its discretion to hear the matter?

Ibelieve it should, in accordance with the principles set out in Borowski (see also Kippax v Canada (Citizenship and Immigration), 2014FC 429 at para 7). Indeed, the questions raised in this matter will continue to be raised during the upcoming reviews by the PBC of theconditions of supervision, or, if necessary, during a review subsequent to a suspension of parole, both for the applicant and for otherindividuals in similar situations.

In this regard, the Supreme Court in Borowski affirmed that: [A]n expenditure of judicial resources is considered warranted in cases which although moot are of a recurring nature but brief duration.In order to ensure that an important question which might independently evade review be heard by the court, the mootness doctrine is notapplied strictly. [at p. 360] B. Did the PBC breach procedural fairness by refusing to hear the applicantviva voce? [10] With respect to the holding of a hearing, a person subject to a long term supervision order is deemed to be an offender underthe Act (section 99.1 of the Act).

Subsections 140(1) and (2) of the Act set out the circumstances under which the PBC must hold ahearing and those under which it has discretion to decide whether to hold a hearing: 140.

(1) The Board shall conduct the reviewof the case of an offender by way of ahearing, conducted in whichever of the twoofficial languages of Canada is requested bythe offender, unless the offender waives theright to a hearing in writing or refuses toattend the hearing, in the following classes ofcases: 140.

(1) La Commission tient une audience,dans la langue officielle du Canada quechoisit le délinquant, dans les cas suivants,sauf si le délinquant a renoncé par écrit à sondroit à une audience ou refuse d’être présent : (

a) the first review for day parole pursuant tosubsection 122(1), except in respect of anoffender serving a sentence of less than twoyears;

a) le premier examen du cas qui suit lademande de semi-liberté présentée en vertudu paragraphe 122(1), sauf dans le cas d’unepeine d’emprisonnement de moins de deuxans; (

b) the first review for full parole undersubsection 123(1) and subsequent reviewsunder subsection 123(5) or (5.1);

b) l’examen prévu au paragraphe 123(1) etchaque réexamen prévu en vertu desparagraphes 123(5) et (5.1); (

c) a review conducted pursuant to section129 or subsection 130(1) or 131(1);

c) les examens ou réexamens prévus àl’article 129 et aux paragraphes 130(1) et131(1); (

d) a review following a cancellation ofparole; and

d) les examens qui suivent l’annulation de lalibération conditionnelle; (

e) any review of a class specified in theregulations.

e) les autres examens prévus par règlement.

(2) The Board may elect to conduct a reviewof the case of an offender by way of a hearingin any case not referred to in subsection (1).

(2) La Commission peut décider de tenir uneaudience dans les autres cas non visés auparagraphe (1). [11] Prior to the legislative amendments brought about by

section 527 of the Jobs, Growth and Long-term Prosperity Act, SC2012, c 19, paragraph 140(1)(

d) of the Act read as follows: (

d) a review following a suspension,cancellation, termination or revocation ofparole or following a suspension, terminationor revocation of statutory release; and

d) les examens qui suivent, le cas échéant, lasuspension, l’annulation, la cessation ou larévocation de la libération conditionnelle oud’office;

[12] Accordingly, until 2012, the PBC was required to hold a hearing during a review following a suspension of parole. SinceDecember 2012, in accordance with subsection 140(2) of the Act, the PBC may decide to hold a hearing during a review following asuspension of parole, but it is not obliged to do so. [13] Given that the applicant did not file a notice of constitutional question, the Court cannot rule on either the validity ofsubsection 140(2), or the validity of the legislative amendments at paragraph 140(1)(

d) of the Act (for an analysis of this subject, seeWay c Commission des libérations conditionnelles du Canada, 2014 QCCS 4193).

However, the Court can examine the exercise ofdiscretion by the PBC, which decided in this case not to grant the applicant a viva voce hearing. [14] The Court must therefore determine whether this was one of the circumstances in which the PBC could adhere to theprinciples of procedural fairness by making its decision on the basis of the applicant’s written submissions rather than doing so followinga hearing. [15] The principles of procedural fairness that govern the exercise of discretion were developed in Baker v Canada (Minister ofCitizenship and Immigration), (SCC), [1999] 2 SCR 817 [Baker].

A non-exhaustive list of five factors to assist indetermining the nature of the duty of procedural fairness is set out in Baker. The first factor is the nature of the decision being made,namely, the closeness of the administrative process to the judicial process in the process provided for, the function of the decision-makerand the determinations that must be made to reach a decision (Baker at para 23).

The second factor is the nature of the statutory scheme,namely, the role of the particular decision within the statutory scheme, including, for example, appeal procedures or opportunities tosubmit further requests (Baker at para 24). The third factor is the importance of the decision to the individual or individuals affected,namely, the extent of the impact of the decision on the lives of those persons (Baker au para 25). The fourth factor regards the legitimateexpectations as to the procedure to be followed or result (Baker at para 26).

The fifth factor is the choice of procedure made by theagency itself, taking into account the expertise of the agency and what the statutes provides to the decision-maker in terms of choosingits own procedures (Baker au para 27). [16] In this case, it is true that the PBC acts in neither a judicial nor a quasi-judicial manner (Mooring v Canada (National ParoleBoard), (SCC), [1996] 1 SCR 75 at paras 25-26) and that subsection 140(2) of the Act provides the PBC with thediscretion decide whether to hold a hearing.

However, greater procedural protections are required as there is no appeals process forpersons subject to a long-term supervision order and the decision is final (sections 99.1 and 147 of the Act). [17] The most significant criterion in this case is the importance of the decision to the person affected. The Supreme Court inBaker, wrote “[t]he more important the decision is to the lives of those affected and the greater its impact on that person or those persons,the more stringent the procedural protections that will be mandated” (at para 25).

In this case, not only was the applicant incarceratedfollowing the suspension of an LTSO, the PBC also recommended that a charge be filed under

section 753.3 of the Criminal Code. Thesuspension of the long-term supervision and ensuing incarceration amount to a curtailment of the applicant’s residual liberty. Thatdecision constitutes a significant factor affecting the content of the duty of procedural fairness owed the applicant by the PBC. It is animportant factor that the PBC must take into account in deciding whether to hear viva voce testimony. [18] As Justice Wilson held in Singh v Minister of Employment and Immigration, (SCC), [1985] 1 SCR 177,where a decision will have an impact on the rights set out in

section 7 of the Canadian Charter of Rights and Freedoms, such as the rightto liberty, a hearing will generally be required: If "the right to life, liberty and security of the person" is properly construed as relating only to matters such as death, physical liberty andphysical punishment, it would seem on the surface at least that these are matters of such fundamental importance that procedural fairnesswould invariably require an oral hearing.

I am prepared, nevertheless, to accept for present purposes that written submissions may be anadequate substitute for an oral hearing in appropriate circumstances. (at para 58) [19] In addition, where the assessment of physical or mental capacities may have an impact on the type of conditions to beimposed, a hearing would be appropriate. Here, the Correctional Service’s community mental health team, as well as the staff membersupervising her, raised concerns about the applicant’s cognitive abilities and intellectual limitations.

Meeting with the applicant wouldhave certainly allowed for an assessment of the grounds of the staff’s concerns, in addition to hearing the applicant’s explanationsregarding the events leading up to the suspension, a decision which significantly restricted her residual liberty. [20] To be sure, the nature of the duty of procedural fairness is flexible and depends on the circumstances. A hearing will not berequired in every case. However, the factors set out in Baker should not remain in the abstract.

They must be examined in each case inorder to ensure that administrative decisions made are adapted to the type of decision and institutional context. [21] In this case, the duty of procedural fairness was particularly onerous given that, as the applicant pointed out, she was subjectto highly restrictive constraints during her re-admissions (in a maximum security penitentiary, in solitary confinement 23 hours a day,with nothing in her cell but the clothes on her back). [22] In short, I am of the view that in the circumstances of this case, in particular the questions surrounding the applicant’scapacities, the recommendations of the case management team and parole supervisor that the suspension be cancelled, and the significantimpact to the applicant of the decision, not only not to cancel the suspension, but to recommend a criminal charge, the PBC should haveheld an in-person hearing.

The submissions made by the applicant’s counsel and by her case management team showed that theapplicant may have been suffering from a psychiatric or psychological problem, which could obviously have an effect on the decision ofthe PBC and on the conditions to be imposed. In such circumstances, the PBC lacked sufficient, reliable and convincing information tobase its decision on the record. [23] For these reasons, the application for judicial review is allowed. The Court declares that the decision, dated January 31, 2014,breached the principles of procedural fairness. JUDGMENT

JUDGMENT THE COURT ORDERS AND ADJUDGES that the application for judicial review is allowed. The Court declares that the decision, dated January 31, 2014, breached the principles of procedural fairness. “Danièle Tremblay-Lamer” Judge Certified true translation Sebastian Desbarats, Translator FEDERAL COURT SOLICITORS OF RECORD DOCKET: T-882-14 STYLE OF CAUSE: ARLENE GALLONE v THE ATTORNEY GENERAL OF CANADA PLACE OF HEARING: Montréal, QuEbec DATE OF HEARING: APRIL 23, 2015 JUDGMENT AND REASONS: TREMBLAY-LAMER J.

DATED: MAY 8, 2015 APPEARANCES : Nadia Golmier For the applicant Éric Lafrenière Erin Morgan For THe respondent SOLICITORS OF RECORD : Nadia Golmier Counsel Montréal, Quebec For the applicant William F. Pentney Deputy Attorney General of Canada Ottawa, Ontario For THe respondent