An application for judicial review by the Applicant in respect of two discretionary conditions of the Applicant’s long-term offender order which were confirmed by the National Parole Board (“NPB”) was dismissed. The NPB’s decision to impose a condition that the Applicant take medication was correct and, even though such a condition offended section 7 of the Charter, it could be saved under section 1. The no contact condition was reasonable and was therefore not subject to judicial review.

Administrative law – National Parole Board hearings – Discretionary conditions – Long-term offenders – Statutory provisions – Criminal Code – Public safety – Judicial review – Standard of review – Correctness – Reasonableness simpliciter

Deacon v. Canada (Attorney General), [2005] F.C.J. No. 1827, Federal Court, November 4, 2005, Teitelbaum J.

The Applicant brought an application for judicial review in respect of two discretionary conditions of his long-term offender order which were confirmed by the NPB.

The Applicant had a long history of sexual offences against children. He was declared a long-term offender pursuant to section 753.1(1) of the Criminal Code in August 1998 and was made subject to a long-term supervision order for the ten year maximum period available. A long-term offender may be subject to an additional period of supervision upon the expiration of the offender’s sentence. The supervision falls within the jurisdiction of the NPB. Sections 161(1) of the Corrections and Conditional Release Regulations provides the NPB authority to impose general conditions of supervision. The Applicant challenged the following discretionary conditions established by the NPB:

1)   No direct contact or indirect contact with any child under the age of 16 and women or guardians of children under the age of 16 unless pre-approved by [the] Parole Supervisor; and

2)   Take medication as prescribed by physician.

With respect to the condition to take medication, the court held that the question of whether the NPB had the power to impose this condition was a question of law and therefore the applicable standard of review was that of correctness. The court noted that the NPB had a broad discretion to impose any condition it considered reasonable and necessary to protect society. It would be contrary to the dual goals of protecting the public and facilitating the offender’s reintegration into society to exclude the NPB’s power to impose a treatment condition when the NPB considered such a condition to be reasonable. The court therefore held that the NPB’s decision to impose a treatment condition on the Applicant’s long-term supervision order was correct.

However, the court noted that when the Applicant was required to decide whether to take medication as prescribed by a doctor, he was forced to choose between his right to security of the person and his liberty interest. Under such circumstances, the Applicant may be forced into taking medication against his better judgment. There was therefore a prima facie violation of the Applicant’s section 7 Charter rights. However, the court held that the infringement of the Applicant’s section 7 rights was saved under section 1 of the Charter. The protection of the public was a pressing and substantial objective, and the condition affirmed by the NPB was rationally connected to the objective. The condition also met the requirement of minimal impairment. The Court therefore did not interfere with this condition.

With respect to the no contact condition, the court held that the question of whether the NPB should have varied this condition was a question of mixed fact and law and therefore the standard of review was that of reasonableness simpliciter. The NPB established that the condition was imposed out of a fear that the Applicant would enter into a relationship with a vulnerable parent or guardian in order to access children. The court was satisfied that the NPB clearly had reason to be concerned for the welfare of young children. With respect to the Applicant’s record and his behaviour with the children, the court was satisfied that this condition was a reasonable one.

The application for judicial review was therefore denied.

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