Robert Latimer (“Latimer”) won a judicial review of the decision of the Appeal Division of the National Parole Board which had refused his request to expand his leave privileges by reducing the number of nights that he was required to return to a halfway house each week

Administrative law – Decisions of administrative tribunals – National Parole Board hearings – Judicial review – Compliance with legislation – Validity and application of policies and guidelines – Standard of review – Correctness

Latimer v. Canada (Attorney General), [2010] F.C.J. No. 970, Federal Court Vancouver, British Columbia, August 5, 2010, Mactavish J.

In 2001, Latimer was convicted of second-degree murder in the death of his disabled daughter. Latimer was sentenced to life in prison, with parole eligibility after 10 years. In February 2008, Latimer was granted day parole. In September 2008, the Parole Board altered Latimer’s conditions of release to allow him to move to Victoria, British Columbia where he pursues vocational training to become an electrician.

Latimer’s day parole permitted him to spend two nights a week at his Victoria apartment, but to spend the remaining five nights a week at a halfway house. After 16 months living in the community under these conditions, Latimer sought to be granted the ability to spend five nights a week at his apartment and two nights at the halfway house, or a “five and two”. Latimer’s application was supported by his parole supervisor, the assessment that his risk of reoffending was “very low”, the staff of the halfway house and his wife.

In August 2009, the Parole Board denied Latimer’s application for the five and two. Although the Board found that he was abiding by his release conditions and successfully reintegrating into the community, his situation was not thought to meet the test of “exceptional circumstances”, required by Chapter 4.1 of the National Parole Board’s Policy Manual (the “Policy Manual”). The Board declined to consider Latimer’s argument that the “exceptional circumstances” test from the Policy Manual conflicted with the provisions of the Corrections and Conditional Release Act (the “Act”).

The Parole Board’s decision was affirmed by its Appeal Division. The Appeal Division held that the Board did not have the authority to disregard the Policy Manual with respect to expanded leave privileges.

The parties agreed that, generally, decisions of the Parole Board’s Appeal Division would be reviewed against a reasonableness standard, as specified in Canada (Citizenship and Immigration) v. Khosa, 2009 SCC 12, [2009] 1 S.C.R. 339. However, the Attorney General argued that reasonableness should be the standard in this instance since the question fell within the Appeal Division’s specialized area of expertise. Latimer argued that the standard of review should be correctness, since it involved an issue of statutory interpretation by the National Parole Board. The Court agreed, and conducted a correctness review. Issues of procedural fairness and the unlawful fettering of discretion also required a correctness standard.

Section 107 of the Act gives the National Parole Board exclusive jurisdiction and absolute discretion in determinations regarding day and full parole. The Act identifies the purpose of the Federal Correctional System as “to contribute to the maintenance of a just, peaceful and safe society by carrying out sentences imposed by courts through the safe and humane custody and supervision of offenders” and to assist in “the rehabilitation of offenders and their reintegration into the community as law-abiding citizens.”

The Act requires, as a matter of statutory principle, that the Parole Board make “the least restrictive determination consistent with the protection of society.”

The Policy Manual, at Chapter 4.1, deals with “expanded periods of leave.” The Policy Manual provides that the Board can reduce the nightly reporting requirements so that an offender is not required to report for extended periods of time “in exceptional circumstances, when all other options have been considered and judged inappropriate, and only in order to meet the particular needs of the case”.

Latimer’s request for a “five and two” was refused because he did not demonstrate exceptional circumstances justifying his request.

Although guidelines may, sometimes, constitute delegated legislation having the full force of law, that is not always the case. If guidelines are in the nature of delegated legislation, they cannot be characterized as an unlawful fetter on a Tribunal’s discretion.

The Court held that although the Executive Committee of the National Parole Board was authorized to adopt policies relating to conditional release, the Policy Manual could not be viewed as delegated legislation. The Policy Manual was closer to a set of soft law guidelines, as opposed to guidelines of other organizations which were subject to the Statutory Instruments Act, R.S.C. 1985, c. S-22 and had to be published in the Canada Gazette. The limitations on non-statutory guidelines were reviewed by the Ontario Court of Appeal in Ainsley Financial Corporation et al. v. Ontario Securities Commission et al. (1994), 21 O.R. (3d) 104 which articulated the following principles:

1. a non-statutory instrument can have no effect in the face of contradictory statutory provision or regulation;
2. a non-statutory instrument cannot pre-empt the exercise of a regulator’s discretion in a particular case;
3. a non-statutory instrument cannot impose mandatory requirements enforceable by sanction; that is, the regulator cannot issue de facto laws disguised as guidelines.

A guideline is invalid if it is inconsistent or conflicts with a statutory provision or if it deals with a matter outside an agency’s statutory authorization.

In this instance, the Court held that a policy that members of the Parole Board could only reduce an offender’s nightly reporting requirements “in exceptional circumstances” and only when “all other options had been considered” was inconsistent with the statutory principle that parole boards must make the least restrictive determination consistent with the protection of society. As such, and particularly considering the Supreme Court of Canada had recognized that the sentencing principles of rehabilitation, specific deterrence and protection were not triggered in Latimer’s case, the Policy Manual had unlawfully fettered the statutory discretion of members of the Parole Board to examine the individual merits of his case in accordance with the relevant statutory principles.

The Court also noted that Chapter 4.1 of the Policy Manual was somewhat arbitrary and prevented the “incremental, nuanced approach to the discretionary decision making process prescribed by the” Act.

The application for judicial review was allowed. The matter was remitted to a newly constituted panel of the National Parole Board for redetermination without consideration of the “exceptional circumstances” test set out in the Policy Manual. The Court directed that the redetermination be made on an expedited basis so that it might have some practical benefit for Latimer, given his eligibility for full parole on December 8, 2010.

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