Judicial Review of Parole Board of Canada Appeal Division decision denying request to remove international travel restriction

Administrative law – Decisions of administrative tribunals – National Parole Board hearings – Discretionary conditions – Evidence – Reasonableness – Policies – Judicial review application – Compliance with legislation

Latimer v. Canada (Attorney General), [2014] F.C.J. No. 898, 2014 FC 886, Federal Court, September 16, 2014, Manson J.

The applicant applied for permanent relief from the international travel restriction prescribed under the Corrections and Conditional Release Act, S.C. 1992, c.20 (CCRA). The applicant was convicted for a second degree murder of his seriously disabled daughter by carbon dioxide poisoning in 1997. The conviction was upheld by the Supreme Court of Canada. The applicant was on day parole until 2010, when the Parole Board of Canada (the “Board”) released him on full parole with special conditions. One of those conditions included a restriction on international travel pursuant to the CCRA.

The applicant applied to the Board to vary or permanently relieve him of the international travel restriction. The Board denied the applicant’s request. On appeal to the Parole Board of Canada Appeal Board (the “Appeal Board”), the Appeal Board affirmed the Board’s decision.

The applicant applied to the Federal Court for judicial review on the basis the Board and Appeal Board fettered their discretion and, in the alternative, the Board and the Appeal Boards’ decisions were unreasonable.

The applicant submitted the Board fettered its discretion by referring to the application of its policy manual as well as employing an unwritten “Board position” in respect of its decision. The court rejected the applicant’s submission that the Board fettered its discretion. The court held the Board’s decision reflected an exercise of discretion on the Board’s part that was not based on a fettering of discretion. While it is possible for a rule or guideline that points out factors to be considered in exercising discretion to be given a status of general rule that may result in a fettering of discretion, that did not occur in this case. The Board’s reference in its decision to portions of the policy that used the word “normally” in respect of relevant considerations does not constitute fettering of discretion. The court held the Board decided on the evidence before it that the applicant’s case did not merit the relief sought.

In the alternative, the court found the Board’s and Appeal Board’s decisions were unreasonable. The court held that if a discretionary decision is inconsistent with achieving the legislative purpose, in these circumstances, the purpose of providing the least restrictive determination consistent with the protection of society, then that decision runs the risk of being unreasonable, regardless of the ambit of discretion. On the facts of this case, there was no basis for the Board or Appeal Board to find the applicant posed any risk to persons inside or outside of Canada, or that an elimination of reporting requirements for international travel would present any real risk to public safety. The applicant’s application was supported by the former Director General, Corrections and Criminal Justice, Public Safety Canada, the applicant’s parole officer and parole officer’s supervisor, and assessments conducted by Correctional Service of Canada. The court found after considering the purpose of the CCRA and all relevant information that the Board and Appeal Board did not exercise their discretion in a reasonable, transparent or intelligible manner.

The court allowed the application for judicial review and remitted the matter to a differently constituted Appeal Board for redetermination, in accordance with the court’s reasons.

This case was digested by Joel A. Morris of Harper Grey LLP. If you would like to discuss this case further, please feel free to contact him directly at jmorris@harpergrey.com or review his biography at http://www.harpergrey.com.

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