| B
was an inmate at the medium security Mountain Institution. In May of 1991,
B’s Case Management Team made an assessment that it did not believe B
to be a security risk and felt that he would do well at the minimum security
Ferndale Institution. In June of 1991, B appeared before the National
Parole Board requesting release from custody either by way of an Unescorted
Temporary Absence, Day Parole or Full Parole. In denying these requests,
the Board produced an unfavourable report highlighting B’s lack of therapeutic
progress for sexual deviancy and a high risk to the community. In July,
B requested a voluntary transfer to Ferndale from Mountain Institution.
The CSC reviewed B’s file and recommended the proposed voluntary transfer.
For some unexplained reason, B’s file did not contain a copy of the Parole
Board’s report of June 1991. In September, B was transferred from Mountain
to Ferndale. One month later, CSC officials became aware of the contents
of the earlier Parole Board report and recommended that B be involuntarily
transferred back to Mountain. While relying on the Parole Board report,
the CSC also decided that B was not a suitable candidate for minimum security
because he had not participated in a formal treatment program for sexual
deviant behavior. It was argued that B needed initial treatment before
he could enter the Ferndale program. B was notified of the recommendation
for involuntary transfer and asked for a review of that decision. The
Assistant Deputy Commissioner reviewed the recommendation and approved
the transfer from Ferndale to Mountain Institution that took place in
October of 1991. B then petitioned to the Court for an order that he be
transferred back to Ferndale on the basis that his involuntary transfer
contravened s7 and 9 of the Charter of Rights and Freedoms. It was B’s
position that he was unfairly treated because: a) Even if the transfer
to Ferndale was done by mistake, the authorities could not now correct
it; and b) When deciding to transfer B from Ferndale the CSC authorities
fettered their discretion by relying on an outside report of the Parole
Board. |
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Bouck J. addressed the above two issues. In regards to the “mistake issue,” B argued that the CSC failed in its duty to adequately articulate its reasons for the transfer. While the CSC stated to B that he was being transferred because he had not taken a “recognized sex offender treatment” program, B pointed out that there was no clear policy enunciated by the CSC as to what a “recognized” sex offender treatment program is. Furthermore, there was no clear CSC policy that a sex offender must always complete an initial treatment program before entering the Ferndale program. Bouck J. acknowledged that B’s observations concerning the lack of a clearly stated sexual treatment policy. However, the question remained: Are the inarticulate reasons of the CSC regarding B’s transfer from Ferndale to Mountain of such a nature that B should succeed on his application? In other words, was the failure by the CSC to carefully articulate the reasons for the transfer a breach of the law? In response, Bouck J. held that where the CSC makes a mistake in administrating the Act, it should be allowed to correct the mistake if it has a legitimate reason for doing so. In this case, the CSC erred in transferring B to Ferndale when it did not appreciate that he lacked the initial sex therapy required before he could take the program at Ferndale. Nor was the CSC aware of the Parole Board’s report. The CSC did not treat B unfairly in correcting the error by sending B back to Mountain so that he could take the intensive sex therapy treatment that might qualify him for the Ferndale program. B should not receive indirectly that which was already refused him directly. Bouck J. then turned to the question of whether there was a fettering of discretion. B’s contention was that the Assistant Deputy Commissioner fettered his discretion by relying on the decision of the Parole Board and others rather than on his own independent judgment. Citing H. Lavender and Son Ltd. v. Minister of Housing and Local Government, [1970] W.L.R. 1231, Bouck J. pointed to two relevant principles. First, a tribunal entrusted with a discretion, disables itself from exercising that discretion in a particular case by the prior adoption of a general policy. Second, a tribunal authorized to make a decision cannot fetter its discretion in reaching that decision by adopting a policy of another body while all along declaring the policy of the other body as its own. In applying these principles to the facts in B’s case, Bouck J. concluded that there was no fettering of discretion. The Assistant Deputy Commissioner considered the submissions of B and the report of the Parole Board. On the evidence, it could not be concluded that he blindly applied general policy and paid no attention to the entreaties of B. The Court did not find that the Assistant Deputy Commissioner, in exercising his discretion, adopted the views of the Parole Board in place of his own. The petition was dismissed.
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