| F
was a female inmate serving a life sentence for a second-degree murder
conviction where alcohol was a factor. F was released on day parole in
March 1985, and on full parole in July 1987. In October 1988 F was convicted
of impaired driving causing death and was sentenced to six years concurrent.
F was again incarcerated until 1991, at which time she was granted day
parole. The conditions governing her parole indicated that she was prohibited
from consuming alcohol. In the course of her release on day parole, F
breached her condition to abstain from alcohol on two occasions. F was
requested to provide urinalysis to CSC officers as they had received information
that she had been drinking in a local bar. In the end, F's day parole
was suspended and then revoked. F applied for re-examination of the Parole
Board's decision pursuant to s147 of the CCRA, and later, the Appeal Division
of the Board released its decision affirming the decision of the Board
to revoke F's parole. F applied for judicial review, arguing that the
Board improperly ignored evidence before it that was favourable to F's
position, that the presence at the hearing of the president of a victim's
advocacy group, N, and N's contact with Board executives created an apprehension
of bias, and that the Board improperly considered the refusal of F to
submit to urinalysis when requested, as a negative factor in the assessment
of her conduct during day parole. |
| McKeown
J. dismissed the application. McKeown J. held that the Board has the discretion
to determine whether the applicant's parole should be revoked or her suspension
cancelled. However, the decision is an administrative one and is subject
to the duty of fairness. As such, it must be made in accordance with the
provisions of the governing legislation and must be made on the basis
of all the evidence before it. The Board was to consider the factors found
in s101 of the CCRA. Unless the Board fails to follow these guidelines
and determines a case in an arbitrary manner, or exercises its discretion
in a patently unreasonable way, the court should not intervene. McKeown
J. was not satisfied that F had met the onus upon her of establishing
that the Board had failed to act reasonably or fairly. From the evidence,
it was clear that the Board considered a number of factors when it decided
to revoke F's day parole, including the positive statements of the counselors,
the CSC officers, and the E. Fry Society. McKeown J. was of the opinion
that while it was true that there were positive recommendations before
it, the Board is not a rubber stamp, and may choose, despite favourable
reports by CSC officials, to deny or revoke parole. McKeown J. went on
to state that s111(b) of the CCRA indicates that the Board is to maintain
a program to communicate its policies and programs to offenders, to other
groups and organizations with a special interest in matters dealt with
under this part, and to the general public. In this respect, the Board
is very much a policy-oriented body. The fact that a member of a victim's
rights organization met with executives of the Board, none of which in
this case were sitting on F's hearing, to discuss general matters of policy,
does not raise a reasonable apprehension of bias. N had applied for and
was granted status to be present at the hearing pursuant to s140 of the
CCRA. As to the issue of F's refusal to submit to urinalysis, McKeown
J. held that the former section 55, which is now very similar to the current
paragraph (b), and section 56 of the CCRA do not require that reasonable
and probable grounds be provided to the applicant. The legislation simply
requires that the offender be told the basis for the demand, and the consequences
of noncompliance. |
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