Van Boeyen v. Canada (Attorney General), (2013) 443 F.T.R. 61 (FC)

• Judge: Russell, J.
• Court: Federal Court (Canada)
• Case Date: July 15, 2013
• Jurisdiction: Canada (Federal)
• Citations: (2013), 443 F.T.R. 61 (FC);2013 FC 1175

Van Boeyen v. Can. (A.G.) (2013), 443 F.T.R. 61 (FC)

MLB headnote and full text

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

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Temp. Cite: [2013] F.T.R. TBEd. NO.036

Neil Van Boeyen (applicant) v. Attorney General of Canada (respondent)

(T-1720-12; 2013 FC 1175; 2013 CF 1175)

Indexed As: Van Boeyen v. Canada (Attorney General)

Federal Court

Russell, J.

November 19, 2013.

Summary:

Van Boeyen was convicted of sexual assault, sexual assault with a weapon, kidnapping and attempted kidnapping. He had been incarcerated since December 1988, and had been serving an indeterminate sentence in a federal penitentiary since being designated as a dangerous offender in May 1990. In 2012, the Parole Board of Canada (PBC) denied Van Boeyen both full parole and day parole. The PBC Appeal Division denied Van Boeyen's appeal. Van Boeyen applied for judicial review.

The Federal Court dismissed the application.

Administrative Law - Topic 561

The hearing and decision - Decisions of the tribunal - Filing or delivery of - The applicant had been serving an indeterminate sentence at a federal penitentiary since 1990 - In 2012, the Parole Board of Canada (PBC) and PBC Appeal Board denied him both full parole and day parole - The applicant applied for judicial review, arguing that the PBC did not provide him with a copy of its decision within the statutory time frame stipulated in s. 166(2)(b) of the Corrections and Conditional Release Act - He argued that this cut into the time available for him to prepare his appeal and do the research he wanted to do - The Federal Court dismissed the application, stating "The Applicant was informed of the PBC's Decision at the conclusion of the parole hearing ... [T]he PBC provided the Applicant with its Decision and basic reasons at that time, so the Applicant knew what he had to work on immediately. While there was an administrative delay of nine days in delivering the formal reasons to him, in these circumstances, I cannot accept that the Applicant was materially prejudiced by this delay. ... His submissions to the Appeal Board were thorough and fulsome." - See paragraph 154.

Administrative Law - Topic 2158

Natural justice - Administrative decisions or findings - Delay - [See Administrative Law - Topic 561 ].

Administrative Law - Topic 2266

Natural justice - The duty of fairness - What constitutes procedural fairness - [See Administrative Law - Topic 2491 ].

Administrative Law - Topic 2491

Natural justice - Procedure - At hearing - Cross-examination - Van Boeyen had been serving an indeterminate sentence at a federal penitentiary since 1990 - At his parole hearing in 2012, Van Boeyen asked for an opportunity to question his parole officer - The Parole Board of Canada (PBC) refused the request and denied him both full parole and day parole - The PBC Appeal Board upheld the decision - Van Boeyen applied for judicial review, arguing that he was denied procedural fairness by not being given an opportunity to question his parole officer - The Federal Court dismissed the application - The court stated that "Based upon prior case law ... I have some doubts that refusal to allow some form of questioning or cross examination in the present context was procedurally fair. However, the [Federal] Court of Appeal [FCA] in MacInnis [204 N.R. 384] ... clearly found that the PBC's procedures were adequate to address the unique circumstances of those serving indeterminate sentences, that they 'allow the respondent to make his argument for parole fully and are in keeping with the rules of fairness,' and that 'the procedures requested by the respondent would do little ... to enhance the procedural fairness of his parole hearing.' The [FCA] did not say that it was balancing the [applicant's] procedural fairness rights against competing societal concerns; rather, it referred to the 'dual requirements of ensuring that society is protected and the [applicant] has a fair hearing,' and found that the applicant's procedural rights were adequately protected. In that context, the fact that the requested procedures would, in the Court's opinion, 'do ... much to damage the fundamental nature of Board hearings' seems like a valid consideration. I think I must follow the [FCA's] guidance on this issue as did the Appeal Board. Irrespective of my concerns, I am bound by MacInnis." - See paragraphs 136 to 153.

Civil Rights - Topic 3764

Punishment - General - Double punishment prohibited (Charter, s. 11(h)) - [See Civil Rights - Topic 3833 ].

Civil Rights - Topic 3830

Cruel and unusual treatment or punishment - What constitutes cruel and unusual punishment - Circumstances not constituting - [See Civil Rights - Topic 3833 ].

Civil Rights - Topic 3833

Cruel and unusual treatment or punishment - What constitutes cruel and unusual punishment - Parole - Van Boeyen was convicted of, inter alia, sexual assault - He was designated as a dangerous offender in 1990 and had been serving an indeterminate sentence in a federal penitentiary since that time - In 2012, pursuant to the Corrections and Conditional Release Act (CCRA), the Parole Board of Canada (PBC) and PBC Appeal Division denied Van Boeyen both full parole and day parole - Van Boeyen applied for judicial review, arguing that the PBC and Appeal Board acted outside their jurisdiction by assessing his parole eligibility under the CCRA, which came into force after he was convicted and sentenced - He submitted that the legislation in place at the time he was sentenced (the Parole Act) should have been applied - The Federal Court found that a change in the test for parole should not be viewed as changing the sentence (or the punishment) itself - Thus, the constitutional concern that arose was not one about retrospective application of the law engaging s. 11(h) of the Charter (the right not to be re-punished) - Retrospective application did not arise in this case because the parole determination applied current criteria to current circumstances - Parole review did not relate to punishment for past crimes, but rather involved a determination of whether an applicant was presently fit for release - The constitutional concern that arose from a change in the test for parole was whether the new statutory test was capable of ensuring that the sentence did not become grossly disproportionate, a matter to be considered under s. 12 of the Charter - Even if it could be said that the CCRA had raised the bar for parole determinations, the court had to be mindful that perfection was not the standard in preventing cruel and unusual punishment - Given that "undue risk to society" was the most important factor in determining whether to grant parole (Steele v. Mountain Institution, 1990 SCC), and given the record before the PBC and Appeal Board and the risk that Van Boeyen continued to pose, the court could not conclude that his punishment had reached the level of being grossly disproportionate to the circumstances of his case - See paragraphs 63 to 116.

Criminal Law - Topic 5669

Punishments (sentence) - Imprisonment and parole - Parole - Considerations - [See Civil Rights - Topic 3833 ].

Criminal Law - Topic 5669

Punishments (sentence) - Imprisonment and parole - Parole - Considerations - The applicant had been incarcerated since 1988 for, inter alia, sexual assault - He had been serving an indeterminate sentence in a federal penitentiary since being designated as a dangerous offender in 1990 - In 2012, the Parole Board of Canada (PBC) and PBC Appeal Division denied the applicant both full parole and day parole - The applicant applied for judicial review, arguing that the PBC and Appeal Board failed to take into consideration the sentencing judge's "intention" that he spend five to seven years in custody - The Federal Court dismissed the application, stating "I have no evidence before me that the sentencing judge recommended that any length of time would be appropriate. If he had, he would, presumably, not have imposed an indeterminate sentence. ... even if there were such an expectation expressed, this is not a recommendation and would have to be contingent upon whatever progress the Applicant could achieve as reviewed by the PBC. The Applicant has not established that anything was overlooked in this regard. The Applicant has certainly served a long sentence, but the justification for, and reasonableness of, this sentence have been assessed in the Decisions of the PBC and the Appeal Division, and reasons provided for his continued incarceration and unreadiness for parole." - See paragraphs 119 to 125.

Criminal Law - Topic 5669

Punishments (sentence) - Imprisonment and parole - Parole - Considerations - Van Boeyen was convicted of sexual assault, sexual assault with a weapon, kidnapping and attempted kidnapping - He was designated as a dangerous offender in 1990 and had been serving an indeterminate sentence since that time - Van Boeyen refused to participate in treatment programs because he feared he would be kicked out and labelled "untreatable" since he continued to maintain his innocence - In 2010, he was told by correctional program officers that he could enrol in a high intensity sex offender program while maintaining his innocence, and that he would not suffer negative consequences for doing so - Van Boeyen successfully completed the program in June 2011 - In December 2011, a psychologist found that due to Van Boeyen's denial of the sexual offences, an accurate assessment of his risk factors was not possible - He assessed Van Boeyen as at least a moderate risk to re-offend - The Parole Board of Canada (PBC) and PBC Appeal Board denied Van Boeyen both full parole and day parole, finding that he remained a moderate to high risk to re-offend sexually despite having completed programming - Van Boeyen applied for judicial review, arguing that the PBC and Appeal Board did not address the programming he had taken, disregarded the "contractual" undertaking that his failure to admit guilt would not count against him when he applied for parole, and dealt with him as an "untreated sex offender" when there was no evidence to support that designation - The Federal Court dismissed the application - The PBC and Appeal Board had to take the psychologist's assessment into account when assessing Van Boeyen's parole eligibility - The PBC noted Van Boeyen's completion of programming and did not adopt the view that he was "untreated" - Rather, the PBC reasonably concluded that despite his recent progress, Van Boeyen had yet to mitigate his risk - "Untreated sex offender" and "unmitigated risk" were not equivalent phrases - The correctional program officers' statement of belief was not a contractual commitment, and successful completion of programming did not mean that Van Boeyen was ready for parole - Anything that the officers could have said about what factors would be considered at Van Boeyen's parole hearing could have no impact on the assessment because they had no qualifications to assess whether he was ready for parole - See paragraphs 126 to 135.

Criminal Law - Topic 5670.3

Punishments (sentence) - Imprisonment and parole - Parole - Detention hearing - [See Administrative Law - Topic 561 and Administrative Law - Topic 2491 ].

Statutes - Topic 6703

Operation and effect - Commencement, duration and repeal - Retrospective and retroactive enactments - What constitutes retrospective or retroactive operation - [See Civil Rights - Topic 3833 ].

Cases Noticed:

New Brunswick (Board of Management) v. Dunsmuir (2008), 372 N.R. 1; 329 N.B.R.(2d) 1; 844 A.P.R. 1; 2008 SCC 9, refd to. [para. 24].

Agraira v. Canada (Minister of Public Safety and Emergency Preparedness) et al. (2013), 446 N.R. 65; 2013 SCC 36, refd to. [para. 24].

Canadian Council for Refugees et al. v. Canada (2008), 385 N.R. 1; 74 Admin. L.R.(4th) 79; 2008 FCA 229, refd to. [para. 25].

Canadian Union of Public Employees et al. v. Ontario (Minister of Labour) (2003), 304 N.R. 76; 173 O.A.C. 38; 2003 SCC 29, refd to. [para. 26].

Sketchley v. Canada (Attorney General) (2005), 344 N.R. 257; 2005 FCA 404, refd to. [para. 26].

Fournier v. Canada (Attorney General) (2004), 258 F.T.R. 295; 2004 FC 1124, refd to. [para. 27].

Cotterell v. Canada (Attorney General) (2012), 406 F.T.R. 272; 2012 FC 302, refd to. [para. 27].

Khosa v. Canada (Minister of Citizenship and Immigration) (2009), 385 N.R. 206; 2009 SCC 12, refd to. [para. 27].

Langard v. National Parole Board (1993), 70 F.T.R. 140 (T.D.), refd to. [para. 29].

Abel v. Edmonton Institute for Women (Director) et al. (2000), 275 A.R. 152; 2000 ABQB 851, refd to. [para. 30].

Le v. Canada (Attorney General) (2001), 201 F.T.R. 303; 2001 FCT 156, refd to. [para. 31].

Steele v. Mountain Institution, [1990] 2 S.C.R. 1385; 121 N.R. 198, refd to. [para. 33].

Galbraith v. Mountain Institution, [1988] B.C.J. No. 2043 (S.C.), refd to. [para. 36].

Pinkney v. Canada (Attorney General), [2001] F.T.R. Uned. 954; 2001 FCT 1053, refd to. [para. 38].

Fraser v. Kent Institution (Warden) et al. (1998), 95 B.C.A.C. 312; 154 W.A.C. 312; 167 D.L.R.(4th) 457 (C.A.), refd to. [para. 40].

Pickard v. Mountain Institution Disciplinary Court (Independent Chairperson) (1994), 75 F.T.R. 147 (T.D.), refd to. [para. 44].

Mooring v. National Parole Board et al., [1996] 1 S.C.R. 75; 192 N.R. 161; 70 B.C.A.C. 1; 115 W.A.C. 1, refd to. [para. 45].

Yu v. Canada (Attorney General) (2009), 356 F.T.R. 312; 2009 FC 1201, refd to. [para. 47].

Uniboard Surfaces Inc. v. Kronotex Fussboden GmbH and Co. KG et al. (2006), 359 N.R. 84; 2006 FCA 398, refd to. [para. 47].

Roxborough v. National Parole Board et al. (1994), 80 F.T.R. 26 (T.D.), refd to. [para. 49].

Cartier v. Canada (Procureur général) (2002), 300 N.R. 362; 2002 FCA 384, refd to. [para. 51].

Florea v. Canada (Minister of Employment and Immigration), [1993] F.C.J. No. 598 (F.C.A.), refd to. [para. 53].

A.S.R. v. Canada (National Parole Board) - see Reid v. National Parole Board et al.

Reid v. National Parole Board et al. (2002), 222 F.T.R. 81; 2002 FCT 741, refd to. [para. 56].

Collier v. Canada (Attorney General), [2006] F.T.R. Uned. 424; 2006 FC 728, refd to. [para. 57].

Bouchard v. National Parole Board et al., [2008] F.T.R. Uned. 734; 2008 FC 248, refd to. [para. 58].

Ouellette v. Canada (Attorney General) (2013), 456 N.R. 327; 2013 FCA 54, folld. [para. 68].

Whaling v. Canada (Attorney General), [2012] B.C.T.C. Uned. 944; 2012 BCSC 944, affd. (2012), 329 B.C.A.C. 118; 560 W.A.C. 118; 2012 BCCA 435, leave to appeal granted (2013), 453 N.R. 395 (S.C.C.), refd to. [para. 68].

R. v. Lyons, [1987] 2 S.C.R. 309; 80 N.R. 161; 82 N.S.R.(2d) 271; 207 A.P.R. 271, refd to. [para. 68].

Berenstein v. Commission nationale des libérations conditionnelles (1996), 111 F.T.R. 231 (T.D.), refd to. [para. 69].

R. v. Caruna, [2002] O.J. No. 162 (Sup. Ct.), refd to. [para. 69].

Dumas v. National Parole Board, [1986] 2 S.C.R 459; 72 N.R. 61; 3 Q.A.C. 133, refd to. [para. 75].

Gamble v. R., [1988] 2 S.C.R. 595; 89 N.R. 161; 31 O.A.C. 81, refd to. [para. 81].

R. v. Chaisson (J.L.), [1995] 2 S.C.R. 1118; 183 N.R. 300; 163 N.B.R.(2d) 81; 419 A.P.R. 81, refd to. [para. 100].

R. v. Zinck (T.R.), [2003] 1 S.C.R. 41; 300 N.R. 201; 257 N.B.R.(2d) 1; 674 A.P.R. 1; 2003 SCC 6, refd to. [para. 100].

R. v. C.A.M., [1996] 1 S.C.R. 500; 194 N.R. 321; 73 B.C.A.C. 81; 120 W.A.C. 81, refd to. [para. 100].

Cunningham v. Canada, [1993] 2 S.C.R. 143; 151 N.R. 161; 62 O.A.C. 243, refd to. [para. 100].

R. v. Wust (L.W.) et al., [2000] 1 S.C.R. 455; 252 N.R. 332; 134 B.C.A.C. 236; 219 W.A.C. 236; 2000 SCC 18, refd to. [para. 100].

Benitez v. Canada (Minister of Citizenship and Immigration), [2007] 1 F.C.R. 107; 290 F.T.R. 161; 2006 FC 461, refd to. [para. 116].

Re Toronto Newspaper Guild and Globe Printing Co., [1953] 2 S.C.R. 18, refd to. [para. 139].

Gilbert v. Ontario Provincial Police Commissioner et al. (2000), 136 O.A.C. 330; 193 D.L.R.(4th) 151 (C.A.), refd to. [para. 139].

MacInnis v. Canada (Attorney General) et al., [1997] 1 F.C. 115; 204 N.R. 384 (F.C.A.), reving. [1995] 2 F.C. 215; 92 F.T.R. 88 (T.D.), folld. [para. 139].

Gerle Gold Ltd. et al. v. Golden Rule Resources Ltd. et al., [2001] 1 F.C. 647; 261 N.R. 356 (F.C.A.), refd to. [para. 139].

Rezmuves v. Canada (Minister of Citizenship and Immigration), [2013] F.T.R. Uned. 473; 2013 FC 973, refd to. [para. 140].

Howard v. Stony Mountain Institution Inmate Disciplinary Court, [1984] 2 F.C. 642; 57 N.R. 280; 1985 CarswellNat 2 (F.C.A.), refd to. [para. 140].

Currie v. Edmonton Remand Centre (Director) et al. (2006), 407 A.R. 275; 2006 ABQB 858, refd to. [para. 140].

Charkaoui, Re, [2007] 1 S.C.R. 350; 358 N.R. 1; 2007 SCC 9, refd to. [para. 140].

Suresh v. Canada (Minister of Citizenship and Immigration), [2002] 1 S.C.R. 3; 281 N.R. 1; 2002 SCC 1, refd to. [para. 140].

Singh et al. v. Minister of Employment and Immigration, [1985] 1 S.C.R. 177; 58 N.R. 1, refd to. [para. 141].

Reference Re Section 94(2) of the Motor Vehicle Act (B.C.), [1985] 2 S.C.R. 486; 63 N.R. 266, refd to. [para. 141].

Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817; 243 N.R. 22, refd to. [para. 142].

Gallant v. Correctional Service of Canada (Pacific Region), [1989] 3 F.C. 329; 92 N.R. 292 (F.C.A.), refd to. [para. 143].

Ruby v. Royal Canadian Mounted Police et al., [2002] 4 S.C.R. 3; 295 N.R. 353; 2002 SCC 75, refd to. [para. 144].

Authors and Works Noticed:

Brown, Donald J.M., and Evans, John, M., Judicial Review of Administrative Action in Canada (2nd Ed. 2009) (Looseleaf), p. 10-18 [para. 139].

Counsel:

Neil Van Boeyen, on his own behalf, for the applicant;

Charmaine de los Reyes, for the respondent.

Solicitors of Record:

William F. Pentney, Deputy Attorney General of Canada, Vancouver, British Columbia, for the respondent.

This application for judicial review was heard at Vancouver, British Columbia, on July 15, 2013, before Russell, J., of the Federal Court, who delivered the following judgment at Ottawa, Ontario, on November 19, 2013.