Appeal Division’s decision about lack of cooperation with police quashed
- Kate Mitchell
- No comments
In Dunn c Canada (Procureur général), 2019 CF 403, St-Louis J quashed a decision of the Parole Board of Canada (Appeal Division). The Appeal Division found that Mr. Dunn’s refusal to cooperate with police was not a deciding factor in the Board’s decision to deny him parole, which St-Louis J held was unreasonable.
The applicant, Mr. Dunn, was convicted of second-degree murder and received a life sentence with a possibility of parole after 10 years. He received full parole in 1990, but his parole was revoked in 2008. Since then, the Board had denied him day and full parole.
On October 6, 2016, he was again denied parole. The Board pointed to Mr. Dunn’s refusal to cooperate with the police’s investigation into the disappearance of the victim of his index offence, as well as his moderate to high risk of violent recidivism.
Mr. Dunn appealed the Board’s decision to the Appeal Division. He argued that the Board relied on his refusal to cooperate with police. He emphasized that he had always denied involvement in the disappearance, had no obligation to cooperate with police, and did not know the answers to the questions the police asked him.
The Appeal Division dismissed the appeal, concluding that his refusal to cooperate with police was not among the deciding factors and the Board’s finding about his risk of recidivism was reasonable given his failure to complete programming or interventions since his incarceration in 2008.
Mr. Dunn then brought an application for judicial review in the Federal Court.
Decision of the Federal Court
St-Louis J held that reasonableness is the appropriate standard of review in this case.
While it was not the only factor, she held that it was clear that Mr. Dunn’s refusal to cooperate with police was a determining factor in the Board’s decision to deny him parole.
She highlighted that (1) Mr. Dunn’s full parole was revoked for this reason; (2) the Board referred to his lack of cooperation with police in its decisions in 2009, 2011, 2012, and 2014; (3) he was questioned about it at the parole hearing; (4) he had been questioned about it during interviews with CSC staff, (5) his 2016 Assessment for Decision references it; and (6) the Board’s 2016 decision also mentioned it.
By concluded that the lack of cooperation with police was not a determining factor for the Board, the Appeal Division erred. As such, the decision was found to be unreasonable and the matter was referred to the Appeal Division for re-determination.
St-Louis J declined to rule on the two other grounds of appeal: (1) whether the Board can rule on Charter arguments, and (2) whether the Board’s finding about Mr. Dunn’s risk of re offending is reasonable.
The Board’s decision to deny Mr. Dunn parole may still be upheld by the Appeal Division. However, the Federal Court’s decision emphasizes the importance of the Appeal Division providing meaningful review of parole decisions.
Administrative decision-makers must be held to a high standard, and their decisions cannot be upheld if the reasoning is inadequate or contains errors (as in this case).
Parole decisions in particular have significant impacts on individuals’ liberty interests. So regardless of what outcome is appropriate, it is important that the Board and Appeal Division provide offenders with reasons that demonstrate the decision was made in a fair and reasonable manner.