Citation and Court Information

CITATION: Lafond v. Her Majesty the Queen in right of Ontario, 2021 ONSC 7088

DIVISIONAL COURT FILE NO.: DC-16-527-JR

DATE: 20211027

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

ELLIES R.S.J., KURKE & MATHESON JJ.

BETWEEN:

KASSANDRA LAFOND Applicant

– and –

HER MAJESTY THE QUEEN, ONTARIO (MINISTRY OF THE SOLICITOR GENERAL) and ONTARIO PAROLE BOARD Respondents

COUNSEL:

Killian B. May, for the Applicant

Brian G. Whitehead for the Respondent Ministry of the Solicitor General

Douglas Lee and Olivia Filetti for the Respondent Ontario Parole Board

HEARD at North Bay (by videoconference): October 18, 2021

REASONS FOR DECISION

MATHESON J.:

[1] This application for judicial review arises from an unusual course of events regarding the applicant’s parole. After being told that she had completed her parole by her parole officer, and therefore had completed her sentence, the applicant learned that her parole had been suspended at an earlier stage and, as a result, there was an outstanding Canada-wide arrest warrant against her. The respondents submit that she must return to jail to have a post-suspension hearing and that there is no other way to proceed under the applicable legislation.

[2] The applicant seeks to quash the decision of the Ontario Parole Board dated April 1, 2021 and the related Canada-wide arrest warrant against her and seeks other relief, including a remedy under the Canadian Charter of Rights and Freedoms. On consent, the Charter issues have been bifurcated and will be addressed, if necessary, in a subsequent hearing.

[3] At this stage, the applicant challenges the Ontario Parole Board’s decision to issue the above warrant and alleges a lack of procedural fairness, among other issues. The Ontario Parole Board has been given an expanded opportunity to participate in this application. The Solicitor General agrees with the positions taken by the Board.

[4] I conclude that this application should be granted, and the decision and related warrant quashed, on the ground of breach of procedural fairness.

Preliminary issues

[5] Two preliminary objections were raised about the evidence that ought to be before the court on this application. The panel ruled on these objections at the hearing of the application.

[6] First, the respondents challenged a brief affidavit of the applicant. That affidavit provided some background and described what the applicant was, and was not, told about the decision to suspend her parole. We concluded that the affidavit was admissible. It contains evidence that could not have been part of the ex parte Board hearing record. It sets out general background and alleges procedural defects from the applicant’s perspective. This evidence falls within the exceptions permitting admissibility in Keeprite Workers Independent Union v. Keeprite Products Ltd. (1980), 1980 1877 (ON CA), 29 O.R. (2d) 513 (C.A.).

[7] Second, the respondent Solicitor General moved to quash a subpoena by which the applicant sought to compel her parole officer, Ms. Savignac, to give evidence. The panel quashed this subpoena without prejudice to the applicant seeking to obtain evidence from Ms. Savignac under Rule 39.03 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, should a hearing of the Charter issues proceed.

Events giving rise to this application

[8] Commencing in 2019, the applicant was serving a 366-day aggregate sentence for possession of a controlled substance for the purpose of trafficking. In early 2020, she became eligible for parole. In granting parole, the Board considered relevant factors, including those arising because the applicant identifies as Indigenous. The Board found that the applicant was a sincere and remorseful person. The applicant was granted parole effective February 13, 2020. During her parole, the applicant was required to (and did) live with her mother.

[9] There was evidence before the Board about the applicant’s ex-boyfriend (whom I will call “Mr. Y”) and his negative impact on her. The terms of the applicant’s parole included both a general term requiring that she refrain from associating with anyone with a criminal record and a special condition that she not associate or communicate or be within 200 metres of any place where she knew Mr. Y would be, except at her required court attendances.

[10] On March 20, 2020, the OPP were executing an arrest warrant against Mr. Y. The applicant was not the focus of that OPP investigation. The OPP found Mr. Y at the applicant’s mother’s home. The applicant was there too. The Probation office was notified that Mr. Y was there, given the applicant’s parole conditions.

[11] Monica Furac, a Duty Officer at North Bay Probation, completed a Special Parole Report about the incident. In that report, Ms. Furac indicated that the applicant was contacted about the incident. The applicant advised that she had not initiated contact with Mr. Y, who had come to her mother’s house without her knowledge.

[12] In the Special Parole Report dated March 23, 2020, Ms. Furac reported to the Board as follows:

Given that the incident was of a less serious nature Probation rendered a decision to issue the [applicant] a verbal enforcement caution regarding the violation. …

The [applicant] was advised the Board has been issued notification of this incident cautioning her that she could be subject to suspension/revocation by the Board with Probation awaiting a decision in this regard. The [applicant] expressed verbal understanding of same. Issuance of verbal enforcement sanction to the offender was communicated to the [OPP]. [Emphasis added.]

[13] The applicant was not contacted about any decision suspending her parole or any related arrest warrant.

[14] Unknown to the applicant, on receiving the Special Parole Report, the OPB suspended her parole and issued a warrant for her arrest on April 1, 2020.

[15] For six months, the applicant continued to attend regular appointments with her parole officer, who at this stage was Ms. Savignac, until the expiry of her sentence. Ms. Savignac then informed the applicant that she had completed her parole. The applicant was told that documents would be sent in and she would be advised if there were any issues with the completion of her parole.

[16] The applicant was never contacted in relation to any issues and assumed that what she had been told about the successful completion of her parole was accurate.

[17] In November 2020, the applicant attended Mr. Y’s bail hearing. She was told, by his lawyer, that she was the subject of an outstanding warrant for her arrest. She contacted Ms. Savignac. The applicant attests that Ms. Savignac said that she was not aware of the warrant. The respondents have not put forward any evidence to the contrary, or any other evidence to suggest that the suspension of parole or the warrant was drawn to the attention of Ms. Savignac or the applicant.

[18] Ms. Savignac confirmed that there was a warrant and told the applicant that she did not have the authority to remove the warrant.

[19] The applicant then retained counsel, who contacted the Board. A Board case management officer told the applicant’s counsel that after the applicant was back in jail, a post-suspension hearing (“PSH”) would be scheduled under s. 39 of the Ministry of Correctional Services Act, R.S.O. 1990, c. M.22 (“MCSA”).

[20] It is now apparent that after receipt of the Special Parole Report in March 2020, the Board signed a Notice of Suspension of Parole and Canada-Wide warrant because of the applicant’s failure to abide by the conditions of her parole. That notice of suspension and warrant was issued on April 1, 2020.

[21] The warrant document is entitled “Notice of Suspension of Parole” “Canada WIDE WARRANT”. It is signed by a member of the Board and lists the applicant’s whereabouts as “unknown”, even though she continued to reside with her mother at the address designated in the conditions of her parole. It also has a distribution list that includes the “Probation/Parole Officer”.

[22] There is a second warrant document of the same date, signed by a Mr. Hiscock. The purpose of this second warrant document is not clear on the record before this court, but it arises from the same suspension decision.

[23] The applicant also obtained a CPIC Response Report printout. That computer record states that the applicant is “wanted” “Canada Wide” and shows a warrant expiry date of “INDEF” (indefinite).

[24] By order dated January 29, 2021, Ellies R.S.J. stayed the execution of the arrest warrant arising from the April 1, 2020 suspension. That stay currently extends until 30 days after the release of this decision, subject to further order of the court.

[25] As of the hearing of this application, it remains the position of the respondents that under the MCSA, the applicant must go back to jail. She would then have a hearing about the suspension of her parole and whether she is obliged to remain in jail for a further period of time or continue her parole.

[26] For the reasons that follow, I conclude that the applicant was not accorded procedural fairness and quash the April 1, 2020 decision and related warrant.

Legislative regime

[27] The Board is an adjudicative body. Part III of the MCSA sets out the Board’s adjudicative powers, functions and responsibilities. The MCSA also sets out the Solicitor General’s operational powers, functions and responsibilities including in relation to parole officers and correctional institutions.

[28] Section 112 of the federal Corrections and Conditional Release Act, S.C. 1992, c. 20 (“CCRA”) enables Ontario to establish the Board, which must exercise its jurisdiction in accordance with Part II of the CCRA. Part II addresses conditional release (e.g., parole), including the suspension of parole.

[29] Section 112 of the CCRA provides as follows:

(1) Subject to subsection (2), a provincial parole board for a province shall exercise jurisdiction in accordance with this Part in respect of the parole of offenders serving sentences in provincial correctional facilities in that province, other than

(a) offenders sentenced to life imprisonment as a minimum punishment;

(b) offenders whose sentence has been commuted to life imprisonment; or

(c) offenders sentenced to detention for an indeterminate period.

[30] Part III of the MCSA, in particular ss. 32 and 34.1, creates and provides jurisdiction to the Board. It provides that the Board has exclusive jurisdiction to adjudicate all questions of parole in Ontario. Section 34.1 of the MCSA provides as follows:

The Board has exclusive jurisdiction to examine, hear and determine all matters and questions relating to the release of inmates on parole and any matter or thing in respect of which any power, authority or discretion is conferred upon the Board by or under this Act or which is conferred upon a provincial parole board by the [CCRA].

[31] Section 39 of the MCSA empowers the Board, by warrant, to suspend a parolee’s parole and authorize the apprehension and recommittal to custody of that parolee in the event of a parole condition breach, among other reasons. Subsections (1) and (2) provide as follows:

39 (1) A member of the Board or a person designated for the purpose by the chair of the Board may, by warrant, in circumstances described in subsection (2),

(a) suspend a parolee’s parole;

(b) authorize the apprehension of the parolee; and

(c) authorize the recommittal of the parolee to custody until the suspension is cancelled, the parole is revoked or the sentence expires according to law.

(2) Subsection (1) applies if,

(a) the parolee breaches a condition of his or her parole; or

(b) the member of the Board or designated person referred to in subsection (1) is satisfied that it is necessary and reasonable to suspend the parole in order to,

(i) prevent a breach of a condition of parole, or

(ii) protect any person from danger or any property from damage.

[32] Subsection 39(3) then requires a hearing after a parolee has been recommitted to custody and s. 39(4) provides for potential outcomes:

(3) The Board shall hold a hearing to review the granting and suspension of the inmate’s parole as soon as possible after a parolee has been recommitted to custody under subsection (1).

(4) The Board shall consider the reasons for suspending the parole and the submissions, if any, of the inmate and shall, after a hearing under subsection (3),

(a) lift the suspension of the parole and allow the inmate to be released and continue his or her parole upon the conditions that it considers appropriate; or

(b) revoke the parole.

[33] Accordingly, the applicant can have a post suspension hearing (or PSH) only after she is incarcerated.

[34] Subsection 39(5) then provides for the calculation of the term if parole is revoked after hearing:

(5) Where parole is revoked by the Board after a hearing under subsection (3), the parolee shall… serve the remaining portion of his or her term of imprisonment, including any remission that was to his or her credit at the time parole was granted, less,

(a) the period of time spent on parole;

(b) the period of time during which parole was suspended and the parolee was in custody; and

(c) any remission credited to the parolee applicable to the period during which the parolee is in custody after his or her parole was suspended.

(6) Despite subsection (5), the Board may recredit an inmate whose parole is revoked through no fault of the inmate with all or part of the remission which the inmate would have been eligible to earn, if parole had not been granted, up to the time the parole was suspended and the parolee was in custody.

[35] As set out above, time deductions may be made only if the Board decides to revoke parole after the PSH, and the Board cannot conduct a PSH unless the parolee is in custody pursuant to s. 39(3) of the MCSA.

[36] The above legislative framework gives rise to the position of the respondents that nothing can be done unless and until the applicant goes back to jail. The applicant must go back to jail and await her PSH. Depending on the outcome she may or may not have to remain in jail.

[37] Further, although s. 39(3) provides for a PSH “as soon as possible”, we have no information about the length of delay before these hearings take place, even on a general basis.

[38] The respondents also emphasize that a parole officer has no jurisdiction to continue parole. Under the above regime, specifically s. 39(4), only the Board can continue parole. In turn, the respondents submit that once parole was suspended on April 1, 2020, no parole officer had the authority to continue it. However, this was not the difficulty here. The parole officer did not purport to continue the applicant’s parole. The difficulty was that the suspension was not drawn to the attention of the parole officer, to whom the applicant continued to report for months. That parole officer was not notified of the suspension and warrant.

[39] In addition to the procedural fairness issues, which I find are dispositive of this matter, the applicant raised statutory interpretation issues. However, I conclude that if it was necessary to address those issues that should be done together with the Charter issues. I therefore make no decision on the statutory interpretation issues raised in this application.

Analysis

[40] I conclude that two issues must be addressed now:

(1) prematurity; and,

(2) procedural fairness.

Prematurity

[41] The Board submits that this application is premature because there are no exceptional circumstances warranting a departure from the ordinary principle that this court will not proceed with a judicial review until the matter has run its course before the administrative decision-maker: Halifax (Regional Municipality) v. Nova Scotia (Human Rights Commission), 2012 SCC 10, [2012] 1 SCR 364, at para. 35.

[42] This principle “has particular force where adequate alternative remedies are available under the administrative scheme. Ordinarily an affected individual must pursue these remedies before seeking relief from the court”: Volochay v. College of Massage Therapists of Ontario, 2012 ONCA 541, at para. 68. However, that is not this case, given that the applicant must first be incarcerated and then await a hearing before having access to any remedy.

[43] The court has discretion to hear an application for judicial review of an interim decision where there are exceptional circumstances: Volochay, at paras. 68-70; Halifax (Regional Municipality), at paras. 35-36. While these cases are rare, I conclude that there are exceptional circumstances in this case, justifying the early intervention of the court.

[44] In this case, the applicant received her verbal sanction. After being sanctioned, she did nothing wrong as far as she knew. She continued to attend her regular meetings with her parole officer for many months. She did not breach the conditions of her parole again. Her parole officer (apparently mistakenly) informed her that she had completed all that she needed to do to satisfy her sentence and move forward with her life. Had she been properly informed, she could have taken steps to deal with the suspension and Canada-wide warrant before completing what she thought was the balance of her sentence. The applicant should not have to go back to jail in order to have this court address procedural fairness issues arising from the suspension of her parole, the related Canada-wide warrant for her arrest, and the failure of communication of those steps within the parole system.

Procedural fairness

[45] The applicant submits that there has been a breach of procedural fairness, relying on Baker v. Canada (Minister of Citizenship and Immigration), 1999 699 (SCC), [1999] 2 S.C.R. 817.

[46] No standard of review analysis is required to determine an issue of procedural fairness. The court must determine whether the requisite level of procedural fairness has been provided to the applicant, taking into account the factors in Baker.

[47] Although the applicant raised a number of fairness issues, in this case I conclude that the focus should be on the process followed by the Board. That process contemplated the communication of the suspension and warrant to the parole officer, however, in this case, that process failed.

[48] There is no issue that the Board is a decision-maker that owes a duty of fairness. There is then the question of the content of the duty of fairness in this case. The content varies significantly depending on the nature of the interest affected by the actions of the decision-maker. In Baker, at para. 22, the Supreme Court emphasized that the “duty of fairness is flexible and variable, and depends on an appreciation of the context of the particular statute and the rights affected…”.

[49] There is no issue that the Board decision at issue was made ex parte. The applicant does not suggest that there ought to have been more advance notice to her than what she was told by Ms. Furac. She was told that she would be (and was) verbally sanctioned and that the Board was being notified and could suspend or revoke her parole. Afterward, she was not told that the Board made any decision about her parole. The main issue here is timely and effective post-suspension notice.

[50] Here, the most significant Baker factor is the importance of the decision to the person affected by it – the applicant. If her parole was suspended, she had to go back to jail. This significant impact mandates more stringent procedural protections, as set out in Baker. The statutory scheme provided for a hearing, but only after she was incarcerated.

[51] The legitimate expectations of the applicant are also relevant. Here, the applicant was told that a decision had been made to address her breach through a verbal sanction, which was given. She was also told that the Board would be notified and could do more, but she was not notified of the suspension, and apparently heard nothing further relating to the Board’s decision.

[52] This is not a case where the parolee was not readily available. Despite the warrant stating that her address was unknown, she continued to reside with her mother, as required under her parole conditions. Further, she continued to attend meetings with her parole officer. In all the circumstances, she would reasonably expect to hear if her parole was suspended.

[53] Another factor is significant in this case. The Board’s own process includes notice to the parole officer of the suspension and warrant.

[54] I conclude that bearing in mind all the Baker factors, procedural fairness required effective notice to the appellant’s parole officer or officers about the suspension of her parole. Effective notice to all parole officers supervising a parolee means that a parolee will not be attending parole meetings for months in good faith, only to learn later on that her parole was suspended, with severe personal consequences. In the circumstances of this case, had there been such notification, the applicant would have learned of the suspension in a timely way. I do not go so far as to say that procedural fairness requires actual notice to all parolees. There are a myriad of circumstances that may arise in which required notice to a parolee may be inadvisable or unachievable.

[55] The Board process did include notice to the “Parole Officer” as set out on the Notice of Suspension. It is not clear, on the record before this court, where the chain of communication broke down. But it did break down. It appears that a Mr. Hiscock, who signed the second warrant document, was the applicant’s first parole officer. However, the Notice of Suspension and Canada-wide warrant states that Ms. Furac was the applicant’s parole officer and it is not apparent that she received notice. Further, it is certain that Ms. Savignac was the applicant’s parole officer for an extended period of time and did not receive notice of the suspension or of the warrant until the applicant drew it to her attention.

[56] The Board failed to properly notify at least Ms. Savignac of the decision to suspend and of the warrant. There was a failure to properly implement the Board process. That failure directly affected the applicant.

[57] The Board breached its duty of procedural fairness to the applicant. Effective notice of the suspension and warrant to all of the applicant’s parole officers ought to have been, but was not, given. In all the circumstances, I conclude that the only effective remedy at this stage is to quash the April 1, 2020, decision to suspend parole and the related warrant or warrants.

Orders

[58] This application is therefore granted. The decision of the Board of April 1, 2020 and any related arrest warrants arising from that decision are quashed, including two warrants of that date.

[59] On costs, the applicant requests the all-inclusive amount of $3,500. The respondents ask that there be no order of costs against them. Bearing in mind all relevant factors, I order that the respondents are jointly and severally liable to pay the applicant the total sum of $3,500 in respect of costs.

Justice W. Matheson

I agree _______________________________

Regional Senior Justice G. Ellies

I agree _______________________________

Justice A. D. Kurke

Released: October 27, 2021

CITATION: Lafond v. Her Majesty the Queen in right of Ontario, 2021 ONSC 7088

DIVISIONAL COURT FILE NO.: DC-16-527-JR

DATE: 20211027

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

BETWEEN:

KASSANDRA LAFOND Applicant

– and –

HER MAJESTY THE QUEEN, ONTARIO (MINISTRY OF THE SOLICITOR GENERAL) AND ONTARIO PAROLE BOARD Respondents

REASONS FOR DECISION

Released: October 27, 2021