Noyes v. Canada ( Solicitor General )
T-792-93
Cullen J.
18/1/94
27 pp.
Application to quash National Parole Board's denial of application for unescorted temporary absences, day parole, and full parole -- Applicant inmate of Bath Institution, minimum security facility in Kingston area -- In January 1986 convicted of 19 counts of sexual assault, indecent assault occurring between 1977 and 1985 -- All essentially involving fondling of children, predominantly males, between ages of 6 and 15 -- No allegations of force, violence, threats of violence -- Declared dangerous offender -- Sentenced to indeterminate length of incarceration -- Undergoing several treatment programs for paedophiliac tendencies while incarcerated -- Assessed by numerous specialists, with varying results, recommendations, although more recent assessments more positive -- Applicant proposing either day parole release program to half-way house in Hull, Que. with attendance at treatment program in Ottawa or full parole to reside in Madoc/Tweed area with couple met through Kingston Mennonite Community -- Applicant relying on Steele v. Mountain Institution, [1990] 2 S.C.R. 1385 wherein Cory J. outlining criteria under Parole Act, s. 16 for grant of parole: (i) inmate has derived maximum from imprisonment; (ii) inmate's reform and rehabilitation will be aided by grant of parole; (iii) inmate's release would not constitute undue risk to society -- Alleging no reference to s. 16(1)(a)(i) or (ii) criteria and Board's approach to evidence (psychological and psychiatric opinion) patently unreasonable as body of opinion shifting from reluctance to recommend parole prior to treatment to unanimous recommendation for parole based on three criteria -- Also alleging evidence not supporting Board's findings (1) applicant not grasping nature, cause of acts and behaviour so ruinous, at other than intellectual level, (2) applicant developing tolerance to treatment -- Respondent conceding applicant meeting criteria (i) and (ii) -- Issue whether undue risk to society -- Board referring to superficiality of applicant's understanding of implications of offence, evidence paedophilia ultimately incurable, vague release plans -- Determining applicant considering himself "treater" rather than one being "treated" as considering self expert on own deviancy (acting as facilitator in some programs) -- Board not obligated to grant parole after considering criteria, but may grant parole -- Must consider three criteria of s. 16(1)(a), but may still consider other criteria before rendering decision -- Must inform inmate of reasons for decision -- No parole granted unless at least three criteria met -- Although preferable Board specifically refer to s. 16(1)(a)(i),(ii),(iii), not obligatory -- Ample evidence supporting Board's conclusion applicant not ready for parole, undue risk to society, including requirement for long term psychotherapy and long list of conditions to be met for expert to agree to treat him -- Determination applicant developing "tolerance to treatment" patently unreasonable -- Board out of its field when concocted concept of tolerance to treatment -- Finding tantamount to telling applicant overtreated, now tolerant to treatment, can never be released -- Nothing in material on record indicating concept even exists in psychological or psychiatric treatment terms, tolerance or immunity to treatment -- Application allowed -- Criminal Code, R.S.C. 1970, c. C-34, s. 688 (now R.S.C., 1985, c. C-46, s. 753) -- Parole Act, R.S.C., 1985, c. P-2, ss. 13 (as am. by R.S.C., 1985 (2nd Supp.), c. 35, s. 4), 16, 28 -- Federal Court Act, R.S.C., 1985, c. F-7, s. 18.1 (as am. by S.C. 1990, c. 8, s. 5).