T-2080-85
Harvey Litwack (Petitioner)
v.
National Parole Board (Respondent)
INDEXED AS: LITWACK V. NATIONAL PAROLE BOARD
Trial Division, Walsh J.—Montreal, February 18;
Ottawa, February 27, 1986.
Constitutional law — Charter of Rights — Life, liberty and
security — Restrictive parole conditions making parolee virtu
ally unemployable for work corresponding to qualifications —
Charter s. 7 applicable to determine whether refusal to revoke
conditions unreasonable — Refusal unreasonable as contrary
to principles of fundamental justice — Parole Board decision
quashed by certiorari — Canadian Charter of Rights and
Freedoms, being Part I of the Constitution Act, 1982, Schedule
B, Canada Act 1982, 1982, c. 11 (U.K.), ss. 7, 12, 24 —
Criminal Code, R.S.C. 1970, c. C-34, ss. 98(1), 320(1)(d),
332(a), 338(1)(a) (as am. by S.C. 1974-75-76, c. 93, s. 32) —
Motor Vehicle Act, R.S.B.C. 1979, c. 288, s. 94(2) (as am. by
S.B.C. 1982, c. 36, s. 19).
Judicial review — Prerogative writs — Certiorari — Na
tional Parole Board — Applicant convicted of fraud, impris
oned — Completing college and university business courses
while imprisoned — Granted parole subject to condition pro
hibiting involvement in business administration — Wishing to
join executive of computer company — Reports of parole
officer indicating applicant having reformed — Board refusing
to revoke condition — Administrative tribunal must act fairly
and reasonably — Condition not unreasonable when imposed
— Board disregarding current situation — Reformation pur
pose of imprisonment — Purpose achieved in instant case —
Board majority decision unfair and Court intervention
required — Certiorari issued quashing decision.
Parole — Applicant convicted, imprisoned for fraud —
Completing CEGEP, university business courses while serving
sentence — Granted parole with special condition prohibiting
involvement in business administration — Offered executive
position as sales manager of computer distribution company
— Parole officer recommending removal of special condition
— Majority Board decision refusing to remove condition —
Reformation purpose of incarceration — Facts suggesting
applicant reformed — Board making only casual reference to
parole officer's recommendation — Condition justified when
imposed but not now — Board decision quashed by certiorari.
After having been convicted and imprisoned on various
charges of fraud, the petitioner was, in due course, granted
parole subject to the condition that he "not be implicated or
involved either directly or indirectly in the administration,
promotion, purchasing or selling of any enterprises or organiza
tions either for remuneration or non-remuneration purposes".
While in prison, the petitioner completed a course of studies
at a CEGEP. Since then, he has obtained a certificate in
administration from McGill University, is studying there for a
graduate diploma in public accountancy and is enrolled in a
program of adult education at Concordia University where he
intends to enroll in the Masters of Education Technology
Program. An offer of employment as an instructor in advertis
ing and marketing with a seminar organization fell through
when it took too long to obtain permission from the National
Parole Board. He was elected President of the McGill Associa
tion of Continuing Education Students but, two months after
his election, the Parole Board demanded that he resign.
The petitioner asked permission to accept employment as
sales manager of a company distributing computers and to
become part of its executive. Favourable to the petitioner's
endeavours, his parole officer submitted reports recommending
removal of the special condition. The Parole Board refused to
revoke the condition, stating that when it was first imposed,
nearly two years earlier, it was well justified for reasons of
public security.
This is a motion for certiorari under section 24 of the
Charter, based on the alleged infringement of sections 7 and 12
of the Charter: the Parole Board is said to have acted unreason
ably in failing to revoke the restrictive conditions attached to
the petitioner's parole which have the effect of making him
virtually unemployable for any of the types of work for which
his educational background and experience make him suitable.
Held, the motion should be allowed.
There is a duty upon an administrative tribunal not merely to
act fairly but also to act reasonably. Furthermore, it is not
sufficient to comply merely with procedural fairness but also
the substance of the decision must be reasonable on the facts.
Parole conditions can be looked at pursuant to section 7 of
the Charter to determine whether they are imposed in accord
ance with the principles of fundamental justice.
First, there was an unfair and unreasonable delay in answer
ing the petitioner's request to revoke the conditions. Second,
there were three reports, all very favourable to the petitioner
and all recommending the removal of the restrictions. All of
these reports were written by a member of the Correctional
Service of Canada who was in constant contact with the parolee
and best able to judge his conduct. It seems, however, that the
majority of the Board took the position that if the parolee was a
danger to society when the conditions were imposed, he would
always remain so notwithstanding his subsequent conduct
indicative of reformation, one of the purposes of imprisonment.
That was so patently unfair as to require the intervention of the
Court.
CASES JUDICIALLY CONSIDERED
APPLIED:
Re B.C. Motor Vehicle Act, [1985] 2 S.C.R. 486; Kane v.
Board of Governors (University of British Columbia),
[1980] 1 S.C.R. 1105; (1980), 31 N.R. 214; Blanchard v.
Control Data Canada Ltd. et al., [1984] 2 S.C.R. 476;
Re Mia and Medical Services Commission of British
Columbia (1985), 17 D.L.R. (4th) 385 (B.C.S.C.); R. v.
Weyallon (1983), 47 A.R. 360 (N.W.T.S.C.).
COUNSEL:
Julius H. Grey for petitioner.
David Lucas for respondent.
SOLICITORS:
Grey, Casgrain, Montreal, for petitioner.
Deputy Attorney General of Canada for
respondent.
The following are the reasons for order ren
dered in English by
WALSH J.: This is a motion for certiorari and/or
other relief based on section 24 of the Canadian
Charter of Rights and Freedoms [being Part I of
the Constitution Act, 1982, Schedule B, Canada
Act 1982, 1982, c. 11 (U.K.)]. Sections 7 and 12
of the Charter are primarily invoked on the basis
that the Parole Board has acted unreasonably in
failing to revoke restrictive conditions attached to
petitioner's parole which have the effect of making
him virtually unemployable for any of the types of
work for which his educational background and
experience make him suitable. It is therefore
necessary to go in some detail into the facts as
disclosed by the lengthy affidavits and exhibits in
the record. Petitioner seeks to have removed from
his parole the following special condition:
The subject should not be implicated or involved either directly
or indirectly in the administration, promotion, purchasing or
selling of any enterprises or organizations either for remunera
tion or non-remuneration purposes.
It is contended that this condition is vague, impre
cise, ambiguous, contradictory and incapable of
rational interpretation and there is a lack of equity
on the part of the Parole Board in imposing this
condition which is an unreasonable restriction of
petitioner's rights. He had been convicted on
December 4, 1980 in the district of St-Maurice,
Quebec, under the provisions of paragraph 332(a)
of the Criminal Code [R.S.C. 1970, c. C-34] for
having on June 8, 1978 signed a notarial lease in
the name of Caisse d'Economie des Employés de la
Northern in favour of Auberge du Centre
Shawinigan Inc. declaring himself to be authorized
to do so when he knew he was not, with intent to
defraud the said Caisse d'Economie. On January
26, 1981 he was sentenced to two years in the
penitentiary. He appealed this and on June 2, 1982
his appeal was dismissed. As a result of the appeal
he had not yet purged this two year sentence when
on February 8, 1983 he was found guilty pursuant
to paragraphs 338(1)(a) [as am. by S.C. 1974-75-
76, c. 93, s. 32] and 320(1)(d) of the Criminal
Code of having defrauded one Jean Côté of a sum
of $28,000 by deceit or other fraudulent means on
April 7, 1981, of having on July 21, 1981 defraud
ed Sun Bee Kim of $15,000 by deceit and other
fraudulent means and of having in the month of
July 1981, knowing that a false written declaration
had been made concerning his financial situation
and that of the Comptoir de Cuisine/Kitchen
Counter Corporation in which he was interested
and for whom he acted, obtained a sum of $20,000
from Jean Côté on the basis of this false declara
tion. On February 28, 1983 he was sentenced to
three years on each charge concurrently and con
secutive to any other sentence. While these latter
charges may have arisen from the same incident,
as petitioner's counsel suggests, they were never
theless committed while he was at liberty awaiting
his appeal from his sentence on his initial
conviction.
On June 14, 1983 he was found guilty on two
other charges pursuant to paragraph 338(1)(a) of
the Criminal Code of having during the month of
October 1981 by deceit or fraudulent means
defrauded Joseph H. Doyon of $25,000 and of
having between June 8 and 30, 1982 by deceit
false or other fraudulent means defrauded the
Banque Nationale du Canada of a sum of $70,000.
On June 14, 1983 he was sentenced to three years
on each count concurrently.
On December 21, 1983 he became entitled to
day parole beginning January 13, 1984 and total
conditional parole beginning May 13, 1984 which
was granted subject to the aforementioned condi
tion. He will not be subject to being totally freed
from parole until his sentences have expired on
June 4, 1987.
In his affidavit he points out that while in prison
he completed his college course at the Vanier
CEGEP. On June 14, 1985 he obtained a bache
lor's degree from the University of Athabasca. On
November 6, 1984 he obtained a certificate in
administration from McGill University and is at
present studying at McGill for a graduate diploma
in public accountancy. He has two children aged
12 and 14 dependent on him. In June 1984 he was
given an employment offer from an organization
known as Performance Seminar Group as profes
sor in Advertising and Marketing and on June 28
asked his probation officer Gérald Dion for per
mission to accept this employment. He was advised
on July 16, 1984 that the Parole Board refused
this as it would be in contravention of the special
condition of his parole. On July 20 petitioner's
counsel requested the National Parole Board to
reconsider its decision and on September 6, 1984
he was advised by Mr. Dion that the Board had as
of August 7, 1984 given permission for him to
accept employment as a professor notwithstanding
the special condition. By this time it was too late
however for him to obtain the employment in
question.
In April 1985 he obtained permission from Mr.
Dion for travel to seek an eventual clientele for a
business of dealing in computers and other infor
mation equipment for which the clientele would be
composed of students and student cooperatives and
on June 13, 1985 he was accepted by the Minister
of Trade and Commerce as eligible for a grant
under the program of Business Grants for Young
Business Developers. On August 2, 1985 he was
given a credit line under this program at the Bank
of Nova Scotia in an amount up to $25,000 avail
able until September 30, 1985.
In about April 1985 he asked his probation
officer for permission to accept employment as
sales manager of a company distributing comput
ers and to become part of the executive of the said
company. On April 23, 1985 his parole agent Mr.
Dion read him a report which he was submitting to
the Parole Board recommending the abolition of
the special condition. On August 7, 1985 not
having heard anything further he wrote Mr. Dion
again setting out the precarious financial situation
he was in, and the need for authorization to accept
employment with a company providing informa
tion services. He also set out his desire to involve
himself in student government at the University.
On August 12, 1985 Mr. Dion informed him that
the Parole Board refused to remove the condition.
On the same day he wrote the Parole Board asking
them for a hearing on this question.
In a subsequent affidavit petitioner sets out that
in September 1985 he was elected President of the
McGill Association of Continuing Education Stu
dents which is a student association recognized by
the Senate of the University. In 1984 he had been
elected a director of the association and then
advised his parole officer and received no objec
tion. The association has a budget of approximate
ly $90,000 to administer but the President has no
signing or spending power; all payments are made
directly by McGill University on the advice of the
executive composed of five executive members.
The Treasurer is directly responsible for the
budget but needs another executive member to
request that the University issue cheques. Two
months after his election he states that respondent
demanded that he resign from his elective office
although when he had advised his parole officer of
his intention to run for President in April 1985 no
objection was made. He accordingly obtained
leave of absence from his position as President on
November 29, 1985 in order to avoid the danger of
re-arrest. He has also been elected as a student
representative to the McGill Senate and still is a
member of it. He reiterates that his only skills are
managerial and administrative and that he could
never support himself and family other than in an
administrative function or in a business which the
special condition as interpreted by respondent
prevents.
The affidavit submitted on behalf of the Parole
Board, after reciting petitioner's criminal convic
tions states that on July 24, 1984 when it received
a report from petitioner's parole officer asking if
they would consent to his taking employment as a
seminar teacher for Performance Seminar Group
on August 7, 1984 this was approved. On May 2,
1985 it received a report from the parole officer
asking that the condition requiring a monthly
report to the police be removed and on May 31,
1985 this was granted. On April 25, 1985 it also
received a report asking that the special condition
which petitioner seeks to have removed be
removed, but as a result of an administrative error,
this was not brought to its attention until July
1985. On August 5, 1985 they refused to remove
it. The special report from his parole officer had
given considerable details about petitioner's pro
gram for setting up a company to sell computers to
university students at prices below those for which
they were able to obtain them from other sources.
A lawyer had been engaged to incorporate the
company, the application made for the $25,000
grant, and he had already purchased sample com
puters at a total cost of $8,400 for which he paid
in cash. The company would have representatives
in each of the university campuses in Quebec of
McGill, Concordia, Sherbrooke and Laval univer
sities and he hoped to eventually expand this ser
vice to universities across the country. The parole
officer stated that it would appear to him that the
subject's proposed new company appeared to be
well thought out and in conformity with normal
business transactions, and to date it appeared that
the subject's business transactions were perfectly
legitimate as confirmed by his lawyer. The report
points out that in addition to his studies at McGill
petitioner is enrolled at Concordia University in
the program for Adult Education and eventually
intends to enroll in the Masters of Education
Technology Program offered there and specialize
in the field of education technology. The report
goes on to state "In view of the fact that it is the
subject's right to complete his studies in the area
of his interest and that he has made a definite
decision to pursue a career in the area of business
management it would seem somewhat inappropri
ate to maintain his present special condition which
in fact denies the right to engage in business
activities."
There was one dissent in the refusal to remove
the special condition. On August 22nd, 1985 a
further favourable report was made by his parole
officer again requesting removal of the special
condition and on September 6 the Parole Board
authorized the petitioner to make personal written
representations which he did by letter dated Sep-
tember 17, 1985. On September 27, 1985 a further
report was made by the parole officer requesting
removal of the special condition and on October 10
the Board again decided not to do so. The decision
states that his letter adds nothing new and refers
to the condition having been maintained by deci
sions of August 5, 1985 and September 6, 1985
and the fact that when the special condition was
imposed in December 1983 it was well justified for
reasons of public security.
Turning now to the extensive jurisprudence
referred to by petitioner all of which I have exam
ined but do not propose to refer to in extenso save
to the extent that certain cases demonstrate cer-
tain fundamental principles which evolve in inter
preting the Charter in an increasingly liberal fash
ion. It can be said that it is now clear that there is
a duty of an administrative tribunal not merely to
act fairly but also to act reasonably. Furthermore
it is not sufficient to comply merely with proce
dural fairness but also the substance of the deci
sion must be reasonable on the facts. The constitu
tional reference case concerning subsection 94(2)
of the Motor Vehicle Act [R.S.B.C. 1979, c. 288
(as am. by S.B.C. 1982, c. 36, s. 19)] of British
Columbia [Re B.C. Motor Vehicle Act, [1985] 2
S.C.R. 486] provides a good example of this in the
comments of some of the learned judges rendering
their decisions. This was a recent decision of the
Supreme Court dated December 17, 1985. At page
501 Justice Lamer states:
... I am of the view that it would be wrong to interpret the
term "fundamental justice" as being synonymous with natural
justice ....
At page 513 he states:
This is not to say, however, that the principles of fundamental
justice are limited solely to procedural guarantees. Rather, the
proper approach to the determination of the principles of
fundamental justice is quite simply one in which, as Professor
L. Tremblay has written, "future growth will be based on
historical roots"....
At page 531 of Madam Justice Wilson's judgment,
she states:
I have grave doubts that the dichotomy between substance
and procedure which may have served a useful purpose in other
areas of the law such as administrative law and private interna
tional law should be imported into s. 7 of the Charter. In many
instances the line between substance and procedure is a very
narrow one.
In the case of Kane v. Board of Governors (Uni-
versity of British Columbia), [1980] 1 S.C.R.
1105; (1980), 31 N.R. 214, at pages 1112-1113
S.C.R.; 221 N.R., Chief Justice Dickson states,
referring to the Board of Governors:
They are not fettered by the strict evidential and other rules
applicable to proceedings before courts of law. It is sufficient
that the case has been heard in a judicial spirit and in accord
ance with the principles of substantial justice: per Lord Par-
moor in Local Government Board v. Arlidge ([1915] A.C.
120), at p. 140.
In the case of Blanchard v. Control Data Canada
Ltd. et al., [ 1984] 2 S.C.R. 476 although the
result of the decision is not helpful to petitioner,
the proper principle is set out in the judgment of
Justice Lamer at page 493:
Put another way, was the Board's interpretation so patently
unreasonable that its construction cannot be rationally sup
ported by the relevant legislation and demands intervention
by the court upon review?
This is a very severe test and signals a strict approach to the
question of judicial review. It is nevertheless the test which this
Court has applied and continues to apply.
At page 494 he states:
In looking for an error which might affect jurisdiction, the
emphasis placed by this Court on the dichotomy of the reason
able or unreasonable nature of the error casts doubt on the
appropriateness of making, on this basis, a distinction between
error of law and error of fact. In addition to the difficulty of
classification, the distinction collides with that given by the
courts to unreasonable errors of fact. An unreasonable error of
fact has been categorized as an error of law. The distinction
would mean that this error of law is then protected by the
privative clause unless it is unreasonable. What more is needed
in order that an unreasonable finding of fact, in becoming an
error of law, becomes an unreasonable error of law? An
administrative tribunal has the necessary jurisdiction to make a
mistake, and even a serious one, but not to be unreasonable.
The unreasonable finding is no less fatal to jurisdiction because
the finding is one of fact rather than law. An unreasonable
finding is what justifies intervention by the courts.
In Re Mia and Medical Services Commission of
British Columbia (1985), 17 D.L.R. (4th) 385
(B.C.S.C.), McEachern C.J.S.C. stated at pages
411-412:
Some authors have suggested that "liberty" in s. 7 is only
concerned with actual physical liberty from captivity and not
human conduct or activity; that it does not relate to economic
matters; or that its meaning can be restricted in various ways.
Although there must always be restraints on the right of free
persons to do anything they wish, requirements of reasonable
ness are imposed by the concluding words of s. 7 and by s. 1
which I shall mention later but, speaking generally, limitations
on traditional liberties should be applied reluctantly and with
extreme care.
I am aware that, generally speaking, American courts have
been reluctant to interfere in the legislative settlement of
economic problems. I accept that as a general rule, but I am
not concerned with duly enacted legislation in this case, and
even if I were, there are some rights enjoyed by our people
including the right to work or practise a profession that are so
fundamental that they must be protected even if they include
an economic element.
The last case to which I will refer is that of R. v.
Weyallon (1983), 47 A.R. 360 a decision of the
Supreme Court of the Northwest Territories in
which an Indian hunter and trapper who needed a
firearm to live was convicted of a violent crime
under subsection 98(1) of the Criminal Code
which contained a mandatory prohibition against
possessing a firearm for five years. In refusing to
apply this mandatory provision the Court referred
to sections 7 and 12 of the Charter.
Petitioner also argues that the provisions of the
restriction imposed by the Parole Board are so
vague and general as to be incapable of interpreta
tion and that moreover they deprive him of all
opportunity of earning a livelihood in the work
which he is qualified to perform. Certainly the
words "implicated or involved either directly or
indirectly" are very broad as are the words
"administration, promotion, purchasing or selling
of any enterprises or organizations either for remu
neration or non-remuneration purposes". Evidently
the Board in imposing the condition, which of
course he had to accept, wanted to be sure that he
would not be in a position to defraud anyone
during his parole by financial manipulations, as he
had done in the past. This objective would not
have been an unreasonable condition and difficul
ties might have been encountered in wording it
more precisely. The Court is not called upon to
interpret it, but if it were I would be inclined to
find that the effect is perhaps not quite as far
reaching as petitioner's counsel contends. It would
not appear to prevent petitioner from being an
employee of a commercial enterprise or salesman
for example. However it is evident that the inter
pretation did present some problems in the past for
his parole officer who had some doubt as to wheth
er he could, for example, accept a teaching posi
tion and submitted the question to the Board
which eventually interpreted the restriction as not
covering this, although by the time it did so it was
too late for him to take the position offered. Doubt
was also expressed by the parole officer as to
whether accepting the position of President of the
McGill Association of Continuing Education Stu
dents would infringe the condition, and finally as
to whether he could serve on the McGill Senate. In
some cases these issues were raised by petitioner
himself with his parole officer as he wished to be
careful not to infringe the conditions. He was
eventually forced to resign as President of the
McGill Association of Continuing Education Stu
dents but not from the McGill Senate.
As counsel for respondent points out petitioner's
parole officer Gérald Dion is an employee of the
Correctional Service of Canada which is a sepa
rate organization from the Parole Board. Its
employees merely supervise the conduct of prison
ers who have been granted parole to make sure
that they comply with the conditions of such
parole and report to the Board accordingly. If they
should interpret the conditions too strictly or re
strictively the Board cannot be blamed for this. In
the present case however Mr. Dion cannot be
blamed for the continuing imposition of the re
striction by respondent, the Parole Board. In fact
not only Mr. Dion but his superiors Lily Tranche,
the Director of the Montreal District of the Na
tional Correctional Service and Caroline Soulié,
the Regional Manager both joined Mr. Dion in
strongly asserting that petitioner's conduct indicat
ed that he had reformed, as a result of his impris
onment, was attempting to remake a life for him
self, and could no longer be considered as a danger
to the public. While the Board is not obliged to
accept these recommendations they certainly
should carry considerable weight as they are the
people directly involved with the parolee.
Respondent's counsel contends that section 7 of
the Charter which reads as follows:
7. Everyone has the right to life, liberty and security of the
person and the right not to be deprived thereof except in
accordance with the principles of fundamental justice.
has no application since the restrictions are not
depriving petitioner of the right to life, liberty and
security of the person as what parole does is to
increase his access to such rights, rather than to be
deprived of anything, as but for the parole he
would remain in prison serving his sentence. This
appears to me to be somewhat specious reasoning
however especially if one looks at the French
version of section 7 which uses the words "porté
atteinte" rather than "deprived". I am of the view
therefore that the conditions placed on a parolee
limiting his parole can also be looked at to deter
mine whether they are imposed in accordance with
the principles of fundamental justice.
I have more doubt as to whether section 12
which reads as follows:
12. Everyone has the right not to be subjected to any cruel
and unusual treatment or punishment.
can be applied, although it can perhaps be argued
that conditions which deprive petitioner of the
opportunity to earn a livelihood in work of a
nature which he has been trained to perform may
perhaps be an "unusual treatment", in view of the
fact that the whole purpose of parole is to enable a
convict to reintegrate himself into society and if
possible obtain or create for himself useful
employment.
The imposition of the condition in the first
instance does not appear to have been unreason
able, and certainly not "patently unreasonable"
but that is not the issue at present. Neither is the
delay in approval by the Board of his request to be
allowed to take a teaching position. The earlier
refusal of permission to do so was apparently the
result of reservations by the Correctional Service
people in interpreting the condition as a result of
which the question was submitted by them to the
Board, involving the delay which resulted in the
loss of the position.
I have no doubt that had he merely taken the
position and if, as a result his parole had been
cancelled, he could have succeeded by means of an
appropriate prerogative writ in obtaining a finding
that this did not infringe on the special condition.
The Parole Board eventually recognized this itself.
The same would most likely be the case with the
acceptance of his election as President of McGill
Association of Continuing Education Students and
to the Senate of McGill University as a student
representative. However he did not choose to take
this route by challenging his parole supervisors and
the Parole Board but instead sought permission
from them.
The long delay after April 23, 1985 when his
parole officer wrote a special report giving full
details of petitioner's business proposal and strong
ly recommending removal of the special condition,
with full approval of his supervisor, apparently
resulted from some confusion in administration at
the offices of the Parole Board, with the result that
it was necessary for the parole officer to write a
second report at the instigation of petitioner on
August 14 following which the Parole Board on
September 9 adjourned its decision to permit peti
tioner to make written representation. It was not
until October 10, nearly six months after the ini
tial request, that the Parole Board dealt with the
matter, refusing to grant the request. While in any
organization administrative errors can occur, and
in the present case it would have made no differ
ence in any event since the request to remove the
restriction was refused, the delay was certainly
unfair and unreasonable to petitioner who had
gone a long way towards preparing to undertake
the business, even securing a government guaran
teed line of credit.
If delay were the only consideration however I
would find it difficult to conclude that the de
cision to refuse to remove these restrictions was so
patently unreasonable that it should be interfered
with by the Court. However in finding that it was
so and should be quashed I have relied on several
factors.
In the first place while it is true to say that the
Parole Board is entirely independent and is not
obliged to follow the recommendations of the
members of the Correctional Service of Canada
who supervise the parole, certainly their reports
are of great evidential significance as they are the
parties in constant contact with the parolee and
best able to judge his conduct. In the present case
the three reports made recommending the removal
of the restriction could hardly have been phrased
in stronger language or be more favourable to the
petitioner. Despite this the refusal on October 10,
1985 makes only casual reference to these reports.
It commences by stating that on December 13,
1983 the special condition was imposed as being
necessary for public security and was justified by
comments made at that time. There is no dispute
about this. The report then goes on to say that this
was maintained on August 5, 1985 with reasons
explained in their comments on July 22. This
decision refused to lift the condition in order to
protect the young student clientele from petition
er's fraudulent capability. It stated that the mem
bers of the Commission who imposed the condition
certainly had good reasons to make it, and that
there is nothing in the current reports which justi
fies lifting it. The dissenting member of the Com
mission stated that the petitioner's progress to date
and the circumstances of the new enterprise make
it unnecessary and counter productive to continue
with the previously imposed special condition.
The third paragraph of the decision of October
10, 1985 with which the present petition is con
cerned goes on to say Mr. Litwack's letter of
September 17, 1985 adds nothing new. His argu
ments had already been conveyed by his parole
officer and there is no reason to change the
Board's previous views. Again there was a dissent
from this. It would seem the majority of the
members of the Board are taking the position that
once an initial decision has been made to impose
restrictions, which were properly imposed, these
should never be lifted or modified no matter to
what extent the situation of the parolee has
changed while on parole. In other words instead of
looking at the current situation as fully outlined to
them, they take the position that if the parolee was
a danger to society at the time the conditions were
imposed, he must always remain so notwithstand
ing his subsequent conduct. He had convinced
everyone but the majority members of the Com
mission that he had reformed. This appears to me
to be so patently unfair as to require the interven-
tion of the Court. One of the purposes of imprison
ment is hopefully to reform the convict and make
him renounce a life of crime by realizing the error
of his ways. While unfortunately this is not always
accomplished we have here a case of a man, now
48 who committed his first crimes at age 42. Since
then he has given every indication that he has
reformed, but without a scintilla of evidence that
he has not, and on the contrary notwithstanding
very strong reports and recommendations by those
in the best position to judge that there is little
likelihood in the business he proposes that he will
continue fraudulent practises, the majority mem
bers of the Board still insist on the maintenance of
the restrictive condition, without considering that
the situation appears to have changed since it was
imposed.
I am reinforced in this conclusion by the fact
that the decision was merely a majority one, with
one member of the Board dissenting throughout.
Under the circumstances certiorari will issue
quashing the decision of the Parole Board of Octo-
ber 10, 1985 refusing to lift the special condition
attached to petitioner's parole, which is so broad in
its wording as to effectively prevent him from
undertaking the business enterprise or any similar
undertaking for which he is suitable as a result of
his training.
ORDER
Certiorari is hereby issued against the decision
of the Parole Board of October 10, 1985 refusing
to remove the special condition attached to Peti
tioner's parole, with costs.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.