Aird v. Canada ( National Parole Board )
T-2969-93
Rothstein J.
19/9/94
11 pp.
Application for judicial review of National Parole Board's decision revoking applicant's statutory release -- Applicant 33-year-old homosexual paedophile serving seven-year sentence for sexual offences against young boys -- Statutory release subject to conditions: participate in psychiatric counselling, not be alone with person aged 16 or under -- Applicant attending two sessions with psychiatrist while out on statutory release before psychiatrist refusing to treat him because of personality problems, hostility, lack of co-operativeness -- Parole officer learning of incidents where applicant alone with two young boys -- Release suspended -- Board reviewing matter and deciding to revoke statutory release -- Holding "requirement for psychiatric treatment . . . not actioned" and risks increased due to "non-implementation of the condition of psychiatric treatment" -- Applicant contending Board basing decision on erroneous finding of fact made in perverse or capricious manner or without regard to material before it under Federal Court Act, s. 18.1(4) -- Arguing because applicant incarcerated when Board's decision made, and not having opportunity to comply with condition relating to psychiatric treatment, Board not considering applicant's reincarceration and applicant's willingness to attend for counselling with another psychiatrist -- Application dismissed -- Board of view applicant in breach of condition of statutory release and such breach increasing risk to society of applicant re-offending -- Within its mandate under s. 135(5) to revoke statutory release -- Respondent submitting Court should exercise discretion not to judicially review Board's decision in view of availability of statutory right of appeal to Appeal Division of National Parole Board under Corrections and Conditional Release Act, s. 147 -- As not raised until after judicial review argued on merits, judicial review decided on basis of substantive arguments -- In subsequent cases, counsel should consider appropriateness of appeal to Appeal Division of National Parole Board before seeking judicial review in this Court -- In Morgan v. National Parole Board, [1982] 2 F.C. 648, Court of Appeal holding re-examination by other members of Board under then Regulations, s. 22, not substitute for certiorari -- S. 147 apparently broader than former Regulation, and Morgan may no longer apply -- Corrections and Conditional Release Act, S.C. 1992, c. 20, ss. 127, 135, 147 -- Federal Court Act, R.S.C., 1985, c. F-7, s. 18.1(4) (as enacted by S.C., 1990, c. 8, s. 5).