Robert Latimer One Step Closer to Relaxed Parole Conditions: Latimer v. Canada (AG)
It may be time for the National Parole Board to take its Policy Manual off the bookshelf. This month, the Federal Court ordered the Board to reconsider Robert Latimer’s request for more lenient parole conditions in Latimer v. Canada (AG), 2010 FC 806. Latimer, the infamous mercy killer who euthanized his severely disabled daughter, was denied relaxed parole by the Board. The case at hand involves his application to the Federal Court for judicial review of the Board’s decision. The Federal Court was concerned about the construction and use of one contentious book, the National Parole Board’s Policy Manual.
Following his conviction for the second-degree murder of his daughter, Tracy, in 2001, Latimer was sentenced to life imprisonment. Although eligible for full parole after 10 years of the sentence, he first applied for day parole in February 2008. Conditions imposed upon him at the time included living in a halfway house. In September 2008, Latimer’s day parole was extended to allow him to move to Victoria, BC and live in his apartment two nights a week, and spend the remaining five in a halfway house (a “two and five”). After a lengthy period of day parole, Latimer applied for relaxed conditions, asking for a “five and two,” where he would be permitted to spend five nights per week in his Victoria apartment. The Board denied this request in August 2009, citing a lack of “exceptional circumstances” required by Chapter 4.1 of the Policy Manual.
The Structure of the Parole System
For the benefit of all readers who may not be familiar with the Canadian parole system, I provide a brief explanation.
The federal government, through legislation (the Corrections and Conditional Release Act, S.C. 1992, c. 20 – “CCRA”), has created the framework under which a government agency, the National Parole Board, makes decisions. The Board is an independent administrative tribunal and is responsible for making determinations with respect to parole. This authority is granted to the Board in s. 107 of the CCRA.
Section 102 of the CCRA establishes rules for granting parole decisions. Two criteria are identified as necessary. Parole may be granted if the Board believes that:
- The offender will not present a risk to society; and
- The release of the offender will protect society by facilitating reintegration of the offender back into society.
However, s. 151 of the CCRA gives the Board the authority to develop additional parole guidelines, which were written and are now contained in the contentious Policy Manual. Chapter 4.1 of the Policy Manual forms the basis of Latimer’s appeal to the Federal Court, as it was this section which was used to justify the denial of his extended parole application.
1) The Letter of the Law Is Not The Policy Manual
The first issue on appeal considered whether the Policy Manual was binding law. To determine this, the Federal Court had to decide whether the Policy Manual constitutes “hard law” or “soft law.”
Hard (binding) law can, in certain cases, be delegated legislation: Thamotharem v. Canada (Minister of Citizenship and Immigration), 2007 FCA 198. However, guidelines and supporting regulations may also be held to be a weaker form of law – soft law. In her reasoning, Mactavish J. held the Policy Manual is soft law by distinguishing the similar case of Bell Canada v. Canadian Telephone Association Employees, 2003 SCC 36.
In Bell Canada, the SCC found that guidelines issued by the Canadian Human Rights Commission (“CHRC”) were “akin to law” and constituted hard law. In coming to this conclusion, the SCC emphasized that the guidelines were binding on board members. Further, the French text of the governing Canadian Human Rights Act empowered the CHRC to interpret the legislation “par ordonnance.” (“by order/law,” roughly). As a result of this specific wording, the Bell Canada guidelines were found to be hard, governing law.
Mactavish J. used this reasoning to differentiate this case. As she pointed out, the guidelines of the Policy Manual were not binding on members of the National Parole Board. The text of the governing statute was also different. In ss. 151(2) of the CCRA (the section which authorizes the Policy Manual) the Parole Board is authorized to “adopt policies” (établit des directives). In Thamotharem , Evans J.A. held the use of the word “directives” in another piece of legislation suggested “a less legally authoritative instrument than ‘ordonnance’” (which was the wording using in Bell Canada). The deciding factor in determining whether the Policy Manual was legally binding, then, hinged on one word – “ordonnance” versus “directives.”
2) The Policy Manual Found To Be An “Unlawful Fetter” On Board Members’ Discretion
The next issue on appeal was whether Chapter 4.1 of the Policy Manual is an “unlawful fetter” on Board members’ discretion. Mactavish J. answered in the affirmative.
A guideline will be invalid if it is inconsistent and/or in conflict with a statutory provision. Subsection 99(1) of the CCRA requires day parole offenders to return to an institution nightly, unless otherwise authorized in writing. This finding gives complete discretion to the Board to authorize extended leave. Thus, the manual limits the amount of discretion Board members can exercise, and, as such c. 4.1 was found to be inconsistent with the CCRA, and invalid.
Subsection 101 (b) also requires the Board consider all relevant information to a case (including reasons of a sentencing judge) when granting parole. In has been determined, on multiple occasions, that Latimer is not a risk to society. Further, in Latimer’s case (R. v. Latimer, 2001 SCC 1) the SCC recognized “the sentencing principles of rehabilitation, specific deterrence and protection [were] not triggered for consideration.” After considering the above factors, Mactavish J. held that Chapter 4.1 of Policy Manual is invalid.
As for my opinion, I am pleased with the Federal Court’s decision to send Latimer’s parole application back for further review. It seems as if the Parole Board has forgotten its primary raison d’etre: to protect society. Of all the criminals that apply for parole, Latimer has a relatively low risk of recidivism. He committed a crime of mercy that was driven by his empathy and love for his child. Robert Latimer was punished by the sentencing judge to serve as a deterrent to others who may choose to engage in mercy killing, and needs no further punishment from the Parole Board. Society’s interests would be better served if the Board’s time and resources were spent on criminals who actually pose a threat to society.