The Applicant, Ms. Gallone, successfully applied for judicial review in respect of a decision made by the Respondent Parole Board of Canada. The Parole Board had refused to grant an oral hearing and then relied on the written record to recommend the laying of a criminal charge against her. The Court held the Parole Board’s decision breached the principles of procedural fairness.

{2015} F.C.J. No. 598

2015 FC 608

Federal Court Montréal, Quebec

Tremblay-Lamer J.

May 8, 2015

The Applicant, Ms. Arlene Gallone, is a 22-year old woman who pleaded guilty to charges of robbery, criminal harassment, assaulting a peace officer, and breach of conditions on June 22, 2012. Ms. Gallone received a 10 month sentence of imprisonment and then a long term supervision order ("LTSO") for 6 years. Since her period of imprisonment ended (in January 2013) Ms. Gallone was subject to the LTSO. Since that time, the LTSO was suspended on three occasions, which resulted in additional periods of imprisonment for Ms. Gallone.

The last suspension was on November 25, 2013. After that suspension, Ms. Gallone filed a request that the Respondent Parole Board of Canada (the "Parole Board") have a hearing to assess her behaviour, explanations, and intellectual capabilities. The request was refused and the Parole Board made its decision based on the record. On January 31, 2014 the Parole Board recommended the filing of a criminal charge under section 753.3 of the Criminal Code. The Parole Board did this in spite of the case management team’s recommendation that the suspension be cancelled.

Ms. Gallone sought judicial review of the Parole Board’s decision.

The Court first considered the Parole Board’s argument that the application is moot because Ms. Gallone was subsequently released and there was a later decision of the Parole Board regarding her LTSO conditions. The Court decided to hear the matter.

The Court next considered whether the Parole Board breached procedural fairness by refusing to hear Ms. Gallone in an oral hearing. The Court considered the relevant provisions of the Corrections and Conditional Release Act (the "Act") with respect to the circumstances warranting a hearing.

In considering the principles of procedural fairness, the Court held that the most significant criterion was the importance of the decision for the person affected. In this case, the Court held the duty of procedural fairness was particularly onerous because she was the subject of highly restrictive constraints during her re-admissions (in a maximum security penitentiary and in solitary confinement). The Court held the Parole Board should have held an in-person hearing. The Court commented that Ms. Gallone’s counsel raised the possibility that Ms. Gallone was suffering from a psychiatric or psychological problem which could have impacted on the Parole Board’s decision.

The Court allowed the application for judicial review and declared that the January 13, 2014 decision of the Parole Board breached the principles of procedural fairness.