ONTARIO PAROLE BOARD

Safety, Licensing Appeals and Standards

Tribunals Ontario

Applicant’s Name: Hopperton, Peter Blair

Client ID: 1000893374
DOB: 1986-06-16
Institution: Vanier Centre for Women
Parole Eligibility Date: 2019-02-07
Discharge Possible Date: 2019-05-09
Final Warrant Expiry 2019-07-28
Date:

POST-SUSPENSION/PAROLE CONSIDERATION: DECISION

Panel: M. Helt

M. Letourneau

Applicant: Hopperton, Peter Blair

Decision: Parole is revoked. Earned remission is not re-credited.

OVERVIEW

[1] P. Cedar Hopperton is a 32-year-old applicant who was convicted of mischief to

property and counselling an indictable offence. The applicant was sentenced to eight
months’ incarceration to be followed by a one-year period of probation.

[2] The applicant’s parole was recently suspended by the Ontario Parole Board (the
“Board”). The warrant authorizing the suspension indicates that the applicant was
allegedly in breach of standard condition number two, which dictates they must keep
the peace and be of good behaviour, and in breach of special condition number six,
which states that the applicant must not organize, participate in, aid, abet or
otherwise be involved in any protest, demonstration or rally unless it is peaceable
and lawful throughout.

[3] The applicant attended in person for their post-suspension hearing. Also, in
attendance was their counsel. The applicant prefers the pronoun them/they and
therefore is referred to throughout this Decision as such.

STATUTORY CRITERIA FOR REVOKING OR REINSTATING PAROLE

[4] Section 39 of the Ministry of Correctional Services Act, RSO 1990, c M.22 (the “Act”)
sets out the criteria for parole suspension and revocation:

Suspension of parole after release

39 (1) A member of the Board or a person designated for the purpose by
the chair of the Board may, by warrant, in circumstances described in
subsection (2),

(a) suspend a parolee’s parole;

(b) authorize the apprehension of the parolee; and
(c) authorize the recommittal of the parolee to custody until the
suspension is cancelled, the parole is revoked or the sentence
expires according to law. 2002, c. 18, Sched. N, s. 40.
 Hopperton, Peter Blair | 1000893374 | 1986-06-16 |
PED: 2019-02-07

Circumstances
(2) Subsection (1) applies if,

(a) the parolee breaches a condition of his or her parole; or

(b) the member of the Board or designated person referred to in
subsection (1) is satisfied that it is necessary and reasonable to
suspend the parole in order to,

(i) prevent a breach of a condition of parole, or

(ii) protect any person from danger or any property from
damage.

Review hearing
(3) The Board shall hold a hearing to review the granting and suspension
of the inmate’s parole as soon as possible after a parolee has been
recommitted to custody under subsection (1).

Revocation or reinstatement of parole

(4) The Board shall consider the reasons for suspending the parole and
the submissions, if any, of the inmate and shall, after a hearing under
subsection (3),

(a) lift the suspension of the parole and allow the inmate to be released
and continue his or her parole upon the conditions that it considers
appropriate; or
(b) revoke the parole.

[5] Section 45 of Ontario Regulation 778, enacted under the MCSA, provides further
guidance:

45. (1) An inmate whose parole is reviewed under subsection 39 (2) of the
Act is entitled to a hearing before the Board unless the inmate in writing
waives the right to the hearing, but if the inmate withdraws the waiver
before the Board makes a decision regarding the parole, the Board shall
proceed to conduct a hearing of the matter.

(2) Where the Board conducts a review of parole under subsection 39 (2)
of the Act, the Board may obtain and consider any information that the
Board considers useful and relevant, including any records relating to the
decision to grant the inmate parole and information about the inmate’s
conduct while on parole.

(3) Where the Board conducts a hearing in the course of a review of

parole under subsection 39 (2) of the Act, subsection 44 (2) applies to the
hearing with necessary modifications.

(4) Upon consideration of the matters referred to in subsection (2) and the
arguments and submissions, if any, of the inmate, the Board may,

(a) allow the inmate to continue on parole; or

(b) revoke parole,

and the Board shall notify the inmate in writing of its decision and the
reasons for the decision.

2
 Hopperton, Peter Blair | 1000893374 | 1986-06-16 |
PED: 2019-02-07

STATUTORY CRITERIA FOR GRANTING PAROLE

[6] Section 102 of the federal Corrections and Conditional Release Act, SC 1992, c 20
(the “CCRA”) establishes the criteria for granting parole. The Board may grant parole
if, in its opinion:

1. The applicant will not, by reoffending, present an undue risk to society before
the expiration of his/her sentence; and

2. The applicant’s release will contribute to the protection of society by facilitating

his/her reintegration into society as a law-abiding citizen.

[7] According to s. 100.1 of the CCRA, the protection of society is the Board’s
paramount consideration “in the determination of all cases”.

INFORMATION

[8] The Board considers all available relevant information in assessing an applicant’s
suitability for parole. The Board acts on information that is reliable and persuasive.
Given that the Board is considering whether to revoke or continue the applicant’s
parole in this case, it is particularly concerned with information regarding the
applicant’s behavior while on parole, and the circumstances leading to their parole
suspension.

BACKGROUND

[9] Based on the information provided by the Ministry of the Solicitor General, the
following is known regarding the applicant’s conviction. The applicant was
participating in a two-day long book fair to promote social activism in the community
of Hamilton. They have been involved with the social justice community for
approximately 15 years. The applicant noticed a leaflet for a protest that was
organized to express dissatisfaction with the high rents and income inequality in the
Hamilton area and began passing out these leaflets to people at the book fair.

[10] The applicant then attended the protest, during which active property destruction
was being committed.

[11] During the applicant’s parole hearing, which was held on February 28, 2019, the
applicant stated that they did not know that the protest was going to turn destructive.
The applicant told the Board that they recognized that they had a visible role in the
event and continued to participate even though they knew the event was not
appropriate.

[12] The applicant also told the Board during the parole hearing that in hindsight, they
understood that this was not appropriate behaviour.

[13] The applicant was granted parole with conditions, and their release date was set for
March 14, 2019. The applicant agreed to abide by conditions of their parole release.

[14] On June 21, 2019, the applicant’s parole was suspended by the Board based on
information provided by the Hamilton Police Service (the “HPS”).

3
 Hopperton, Peter Blair | 1000893374 | 1986-06-16 |
PED: 2019-02-07

Behaviour During Parole

[15] According to the parole report, the applicant has complied with the terms of their
parole, except for two allegations of breach of conditions resulting in the suspension
of their parole.

[16] During the hearing the applicant informed the Board that they have been attending
counselling and actively looking for work. The applicant has provided proof of this to
their parole officer for confirmation. The parole officer confirmed that efforts had
been made to find work. The applicant even obtained a job at Home Depot but was
let go due to their public profile. To fill their time, the applicant has continued to
volunteer for The Tower, a Hamilton-based Anarchist group. The applicant stated
that they help clean the space and ensure that the library and public space are well
maintained for the public. The applicant helped babysit for colleagues who would
attend work and has been looking into how to further their career as a translator.

[17] By way of special parole report, the applicant is alleged to have attended the Pride
event at Gage Park in Hamilton on June 15, 2019, as well as a community meeting
on June 18, 2019. The Board suspended the applicant’s parole due to the
information contained in the report. The two events are addressed separately below.

Pride Festival of June 15, 2019

[18] The applicant is alleged to have breached their parole condition requiring them “not
to organize, participate in, aid abet, or otherwise be involved in any protest,
demonstration or rally unless it is peaceable and lawful throughout”. For the reasons
that follow the Board is not satisfied that the applicant breached any parole condition
in relation to the Gage Park incident.

[19] While no charges were laid, the applicant was alleged to have been present at the
Pride Festival at Gage Park on June 15, 2019 when violence broke out between
Pride attendees and anti-Pride protestors. The Pride festival was organized to be a
peaceful family event open to members of the community. However, anti-Pride
protestors created a violent disturbance at approximately 1:30 pm. The investigators
provided the Board with pictures of the Pride attendees who were involved in the
altercation. The photos show several individuals with pink masks and black fatigues,
but no facial features are visible. The investigators suspected that the bodily features
match several people who are part of The Tower, and that one of the photographed
masked individuals was the applicant.

[20] The Board finds that the photos and information provided regarding the identity of
the Pride attendees involved in the altercation are insufficient to establish that the
applicant was in attendance, and accordingly the Board cannot conclude that this
was the case.

[21] Furthermore, the applicant provided thirteen affidavits in support of their post-
suspension hearing. Several affidavits from attendees of the Pride event who know
the applicant personally stated that they did not see the applicant or anyone with
their physique. The affidavits stated that the attendees were near the altercation and
the observations were detailed enough for the Board to conclude that they provided
an accurate version of events and were credible.

[22] The applicant explained at the hearing that they have been taking their parole
seriously and made a choice to stay away from the Pride festival this year. The

4
 Hopperton, Peter Blair | 1000893374 | 1986-06-16 |
PED: 2019-02-07

applicant stated that they were with their parole sponsor from 10 a.m. to 9 p.m. that
day. The Board found the applicant to be credible in their account of the events of
June 15, 2019.

[23] The Board acts on reliable and persuasive information. In considering the above,
the Board is not satisfied that the applicant breached the parole conditions regarding
demonstrations, rallies or protests, as the information available shows that it was
improbable that the applicant was in attendance.

[24] As the Board has found that there is insufficient information to establish the alleged
attendance of the applicant at the Pride event on June 15, 2019, the focus of the
remainder of this decision will be on the applicant’s conduct on June 18, 2019.

Community Conversation of June 18, 2019

[25] On June 18, 2019, the 2SLGBTQIA+ advisory committee held a community
conversation meeting at Hamilton City Hall. The meeting was scheduled weeks prior
to discuss items such as the Flag Raising Ceremony. The Gage Park incident was
added to the agenda just shortly before the meeting. The meeting was held in the
City Council Chambers, a forum that allowed members of the community to voice
their concern in an open microphone forum. By the accounts provided, there were
100-200 people in attendance, along with members of the media who were covering
the event.

[26] The applicant is alleged to have addressed Deputy Chief Bergen and Detective
Corrigan of the HPS, stating "get the fuck out of the chamber” and “you are not
welcome ". It is further alleged that the applicant stated "we need the strength to be
violent". The applicant’s comments received a round of applause from the audience.
Investigators believe that these comments were inflammatory, and could have
incited a disturbance in an already tense meeting.

[27] During the hearing the applicant was asked about their attendance at the meeting
and what was said. The applicant confirmed that they were there and spoke to the
audience during the open microphone component of the discussion related to what
happened at the Gage Park Pride event. They confirmed that they were very
concerned about the lack of police protection at Pride. The applicant further stated
that they discussed self-defence, the need for the community to learn how to de-
escalate situations and how to use measured force to deal with these situations.
When asked to explain what they meant by “measured”, the applicant said the
community needed to be prepared to be violent when faced with violence.

[28] The applicant then went on to state at the meeting that “our chance to be peaceful
is meaningless unless we have the ability to be violent.”

The Applicant Failed to Keep the Peace and Be of Good Behaviour

[29] The applicant’s above statements are alleged to be in violation of their parole
condition to “keep the peace and be of good behaviour”.

[30] The interpretation of what it means to “keep the peace and be of good behaviour”
has been considered many times by the courts in the context of probation violations.
A review of the case law starts with Supreme Court of Canada’s decision in R. v.
Docherty.1

1 R. v. Docherty, 1989 CanLII 45, [1989] 2 SCR 941 at 957 [Docherty].

5
 Hopperton, Peter Blair | 1000893374 | 1986-06-16 |
PED: 2019-02-07

[31] Writing for the Court, Justice Wilson made the following remarks while considering
the Newfoundland Supreme Court’s decision in R. v. Stone2 where the applicant was
bound by a probation order

Steele J. proceeded from the view, expressed at p. 255, that the two terms,
“keep the peace” and “be of good behaviour”, impose “separate and distinct
conditions though in certain circumstances may overlap”. At page 256, he draws
the following distinction:

When considering whether there has been a failure “to keep the peace”,
one is conscious of public opinion and its perception of peace and good
order and what does or does not offend that nebulous standard. If the
issue is an individual’s good behaviour, the emphasis shifts to a more
personal analysis of his conduct. A breach of an undertaking “to keep the
peace” means a disruption or the upsetting of public order whereas a
breach of a bond of “to be of good behaviour” means some act or activity
by an individual that fails to meet the fanciful standard of conduct
expected of all law-abiding and decent citizens. It is quite possible, as I
have already said, that one can fail to be of good behaviour yet not
commit a breach of the peace. It is probably a matter of degree. We are
only concerned with the second aspect of the statutory condition, namely,
“to be of good behaviour”.

[32] The facts surrounding what took place at the community event on June 18, 2019
are largely not in dispute. The applicant’s submissions, along with the information in
the 13 affidavits they submitted, are largely consistent with the statements given by
the HPS officers in attendance.

[33] We know that the event was a planned community meeting at City Hall with over
100 people in attendance. We know that the applicant attended. The applicant told
us the issue of what happened at the Gage Park Pride event was a last-minute item
added to the agenda.

[34] The applicant stated that for each agenda item there was a panel of speakers who
spoke for approximately twenty minutes, and then members of the public had an
opportunity to speak at an open microphone.

[35] The applicant stated that they voluntarily spoke during the open mic portion of the
meeting dealing with the Pride event of June 15, 2019.

[36] The applicant stated that her remarks focused on the need for members of the
community to learn de-escalation techniques and measured force to deal with the
type of situation that occurred at Pride three days earlier.

[37] The applicant stated that they said: “our choice to be peaceful is meaningless
unless we have the ability to be violent”.

[38] The applicant stated after that they saw the two police officers whom the applicant
did not personally know, that it was inappropriate for the police to be present at the
meeting and that it made the applicant feel unsafe (they said this was due to their
belief that the police did not protect their friends at the Pride event). The applicant
also confirmed that during their speech the applicant told the uniformed police
officers: “we fucking see you” and “get the fuck out”.

2 R. v. Stone, 1985 CanLII 3597, (1985) 22 CCC (3d) 249.

6
 Hopperton, Peter Blair | 1000893374 | 1986-06-16 |
PED: 2019-02-07

[39] The applicant confirmed that there was already tension in the crowd due not only to
the events that occurred three days earlier, but also as a result of the police
presence. The applicant noted that numerous members of their community have
been traumatized by the police.

[40] When questioned by the Board about making these comments, the applicant stated
that they do not believe they were counselling or inciting violence or crossing the line
with their parole conditions. The applicant stated that they had discussions with their
parole officer in advance of the meeting on what to do, and the parole officer said
the applicant could attend the event. The Board notes that this discussion would
have taken place before the Gage Park incident was added as an agenda item, and
it is not clear whether the discussion addressed attendance at the meeting or active
participation.

[41] The applicant stated that they have been careful in choosing what events they
attend since being on parole because they take their parole conditions seriously.

[42] The applicant stated that this meeting was intended to be an orderly and safe place
to express feelings, and that their comments did not cross the line.

[43] The Board notes that while the meeting was uncomfortable at times, it was
generally peaceable. The Pride event altercations were disturbing and tense, and
many comments made at the meeting were critical of the City and the HPS, which
added to the discomfort. The affidavits submitted to the Board all support the
applicant’s view that their comments were not seen to be suggestive of inciting or
counselling violence. The applicant did state that several attendees of the meeting
told them afterwards that they disagreed with how the applicant spoke, but the
applicant says that the applicant addressed this peacefully with these individuals
after the meeting.

[44] When considering whether the applicant’s comments violated their condition that
they keep the peace and be of good behaviour, the Board is of the view that to
establish a breach of a parole condition, the Board is not required to make a finding
that they committed a criminal offence.

[45] The Board notes that the majority of the case law interpreting the meaning of
“keeping the peace” and “being of good behavior” involve breaches of a probation
order imposed by a judge as part of an individual’s sentence. They are criminal
matters in which the Crown must prove beyond a reasonable doubt that the
individual breached their probation conditions. If the Crown is successful, the
conviction is added to the applicant’s criminal record.

[46] The applicant referred to the Supreme Court’s decision in R. v. Lohnes 3 wherein
the Court examined whether an accused caused a public disturbance by shouting
obscenities at a neighbour. The applicant referred the Board to the following
paragraph, at page 177:

I conclude that the weight of the authority, whether viewed from the point of view
of theory or result, suggests that before an offence can arise under s. 175(1) of
the Criminal Code, the enumerated conduct must cause an overtly manifested

3 R. v. Lohnes, 1992 CanLII 112, [1992] 1 S.C.R. 167

7
 Hopperton, Peter Blair | 1000893374 | 1986-06-16 |
PED: 2019-02-07

disturbance which constitutes an interference with the ordinary and customary

use by the public place in question.

[47] This matter, however, is not a criminal proceeding. It is a parole matter. The
purpose of this hearing is not to determine whether the applicant committed a
criminal offence, but rather to determine whether the applicant remains a suitable
candidate for parole. As noted above, the Board’s paramount concern in determining
all cases is the protection of society. The Board is of the view that while the criminal
cases provide helpful guidance in determining what “keeping the peace” and “being
of good behavior” means, it is not bound to apply the same heightened test used by
criminal courts to establish a breach of a probation condition. The Board’s function is
to consider all of the information before it, and to determine whether the applicant
would constitute an undue risk to society if paroled, and whether parole will continue
to protect society by facilitating the applicant’s reintegration into society as a law-
abiding citizen.

[48] Our reasons for taking this position is that while both probation and parole may
require an individual to abide by certain terms and conditions for rehabilitative
purposes, a parole suspension hearing is distinguishable from a criminal breach of
probation trial. Whereas a parole suspension hearing is ultimately concerned with
whether an applicant remains suitable for parole, a breach of probation trial is
concerned with determining whether the accused committed a criminal offence.
Given the difference in the purposes of these hearings, the Board concludes that the
analysis of what constitutes “keeping the peace and being of good behaviour” may
be different in a parole matter than in a criminal proceeding.

[49] To this end, the Board notes that the applicant’s behaviour and comments at the
community event are closely related to the conduct for which the applicant was
convicted, namely counselling an indictable offence. The comments escalated
during the course of the speech to the point of suggesting that violence is
appropriate in certain circumstances. This was followed by the use of profanity
directed at specific police officers in the crowd. While the applicant has
demonstrated some positive steps taken while on parole, the Board sees this
conduct as a clear step backwards. The Board finds that the applicant’s challenges
have been in finding ways to express their views without allowing anger or violence
to become part of their discourse. The comments made during the meeting signal to
the community that the applicant still has work to do in ensuring that their frustrations
and anger do not jeopardize the safety of the community in any way.

[50] Parole is not a right; it is a discretionary privilege that is conferred on an applicant.

It allows the applicant to serve the remainder of their custodial sentence in the
community in a meaningful and law-abiding manner, and to take steps to address
the behaviour that resulted in the original offence. The Board finds that the
applicant’s comments gave rise to a situation which presented undue risk to the
community, thus constituting a breach of the condition to keep the peace and be of
good behaviour.

8
 Hopperton, Peter Blair | 1000893374 | 1986-06-16 |
PED: 2019-02-07

No Intent to Breach Conditions (Mens Rea)

[51] Counsel for the applicant argued that in order for the Board to find a condition
breach, it must find that the applicant had the requisite intent to do so.

[52] Counsel relied on the Supreme Court of Canada’s decision in Mugesera v. Canada
(Minister of Citizenship and Immigration).4 In that case, the Court considered
whether a speech constituted incitement of an offence. In its analysis the Court
found than an intention to bring about a criminal result will satisfy the requisite
mental element for the offence. In the present matter, however, the allegation is a
breach of a parole condition to keep the peace and be of good behavior.

[53] The Board acknowledges that the Special Parole report states that the applicant’s
comments were an “attempt to incite the crowd by stating they should be allowed to
be violent in behaviour”. However, the issue in this matter is not whether the
applicant committed the offence of inciting violence – that would be a matter for the
courts to decide. Rather, the issue before this Board is whether the applicant’s
conduct amounted to a breach of the condition that the applicant “keep the peace
and be of good behavior.” Here, the applicant’s words were made in a public place
at a public meeting and clearly reflected the undertone of anger as against the police
that many of the attendees were feeling. The potential for there being an actual
public disturbance was present. This is not in conformity with the purpose and intent
of parole, particularly in light of the underlying offence for which the applicant was on
parole.

[54] In Docherty, Wilson J. considered the criminal intent needed to prove a breach of a
probation order:
As I stated earlier, the mens rea of s. 666(1) requires that an accused
intend to breach his probation order. This requires at a minimum proof that
the accused knew that he was bound by the probation order and that there
was a term in it which would be breached by his proposed conduct. The
accused must be found to have gone ahead and engaged in the conduct
regardless.

[55] The applicant alleged that there needs to be a mens rea, or an intent, for failure to
comply with a parole condition. The Board disagrees and notes that while proof of
intent is required to prove a criminal breach of a probation order, that same intent
need not be proved in the context of parole consideration.

[56] As noted above, a probation order is imposed by the court, and alleged breaches
are dealt with criminally. The public interest is represented by the Crown, which is a
party to the proceeding. In order to register a conviction, the court must find that the
individual had the requisite intent, which is generally required for criminal offences.
Moreover, the charge must be proven beyond a reasonable doubt.

[57] The legal considerations for a criminal offence do not apply when an alleged breach
of a parole condition is considered by the Board, as the potential outcome is not
criminal liability, but rather parole revocation (although the Board notes that this may
have a significant impact on the applicant’s interests). There is no “party” akin to the
Crown in a criminal proceeding that can represent the public interest. Furthermore,

4 Mugesera v. Canada (Minister of Citizenship and Immigration), 2005 SCC 40.

9
 Hopperton, Peter Blair | 1000893374 | 1986-06-16 |
PED: 2019-02-07

unlike courts in criminal matters, the Board makes decisions on the civil standard of
a balance of probabilities.

[58] The Board is of the view that because of the different functions and purposes
between parole suspension hearings and criminal proceedings, the standard it must
apply in a parole suspension hearing is not the same as that applied by the courts in
criminal proceedings.

[59] The applicable legislative scheme further supports the Board’s finding that there is
no mens rea requirement in considering whether a term of parole has been
breached. If an applicant’s parole is revoked, s. 39(5) of the MCSA provides that the
default result is that the applicant loses their earned remission. However, s. 39(6) of
the MCSA allows the Board to recredit the lost remission if it determines that the
revocation is “through no fault of the” applicant. This suggests a legislative intent that
parole can be revoked even where the revocation is not at all the applicant’s fault.

[60] The Board concludes that its task in this case is to consider all of the information
before it, including information about the applicant’s conduct. It must consider
whether the applicant breached their parole conditions. The Board is not required to
determine that the applicant had the requisite mens rea in order to make that finding.

[61] Even if the Board concludes that there is no breach, it still must consider all of the
information before it, including any information about the applicant’s conduct while
on parole, and ultimately determine whether the applicant would constitute an undue
risk to society if their parole were to be continued. Of course, if the Board did
conclude that an applicant intended to commit a breach, that could constitute a
relevant consideration when determining whether the applicant remains suitable for
parole. As noted, the Board’s paramount consideration in this matter is the
protection of society.

Rights and Freedoms Curtailed on Parole

[62] The applicant submits that the comments made at the community meeting on June
18, 2019 in the Hamilton City Council Chambers constitutes protected speech under
the Canadian Charter of Rights and Freedoms that cannot be found to constitute a
breach of the general parole condition to keep the peace and be of good behavior.

[63] The applicant submits that they consciously exercised their freedom of speech in
this venue, a public space historically intended for free speech and democratic
discourse, truth finding and self-fulfillment. The applicant intended to raise valid
concerns regarding the safety of the attendees at the Pride festival and add their
voice to a political issue that they care deeply about.

[64] According to the applicant, the choice of venue for exercising their right to free
speech was intended to reduce any risk to the community from the applicant’s
comments. According to the applicant, this was achieved given the nature of the
discussion, those present, the venue and the fact that it was not during a protest or
by handing out flyers in the community, which is what led to the applicant’s
underlying conviction. The applicant believes that they should enjoy their right to
freedom of expression in this venue and that the strength of this right would trump
the alleged condition breach.

10
 Hopperton, Peter Blair | 1000893374 | 1986-06-16 |
PED: 2019-02-07

[65] The applicant submitted that the City Council Chambers is a place that is
historically designated for free speech according to the legal test established in
Montréal (City) v. 2952-1366 Québec Inc.5 The applicant also submitted that the
comments did not reach a level that would constitute an undue risk and provided
case law showing that remarks regarding violence must rise to a very high and
specific level as found in the case law.

[66] As noted above, the Board finds that that the comments made by the applicant on
June 18, 2019 are of a similar nature to those that led to the applicant’s underlying
conviction.

[67] The Board finds that a breach of the condition to keep the peace and be of good
behaviour in this case cannot be “trumped” solely by invoking a right to free
expression. Applicants enjoy certain rights and freedoms, including under the
Charter, while on parole. However, the very nature of parole means that many of
these rights and freedoms can be, and indeed, usually are, curtailed. Parole is a
privilege that allows applicants to serve the remaining portion of their custodial
sentence in the community. This privilege, however, is not without obligations.

[68] Parole is usually accompanied by conditions that limit an applicant’s freedoms. For
instance, s. 48 of Ontario Regulation 778 requires the Board to impose statutory
conditions for every parole grant unless it orders otherwise. These presumed
conditions restrict an applicant’s ability to leave Ontario, to associate with certain
persons and to change their employment or residence without permission. The
conditions also required applicants to report to police and their parole officer.
Furthermore, s. 35(2) of the MCSA grants the Board a broad discretion to impose
“conditions that it considers appropriate”. These conditions often further restrict an
applicant’s rights and freedoms. For instance, the Board often imposes a curfew, or
requires an applicant to attend counselling while on parole. Ultimately, the Board
must consider the risk to the community in order to ensure the protection of the
community.

[69] In R. v. M.(C.A.),6 the Supreme Court of Canada enunciated general principles that
apply to sentencing, some of which shed light on the limits on a parolee’s freedom.
The Court stated the following:

But even though the conditions of incarceration are subject to change through a
grant of parole to the offender’s benefit, the offender’s sentence continues in full
effect. The offender remains under the strict control of the parole system, and the
offender’s liberty remains significantly curtailed for the full duration of the
offender’s numerical or life sentence. [Emphasis added]

[70] The applicant’s sentence is continued on parole, not shortened by it. The Board
finds that the applicant’s freedoms are thus significantly curtailed while on parole,
more so than if the applicant had never been convicted and sentenced. The Board
must assess any risk that the applicant poses to the community in light of the
applicant’s previous offences, and in light of all of the information provided to the
Board for the purpose of the post-suspension hearing. The Board rejects the
argument that the applicant’s freedom of expression can provide a form of defence
to the allegation that the applicant breached a parole condition.

5 Montréal (City) v. 2952-1366 Québec Inc., 2005 SCC 62.

6 R. v. M.(C.A.), 1996 CanLII 230, [1996].

11
 Hopperton, Peter Blair | 1000893374 | 1986-06-16 |
PED: 2019-02-07

[71] The Board does note that the applicant has shown some insight since starting
parole. The applicant decided to make their political views known in a safe public
space reserved for free speech, instead of passing out flyers in the streets of
Hamilton that counsel violence, which led to the applicant’s underlying conviction.
The applicant also acknowledged that their previous behaviour was reckless, and
that the applicant was trying to engaged in political discourse on June 18, 2019. The
Board believes that the applicant’s original parole conditions and left ample room for
such discourse. What the conditions did not leave room for is behaviour that does
not keep the peace or show good behaviour, as discussed above.

Parole Revoked and Earned Remission not Recredited

[72] To allow the applicant to continue parole, the Board must be satisfied that the
applicant does not pose an undue risk to society by reoffending while on parole,
and that release on parole will contribute to the protection of society by facilitating
the applicant’s reintegration into society as a law-abiding citizen.

[73] The Board has considered all of the information before it, along with the
applicant’s submissions and those of their counsel as set out above. The Board
finds that the Applicant did not breach special condition number six, but that their
comments and behaviour at the June 18, 2019 meeting constituted a breach of
standard condition number one, to keep the peace and be of good behaviour.

[74] The Applicant has generally demonstrated compliance with their parole conditions
and has stuck to their parole plan, and the Board does recognize that the events
leading up to June 18, 2019 were such that the Pride community was feeling
marginalized and unsafe. The applicant did show insight as to how the applicant
would lend their voice to this cause by choosing an organized meeting at City Hall to
do so. However, the applicant made remarks at the community meeting in an
environment that was full of emotion and tension and, amongst other comments,
stated: “our chance to be peaceful is meaningless unless we have the ability to be
violent” and exclaimed to the two police officers in attendance to “get the fuck out”.
This context is very important in determining if the applicant’s parole suspension
should be lifted.

[75] This meeting occurred only three days after the distressing attack on Pride by
extremist groups. The meeting included a discussion on what happened at the Pride
event and provided an opportunity for members of the community to express their
feelings around the incident, which included concerns about the Hamilton Police
Services.

[76] The Board recognizes that the applicant was motivated to speak to show solidarity
and support for their peers in the community with respect to the violence
demonstrated against their community at Pride. The applicant believed the meeting
was an appropriate forum to express and exchange thoughts, opinions and
feelings. However, when the applicant expresses their views in such a way as to
allow anger and violence to become part of their discourse, this creates an undue
risk to society in light of their history of similar conduct, which resulted in public
disturbances and their incarceration.

[77] In making this decision the Board is aware of s. 101 (c) of the CCRA, which
requires the Board to make decisions which are limited only to what is necessary
and proportionate to the purposes of the conditional release, which are the
protection of society and rehabilitation and reintegration of the parole applicant. In
this case the Board’s concern is not only the applicant’s attendance at public
gatherings where there was a potential for a breach, but also any opportunity for
the applicant, as a prominent person in their community, to allow violence to
become part of their discourse in a public sphere.

12
 Hopperton, Peter Blair | 1000893374 | 1986-06-16 |
PED: 2019-02-07

[78] If the applicant is not able to manage their behaviour appropriately, the Board is
required to consider how to ensure protection of the community. The Board
believes that there are no additional conditions that would make the applicant’s risk
manageable. Placing a further restriction on the applicant’s attendance at any
protests or rallies would not, in the Board’s view sufficiently mitigate the risk that the
applicant will not reoffend. Further, in some cases, participation in the electronic
supervision program is ordered by the Board to monitor an applicant’s adherence to
a curfew. However, that also is not a viable condition in this instance. The
information before the Board is that the parole supervisor was unable to confirm the
residence, and therefore was also unable to confirm that it could facilitate electronic
supervision.

[79] In conclusion, the Board is not satisfied that the applicant will not constitute an
undue risk to society while in parole. Further, the Board believes that the applicant’s
risk cannot be sufficiently mitigated by adding to the applicant’s parole conditions.
To re-iterate what we have set out above, in making our determination it is
important to note that parole is a privilege, not a right. The privilege is conferred if
the Board is satisfied that the applicant will not constitute an undue risk to society
by reoffending on parole, and that the applicant’s release into the community will
protect society by assisting with the applicant’s rehabilitation and reintegration.

[80] As a result of its findings, the Board will revoke the applicant’s parole.

[81] With reference to the Applicant’s earned remission, s. 39(6) of the Ministry of
Correctional Services Act allows the Board to re-credit all or part of an Applicant’s
earned remission in an instance where parole is revoked through no fault of the
Applicant.

[82] The Board concludes that the violations that occurred were within the applicant’s
control and therefore, earned remission is not re-credited

[83] The Board concludes that the applicant would constitute an undue risk to the
community if parole is reinstated. For these reasons, parole is revoked and earned
remission is not re-credited.

DECISION

Parole is revoked. Earned remission is not-reinstated.

Date of Decision: July 08, 2019

M. Helt

M. Letourneau

13