Michael Silva v Parole Board
| Jurisdiction | Belize |
| Judge | Madam Justice Martha Alexander |
| Judgment Date | 17 July 2023 |
| Docket Number | CLAIM NO 118 of 2023 |
| Court | Supreme Court (Belize) |
BEFORE THE HONOURABLE Madam Justice Martha Alexander
CLAIM NO 118 of 2023
IN THE HIGH COURT OF BELIZE A.D. 2023
Ms. Sheena Pitts and Mr. Anthony Sylvestre for the Applicant
Ms. Alea Gomez and Mr. Jarvis Lou for the Respondent
This decision relates to an application for leave to apply for judicial review. The applicant is an inmate at the Belize Central Prison serving a sixteen year sentence for manslaughter. He seeks judicial review of the decision of the respondent (“the Board”) to deny him parole, without giving any reasons. He contends that the proper procedures were not followed and/or not known to him when the Board denied his parole.
The Board opposes the application on the grounds of delay; the existence of an alternative remedy that the applicant has not utilized and that there is no arguable case with a realistic prospect of success.
I grant the applicant leave to apply for judicial review. He raises an arguable case, not one that is frivolous or groundless and has sufficient interest in this matter. I did not find that the alternative remedy, as suggested by the Board, of a renewed application for parole a viable route or one that will provide the necessary answers. The lawfulness of the Board's process in arriving at its decision is subject to review; it is in the interest of the public for the court to look at the procedures used by the Board to arrive at its decision.
The applicant states that by November, 2021 he had served eight years of his sixteen year sentence and was eligible for release on parole. He was refused parole the first time that his case went to the Board for consideration in November, 2021 without reasons being given. He knew only that he was interviewed by a Dr. Matus Torres, before the first parole hearing, but was told nothing about the doctor's report or if the Board had considered it at that hearing.
His case came up for reconsideration, virtually, on November 24, 2022 and, again, he was refused parole. He was not given any reasons for the refusal and was unaware of the factors considered. Being dissatisfied with the decision on November 24, 2022 and the uncertainty in which he finds himself as to the Board's procedures, the applicant seeks leave to review.
The applicant seeks leave to apply for the following orders:
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i. Permission to apply for judicial review for a writ of certiorari to quash the decision of the respondent made on or about November 21, 2022 to November 24, 2022 denying the applicant's release on parole.
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ii. Permission to apply for judicial review for a declaration that the decision of the respondent made on or about November 21, 2022 to November 24, 2022 denying the applicant's release on parole is unreasonable, irrational and erroneous in law.
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iii. Permission to apply for judicial review for an order of mandamus directing the respondent to now properly exercise its functions and/or duties under sections 4(1) and 4(3) of the Parole Act to consider the applicant's parole case for release on parole.
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iv. An order for disclosure of all documents, minutes, and transcript of meetings and/or hearings of the respondent used to consider and determine the applicant's case for release on parole, including written reasons, if any.
The main issue is whether the applicant has met the threshold test to be granted leave to apply for judicial review. This gives rise to two questions: (i) whether the application is subject to any discretionary bar and (ii) whether the applicant has established an arguable case with a realistic prospect of success.
Ms. Pitts states that the applicant satisfies the threshold tests for leave for judicial review. He did not delay in bringing the application since the hearing was on November 24, 2022 and his initial application was filed on February 21, 2023 (i.e. within the timeframe of three months under the rules). The amended application was filed on March 20, 2023 so there was no unreasonable delay in refiling. Delay must be viewed in the context of the party who will suffer the most prejudice by the decision and how, or if, any decision will be detrimental to the good administration of justice. The court is to consider, also, if there is good reason for extending the period for the application.
Ms. Gomez submits, in opposition, that unreasonable delay exists in this case so permission ought to be refused. Rule 56.5 CPR provides a three month window for judicial review, and it is crafted in mandatory terms so noncompliance is a nonstarter. The amended application was filed three months and twenty-four days after learning of the Board's decision after the hearing and on the same day it was made, without any explanation, so leave ought to be denied. 1
In R v Strafford-on-Avon District Council, ex p Jackson, 2 the court held that a failure to act within three months constituted undue delay, which remained ‘ undue’ even if the court was satisfied that there was good reason for it and extended the time limit. She states that this case dealt with Ord 53, 4(1) which is in tandem with Belize's CPR 56.5(1). Without an explanation or application to extend time, leave should be refused. It is detrimental to good administration to allow the applicant to sit on his rights and act in his own time and then seek the court's aid to correct his mistakes.
Ms. Pitts submits that the applicant has no alternative remedy open to him. The legislation makes no provision for a right of appeal to the High Court by an offender who is dissatisfied with a decision of the Board. The legislation also does not provide for “ a collateral review” or reconsideration of his release on license 3 by any other body or any other person. Ms. Pitts acknowledges that the applicant has a right to approach the Governor General to exercise (on advice of the Belize Advisory Council) her prerogative of mercy under section 52(1)(a) or (d) of the Belize Constitution but submits that this remedy is neither practical nor appropriate. She states that the “mercy” avenue must be viewed against the backdrop that since the Board was established, no other system has been put in place by the Governor General to address parole issues. Further, the “ mercy prerogative” cannot be exercised independent from a collateral review of a Board decision.
The applicant, also, cannot seek constitutional relief under section 52(1)(a) & (d) of the Belize Constitution as a form of appeal or review. He was given no reasons for the rejection of his evidence nor was he told why his rehabilitation did not satisfy the considerations of section 4(2) & (3) of the Parole Act. 4 Additionally, section 52(1)(a) & (d) will not resolve the applicant's issue of not being provided with reasons for denying him parole. Without reasons, he is left without any understanding of the Board's considerations hence his present application.
In answer, Ms. Gomez insists that his alternative remedy is to reapply for parole to get the orders he seeks, without court intervention. This right to re-apply, either on his own application or the motion of the Board, is an available, effective and more suitable remedy than judicial review. Counsel accepts that the existence of an alternative remedy does not always mean that the claim must fail. However, the applicant must establish why judicial review is more appropriate than the alternative remedy or be denied permission: see Louis Smith v DPP. 5 The court should not usurp the functions of the appellate body provided by Parliament.
Ms. Pitts states that the applicant has an arguable case with a realistic prospect of success. The Board must consider specific statutory factors and act in the interest of good administration and fairness by giving reasons. It did not. She recommends the approach to judicial review used by the CCJ in Guyana Geology and Mines Commission v BK International Inc. 6 In that case, JCCJ Jamadar recognizes the constitutional underpinning of the rule of law in judicial review. JCCJ Jamadar describes this approach as, “ an integrated, context sensitive, rule of law approach to judicial review …. [which] liberates judicial review from its often stifling limitations and frees it to be applied, when justifiable.” He explains that this is not to abandon the traditional grounds of review but to locate the common law grounds and
Ms. Gomez advances that even if the discretionary bars do not apply, the applicant has no arguable case. The Board did not act ultra vires its powers but considered the requisite statutory factors under section 4(3) of the Act. The Board gave the applicant an audience where he spoke for about twenty minutes. During this address he stated that “ he is still looking for answers.” The Board's decision was neither irrational nor unreasonable since it had sufficient grounds, on the evidence before it, to deny parole to the applicant. The materials considered included the applicant's letters requesting parole and for an audience; recommendation letters from Mr. William Dawson and Mr. Ian Peeples; letter from the applicant's parents showing proof of address; a report from the victim's mother; parole application checklist, information on inmate's rap sheet and behaviour in prison and a psychiatric evaluation report by Dr. Alejandro Matus Torres.
Ms. Gomez submits that the Board is not required to give reasons 7, so it cannot be faulted if it did not. It, therefore, cannot give rise to an arguable case. Ms. Pitts accepts that there is no recognised common law duty on public bodies to give reasons for...
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