Docket: T-1894-03
Citation: 2004 FC 907
Vancouver, British Columbia, Thursday, the 24th day of June 2004
Present: THE HONOURABLE MR. JUSTICE von FINCKENSTEIN
BETWEEN:
IDDI RAMADHANI YUSSUF
Applicant
- and -
ATTORNEY GENERAL OF CANADA
Respondent
REASONS FOR ORDER AND ORDER
[1] In this application, the applicant seeks a writ of certiorari quashing the decision of the National Parole Board ( the "NPB") to deny him a pardon.
[2] The applicant has a criminal record for offenses involving forgery, theft and fraud. His last conviction was entered in May 1993. In May 2000, he was charged with Fraud and Personation with Intent. Specifically, it was alleged that he had attempted to purchase a camcorder using a fake Sears credit card.
[3] In evidence led at trial, a security guard positively identified the applicant. A shop clerk who had not previously been able to pick him out of a photographic lineup also identified him at this time. However, subsequently during the trial, the shop clerk admitted to having been directed to identify the applicant by other individuals. Following this testimony, which suggested that the ID evidence was tainted, the Crown entered a stay of proceedings on March 7, 2001.
[4] On April 9, 2000, the applicant applied for a pardon pursuant to the Criminal Records Act, R.S.C. 1985, c. C-47 (the "Act"). In a letter dated March 28, 2003, the Board advised the applicant that it intended to refuse his application because he had not demonstrated "good conduct" as a result of the 2001 proceedings against him.
[5] The applicant responded in submissions dated April 29, 2003, stating that he had continuously denied any involvement in the offense alleged and that the charges had been stayed due to significant frailties in the Crown's case against him.
[6] In a decision dated September 12, 2003, the Board informed the applicant that his submissions had been considered but his application had nonetheless been denied. The applicant now asks this Court to review the Board's decision.
ISSUES
[7] The Applicant raises two issues:
i) What is the appropriate standard of review?
ii) Did the NPB err in concluding that the applicant had failed to demonstrate "good conduct" since his conviction?
RELEVANT LEGISLATION and POLICY
[8] The following pieces of legislation and policy are relevant to this case:
Criminal Records Act, R.S.C. 1985, c. C-47
3. (1) A person who has been convicted of an offence under an Act of Parliament or a regulation made under an Act of Parliament may apply to the Board for a pardon in respect of that offence....
4. Before an application for a pardon may be considered, the following period must have elapsed after the expiration according to law of any sentence, including a sentence of imprisonment, a period of probation and the payment of any fine, imposed for an offence, namely,
(a) five years, in the case of
(i) an offence prosecuted by indictment....
4.1 (1) The Board may grant a pardon for an offence prosecuted by indictment or a service offence referred to in subparagraph 4(a)(ii) if the Board is satisfied that the applicant, during the period of five years referred to in paragraph 4(a),
(a) has been of good conduct; and
(b) has not been convicted of an offence under an Act of Parliament or a regulation made under an Act of Parliament.
4.2 (1) On receipt of an application for a pardon for an offence referred to in paragraph 4(a), the Board shall cause inquiries to be made to ascertain the conduct of the applicant since the date of the conviction.
Criminal Code, R.S.C. 1985, c. C-46
579. (1) The Attorney General or counsel instructed by him for that purpose may, at any time after any proceedings in relation to an accused or a defendant are commenced and before judgment, direct the clerk or other proper officer of the court to make an entry on the record that the proceedings are stayed by his direction, and such entry shall be made forthwith thereafter, whereupon the proceedings shall be stayed accordingly and any recognizance relating to the proceedings is vacated.
(2) Proceedings stayed in accordance with subsection (1) may be recommenced, without laying a new information or preferring a new indictment, as the case may be, by the Attorney General or counsel instructed by him for that purpose giving notice of the recommencement to the clerk of the court in which the stay of the proceedings was entered, but where no such notice is given within one year after the entry of the stay of proceedings, or before the expiration of the time within which the proceedings could have been commenced, whichever is the earlier, the proceedings shall be deemed never to have been commenced.
NPB Policy Manual: c. 14.1 Clemency and Pardons
.....For the purpose of the CRA, good conduct is defined as a conviction-free period, with no suspicion or allegation of criminal behaviour.
The Board will grant a pardon in respect of indictable offences where no negative information has been received from law enforcement agencies about suspected or alleged criminal behaviour on the part of the applicant since the last conviction /sentence.
Where the Board has received information from law enforcement agencies about suspected or alleged criminal behaviour on the part of the applicant since the last conviction /sentence, it will assess the information and determine whether the pardon should be granted or denied...
Issue i) Standard of Review
[9] In Conille v. Canada (Attorney General), [2003] F.C.J. No. 828, at para. 14, Blanchard J. concluded that the appropriate standard of review for decisions of the NPB as to whether or not an applicant has demonstrated "good conduct" was patent unreasonableness as follows:
It is clear from the cases (Re Therrien, [2001] 2 S.C.R. 3) and from section 2.1 of the Act that the Board has exclusive jurisdiction to grant or issue or refuse to grant or issue or to revoke a pardon. The Act's provisions ensure that the Board has discretionary authority in granting pardons. This is not a right vested in the applicant once the necessary time has elapsed to make an application. The notion of good conduct, found in section 4 of the Act, is not defined; it is essentially a question of assessment of the facts, a matter clearly within the expertise of the Board. This being the case, the applicable standard of review will be the patently unreasonable error on a question of fact.
[10] In Tanner v. Canada (Attorney General), [2003] F.C.J. No. 361, aff'd [2004] F.C.J. No. 24, O'Keefe J. also applied the patent unreasonableness standard to review the NPB's decision to revoke a pardon. I find these cases to be consistent with the pragmatic and functional analysis factors that have been prescribed by the Supreme Court in Dr. Q v. College of Physicians and Surgeons of British Colombia, [2003] S.C.J. No. 18. Accordingly, this case will be reviewed under the patent unreasonableness standard.
Issue ii) Did the NPB err in concluding that the applicant had failed to demonstrate "good conduct" since his conviction?
[11] First, the applicant submits that, pursuant to subsection 579(2) of the Criminal Code, the proceedings stayed in 2001 are, by now, deemed not to have commenced due the expiry of the one year period. Therefore, he submits that the Board erred in relying upon the proceedings in its decision.
[12] This argument is not tenable. While the proceedings are deemed not to have occurred by virtue of s. 579(2) of the Criminal Code, the investigation preceding it and the allegations surrounding the offense that was charged still exist in police records and the NPB can take them into account when making a decision as to the applicant's "good conduct". It is only proceedings, i.e. steps before the courts, that are deemed not to have taken place.
[13] Secondly, the applicant submits that it was not open to the Board to conclude that he "had attempted to purchase a camcorder using a fake Sears credit card," given that he has continuously denied having committed the offense and has outlined significant flaws in the Crown's case. The applicant submits that, in relying upon certain aspects of the police evidence, the Board failed to base its decision on reliable facts and failed to consider all of the circumstances of the case. He distinguishes the facts of this case from those in Conille, supra, on the basis that in that case, reliable evidence existed and the applicant remained a leading suspect in an on-going first degree murder investigation.
[14] The applicant's arguments boil down to this basic contention: the NPB should not be allowed to rely upon police information and criminal allegations which have not been proven in criminal proceedings.
[15] However in Mooring v. Canada (National Parole Board), [1996] 1 S.C.R. 75, Sopinka J. writing for the majority found at para. 29 that:
...The language of the Corrections and Conditional Release Act confers on the Board a broad inclusionary mandate. Not only is it not bound to apply the traditional rules of evidence, but it is required to take into account "all available information that is relevant to a case".
[16] Relying upon this principle, this Court has found in numerous cases that the NPB is obliged to consider a wide range of relevant, reliable evidence in making its decisions. For example, in Prasad v. Canada (National Parole Board) (1991), 5 Admin.L.R. (2d), at pp. 255-6, Rouleau J. concluded that it was open to the NPB to consider, at a detention review hearing, charges for which a conviction was not entered:
It is to be remembered that, at a detention hearing, the applicant's guilt or innocence is not at issue. What is at issue is whether or not there are grounds upon which the board could determine that the applicant, if released prior to the expiry of his sentence, would pose an undue risk on the public. The rules of fairness or natural justice applicable in these proceedings will not necessarily be the same as those which apply to the criminal trial process. I agree with the board that information with regard to these charges is relevant insofar as it is indicative of the applicant's lifestyle and associations.
In summary, I am of the view that this information is relevant and reliable and that its use in a detention hearing does not breach the respondent's duty to act fairly.
[17] Applying the principle set out above to this case, the NPB was obliged to consider all relevant and reliable evidence related to the applicant's behaviour during the relevant five-year period. This included both charges laid, evidence related to those charges, and the resolution of the proceedings.
[18] That is precisely what the Board did here. After acknowledging that a stay had been entered in its March 28, 2003 letter, the NPB's conclusion in its September 12, 2003 letter was as follows:
...We have reviewed all relevant information pertaining to the circumstances surrounding your 2001 charges for Fraud and Personation with Intent. Although one eye witness could not identify you, another eye witness, the store security officer, positively identified you at the scene. After considering all relevant information in your file, we are not satisfied that you meet the good conduct criteria and deny your pardon.
[19] The NPB considered all of the circumstances of the case and concluded that the security officer's evidence was sufficiently reliable and relevant so as to disqualify the applicant from being considered to have demonstrated "good conduct." I cannot find anything patently unreasonable in this finding.
CONCLUSION
[20] Accordingly, this application will be dismissed.
ORDER
THIS COURT ORDERS that the application be dismissed.
(Sgd.) "K. von Finckenstein"
Judge
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-1894-03
STYLE OF CAUSE: IDDI RAMADHANI YUSSUF
- and -
ATTORNEY GENERAL OF CANADA
PLACE OF HEARING: Vancouver, BC
DATE OF HEARING: June 23, 2004
REASONS FOR ORDER AND ORDER: VON FINCKENSTEIN J.
DATED: June 24, 2004
APPEARANCES:
Mark Jetté FOR APPLICANT
Curtis Workun FOR RESPONDENT
SOLICITORS OF RECORD:
Donaldson Jetté FOR APPLICANT
Vancouver, BC
Morris Rosenberg FOR RESPONDENT
Deputy Attorney General of Canada
Ottawa, ON