BETWEEN:
and
THE ATTORNEY GENERAL OF CANADA
REASONS FOR ORDER
[1] This is an application for judicial review of a decision of the National Parole Board - Appeal Division dated September 27, 2004, in support of the ongoing and continuing detention of the Applicant within the federal penitentiary system until the expiry of his sentence in accordance with sections 129(2)(a)(i) and 130(3) of the Corrections and Conditional Release Act, S.C. 1992, c.20 (CCRA).
[2] The Applicant, Alex Yaari, previously known as Alexander Sergeevich Podlesny, was found guilty of one count of manslaughter and one count of robbery by the Ontario Court (General Division), and was sentenced on March 7, 1994 to 16 years imprisonment on the robbery count and 6 years, concurrent, on the manslaughter count. This conviction and sentence was upheld on appeal. Accordingly, the Applicant was incarcerated in a federal penitentiary. His statutory release date was November 5, 2004, and his warrant expiry date is March 6, 2010.
[3] The Applicant was born in Russia, immigrated to Israel and subsequently to Canada. If released from imprisonment in Canada it appears that he will be deported to Israel. The Applicant underwent a Detention Review which, if successful, would have entitled him to release for deportation as of the statutory release date. Such a review was conducted by the National Parole Board - Trial Division, which Board on July 8, 2004 made a decision. Its assessment of risk was that it was satisfied that, if released, the Applicant would be likely to commit an offence causing serious harm to another person before the expiry of the sentence he is now serving according to law, thus he was denied release on the statutory date. That decision was affirmed by the National Parole Board - Appeal Division on September 27, 2004. That affirmation is the subject of this judicial review.
[4] Statutory release which is sought by the Applicant in this case has been described as an "uncertain right", one that may be withdrawn before it is exercised. Décary J.A. for the Court in Cartier v. Canada(Attorney General),[2003] 2 F.C. 317 (F.C.A.) said at paragraph 12:
Statutory release is a right conferred by subsection 127(1) "subject to any provision of this Act". In a case like that of Mr. Cartier, section 129 imposes on the Commissioner a duty, before allowing the offender to exercise this right, to have the case reviewed by Corrections Canada, which may involve referral to the Commission; the latter after review may "order that the offender not be released" (subsection 130(3)). The right to statutory release is therefore a right which may be withdrawn by the Commission even before it is exercised. In this sense, it is an uncertain right, a right which is not really guaranteed. ...
[5] In considering whether statutory release is appropriate, the Board is required to conduct a review in accordance with section 130(1) of CCRA which states:
130. (1) Where the case of an offender is referred to the Board by the Service pursuant to subsection 129(2) or referred to the Chairperson of the Board by the Commissioner pursuant to subsection 129(3) or (3.1), the Board shall, subject to subsections 129(5), (6) and (7), at the times and in the manner prescribed by the regulations,
(a) inform the offender of the referral and review, and
(b) review the case,
and the Board shall cause all such inquiries to be conducted in connection with the review as it considers necessary.
[6] The criteria to be used by the Board in conducting such a review where a person has been convicted of an offence causing death or serious harm is set out in section 132(1) of CCRA:
132. (1) For the purposes of the review and determination of the case of an offender pursuant to section 129, 130 or 131, the Service, the Commissioner or the Board, as the case may be, shall take into consideration any factor that is relevant in determining the likelihood of the commission of an offence causing the death of or serious harm to another person before the expiration of the offender's sentence according to law, including
(a) a pattern of persistent violent behaviour established on the basis of any evidence, in particular,
(i) the number of offences committed by the offender causing physical or psychological harm,
(ii) the seriousness of the offence for which the sentence is being served,
(iii) reliable information demonstrating that the offender has had difficulties controlling violent or sexual impulses to the point of endangering the safety of any other person,
(iv) the use of a weapon in the commission of any offence by the offender,
(v) explicit threats of violence made by the offender,
(vi) behaviour of a brutal nature associated with the commission of any offence by the offender, and
(vii) a substantial degree of indifference on the part of the offender as to the consequences to other persons of the offender's behaviour;
(b) medical, psychiatric or psychological evidence of such likelihood owing to a physical or mental illness or disorder of the offender;
(c) reliable information compelling the conclusion that the offender is planning to commit an offence causing the death of or serious harm to another person before the expiration of the offender's sentence according to law; and
(d) the availability of supervision programs that would offer adequate protection to the public from the risk the offender might otherwise present until the expiration of the offender's sentence according to law.
[7] The procedure followed by the Board in conducting its review has been described as "inquisitorial" by the Supreme Court of Canada in Winko v. British Columbia, [1999] 2 S.C.R. 625. At paragraph 54, McLachlin J. (as she then was) for the majority said:
The regime's departure from the traditional adversarial model underscores the distinctive role that the provisions of Part XX.1 play within the criminal justice system. The Crown may often not be present at the hearing. The NCR accused, while present and entitled to counsel, is assigned no burden. The system is inquisitorial. It places the burden of reviewing all relevant evidence on both sides of the case on the court or Review Board. The court or Review Board has a duty not only to search out and consider evidence favouring restricting NCR accused, but also to search out and consider evidence favouring his or her absolute discharge or release subject to the minimal necessary restraints, regardless of whether the NCR accused is even present. This is fair, given that the NCR accused may not be in a position to advance his or her own case. The legal and evidentiary burden of establishing that the NCR accused poses a significant threat to public safety and thereby justifying a restrictive disposition always remains with the court or Review Board. If the court or Review Board is uncertain, Part XX.1 provides for resolution by way of default in favour of the liberty of the individual.
At paragraph 70 she said:
...It is for the court or Review Board, acting in an inquisitorial capacity, to investigate the situation prevailing at the time of the hearing and determine whether the accused poses a significant threat to the safety of the public....
At paragraph 185, Gonthier J. for the minority said:
...Second, the whole process before the court or the Review Board is inquisitorial and not adversarial. There are no parties. There is no burden of proof. This system, in the interest of the NCR accused, protects the integrity of the professional relationships involved. It allows for a better assessment of the condition of the NCR [page717] accused which, in turn, leads to a more accurate determination of the disposition that will best serve the needs of the NCR accused and his or her reintegration into society and be the least onerous and restrictive upon the NCR accused while protecting the safety of the public. ...
[8] The decision of the National Parole Board - Trial Division is subject to an appeal to the Appeal Division. The Appeal Division must be satisfied before ordering the immediate release of an offender that the decision appealed from "cannot reasonably be supported in law". It is the decision of the Appeal Division that is under review here. This unaccustomed situation means that caution is necessary in applying the usual rules of administrative law. As Décary J.A. said in Cartier v Canada(AG), supra at paragraphs 6 to 10:
6 The Appeal Division is a hybrid. It hears the offender's "appeal" and paragraph 147(4)(d) authorizes it to reverse, cancel or vary the decision made by the Commission against him. That is a power associated with an appeal. However, the grounds of appeal listed in subsection 147(1) are essentially those associated with judicial review and subsection 147(4) uses the phrase "on the completion of a review" (my emphasis). What is more, paragraph 147(5)(a) considerably reduces the Appeal Division's power of intervention, and at the same time significantly reinforces the status of the Commission's decision, when it requires the Appeal Division to be "satisfied" before rendering a decision "that results in the immediate release of an offender" that:
... the decision appealed from cannot reasonably be supported in law, under the applicable policies of the Board, or on the basis of the information available to the Board in its review of the case.
7 Paragraph 147(5)(a) is troubling, to the extent that it imposes a standard of review which for all practical purposes applies only when the Appeal Division, pursuant to paragraph 147(4)(d), reverses the Board's decision and permits the offender to be released. What standard should be applied when, as in the case at bar, the Appeal Division affirms the Board's decision pursuant to paragraph 147(4)(a)?
8 Paragraph 147(5)(a) appears to indicate that Parliament intended to give priority to the Board's decision, in short to deny statutory release once that decision can reasonably be supported in law and fact. The Board is entitled to err, if the error is reasonable. The Appeal Division only intervenes if the error of law or fact is unreasonable. I would be inclined to think that an error of law by the Board as to the extent to which it must be "satisfied" of the risk of release -- an error [page327] which is alleged in the case at bar -- is an unreasonable error by definition as it affects the Board's very function.
9 If the applicable standard of review is that of reasonableness when the Appeal Division reverses the Board's decision, it seems unlikely that Parliament intended the standard to be different when the Appeal Division affirms it. I feel that, though awkwardly, Parliament in paragraph 147(5)(a) was only ensuring that the Appeal Division would at all times be guided by the standard of reasonableness.
10 The unaccustomed situation in which the Appeal Division finds itself means caution is necessary in applying the usual rules of administrative law. The judge in theory has an application for judicial review from the Appeal Division's decision before him, but when the latter has affirmed the Board's decision he is actually required ultimately to ensure that the Board's decision is lawful.
[9] In the present case, the Appeal Division affirmed the decision of the Board not to permit statutory release.
[10] The Applicant raised five issues in its factum and most vigorously presented in oral argument one of them, Issue B - These issues were:
A. Whether the standard of review should be correctness, reasonableness simpliciter or patent unreasonableness;
B. Does the duty to act fairly in an inquisitorial system obligate the Board to treat the informing parties equally, in respect of questioning for the purpose of completing a fair and balanced investigation, in the absence of any clear reason to treat them differently?
C. Whether the CSC informant's information of past criminal conduct was sufficiently reliable and persuasive in light of requirement for detention in s. 132(1) of the CCRA;
D. Whether the CSC informant's information of past sexual assault convictions was relevant; and
E. Whether the Board made an error in law in finding the Applicant to be a member of a criminal organization.
As to Issue A
[11] I am informed by counsel for the Respondent that there is presently before the Federal Court of Appeal a case, Condo v. Canada (AG) F.C.A. A-244-05, in which the issue as to the level of deference to be afforded to the Appeal Division has been raised and may well be decided. Counsel for the Respondent states that, for the purposes of this judicial review, that the Respondent was content to proceed on either standard, namely, that of reasonableness simpliciter or that of patent unreasonableness. This being so, I am prepared to proceed in as much as a question of fact, or mixed fact and law is concerned, on the standard of reasonableness simpliciter. Of course, as stated by the Supreme Court of Canada in Mugesera v. Canada (MCI), 2005 SCC 40 at paragraph 37 "... questions of law are reviewable on a standard of correctness."
As to Issue B
[12] The Applicant argues that the Board being inquisitorial in nature, is bound by a duty of fairness to act aggressively as if it were counsel for both parties, including the Applicant. Thus, he argues, if the Board sees an opportunity to question or impair the effect of some piece of factual evidence, it must make inquiries as to such matters including cross-examination where appropriate.
[13] By way of example the Applicant argues that evidence as to the Applicant's alleged incarceration in Russia for assault should have been challenged on the basis that there was other evidence that during the same time period the Applicant was met by a colleague on a public street in Russia, was hospitalized and was married. The Applicant argues that the Parole Officer, who was the only person who, other than the Applicant, presented evidence to the Board, should have been questioned as to the reliability of the evidence regarding the Applicant's alleged incarceration. Clearly the Officer would have no personal knowledge as to any of the events in Russia, however, the Officer should have been questioned as to the reliability of such evidence, the Applicant argues.
[14] The Applicant made no protest to the Board during the hearing as to this issue, nor did he attempt to ask that questions of this nature be put to the Officer by the Board. The Applicant did not raise this issue with the Appeal Division. It appears that this issue was formulated for the first time for the purposes of this judicial review application and, while the Court will deal with this issue, matters of this kind that were not previously raised, will be viewed sceptically.
[15] The role of the Board and the Correctional Service of Canada (CSC) is set out in the CCRA including sections 23(1), 24(1), 25(1), 101(b) and 129(4) which provide:
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23. (1) When a person is sentenced, committed or transferred to penitentiary, the Service shall take all reasonable steps to obtain, as soon as is practicable,
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23.(1) Le Service doit, dans les meilleurs délais après la condamnation ou le transfèrement d'une personne au pénitencier, prendre toutes mesures possibles pour obtenir : a) les renseignements pertinents concernant l'infraction en cause;
b) les renseignements personnels pertinents, notamment les antécédents sociaux, économiques et criminels, y compris comme jeune contrevenant;
c) les motifs donnés par le tribunal ayant prononcé la condamnation, infligé la peine ou ordonné la détention -- ou par le tribunal d'appel -- en ce qui touche la peine ou la détention, ainsi que les recommandations afférentes en l'espèce;
d) les rapports remis au tribunal concernant la condamnation, la peine ou l'incarcération;
e) tous autres renseignements concernant l'exécution de la peine ou de la détention, notamment les renseignements obtenus de la victime, la déclaration de la victime quant aux conséquences de l'infraction et la transcription des observations du juge qui a prononcé la peine relativement à l'admissibilité à la libération conditionnelle.
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| 24. (1) The Service shall take all reasonable steps to ensure that any information about an offender that it uses is as accurate, up to date and complete as possible. |
24.(1) Le Service est tenu de veiller, dans la mesure du possible, à ce que les renseignements qu'il utilise concernant les délinquants soient à jour, exacts et complets. |
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| 25. (1) The Service shall give, at the appropriate times, to the National Parole Board, provincial governments, provincial parole boards, police, and any body authorized by the Service to supervise offenders, all information under its control that is relevant to release decision-making or to the supervision or surveillance of offenders. |
25.(1) Aux moments opportuns, le Service est tenu de communiquer à la Commission nationale des libérations conditionnelles, aux gouvernements provinciaux, aux commissions provinciales de libération conditionnelle, à la police et à tout organisme agréé par le Service en matière de surveillance de délinquants les renseignements pertinents dont il dispose soit pour prendre la décision de les mettre en liberté soit pour leur surveillance.
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| 101. The principles that shall guide the Board and the provincial parole boards in achieving the purpose of conditional release are |
101.La Commission et les commissions provinciales sont guidées dans l'exécution de leur mandat par les principes qui suivent : |
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b) elles doivent tenir compte de toute l'information pertinente disponible, notamment les motifs et les recommandations du juge qui a infligé la peine, les renseignements disponibles lors du procès ou de la détermination de la peine, ceux qui ont été obtenus des victimes et des délinquants, ainsi que les renseignements et évaluations fournis par les autorités correctionnelles; |
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| 129(4) At the request of the Board, the Service shall take all reasonable steps to provide the Board with any additional information that is relevant to a case referred pursuant to subsection (2) or (3). |
129 (4) À la demande de la Commission, le Service fait le nécessaire pour lui transmettre tous renseignements supplémentaires utiles concernant les cas déférés aux termes du paragraphe (2) ou (3). |
[16] An unofficial copy of an excerpt of the transcript of the proceedings, including the oral evidence given by the Officer and the Applicant, including questions and opportunities given for questions, was provided. The Applicant was advised "If you have any questions, ask?" The Officer brought the Board up to date as to the status of the Applicant's file. The incarceration in Russia was not discussed in any of the transcript offered in evidence. The Applicant had no questions. The Applicant was then questioned by the Board and, with respect to his incarceration in Russia, this exchange occurred:
Board Member
Q: What about allegations that's in the file material that you are convicted of and received a two year sentence in Russiafor "ruffianly behaviour"?
Mr. Yaari
A: No, it's not okay.
Board Member
Q: Which I guess is assaultive-type behaviour, the translation in the file materials, anyways?
Mr. Yaari
A: I never, I never did assault.
[17] The Applicant at no time denied that he was incarcerated, he only denied that he committed an assault.
[18] Parliament has established a procedure whereby applications for statutory release as an "uncertain right" may be considered. The CSC is to provide relevant evidence, the Board is to take into account all available evidence that is relevant to the case. The Applicant has been given an opportunity to provide his own evidence including answering questions put by the Board and was given an opportunity to put questions himself. The fact that the Board and not separate counsel, put questions to the Officer and to the Applicant, does not mean that there was a lack of fundamental procedural fairness. The Board treated the evidence and the persons before it fairly and equally. Furthermore the Appeal Division concluded that the Applicant received a fair hearing. Neither the Board nor the Appeal Division made any reviewable error.
As to Issue C
[19] Section 132(1) of the CCRA, previously set out, provides a list of criteria to be considered by the Board in its determination as to statutory release. These determinations need not be considered as, individually, having equal weight in each case. They are to guide the Board in considering, taking into account the circumstances of each case, whether statutory release is appropriate.
[20] The Board concluded "having reviewed the legislated criteria" that the Applicant be detained. The Appeal Division found "...that the Board conducted a fair risk assessment in accordance with the detention criteria." This Court finds, on the record, no reviewable error.
Further Evidence
[21] The Applicant's counsel at the hearing of this application, made an oral application to this Court to introduce further evidence consisting of an affidavit from a person in Counsel's office to which certain material was attached as an exhibit. Applicant's counsel stated that he had indicated to Respondent's counsel several months previous, that he would be seeking to introduce such evidence into the record. However, Applicant's counsel never filed or served an appropriate motion for permission to introduce such material and had no reasonable explanation for the failure to do so. I reluctantly allowed such affidavit to be filed, largely to avoid any allegation of prejudice or other argument should this matter be appealed, subject to any weight that I may give the evidence, or any exclusion that I might order having seen it.
[22] This evidence comprises an affidavit from a person in the office of the Applicant's counsel to which is attached Interpol Reports dated March 12, 2005 , March 18, 2005 and March 30, 2005, that is, they are dated after the Board's decision and after the Appeal Division's decision. The Report of March 12 states that Interpol Moscow informed that the Applicant was "not registered in their Central Criminal Records and is not wanted in their country." The Report of March 18 states inter alia, that the Applicant "is under investigation for involvement in murder". The Report of March 30 states that Interpol Moscow advised that the Applicant is "not wanted in our country" and that a criminal case involving the disappearance of a French national "was suspended". Applicant's counsel argues that this evidence contradicts evidence before the Board which included an earlier Interpol Report stating, inter alia:
We have the following information on our criminal files concerning the subjects mentioned in your radio:
1. Yaari F/N Alexander alias Podlesny S/O Serguei born in 14/08/59 in Magadan (Russia) has the following convictions:
- 29/07/1977 for theft, two years of imprisonment
- 22/11/1977 for rape, ten years of imprisonment. In Genuary was released on probation
- 22/06/83 for ruffianly behaviour, three years six months of imprisonment
[23] This further evidence does not affect this review. First, even if it had been available to the Board at the time of its deliberations, the new evidence does not say that the Applicant was not incarcerated in Russia at some time in the past. At best it may require further explanation from Interpol. The Applicant, however, in presenting this evidence did not attempt to provide with it any explanation or evidence of his own. Secondly, this information arises after the Board and Appeal Division made their decision. This present proceeding, is a review, not an appeal, and not a continuation of the proceedings before the Board.
[24] I find that this further evidence is irrelevant to this review and, even if relevant, of little or no weight.
As to Issue D
[25] As stated in respect of Issue C, the Board is to consider a number of criteria listed in section 132(1) including (1)(a)(iii) information demonstrating "sexual impulses". The Board is entitled to rely on evidence, including hearsay evidence, in coming to its determination. As with Issue C, the Board considered all criteria and gave no criteria undue or unbalanced consideration. The Appeal Division affirmed the Board's determination. No reviewable error has been made.
As to Issue E
[26] This issue concerns allegations of "membership in a criminal organization". The Board in its determination said:
"Specifically you denied... involvement in the Caucus Group which is identified as the Russian Mafia faction in the Torontoarea;"
The Appeal Division stated, in its Reasons:
As for your involvement in an organized crime group in Toronto with ties to the Russian Mafia, we find that there was sufficient relevant and reliable information to connect you to such a group (see R.C.M.P. Investigation Report from the Combined Forces Special Enforcement Unit dated January 25, 1999 and the Assessment for Decision dated January 8, 2004).
[27] The Applicant relied upon the Federal Court decision in Coscia v Canada (A.G.), [2004] F.C.J. 1225 for the proposition that one cannot be treated, indirectly or directly, as a member of a "criminal organization" unless there has been a conviction. The Applicant has never been so convicted.
[28] This principle is not applicable here. Coscia was appealed and in its decision of April 14, 2005, cited as 2005 FCA 132, the Federal Court of Appeal stated that the conclusion of the Trial Judge in this respect "is flawed."
[29] Further, Coscia and the decision upon which the Federal Court based its findings, DeLuca v. Canada (A.G.), [2003] FCT 261 were cases involving judicial review of decisions regarding parole in respect of which section 125(1)(a)(vi) is pertinent in addressing "a criminal organization offence within the meaning of section 2 of the Criminal Code".
[30] In this case we are dealing with consideration by the Board of release upon the expiry of the statutory term, under the provisions of section 132(1) of the CCRA. That section does not speak directly to "criminal organization" rather it directs the Board to consider more broadly "the likelihood of the commission of an offence causing the death or serious harm to another person." Subsection (c) requires consideration of reliable information as to whether any such offence is being planned by the Applicant. These various subsections (a) through (d) are considerations to be "included" in the Boards overall determinations. Possible association with a group is something the Board could consider, whether or not it was a "criminal organization" within the meaning of the Criminal Code. Whether or not there was a conviction is not relevant to those considerations.
[31] The Applicant has not demonstrated that the Board has committed any reviewable error, nor the Appeal Division, even on a reasonableness simpliciter criteria. Further, there has been no breach of natural justice or fairness to the Applicant in the process.
[32] This Application will be dismissed with costs to the Respondent, which I fix in the sum of $2500.00.
"Roger T. Hughes"
JUDGE
Toronto, Ontario
October 3, 2005
FEDERAL COURT
NAME OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-1969-04
STYLE OF CAUSE: ALEX YAARI
Applicant
and
THE ATTORNEY GENERAL OF CANADA
Respondent
PLACE OF HEARING: OTTAWA, ONTARIO
DATE OF HEARING: SEPTEMBER 21, 2005
APPEARANCES:
Mr. Brian A. Callender FOR THE APPLICANT
Ms. R. Jeff Anderson FOR THE RESPONDENT
SOLICITORS OF RECORD:
Brian A. Callender
Kingston, Ontario FOR THE APPLICANT
John H. Sims Q.C.
Deputy Attorney General of Canada
FOR THE RESPONDENT