Date: 20040720
Docket: T-308-04
Citation: 2004 FC 1004
BETWEEN:
MICHELE COSCIA
Applicant
and
THE ATTORNEY GENERAL OF CANADA
Respondent
REASONS FOR ORDER
PHELAN J.
INTRODUCTION
[1] Mr. Coscia was denied parole because of his conduct which was variously described as involving Traditional Organized Crime, Organized Crime Affiliation, organized criminal activity. The difficulty in this case is that being "a member of organized crime" has a specific legal context and significance. The use of similar terms causes confusion as to the nature of the National Parole Board's inquiry.
[2] The applicant requests this Court to quash the decision of the National Parole Board Appeal Division (the Appeal Division) which upheld a decision of the National Parole Board (the Board) denying the applicant parole for deportation pursuant to section 102 of the Corrections and Conditional Release Act (the Act). There is also a request for other relief not relevant to the judicial review.
BACKGROUND
[3] The applicant is a 44 year old first time federal offender serving an aggregate of 14 years, 8 months for (a) conspiracy to import and traffic a narcotic; (b) sale of a prohibited weapon; (c) laundering proceeds of a crime; (d) conspiracy to traffic; and (e) uttering death threats.
[4] The applicant had been ordered deported in 1996, and, in 2001 the Minister of Citizenship and Immigration declared the applicant to be a danger to the public. He is to be deported to Italy whenever he is paroled or released.
[5] From the applicant's perspective, if he is successful on his parole application, he is free of prison and living in Italy.
[6] He was denied parole by the Board due to his involvement with "Traditional Organized Crime" . The Corrections Canada's document "Assessment for Decision submitted to the Board contained these comments and findings regarding his criminal association which are important for the context in which similar words were used:
The subject continues to dispute that he was or is affiliated with Traditional Organized Crime, and further indicates that he "does not know anyone that is." The CMT advised that his case is being reviewed against CD568-3, and at this time the CMT have been advised by the IPSO that the subject remains affiliated to Traditional Organized Crime.
Due to the subject's noted historical Organized Crime Affiliations involving his offences, ability to operate comfortably within a highly organized anti-social criminal group, institutional adjustment concerns, as noted in the A4D dated 20010213 regarding drug sub-culture activity, current ongoing Traditional Organized Crime Affiliations, and the noted incidents occurring at FMI, the subject's risk and severity of re-offending presents a concern.
[7] The Board, in denying parole, concluded:
You continue to dispute your involvement in organized criminal activity, insisting that you were not involved with the 'Mafia'. It is clear that your involvement was with criminal others, who were well organized with the sole purpose of committing large scale crime.
[8] The applicant's appeal to the Appeal Division was likewise unsuccessful. The Appeal Division said:
You may not have been a member of organized crime in the legal sense, which was discussed at the hearing. But you were, and did admit to having been involved with criminally minded people, in large-scale criminal activities of an international nature, consisting of high-level cocaine trafficking(sic) and money laundering. The De Luca case referred to by your assistant is distinguishable. Its application would come into play in the accelerated review procedure under sections 125 and 126 of the C.C.R.A. when an inmate had been refused release on the basis of his/her membership in an organized crime group, but where the inmate had not been convicted of a "criminal organization offence" under the Criminal Code.
[9] In this judicial review, the applicant raised the following issues:
a) where constitutional or this Court's jurisprudence is in issue, the standard of review is correctness;
b) the Appeal Division misapplied the law and Board policy particularly as relates to its findings regarding organized crime;
c) that the Appeal Division failed to ensure that the duty of fairness was observed.
ANALYSIS
Standard of Review
[10] The issues raised are essentially questions of law. The issues center on whether the Appeal Division addressed the correct question and applied the correct legal test. The issues also involve the duty of fairness.
[11] Applying the pragmatic and functional approach, there is no reason to accord deference to the Appeal Division on these issues. More importantly, section 18.1(4) of the Federal Court Act and most particularly paragraphs (a), (b), (c) confirm that the applicable standard is correctness.
Error of Law and Policy
[12] The critical point of the applicant's argument is that the Appeal Division considered and treated him as if he were a participant in or contributor to, the activities of a criminal organization. It did so despite no conviction on this ground and no opportunity to adequately defend against that allegation.
[13] The relevant provisions of the Criminal Code are important to bear in mind; particularly the definition of "criminal organization":
| 467.1(1) The following definitions apply in this Act.
"serious offence" means an indictable offence under this or any other Act of Parliament for which the maximum punishment is imprisonment for five years or more, or another offence that is prescribed by regulation.
"criminal organization" means a group, however organized" that
(a) is composed of three or more persons in or outside Canada; and
(b) has as one of its main purposes or main activities the facilitation or commission of one or more serious offences that, if committed, would likely result in the direct or indirect receipt of a material benefit, including a financial benefit, by the group or by any of the persons who constitute the group.
It does not include a group of persons that forms randomly for the immediate commission of a single offence.
(2) For the purposes of this section and section 467.11, facilitation of an offence does not require knowledge of a particular offence the commission of which is facilitated, or that an offence actually be committed.
(3) In this section and in sections 467.11 to 467.13, committing an offence means being a party to it or counselling any person to be a party to it.
467.11(1) Every person who, for the purpose of enhancing the ability of a criminal organization to facilitate or commit an indictable offence under this or any other Act of Parliament, knowingly, by act or omission, participates in or contributes to any activity of the criminal organization is guilty of an indictable offence and liable to imprisonment for a term not exceeding five years.
(3) In determining whether an accused participates in or contributes to any activity of a criminal organization, the Court may consider, among other factors, whether the accused (a) uses a name, word, symbol or other representation that identifies, or is associated with, the criminal organization;
(b) frequently associates with any of the persons who constitute the criminal organization;
(c) receives any benefit from the criminal organization; or
(d) repeatedly engages in activities at the instruction of any of the persons who constitute the criminal organization.
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467.1(1) Les définitions qui suivent s'appliquent à la présente loi.
« infraction grave » Tout acte criminel - prévu à la présente loi ou à une autre loi fédérale - passible d'un emprisonnement maximal de cinq ans ou plus, ou toute autre infraction désignée par règlement.
« organisation criminelle » Groupe, quel qu'en soit le mode d'organisation:
a) composé d'au moins trois personnes se trouvant au Canada ou à l'étranger;
b) dont un des objets principaux ou une des activités principales est de commettre ou de faciliter une ou plusieurs infractions graves qui, si elles étaient commises, pourraient lui procurer - ou procurer à une personne qui en fait partie -, directement ou indirectement, un avantage matériel, notamment financier.
La présente définition ne vise pas le group d'individus formé au hasard pour la perpétration immédiate d'une seule infraction.
(2) Pour l'application du présent article et de l'article 467.11, il n'est pas nécessaire, pour qu'il y ait facilitation d'une infraction, que la nature de celle-ci soit connue, ni que l'infraction soit réellement commise.
(3) Au présent article et aux articles 467-11 à 13, le fait de commettre une infraction comprend le fait de participer à sa perpétration ou de conseiller à une personne d'y participer.
467.11(1) Est coupable d'un acte criminel et passible d'un emprisonnement maximal de cinq ans quiconque sciemment, par acte ou omission, participe à une activité d'une organisation criminelle ou y contribue dans le but d'accroître la capacité de l'organisation de faciliter ou de commettre un acte criminel prévu à la présente loi ou à une autre loi fédérale.
(3) Pour déterminer si l'accusé participe ou contribue à une activité d'une organisation criminelle, le tribunal peut notamment prendre en compte les faits suivants:
a) l'accusé utilise un nom, un mot, un symbole ou une autre représentation qui identifie l'organisation criminelle ou y est associée;
b) il fréquente quiconque fait partie de l'organisation criminelle;
c) il reçoit des avantages de l'organisation criminelle;
d) il exerce régulièrement des activités selon les instructions d'une personne faisant partie de l'organisation criminelle.
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[14] The designation of "being involved in organized crime" is recognized by Corrections Canada as a significant matter both to the institution, the public and the individual so identified. Correction Services Canada has an internal policy dealing with membership in Criminal Gangs, Directive 576-3. That policy sets out criteria for identification of those involved in organized crime including the requirement for a judicial finding and various procedural rights to allow a challenge to a finding that a person is a criminal gang member.
[15] As noted earlier, the terms "organized crime" and "criminal organization" arose constantly at both the Board and Appeal Division levels. The applicant kept repeating that he was not a member of organized crime such as the Mafia whereas the Board and the Appeal Division found him, in fact if not in law, to be a member of organized crime.
[16] A review of the transcript leads me to conclude that at many times the applicant and the Appeal Division were talking at cross purposes. Imprecise questions led to imprecise answers from which the Appeal Division concluded the applicant to be evasive.
[17] The applicant relies on De Luca v. Canada, [2003] FCT 261 as indicating both a constitutional value and court precedent that a person cannot be considered as a member of a criminal organization absent a specific court finding. The Appeal Division held this decision to be distinguishable from the case at bar.
[18] The Appeal Division is correct in that De Luca was a situation where Correctional Services Canada failed to follow section 125 of the Act when it held De Luca to be ineligible for parole because he was a member of a criminal organization. The Act required a conviction on that ground before parole could be denied.
[19] However the underlying principle of De Luca is that one cannot be treated as a member of a "criminal organization" unless there is a conviction. I conclude further that the Board cannot do so either directly or indirectly unless there is such a court finding.
[20] Throughout the proceedings at the Board and at the Appeal Division, the words "organized crime" and "criminal organization" are used loosely; sometimes synonymously, sometimes differentially. At best, this results in confusion as to what the Appeal Division had in mind and to what aim their inquiry was directed.
[21] At worst, the loose use of the term "organized crime" results in the Board and Appeal Division treating the applicant as if he were a member of a criminal organization, thus doing indirectly that which they could not do directly.
[22] Perhaps no better example of both the best and worse case scenarios is the Appeal Division conclusion:
You may not have been a member of organized crime in the legal sense, which was discussed at the hearing. But you were, and . . . .
[23] There is no legal definition of "organized crime" in the relevant legislation. It is impossible to know what "organized crime" means in a legal sense or what the Appeal Division meant by their use of the term.
[24] In the colloquial sense, an organization such as the Mafia is considered as part of organized crime. In the legal sense of the Criminal Code, the Mafia or Hell's Angels could also be a "criminal organization".
[25] The Appeal Division's conclusion could be a recognition that the applicant was not convicted of being a member of a criminal organization but, to use vernacular phrasing, "we know that you really were, so we will treat you that way".
[26] It is an error of law in this case to inquire into and apply a legal test of "member of organized crime" where no such definition exists or the use of these words was never made clear.
[27] It is a further error to apply or to adopt, as the Appeal Division did, such terms as "Traditional Organized Crime, and "Traditional Organized Crime Affiliation" without indicating what is to be understood by those terms.
[28] Had there been greater clarity as to what the Appeal Division meant and therefore the nature of their inquiry, there may be little wrong with the conclusion. It is important for the Board and the Appeal Division to make clear what it meant by those terms, particularly where there is defined term "criminal organization".
[29] On this ground alone, the applicant is entitled to have the Appeal Division's decision quashed.
DUTY OF FAIRNESS
[30] To a large extent, this issue is subsumed in the issue of law discussed above. It is unfair to put to an applicant or to use terms which are susceptible of different meanings, without indicating in what manner the terms are to be understood.
[31] A review of the transcript and the reasons of the Appeal Division show that a significant amount of time and effort was spent attempting to have the applicant admit that he was a member of organized crime. At times both the words used and tone (as evident from the tapes) suggests a degree of antagonism on the part of the Appeal Division. This could be explained as frustration with the perceived evasiveness of the applicant, a situation contributed to by the nature of the questions posed by the Board and the underlying purpose of the questions.
[32] The hearing by the Appeal Division appeared to be more of an attempt to classify the applicant's crimes as a crimes under section 467.1 of the Criminal Code than an attempt to assess risk to the Canadian public. There was little attention paid to the fact that the risk would be significantly lessened by the applicant's immediate deportation.
[33] Even if this issue of criminal organization is properly within the purview of the Appeal Division, if it intends to reach a conclusion on that issue, the applicant is entitled to procedural protection at least similar to that of the Corrections Commissioner's Directive 568-3.
CONCLUSION
[34] For these reasons I also find that the applicant was denied procedural fairness.
[35] For these reasons, the decision of the Appeal Division is quashed and the matter remitted back to be determined by a differently constituted panel.
[36] The applicant shall have his costs in an amount sufficient to fully reimburse Legal Aid Ontario for the costs of bringing this application for judicial review.
"Michael L. Phelan"
Judge
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
DOCKET: T-308-04
STYLE OF CAUSE: MICHELE COSCIA v. ATTORNEY GENERAL OF CANADA
DATE OF HEARING: June 8, 2004
PLACE OF HEARING: Toronto, Ontario
REASONS FOR ORDER
AND ORDER: Phelan J.
DATED: July 20, 2004
APPEARANCES BY:
Mr. John Hill
For the Applicant
Ms. Sadian Campbell
For the Respondent
SOLICITORS OF RECORD:
Mr. John Hill
Toronto, Ontario
For the Applicant
Ms. Sadian Campbell
Department of Justice Ontario Regional Office
Toronto,Ontario
For the Respondent
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