Trudeau v. Canada (Attorney General), 2002 FCT 441

                                                                                                                                  Date: 20020418

                                                                                                                               Docket: T-678-01

                                                                                                        Neutral citation: 2002 FCT 441

BETWEEN:

                                                             PIERRE TRUDEAU

                                                                                                                                               Plaintiff

                                                                         - and -

                                             ATTORNEY GENERAL OF CANADA

                                                                                                                                           Defendant

                                                        REASONS FOR ORDER

NADON J.

[1]         This is an application for judicial review of a decision by the Appeal Division of the National Parole Board ("the Appeal Division") on March 21, 2001.

[2]         By its decision the Appeal Division upheld the decision of the Trial Division which revoked the plaintiff's full parole and granted him day parole.

[3]         The reasons for the instant application, as set out by the plaintiff in his application for judicial review, are the following:

[Translation]

·                       The Appeal Division of the NPB made an error of law in ruling that the Trial Division was not functus officio when it made a second decision after finding an error had been made within its jurisdiction;

·                        The Appeal Division of the NPB made a decision based on a mistaken finding of fact when it affirmed the patently unreasonable decision of the Trial Division based entirely on erroneous or unreliable facts . . .

[4]         For the following reasons, I have come to the conclusion that the application for judicial review should be dismissed.

[5]         The first error raised by the plaintiff is that the Appeal Division erred when it decided that the Trial Division was not functus officio when it varied the first decision made on November 2, 2000. A brief summary of the facts will help to dispose of this point.

[6]         On March 12, 1992, the plaintiff began serving a term of 4 years and 11 days for property offences and offences against the highway safety code and municipal by-laws. Specifically, between 1989 and 1992 the plaintiff stole automobiles and motorcycles.

[7]         Under s. 119.1 of the Corrections and Conditional Release Act ("the Act"), the plaintiff became eligible for day parole after serving one-sixth of his term of imprisonment. Consequently, the Trial Division first granted the plaintiff day parole. The plaintiff therefore stayed at CRC Phoenix during this period of day parole.

[8]         Under s. 120 of the Act the plaintiff became eligible for full parole after one-third of his sentence had expired. Consequently, the Trial Division on December 10, 1993, then granted him full parole and made his parole subject to residence at the CRC Carrefour Nouveau-Monde (the CRC Phoenix had become the CRC Carrefour Nouveau-Monde).

[9]         In fact, as the defendant pointed out, the plaintiff's full parole situation was exactly the same as his day parole situation, since he had to continue living in a halfway house.

[10]       On August 25, 1993, the plaintiff ceased reporting to the CRC Carrefour Nouveau-Monde and a warrant was issued suspending his parole.

[11]       It was not until May 15, 2000, that the suspension warrant was executed, when the plaintiff was arrested by the police. The plaintiff was therefore unlawfully at large for a little over seven years.

[12]       Under s. 128(1) of the Act, an offender is not presumed to have served his sentence when unlawfully at large. The subsection reads as follows:

[13]       Consequently, as the plaintiff was arrested on August 15, 2000, the final date of his imprisonment became March 12, 2003.

[14]       Correctional Services Canada subsequently proceeded to an assessment of the plaintiff's situation, in order to assist the Commission in making the decision it had to make under s. 135(3)(a)^[1] and s. 135(5) of the Act, which read as follows:

[15]       As appears from these provisions of the Act, the Commission could either revoke the plaintiff's parole, terminate it or cancel the suspension of his parole.

[16]       On November 2, 2000, the Commission held a hearing to make a decision on the plaintiff's case. After hearing the plaintiff and an officer of Correctional Service Canada, the Trial Division rendered the following decision orally, located at pp. 71 to 74 of the transcript of November 2, 2000 :

[Translation]

BY THE MEMBER:

So, Mr. Trudeau, the Board _ we have carefully studied your case before meeting with you. We have taken into account the submissions made by your supervisors and by a clinical advisor. We have also listened to the representations made by your assistant and had a discussion with you.

So, according to that examination the Board has come to the decision that it will cancel the suspension of your parole.

Additionally, you will now be subject, since you are still on full parole _ you are still subject to a sentence and on full parole _ you will be subject to a residence condition for six months, preferably at the CRC Carrefour Nouveau-Monde, and you will also be subject to the special condition you had previously, which is still in effect, not to associate with persons having criminal records. You had this special condition.

The reasons for taking this decision are the following. We have of course reviewed the notes regarding your progress at a halfway house. They mentioned a great deal of difficulty in assuming your responsibilities, a certain immaturity _ which was clearly reflected in a decision to be unlawfully at large. So . . . and subsequently, as well, although . . . what we know of your actions over the last seven years . . . does not appear to have been criminal, you continued to demonstrate irresponsibility by continuing to remain unlawfully at large, and thereby contravening the law.

The Board must of course take into account the risk to society, which we do not feel is an undue risk. Accordingly, we do not see the need to revoke your parole and recommit you: we do not feel this is necessary for the protection of society. However, at the same time we must take into account the measures necessary to ensure social reintegration as a law-abiding citizen.

BY PIERRE TRUDEAU:

O.K.

BY THE MEMBER:

What you were not during the last seven years is respectful of the law. The law tells us to take steps to recommit you. Also, the lifestyle which was described to us, your employment, your income level, clearly suggests . . . raises questions about your maturity and your personal independence. These are all things which may be dealt with in a halfway house where you will receive aid and support to rejoin society, once again, as a law-abiding citizen. These very few words are very important.

So, that is the Board's decision at this time. So, we wish you luck. You will be directed to a halfway house as soon as . . . as soon as possible, that is, as soon as you are accepted. This will preferably be at Carrefour Nouveau-Monde and if by any chance there is a problem _ which is very likely _ it will be in another CRC and there may be a small delay between, not usually very long, but it will be as soon as possible . . .

[17]       As appears from this extract from the transcript, the Trial Division first cancelled the plaintiff's parole suspension pursuant to s. 135(5)(a) of the Act. Secondly, since the Trial Division considered that the plaintiff was still on full parole, it made his full parole subject to two conditions, namely a six-month residence condition and an obligation not to associate with persons having criminal records. On reading the Trial Division's reasons there is no doubt why it imposed conditions on the plaintiff. In the Trial Division's opinion, because in the past, and in particular during the years he was unlawfully at large, the plaintiff had acted irresponsibly, he needed to be recommitted. That is why inter alia the Trial Division imposed a condition of residence in a halfway house, which as the defendant noted amounts to day parole.

[18]       Immediately after rendering its decision the Trial Division was informed by a Correctional Service officer that there was a serious problem with the decision, in that in view of s. 135(11) of the Act, the plaintiff would never have to comply with the conditions imposed on him. Section 135(11) of the Act provides the following:

[19]       Since the suspension of his parole was cancelled, the plaintiff was deemed to have served his sentence during the period beginning on August 25, 1993, and ending November 2, 2000. In these circumstances, the plaintiff would not have to comply with the conditions imposed on him, since his sentence was ended since 1995.

[20]       When it realized the problem which resulted from the decision it had just made, the Trial Division suspended the hearing for a few minutes. On their return the members rendered the following decision, found at pp. 80 to 82 of the transcript of November 2, 2000:

[Translation]

BY THE MEMBER:

The written decision _ which has to be translated _ always takes priority, moreover _ in any case, as regards our method of dealing with oral decisions. However, the oral decision must be corrected to take into account an error of information given to us. That error of information is corrected to reflect the Board's decision in other words, to express the Board's intention appropriately as it remains unchanged.

So, as my colleague said, we can appeal this inconsistency, or in short, this brief shift in the proceeding. You can _ and it is your right. Now, the Board's intention is clear and will be reflected in a decision that will be explained in a few minutes.

                                                                                                    . . . . .

. . . I will tell you how the Board will proceed at this point with the hearing and with the decision to be rendered, since in the course of setting out the Board's decision reflecting its intention, we were informed that the decision might perhaps not express the Board's intention, that in fact the cancellation of the suspension would cancel the warrant _ which was not the Board's intention, since it wished to [ensure] that the risk represented by the individual would be properly controlled.

So, at the present time, I consider your intervention as completed and I will render the Board's decision as revised at this time.

So, Mr. Trudeau, the Board's intention was that your actions and the way you did your time in the halfway house, the decision to be unlawfully at large, to remain unlawfully at large, the information we subsequently had on your lifestyle which may reflect a certain lack of maturity and independence, lead the Board to conclude that there is an undue risk to society . . . full parole and so revokes your full parole.

However, the Board also takes into account the other information which is that, according to all the available information, you did not commit any other criminal activities and your stay in the halfway house gave you the assistance and the supervision you needed to assume your place in society.

So, the Board is of the view that there is no undue risk to society on day parole, and as such grants you day parole, a short stay in the CRC Carrefour Nouveau-Monde, preferably, for a period of six months, accompanied by the special condition that you avoid . . . that you are not in contact with persons having criminal records.

[21]       Also on November 2, 2000, the Trial Division rendered a written decision, confirming the oral decision rendered earlier. The written decision reads in part as follows:

[Translation]

After discussing the matter with you during the hearing, the Board found that your general attitude was positive. Despite this, you have demonstrated over the last seven years irresponsibility and a certain inability to observe the law and to accept the consequences of your decisions. These problems had been noted in your first stay in the halfway house. The information available about your lifestyle during that period raises doubts as to your maturity and your ability to live independently and to comply with society's rules.

These actions and these attitudes raise sufficient doubts for the Board to conclude that there is an undue risk to society on full parole. The Board accordingly revokes the full parole.

Additionally, the Board feels that there would not be an undue risk to society on day parole. A stay in a halfway house, preferably the CRC Carrefour Nouveau-Monde, will give you the assistance and supervision you need to achieve your return to society as a law-abiding citizen.

On day parole, you will be prohibited from in any way deliberately contacting any person who has a criminal record, since it was decided that you committed your crimes in the past with such persons, in conjunction with them or under their influence. In order to avoid repeat offences, therefore, it is imperative for you to avoid the company of other offenders.

This special condition to which you will be subject concerns

Exercising control over the causes of your criminal behaviour. As such, they [are] reasonable and necessary to protect the public and to promote your return to society.

[22]       On December 4, 2000, the plaintiff appealed the Trial Division's decision on the grounds that the latter was functus officio at the time the written decision was made and in any case the decision was patently unreasonable.

[23]       On March 16, 2001, the Appeal Division dismissed the plaintiff's appeal. In the Appeal Division's opinion, the Trial Division made no error in assessing the risk presented by the plaintiff. Further, the Appeal Division concluded that the Trial Division was not functus officio when it varied the first decision rendered orally at the hearing on November 2, 2000.

[24]       The plaintiff's argument regarding the first point at issue is quite straightforward. In the plaintiff's submission, as the Trial Division rendered its decision orally on November 2, 2000, it could not vary that decision, since it had become functus officio.

[25]       Clearly, as the plaintiff conceded, the Trial Division's intention at the outset was to send the plaintiff to a halfway house. Consequently, in my view, when the Trial Division stated (at p. 72 of the transcript) that [Translation] "there does not appear to be an undue risk to society ", it undoubtedly meant that the risk was acceptable provided the plaintiff was living at a halfway house.

[26]       In my view, when the Trial Division varied its decision after receiving the information it got at the hearing, it was in no way functus officio. In Chandler v. Alberta Association of Architects, [1989] 2 S.C.R. 848, the Supreme Court of Canada had to decide whether the Practice Review Board of the Alberta Association of Architects was functus officio, following the issuing of a report on the practices leading to the bankruptcy of the Chandler Kennedy Architectural Group. At 860 Sopinka J., for the majority, explained that to the general rule that a court's final decision cannot be reopened there are two exceptions, namely when there was a slip in drawing up the decision, and when there was an error in expressing the manifest intention of the court.

[27]       In a similar vein, L'Heureux-Dubé J., dissenting, wrote the following at 867:

The doctrine of functus officio states that an adjudicator, be it an arbitrator, an administrative tribunal, or a court, once it has reached its decision cannot afterwards alter its award except to correct clerical mistakes or errors arising from an accidental slip or omission (Re Nelsons Laundries Ltd. and Laundry, Dry Cleaning and Dye House Workers' International Union, Local No. 292 (1964), 44 D.L.R. (2d) 463 (B.C.S.C.)) "To allow adjudicator to again . . . . with the matter of its own volition, without hearing the entire matter 'afresh' is contrary to this doctrine" (appellant's factum, at p. 19).

In Re Nelsons Laundries Ltd., Verchère J. cited Lewis v. Grand Trunk Pacific Railway Co. (1913), 13 D.L.R. 152 (B.C.S.C.), at p. 154:

The question then is, when is an award made? In my opinion, when the arbitrator has done all that he can do, namely, reduce it to writing, and publish it as is award.

Below, at 870, L'Heureux-Dubé J. said the following:

When a decision is rendered with nothing to be completed, there is no doubt that the adjudicator is functus officio : any further action would be entirely without authority [Slaight Communications Inc. v. Davidson, [1985] 1 F.C. 253 (C.A.), affirmed [1989] 1 S.C.R. 1038). Hence, if the Board is seen as having discretion whether or not to consider making recommendations, and the Alberta Court of Appeal decision is left undisturbed, the doctrine of functus officio would be rendered nugatory.

[28]       Finally, I should like to refer to the Federal Court of Appeal's judgment in Shairp v. M.N.R., [1989] 1 F.C. 562, and in particular the comments of Marceau J.A. which can be read at para. 6 (pp. 566-567) of the judgment:

I would prefer to approach this question of whether the judge could reverse in the afternoon the conclusion he had announced in the morning on the basis of the following propositions. Firstly, we are concerned exclusively with a matter of jurisdiction. Secondly, the only possible reason why the judge could have been without jurisdiction to change his conclusion is that his morning pronouncement had rendered him functus officio, his connection with the case from then on being limited to correcting incidental errors. Thirdly, the morning pronouncement could only have rendered the judge functus officio if, as such, it had had the effect of finally disposing of the appeal.

[29]       I accordingly consider that the Trial Division was not functus officio when it varied its initial decision, since there can be no doubt there was an error in expressing its obvious intention. In my view, it is only when, after realizing that its initial effort contained an error, the Trial Division rendered the decision which clearly reflected its intention that it became functus officio with respect to the plaintiff's case. That decision is the one to be found at pp. 80 to 82 of the transcript of November 2, 2000.

[30]       The plaintiff's argument on the first point at issue will accordingly be dismissed.

[31]       I will now turn to the second question raised by the application for judicial review. In the plaintiff's submission, the Appeal Division made an error in upholding the Trial Division's decision, which the plaintiff characterized as a [Translation] "patently unreasonable decision". According to the plaintiff, the Trial Division in concluding as it did [Translation] "based [itself] entirely on erroneous or unreliable facts".

[32]       I have already reproduced the oral decision rendered by the Trial Division on November 2, 2000, as revised. As appears from that decision, the Trial Division revoked the plaintiff's full parole and concluded that in the circumstances "day parole" would be appropriate. This is why the Trial Division ordered that the plaintiff remain in a halfway house, [Translation] "preferably the CRC Carrefour Nouveau-Monde". In the Trial Division's opinion this stay in a halfway house was intended to enable the plaintiff to return to society with assistance and supervision [Translation] "as a law-abiding citizen" (written decision of November 2, 2000).

[33]       After a careful review of the entire record, I have come to the conclusion that the Appeal Division made no error in confirming that the Trial Division's decision was reasonable. Specifically, I conclude that the Trial Division's conclusion that the risk to society was acceptable provided the plaintiff remained in a halfway house was reasonable. At para. 43 of his memorandum, the defendant put forward the following facts as sufficient to support the Trial Division's decision:

·                       while the defendant was in a halfway house before being unlawfully at large, the problems he had in assuming his responsibilities and his lack of maturity were noted by the authorities;

·                       the plaintiff's problems were at the root of his decision to be unlawfully at large;

·                       during the period in which the plaintiff was unlawfully at large (seven years), he continued not to assume his responsibilities and to disregard the law;

·                       the plaintiff's lifestyle during his period of being unlawfully at large, specifically his employment and income, raised questions regarding his maturity and personal independence:

(i)                   he worked with his father in construction and earned income of some $6,000 a year;

(ii)                 he was offered employment which could give him about $30,000 a year, but refused it;

(iii)                he lived with his parents during the period of unlawful liberty.

[34]       In my opinion, taking all these points into account, I find it hard to see how it could be said that the Trial Division's assessment of the risk was unreasonable.

[35]       In the plaintiff's submission, the fact that he spent seven years unlawfully at large is not a relevant factor in assessing the risk he could pose to society. In my view, that suggestion cannot be accepted.

[36]       For these reasons, the plaintiff's application for judicial review will be dismissed without costs.

O T T A W A (Ontario)

April 18, 2002

Certified true translation

Suzanne M. Gauthier, C. Tr., LL.L.

                                                 FEDERAL COURT OF CANADA

                                                              TRIAL DIVISION

                                                      SOLICITORS OF RECORD

FILE:                                                                           T-678-01

STYLE OF CAUSE:                                                   PIERRE TRUDEAU

v.

ATTORNEY GENERAL OF CANADA

PLACE OF HEARING:                                             MONTRÉAL, QUEBEC

DATE OF HEARING:                                               MARCH 13, 2002

REASONS FOR ORDER:                                        NADON J.

DATE OF REASONS:                                               APRIL 18, 2002

APPEARANCES:

DANIEL ROYER                                                         FOR THE PLAINTIFF

Labelle, Boudrault, Côté et ass.

434 Ste-Hélène Street

Montréal, Quebec

H2Y 2K7

Tel: (514) 847-1100

ÉRIC LAFRENIÈRE                                                    FOR THE DEFENDANT

Department of Justice

Complexe Guy-Favreau

200 René-Lévesque West Blvd.

Montréal, Quebec

H2Z 1X4

Tel: (514) 496-9231