Allaire v. Canada (Attorney General), 2010 FC 132

 

 

Date: 20100209

Docket: T-940-09

Citation: 2010 FC 132

Ottawa, Ontario, February 9, 2010

PRESENT:     The Honourable Mr. Justice Shore

 

 

BETWEEN:

ROBERT NORTON ALLAIRE

Applicant

and

 

ATTORNEY GENERAL OF CANADA

Respondent

 

REASONS FOR JUDGMENT AND JUDGMENT

 

I.  Overview

[1]               [36]      While it is open to the Board to inquire into the respondent's relationships with (criminal) others who conspired with him to commit the offences of which he was convicted (and indeed to inquire into any ongoing relation with like-minded persons), it should avoid the use of terms which, if acknowledged, can give rise to an admission that a criminal offence has been committed with respect to which no conviction has been obtained, or at least be mindful of the difficulty which its choice of words can pose.

 

(As stated in the majority judgment in Canada (Attorney General) v. Coscia, 2005 FCA 132, [2006] 1 F.C.R. 430).

 

[2]               Subsequent to a redetermination, the National Parole Board (NPB) may reach the same conclusion it did; however, it must be mindful of the questions it poses as per the majority reasons in the excerpt quoted above.

 

II.  Introduction

[3]               This is an application for judicial review of a decision of the National Parole Board Appeal Division (NPBAD) affirming the decision of the NPB which refused to direct the Applicant’s release on day parole in accordance with the Corrections and Conditional Release Act, S.C. 1992, c. 20 (CCRA).

 

III.  Background

[4]               The Applicant pled guilty to importing a schedule 1 substance on May 3, 2007 and was sentenced to 10 years imprisonment.

 

[5]               On November 21, 2004, the Applicant was arrested for failing to yield to U.S. Customs officers at a border crossing in Washington.  During this encounter, U.S. Customs officials informed the Applicant that his vehicle would be searched.  The Applicant then drove ahead, striking the officer with the door of his vehicle.  The Applicant drove back into Canada where he was arrested for being in possession of 149 kilograms of cocaine with a street value of $12 million.

 

[6]               On January 16, 2009, the NPB conducted an Accelerated Parole Review (APR) hearing pursuant to subsection 126(4) of the CCRA and did not direct the Applicant’s release on Accelerated Day Parole (ADP).

[7]               During the hearing, the NPB pursued a line of questions regarding the Applicant’s involvement with organized crime. Although the Applicant denied any direct involvement with organized crime, the NPB drew negative conclusions and found reasonable grounds to believe that, if released, he would commit an offence involving violence.

 

IV.  Decision under Review

[8]               The Applicant appealed the decision of the NPB to the NPBAD pursuant to subsection 147(1) of the CCRA claiming the NPB’s questioning had breached procedural fairness. The NPBAD affirmed the NPB’s decision to refuse ADP.

 

[9]               The NPBAD found the NPB’s questions regarding the Applicant’s ties to organized crime were fair and reasonable based on the information before the NPB. The Appeal Division also held that the NPB never inferred that the Applicant was a member of a criminal organization, but focused on his links to such groups. The Appeal Division also found the NPB questioned the Applicant’s credibility when he stated that he was not a member of a criminal organization, when there was evidence before it to indicate to the contrary.

 

V.  Issue

[10]           Did the Appeal Board err in not finding that the NPB breached the Applicant’s right to procedural fairness by questioning the Applicant regarding his alleged involvement with a criminal organization?

 

 

VI.  Relevant Legislative Provisions

[11]           ADP must be directed for a first offender if the NPB is satisfied there are no reasonable grounds to believe the offender will commit a violent offence if released, pursuant to sections 125, 126 and 126.1 of the CCRA:

 

[12]           Paragraph 101(b) reads as follows:

 

VII.  Applicant’s Position

[13]           The Applicant cites the case of Coscia, above, where a party was questioned by the NPB regarding his involvement with organized crime. The NPB relied on the party’s evasive answers with respect to his involvement as a reason to refuse his accelerated release.

 

[14]           The Federal Court of Appeal held the NPB had committed a breach of procedural fairness by asking questions that had a double meaning, as answering questions regarding involvement with organized crime places the offender in jeopardy of a Criminal Code, R.S.C., c. C-34, s. 1, conviction. The Applicant submits the NPB can inquire into an offender’s association with criminals, but should not use terms which, if acknowledged, can give rise to a criminal conviction.

 

VIII.  Respondent’s Position

[15]           The Respondent submits the NPB did not make a finding about whether the Applicant was a member of organized crime. Instead, the NPB questioned the Applicant in relation to the offence committed, which is usually associated with organized crime.

 

[16]           The Respondent submits the Appeal Division was correct in finding the NPB’s questions did not cross the line established in Coscia, above. The Respondent argues the questioning in this case does not take the inquisitorial tone nor the repetitive nature of the questioning in Coscia. Instead, the Respondent submits the NPB made inquiries that were open to it on the basis of the evidence tendered at the hearing, including police documentation and the Applicant’s statements that he owed money to a “criminal organization” and has connections with “criminally oriented individuals”. The Respondent submits the NPB’s questioning was appropriate and fair, as it used the term “organized crime” only three times during the entirety of the questioning and with each time it acknowledged the Applicant’s answer and moved on.

 

[17]           The Respondent cites the transcript of the hearing and submits the NPB was more concerned with whether there were reasonable grounds to believe the Applicant was likely to commit an offence involving violence before the expiration of his sentence. The Respondent submits the NPB’s concerns regarding the Applicant’s potential for violence were warranted given the Applicant’s refusal to admit the potential violent effects of his behaviour and the poor judgment he showed prior to his arrest.

 

[18]           The Respondent cites the case of Mooring v. Canada (National Parole Board), [1996] 1 S.C.R. 75 and paragraph 101(b) of the CCRA for the proposition that the NPB is obligated to assess all available relevant information in order to determine whether the test under section 126 of the CCRA has been met. The Respondent concludes the NPB’s questioning of the Applicant was fair and relevant in the circumstances.

 

IX.  Standard of Review

[19]           The parties agree that the standard of review for a potential breach of procedural fairness is correctness. 

 

[20]           In Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190, the Supreme Court of Canada held that a court reviewing a decision on the standard of correctness will not show deference to a decision-maker’s reasoning process, but will instead undertake its own analysis of the question (Dunsmuir at para. 50).

 

 

 

 

X.  Analysis

[21]           Central to this review is the issue of whether the NPB’s questioning runs afoul of the majority judgment in Coscia, above, by which this Court is bound. The majority in Coscia described the boundaries of the NPB’s procedure in the following terms:

[36]      While it is open to the Board to inquire into the respondent's relationships with (criminal) others who conspired with him to commit the offences of which he was convicted (and indeed to inquire into any ongoing relation with like-minded persons), it should avoid the use of terms which, if acknowledged, can give rise to an admission that a criminal offence has been committed with respect to which no conviction has been obtained, or at least be mindful of the difficulty which its choice of words can pose.

 

[37]      Counsel for the appellant, during the course of her very able presentation, acknowledged that the Board could inquire into the respondent's relationships with his co-conspirators and others without using terms such as "organized crime." Indeed, nothing prevented the Board from exploring all aspects of the respondent's prior convictions and ongoing relations without using ambiguous terms.

 

[22]           The argument that the NPB did not make a finding that the Applicant was a member of a criminal organization is dealt with in Coscia where the majority stated:

[34]      … it is no justification for the Board to say that it was not concerned with the respondent being a member of organized crime in the legal sense. Accepting that the Board had no such concerns, it remains that if one admits to being a member of or participating in a criminal organization, one is exposed both to a Criminal Code conviction and to being found to be a member of a criminal organization pursuant to the Directive. The Board had no power to grant immunity in this regard and did not purport to do so.

 

[23]           The Respondent’s submission that the NPB did not draw conclusions from the Applicant’s denial of association with organized crime is dealt with in Coscia where the majority held:

[38]      … the Board's insistence on using such terms without seeming to have any appreciation for the difficulty which they created for the respondent is fundamentally unfair and shows that the respondent was not heard by the Board in so far as his response to this particular line of questioning was concerned. This breach was compounded by the Board when it went on to draw a negative inference from the respondent's denial of his involvement with the "mafia" and criminal others … (Emphasis added).

 

[24]           It is clear from the passages above that asking the questions as posed constitute a breach of procedural fairness.

 

[25]           The excerpts of the two pages of the transcript below are self evident. They demonstrate, in and of themselves, that which occurred:

JEAN CUSSWORTH: Okay. Because the file information clearly indicates that was a belief that you were quite involved in organized crime and bringing drugs across the border.

ROBERT ALLAIRE: I’m sorry, I wasn’t. Transcripts, p. 8, ll.19-22.

 

…

 

CONNIE SNOW:  Did you admit that you were associated to an organized crime group?

ROBERT ALLAIRE: No, I’m not associated to an organized crime group. Or not knowledgeably. The only person I dealt with was Al Turnbull.

CONNIE SNOW: But did you admit to being associated but you didn’t want to provide details?

ROBERT ALLAIRE: Now, and after the fact that I got muscled into the situation where I agreed to go down, and I knew that there was something more to it, and I had to assume that it was organized crime, but I wasn’t -- I wasn’t knowingly associated with them, I’ll put it that way.

JEAN CUSWORTH: So you basically came to that conclusion after you were threatened?

ROBERT ALLAIRE: Yes. I never met any of them until I couldn’t pay that second part of the – the third time I borrowed money from them.

JEAN CUSWORTH: Mr. Allaire, that’s an awful lot of cocaine worth $12 million, for them to entrust someone who didn’t really know what they were doing.

ROBERT ALLAIRE: They were following me, so that they didn’t just entrust it to me. And I didn’t see it, they just told me what to do and I did it.

JEAN CUSWORTH: Okay. File information indicates that you pled guilty.

ROBERT ALLAIRE: Yes, I did.

JEAN CUSWORTH:  Are you guilty?

ROBERT ALLAIRE: No, I – well, I am, yes. In hindsight, yes, I am guilty.

I did bring cocaine across the border. Am I sorry it happened? Absolutely.

Would I do it differently? Absolutely. Transcripts, p. 10, 11. 15-47 and p. 11, 1.1.

 

…

 

…

JEAN CUSWORTH: Mr. Allaire, based on a comprehensive file review and our discussions with you today, we find some of your explanations very questionable. Given the fact that you pled guilty to involvement in criminal activity that you yourself acknowledge is linked to organized crime, drug trafficking, and violence. You pled guilty to that. We have to take into consideration that you’ve been convicted for something like that. Transcripts, p. 23, ll. 15-23

 

…

 

JEAN CUSWORTH: Okay. Okay. But you’ve put yourself in an extremely unusual situation by pleading guilty to a crime that is clearly linked to organized crime, drug trafficking and violence. So we are satisfied that there is reasonable grounds to believe that there is the potential for violence to occur before warrant expiry.

ROBERT ALLAIRE: May I please? I was given what I considered was the choice of either doing ten years in Canada or dying the United States. I had no choice -- well, I chose to plead guilty in Canada. I don’t plead guilty to being involved with organized crime in any way, shape or form. I was not. I --

JEAN CUSWORTH: But we have to base our decision on the fact that you did plead guilty. We’re aware that if you went to the States you were under the impression that you were certainly going to be putting a lot longer period of time in jail. Transcripts, p. 23, l. 47 and p. 24, ll. 1-18.

 

(Applicant’s Record at pp. 172-173).

 

XI.  Conclusion

[26]           The Court recognizes that the decision in Coscia, above, may place members of the NPB in a difficult position. On the one hand, they may be informed by evidence that it is likely that a person has ties to criminal organizations: “Now and after the fact that I got muscled into the situation where I agreed to go down, and I knew that there was something more to it, and I had to assume that it was organized crime, but I wasn’t -- I wasn’t knowingly associated with them, I’ll put it that way” (AR at p. 172).

 

[27]           Therefore, it may be open to them to draw conclusions that the person is likely to commit violent acts on the basis of that evidence; however, the Coscia decision dictates that the NPB may not directly question the person about his or her ties to organized crime or those questions may breach procedural fairness. One can recognize the quandary the NPB is in, since the NPB ought to put before the potential parolee any concerns it might have regarding the person’s potential for violence. It follows that a decision made on the basis of concerns that were not put before the prisoner might be quashed as being in violation of procedural fairness. 

 

[28]           The Court concludes that in order to fairly put concerns regarding a person’s connections with criminal others before a potential parolee the NPB should take instruction from paragraph 36 of Coscia and avoid the use of terms which, if acknowledged, would place the person at risk of criminal prosecution.

 

[29]           The Court’s concern in making this order is not with the substantive decision of the NPB, which was open to it to make, but instead with the procedure that was used in the hearing.

 

[30]           The matter is, therefore, remitted to the NPB for redetermination on the basis of that which is specified above.

 

JUDGMENT

THIS COURT ORDERS that

1)                  the application for judicial review be granted;

2)                  the decision of the NPB be set aside and the matter be referred to the NPB for redetermination of whether day parole should be directed;

3)                  no order be made as to costs as this is a matter of specific importance in the interest of the public in addition to the parties concerned.

 

“Michel M.J. Shore”

FEDERAL COURT

 

SOLICITORS OF RECORD

 

 

DOCKET:                                          T-940-09

                                                           

 

STYLE OF CAUSE:                          ROBERT NORTON ALLAIRE

                                                            v. ATTORNEY GENERAL OF CANADA

 

PLACE OF HEARING:                    Vancouver, British Columbia

 

DATE OF HEARING:                      January 26, 2010

 

REASONS FOR JUDGMENT

AND JUDGMENT:                          SHORE J.

 

DATED:                                             February 9, 2010

 

 

APPEARANCES:

 

Mr. Christopher Darnay	FOR THE APPLICANT
Mr. Curtis Workun	FOR THE RESPONDENT

 

SOLICITORS OF RECORD:

 

CHRISTOPHER DARNAY Barrister and Solicitor Vancouver, B.C.	FOR THE APPLICANT
JOHN H. SIMS, Q.C. Deputy Attorney General of Canada	FOR THE RESPONDENT