Docket: T-873-10
Citation:
2012 FC 78
Ottawa, Ontario, January
19, 2012
PRESENT: THE
HONOURABLE MR. JUSTICE HARRINGTON
BETWEEN:
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ROBERT ROY
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Applicant
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and
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ATTORNEY GENERAL
OF CANADA
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Respondent
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REASONS FOR
ORDER AND ORDER
[1]
When
it granted Mr. Roy full parole, the National Parole Board (NPB) placed five
special conditions on his release. Dissatisfied, the applicant appealed the
decision to the Appeal Division. It dismissed his appeal. This case concerns a judicial
review of the Appeal Division decision.
[2]
Since
1998, Mr. Roy has faced several charges for contravening the Quebec
Securities Act, RSQ, c V-1. Judge Jean-Pierre Bonin of the Court of Quebec found
him guilty and sentenced him to a fine of $455,000 plus costs. In 1999, Justice
Côté, of the Superior Court of Quebec at the time, upheld the guilty verdict. In
2002, Mr. Roy pleaded guilty to a charge under the Act respecting the
ministre du Revenu, RSQ c M-31, for making false or misleading statements in
his income tax return. The court sentenced him to a fine of $500,000.
[3]
In
2006, following a class action, he was ordered to pay several million dollars
to people who suffered financial losses resulting from their investments in the
tax shelters of Mr. Roy and his co-accused.
[4]
As
he had not paid any of the fines ordered, Justice of the Peace Suzanne Bousquet
allowed, in 2007, an application from the Montreal District fine collector to
have Mr. Roy imprisoned pursuant to article 347 of the Code of Penal Procedure,
RSQ, c C-25.1, in default of payment of his fines. He received a sentence of 7
years, 2 months and 22 days, and was sent to a federal penitentiary.
[5]
Since
then, Mr. Roy has tried unsuccessfully to exhaust every recourse available
under Quebec law against that decision. In November 2008, the NPB granted him
day parole subject to a special condition, the obligation to submit a statement
of income and expenses to his parole officer. However, this day parole was
revoked in September 2009 because the special condition could not be adequately
applied because of Mr. Roy’s attitude. In November 2009, he was granted day
parole, but the NPB added two special conditions. In the end, the NPB ordered
his full parole in February 2010, and imposed the following five special
conditions:
a. A ban on
holding paid or unpaid employment or functions closely or distantly related to
the financial world;
b. An obligation
to submit a statement of his personal income and expenses to his parole
officer, as well as a complete financial statement of his businesses and/or
company including any document / evidence related to these statements, at the
frequency required by the officer;
c. An obligation
to provide accountants identified by CSC (Correctional Service Canada), with
all of the information and documents deemed necessary to analyze his income sources,
assets / liabilities and his financial activities, at the frequency required by
his parole officer;
d. An obligation
to sign any power of attorney deemed necessary by his parole officer to
financial institutions or official government agencies in order to produce the documents
supporting his financial statements or the statements of the companies he is
linked to; and
e. An obligation
to hold stated employment or carry out an active job search and to submit proof
of the search to his parole officer.
[6]
In
February 2010, dissatisfied with that decision, Mr. Roy appealed it to the
Appeal Division. On May 5, 2010, the Appeal Division affirmed the NPB decision.
It is the decision of the Appeal Division that is the subject of this
application for judicial review.
ISSUES
[7]
Mr.
Roy, who represented himself, raised several points in his written submissions,
raised others during his pleadings. He argued the following:
a. that the NPB
is without jurisdiction to impose special conditions on him since he had been
convicted under provincial legislation rather than federal criminal
legislation;
b. that he is
unable to pay the fines because he earns a modest salary and it is impossible
for him to participate in the stock market;
c. that he was
treated unfairly as compared to his co-accused, including his uncle, and that
he had been harassed.
[8]
Mr.
Roy argues that the decision of Justice of the Peace Bousquet is of no force or
effect. He raises various arguments on this point that try to explain how her
decision is unconstitutional and infringes the Canadian Charter of Rights
and Freedoms. Moreover, he provides all sorts of sophisticated calculations
to explain why his sentence should be reduced by a third, and indicates if the
total amount of his fines is divided by the number of days of imprisonment he
could meet his obligation by paying almost $62,000.
[9]
Although
these points are interesting, it is important to remember that the Federal
Court has no power of oversight over provincial courts. The Federal Court administers
the laws of Canada in accordance with section 101 of the Constitution, whereas
the administration of justice in the province of Quebec, including the constitution
and organization of its courts of justice, falls under the exclusive power of
the provinces under section 92 of that act. In any case, Mr. Roy has exhausted
all possible recourses available under Quebec provincial legislation.
[10]
In
the case at bar, the Court is hearing a judicial review of the decision by the
Appeal Division of the NPB, nothing more, nothing less. The issues currently
before the Court are the following:
a. Does the NPB
have jurisdiction to impose special conditions on the applicant?
b. Are the
conditions imposed by the NPB reasonable?
c. Did the NPB
and the Appeal Division respect the applicable principles of procedural
fairness?
[11]
I
believe that the NPB has the jurisdiction to impose special conditions on the
applicant. I can do no better than to summarize the written submissions of the
respondent who very effectively describes this example of cooperative
federalism. First, section 99 of the Corrections and Conditional Release Act,
SC 1992, c 20, defines the term “offender” as a person who is under a sentence
of imprisonment imposed pursuant to a federal or provincial act. This same
section indicates that “full
parole” means the authority granted to an offender by the Board
to be at large during the offender’s sentence. Further on, subsection 107(2) of
the Act states that the jurisdiction of the NPB extends to offenders sentenced
to a sentence imposed under a provincial act that is to be served in a
penitentiary. It is clear that Mr. Roy falls within the scope of this Act: he
was found guilty under the Quebec Securities Act and the Act respecting
the ministre du Revenu, and Justice of the Peace Bousquet sentenced him to
imprisonment under section 347 of the Code of Penal Procedure, for default of payment of his fines. Given the
Mr. Roy is an offender within the meaning of the Act, subsection 133(3) allows
the NPB to impose any conditions that it considers
reasonable and necessary in order to protect society and to facilitate the
successful reintegration into society of the offender.
[12]
I
am also of the opinion that the conditions imposed by the NPB are reasonable. Even
though Mr. Roy was not convicted under a federal act, the NPB, in carrying out its risk assessment function, may take into account
all available and relevant information, provided it has not been obtained
improperly
(Fernandez v Canada (Attorney General), 2011 FC 275, [2011] FCJ No 320
(QL)). All the conditions that were imposed were related to the offences of
which he was convicted. According to Mr. Roy’s correctional plan, it was very
difficult for CSC to obtain official, clear and specific information from him,
especially regarding his financial transactions. Furthermore, several times he
asked his parole officer to approve jobs that he was banned from taking,
including jobs involving transactions by letter of credit or for which he is
the principal shareholder. The Assessment for Decision also adds to the
portrait of Mr. Roy: CSC states that he does not accept responsibility for his
actions, nor acknowledge the existence of any victims other than himself, and
has been resistant to dealing with his problems. In order to effectively manage
the risk in the community, it is also necessary that a certified accountant be
available to the officers responsible for Mr. Roy's file and an application for
a special warrant for access to information in financial institutions be filed.
[13]
For
the reasons set out in the respondent’s memorandum of fact and law, I agree
that the applicable principles of procedural fairness were respected. The
reasons for the NPB decision are clear, intelligible and supported by the
evidence.
ORDER
FOR THE
AFOREMENTIONED REASONS;
THIS COURT
ORDERS that the judicial review be dismissed, with costs.
“Sean Harrington”
Certified
true translation
Monica
F. Chamberlain
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