Date: 20120313
Docket: T-60-11
Citation:
2012 FC 302
Ottawa, Ontario,
March 13, 2012
PRESENT: The
Honourable Mr. Justice Zinn
BETWEEN:
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JASON COTTERELL
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Applicant
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and
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THE ATTORNEY GENERAL OF CANADA
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Respondent
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REASONS FOR JUDGMENT AND JUDGMENT
[1]
Accelerated parole pursuant to section 126 of
the Corrections and Conditional Release Act, SC 1992, c 20 (the CCRA),
was denied to Mr. Cotterell by both the National Parole Board (the NPB) and the
Appeal Division of the NPB. Both were of the view that there were reasonable
grounds to believe that if Mr. Cotterell was released he was likely to commit
an offence involving violence before the expiry of his sentence.
[2]
Constantineau v Canada (Attorney General), 2005 FC 1610 at para 18 held that although the matter before the Court
is a judicial review of the Appeal Division’s decision, where it “has affirmed the decision of the NPB, the Court is
ultimately required to ensure that the decision of the NPB was lawful.”
Accordingly, the decision examined by this Court is the decision of the NPB
which, for ease of reference, will be referred to as the decision of the Board.
[3]
Two matters complicate this application for
judicial review.
[4]
First, accelerated parole is no longer available
to federal inmates due to the repeal of section 126 of the CCRA by the Abolition
of Early Parole Act, SC 2011, c 11, s 5. As a result, the usual remedy of
referring the application back for redetermination if the application for
judicial review is granted, is not available to Mr. Cotterell. He seeks, in
addition to an order setting aside the Board’s decision, an order that
“Correctional Services Canada and the Board be directed to treat him as a non
violent offender for the purposes of all future risk assessments.” Given the
disposition of this application, there is no requirement to determine whether the
Court has jurisdiction to grant that relief.
[5]
Second, Mr. Cotterell is no longer
incarcerated. After this application was filed he was granted statutory
release on June 22, 2011.
[6]
This application came on for hearing at Toronto, on December 6, 2011. On December
5, 2011, the Crown filed a motion, returnable at the hearing seeking an order
dismissing the application on the basis that it was moot because of the statutory
release of Mr. Cotterell.
[7]
The applicant opposed the Crown’s motion on the
basis of short service. After hearing the submissions of the parties, the
Court indicated that the Crown’s motion would be accepted and ruled upon, in
spite of the short notice. The applicant was granted leave to file written
submission on the motion no later than December 30, 2011, and the Crown given
the right to reply in writing by January 7, 2012.
[8]
For the reasons that follow, I find that the
application is moot; however, I will exercise my discretion and judge the
merits of the application. I have also determined, for the reasons that
follow, that the application must be dismissed on its merits.
Background
[9]
Mr. Cotterell is a first time federal offender
serving two years and six months for possession of a controlled substance for
the purpose of trafficking, possession of a restricted firearm with ammunition,
and careless storage of a firearm.
[10]
In January of 2009, the Organized Crime
Enforcement Unit, through intercepted communications for an operation called
Project Fusion, learned that Mr. Cotterell was trafficking drugs and possessed
a loaded firearm. Project Fusion was a lengthy criminal investigation that
commenced in August 2008 and targeted two criminal organizations known as the
“Markham and Eglinton Crew” and the “400 McCowan Crew.” On January 26, 2009,
police officers conducted surveillance on the applicant’s premises and arrested
him for possession of 340 grams of marijuana. After obtaining a search
warrant, police entered his apartment and found a gun with 10 rounds of 40
calibre hollow point bullets, and 40 rounds of assault rifle ammunition under a
mattress.
[11]
On October 23, 2009, Mr. Cotterell pled guilty
and was sentenced to 30 months for the conviction for possession of a
restricted weapon, six months concurrent for careless storage and six months
concurrent for possession of marijuana for the purpose of trafficking. He was
also subject to a lifetime firearms prohibition.
[12]
As a first time federal offender, Mr. Cotterell
was considered for accelerated parole; however, it was denied.
[13]
The Board stated that its finding was based on
the nature of the applicant’s offences and his reported strong ties to a street
gang known for drug trafficking and violence.
[14]
The Board noted the facts surrounding his arrest
and stated “[o]f paramount concern, the handgun was loaded with 10 rounds of
hallow point ammunition while stored in a careless manner and readily
accessible.” It found the combination of drugs and weapons of grave concern,
and an indication of potential violence.
[15]
Additionally, the Board questioned Mr.
Cotterell’s credibility on three issues. It noted that he claimed that he fell
into the drug world almost accidentally after losing his job around the time of
his conviction, whereas the record showed that he had a previous drug related
offence in 2006. This led the Board to believe that the applicant had been involved
in the violent drug subculture for quite some time. Mr. Cotterell stated that
he began trafficking to support his drug habit and accepted to hold the firearm
and ammunition because his judgment was clouded by alcohol. The Board found
this explanation was contrary to his assertion that he did not have a substance
abuse problem. The Board also noted that Mr. Cotterell stated that he was not
part of a criminal organization even though two police officers had clearly
identified him as being involved with members of such an organization. The Board
noted that charges in this regard had previously been laid, although they were
removed presumably because of his high level of cooperation with police.
[16]
The Board found no reason to doubt the
information of two police departments which confirmed that Mr. Cotterell was a
“primary” in a street gang renowned for violence and a history of drug and gun
violence. It found that his association with criminals who condone the use of
weapons, threats and intimidation in achieving their goals, and possession of a
loaded handgun while trafficking drugs from his residence, demonstrated an
inclination to a potentially violent lifestyle.
[17]
The Board considered contributing factors, which
it listed as being Mr. Cotterell’s thirst for quick and easy money, his
criminal sentiments leading him to gravitate towards negative associates, and
his substance abuse issues. It was noted that Mr. Cotterell admitted to having
difficulty saying no to people and was easily led by his peers. It found the
status of his affiliation to the criminal organization to be uncertain given
his assistance in the investigation. Even though Mr. Cotterell did not expect
any potential repercussions for his cooperation, the Board noted that he was
labelled a “snitch” by one individual who had a lot of influence among the
criminal element. The Board found that the applicant’s dismissive responses in
this regard very much resembled his cavalier attitude about his criminal
lifestyle.
[18]
For these reasons, the Board’s decision was to
deny accelerated parole. It stated:
The Board is satisfied that there are reasonable grounds to believe
that, if released, you are likely to commit an offence involving violence
before the expiration of your sentence and therefore, directs that you not be
released.
[19]
The Appeal Division focused its reasons on its
concerns that Mr. Cotterell was a primary member of a well known street gang
whose activities are linked to violent criminal behaviour. Although it
acknowledged that there was no evidence of threats or violence in the commission
of the offences for which he had been convicted, it stated that it was
“satisfied that there are reasonable grounds to believe you are likely to commit
an offence involving violence prior to the expiration of your sentence in April
2012.”
Is this
application moot?
[20]
The Crown submits that the application is moot
as there is no live controversy between the parties because Mr. Cotterell has
been released from incarceration on parole. Mr. Cotterell submits that
notwithstanding his release, there remains a live controversy because he has
only “one opportunity to dispute the Board’s violence-related finding,” the
Board’s “violence-related finding must be used by the Board in future
assessments of risk,” that finding “will be maintained in perpetuity,” the
“finding may be provided to provincial authorities,” and as a consequence, the
“remedy sought remains very relevant to the applicant.”
[21]
I accept the Crown’s submission that the
application before the Court is moot. The real dispute between the parties was
whether or not Mr. Cotterell was improperly denied parole. Shortly after the
decision at issue was rendered, he was granted parole. To that extent, he has
obtained the remedy he sought in the application. However, I also accept the
submissions of the applicant that the finding of the Board that Mr. Cotterell
was likely to commit an offence involving violence, is a finding that may have
a negative impact on him in the future, particularly if he resumes his criminal
behaviour. For that reason, I find that it is appropriate to consider whether the
decision that Mr. Cotterell was likely to commit an offence involving violence
before his sentence expired was reasonable or whether that decision must be
quashed.
The finding
that the applicant was likely to commit an offence involving violence
[22]
Subsection 126(2) of the CCRA obligated the Board
to release an offender if it was satisfied that there were no reasonable
grounds to believe that the released offender was likely to commit an offence
involving violence before the end of his or her sentence.
[23]
Mr. Cotterell submits that the decision that he
was likely to commit a violent offence was unreasonable because the Board made an
unreasonable finding of fact relating to his credibility, the nature of the
offence, and his ties to a criminal organization. Further, and more generally,
he submits that the finding that he was likely to commit an offence was
unreasonable.
Credibility
[24]
The Board found that Mr. Cotterell’s evidence
was not credible as it related to why and when he joined the drug world, and
whether he had a substance abuse problem. I am unable to accept the
submissions of the applicant that these findings were unreasonable based on the
evidence before the Board.
[25]
The Board noted that Mr. Cotterell stated that
he fell into the drug underworld only after losing his job, which from the record
was close to when he was arrested in September 2009. The Board noted that Mr.
Cotterell had been convicted of a drug related offence in 2006. This led the
Board to the conclusion that he had been immersed in the inherently violent
drug subculture for some time, and not only after losing his job. I accept the
submission of the Crown that it was open to the Board to base an adverse
credibility finding on this inconsistency.
[26]
Mr. Cotterell described his weekly consumption
of $20 to $40 of marijuana in addition to drinking on the weekends to relax as
a “habit.” The Board described it as a substance abuse problem. The Board
also noted that the applicant admitted to being under the influence of alcohol
when he accepted to hold the gun for his neighbour. I accept the submission of
the Crown that it was open to the Board to find that the applicant had a
substance abuse problem based on this evidence, notwithstanding Mr. Cotterell’s
statement to the contrary.
[27]
Further, for the reasons set out below, I find
that it was open to the Board to find that Mr. Cotterell’s statement that he
was not involved in a criminal organization was not credible given his
identification through Project Fusion and two police reports stating he was
associated with members of the Markham and Eglinton Crews.
[28]
The Board’s findings on credibility are entitled
to a high level of deference. Its finding was based on the evidence before it
and falls within the range of acceptable outcomes.
Nature of the
Offence
[29]
Mr. Cotterell submits that the intercepted
communications before his arrest comprise the only available information
regarding whether the gun in his possession was loaded. The police report of
his arrest states that the police located a gun “with” ammunition and that the
Criminal Profile Report states that the gun was located “along with”
ammunition. He says that the same information presented to the sentencing
judge was presented to the Board, namely that he agreed to hold the gun for a
person he knew days before he was arrested and he hid the gun in a paper bag
under his mattress; the gun was broken and unloaded. Accordingly, he submits
that the Board relied on unreliable and non-persuasive information in finding
that the gun was loaded.
[30]
I agree with the Crown that the Board’s finding
that the gun was loaded is reasonable. The intercepted communication was not
the only source of information as to whether the gun was loaded. At the
sentencing hearing the Crown Attorney stated:
As a result of the subsequent search that was conducted, a .40
calibre Taurus semi-automatic handgun, a pistol, was located in his bedroom
under his mattress. It contained a - - a clip with ten rounds of .40 calibre
hallow - - hallow point ammunition. In addition to that, forty rounds of
assault rifle ammunition, 6.72 mm was found as well. Needless to say that a loaded
firearm was - - was stored in a careless manner [emphasis added].
The applicant’s
counsel at the sentencing hearing did not contest this characterization and
based on this, it was reasonable for the Board to find that the gun was loaded when
it characterized the offence.
Ties to a
Criminal Organization
[31]
Mr. Cotterell submits that the finding of his
“strong ties” to a criminal organization is not reasonable. He says that
although Project Fusion targeted two alleged organizations, there are no
reported convictions to support the allegation of criminality. He also points
out that his criminal organization charges were withdrawn at the request of the
Crown. He submits that the Board’s presumption that the criminal organization
charges were withdrawn because of his good cooperation is less plausible than
them being withdrawn because there was no information to support a conviction.
He points out that he did not know most of the people charged in connection
with Project Fusion and that he did not associate with them.
[32]
Even though the charge relating to membership in
a criminal organization had been withdrawn, there was other evidence that
supported Mr. Cotterell’s ties to the Markham and Eglinton Crew. Specifically,
Detective Sergeant Janice McLeod of the Durham Police and the Toronto Police’s
Guns and Task Force both reported that Mr. Cotterell had confirmed ties to a
street gang known as the Markham and Eglinton Crew. It was open to the Board
to weigh that information against Mr. Cotterell’s statement that he was not
part of a criminal organization and it was open to the Board to prefer the
evidence of the police officers. Its decision was reasonable.
Was the
applicant “likely to commit” an offence involving violence?
[33]
Where the Board is satisfied that there are no
reasonable grounds to believe that an offender, if released is likely to commit
an offence involving violence before sentence expiry, the Board must direct the
offender’s release. Mr. Cotterell submits that the Appeal Division has
previously defined “likely” as “probable.” He cites a decision of the NPB
dated January 8, 2003, in which the Board wrote:
By use of the word “likely”, the statute indicates clearly
that the Board must be satisfied, based on reasonable grounds, that it is probable
a violent crime will be committed by the offender.”
[34]
I agree with the submission of the Crown that
contrary to the applicant’s submission, the word “likely” is not to be interpreted
to mean “probable” in this context. The Federal Court of Appeal in Cartier
v Canada
(Attorney General), 2002 FCA 384 at paras 21, 25-26,
held that the French wording of the CCRA meaning “probably, in all
probability,” is broader and inconsistent when compared to the English wording
of “likely to commit.” The Court of Appeal held that the English version, which
encompassed the French version, was the correct one to apply.
[35]
The Board viewed “the combination of drugs and
weapons” as “an indication of potential violence;” however, Mr. Cotterell
submits absent information that he demonstrated aggressive or violent
tendencies, the nature of his offences do not support the decision that he is
likely to offend violently.
[36]
Again, I agree with the submission of the Crown
that the proposition that Mr. Cotterell must be personally linked to acts of
violence is incorrect. When, as here, an offender is convicted of a weapons
related offence, and drug trafficking, and has associations with criminally
minded individuals, there are sufficient factors to support a finding that he
is likely to commit a violent offence if released. It is appropriate for the
Board to explore the circumstances in which the offender became involved in the
commission of the offence when assessing whether he is likely to commit a
violent offence if released. In this case, the Board considered that:
(i)
Mr. Cotterell was convicted of a weapons related
offence after the police located a loaded 40 calibre semi automatic pistol with
the serial number removed under his mattress at his residence;
(ii)
Mr. Cotterell was convicted of drug trafficking
from his residence where the gun was found, and where he lived with his common
law partner and his daughter;
(iii)
Two police departments confirmed that Mr.
Cotterell was a primary member of a street gang renowned for violence with a
history of drugs and guns involvement; and
(iv)
Mr. Cotterell associated with like-minded
criminals.
[37]
Further, the Board considered the behaviour of
Mr. Cotterell when considering whether he was likely to commit a violent
offence. It noted that:
(i)
Mr. Cotterell had accepted the weapon when under
the influence of intoxicants;
(ii)
Mr. Cotterell’s substance abuse issues remained unaddressed;
(iii)
Mr. Cotterell had a thirst for quick and easy
money;
(iv)
Mr. Cotterell had a tendency to be led easily by
his peers and had difficulty with saying no; and
(v)
Mr. Cotterell affiliated with criminally minded
individuals.
[40]
I accept that all the facts listed above had to
be weighted against Mr. Cotterell’s assertion that he would not be violent; the
Board did so. It is not this Court’s role to reweigh the evidence. In my
view, based upon the record on which it was made, the decision falls within the
range of reasonable outcomes and this application must be dismissed.
[41]
In light of the outcome and the lateness of the
Crown’s motion, it is appropriate that each party bears its own costs.
JUDGMENT
THIS COURT’S JUDGMENT is that this application is dismissed without costs.
"Russel W. Zinn"
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