Date: 20110627
Docket: T-1001-10
Citation: 2011
FC 786
Toronto, Ontario, June 27, 2011
PRESENT: The Honourable Mr. Justice Campbell
BETWEEN:
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MJ
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Applicant
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and
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THE MINISTER OF PUBLIC SAFETY AND
EMERGENCY PREPAREDNESS
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Respondent
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and
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ATTORNEY GENERAL OF ONTARIO
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Intervener
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REASONS FOR ORDER AND ORDER
[1]
The
central issue in the present Application is whether procedural fairness must be
accorded by the Respondent Minister, prior to a decision being made to disclose
a pardoned criminal record pursuant to s. 6 (3) of the Criminal Records Act
(R.S.C., 1985, c. C-47) (CRA). The Minister’s present policy is to make
such a decision without notice to the person to whom the record pertains. This policy
was put into practice with respect to the Applicant’s pardoned record, resulting
in the present judicial review Application. The Applicant’s argument is that
the decision rendered by the Minister is made in error of law because he was
not given notice that an application had been made by a police authority for
disclosure of the record for use in a criminal prosecution against him, and he
was not given an opportunity to be heard prior to the decision being made.
I. The Legislative Scheme of
the CRA
[2]
The
following précis of key CRA provisions provides the legislative context
of the decision under review.
[3]
The
National Parole Board “has exclusive jurisdiction to grant or refuse to grant
or to revoke a pardon” (s. 2.1). When a person is granted a pardon it “is evidence of the fact that the [National
Parole Board], after making inquiries, was satisfied that the applicant for the
pardon was of good conduct, and the conviction in respect of which the pardon
is granted or issued should no longer reflect adversely on the applicant’s
character” (subpar. 5 (a)(i) and (ii)).
With respect to record keeping, “any record of a conviction in
respect of which a pardon has been granted that is in the custody of the
Commissioner [of the R.C.M.P.] or of any department or agency of the Government
of Canada shall
be kept separate and apart from other criminal records, and no such record
shall be disclosed […] without the prior approval of the Minister” (s. 6 (2)).
Most relevant to the present Application is the requirement that, before
granting approval for disclosure of a record, the Minister shall “satisfy
himself that the disclosure is desirable in the interests of the
administration of justice” (s. 6 (3)) [Emphasis added].
[4]
In
making a decision to
disclose or not to disclose, s. 4 of the Criminal Records Regulations (SOR/2000-303) (CRR) requires that the Minister give
consideration to: the
offences for which the applicant has been convicted, including those for which
pardons have been granted or issued, and the relevancy of the offences to the
purpose for which disclosure is being considered; the nature of the offences,
including whether the offences involve violence, children or vulnerable
persons, or breach of trust; the length of time since the applicant committed
offences for which pardons have been granted or issued; the age of the
applicant at the time the applicant committed offences for which pardons have
been granted or issued; and the sentences imposed for offences committed by the
applicant, including those offences for which pardons have been granted or
issued.
[5]
An
important feature of the CRA is that, with respect to the proposed
revocation of a pardon by the National Parole Board, the Board “shall notify
the person to whom the pardon was granted of its proposal in writing and advise
that person that he or she is entitled to make, or have made on his or her
behalf, any representations to the Board that he or she believes relevant
either in writing or, if the Board so authorizes, orally at a hearing held for
that purpose” (s. 7.1). No similar procedural fairness provision exists in the CRA
with respect to a proposed decision to disclose a record by the Minister.
II. The Minister’s Policy
Respecting Disclosure Decisions
[6]
The
affidavit evidence of Ms. Mary Elizabeth Campbell, the Director General of the
Corrections and Criminal Justice Directorate of the Department of Public Safety
and Emergency Preparedness, who is responsible for the processing of requests
for disclosure of pardoned records, provides the Minister’s policy, and the rationale
upon which it is based:
The formulation of any recommendation for
disclosure is done in consideration of these statutory requirements, the
purpose of the pardon and in the circumstances in which the disclosure is
authorized under the CRA.
The CRA does
not require nor anticipate the subject of the pardon will be provided a
hearing either in person, in writing, electronically or otherwise, before the
Minister’s [sic] considers a disclosure request.
When it is formulating a recommendation
to the Minister on disclosure for a limited and particular purpose,
consideration is given to the public interest factors that the Minister is
required to consider, i.e. if the disclosure is in the interest of the
administration of justice, or for any purpose related to the safety or security of Canada or
any state allied or associated with Canada. The Minister also considers certain
aspects relating to the person as presecribed by law such as paragraphs 4 (c)
and (d) of the Regulations. Submissions by the pardoned individual are not
required in order to determine those factors.
In order to make this
recommendation, the Legislator has not found it necessary nor relevant for the
pardoned individual to have an opportunity to make representations since the
pardoned individual would not likely be in a position to consider what would be
in the interest of the administration of justice when deciding if a record
should be disclosed or not.
This emanates from the reality that notification of a pardon records
[sic] disclosure could jeopardize the very reason for which disclosure is
sought. For example, notification to a pardoned offender that a request for a
pardoned criminal record has been made could greatly impact criminal
investigations, criminal prosecutions or other law enforcement activities.
Notification to a pardoned offender that
a pardoned criminal record will be disclosed could also greatly impact criminal
investigations, criminal prosecutions or other law enforcement activities.
[Emphasis added]
(Affidavit of Mary Elizabeth Campbell, Respondent’s
Record, pp. 3 - 4)
III. The Minister’s Decision in
the Present Case
A. Compliance with the CRA
and the CRR
[7]
In her
affidavit, Ms. Campbell describes the uncontested circumstances in the present
case as follows:
In or about April 2010, Peel Regional
Police made a request in writing to the Minister for pardoned criminal record
disclosure relating to the Applicant herein [to be used in his upcoming trial].
[…]
I assigned the initial review of the
request to a senior analyst of the Directorate, Bill Wilson. He undertook to
analyze the request in light of the scheme created by the CRA and the CRR, and
relevant policies. I concurred fully with his analysis, which we presented to
the Deputy Minister, the essence of which is follows [sic].
The letter from Peel Regional Police
included the following salient information: that the Applicant was charged with
sexual assault and sexual interference; the charges were in respect of two
children, ages ten and eleven years old; the charges related to incidences from
June 2003; the Peel Regional Police had an old police report giving rise to
their belief that the Applicant was previously convicted with several criminal
offences including a sexual offence; and the trial of the Applicant with
respect to the recent charges was to be held on June 14, 2010.
The individual facts of this case, which
were given regard in the formulation of the Directorate’s recommendation to the
Deputy Minister, and thereafter put before the Minister, included the
following: the age of the
Applicant at the time of earlier convictions: in 1985 at the age of 23; in
1987, and in 1988 when sentenced to 15 months and probation for 12 months upon
conviction; the nature of the 1988 convictions, namely for sexual interference
with a female under 14 years of age and assault causing bodily harm; the nature
of the new charges against the Applicant for sexual assault and interference
involving two children under 14 years of age; that the police investigators
were already aware of the existence of a pardon; the purpose for which
disclosure was sought by the Peel Regional Police, namely for use in the
prosecution of the new charges; and that if the request for disclosure of the
Applicant’s pardoned records was not allowed, the provincial Crown’s ability to
assess whether or not the new charges should proceed to trial would be
undermined, or alternatively, evidence which the court might deem to be
relevant would be pre-empted.
On the basis of the above considerations,
I supported a recommendation to the Deputy Minister that disclosure was
appropriate for the administration of justice as permitted under section 6 (3)
of the CRA.
The Deputy Minister concurred, and on or
about April 26, 2010, he presented the above analysis and recommendation to the
Minister for review and approval. […]
On
or about April 27, 2010, the Minister, presented with and on the basis of the
above analysis [sic], exercised his authority to allow disclosure in the
interest of the administration of justice.
(Affidavit of Mary Elizabeth Campbell, Respondent’s
Record, pp. 4 - 6)
[8]
It is
agreed that the recommendations made by Ms. Campbell and the Deputy Minister
constitute part of the reasons for the decision rendered by the Minister. In
particular, the Deputy Minister’s statement that “no further charges had been
registered since 1988; however, the subject has been charged with historical
sex offences involving children [and] the investigator, Crown attorney, and the
court should be made aware of the previous convictions is a clear reason for
disclosure” (Affidavit of Mary Elizabeth Campbell, Respondent’s Record, p. 10).
As part of his recommendation to the Minister, the Deputy Minister presented a
draft order for the Minister’s signature which, with the Minister’s signed
approval, the following passage constitutes the balance of the reasons: “it is
apparent that [MJ] has resumed his ‘criminal activities’ and therefore his
record should be available for court purposes” (Intervener’s Record, p. 60).
[9]
However,
Counsel for the Applicant argues that the Minister’s decision should be set
aside on the basis of a failure to properly consider the factors required by
the CRR as quoted above in paragraph 5 of these reasons. This argument
is based on the fact that, prior to the making of the request to the Minister
for disclosure the National Parole Board was asked to revoke the Applicant’s
pardon, and on January 22, 2011 this request was refused without reasons being
provided (see: Applicant’s Motion Record, Tab 4E, p. 2). According to the
argument, the Minister cannot claim the expertise of the National Parole Board
in parole matters, and in reaching a decision on the disclosure of the record,
the Minister was required to inform himself of the reasons for the National
Parole Board’s decision, or allow a representative of the National Parole Board
to participate in the Minister’s decision-making process.
[10]
I dismiss
this argument on the basis that there is no legislative or regulatory support
for the argument. The mandate and authority of the National Parole Board and
the Minister under the CRA are mutually exclusive. In my opinion, on
evidentiary matters, the Minister’s decision is in full compliance with the
requirements of the CRA and the CRR.
IV. Use of the Pardoned Record
Disclosed
[11]
During the
course of oral argument, Counsel for the Attorney General of Ontario confirmed
that the disclosed record is being put to use in the current criminal
proceedings against the Applicant in the Ontario Superior Court of Justice on a
motion that it be admitted as evidence on the trial as similar fact evidence
(see: Intervener’s Record, p. 28 – 43). Counsel for the Attorney General of
Ontario also confirmed that admission depends on the outcome of a voir dire
in which the Applicant has full criminal due process rights. Indeed, during the
passage of time from the date of the disclosure of the record to the date of
the hearing of the present Application, the Superior Court has acted in
recognition of this requirement. A voir dire with respect to the record
has already been conducted, in which the Applicant exercised his criminal due
process rights, a decision is expected on its admission on June 30, 2011, and
the trial is to begin on August 2, 2011. It is agreed that if the Minister’s
decision is set aside as a result of the present Application, the pardoned
record can not be used in the trial.
V. Disclosure and the Principle
of Procedural Fairness
[12]
Counsel
for the Applicant’s principal line of argument is that the Minister’s policy as
above stated was applied in the present case in error of law because its
application offends the principle that “public decision makers are required to
act fairly in coming to decisions that affect the rights, privileges or
interests of an individual” (Dunsmuir v. New Brunswick, [2008] 1 S.C.R.
190, paragraph 79). Counsel for the Applicant argues that the disclosure of the
record affects an interest the Applicant holds, and, as a result, the Applicant
was entitled to notice of the pending disclosure application and the
opportunity to make representations to the Minister on the issue of disclosure.
[13]
The
interest that the Applicant holds is described as being placed in jeopardy of
criminal sanction if his record is disclosed and, since his rights as an
individual are part of the administration of justice, he should have been
accorded procedural fairness to advance this interest prior to disclosure.
[14]
Counsel
for the Minister and Counsel for the Attorney General of Ontario argue that no
duty of fairness was owed to the Applicant. Two grounds are advanced in support
of this argument: as described above, unlike the situation of a revocation of a
pardon, there is no requirement in the CRA that notice be given to the
person named in a record before a decision is made on disclosure; and, since
the Minister’s decision is not dispositive, no procedural fairness need be
accorded.
[15]
In making
the latter argument, the central point of analysis is paragraph 22 of Justice
L’Heureux-Dubé’s decision in Baker v. Canada (Minister of Citizenship and
Immigration),
[1999] 2 S.C.R. 817:
Although the duty of fairness
is flexible and variable, and depends on an appreciation of the context of the
particular statute and the rights affected, it is helpful to review the
criteria that should be used in determining what procedural rights the duty of
fairness requires in a given set of circumstances. I emphasize that underlying
all these factors is the notion that the purpose of the participatory rights
contained within the duty of procedural fairness is to ensure that
administrative decisions are made using a fair and open procedure, appropriate
to the decision being made and its statutory, institutional, and social
context, with an opportunity for those affected by the decision to put
forward their views and evidence fully and have them considered by the
decision-maker.
[Emphasis added]
[16]
Thus, according
to the argument, until the Applicant is “affected” by the proposed use of the
record disclosed, no procedural fairness must be accorded. In my opinion, the
general principles stated by Justice L’Heureux-Dubé support this argument when considered in the context of the CRA
and the use to be made of the disclosed record. I find that the Applicant’s
rights to procedural fairness are not affected until the record is put to use
on a motion for its admission as similar fact evidence in the trial of the
charges pending against him, and it is only at that point that the Applicant
must be accorded criminal due process. As stated above, in fact, this accord has
already been provided.
VI. Ancillary Arguments
[17]
Counsel
for the Applicant argues that since the pardoned record was known to the Peel
Regional Police from their own files; and since pardoned records are to be kept
separate and apart from other criminal records by the Commissioner of the
R.C.M.P pursuant to s. 6 (2) of the CRA; and since public confidence in
the police must be maintained; the apparent record keeping failure in the
present case should be “deemed unacceptable” by setting the Minister’s decision
aside. I dismiss this argument because I find that no record keeping failure
occurred. At the time the Applicant received his pardon, he was warned by the
National Parole Board that “a pardon does not ensure that either municipal or
provincial agencies or private citizens will not disclose a criminal record,
because the CRA applies only to records kept at the federal level”
(Applicant’s Motion Record, Tab 4B, p. 2).
[18]
Counsel
for the Applicant also argues that because the National Parole Board did not
revoke his pardon even though he had been charged with new offences, the
Applicant had an expectation that the pardoned record would remain separate and
apart and would not be adversely used against him. I dismiss this argument because
there is no connection in law between the National Parole Board’s exercise of
discretion regarding revocation of a pardon, and the Minister’s exercise of
discretion regarding disclosure of a pardoned record.
[19]
Counsel
for the Applicant further argues that, because, as a matter of policy, disclosure
requests are handled ex parte because of a potential risk to police
investigations and prosecutions, in the present case, notice should have been
given because no risk was in play; the Applicant was already charged with new
criminal offences when the disclosure request was made.
[20]
In my
opinion, the risk to law enforcement by giving notice of an application for
disclosure, as addressed in the Minister’s policy, is realistic. The fact that
the risk might not come into play in each and every case does not detract from
the validity of the policy, and it also does not affect the lawfulness of a
Minister’s decision to disclose where notice is not provided in a case where
such risk does not exist. This is so because, as found above, disclosure itself
of a pardoned record does not affect an interest held by the person to whom the
record pertains.
[21]
Counsel
for the Applicant finally argues that the Minister’s decision should be set
aside for a reasonable apprehension of bias. The argument is that: since the
present Minister has proposed amendments to the CRA that will make it
impossible for a person with three prior convictions to obtain a pardon; and
since the Applicant has three prior convictions; and since the Minister decided
to disclose the record, the Minister’s decision is suspect for bias. I dismiss
this argument because, in my opinion, the mere coincidence of the factors
advanced does not constitute a credible foundation for a bias argument
considered against the clear and compelling reasons provided by the Minister
for reaching the decision under review.
VII. Conclusion
[22]
As a
result, I find there is no error in law in the application of the Minister’s
policy in the decision presently under review.
ORDER
THIS COURT ORDERS that
By consent, the style of cause
is amended to name the Applicant as “MJ”.
For the reasons provided, the
present Application is dismissed.
I make no award as to costs.
“Douglas
R. Campbell”
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