Date: 20080206
Docket: T-1137-07
Citation: 2008 FC 153
Ottawa, Ontario, February 6,
2008
PRESENT: The Honourable Mr. Justice Phelan
BETWEEN:
SERGEY
PASHKURLATOV
Applicant
and
THE
ATTORNEY GENERAL OF CANADA
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
I. INTRODUCTION
[1]
Mr.
Pashkurlatov is a Russian citizen who was convicted of aggravated assault and
robbery following his guilty plea. He was sentenced to prison for five years,
eight months. He was in Canada illegally at the time of the commission of
the crime.
[2]
The
Applicant had applied to the National Parole Board (NPB) for full parole in
anticipation of being deported to Russia – a prospect which he
welcomed. The parole application was denied initially and on appeal to the
Appeal Division, the denial was upheld.
[3]
The
main issues at the Appeal Division were the NPB’s findings of fact regarding
the crime and its assessment of the Applicant’s risk to the community. The
Appeal Division found the NPB’s conclusion reasonable. This is a judicial
review of the Appeal Division’s decision.
[4]
In
this judicial review, the Applicant argues:
1) that
the Appeal Division acted beyond its jurisdiction in that it shifted the burden
to establish that the released person would have supervision in the receiving
country;
2) that
there was a breach of procedural fairness in the Appeal Division’s referral to
an altercation the day before the NPB’s hearing about which there were no charges
or conviction at the time of the NPB’s hearing; and
3) that
the Appeal Division erred in supporting the NPB’s conclusion that the beating of
the victim (the subject matter of the conviction) lasted three hours rather
than 30 seconds as the Applicant alleged. This finding is said to be
patently unreasonable.
II. FACTUAL
BACKGROUND
[5]
The
Applicant and an accomplice broke into the home of a jewellery store owner on
May 7, 2004. Over the course of three hours they confined the victim to his
apartment and beat him to obtain the keys to the store, the alarm code and the
combination to the safe. They punched the victim in the face and hit him
several times on the head with a 20-pound dumbbell. The victim required 30
staples to close the head wound and 15 stitches to repair his ear.
[6]
At
his trial, the Applicant pleaded guilty to aggravated assault, robbery and
break and enter with intent to commit an indictable offence. He already had a
criminal record in Canada for possession of stolen property, fraud and
uttering threats. He also had convictions in Russia as well.
III. ANALYSIS
[7]
The
standard of review was said to be correctness as to jurisdiction and procedural
fairness and patent unreasonableness on findings of fact (see Cartier v. Canada (Attorney
General),
2002 FCA 384). Having regard for Justice Major’s comment in Voice
Construction Ltd. v. Construction & General Workers’ Union, Local 92,
[2004] 1 S.C.R. 609, that the patent unreasonableness standard should be rare,
even if the standard is reasonableness, the result will be the same.
A. Jurisdiction
[8]
In
deciding to grant parole, the Board is to be guided by a number of principles
set forth in s. 101 of the Corrections and Conditional Release Act,
S.C. 1992, c. 20, two of which are particularly germane here:
(a) protection
of society; and
(b) least
restriction.
[9]
There
was no shifting of onus as alleged, but a recognition that there was
insufficient evidence of a plan for supervision of the Applicant’s parole in Russia. The Board
is mandated to exercise caution in releasing persons before their sentence is
served or the period for statutory release has been reached.
[10]
It
would seem incongruous that a foreign prisoner could obtain parole without any
regard for later supervision upon deportation while a Canadian prisoner would
have to be subject to supervision.
[11]
I
can find no error of jurisdiction in this regard.
B. Procedural
Fairness
[12]
The
Applicant takes exception to the conclusion that the Applicant’s pride has been
an obstacle to his rehabilitation and is a continuing factor in his potential
for violence. The Applicant says that it was improper to take into consideration
an altercation for which, at the time of the NPB’s hearing, he had not been
charged or convicted.
[13]
The
conclusion about the Applicant’s pride was based on several factors including
that the violent crime was in order to obtain “flash money” – a symbol of
success. The altercation was a factor because the Applicant admitted to its
existence. There was a reasonable basis in the record for concluding that the
Applicant had not exercised sufficient personal discipline to walk away from
the situation.
[14]
There
was nothing unfair in addressing the significance of the fact of an altercation
– a fact the Applicant did not deny. The Applicant argues with the conclusion
which should be drawn but that is not a matter of procedural fairness.
C. Finding
of Fact
[15]
Lastly,
the Applicant complains that there was a finding that the Applicant had beaten
his victim for three hours when in fact it was only 30 seconds.
[16]
Given
that the beating (aside from slaps to the face) consisted of hitting the victim
on and about the head with a 20-pound weight, any suggestion that there was a
finding that this hitting with that instrument occurred for three hours
non-stop is ludicrous. There is nothing in the record to suggest that either
the NPB or the Appeal Division reached that conclusion.
IV. CONCLUSION
[17]
I
find absolutely no merit in this judicial review. Therefore, the application
for judicial review is dismissed with costs.
JUDGMENT
THIS COURT
ORDERS AND ADJUDGES that this
application for judicial review is dismissed with costs.
“Michael
L. Phelan”
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