Date:
20130326
Docket:
T-1084-11
Citation:
2013 FC 306
BETWEEN:
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DAVID FOSTER
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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 JUDGMENT
MACTAVISH
J.
[1]
David
Foster seeks judicial review of a decision of the National Parole Board (now
the Parole Board of Canada) refusing his request for a pardon.
[2]
Mr.
Foster submits that because his convictions were for offences that had
proceeded by way of summary conviction and more than three years had passed
since his last conviction, the Board was obliged to grant him a pardon. The
respondent contends that at least one of Mr. Foster’s convictions was for an
indictable offence, with the result that the Board was obliged to determine
whether he has been “of good conduct” in the five years leading up to his
application.
[3]
For
the reasons that follow, I have concluded that at least one of Mr. Foster’s
convictions was indeed for an indictable offence. Consequently, the Board did
not err in carrying out a “good conduct” analysis. Moreover, Mr. Foster has not
demonstrated that the Board’s finding that he had not satisfied the good
conduct requirement in the five years preceding his application for a pardon
was unreasonable. Consequently, the application for judicial review will be
dismissed.
Background
[4]
Mr.
Foster was convicted of two theft-related criminal offences in 1975 and a
weapons charge in 1987. Although he has been charged with numerous criminal
offences since that time, none of these charges has resulted in a conviction.
Mr. Foster was acquitted of sexual assault and sexual interference in 2006, and
various other charges against him were either stayed or withdrawn.
[5]
In
2010, Mr. Foster applied for a pardon. In a subsequent exchange of
correspondence with the Board, Mr. Foster asserted that the 1975 and 1987
charges were prosecuted by way of summary conviction, although he provided no
documentary proof of this, claiming that the records associated with these
convictions had been lost.
[6]
Given
that more than three years had passed since his last criminal conviction, Mr.
Foster asserted that in accordance with the provisions of subsection 4.1(2) of
the Criminal Records Act, R.S.C. 1985, c. C-47, he was entitled to a
pardon. The provisions of section 4.1 of the Act in effect at the time of Mr.
Foster’s application provided that:
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4.1
(1) The Board may grant a pardon for an offence prosecuted by indictment or a
service offence referred to in subparagraph 4(a)(ii) if the Board is
satisfied that the applicant, during the period of five years referred to in
paragraph 4(a),
(a)
has been of good conduct; and
(b)
has not been convicted of an offence under an Act of Parliament or a
regulation made under an Act of Parliament.
(2)
A pardon for an offence punishable on summary conviction or a service offence
referred to in subparagraph 4(b)(ii) shall be issued if the offender has not
been convicted of an offence under an Act of Parliament or a regulation made
under an Act of Parliament during the period of three years referred to in
paragraph 4(b).
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4.1
(1) Pour les infractions punissables par voie de mise en accusation et pour
les infractions d’ordre militaire visées à l’alinéa 4a), la Commission peut
octroyer la réhabilitation lorsqu’elle est convaincue, pendant le délai de
cinq ans, de la bonne conduite du demandeur et qu’aucune condamnation, au
titre d’une loi du Parlement ou de ses règlements, n’est intervenue.
(2)
Pour les infractions punissables sur déclaration de culpabilité par procédure
sommaire et pour les infractions d’ordre militaire visées à l’alinéa 4b), la
réhabilitation est délivrée si aucune condamnation, au titre d’une loi du
Parlement ou de ses règlements, n’est intervenue pendant le délai de trois
ans.
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[7]
The
respondent says that Mr. Foster did not establish that he had in fact been
convicted of summary conviction offences in 1975 and 1987. As a consequence,
the Board was required to determine whether Mr. Foster satisfied the “good
conduct” requirement of subsection 4.1(1) of the Act.
The Board’s Decision
[8]
In
concluding that Mr. Foster had not demonstrated that he had been “of good
conduct” in the years leading up to his application, the Board reviewed the
various charges that had been laid against Mr. Foster over the years, focusing
on the charges in the five years preceding his application for a pardon. The
Board noted that Mr. Foster had provided information with respect to these
charges, but that he had not explained what had led to the charges being laid,
nor had he provided his understanding of the outcome of the charges.
[9]
With
respect to the 2006 charges of sexual assault, the Board noted that Mr. Foster
had declined to explain the circumstances that had led up to the alleged
victim’s claims. The Board accepted that it was Mr. Foster’s choice to decline
to provide this information, but that it was required to consider all relevant
information in deciding whether or not a pardon should be granted.
[10]
The
Board observed that Mr. Foster alleged that he had been the victim of “spurious
charges”. However, it found that he had failed to provide the Board with any
understanding of what had led up to charges of criminal harassment and uttering
threats having been stayed. The Board further noted that Mr. Foster’s
description of the events leading up to the harassment charges was of concern,
as his behaviour had necessitated the involvement of the police and had
resulted in the issuance of a trespass notice. According to the Board,
“[c]onduct such as this is not consistent with the criteria that the Board must
rely upon to render a favourable pardon decision”.
[11]
After
observing that the concept of “good conduct” was very broad, the Board
concluded that Mr. Foster did not meet the “good conduct” criteria, with the
result that his application for a pardon was dismissed.
The Admissibility of
Additional Evidence
[12]
Mr.
Foster seeks to rely on an October 11, 2011 letter from the Clerk of the
Ontario Court of Justice on Finch Avenue in Toronto in support of his
application for judicial review, a letter that post-dates the Board’s decision.
The letter states that no information was currently available as to whether Mr.
Foster’s 1987 conviction for “possession of weapons dangerous to the public”
had been prosecuted by way of indictment or as a summary conviction offence.
[13]
The
respondent objects to the inclusion of this letter in Mr. Foster’s Application
Record on the basis that is was not before the Board when it made the decision
under review.
[14]
An
application for judicial review is ordinarily conducted on the basis of the
record that was before the original decision-maker: Abbott Laboratories Ltd.
v. Canada (Attorney General), [2008] F.C.J. No. 1580, at para. 37. The task
for this Court is to determine whether, in dismissing Mr. Foster’s application
for a pardon, the Board committed a reviewable error, based upon the record
before it.
[15]
There
is an exception to this rule. That is, additional evidence may be adduced on an
application for judicial review where issues of procedural fairness or
jurisdiction arise: Abbott, above, at para. 38, see also Ontario Assn. of Architects v.
Assn. of Architectural Technologists of Ontario, 2002 FCA 218, [2003] 1 F.C.
331, at paragraph 30.
[16]
Additional
evidence may also be admitted where the evidence provides uncontroversial
background facts to assist the Court (see, for example, Ochapowace First
Nation (Indian Band No. 71) v. Canada (Attorney General), 2007 FC 920 at
para. 9, aff’d [2009] F.C.J. No. 486, 2009 FCA 124.
[17]
None of these
exceptions apply in this case. As a consequence, Mr. Foster has not persuaded me that the October 11, 2011
letter from the Clerk of the Ontario Court of Justice should be admitted on
this application. However, as will be explained below, my conclusion in this
regard has no impact on the ultimate outcome of this application, which turns
on the character of Mr. Foster’s 1975 conviction.
Standard of Review
[18]
Mr.
Foster takes issue with the Board’s understanding of the facts underlying his
request for a pardon, and its application of the law to those facts. He did not
address the question of standard of review in his submissions. Given that the
application for judicial review turns largely on the Board’s appreciation of
the facts underlying the pardon application, I agree with the respondent that
the Board’s decision should be reviewed against the standard of reasonableness:
see Conille v. Canada (Attorney General), [2003] F.C.J. No. 828, at
para. 14 and Yussuf v. Canada (Attorney General), [2004] F.C.J. No. 1115
at para. 9.
[19]
In
reviewing a decision against the reasonableness standard, the Court must
consider the justification, transparency and intelligibility of the
decision-making process, and whether the decision falls within a range of
possible acceptable outcomes which are defensible in light of the facts and the
law: see Dunsmuir v. New Brunswick,
2008 SCC 9, [2008] 1 S.C.R. 190, at para. 47, and Canada (Citizenship and Immigration)
v. Khosa,
2009 SCC 12, [2009] 1 S.C.R. 339 at para. 59.
Analysis
[20]
Mr.
Foster contends that the Board erred in carrying out a “good conduct” analysis
in considering his application for a pardon. Mr. Foster says that because his
1975 and 1987 convictions had proceeded by way of summary conviction and more
than three years had passed since his last conviction, the Board was obliged to
grant him a pardon in accordance with the provisions of subsection 4.1(2) of
the Act.
[21]
The
respondent agrees that if the facts were as presented by Mr. Foster in his
argument, his application for a pardon would have had to have been considered
under subsection 4.1(2) of the Act. The respondent further accepts that once an
applicant has shown that his or her convictions were for summary conviction
offences, and more than three years have passed since the applicant’s last
conviction, the Board has no discretion and must grant a pardon.
[22]
However,
the respondent submits that Mr. Foster has not established that his 1975 and
1987 convictions had in fact proceeded by way of summary conviction.
[23]
Mr.
Foster’s criminal record shows that in 1975, he was convicted of the offences
of “break, enter and theft” and “possession of stolen property under $200”. Mr.
Foster does not dispute that this was in fact the case. However, he says that
because the trial records are no longer available, it cannot be established
that either of these charges proceeded by indictment rather than by summary
conviction.
[24]
I
would first note that there is no evidence before me that the records relating
to Mr. Foster’s 1975 convictions are not in fact available. More importantly,
however, a review of the relevant Criminal Code provisions in effect at
the time of Mr. Foster’s 1975 conviction discloses that the offence of “break,
enter and theft” was an indictable offence, and not a hybrid or summary
conviction offence: see section 306, Criminal Code, R.S.C. 1970, c. C-34. As a consequence, the Crown did
not have the option of proceeding summarily in relation to this charge.
[25]
As
a result, I am satisfied that at least one of Mr. Foster’s convictions was for
an indictable offence. This meant that Mr. Foster’s application for a pardon
had to be considered under subsection 4.1(1) of the Act, with the result that
the Board did not err in carrying out a “good conduct” analysis.
[26]
Mr.
Foster advanced an argument at the hearing of his application for judicial
review as to the effect that the passage of the Young Offenders Act, R.S.C., 1985, c.
Y-1, as repealed by Youth Criminal
Justice Act, S.C. 2002, c. 1, had on the ability of the
Board to consider his 1975 convictions. I am not prepared to consider this
argument, given that it was not raised in his memorandum of fact and law. The
fact that Mr. Foster made passing reference in his memorandum to the fact that
he was 17 at the time of his 1975 convictions did not provide the respondent
with notice of the argument now being advanced, which related to the effect of
transitional provisions that accompanied the enactment of the Young
Offenders Act, and it would not be fair to the respondent to entertain the
argument in the circumstances.
[27]
While
it is true that none of the charges that Mr. Foster faced in the five years
preceding his application for a pardon had resulted in a conviction, the
“presumption of innocence” does not apply in an administrative proceeding such
as an application for a pardon: see Conille, above at para. 30. As a
consequence, the Board did not err in considering the circumstances that led up
to the charges having been laid against Mr. Foster in assessing whether or not
he satisfied the “good conduct” requirement of the Act.
[28]
Finally,
Mr. Foster has not demonstrated that the Board’s finding that he had not
established his “good conduct” during the relevant period was one that was outside the range of
possible acceptable outcomes which are defensible in light of the facts and the
law.
Conclusion
[29]
For these
reasons, the application for judicial review is dismissed. The respondent shall
have one week from the date of this decision to provide written submissions on
the issue of costs. Mr.
Foster shall have a
further week in which to respond, following which the judgment will issue.
“Anne
Mactavish”
Ottawa, Ontario
March 26, 2013
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