Docket: T-1944-14
Citation:
2016 FC 87
Ottawa, Ontario, January 25, 2016
PRESENT: The
Honourable Mr. Justice Gleeson
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BETWEEN:
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HAROLD SPRING
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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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JUDGMENT AND REASONS
[1]
This is an application for judicial review of a
decision of the Parole Board of Canada [PBC or Board] denying the applicant's
request for a record suspension, formerly known as a pardon, pursuant to
subsection 4.1(1) of the Criminal Records Act, RSC 1985, c C-47 [Act].
The application was denied on the basis that, pursuant to paragraph 4.1(1)(b)
of the Act, granting a record suspension would bring the administration of
justice into disrepute notwithstanding that it would also be a measurable
benefit to the applicant and would sustain his rehabilitation.
[2]
As a preliminary note, I will use the term
record suspension as defined in subsection 2(1) of the Act, and will only make
reference to the term pardon when I quote various documents, notwithstanding
that the term pardon appears in the Criminal Records Regulations
[Regulations] and several documents in the record for this matter.
I.
Background
[3]
The applicant, born on October 31, 1943, has
four children and has been married to his second wife for sixteen (16) years.
He was called to the Bar in Ontario in 1970 and practiced law for seventeen
years as a corporate commercial lawyer. In 1987 the Law Society of Upper Canada
disbarred the applicant as professional punishment for his involvement in
activities that led to his criminal convictions.
[4]
In January 1990 the applicant plead guilty to
one count of uttering a forged document. The offence related to a fraudulent
mortgage arranged by the applicant, as a lawyer. The applicant represented that
he was arranging the mortgage on an apartment building but in reality did so on
a parking lot thus defrauding the Guardian Trust Company. The applicant was
sentenced to a suspended sentence and one year of probation.
[5]
In February 1994 the applicant plead guilty to
seven counts of fraud over $1,000 that related to transactions that occurred
between 1985 and 1993. The charges involved four institutional complainants and
three individual complainants. The applicant was sentenced to four years and
six months imprisonment. The applicant received parole in August, 1995.
[6]
The Applicant either paid restitution to, or
otherwise settled with, all but two of the institutional complainants. The
institutional complainants who did not receive any restitution suffered a
collective loss of approximately $600,000. The respondent notes that the
evidence in respect of the exact amounts of restitution paid is not entirely
clear.
[7]
Notwithstanding the applicantʼs
convictions, which were known in the real estate field, the applicant has
subsequently achieved significant success in the real estate business.
[8]
In October, 2010 the applicant submitted an
application for a record suspension with supporting materials. A Senior Record
Suspension Officer [Officer] with the PBC verified the information provided
with the application and prepared a summary that recommended the granting of
the record suspension.
[9]
In the summary the Officer found that granting
the record suspension would: (1) create a measurable benefit for the applicant;
(2) support the applicant's reintegration; and (3) not bring the administration
of justice into disrepute. In reaching the conclusion that the granting of the
record suspension would not bring the administration of justice into disrepute
the Officer considered the gravity of the applicant's offences, noting they
involved defrauding individuals and corporations of a total of 1 million
dollars and that in two of the incidents the applicant used his position as a
lawyer for personal gain. However, the Officer also notes that the applicant
paid compensation to some of the victims and while there were four instances of
major frauds between 1986 and 1991 the Officer notes that the applicant did not
participate in a consistent series of frauds over this period.
II.
Decision Under Review
[10]
In September, 2013, PBC Member Doug Hummell
advised the applicant that the PBC proposed to deny the applicant's record
suspension application. The PBC advised that it was concerned that granting the
record suspension would bring the administration of justice into disrepute due
to the nature, gravity and duration of the applicant's offending, the
circumstances surrounding the commission of the offences and information
related to the criminal history pursuant to subsection 4.1(3) of the Act.
[11]
The PBC considered the applicantʼs
convictions, noting that they involved the applicant using his position of
trust as a lawyer to defraud both individual and institutional clients of large
sums of money well in excess of one million dollars: “Your
betrayal of the solicitor-client relationship formed a pattern over many years.
It involved a relatively large number of victims. You took advantage of the
high regard afforded you in the community”.
[12]
The PBC also considered the factors in favour of
granting a record suspension, noting that the applicant had not committed any
offences since his last conviction and had flourished in the real estate
business wherein his criminal record is known or easily discovered: “You desire a pardon to remove the stigma attached to your
record as it affects your personal and business life. The Board would find that
you meet the criteria of good conduct, deriving a measurable benefit, and
sustaining your successful rehabilitation into society”. [Emphasis
added.]. The PBC then states:
What the Board struggles with is your
pardon bringing the administration of justice into disrepute. The public must be assured that the integrity and public
confidence in the justice system is maintained. In this context, having regard
to all the circumstances surrounding your offending, the Board has credible
concerns that granting a pardon would bring the administration of justice into
disrepute. [Emphasis added.].
[13]
Mr. Hummellʼs letter does not detail the
Boardʼs credible concerns beyond making reference to factors that
subsection 4.1(3) of the Act sets out for consideration by the PBC when
determining whether the ordering of a record suspension would bring the
administration of justice into disrepute. The applicant was provided with an
opportunity to address the Boardʼs concerns and he provided further
representations through his legal counsel, including a number of letters of
support from well-established members of the community.
[14]
In May of 2014, and after having received the
applicantʼs response to Mr. Hummellʼs proposal to deny the record
suspension, Board Member Lubomyr Luciuk concurred with Mr. Hummellʼs
decision denying the request for a record suspension: “Given
the nature, gravity, and duration of your criminal offending, and the need to
maintain public confidence in the integrity of the justice system, I conclude
that granting a pardon in your case would likely bring the administration of
justice into disrepute”.
III.
Relevant Legislation
[15]
For ease of reference, the relevant provisions
of the Act and the Regulations are reproduced in Appendix “A” at the end of this Judgment and Reasons.
IV.
Issues
[16]
The application raises the following issues:
1)
What is the applicable standard of review of the
PBCʼs interpretation of the concept of bringing the administration of
justice into disrepute as set out in section 4.1 of the Act;
2)
Did the PBC err in failing to consider
mitigating factors when finding that granting a record suspension would bring
the administration of justice into disrepute; and
3)
Was the PBC's decision not to grant a record
suspension otherwise reasonable?
V.
Analysis
A.
Issue 1: What is the applicable standard of
review?
[17]
The applicant notes that the Act was amended by
Parliament shortly before the applicant's application for a record suspension
was submitted to the PBC. Those amendments included changes to section 4.1 of
the Act requiring the PBC to address a number of additional criteria when
considering the granting of a record suspension where the offences for which
the record suspension is being sought, were prosecuted by way of indictment.
These additional criteria include the requirement, found at paragraph 4.1(1)(b)
of the Act, that the PBC be satisfied that the granting of a record suspension
would not bring the administration of justice into disrepute. The applicant
notes that in light of the relevantly recent enactment of the amendments there
is no jurisprudence establishing the appropriate standard of review to be
adopted in considering a decision of the PBC to deny a record suspension on the
basis that it would bring the administration of justice into disrepute.
[18]
The applicant, relying on Dunsmuir v New
Brunswick, [2008] 1 S.C.R. 190 at para 55 [Dunsmuir] takes the position
that a correctness standard should be adopted as matters relating to the repute
of the administration of justice engages a question of central importance to
the legal system, which is a question of pure statutory interpretation outside
the PBCʼs expertise. However, the applicant also submits that the Court
should still quash the decision even if it applies the reasonableness standard
of review.
[19]
The respondent takes the position that an
administrative decision-makerʼs interpretation of a statutory provision
closely connected to its function and with which the decision-maker has
particular familiarity attracts the reasonableness standard of review (Alberta
(Information and Privacy Commissioner) v Alberta Teachers' Association,
[2011] 3 S.C.R. 654 at para 30 [Alberta Teachers]; McLean v British
Columbia (Securities Commission), [2013] 3 S.C.R. 895 at para 21 [McLean]).
The respondent argues that the concept of bringing the administration of
justice into disrepute does not fall within the exception of a question of law
that is of central importance to the legal system as a whole and outside the
adjudicatorʼs specialized area of expertise.
[20]
The respondent argues that the PBC has
interpreted and applied the provisions of the Act to case-specific facts. The respondent
goes on to note that although the term "bring the administration of
justice into disrepute" exists in other legal contexts, the determination
made by the PBC under paragraph 4.1(1)(b) of the Act does not have any effect
outside the record suspension context. The respondent submits that what
constitutes a matter that would bring the administration of justice into
disrepute in the record suspension context is a difficult and nuanced question
which Parliament asked the PBC not the Courts to answer.
[21]
I agree with the respondent. The jurisprudence
establishes that where a decision of a specialized tribunal, interpreting and
applying its enabling statute, is subject to judicial review there is a
presumption that that standard of review is reasonableness (Alberta Teachers
at paras 30, 34, 39; McClean at paras 21-22).
[22]
The existence of a privative clause in relation
to the administrative tribunals also gives a strong indication that a
reasonableness standard of review should apply to questions of interpretation
relating to the tribunal's enabling statute (Dunsmuir at para 52).
[23]
However, the jurisprudence also recognizes that
the presumption of deference can be rebutted. One such circumstance being where
the interpretation engages a question of central importance to the legal system
and is outside the specialized area of expertise of the specialized tribunal (Dunsmuir
at para 55; Alberta Teachers at para 30; McLean at para 26). I am
not satisfied that the presumption has been rebutted here.
[24]
This Court has considered the standard of review
to be applied where the interpretation of the undefined term “good conduct” found in paragraph 4.1(1)(a) and
paragraph 7(b) of the Act. In these cases the Court has adopted and applied a
reasonableness standard of review (Jaser v Canada (Attorney General),
2015 FC 4 at paragraph 35, 119 WCB (2d) 506 [Jaser]; Saini v Canada
(Attorney General), 2014 FC 375 at paras 26-27, 454 FTR 254; Foster v
Canada (Attorney General), 2013 FC 306 at paras 18-19; Conille v Canada
(Attorney General), 2003 FCT 613 at para 14, 125 ACWS (3d) 997 (TD) [Conille];
Yussuf v Canada (Attorney General), 2004 FC 907 at para 9, 62 WCB (2d)
250). The Court grounds this finding on the existence of the privative clause
found at section 2.1 of the Act which states “The Board
has exclusive jurisdiction and absolute discretion to order, refuse to order or
revoke a record suspension”. As noted by Justice Keith Boswell in Jaser
at paragraph 35, section 2.1 of the Act militates in favour of deference:
[35] I disagree with the applicant's
contention that the substance of the Board's decision should be reviewed on a
correctness standard. To the extent that there is a question of what "good
conduct" means, it is about interpreting the Act, which is a statute closely
connected to the Board's function. Reasonableness is ordinarily presumed for
such issues (Alberta (Information and Privacy Commissioner) v Alberta
Teachers' Association, 2011 SCC 61 at paras 30, 34, [2011] 3 S.C.R. 654). I
see no reason that this presumption should be rebutted, especially since
section 2.1 of the Act gives to the Board the "exclusive jurisdiction and
absolute discretion to order, refuse to order or revoke a record
suspension".
[25]
The applicant acknowledges the presumption of
deference but argues that the presumption should be rebutted here. The
applicant argues that the term “bring the
administration of justice into disrepute” raises issues of central
importance to the legal system. The applicant submits that the repute of the
administration of justice is of relevance across the entire legal system and
the Courts, as the arbiters of the Constitution, are called upon to determine
the proper considerations related to the repute of the administration of
justice in adjudicating matters pursuant to subsection 24(2) of the Charter.
[26]
I respectfully disagree. In McClean at
paras 28-31, in the context of limitation periods, Justice Moldaver notes that
while a concept may be of general importance, that does not in itself dictate
the adoption of a correctness standard of review:
[28] Here, the appellant's arguments in
support of her contention that this case falls into the general question
category fail for three reasons. First, although I agree that limitation
periods, as a conceptual matter, are generally of central importance to the
fair administration of justice, it does not follow that the Commission's
interpretation of this limitation period must be reviewed for its correctness.
[Emphasis added.]
[29] Second, while it is true that
reasonableness review in this context necessarily entails the possibility that
other provincial and territorial securities commissions may arrive at different
interpretations of their own statutory limitation periods, I cannot agree that
such a result provides a basis for correctness review - and thus judicially
mandated "consisten[cy] . . . across the country" (A.R.F., at para.
13). No one disputes that each of the provincial and territorial legislatures
can enact entirely different limitation periods. Indeed, one of them has; see Manitoba's
Securities Act, C.C.S.M., c. S50, s. 137 (providing an eight-year period,
instead of the six-year norm). By the same token, it may be the case that
provincial and territorial securities regulators come to differing (but
nonetheless reasonable) interpretations of those limitation periods (though
that has yet to occur). If there is a problem with such a hypothetical
outcome, it is a function of our Constitution's federalist structure - not the
administrative law standards of review.
[30] Third, and most significantly, the
problem with the appellant's argument is her narrow view of the Commission's
expertise. [Emphasis added.] In particular, the appellant argues that
limitation periods "are not in themselves part of substantive securities
regulation, the area of the [Commission's] specialised expertise" (A.R.F.,
at para. 9). The argument presupposes a neat division between what one might
call a "lawyer's question" and a "bureaucrat's question".
The logic seems to be that because the meaning of "the events" in s.
159 cannot possibly require any great technical expertise - there is, after
all, no specialized "bureaucratese" to interpret - why should the
matter be left to the Commission?
[31] While such a view may have carried
some weight in the past, that is no longer the case. The modern approach to
judicial review recognizes that courts "may not be as well qualified as a
given agency to provide interpretations of that agency's constitutive statute
that make sense given the broad policy context within which that agency must
work". [Emphasis added.] (National Corn Growers Assn. v. Canada
(Import Tribunal), [1990] 2 S.C.R. 1324, at p. 1336, per Wilson J.; see
also Council of Canadians with Disabilities v. VIA Rail Canada Inc.,
2007 SCC 15, [2007] 1 S.C.R. 650, at para. 92; Mowat, at para. 25).
[27]
Repute of the administration of justice is, in
my opinion, a context specific concept. The contextual nature of the concept
within the framework of the Act is demonstrated by Parliament's choice to
enumerate factors under subsection 4.1(3) which the PBC may consider when
making a determination on the question of repute of the administration of
justice. These factors, both in the Act and the Regulations all address
considerations relating to the offence and the consequences of the offence for
which a record suspension is being sought. These are issues clearly within the
expertise of the PBC. I agree with the respondentʼs submission that what
constitutes a matter that would bring the administration of justice into
disrepute in the context of deciding whether to grant a record suspension is a
difficult and nuanced question which Parliament asked the PBC not the Courts to
answer.
[28]
I am of the opinion that the reasonableness
standard of review applies in regard to the PBCs interpretation of subsection
4.1 of the Act.
[29]
With respect to reviewing the PBCʼs
decision not to grant a record suspension, the reasonableness standard of review
also applies (Dunsmuir at para 51).
B.
Issue 2 - Did the PBC err in failing to consider
mitigating factors when finding that granting a record suspension would bring
the administration of justice into disrepute?
[30]
The applicant argues that the PBC erred by
failing to adopt an expansive approach to the interpretation of the concept “bring the administration of justice into disrepute”. In
doing so the applicant argues the PBC failed to consider mitigating factors
relating to the applicant's good conduct and rehabilitation, focusing instead
on the statutory and regulatory factors set out at subsection 4.1(3) of the
Act. The failure to consider these positive factors when determining whether or
not the grant of a record suspension would bring the administration of justice
into disrepute is, in the applicant's submissions, inconsistent with the
rehabilitative purpose of the Act and was a reviewable error.
[31]
The applicant relies on Chief Justice McLachlinʼs
decision in R v Grant, [2009] 2 S.C.R. 353 at paras 68 - 70 [Grant]
where the Chief Justice addresses the scope and meaning of the concept “bring the administration of justice into disrepute”
within the context of subsection 24(2) of the Charter. Grant notes
that repute of the administration of justice is a societal and forward looking
concept that considers the view of a reasonable person apprised of all the
relevant circumstances and values underlying the Charter.
[32]
While I do not dispute the need for a broad,
societal and forward looking approach to the interpretation of the repute of
the administration of justice in the context of subsection 24(2) of the Charter,
the term is not being considered in the Charter context in this
application. As I noted earlier, how the term is interpreted is driven by
context. This contextual approach to interpretation was recognized by Justice
Major writing in dissent in Mooring v Canada (National Parole Board),
[1996] 1 S.C.R. 75 at para 46 where the Court was addressing the question of
whether the Parole Board was a Court of competent jurisdiction within the
meaning of section 24 of the Charter: “The
National Parole Board must then determine, under s. 24(2), whether the
admission of the evidence in a parole granting or revocation hearing would
bring the administration of justice into disrepute. In the context of the
National Parole Board, the administration of justice means the administration
of the parole process”. [Emphasis added.]
[33]
In considering repute to the administration of
justice in this instance the PBC is not relying on principles that are relevant
in a Charter context but rather is interpreting the term in the context
of an application for a record suspension. Consideration of repute of the
administration of justice is required by the legislation, and the legislation
in turn identifies specific factors that the PBC may consider in
deciding the question of repute of the administration of justice. The PBC is
not prohibited from considering mitigating factors or identifying and
considering aggravating factors beyond those identified in the Act and
Regulations. The factors to be relied on, aggravating or attenuating, and the
weight they are given are left to the discretion of the PBC.
[34]
It is evident upon a review of Mr. Hummellʼs
“Purpose to Deny Pardon” letter, that the PBC
was aware of the positive aspects of the applicantʼs application and was
alive to the balancing of these factors against the concerns it had in regard
to repute of the administration of justice: “The Board
would find that you meet the criteria of good conduct, deriving a measurable
benefit, and sustaining your successful rehabilitation into society. What the
Board struggles with is your pardon bringing the administration of justice into
disrepute”. In my opinion the PBC did not ignore these positive factors.
[35]
The granting of a records suspension is a highly
discretionary decision that has been entrusted to the PBC by virtue of
subsection 4.1(1) of the Act which states the Board “may”
order a record suspension (Saini at para 26; Conille at para 14; Therrien
(Re), [2001] 2 S.C.R. 3 at paras 113 and 115). I am not persuaded that the PBC
committed a reviewable error in its identification of factors relevant to its
analysis of whether or not the granting of a record suspension would bring the
administration of justice into disrepute.
C.
Issue 3 - Was the PBCʼs decision not to grant a record suspension otherwise reasonable?
[36]
While I am satisfied that the PBC did not err in
its interpretation of paragraph 4.1(1)(b) of the Act, I am of the opinion that
the decision lacks transparency and intelligibility in concluding that
granting the applicant a record suspension would bring the administration of
justice into disrepute, thus rendering the decision unreasonable (Dunsmuir
at para 47).
[37]
Neither Mr. Hummelʼs “Propose to Deny Pardon” letter, nor Mr. Luciukʼs
decision letter provides any explanation in support of the PBCʼs
conclusion that granting a record suspension would shock the public collective
conscience and bring the administration of justice into disrepute.
[38]
Instead Mr. Hummelʼs letter is limited to a
review of the applicantʼs fraudulent conduct which led to the betraying of
the communityʼs trust at the time the offences were committed. The PBC
recognizes that a record suspension would provide a measurable benefit to the
applicant and sustain the applicantʼs successful rehabilitation. It then
expresses that it is concerned that the nature, gravity, duration of offending,
circumstances surrounding the commission of the offences and the information
relating to the criminal history is of such a nature that granting a record
suspension would bring the administration of justice into disrepute. The
concerns in this regard are described as “credible
concerns”, but there is no explanation or enumeration of those concerns.
[39]
Similarly, while I am satisfied that the
decision reflects that the PBC was aware of the positive aspects of the
application and alive to the balancing of these factors against the aggravating
factors of the application, the PBC does not explain how the factors relating
to the applicantʼs offences outweighed the positive aspects of the
application.
[40]
Finally, while Mr. Luciukʼs decision letter
acknowledges the applicantʼs December, 2013 representations and
attachments, there is no substantive consideration of this information in the
letter. The failure of the PBC to explain why the relevant and directly
contradictory evidence contained in the December 2013 representations did not
allay the “credible concerns that granting a pardon
would bring the administration of justice into disrepute” makes it
easier to conclude that the decision is unreasonable.
[41]
I hasten to note that the Supreme Court of
Canada established that the inadequacies of an administrative decision-makerʼs
reasons do not, in and of themselves, render a decision unreasonable (Newfoundland
and Labrador Nurses' Union v Newfoundland and Labrador (Treasury Board),
[2011] 3 S.C.R. 708 at para 14 [Newfoundland Nurses]). Newfoundland
Nurses holds that a decision-maker need not address or explore in depth
every argument or issue raised “that does not impugn
the validity of either the reasons or the result under a reasonableness
analysis” (Newfoundland Nurses at para 16). However the reasons
must allow a reviewing court to understand why the decision-maker reached a
particular decision and determine whether or not that decision is within the
range of acceptable outcomes based on the facts and the law (Newfoundland
Nurses at para 14; Dunsmuir at para 47). After carefully considering
the record, the reasons of the PBC do not, in my view, meet this standard.
[42]
The Court and the applicant have been left with
a decision that denies the application for a record suspension but does not
address why. One is left to speculate as to what the credible concerns of the
PBC are and what, if anything, the applicant might do in the future to address
those concerns. Those credible concerns do not relate to a subordinate issue or
argument; rather they formed the crux of the PBCʼs decision to reject the
application for a record suspension because granting a record suspension would
bring the administration of justice into disrepute. Their absence impugns the
validity of the reasons and the result (Newfoundland Nurses at para 16).
VI.
Conclusion
[43]
I am of the opinion the Board's decision lacks
transparency and intelligibility and is unreasonable. The decision is quashed
and returned for reconsideration by the PBC.
[44]
Costs to the applicant.
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