Docket: T-2036-15
Citation:
2017 FC 346
Ottawa, Ontario, April 6, 2017
PRESENT: The
Honourable Madam Justice Kane
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BETWEEN:
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VITTO BUFFONE
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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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JUDGMENT AND REASONS
[1]
The Applicant, Vito Buffone, seeks judicial
review of the October 27, 2015 decision by the Parole Board of Canada (the
Board) made pursuant to the Criminal Records Act, RSC 1985, c C-47 [CRA]
to revoke the pardon he was previously granted in 2008.
[2]
In November 2014, the Board received information
from the Intelligence Unit of the Niagara Regional Police Service that Mr.
Buffone had been charged with offences pursuant to the Controlled Drugs and
Substances Act, SC 1996, c 19 [CDSA] and the Criminal Code, RSC
1985, c C-46. The Board subsequently revoked his pardon pursuant to section 7
of the CRA.
[3]
For the reasons below, the application for
judicial review is dismissed. The Board’s decision is reasonable. The Board was
not required to conduct a balancing of the Charter interests or values
implicated in the revocation of the pardon with the statutory objectives of the
CRA in the absence of any such submissions to the Board from Mr. Buffone. The
Board was not, in the circumstances of this case, required to proactively
conduct such a balancing exercise. The Board did not err in applying the
statutory provisions and exercising its discretion to revoke Mr. Buffone’s
pardon based on the information it relied on to determine that Mr. Buffone no
longer met the good conduct criteria.
I.
Background
[4]
On January 11, 2008, Mr. Buffone was granted a
pardon by the National Parole Board, as it was formerly known, with respect to
his two prior criminal convictions: a) the February 24, 1986 conviction for
possession of a narcotic and, b) the June 7, 1994 conviction for possession of
property obtained by crime over $1000.
[5]
On September 25, 2014, Mr. Buffone was charged
with 12 offences under the CDSA and the Criminal Code:
1) Possession
of cocaine for the purpose of trafficking – CDSA subsection 5(2);
2) Trafficking cocaine – CDSA
subsection 5(1);
3) Conspiracy
to commit an indictable offence, namely importation of a controlled substance
(cocaine) – Criminal Code paragraph 465(1)(c);
4) Conspiracy
to commit an indictable offence, namely possession for the purposes of
trafficking (cocaine) – Criminal Code paragraph 465(1)(c);
5) Conspiracy
to commit an indictable offence, namely possession for the purposes of
trafficking (cocaine) – Criminal Code paragraph 465(1)(c);
6) Possession
of property obtained by crime exceeding $5,000 – Criminal Code
paragraph 354(1)(a);
7) Laundering
the proceeds of crime – Criminal Code paragraph 462.31(1)(a);
8) Possession
(cocaine) for the purposes of trafficking and/or trafficking for a criminal
organization – Criminal Code section 467.12;
9) Conspiracy
to commit an indictable offence, namely importation of a controlled substance
for a criminal organization – Criminal Code section 467.12;
10) Importation
and/or possession for the purposes of trafficking a controlled substance
(cocaine) for a criminal organization – Criminal Code section 467.12;
11) Possession
of a prohibited weapon (stun gun) without a licence – Criminal Code
subsection 91(2); and
12) Possession
of property obtained by crime not exceeding $5,000 – Criminal Code
paragraph 354(1)(a).
[6]
In November 2014, the Niagara Regional Police
Service Intelligence Unit sent a copy of the Information setting out the
charges against Mr. Buffone to the Board.
[7]
On December 10, 2014, the Board sent Mr. Buffone
a notice advising him that the Board had received reliable information that he
had been charged with several offences and that his pardon was under review.
The Board enclosed a proposal for the possible revocation of his pardon.
[8]
The Parole Board invited Mr. Buffone to make
written representations in response to the notice but none were received. The
Parole Board issued a decision revoking Mr. Buffone’s pardon on May 15, 2015,
finding that it was satisfied that Mr. Buffone no longer met the criteria for
good conduct.
[9]
In June 2015, Mr. Buffone informed the Board
that he had not received the notice sent in December 2014 advising him that a
review of his pardon was underway. The Board agreed to reconsider its decision
and to accept Mr. Buffone’s written representations. Mr. Buffone submitted his
written representations by way of a letter on October 23, 2015, along with nine
letters of support from various acquaintances.
[10]
On October 27, 2015, the Board rendered its
decision and revoked Mr. Buffone’s pardon.
II.
The Parole Board’s Decision Under Review
[11]
The Board first noted that Mr. Buffone had been
granted a pardon in 2008 for two prior convictions on the basis that he had met
the legal criteria, including good conduct since his last conviction.
[12]
The Board then described the criteria for
granting a pardon, now known as a record suspension.
[13]
The Board then addressed the circumstances
related to the revocation of Mr. Buffone’s pardon. The Board noted that it was
informed that Mr. Buffone was charged with several offences in August 2014,
which included two offences under the CDSA and 10 Criminal Code
offences. The Board noted the details of the charges, including that 13
co-accused were involved, some of whom were facing additional charges. The
Board acknowledged that there was no indication whether the charges against Mr.
Buffone would proceed.
[14]
The Board stated that it had considered all the
information on file: the information received from law enforcement and Mr.
Buffone’s written representations, including his nine letters of reference. The
Board explained that its authority to grant or deny a pardon (or as now known,
a record suspension) is set out in the CRA. The Board further explained that
the presumption of innocence has no application in the context of an
application for a pardon, citing Conille v Canada (Attorney General),
2003 FCT 613 [Conille].
[15]
The Board noted that the charges against Mr.
Buffone were for the exact type of offence for which he was previously
convicted (involvement with illicit drugs); that drug addiction is a serious
problem for Canadian society; that the scale of undertaking and number of
persons involved suggest a sophisticated scheme to deal in illicit drugs; and,
that the charges reflect a disregard for Canadian law and public safety. The
Board added that the involvement of the police raises doubts about whether Mr.
Buffone continues to satisfy the good conduct criteria of the pardon.
[16]
The Board found that Mr. Buffone’s written
representations did not provide sufficient justification for altering its
initial decision. As a result, the Board revoked Mr. Buffone’s 2008 pardon
pursuant to section 7 of the CRA.
III.
The Issues
[17]
The key issue is whether the decision of the
Board is reasonable.
[18]
Mr. Buffone argues that the Board’s decision is
not reasonable because: the Board failed to consider his Charter
protected rights and interests and balance these with the statutory objectives;
the Board’s decision is not intelligible because it confused the test for
granting a pardon with that of revoking a pardon; and, the Board based its
decision on insufficient evidence and failed to make additional inquiries to
satisfy itself whether he no longer met the good conduct criteria.
IV.
The Standard of Review
[19]
The Parole Board’s decision is discretionary and
is based on an assessment of the facts and the application of the law. The
parties agree that the standard of reasonableness applies.
[20]
To determine whether a decision is reasonable,
the Court looks for “the existence of justification,
transparency and intelligibility within the decision-making process” and
considers “whether the decision falls within a range of
possible, acceptable outcomes which are defensible in respect of the facts and
law” (Dunsmuir v New Brunswick, 2008 SCC 9 at para 47, [2008] 1
SCR 190 [Dunsmuir]).
[21]
In Newfoundland and Labrador Nurses' Union v
Newfoundland and Labrador (Treasury Board), 2011 SCC 62, [2011] 3 S.C.R. 708 [Newfoundland
Nurses], the Supreme Court of Canada elaborated on the requirements of Dunsmuir,
noting that the reasons are to “be read together with
the outcome and serve the purpose of showing whether the result falls within a
range of possible outcomes” (at para 14). In addition, where
necessary, courts may look to the record “for the
purpose of assessing the reasonableness of the outcome” (at para 15).
The key principle is summed up at para 16 that, “if the
reasons allow the reviewing court to understand why the tribunal made its
decision and permit it to determine whether the conclusion is within the range
of acceptable outcomes, the Dunsmuir criteria are met.”
V.
The Statutory Provisions
[22]
Excerpts of the relevant provisions of the CRA
and the Decision-Making Policy Manual for Board Members [the Policy
Manual], which provides guidance to Board members, are set out in Annex A.
VI.
The Applicant’s Submissions
[23]
Mr. Buffone submits that the Parole Board erred
in three ways and, as a result, the decision is not reasonable.
The Board failed to
proportionately balance Mr. Buffone’s Charter rights, interests and values with
the statutory objectives of the CRA
[24]
Mr. Buffone submits that the Board is required
to exercise its discretion in a manner consistent with a balancing of the Charter
rights, interests and values at stake as directed by the Supreme Court of
Canada in Doré v Barreau du Québec, 2012 SCC 12 at para 24, [2012] 1 S.C.R. 395 [Doré]. A
reasonable decision is one that reflects a proportionate balancing of the Charter
interests and values at play (Doré at para 58).
[25]
He submits that the revocation of his pardon
affected his right to liberty and security of the person in accordance with
section 7 of the Charter without regard to the principles of fundamental
justice, specifically the presumption of innocence. He acknowledges that
paragraph 11(d) of the Charter, the right to be presumed innocent,
applies only in the criminal proceedings and does not apply in revocation
decisions per se, but argues that the presumption of innocence remains a
principle of fundamental justice and, as such, must be part of the balancing of
Charter rights, interests and values.
[26]
Mr. Buffone submits that the revocation of his
pardon would make his prior convictions potentially available as evidence at
trial and will have a significant impact on how he conducts his defence to the
criminal charges, thereby implicating his Charter rights under section
7.
[27]
He submits that the Board was required to
conduct the Doré analysis, even though he only asserted the presumption
of innocence and did not make submissions on the balancing of Charter
rights and interests. He points, as an example, to Trinity Western
University v The Law Society of Upper Canada, 2016 ONCA 518 [Trinity
Western], where the Law Society, as the first level decision-maker,
proactively assessed the Charter rights and values in the context of its
administrative decision.
[28]
Mr. Buffone submits that the overall objective
of the statutory provisions is to provide a benefit to persons with criminal
records who have been of good conduct and points to Therrien (Re), 2001
SCC 35 at para 120, [2001] 2 S.C.R. 3, where the Supreme Court of Canada stated
that “the purpose of all these sections is to eliminate
the potential future effects of the conviction”.
[29]
Mr. Buffone elaborates that the statutory
objectives are also derived from section 4.1 of the CRA. These objectives
include: to provide a measurable benefit to an individual with a criminal
history; to sustain that person’s rehabilitation; and, to not bring the
administration of justice into disrepute (paragraph 4.1(1)(b)).
[30]
He submits that the objectives of section 7 of
the CRA, which permits the revocation of a pardon, can also be derived from
section 4.1, but from the opposite perspective. According to Mr. Buffone, the
objectives of revocation are that the pardon is no longer a measurable benefit
to the person or is no longer necessary to sustain their rehabilitation.
[31]
He submits that the Board could not conclude
that his conduct reflects a disregard for Canadian law and public safety unless
it equated the charges against him with his guilt, which ignores the
presumption of innocence. He argues that revoking his pardon based only on the
outstanding charges does not strike a proportionate balancing between his Charter
rights and interests and the statutory objectives of the CRA that he
proposes.
[32]
Mr. Buffone also submits that a proportionate
balancing requires consideration of alternatives to ensure that his Charter rights
are limited as little as possible. A more proportionate balancing would result
from awaiting the outcome of his criminal trial. If he is convicted of an
indictable offence, his pardon would be revoked automatically pursuant to
section 7.2. If he is acquitted, the Board would have more information from his
trial upon which to assess whether he is no longer of good conduct. Mr. Buffone
submits that the Board erred by not considering such an alternative.
The Board identified and applied
the incorrect legal test
[33]
Mr. Buffone argues that the Board confused the
tests for granting and revoking a pardon, and also confused who bears the onus
of establishing good conduct in the revocation context. He notes that the Board
set out the test for granting — as opposed to revoking — a pardon, and did not
explain how the presumption of innocence is considered in the context of
revocation.
[34]
Mr. Buffone submits that when the Board
considers whether to revoke a pardon, there is no onus on the person pardoned;
the Board must satisfy itself that the person is no longer of good conduct. He
argues that the Board erred by reversing the burden of proof by stating that it
had “doubts about whether or not you continue to
satisfy the good conduct criteria”. He submits that if the Board had
doubts about his good conduct, the doubts should be resolved in his favour. He
submits that he should not have to prove to the Board that he remains of good
conduct, although his submissions and letters of reference support such a
conclusion.
[35]
Mr. Buffone relies on MY v Canada (Attorney
General), 2016 FCA 170 [MY], where the Court of Appeal found that
there was no burden on the applicant in the revocation process (para 23). He
also submits that in MY the Court of Appeal found that the act of being
convicted of an offence was not sufficient to support the Board’s finding that
the applicant was no longer of good conduct.
There was insufficient evidence to
establish that Mr. Buffone was no longer of good conduct
[36]
Mr. Buffone submits that the only evidence
before the Board that called into question his good conduct was the Information
from the Niagara Police Service listing the outstanding charges. He submits
that the outstanding charges say nothing about the extent of his involvement or
his disregard for Canadian law or public safety and are not sufficient to
support the revocation of his pardon.
[37]
He acknowledges that the Policy Manual allows
the Board to consider non-law-abiding behaviour that does not result in a
charge when assessing good conduct, but notes that it does not refer to
outstanding charges for criminal offences. He adds that if serious charges
alone were sufficient to revoke a pardon, Parliament would have specifically
provided for this in the CRA.
[38]
Mr. Buffone again points to MY where the
Court of Appeal found that the Board erred by relying only on the “mere fact” of conviction rather than focusing on the
applicant’s conduct. He submits that the Board erred in the same way because it
relied on the mere fact of the charges he faced.
[39]
He argues that this Court’s jurisprudence (Conille
and Jaser v Canada (Attorney General), 2015 FC 4 [Jaser]),
which found that reliance on outstanding charges is sufficient to support the
revocation of a pardon, is inconsistent with the Federal Court of Appeal’s more
recent and binding decision in MY.
[40]
Mr. Buffone further argues that the Board should
have made inquiries of justice system participants to gather more information
in order to ensure that it met its onus to be satisfied that he was no longer
of good conduct. In MY, the Federal Court of Appeal found that the Board
should have made inquiries about M.Y.’s conviction.
[41]
Mr. Buffone submits that the evidence relied on
by the Board was insufficient for it to conclude he was no longer of good
conduct. The Board chose not to make the inquiries it was required to make in
order to gather sufficient evidence. Therefore, the Board should have waited
for the outcome of his criminal trial, which would provide additional information.
VII.
The Respondent’s Submissions
[42]
The Respondent submits that the Board’s decision
is reasonable: the Board was not required to engage in a Charter
analysis in the absence of submissions from Mr. Buffone; the Board did not err
by confusing the test for granting and revoking the pardon, rather, it clearly
applied the test for revocation and set out several reasons; and, the Board had
sufficient evidence to find that Mr. Buffone was no longer of good conduct. The
Respondent adds that a pardon is a discretionary privilege and not a right.
The Board was not required to
proportionately balance Charter rights and values; the Charter issues were not
raised by Mr. Buffone
[43]
The Respondent notes that Mr. Buffone had the
opportunity to make submissions to the Board and had the benefit of counsel in
doing so. Mr. Buffone’s brief reference to his presumption of innocence was not
a submission to the Board that it should consider and apply the Doré
framework to balance the Charter interests or values that may be implicated
in the context of its decision whether to revoke a pardon.
[44]
The Respondent submits that the Court has the
discretion not to consider an issue that is raised for the first time on
judicial review (Alberta (Information and Privacy Commissioner) v Alberta
Teachers' Association, 2011 SCC 61 at paras 22-23). In addition, the Court
should be reluctant to engage in an analysis of whether the decision reflects a
proportionate balancing of Charter values without the benefit of an
evidentiary record.
[45]
The Respondent further submits that, in any
case, the Board’s decision is not unreasonable for not engaging in a Doré-type
analysis in making its determination, since Charter values were not
engaged in the circumstances of this case. In order to engage section 7, an
individual must demonstrate with non-speculative evidence that there is a
sufficient causal connection between the impugned state actions—in this case
the revocation of the pardon–and the deprivation of a protected interest—in
this case the allegation that the presumption of innocence as a principle of
fundamental justice is at stake.
[46]
The Respondent notes that Mr. Buffone did not
raise with the Board his intention to testify at his criminal trial or how the
revocation of his pardon could or would impact his defence strategy. The
Respondent acknowledges that the revocation of the pardon, and consequently Mr. Buffone’s
criminal record, could have implications for the conduct of his defence, but
submits that the implications remain speculative.
[47]
The Respondent notes that in Jaser the
Court found that Mr. Jaser’s section 7 interests were not engaged by a
revocation of his pardon based on outstanding criminal charges. The same
argument—that a revocation would make prior convictions available for use as
evidence at trial—was rejected by the Court in Jaser as speculative (at
para 39).
The Board did not apply the wrong
test
[48]
The Respondent notes that a pardon does not
erase a conviction; rather, a pardon (now called a record suspension) is an
indication that the Board is of the view that an individual’s record should no
longer reflect adversely on his or her character.
[49]
The Respondent acknowledges that the Board began
its decision by setting out the test for granting a pardon. The
Respondent suggests that the Board may have intended to begin with the criteria
for granting the pardon and then to assess whether that pardon should be
revoked. However, if the Board included a statement about the criteria for
granting a pardon in error, it is immaterial. The decision is clearly based on
the Board’s application of the criteria for revoking a pardon pursuant to
section 7. The ongoing entitlement to a pardon is contingent on remaining of
good conduct. The sole issue for the Board’s consideration was whether there
was evidence establishing to the satisfaction of the Board that Mr. Buffone no
longer met the good conduct criteria.
[50]
The Respondent notes that the Policy Manual
provides that the Board may consider a range of information to assess good
conduct, including police information even if no charges are outstanding or
there is no finding of guilt. In Jaser, the Court found that the fact of
the charges was sufficient to conclude that Mr. Jaser was no longer of good
conduct (para 50). In Conille, the Board relied on information that Mr.
Conille was suspected of a serious offence and this was sufficient to find that
he was no longer of good conduct.
[51]
The Respondent submits that the Board considered
more than simply the fact that charges were laid. The decision must be read as
a whole and should not be picked apart with a focus on one line to suggest that
the Board put an onus on Mr. Buffone or that the Board did not satisfy itself
as required by the CRA.
[52]
The Respondent also distinguishes the present
case from MY. In MY, the Federal Court of Appeal found that the
Board conflated the considerations for revocation of a pardon pursuant to
paragraph 7(b) (evidence establishing to the satisfaction of the Board that the
person is no longer of good conduct) with paragraph 7(a) (that the person was
subsequently convicted of a summary conviction offence). In the present case,
the Board based its decision only on paragraph 7(b) to find that Mr. Buffone
was no longer of good conduct. The Board considered the sworn Information which
outlined 12 charges, including details on the nature of the offences charged,
the number of persons involved, the affiliation with organized crime, and that
a weapon was involved. Unlike in MY, the Board had considerable
information about the nature of the charges against Mr. Buffone.
VIII.
The Decision is Reasonable
The Board did not err by failing
to conduct an assessment and proportionate balancing of the Charter interests
or values implicated with the statutory objectives
[53]
In Doré, the Supreme Court established
that reviewing courts should apply the reasonableness standard to
administrative decisions challenged on Charter grounds but, in doing so,
the reviewing court must assess whether the decision reflects a proportionate
balancing of the Charter protections at stake and the relevant statutory
mandate or objectives.
[54]
According to Mr. Buffone, the Board’s failure to
assess and proportionately balance his Charter protected rights,
interests or values with the statutory objectives of the relevant provisions of
the CRA renders the decision unreasonable.
[55]
As the Federal Court of Appeal noted recently in
Taman v Attorney General of Canada, 2017 FCA 1 [Taman], such
arguments should not be raised before the Court on judicial review unless the
initial decision-maker has had the opportunity to consider them. In Taman,
the Court of Appeal found that the applicant had raised the need to balance her
Charter rights and interests in her written submissions to the Public
Service Commission, but had not fully pursued the argument before the
decision-maker. The Court of Appeal noted at paragraph 18:
…This Court is reluctant to embark upon Charter
reviews where the parties have not pursued their Charter remedies before
the initial decision maker: see Forest Ethics Advocacy Association v. Canada
(National Energy Board), 2014 FCA 245, [2015] 4 F.C.R. 75 at para. 37. This
reluctance is grounded in the need to allow the federal board, commission or
tribunal an opportunity to lead evidence to support a “reasonable limitation”
argument, which is best done before the trier of fact. It is grounded as
well as in our recognition that the initial decision maker’s analysis will
provide valuable insights into the proper balancing of the various factors at
play.
[Emphasis added]
[56]
It is apparent from the record that Mr.
Buffone’s did not raise, in his submissions to the Board, any of the arguments
he now makes regarding the need for the Board, as an administrative decision
maker, to consider a proportionate balancing of Charter rights and
interests.
[57]
Mr. Buffone’s submissions to the Board were set
out in a short letter which describes his lifestyle and his focus on family,
work and community and includes the brief statement, “I
know that I am presumed innocent but the reality is that the vast majority of people
presume guilt”. This brief reference to the presumption of innocence is
a far cry from the arguments he now makes regarding how his Charter
rights, interests or values should be balanced with the statutory objectives in
considering the revocation of his pardon. He did not make submissions with
respect to the statutory objectives of the pardon and revocation provisions of
the CRA. He did not raise the potential implications of a revocation of his
pardon on the manner in which he may conduct his defence to the criminal
charges. He did not advance the argument that the presumption of innocence
should be considered as a principle of fundamental justice or that the
potential deprivation of his liberty should be limited by this principle.
[58]
Mr. Buffone points to Trinity Western as
an example of the initial decision-maker proactively seeking submissions on the
Charter rights at play and conducting the appropriate balancing of those
rights. However, in Trinity Western, the key issue was how to address
the competing Charter rights implicated and the initial decision-maker
engaged in the analysis.
[59]
Although Counsel for Mr. Buffone explained to
the Court how such an analysis could have been conducted by the Board in
its consideration of whether to revoke a pardon, the proposed approach is based
on several assumptions or theories, without any opportunity for the Board to
consider these assumptions or theories or for the Board to apply its expertise.
The Court is without any evidentiary record to inform its assessment of the
statutory objectives of the pardon and revocation provisions and whether the
decision reflects a proportionate balancing of the rights or values implicated
with those objectives. Heeding the guidance of the Court of Appeal in Taman,
the Court will not engage in the detailed Doré type analysis. The
Board’s decision cannot be found to be unreasonable because it did not conduct
a balancing of the Charter interests or values that may be at play—which
were not raised before it—against the statutory objectives of the CRA.
[60]
In any event, even if the Court were to embark
on a review in the absence of an evidentiary record, and determine whether the
decision reflects a proportionate balancing of the Charter protections
or values now raised by Mr. Buffone, the Court would find the decision to be
reasonable.
[61]
A few observations are in order. I do not share
Mr. Buffone’s view that the statutory objectives of the pardon (now record
suspension) regime are found in section 4.1 or that the objectives of
revocation are the mirror image of the objectives of granting a pardon. In my
view, section 4.1 sets out criteria for granting a pardon, not the statutory
objectives. Section 7 sets out the criteria for revocation. In the present
case, the Board is relying only on paragraph 7(b), which requires evidence
establishing to the satisfaction of the Board that the person to whom it
relates is no longer of good conduct. In addition, section 7.2 provides that a
pardon is automatically revoked upon conviction for an indictable offence and
for the majority of hybrid offences.
[62]
In the present case, the revocation of the
pardon may impact a person’s section 7 Charter interests to some extent,
but that is the nature of the revocation. Revocation removes the privilege of
having the criminal record suspended and kept separate from other criminal
records and, thereby, avoids the usual consequences of a criminal record. A
pardon is a privilege contingent on, among other things, remaining of good
conduct.
[63]
The jurisprudence has established that the
presumption of innocence does not apply in the context of an application for a
pardon (Conille) or in the revocation of a pardon (Jaser). I do
not agree that MY has cast doubt on this jurisprudence.
[64]
In Conille,
Justice Blanchard noted (at para 30):
In my opinion, the "presumption of
innocence" principle is not applicable in the context of an application
for pardon. This principle and the rights pertaining thereto apply in the
context of a criminal proceeding and not, in my opinion, in the case of an
administrative proceeding such as the one involved in this case. The grant of a
pardon is discretionary. It is not an entitlement and is done only when the
Board is satisfied that the applicant is of good conduct and that he has not
been convicted of an offence during the five-year period (subsection 4.1(1) of
the Act).
[65]
Mr. Buffone now suggests that the presumption of
innocence must be taken into account as a principle of fundamental justice,
along with his right to security of the person, and be balanced against the
statutory objectives of the CRA.
[66]
In my view, the presumption of innocence cannot
take on a new role as a principle of fundamental justice to put persons facing
revocation of a pardon due to subsequent charges for new offences in a
different position than those who are not charged with offences, but whose good
conduct is otherwise in question. The CRA provides that the Board may revoke
the pardon in several circumstances, including where it is satisfied that the
person is no longer of good conduct. It would be illogical and would undermine
the intent of the CRA to prohibit revocation in the face of outstanding
criminal charges due to the presumption of innocence, yet permit the Board to
rely on conduct that falls short of criminal charges (for example that shows an
association with persons involved in criminal activity) or on charges that are
stayed or withdrawn. The provisions of the Policy Manual which guide the
assessment of good conduct, and which this Court (Jaser) and the Court
of Appeal (MY) have found apply to the assessment of good conduct for
both granting and revoking a pardon, refer to, among other things, information from the police about non-law-abiding
behaviour that did not result in a charge; information about charges that were
withdrawn, stayed, or dismissed; and, information exchanged with justice system
participants about suspected or alleged criminal behaviour.
[67]
Finally, Mr. Buffone’s suggestion that if Parliament had intended to have
pardons revoked based on outstanding charges, it could have specifically
provided for this in the CRA, overlooks that Parliament did provide for this in
paragraph 7(b), which permits the Board to consider a range of conduct and
information to determine whether the person is no longer of good conduct. Similarly,
the approach proposed by Mr. Buffone to await the outcome of the criminal
process before determining whether to revoke his pardon ignores this provision
of the CRA.
The Board did not apply the wrong
test for revoking a pardon
[68]
I agree with the Respondent that the Board’s
decision can be read in two ways. Regardless, even if the first paragraph,
which refers to the criteria for granting a pardon, was included in error, it
does not result in any error in the decision.
[69]
As the Supreme Court of Canada held in Newfoundland
Nurses, the reasons are to “be read together with
the outcome and serve the purpose of showing whether the result falls within a
range of possible outcomes” (at para 14). The reasons and the record
demonstrate that the Board was considering a proposal to revoke Mr. Buffone’s
pardon. The notice sent, the first decision, the agreement to reconsider the
revocation proposal and to accept submissions, and the submissions provided by
Mr. Buffone were all focussed on the issue of whether his pardon should be
revoked. The Board clearly considered whether Mr. Buffone’s pardon should be
revoked.
[70]
With respect to Mr. Buffone’s reliance on MY
at para 23, in support of his submission that there is no onus on the applicant
to establish their good conduct, rather that there is an onus on the Board, I
do not agree that MY established such a general proposition. In MY,
the Court of Appeal stated (at para 23):
I also note that the requirement to obtain
representations from M .Y. under the Act does not imply that it is M. Y.
who has the burden of establishing his good conduct; rather, it reflects the
Board's duty of procedural fairness (see also subsections 4.2(2) and (3) of the
Act).
[71]
In my view, this addresses a specific argument
and clarifies the duty of procedural fairness under section 7.1, as well as
subsections 4.2(2) and (3).
[72]
The only references in the CRA to any onus are
with respect to an application for a pardon. Subsection 4.1(2) applies to an
applicant who seeks a pardon or record suspension in respect of an indictable
offence and provides that “the applicant has the onus
of satisfying the Board that the record suspension would provide a measurable
benefit to the applicant and would sustain his or her rehabilitation in society
as a law-abiding citizen”. Subsection 4(4) places an onus on an
applicant who was convicted of sexual offences against a young person to
satisfy the Board of certain things; for example, that there was no violence
used or that the applicant was not in a position of trust or authority in
relation to the victim of the offence.
[73]
Both the granting and revocation of a pardon
require that the Board be satisfied of the applicable criteria. Section 7
specifically provides that the Board may revoke a pardon “on evidence establishing to the satisfaction of the Board
that the person…is no longer of good conduct” (emphasis added).
[74]
I do not agree that the Board reversed any onus
of proof by stating that “the involvement of the police
raises doubts about whether or not you continue to satisfy the good conduct
criteria”. This does not reflect the Board’s view on the applicable
standard to be met in accordance with Section 7. This sentence followed from
the Board’s reference to several factors arising from the nature and scope of
the outstanding charges all of which pointed to the overall conclusion that the
Board was satisfied that Mr. Buffone no longer met the good conduct criteria.
The Board had sufficient
information, and reasonably found that it was satisfied that Mr. Buffone
was no longer of good conduct
[75]
Justice Boswell noted in Jaser (at para
48):
The Board decided that the applicant was no
longer of good conduct based only on the information supplied by the RCMP that
he had been charged with some serious crimes. The applicant claims that this
finding of fact was made perversely and capriciously, since a charge is merely
an allegation and the Board had no knowledge of any facts that might support
the charges. In my view, the applicant’s arguments in this regard miss the
mark, since it was not the veracity of the allegations underlying the charges
which the Board found reliable and credible but, rather, the very fact of the
information itself setting out the charges. Even if these allegations may
subsequently be proven to be unfounded, it was reasonable for the Board to
determine that the applicant was no longer of good conduct in the face of the
charges as alleged.
[Emphasis added.]
[76]
Justice Boswell considered the Policy Manual
which provides that in assessing good conduct, the Board may consider a range
of information, including information about non-law‑abiding conduct that
did not result in any charges and information about conduct that resulted in a
charge that was withdrawn, stayed, dismissed or which resulted in an acquittal.
Justice Boswell noted at paragraph 50, that these references in the Policy
Manual “both suggest that the Board can and should
consider police information about the applicant’s conduct even if it did not
result in a charge or a guilty verdict.”
[77]
Justice Boswell concluded at paragraph 53:
In my view, it was
reasonable for the Board to infer that the applicant was no longer of good
conduct from the mere fact that he was charged with the alleged offences.
Although the Board did not look behind the information it received from the
RCMP, it is difficult to see what more it needed to do since the mere fact of
the information being laid speaks for itself irrespective of whether the
allegations contained in the information are true or not. In these
circumstances, I do not think the Board erred by relying on the information.
[78]
I do not agree that Jaser needs to be
reconsidered in light of MY. The Court of Appeal clearly stated in MY
that its “conclusion is essentially grounded in the
very specific facts of the case” (at para 16).
[79]
The Board was clearly satisfied that Mr. Buffone
was no longer of good conduct based on its consideration of the information
received and Mr. Buffone’s own submissions. The Board relied on more
than the involvement of police or the mere fact that charges were laid. The
Board noted the nature of the charges, which were the same type of offences as
the offences for which he was previously convicted; the large scale of the
overall operation alleged, including the number of persons involved, which suggested
a sophisticated scheme to deal in drugs; and that the charges reflected a
disregard for public safety, referring to the impact of drugs on society.
[80]
With respect to Mr. Buffone’s reliance on MY
in support of his submissions that the Board should have alerted him to the
nature of the representations he should make regarding his good conduct and
that the Board should have conducted more “fact
finding”, I note that the Board sent a detailed letter to him in
December 2014 clearly indicating that the representations “must” address the reasons proposed to revoke the
pardon and explaining the good conduct criteria.
[81]
Although Mr. Buffone did not receive the first
letter sent to him in December 2014, the subsequent letter that advised him
that his pardon had been revoked set out similar information, including that
the information from the police had informed its determination to revoke his
pardon. Mr. Buffone was given an opportunity to make submissions for the
reconsideration of the revocation and his counsel also liaised with the Board.
Unlike in MY, it cannot be said that Mr. Buffone was not aware of the
type of information the Board would find useful.
[82]
Mr. Buffone also notes that in MY, the
Court of Appeal found, at paragraph 20, that the Board did not conduct any
investigation or seek details from the police about the circumstances of the
offence for which M. Y. had been convicted to determine whether his conduct had
placed others in danger. He argues that there was a duty on the Board to seek
out information in order to satisfy itself that he no longer met the good
conduct criteria and that the Board failed to use its “fact
finding” powers.
[83]
I do not agree that MY established, as a
general proposition, that the Board must seek out additional information or do
more “fact finding” to ensure it has everything
possible to assess the good conduct at issue.
[84]
In MY, the Court of Appeal stated (at
para 20):
The Board did not conduct any investigation
or seek to obtain any details from police regarding the circumstances surrounding
the commission of the offence to determine if M. Y.'s conduct could truly have
placed the lives of others in danger (see section 16 of the Decision-Marking
Policy Manual for Board Members which pertains to the conduct of independent
inquiries to evaluate good conduct).
[85]
This statement must be read in the context of
the facts of MY, which can be distinguished from the present facts. In MY,
the Board relied on M.Y.’s subsequent conviction for impaired driving without
any details about that offence, for which he had pleaded guilty, to find that
he no longer met the good conduct criteria. In my view, the Court of Appeal’s
point is that more information was needed to determine how the fact of the
conviction supported the Board’s finding that he placed the lives of others in
danger, given that the Board proposed to revoke the pardon based on M.Y. no
longer being of good conduct pursuant to paragraph 7(b), rather than relying on
paragraph 7(a) which addresses convictions for specific offences, including the
offence for which M.Y. was convicted.
[86]
Similarly, the Court of Appeal’s reference to
section 16 (now section 14) of the Policy Manual must be considered in the
context of the particular facts in MY. Section 14 refers to what the
Board may do, when considering whether to grant a pardon. It
guides the Board by providing that in assessing an applicant’s good conduct,
the Board may gather information about the conviction for which the pardon is
sought. Section 14 states:
|
14. In addition,
the Board may make independent inquiries with justice system participants, as
defined in section 2 of the Criminal Code.
|
14. En outre, la
Commission peut mener des enquêtes indépendantes auprès de personnes
associées au système judiciaire, au sens de l'article 2 du Code criminel.
|
[87]
Although the Court of Appeal referred to section
14 in the context of revoking M.Y.’s pardon, which was based on a
subsequent conviction to inform whether he was of good conduct, section 14 of
the Policy Manual is primarily intended to apply to a determination whether to grant
a pardon. Section 14 guides the application of section 4.2 of the CRA. Section
4.2 of the CRA applies only to applications for a pardon (now a record
suspension) and provides that the Board “shall”
make inquiries regarding eligibility and good conduct and “may” make inquiries, in the case of an indictable
offence, regarding whether granting the pardon/record suspension would bring
the administration of justice into disrepute. The CRA does not include these “fact finding” provisions with respect to revocation
of a pardon.
[88]
I acknowledge that the Court of Appeal noted in MY
that the provisions of the Policy Manual regarding the definition and
assessment of good conduct to grant a pardon “seems to
apply to the Act in its entirety” and, therefore, would apply to the
assessment of revocation based on good conduct. I agree that good conduct
should be assessed in the same way for both purposes. However, I do not agree
that the Court of Appeal signalled that all of the provisions in the Policy
Manual regarding granting a pardon also apply to revoking a pardon. If that
were intended, several modifications would be necessary.
[89]
The Court of Appeal does not seem to have been
called upon to consider the distinction between gathering information about the
conviction for which a pardon is sought, and gathering information about a
subsequent conviction that may result in the revocation of a pardon in
circumstances other than those presented in MY.
[90]
In the context of considering whether to revoke
a pardon on the basis of information that the person has been charged with one
or more subsequent offences, I do not agree that the Board has an obligation to
seek information from justice system participants about the outstanding charges
or that, even if it wanted to, that it could do so. It is not likely that the
police or the Crown would provide additional information, not yet public, to
the Board about outstanding charges for which a person has not yet been tried.
Moreover, the accused person would not want details that would otherwise only
be disclosed to him or her shared with others. If the accused person has
information that they believe would support a finding that they remained of
good conduct, they are best placed to provide the information and to make the
call whether this information should be provided to the Board or used only in
their defence to the criminal charges.
[91]
It is a very different context to gather
information from justice system participants about the offences for which a
person has been convicted and seeks a pardon, than to gather information about
outstanding charges that underlie a proposal to revoke a pardon.
[92]
There was no obligation on the Board in the
circumstances to seek out more information to make the determination whether to
revoke his pardon. Moreover, the Board’s decision reflects that it was
satisfied, based on all the information it had, which described the nature and
scope of the offences charged, that Mr. Buffone was no longer of good conduct.
[93]
In conclusion, the Board’s decision to revoke
the pardon of Mr. Buffone is reasonable; the decision is transparent,
intelligible and justified and it falls well within the range of acceptable
outcomes, reflecting the application of the law to the facts.
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