Docket: T-722-20
Citation: 2021 FC 269
Ottawa, Ontario, March 26, 2021
PRESENT: The Honourable Mr. Justice Ahmed
| BETWEEN:
|
| NEAL CHRISTOPHER
|
| Applicant
|
| and
|
| PAROLE BOARD OF CANADA
|
| Respondent
|
JUDGMENT AND REASONS
I.
Overview
[1]
The Applicant, Mr. Neal Christopher, seeks to set aside the February 25, 2020 decision of the Parole Board of Canada (the “Board”
) to revoke the Applicant’s criminal record suspension on the basis that he is no longer of good conduct, pursuant to subsection 7(b) of the Criminal Records Act, RSC 1985, c C-47 (“Act”
).
[2]
The Applicant asserts that the Board failed to reasonably assess numerous competing considerations in finding that he is no longer of good conduct, including the Applicant’s history of employment and community engagement, the length of time between the Applicant’s past convictions and recent charges, and the fact that the Applicant received a conditional discharge.
[3]
For the reasons that follow, I find that the Board’s decision is reasonable. I therefore dismiss this application for judicial review.
II.
Facts
A.
The Applicant
[4]
The Applicant is a 47-year-old male who is the founder and CEO of a successful business. As a teenager, he was convicted of a number of offences: mischief over $1,000 (1992); failure to stop at the scene of an accident (1992); and dangerous operation of a motor vehicle (1994). In February 2004, the Applicant received a record suspension (then and still colloquially called a “pardon”
) with respect to those convictions.
[5]
In 2017, the Applicant was charged with making child pornography and voyeurism. The Crown ultimately withdrew the charge of making child pornography. With respect to the charge of voyeurism, the Applicant entered into an agreement with the Crown and pleaded guilty to the offence of mischief, for which he was sentenced to a conditional discharge with 12 months probation.
[6]
The Applicant’s recent charges arose from an incident at his cottage with his family that occurred on August 5, 2017, wherein the Applicant hid his cellphone in the bathroom of the cottage and video recorded a family member who was a minor at the time (the “Minor Relative”) without her knowledge. The video captured the Minor Relative using the toilet and preparing to use the shower, before the Minor Relative discovered the camera and deleted the video.
[7]
Upon learning of the Applicant’s conditional discharge, the Board sent two letters to the Applicant in November 2019, notifying him that it intended to revoke his pardon because it suspected that he no longer met the good conduct criterion under subsection 7(b) of the Act. The Board provided the Applicant with an opportunity to make written submissions regarding its decision, and the Board informed the Applicant of the type of additional information that it would consider.
[8]
In a letter dated February 2, 2020, the Applicant, through counsel, provided written submissions to the Board, wherein he argued that revoking the pardon would be contrary to the Court’s intention to allow the Applicant to proceed without a criminal record after his probation period, and would negatively affect the Applicant’s employment and business prospects. The Applicant asserted that he did not intend to video record the Minor Relative, and he noted a psychiatrist’s report required by the Crown, which concluded that the Applicant “does not have any inappropriate sexual interests in relation to young girls and does not have a paraphilic disorder of any kind.”
Finally, the Applicant noted his various philanthropic and voluntary endeavours, which demonstrate that he is an active member of his community.
[9]
In a decision dated February 25, 2020, the Board revoked the Applicant’s pardon. That decision is the subject of this application for judicial review.
B.
Decision Under Review
[10]
The thrust of the Board’s reasoning is contained in the last two paragraphs of its decision, which state:
In the Board’s overall assessment, while you have had a long history of stability in the community both with employment as an active community member [sic], your recent behaviour is of concern to the Board where you placed a recording device in an area where people should expect privacy. The phone was actively recording and appears to have been done so prior to the victim stating she was going to take a shower. While you state she was not the intended target, purposefully hiding a cell phone to record a person’s private moments, within private space [sic] such as a washroom does not align to good conduct.
The Board reminds you that when assessing whether you meet the good conduct criterion, it is not required to meet the same standards as the Court. More specifically, the presumption of innocence and the rights related to it do not apply in the context of a pardon/record suspension. For this reason the Board revokes your pardon under Section 7(b) of the Criminal Records Act.
III.
Statutory Framework
[11]
Under subsection 2.1(1) of the Act, the Board has “exclusive jurisdiction and absolute discretion to order, refuse to order or revoke a record suspension.”
A record suspension effectively seals an individual’s criminal record. This procedure is reflected in subsection 6(2) of the Act, which stipulates that information about pardoned convictions cannot be provided to “any persons”
without the approval of the Minister of Public Safety and Emergency Preparedness.
[12]
With respect to revoking a record suspension, subsection 7(b) of the Act states:
7 A record suspension may be revoked by the Board
[…]
|
7 La Commission peut révoquer la suspension du casier dans l’un ou l’autre des cas suivants:
[…]
|
(b) on evidence establishing to the satisfaction of the Board that the person to whom it relates is no longer of good conduct;
[…]
[emphasis added]
|
b) il existe des preuves convaincantes, selon elle, du fait que l’intéressé a cessé de bien se conduire;
[…]
[emphase ajoutée]
|
[13]
The Board’s discretion under subsection 7(b) of the Act is guided by the Board’s Decision-Making Policy Manual for Board Members (“Policy Manual”
). Although the Policy Manual is not legally binding, it gives an indication of what one can normally and legitimately expect the Board to consider in making its decision (M.Y. v Canada (Attorney General), 2016 FCA 170 (“M.Y.”
) at para 17; see also Farrier v Canada (Attorney General), 2018 FC 1190 at para 36, citing Collins v Canada (Attorney General), 2014 FC 439 at para 39; Latimer v Canada (Attorney General), 2010 FC 806 at para 48).
[14]
Chapter 13.1, section 17 of the Policy Manual states that good conduct is “considered behaviour that is consistent with and demonstrates a law-abiding lifestyle.”
Although this definition is included only in the section that addresses the granting of a record suspension, it seems to apply to the Act in its entirety and therefore also applies to the revocation of a record suspension (M.Y. at para 18).
[15]
In assessing good conduct, the Board is not subject to the same standards as a criminal court, as the presumption of innocence and the relating rights are not applicable in the context of record suspensions: Policy Manual, chapter 13.1, section 18. The Board may consider information about an incident that resulted in a charge that was subsequently withdrawn, stayed, or dismissed, or that resulted in a peace bond or acquittal, especially where the charge or charges are of a serious nature, and/or are related to convictions on the record for which the pardon or the record suspension is requested: Policy Manual, chapter 13.1, subsection 19(b). Although these guidelines pertain to assessing conduct in the context of applying for a record suspension, I find that they also apply to revoking a record suspension (Buffone v Canada (Attorney General), 2017 FC 346 (“Buffone”
) at paras 84-88, citing M.Y. at para 20).
[16]
Chapter 13.1, section 27 of the Policy Manual outlines further factors that the Board should consider when deciding to revoke a pardon:
a. information that suggests a significant disregard for public safety and order and/or laws and regulations, given the offender’s criminal history;
|
a. les renseignements qui laissent penser que la personne fait preuve d’un mépris marqué à l’égard de la sécurité publique, de l’ordre public et/ou des lois et règlements, étant donné ses antécédents criminels;
|
b. whether the offence is similar in nature to the offence for which the pardon or the record suspension was received; and
|
b. la similarité de l’infraction commise avec l’infraction pour laquelle le pardon ou la suspension du casier a été obtenu;
|
c. the time period since satisfaction of all sentences.
|
c. la période qui s’est écoulée depuis que la personne a fini de purger toutes ses peines.
|
IV.
Preliminary Issue: Admissibility of the Glickman Affidavit
[17]
The Respondent submits that statements contained in the Applicant’s affidavit, affirmed by Ms. Sarah Glickman on August 10, 2020, are inadmissible in this application for judicial review because they contain unsubstantiated facts or are argumentative.
[18]
It is well-established that evidence not before the decision-maker is generally inadmissible upon judicial review (Brink’s Canada Limitée v Unifor, 2020 FCA 56 at para 13; Delios v Canada (Attorney General), 2015 FCA 117 (“Delios”
) at para 42; Association of Universities and Colleges of Canada v Canadian Copyright Licensing Agency (Access Copyright), 2012 FCA 22 (“Access Copyright”
) at para 19). The rationale behind this rule is that courts upon judicial review are to review decisions, not determine questions anew that were absent or inadequately placed before the decision-maker (Bernard v Canada (Revenue Agency), 2015 FCA 263 (“Bernard”
) at para 17, citing Access Copyright at para 19).
[19]
There are three recognized exceptions to the above rule: (i) evidence that provides background information not going to the merits of the decision; (ii) evidence that displays an unsupported finding of fact; and (iii) evidence relevant to an issue of natural justice, procedural fairness, improper purpose or fraud that could not have been placed before the decision-maker (Bernard at paras 20-28; Access Copyright at para 20).
[20]
Applying the above principles, I find that paragraph 7 and the heading preceding paragraph 8 of Ms. Glickman’s affidavit are inadmissible and shall therefore be disregarded. Affidavit evidence is admissible under the general background exception in Access Copyright if it contains “non-argumentative orienting statements that assist the reviewing court in understanding the history and nature of the case that was before the administrative decision-maker”
(Delios at para 45). The impugned statements do not fit this exception, as they engage in advocacy and make statements of fact based on evidence that was not before the Board (Delios at paras 48-49).
V.
Preliminary Issue: Confidentiality Request
[21]
In the Applicant’s memorandum of argument, and after oral submissions ended for the hearing of this application, counsel for the Applicant requested an order of confidentiality pursuant to Rule 151(1) of the Federal Courts Rules, SOR/98-106 (“Rules”
). At the hearing for this application, I provided the Applicant with seven days (until February 1, 2021) to inform the Court of whether an agreement with the Respondent could be reached on the request and, if not, to make written submissions in support of it. On March 4, 2021, counsel for the Applicant provided the Court with a draft order for his request. The draft order did not contain any written submissions or correspondence.
[22]
I have considered the Applicant’s request and find that the Applicant’s interest in maintaining his confidentiality is outweighed by the proposed restriction’s deleterious effects upon the open court principle (Adeleye v Canada (Citizenship and Immigration), 2020 FC 681 (“Adeleye”
) at para 9, citing R v Mentuck, 2001 SCC 76 at para 32; Dagenais v Canadian Broadcasting Corp, [1994] 3 S.C.R. 835; Sierra Club of Canada v Canada (Minister of Finance), 2002 SCC 41). The open court principle is constitutionally enshrined and requires that courts “do their business in public”
(Adeleye at para 6, citing Edmonton Journal v Alberta (Attorney General), [1989] 2 S.C.R. 1326). Embarrassment, shame, or the wish to keep one’s affairs private are alone not usually sufficient grounds to depart from that principle (Adeleye at para 9, citing S c Lamontagne, 2020 QCCA 663 at para 17).
[23]
If the Applicant’s interest in maintaining confidentiality were truly pressing, I would expect him to make submissions in support of it in a timely manner. Counsel for the Applicant did not bring a formal motion for a confidentiality order, but rather briefly mentioned the request at the end of the hearing. By then, the Applicant’s record and the hearing list, all of which contains the Applicant’s name and other identifying information, were accessible to the public for some time.
[24]
Furthermore, the Court did not request a draft order from the Applicant; it requested that the Applicant communicate within one week of the hearing whether the Respondent was agreeable to the Applicant’s requested order and, if not, to provide submissions on that issue. While the Applicant’s draft order states that it was made on the consent of the parties, the Applicant did not confirm when and how the Respondent agreed to the Applicant’s request, nor explain the one-month delay in providing a response. I therefore deny the Applicant’s request for a confidentiality order.
VI.
Issue and Standard of Review
[25]
The sole issue on this application for judicial review is whether the Board’s decision is reasonable.
[26]
I agree with the parties that the applicable standard of review for the Board’s decision is reasonableness. Reasonableness is the presumed standard of review (Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65 (“Vavilov”
) at para 10). This presumption is rebutted and a correctness standard applies in two instances: where required by legislative intent or by the rule of law (Vavilov at paras 10, 17). In my view, neither of those instances apply in the case at hand. I therefore find that reasonableness remains the appropriate standard of review for the Board’s decision to revoke a pardon (Buffone at para 19).
[27]
Reasonableness is a deferential, but robust, standard of review (Vavilov at paras 12-13). The court must determine whether the decision under review, including both its rationale and outcome, is transparent, intelligible, and justified (Vavilov at para 15). A reasonable decision is one that is based on an internally coherent and rational chain of analysis and that is justified in relation to the facts and law that constrain the decision-maker (Vavilov at para 85). Whether a decision is reasonable depends on the relevant administrative setting, the record before the decision-maker, and the impact of the decision on those affected by its consequences (Vavilov at paras 88-90, 94, 133-135).
[28]
Where a decision provides reasons, those reasons are the starting point for review (Vavilov at para 84). A decision’s reasons need not be perfect; as long as the reasons allow the reviewing court to understand why the decision-maker made its decision and determine whether the conclusion falls within the range of acceptable outcomes, the decision will normally be reasonable (Beddows v Canada (Attorney General), 2020 FCA 166 at para 25, citing Vavilov at para 91). However, where a decision-maker’s rationale for an essential element of the decision is not addressed in the reasons and cannot be inferred from the record, the decision will normally be unreasonable (Vavilov at para 98).
[29]
For a decision to be unreasonable, an applicant must establish that the decision contains flaws that are sufficiently central or significant (Vavilov at para 100). A reviewing court must refrain from reweighing or reassessing evidence before the decision-maker, and it should not interfere with findings of fact absent exceptional circumstances (Vavilov at para 125).
VII.
Analysis
A.
The Applicant’s Submissions
[30]
The Applicant submits that the Board failed to reasonably explain how his recent charges that resulted in a conditional discharge outweigh the evidence concerning the Applicant’s law-abiding lifestyle, his good behaviour during the nearly 30 years between his offences, and his psychiatric risk assessment. Similarly, the Applicant asserts that the Board failed to consider the length of time between his offences, the differences in the allegations involved, or the fact that the Applicant received a conditional discharge for his most recent offence. As these considerations were key issues raised by the Applicant in his written submissions to the Board, the Applicant argues that the Board failed to justify its decision in relation to the facts before it (Vavilov at para 128).
[31]
According to the Applicant, the Board also failed to consider why he was granted a conditional discharge. The Applicant notes that the sentencing judge considered whether the Applicant was of good character and whether a conditional discharge would benefit him against any possible detriment to the public interest (R v Elaschuk, 2018 SKQB 312 at para 36, citing R v Roberts, 2004 SKCA 153 at para 8). Furthermore, the Applicant asserts that the Court and the Crown knew of his previous convictions when granting and seeking a conditional discharge, as this information was contained in the psychiatrist’s report. In weighing these factors, the Applicant asserts that the sentencing judge concluded that the Applicant’s conduct did not require him to be burdened with a criminal record — a conclusion that is contradicted by the Board’s revocation of his record suspension.
B.
The Respondent’s Submissions
[32]
The Respondent submits that the Board’s decision is reasonable. The Respondent argues that because the Board may refuse to grant a record suspension on charges that are ultimately stayed, the Board may reasonably revoke a record suspension on charges that ultimately result in a conditional discharge (Yussuf v Canada (Attorney General), 2004 FC 907 at paras 17-19).
[33]
Unlike a finding of guilt by a criminal court, the Respondent submits that the sole issue for the Board to consider in deciding to revoke a pardon is whether the individual remains a person of good conduct. The fact that the Applicant received a conditional discharge is therefore not determinative of the Board’s decision. Similarly, the Respondent argues that whether the Applicant intended to video record the Minor Relative is also not determinative, as the measure of good conduct is objective, not subjective (Athwal v Canada (Attorney General), 2019 FC 314 at para 12).
[34]
The Respondent agrees that the similarity and length of time between prior and subsequent offences are both relevant factors for the Board to consider in revoking a record suspension, as stated in chapter 13.1, subsections 27(b)-(c) of the Policy Manual, but it asserts that these factors are not determinative of good conduct. The Respondent argues that the Board was nonetheless alive to these considerations, as the Board recognized in its decision the Applicant’s previous convictions, when those convictions were rendered, and the Board’s reasons for pardoning them.
C.
Discussion
[35]
In my view, the Board’s decision is reasonable. In finding that the Applicant does not meet the good conduct criterion of subsection 7(b) of the Act, the Board weighed the Applicant’s behaviour consistent with a law-abiding lifestyle against the Applicant’s behaviour to the contrary in a manner that is justified, transparent, and intelligible (Vavilov at para 99).
[36]
I am not persuaded by the Applicant’s argument that the Board’s reasons for its decision are inadequate, as the Board relies upon the charges laid against the Applicant and not being bound to the criminal standard of proof. On the contrary, the Board notes how the Applicant’s “long history of stability in the community”
mitigated in his favour, and weighed this consideration against the finding that “purposefully hiding a cell phone to record a person’s private moments, within [a] private space such as a washroom does not align to good conduct.”
[37]
The above finding follows an internally coherent and rational chain of analysis and is justified in relation to the relevant facts and law (Vavilov at para 85). Under chapter 13.1, sections 18 and 19(b) of the Policy Manual, the Board is not bound to criminal standards of proof and may consider information about an incident that did not result in a conviction. It was therefore reasonable for the Board to rely on the Applicant’s recent charges to find that he is no longer of good conduct, even if those charges resulted in a conditional discharge and there was no finding that the Applicant had the subjective intent to video record the Minor Relative (Jaser v Canada (Attorney General), 2015 FC 4 at paras 50-52, and the cases cited therein).
[38]
I am not persuaded by the Applicant’s argument that the Board’s decision is unreasonable in light of the purpose of the Applicant’s conditional discharge. Even if the sentencing judge and Crown were aware of the Applicant’s previous convictions, the fact that the Court granted the Applicant a conditional discharge, albeit relevant, is not determinative of the Board’s decision to revoke his record suspension. In arguing to the contrary, the Applicant claims that the Court and the Crown rejected the possibility that the Applicant placed his phone in the bathroom to video record the Minor Relative. This claim is unsupported by the record, as there is no evidence to suggest the Court found that fact or the Crown conceded it. Furthermore, even if the Applicant’s claim were correct, it has little bearing on the reasonableness of the Board’s decision, as the Board did not find that the Applicant placed his phone in the bathroom to video record a specific person.
[39]
I agree with the Applicant that the Board failed to address explicitly the length of time between findings of guilt and the differences in the allegations involved. As stipulated in chapter 13.1, subsections 27(b)-(c) of the Policy Manual, the Board should consider these factors when deciding to revoke a pardon. I find, however, that the Board’s acknowledgement of the nature and timing of the Applicant’s convictions displays that the Board was alive to these considerations. I can thus infer from the record that the Board found the consideration under subsection 27(a), that being the Applicant’s disregard for public safety, outweighed the considerations under subsections 27(b)-(c) (Vavilov at para 98). In my view, this conclusion is reasonable given the intrusive nature of the Applicant’s conduct onto the privacy of others. Absent any overriding errors, this Court must refrain from reweighing the Board’s assessment of the factors under chapter 13.1, section 27 of the Policy Manual (Vavilov at para 125).
[40]
With respect to the psychiatrist’s report, I do not find that the Board was required to address this evidence. The Board does not assert that the Applicant intended to video record the Minor Relative or has a paraphilic disorder — a conclusion discounted by the psychiatrist’s report. Rather, the Board takes issue with the Applicant’s disregard for others’ privacy, regardless of the identity of his intended target.
[41]
Finally, I find that M.Y. is distinguishable from the case at hand. Unlike in M.Y., the Board in this case did not treat the Applicant’s conditional sentence as dispositive without conducting any investigation or obtaining any details from police regarding the circumstances surrounding the commission of the Applicant’s offence (M.Y. at paras 19-20). The Board also informed the Applicant that he could provide written representations explaining the circumstances surrounding his offence and any positive steps he has taken to address these issues — an opportunity that the appellant in M.Y. was not adequately provided (M.Y. at para 24).
VIII.
Costs
[42]
Both parties request that they be awarded costs if successful. Having found the Respondent to be successful in dismissing this application, and considering my discretion under Rule 400(1) of the Rules, I order award the Respondent costs in the amount of $1,000 payable forthwith by the Applicant.
IX.
Conclusion
[43]
The Board’s decision is reasonable. I therefore dismiss this application for judicial review with costs.
JUDGMENT IN T-722-20
THIS COURT’S JUDGMENT is that:
This application for judicial review is dismissed.
The Respondent is awarded costs in the amount of $1,000 payable forthwith by the Applicant.
"Shirzad A."
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