Schemmann v. Canada (National Parole Board), docket T-1726-97

     Date: 19990917

     Docket: T-1726-97

     T-1641-97

B E T W E E N :

     MICHAEL SCHEMMANN

     Applicant

A N D :

     THE NATIONAL PAROLE BOARD

     Respondent

A N D :

     THE DEPUTY DIRECTOR OF CORRECTIONS

     Respondent

     REASONS FOR ORDERS

HUGESSEN J.

     [1]      These two applications for judicial review were heard together and at the conclusion of the hearing I dismissed them for reasons which had been given during the development of the applicant's argument. Since the transcript of the argument may not be available to the Court, I reproduce herewith verbatim the most relevant portions:

1) On the applicant's submission that a report prepared by the Correctional Service of Canada ( CSC) infringed his Charter rights

THE COURT:          But Mr. Schemmann, we've settled that point. I asked you a moment ago, I said, "This is an allegation, it's not a finding, it's an allegation," and you agreed with me. That's exactly what it is.

MR. SCHEMMANN:      My Lord, if I say, if I read at verbatim here, My Lord:

"A 1992 job application letter in which the offender forged a signature."

THE COURT:          That's right.

MR. SCHEMMANN:      It's not just an allegation.

THE COURT:          No, that is an allegation. That is exactly -- if you wanted to lay a criminal complaint against somebody you would go down to the Provincial Court House down here, you'd see a justice of the peace, and you would sign a document called "Information and Belief," [sic "Information and Complaint"] and in it you would say, "Joe Blow committed the crime of theft" on such and such a date and such and such a place. It's not a finding of guilt, it's an allegation.

(Transcript of proceedings, page 14)

     and again:

THE COURT:          If it is your suggestion, Mr. Schemmann, that the CSC or anybody else is prohibited by Section 11 of the Charter or any other section of the Charter, from making allegations of criminal conduct on your part, I tell you you're wrong

(Transcript of proceedings, page 16)

2) On the applicant's argument that he had been denied access to materials allegedly in the possession of the CSC

I'm not say[ing] that you would be entitled to get them. I'm simply saying it's not as clear to me as it appears to be to you, and that these documents don't exist. But that matter was never resolved. You say you didn't follow through on the procedure because you thought it would be futile, and I have to say that if that's the attitude you took, then you have to accept the record in the state in which you find it. You don't have these things. But you can't do a bootstrap operation and use your 16(12) [Rule 1612] application for material in the possession of the Tribunal as a ground justifying your Application for Judicial Review. They come the other way around.

(Transcript of proceedings, page 25)

3) On the applicant's submission that he had no opportunity to respond to the report

THE COURT:          But it was given to you.

MR. SCHEMMANN:      It was merely given to me.

THE COURT:          Yes. And you were --

MR. SCHEMMANN:      Already signed, sealed and delivered.

THE COURT:          Yes, all right. And you were asked to respond to it?

MR. SCHEMMANN:      Not as a draft. It was given to me as a draft.

THE COURT:          Not what?

MR. SCHEMMANN:      It was not given to me, My Lord, as a draft.

THE COURT:          No, no. No, no.

MR. SCHEMMANN:      It was given to me signed, sealed and delivered.

THE COURT:          Yes, you've said that.

MR. SCHEMMANN:      And I was asked "Here it is. You should get a lawyer." I was told --

THE COURT:          Yes. That's pretty good advice.

(Transcript of proceedings, pages 27-28)

4) On the applicant's submission that a person who had signed a psychological assessment was in breach of the Psychologists Act of British Columbia

THE COURT:          He's holding himself out as a psychologist. That doesn't change anything. I mean, I'm sorry, this is an argument that takes us absolutely nowhere.

If you had evidence here that Mr. Fairweather was not a registered psychologist under the B.C. Psychologists Act that, as I say, might conceivably be relevant, although, I haven't quite worked out how. But it seems to me you don't even get off the ground unless you have, I would have thought, a certificate from the registrar, or whoever it is of this professional corporation, to say that this gentleman is not a member and not registered.

(Transcript of proceedings, page 35)

5) On the applicant's submission that the Statute did not permit CSC to report allegations of suspected criminal activity

THE COURT:          The point is, ["]relevant to the decision making process with respect to release["], is, are terms of great width and breadth, and they in my view encompass a large amount of information with respect to an inmate's criminal proclivities or past.

MR. SCHEMMANN:      Yes, if there was a conviction. Otherwise, it would be meaningless, My Lord. It's a governmental enforcement restriction.

THE COURT:          No, no, they are not limited to a matter of conviction.

(Transcript of the proceedings, pages 38-39)

6) On the applicant's submission that one of the conditions of his release was ultra vires as being in possible conflict with an order of the Supreme Court of British Columbia

THE COURT:          If and when the Supreme Court of British Columbia, or another court of competent jurisdiction, orders that you are to have access to those children then and then only would the possibility of a conflict arise and then it would only arise if the community supervisor were to impose unreasonable conditions upon your access. And since all of that is hypothetical there is simply nothing more to be said about it.

(Transcript of the proceedings, pages 49-50)

7) On the applicant's submission that the signatures on his conditional release certificate were identical to the signature on an affidavit and that some legal consequences flowed from that alleged fact

MR. SCHEMMANN:      Okay, on the lines and on the lines "Lewis K. Procathy." And if you wish to compare that signature with the signature of the maker of the affidavit of Mr. Simmons on page 6 of the Respondent's Application Record, the long blue book, those signatures are exactly identical.

A test in paragraph 11 that the National Parole Board imposed two conditions, and as a matter of fact it was him who makes those conditions, not members of the National Parole Board. We don't see their signatures.

THE COURT:          Well, I don't know, I see two signatures there. I don't know whose signatures those are.

MR. SCHEMMANN:      It is my submission, My Lord, it's quite obvious that the "F. Simmons" is exactly the same on page 15 as it is on page 6 of his affidavit.

THE COURT:          I'm sorry I have to tell you that I can't make that finding. I don't know. Is there other evidence?

(Transcript of proceedings, page 57)

     and finally:

8) On the applicant's submission, immediately thereafter, that I was biased

MR. SCHEMMANN:      My Lord, I wish to lodge a formal protest as to Your Lordship's blindness, and I wish to sit down and hand this case over to the Crown. I also suggest, My Lordship, that you may remove yourself as a judge in this case because I have a reasonable apprehension of bias on your part.

THE COURT:          And what is your apprehension of bias?

MR. SCHEMMANN:      I have an apprehension of bias that Your Lordship is blind.

THE COURT:          Yes, but why does that make me biased?

MR. SCHEMMANN:      The fact that the signature on page 15 is exactly the same signature as on page 6 of the Application and is therefore clearly identified as that of Fraser Simmons. And I make an application, if Your Lordship finds otherwise --

THE COURT:           I'm asking you to tell me what the signature on page 15 represents itself as being?

MR. SCHEMMANN:      It is the signature, My Lord, of Fraser Simmons.

THE COURT:          But what does it represent itself as being?

MR. SCHEMMANN:      It represents the signature of a regional director who is a staff member and not a Board, My Lord.

THE COURT:          Yes. All right.

MR. SCHEMMANN:      And I wish to sit down and make no further submissions, awaiting your ruling on the bias application. Thank you.

THE COURT:          Your bias application is dismissed. Now, I would, however, like to get to the bottom of what it is you're telling me. What is it that you say appears on ["from"] those signatures?

MR. SCHEMMANN:      My Lord, I wish to take my remedy in the Federal Court of Appeal. I have no further submissions to make. I asked yourself to resign, and you refuse to do so. Thank you, My Lord.

THE COURT:          That's fine. Well, in that case, I won't need to hear from you, Mr. Fothergill. There are two applications here, and both are dismissed.

I will be interested, Mr. Schemmann, if you can successfully urge that physical disability is a ground of bias. That will be an interesting submission. I wish you lots of luck.

(Transcript of the proceedings, pages 58-59)

     "James K. Hugessen"

     Judge