Desjardins v. Canada (Attorney General), 2004 FC 632

Date: 20040429

Docket: T-1359-03

Citation: 2004 FC 632

Ottawa, Ontario, this 29^th day of April, 2004

Present:           THE HONOURABLE MR. JUSTICE SIMON NOËL

BETWEEN:

                                                       RAYNALD DESJARDINS

                                                                                                                                            Applicant

                                                                           and

                                         THE ATTORNEY GENERAL OF CANADA

                                                                                                                                        Respondent

                                            REASONS FOR ORDER AND ORDER

[1]                This is an application for judicial review of an Appeal Division of the National Parole Board's (the "Appeal Division") decision dated June 23, 2003, wherein it dismissed the Applicant's appeal and affirmed the National Parole Board's (the "NPB") decision of January 15, 2003, not to direct the Applicant's day parole as well as to deny him full parole. This decision was based on the Appeal Division's conclusion that there were reasonable grounds to believe that the Applicant, if released, was likely to commit an offence involving violence before the expiration of his sentence on October 23, 2009.

FACTS

[2]                The Applicant is currently an inmate at the Federal Training Centre, a minimum-security penitentiary under the jurisdiction of the Correctional Service of Canada ("CSC"). He was sentenced on October 24, 1994 and is serving a first federal term of imprisonment of 15 years for conspiracy to import drugs. The Applicant met the criteria set out in section 125 of the Corrections and Conditional Release Act, S.C. 1992, c. 20 (the "Act") and was therefore eligible for an accelerated parole review pursuant to sections 126 and 126.1 of the Act.          

[3]                On July 10^th, 2002, Justice Beaudry of this Court granted, with the Respondent's consent, the Applicant's request for judicial review and quashed the Appeal Division's decision dated October 12^th, 1998 as well as the decisions previously rendered by the NPB on December 9^th, 1997 and on October 28^th, 1997. This application therefore stems from the subsequent decisions rendered by the NPB and the Appeal Division that resulted from this Court's July 10^th, 2002 decision.    For the purpose of analysis under the present judicial review, I do not consider it is necessary to restate all of the details concerning the legal procedures and facts which lead to Justice Beaudry's July 10^th, 2002 judgment. All of the relevant facts have been considered and this judicial review contains all those required to determine the issues and properly render a decision in this matter.

[4]                In August 2002, the NPB began a new review of the Applicant's file without a hearing as prescribed in subsection 126(1) of the Act. In the decision dated August 29th, 2002 (page 87, Respondent Record, vol.1, exhibit MF 10 of Michel Frappier's affidavit), the NPB concluded that there were reasonable grounds to believe that the Applicant, if released, was likely to commit an offence involving violence before the expiration of his sentence on October 23th, 2009.    Consequently the NPB did not direct the Applicant's day parole and referred his case for hearing pursuant to subsection 126(4) and paragraph 140(1)(b) of the Act. The hearing was held and the same conclusions as for the August 29^th, 2002 decision were reached with the decision being rendered on January 15^th, 2003.

[5]                These conclusions were most notably based on the Respondent's allegation that while the Applicant himself, outside of incarceration, has not been convicted of a violent offence, he is nonetheless considered by reliable sources to be at the head (is "l'âme dirigeante") of one of the largest criminal drug trafficking operations in Canada. The decision was also based on the allegation that the Applicant relies exclusively on criminal activity to maintain his lifestyle and, despite incarceration, continues to cultivate ties with members of notorious criminal organizations such as the Hell's Angels and the Montréal Mafia. In reaching its decision, the NPB relied on the following information:

A.         Evidence of behaviour that would indicate a propensity to commit a violent offence ("Preuve de comportement indiquant une propension à commettre une infraction accompagnée de violence");

B.          Elements or stress factors in the release environment likely to incite the perpetration of a violent offence and all attempts made by the delinquent to reduce or eliminate them ("Éléments ou facteurs de stress dans le milieu de la mise en liberté susceptible d'amener à la perpétration d'une infraction accompagnée de violence et toute tentative du délinquant de les réduire ou de les atténuer");

C.         Psychiatric or psychological evaluations indicating a propensity towards the commission of a violent offence ("Évaluations psychiatriques ou psychologiques indiquant la probabilité de la perpétration d'une infraction accompagnée de violence");

D.         Professional advice concerning the propensity towards the commission of a violent offence ("Avis professionnels portant sur la propension à commettre une infraction accompagnée de violence"); and

E.          Other information concerning the propensity towards the commission of a violent offence ("Autres renseignements portant sur la propension à commettre un infraction accompagnée de violence").

[6]                On September 25^th, 2002, there was an incident (among others that will be subsequently reviewed) which is clearly in dispute between the parties. The Respondent claims that the Applicant, while on an unescorted temporary absence to attend a Contrepoint program and contrary to many conditions of his "permis de sortir sans escorte", met with Mr. Francesco Cotroni. The Applicant questions the investigation findings and is of the opinion that it merely shows that he met with his ex-wife to discuss problems with their young son. The Respondent considers that this most recent event (which as a minimum constitutes a partial breach of the "permis de sortir sans escorte" conditions) sheds new light on past situations and further demonstrates the Applicant's continued involvement with organised crime. The Respondent, considering the Applicant's behaviour since incarceration and the events in their totality, is therefore of the opinion that the Applicant is likely to commit an offence involving violence and that he should not obtain an accelerated release on day or full parole.

[7]                Subsequently, On June 23rd, 2003 the Appeal Division in reaching its decision to dismiss the Applicant's appeal analysed the following issues :

A.         The sharing of information between the NPB and the Applicant;

B.          Whether or not the NPB's decision was based on erroneous and incomplete information;

C.         Whether the NPB's decision was reasonable; and

D.         Whether in rendering its decision the NPB was biassed against the Applicant.

[8]                The Appeal Division came to the conclusion that the Appeal was denied thereby affirming the NPB's January 15^th, 2003 decision to not direct day parole and to deny full parole.

ISSUES

[9]                As suggested by the Respondent, I will summarize the 9 issues identified by the Applicant into the following four general questions which coincide with the ones dealt with by the Appeal Division :

A.        Was there in accordance with: section 7 of the Charter of Rights and Freedom ("Charter"), legislation and the policy manual proper sharing of information with the Applicant?

(Issues 1, 2, 3 and 4 as presented by the Applicant)

B.         Was the NPB's decision based on erroneous and/or incomplete factual information?

(Issues 4, 5, 6, 7 and 8 as presented by the Applicant)

C.         Was it unreasonable for the Appeal Division to find the NPB's decision reasonable?      

(Issues 4, 5, 6, 7 and 8 as presented by the Applicant)                          

D.        Did the NPB exercise bias against the Applicant?          

(Issue 9 as presented by the Applicant)

THE STANDARD OF REVIEW

[10]            My colleague Madam Justice Tremblay-Lamer, in Costiuc v. Canada (A.G.), [1999] F.C.J. No. 241 defined the applicable standards of review by providing the grounds for this Court to review a decision of the Appeal Division of the Board's decision. She stated:

"The Appeal Division's function is to ensure that the NPB has complied with the Act and its policies and has observed the rules of natural justice and that its decisions are based on relevant and reliable information. It is only where its findings are manifestly unreasonable that the intervention of this Court is warranted."

[11]            In Cartier v. Canada (A.G.) (2002), 300 N.R. 362, the Federal Court of Appeal held that the standard of review which the Appeal Division must apply with respect to whether the Board committed any errors of law is that of reasonableness:

"The Board is entitled to err, if the error is reasonable. The Appeal Division only intervenes if the error of law or fact is unreasonable. I would be inclined to think that an error of law by the Board as to the extent to which it must be "satisfied" of the risk of release -- an error [page 327] which is alleged in the case at bar -- is an unreasonable error by definition as it affects the Board's very function.

If the applicable standard of review is that of reasonableness when the Appeal Division reverses the Board's decision, it seems unlikely that Parliament intended the standard to be different when the Appeal Division affirms it. I feel that, though awkwardly, Parliament in paragraph 147(5)(a) was only ensuring that the Appeal Division would at all times be guided by the standard of reasonableness.

The unaccustomed situation in which the Appeal Division finds itself means caution is necessary in applying the usual rules of administrative law. The judge in theory has an application for judicial review from the Appeal Division's decision before him, but when the latter has affirmed the Board's decision he is actually required ultimately to ensure that the Board's decision is lawful."

I am guided by these principles in my assessment and analysis of the law and the facts for the present judicial review.

THE ANALYSIS

A.         Was there proper sharing of information with the Applicant?

[12]        The Applicant considers that some of the information used by the NPB in the decision dated June 23^rd, 2003 was not shared with him in accordance with paragraph 141(1) of the Corrections and Conditional release Act ("Act") which reads as follows:

The Applicant claims that since the obligation to share information has not been met, there has been a breach of natural justice and, as a consequence, a breach of Section 7 of the Charter. The Applicant has also argued that, in accordance with the policy manual, Vol. 1, no. 6, December 2002 ("Policy") at Chapter 10, the requirement to disclose information has not been respected.

[13]            The Applicant considers that the following information among others, has not been shared in accordance with the Act, the policy and therefore that a breach of Section 7 of the Charter has occurred:

-           in 1993, the Applicant is alleged to have been in possession of two handmade picks ("deux picks artisanals") and is alleged to have used one of them against another inmate;

-           it is claimed that the Applicant asked two inmates to eliminate another who was in fact subsequently attacked;

-           the Applicant is alleged to have kept a gun at home in the ventilation system to protect himself and his family;

-           a report: "Rapport du Comité d'enquête suite aux voies de faits grave sur le détenu Fisher survenus le 13 avril 1995 à l'établissement Leclerc" was not shared with the Applicant; and

-           the Applicant further argues that during the hearing new information was verbally introduced concerning his alleged September 25^th, 2002 meeting with Mr. Francesco Cotroni. The Applicant submits that this new information should have been put in writing and an offer of an adjournment made;

[14]            Subsection 141(1) of the Act is an enactment of the Audi Alteram Partem rule, its purpose being to provide the offender with a better understanding of the information to be used during the hearing; to allow for adequate preparation and to prevent being taken by surprise.

However, this subsection does not obligate the NPB to share all of the documents containing the information to be used because Parliament has expressly provided for a summary of information that can be submitted as an alternative. It is also important to indicate that the summary of information may be contained in a report which is shared with the offender, but which does not have to be in the same format, nor be as long as the original information that it is derived from. The key consideration is to make sure that the documents properly include all of the relevant information so that the offender will not be taken by surprise at the hearing. Therefore, the NPB has the discretion to decide whether it will share the actual document or rather choose to rely on a summary (see Léonard v. Canada (Attorney General) [2003] F.C.T. 747 paragraphs 40 to 43 inclusively).

[15]            On August 8^th, 2002, the Applicant received a fair number of documents. This sharing of information was done for the NPB's decision dated August 29^th, 2002 and signed by Commissioner Réginald Day. More information was then shared on October 2, 3 and 7, 2002 and again on January 7 and 10, 2003 which also includes the NPB's August 29^th, 2002 decision and where a good summary of the information. This decision refers to the following facts:

-           the Applicant kept a gun at home for both his protection and that of his family;

-            he was associated with the "Hell's Angels de Québec" - "la mafia italienne Montréalaise" criminal organizations with reputations for violence;

-            while detained in Parthenais, he was found to be in possession of a "pic artisanal" in 1993 and a "lame de rasoir trafiquée";

-            in December 1993, while at "l'établissement Leclerc", he allegedly hit another inmate in the face and hurt his eye; and

-            he was linked to the serious poisoning of a jail employee.

[16]            This decision also refers in detail to the April 13^th, 1995 Fisher incident where the Applicant is alleged to have been the driving force behind a plan to and attempted murder of Mr. Fisher.

[17]            Having reviewed the evidence, I am of the opinion that the Applicant could not have been taken by surprise by the reference to the gun at his home, the Fisher incident etc... since the information was provided to him in accordance with the Act and the policy. As a matter of fact, a review of the transcript of the hearing held on January 15^th, 2003 shows that the Applicant was given every opportunity to respond to this information and that, at no time, he indicated being surprised by the information being discussed. It is also important to note that, at the time, the Applicant was assisted by two lawyers, Me Julius Grey and Me Annick Gagnon.

[18]            Concerning the allegation that new information was introduced verbally and not in writing at the hearing held in January 15^th, 2003, concerning the presumed meeting with Mr. Francesco Cotroni, the Applicant considers that the NPB should have at least adjourned the proceedings. The information in question was to the effect that:

-           Mr. Dubois (preventive security officer) compared the car he saw on September 25^th, 2002 with a picture of a car and recognized it as being the same;

-           Mr. Dubois told parole officer Rousseau that he saw a license plate on the car and not a transit form;

-           Mr. Dubois confirmed that inmate Mantha shook hands with the Applicant after speaking with Mr. Cotroni, although Mr. Mantha's parole officer said that he had waived ("... salué de la main");

[19]            After reviewing the pertinent documentation which includes the incident reports and the transcript of the hearing, I can only conclude that the information in question is not new information, but is rather information of the same nature as what had previously been disclosed and which was derived from the surveillance. The information was essentially to the effect that a Jeep Cherokee with a particular license plate was observed by surveillance as having two male occupants which the officers recognized as being the Applicant and Mr. Francesco Cotroni, not the Applicant's ex-wife, Ms. Lapierre. The Applicant denies these facts and filed an investigative report with the NPB which concluded that only Ms. Lapierre was in the car with the Applicant.

[20]            When the information was presented at the hearing, Counsel for the Applicant did not identify it as new information, nor did they request an adjournment. Furthermore, when the Applicant testified regarding the incident, he was able to submit his own version of the event and was heard. However, the NPB concluded nonetheless that the Applicant had met Mr. Cotroni on that night and, by doing so, concluded that the Applicant's version of the facts was not credible.

[21]            It is also important to note that the Applicant has not alleged, nor demonstrated that he was prejudiced by the "new information" (See Hudon v. Canada [2001] CFPI, 1313, paragraphs 23 to 29). Furthermore, it is a well established legal principle that if a breach of natural justice is alleged, it should be brought to the convening Tribunal's attention at the first available opportunity. The Applicant only raised this argument at the appeal and judicial review levels, but not at the NPB level.

B.         Was the NPB's decision based on erroneous and/or incomplete information?

[22]            The Applicant disagrees with the NPB's conclusion that on September 25^th, 2002 he was seen with Mr. Francesco Cotroni. As previously mentioned, the Applicant filed an investigative report that concluded he was with his ex-wife, Ms. Lapierre, in a Jeep Cherokee and then in a restaurant discussing problems they were having with their son. The NPB reached its conclusion regarding this incident by relying on the evidence prepared by the CSC preventive security unit and parole officers' testimony. Having reviewed the information used to come to this conclusion, which includes the investigative report filed by the Applicant, I am not able to identify an erroneous or incomplete factual analysis that would justify intervention on my part. My review of the transcript and of the pertinent documentation permit me to state that essentially the Applicant was not believed by the NPB. It is therefore not within this Court's purview to review credibility findings when they are supported by reliable factual evidence. The evidence shows that the NPB gave the investigative report proper consideration and that it decided that the preventive security unit's and parole officers' evidence was more credible.

C.         Was it unreasonable for the Appeal Division to find the NPB's decision reasonable?

[23]            The Applicant considers that it was unreasonable to associate him with a "climate of violence" when in fact he is not a violent individual, nor is he prone to violence.

[24]            Before answering this question, it is important to remember that in accordance with subsection 101b) of the Act, the NPB is entitled to use all available information that is relevant to the case in rendering its decisions. It is therefore reasonable for the NPB to make use of Board members' expertise and experience gained in the performance of their duties and basing its conclusions on their knowledge of criminal biker groups or mafia organizations and their respective violent tendencies (see Normand v. Canada (National Parole Board) [1996] F.C.J. no. 1628, paragraphs 25 to 28).

[25]            In the present situation, there are a good number of events that implicate the Applicant in violent activities. For example there is reference made to a poisoning incident, the articulation of a plan to murder an inmate and to a gun hidden in the ventilation system of his residence. There is also reference made to a "pic artisanal", a recent meeting with a Mr. Francesco Cotroni, and the alleged high position of the Applicant within the organized crime hierarchy. All of these circumstances considered as a whole can reasonably justify the conclusion that there are sufficient grounds to conclude that, if the Applicant is released, he will likely commit an offence involving violence before the expiration of his sentence on October 23^rd, 2009 (see subsection 102a) of the Act).

[26]            After weighing all of the evidence, the NPB considered that the Applicant's explanation of events was not credible and that the evidence presented by the CSC was factually sound and convincing. My review of the evidence permits me to conclude that the NPB's decision was reasonable and that the Appeal Division was correct in coming to such a conclusion.

D.         Did the NPB exercise bias against the Applicant?

[27]            The Applicant argues that the conduct and written decision of the NPB dated January 15^th, 2003 raise a reasonable apprehension of bias. As a backdrop to this bias allegation, the Applicant refers to the unusual and highly charged relationship between the NPB and himself.    As noted in paragraph 3 of this decision, there is a history of a legal dispute between the Applicant and the NPB which the Applicant considers to be important to his argument of bias. Therefore in the following paragraphs, I will deal with the bias argument while keeping this history of legal dispute in mind.

[28]            The Applicant considers that the NPB demonstrated displeasure with his efforts to prepare for and present his case. He also alleges the NPB showed sarcasm when it wrote at page 6 of the decision:

"[TRANSLATION] Once again, you have placed yourself in the position of victim and you refute the allegations brought against you... You have deployed quite an arsenal to convince the Commission that you did not breach the condition forbidding you to associate with criminals."

[29]            Furthermore, the Applicant argues that the NPB was "straining to reach a negative result" when it made comments regarding his lifestyle that were based on grounds that are irrelevant to subsection 126(2) at page 4:

"[TRANSLATION] During the years preceding your arrest, you had an advantaged lifestyle, a: luxurious residence, pleasure craft, luxury and collector automobiles, travel, outings. You took steps to preserve this lifestyle and during this sentence your supervisors have on several occasions been surprised, perplexed, uncomfortable and even worried about your activities while on the outing program that has been granted."

[30]            As a reminder, it is important to keep in mind certain principles in order to be able to assess an allegation of bias against a Board such as the NPB. First, the situation must be examined from the position of a reasonable person, being well informed, who has the objective of evaluating wether the Board members' behaviour shows bias against an individual. The classic reference used in such a situation is the test set out by Grandpré J. in [1978] 1 S.C.R. 369">Committee for Justice and Liberty v. National Energy Board [1978] 1 S.C.R. 369 at page 394:

"The apprehension of bias must be a reasonable one, held by reasonable and right-minded persons, applying themselves to the question and obtaining thereon the required information ... the test is "what would an informed person, viewing the matter realistically and practically ... and having thought the matter through ... conclude ..."

[31]            In the case of adjudicative Tribunals and administrative bodies, a duty of fairness is owned to the parties appearing. "The scope of this duty and the rigour with which it is applied will vary with the nature of the Tribunal in question." (See R.v. R.D.S. [1997] 3 S.C.R. 48 paragraph 92). Therefore, in order to be successful in arguing bias, there must be a real apprehension of bias, a real probability as opposed to a mere suspension of bias (see R. v. R.D.S. Supra at paragraph 112).

[32]            As indicated before, I have read the transcript of the hearing held on January 15^th, 2003 and I have found not only that the Applicant was treated with respect, but that the Board members, through their interventions, did not show bias or create an apprehension of bias. For example there was a continual exchange of information between the Board members and the Applicant which indicates to me that there existed a climate of respect which permitted the Applicant to tell his side of the story without impediment. Because of the past litigation between the parties, the NPB decided that two of the Board members would be brought in from outside the Province of Quebec so as to neutralize any alleged bias against the NPB Quebec members. Additionally, at no time during the actual proceedings did the Applicant or his legal advisors object to the situation or raise any issues that would have shown bias or the reasonable apprehension thereof on the part of the Board members. Furthermore, the Applicant could not refer the Court to any part of the transcript which could support such an argument.

[33]            Concerning the first extract of the NPB decision (see paragraph 28 of this decision), I agree with the Respondent that it indicates a situation of fact where the Applicant submitted numerous documents including an exhaustive investigative report concerning the September 25^th, 2002 incident. This extract does not in and of itself demonstrate the Board's alleged displeasure, but rather underscores the reality that the Applicant went to great lengths to prove his side of the story and concludes that he had done so without success. This is not bias.

[34]            With reference to the second extract of the NPB decision (see paragraph 29 of this decision) concerning the Applicant's status or lifestyle prior to conviction and while in jail, it is a statement which indicates that such a lifestyle, when considered in relation to criminal offences and which involved the trafficking of substantial amounts of illegal drugs, could reasonably form the basis of conclusions concerning his status in organized crime and was an important factor for the NPB to take into account when making an assessment concerning the Applicant's life and role in the community upon release all of which is related to the potential of violence.    Such a statement does not in and of itself indicate bias on the part of the NPB.

[35]            The Applicant further argues that another indication of bias is the NPB's refusal to his counsel's objection to what he considers a lack of sufficient information furnished regarding the September 25^th, 2002 incident and the NPB's failure to offer an adjournment following the verbal communication of what the Applicant considered to be new information concerning the investigation of that same incident. In light of all the evidence presented, I do not think that these two allegations show bias. Furthermore, neither the Applicant, nor his legal advisors alleged bias when the situation occurred. They did so only at the appeal and judicial levels and while it is recognized by jurisprudence, that an allegation of bias must be brought at the earliest opportunity, I have nonetheless considered all of the evidence and am satisfied that there was no bias, nor an appearance of such (see Hudon v. The Attorney General of Canada, Supra at paragraphs 23 to 26).    The NPB has the discretion to determine the manner in which the reliability of evidence is verified and it was satisfied with what the correctional services had supplied (see Queen v. Zarzour [2000] A.C.F. no. 2070 at paragraph 38).    Additionally, as was indicated previously (see paragraphs 18 to 20), there was no need for an adjournment in this case because there was both no new information and no actual request for an adjournment was ever made.

[36]            In conclusion, I see no reason to intervene in the Appeal Division's June 23^rd, 2003 decision, nor in the NPB's January 15^th, 2003 decision.

[37]            Both parties have sought costs. Since I have come to the conclusion that the Applicant was not successful in his arguments, costs will be granted to the Respondent.

                                               ORDER

THIS COURT ORDERS THAT:

The application for a judicial review of an Appeal Division of the National Parole Board's decision dated June 23^rd, 2003, is dismissed and the Applicant shall pay the costs of this proceeding to the Respondent in accordance with column III to the table to Tariff B of the Federal Court Rules, 1998.

"Simon Noël"

            Judge

                                     COUR FÉDÉRALE

                      AVOCATS INSCRITS AU DOSSIER

DOSSIER :                T-1359-03

INTITULÉ :               RAYNALD DESJARDINS

v.

THE ATTORNEY GENERAL OF CANADA

LIEU DE L'AUDIENCE :                              Montréal, Québec

DATE DE L'AUDIENCE :                            19-AVR-2004

MOTIFS DE L'ORDONNANCE ET ORDONNANCE DE L'HONORABLE JUGE SIMON NOËL

DATE DES MOTIFS :                                   Le 29 avril 2004

COMPARUTIONS:

Me Stephen Fineberg                                        POUR LE DEMANDEUR

Me Michelle Lavergne                                                  POUR LE DÉFENDEUR

Me Dominique Guimond

AVOCATS INSCRITS AU DOSSIER:

Me Stephen Fineberg

1592, avenue des Pins Ouest

Montréal, Québec H3G 1B4                                         POUR LE DEMANDEUR

Morris Rosenberg

Ministère fédéral de la Justice

Complexe Guy-Favreau

200 ouest, Boul. René-Lévesque

Tour Est, 9^e étage

Montréal, Québec H2Z 1X4

POUR LE DÉFENDEUR