Date: 20070424
Docket: T-82-06
Citation: 2007 FC 432
Ottawa,
Ontario, the 24th day of April 2007
Present:
The Honourable Mr. Justice Beaudry
BETWEEN:
GILLES
PIMPARÉ
Applicant
and
ATTORNEY
GENERAL OF CANADA
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This
is an application for judicial review under section 18.1 of the Federal
Courts Act, R.S.C. 1985, c. F-7, of a decision of the National
Parole Board, Appeal Division (the Board). In this decision dated December 15,
2005, the Board dismissed the applicant’s appeal and upheld the decision dated July 12, 2005, of the
National Parole Board (NPB) denying the applicant full parole and day parole.
I. Issue
[2]
Does
the Board’s decision infringe one of the rules of procedural fairness and give
rise to a reasonable apprehension of bias, since one of the three NPB members
had previously testified for the Crown at the applicant’s trial in 1984?
[3]
For
the reasons that follow, the answer to this question is in the negative.
Accordingly, this application for judicial review will be dismissed.
II. Facts
[4]
The
applicant, an inmate of La Macaza Institution, is serving a life sentence with
eligibility for parole after 25 years for a double murder committed on July 4,
1979. He was sentenced on October 17,
1984,
following a trial by judge and jury.
[5]
The
applicant was the subject of a hearing before the NPB after 25 years in
incarceration. The three-person panel rendered the negative decision for the
NPB.
[6]
After
the hearing, the applicant realized that one of these three persons, Member
Roussel, had testified for the Crown at the applicant’s trial on September 6,
1984 (applicant’s affidavit, Exhibit GP-4).
[7]
The
applicant submits that, at the time of the criminal trial, Member Roussel was
the director of the Parthenais Detention Centre, where the applicant was
incarcerated, and that it was Member Roussel who had authorized the temporary
absence of his co-accused so that he could be questioned by investigators.
[8]
The
dismissal of the applicant’s appeal by the Board is the subject of this
application for judicial review.
III. Challenged
decision
[9]
In
upholding the NPB decision, the Board concluded that there was no prejudice to
the applicant, given the 21-year interval between these two events. The Board
wrote the following on this point:
[translation]
After a period of 21 years, the Appeal
Division does not believe that the fact that the former director of the
Parthenais Detention Centre, where you were detained at the time of the trial,
testified for the Crown could render the hearing “illegal” simply because this
former director took part in your hearing as a member. In the past, we have in
a few rare set aside hearings where, for example, one of the members had
recently participated in administrative decisions concerning an inmate while
that member was acting as manager of a penal institution. This is not the case
here, and after listening to the hearing, we are of the opinion that you have
had the benefit of a “full answer and defence” contrary to what is alleged in
the grounds of appeal.
[10]
After
reading the record and listening to the recording of the NPB hearing, the Board
wrote the following:
[translation]
Finally, we analyzed the Board’s decision
on the basis of the information on the record and the evidence submitted at the
hearing. Following its analysis, the Appeal Division concludes that the
decision under appeal is well founded. It is thorough, well written and
supported by reasons. We are of the opinion that it is fair and reasonable and
supported by relevant, credible and convincing evidence. Moreover, we are of
the opinion that your rights were respected and that the hearing was held in
accordance with the principles of fundamental justice, such that you and your counsel
had every opportunity to present your case.
IV. Relevant statutory
provisions
[11]
The
applicant submits that this application concerns paragraph 11(d) of the Canadian
Charter of Rights and Freedoms, Constitution Act, 1982, being Schedule B
to the Canada Act 1982 (U.K.), 1982, c. 11 (the Charter), which
reads as follows:
|
Proceedings
in criminal and penal matters
11. Any person charged with
an offence has the right
. .
.
(d) to be presumed innocent
until proven guilty according to law in a fair and public hearing by an
independent and impartial tribunal;
. .
.
|
Affaires
criminelles et pénales 11. Tout inculpé a le droit :
[.
. .]
d) d'être présumé innocent
tant qu'il n'est pas déclaré coupable, conformément à la loi, par un tribunal
indépendant et impartial à l'issue d'un procès public et équitable;
[.
. .]
|
[12]
The
mandates of the NPB and the Board are laid down by the Corrections and
Conditional Release Act, S.C. 1992, c. 20, the following excerpts of which are
relevant:
|
Principles
guiding parole boards
101.
The principles that shall guide the Board and the provincial parole boards in
achieving the purpose of conditional release are
. .
.
(f) that offenders be provided
with relevant information, reasons for decisions and access to the review of
decisions in order to ensure a fair and understandable conditional release
process.
|
Principes
101.
La Commission et les commissions provinciales sont guidées dans l’exécution
de leur mandat par les principes qui suivent :
[.
. .]
f) de manière à assurer
l’équité et la clarté du processus, les autorités doivent donner aux
délinquants les motifs des décisions, ainsi que tous autres renseignements
pertinents, et la possibilité de les faire réviser.
|
V. Analysis
Standard
of review
[13]
Because
this is a question of procedural fairness, it is not necessary to conduct a
pragmatic and functional analysis (Dr Q v. College of Physicians and
Surgeons of British Columbia, [2003] 1 S.C.R. 226). Case law has
established that the Court must intervene if this principle has been infringed (Ha
v. Canada (Minister of
Citizenship and Immigration, [2004] 3 F.C.R. 195 (F.C.A.); Housen v.
Nikolaisen, [2002] 2 S.C.R. 235).
[14]
First
of all, the Court agrees with the respondent that paragraph 11(d) of the
Charter does not apply here. The applicant was not considered to be an accused
before the NPB (Giroux v. Canada (National Parole Board), [1994] F.C.J. No.
1750 (F.C.T.D.) at paragraph 20). In fact, at the hearing, the
applicant’s counsel agreed that paragraph 11(d) of the Charter did not
apply.
[15]
Next,
the applicant relies on Exhibit GP-4 (transcript of Mr. Roussel’s testimony at
the trial in 1984) to show that Mr. Roussel should have disqualified himself at
the NPB hearing.
[16]
However,
following an analysis of this transcript, the Court notes that Mr. Roussel’s
testimony had nothing to do with the offences with which the applicant and the
co-accused, Mr. Guérin, were charged. In fact, Mr. Roussel’s testimony
concerned the signature of a form allowing an inmate’s temporary absence with
police escort. The form in question concerned the co‑accused, Mr. Guérin.
[17]
If
the Court had any documents, stenographic notes or other evidence to the effect
that Mr. Roussel had been a Crown witness at the applicant’s trial, it
would have no hesitation in rendering a decision favourable to the applicant.
However, that is not the case. The Court does not have any evidence to the
effect that Mr. Roussel’s testimony caused any prejudice to the applicant. Mr.
Roussel gave testimony on a technical matter, and this has nothing to do with
the NPB hearing.
[18]
In
addition, it must be noted that 21 years have elapsed between the testimony and
the NPB hearing.
[19]
The
test to be applied here is whether a reasonable person may believe that there
is a real danger of bias or whether there could be a reasonable apprehension of
bias (Committee for Justice and Liberty v. Canada (National Energy Board),
[1978] 1 S.C.R. 369). The Court is of the opinion that Mr. Roussel was not in a
conflict of interest by being a member of the panel which rendered the negative
decision for the NPB. The ground relied on by the applicant is not a serious
one. There is nothing to warrant the Court’s intervention here.
[20]
The
case law submitted by the respondent at paragraphs 27 to 32 of his memorandum,
as well as the judgment in Canadian Television Cable Assoc. v.
American College Sports Collective of Canada, Inc. [1991] 3 F.C. 626 (F.C.A.),
in support of his arguments are highly relevant. Reasonable apprehension of
bias must be established on the basis of serious and convincing evidence.
JUDGMENT
THE COURT
ORDERS that the application for judicial review be dismissed. Exercising
its discretion, the Court assesses the costs to be paid by the applicant to the
respondent at $300.
“Michel Beaudry”
Certified true
translation
Michael Palles
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