Date: 20061213
Docket: A-46-06
Citation: 2006 FCA 405
CORAM: LÉTOURNEAU
J.A.
NADON
J.A.
PELLETIER
J.A.
BETWEEN:
RENÉ-LUC GOSSELIN
Appellant
and
ATTORNEY
GENERAL OF CANADA
Respondent
REASONS FOR JUDGMENT
LÉTOURNEAU J.A.
Issues
[1]
The
appellant is challenging the only special condition, apart from the usual
mandatory conditions, which was imposed on him by the National Parole Board
(Board). He applied to the Federal Court for judicial review of this special
condition but was unsuccessful. He is now appealing the unfavourable decision
of Mr. Justice Simon Noël of the Federal Court (judge).
[2]
The
condition, written in a somewhat convoluted style, reads as follows:
[translation]
Prohibited from having any contact and/or any non-fortuitous communication with
any person whom he knows or whom he has reason to believe has a criminal record
(within the meaning of the interpretation stated by NPB on February 4, 1991) or
to be directly or indirectly involved with the drug underworld.
Appellant’s submissions
[3]
In support
of his appeal, the appellant, who is representing himself, alleges that the
judge erred in excluding four documents that he considered to be fresh evidence.
According to the appellant, the Board could and should have taken judicial
notice of these documents because of the nature of its functions. In other
words, this evidence was not new for the Board and was part of its field of
knowledge and expertise. Therefore, the Board should have accepted the evidence
when it was submitted.
[4]
In
addition, the appellant criticizes the judge for ruling that the special
condition which was imposed on him did not infringe section 7 of the Canadian
Charter of Rights and Freedoms (Charter).
[5]
He also
submits that the judge was biased in ignoring the very basis of the appellant’s
application for judicial review, orienting the discussion toward matters having
nothing to do with his application, and deciding the issue in the absence of
the fresh evidence he sought to adduce.
Facts
[6]
The facts
which are relevant for the purposes of this appeal may be summed up as follows.
The appellant was arrested on June 7, 2000. He was tried and convicted.
Since October 9, 2001, he has been serving a first penitentiary term of nine
(9) years for conspiracy to import cocaine and possession of a firearm.
[7]
When he
was arrested, he was carrying 50 kilograms of cocaine from Halifax to Montréal. The Board
reviewed the appellant’s case in October 2003. It granted day parole but
imposed a condition of non-association with persons involved in the drug underworld.
This is the abovementioned condition.
[8]
On August 23, 2004, the Board granted full
parole to the appellant, but still subject to this special condition. After an
internal challenge, the Board upheld its decision to impose the condition in
question. In April 2005, the Appeal Division of the Board dismissed the
appellant’s appeal and upheld the Board’s decision and the condition imposed.
From there, the matter went before the Federal Court and is now before us.
Analysis of the judge’s decision
(a) Allegation of bias
on the part of the judge
[9]
I will dispose
of the issue of the judge’s bias first because, in my opinion, it is unfounded.
This argument is based on the appellant’s misunderstanding of the role of a
judge who hears a challenge under section 7 of the Charter and an application for
admission of new evidence.
[10]
As far as
the challenge under section 7 is concerned, the judge considered the right infringed
by the clause of non-association with the drug underworld. He also inquired
into whether the restriction of the appellant’s freedom resulting from the
condition imposed had been done in accordance with the principles of
fundamental justice. He followed the reasoning laid down in decisions of the
courts above. It is obvious that there can be no indication of bias in the analysis
of an issue arising under section 7 of the Charter when that analysis is done
in a manner consistent with the law.
[11]
The
appellant’s argument to the effect that the judge oriented the discussion toward
matters having nothing to do with his application is also unfounded. The judge considered
the principles of fundamental justice to determine whether the condition
imposed by the Board infringed these principles. He cited Bryntwick v. Canada (National Parole Board), [1987] 2 F.C. 184 (F.C.), in
which it was ruled that a condition similar to the appellant’s was consistent with
the fundamental precepts of our legal system. However, on this point, the
appellant wanted the judge to examine the Board’s complete decision-making
process leading to this decision. The evidence on the record shows that the
condition was imposed by the Board in compliance with the process provided by
law, with a right of appeal, which the appellant exercised. The appellant was
also heard at every step of the process. Although he did not specifically
mention it, the judge was of the opinion that this process respected the
principles of fundamental justice.
[12]
Furthermore,
even if the judge’s determination of his role under section 7 should prove to
be incorrect, although it was not in this case, this does not necessarily lead
to a conclusion or an inference of bias.
[13]
Finally,
the appellant unfairly criticizes the judge for having rendered his decision on
a complete lack of facts, which in my view is in no way the case. The position
adopted by the judge was to say that even if fresh evidence had been submitted,
his conclusion on the merits would have been the same. This evidence was as
follows:
(a)
An excerpt
from a 2001 document of the Correctional Service of Canada containing
statistics and facts about the Canadian correctional system;
(b) An undated article from the
weekly newspaper Photo Police;
(c) An article from the daily
newspaper La Presse, dated November 10, 2002; and
(d) An article from the Journal
de Montréal, dated March 26, 2005.
[14]
It appears
that the judge concluded that these documents did not have much probative value
in relation to the issue of law he was called upon to decide. It is difficult
to see how the judge’s conclusion as to the relevancy and usefulness of this fresh
evidence shows any bias on his part.
(b) Judicial
notice of the fresh evidence
[15]
The
appellant submits—incorrectly, in my humble opinion—that the Board should have
taken judicial notice of the information contained in the four previously documents.
[16]
There is no
evidence on record to the effect that the facts mentioned in these documents
are so notorious as not to be the subject of dispute
among reasonable persons or
are capable of immediate and accurate demonstration by
resorting to readily accessible sources of indisputable accuracy: R. v. Williams [1998]
1 S.C.R. 1128, at page 1156.
[17]
This is an
essential condition for judicial notice to be taken. I must add that, after
having read this documentation, I am of the same opinion as the judge to the
effect it does not in any way affect the validity and legality of the non-association
condition.
[18]
In
addition, these documents were never submitted to the Board, and it was never asked
to consider them. Their content did not fall within the expertise of the judge
to whom they were submitted. Accordingly, he could not take judicial notice of
them.
(c) The non-association
condition imposed by the Board
[19]
Three
conditions must be met for the appellant to be found in breach of the condition
which was imposed on him. They are as follows:
(a) the meeting or contact must
not be fortuitous (in paragraph 26 of his decision, the judge mistakenly
referred to fortuitous meetings, but this mistake does not affect his
decision);
(b) the appellant must know or
have reason to believe; and
(c) the person must have a
criminal record or be directly or indirectly involved with drugs.
[20]
The
appellant is mistaken when he submits that his liability is incurred if he
meets, even fortuitously, persons with criminal records of which he is unaware.
That is definitely not the meaning or the scope of the condition. It has the
limits which I mentioned and which reduce the scope of its application so as to
give the appellant a defence to counter an allegation of a breach of condition.
[21]
In fact,
what became evident at the hearing is that the appellant was not contesting the
condition as such but rather the ensuing process when a breach of condition is
alleged and must be determined on the merits. The appellant alleges that the
process is arbitrary, that his rights are trampled on, and that the burden of
proving that he did not breach the obligations imposed by the non-association condition
is placed on him.
[22]
In my
humble opinion, this issue is a premature and strictly theoretical one which
was not submitted either to the judge or to us. For this reason, there is no
need for us to rule on it.
[23]
Having
reviewed the decision under appeal, the evidence on the record, and the parties’
memoranda of fact and law, I am satisfied that the judge did not err in
concluding that it was not unreasonable in the circumstances to impose such a
condition on the appellant and that the condition in itself was neither excessive
nor vague, although it was restrictive.
[24]
Likewise,
I do not see any reason to interfere with the judge’s conclusion to the effect
that the non-association condition was imposed in accordance with the
principles of fundamental justice.
[25]
For these
reasons, I would dismiss the appeal.
“Gilles
Létourneau”
“I
concur
Marc
Nadon J.A.”
“I
concur
J.D.
Denis Pelletier J.A.”
Certified
true translation
Michael
Palles
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