[1] This is an appeal from a decision of the Trial Division which set aside a decision of the National Parole Board (Board) to revoke the respondent's pardon on the basis he knowingly concealed a summary conviction offence under the Income Tax Act (ITA) when he applied for a pardon.

[2] The parties agree that the appropriate standard of review to be applied to the Board's decision was patently unreasonableness and the Applications Judge so found. There is no need to deal further with this issue.

[3] The appellant argued that the Applications Judge erred in holding that there was "no evidence" that the appellant knowingly concealed his conviction under the ITA.

[4] The Board was apparently of the view that because the form of the application for pardon was clear in instructing applicants to list all criminal convictions, the respondent must have knowingly concealed his Income Tax conviction. However, this conclusion ignored the evidence of the Respondent that he understood income tax convictions were not intended to be disclosed. The respondent's belief was buttressed by the fact that when he applied to the Royal Canadian Mounted Police (RCMP) for a list of his convictions, as he was instructed by the application kit provided by the Board, the list he received from the RCMP did not list the Income Tax offence.

[5] The appellant argued that when the Board said that the non disclosure was "a deliberate decision" this amounted to "knowing concealment". This argument misses the point. The evidence was that it was a deliberate decision of the respondent not to include the Income Tax offence. However, this does not mean that he knowingly made a false statement. The evidence was that he believed he was not obliged to list the information.

[6] The Board further drew an adverse interest against the respondent because he attached the list of convictions received from the RCMP to his application for a pardon, rather than personally filling in the space in the form provided with the details of the convictions. This was clearly an error. Indeed the respondent in attaching the list provided information adverse to himself which he was not obliged to provide, such as other offences with which he had been charged but not convicted, thus indicating an intention not to conceal.

[7] The reasons of the Board do not refer at all to the evidence of the respondent nor is there any finding as to the credibility of that evidence. In cases such as this where credibility is the crucial issue, we think it important that the Board make reference in its reasons to the issue of credibility and give reasons for its conclusions thereon.

[8] For these reasons we agree with the decision of the Applications Judge.

[9] This appeal will therefore be dismissed without costs. No costs were requested.

"J.E. Sexton"

J.A.

FEDERAL COURT OF APPEAL

NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET: A-175-03

STYLE OF CAUSE: THE ATTORNEY GENERAL OF CANADA

Appellant

and

BLAINE TANNER

Respondent

PLACE OF HEARING: TORONTO, ONTARIO

DATE OF HEARING: JANUARY 12, 2004

REASONS FOR JUDGMENT

OF THE COURT: (STONE, SEXTON & MALONE J.J.A.)

DELIVERED FROM THE

BENCH BY: SEXTON J.A.

APPEARANCES:

Ms. Gina M. Scarcella FOR THE APPELLANT

Mr. Brian H. Greenspan

Ms. Karen Erlick FOR THE RESPONDENT

SOLICITORS OF RECORD:

Morris Rosenberg

Deputy Attorney General of Canada

Toronto, Ontario FOR THE APPELLANT

Greenspan Humphrey Lavine

Toronto, Ontario FOR THE RESPONDENT

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Canada (Attorney General) v. Tanner, 2004 FCA 7

Citations2004 FCA 7

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2004 FCA 7