Cartier v. Canada (Attorney General), 2002 FCA 384

Date: 20021010

Docket: A-462-01

Ottawa, Ontario, October 10, 2002.

CORAM:       DÉCARY J.A.

LÉTOURNEAU J.A.

PELLETIER J.A.

BETWEEN:

RÉMY CARTIER

Appellant

and

ATTORNEY GENERAL OF CANADA

Respondent

JUDGMENT

The appeal is allowed without costs, but only to strike the words "with costs" from the order of Nadon J.

Certified true translation

Suzanne M. Gauthier, C. Tr., LL.L.

Date: 20021010

Docket: A-462-01

Neutral citation: 2002 FCA 384

CORAM:       DÉCARY J.A.

LÉTOURNEAU J.A.

PELLETIER J.A.

BETWEEN:

RÉMY CARTIER

Appellant

and

ATTORNEY GENERAL OF CANADA

Respondent

Hearing held at Montréal, Quebec, on September 16, 2002.

Judgment rendered at Ottawa, Ontario, on October 10, 2002.

REASONS FOR JUDGMENT:                                                                                           DÉCARY J.A.

CONCURRED IN BY:                                                                                               LÉTOURNEAU J.A.

                                                                                                                                           PELLETIER J.A.

Date: 20021010

Docket: A-462-01

Neutral citation: 2002 FCA 384

CORAM:       DÉCARY J.A.

LÉTOURNEAU J.A.

PELLETIER J.A.

BETWEEN:

RÉMY CARTIER

Appellant

and

ATTORNEY GENERAL OF CANADA

Respondent

REASONS FOR JUDGMENT

DÉCARY J.A.

[1]                 Since January 16,1990, the appellant has been serving a fifteen-year term of imprisonment for manslaughter. According to the calculation made pursuant to s. 127 of the Corrections and Conditional Release Act, S.C. 1992, c. 20 ("the Act"), the date of the appellant's statutory release was set at February 13, 2000. However, after reviewing the appellant's case prior to his statutory release the National Parole Board ("the Board") on January 12, 2000, ordered that he continue to be imprisoned and prohibited his release before the legal expiry of his term on January 30, 2005. Ultimately, the Board said it was persuaded that if the appellant was released he would commit an offence causing serious harm before the expiration of his sentence according to law.

[2]                 On March 8, 2000, the appellant appealed this decision to the Appeal Division created pursuant to s. 146 of the Act. On June 16, 2000, the Appeal Division dismissed the appeal, concluding that in its opinion:

. . . the decision of January 12, 2000, is fair and reasonable, that it is based on pertinent, credible and adequate information, that it was made in accordance with the Act and Board policies concerning the prohibition of release, and that the rules of fundamental justice were adhered to.

[3]        The appellant then filed an application for judicial review which was dismissed by Nadon J., then sitting in the Trial Division ((2001), 208 F.T.R. 138). In his order Nadon J. awarded the costs to the respondent. The parties agreed there was a mistake in this respect, since the respondent had expressly waived costs at the hearing. The appeal will therefore be allowed at least to the extent of correcting this mistake.

[4]        Essentially, the appellant objected that Nadon J. (1) confused the concepts of parole and statutory release; (2) misunderstood the degree to which the Board had to be "satisfied" in its assessment of the risks; (3) only took into account factors unfavourable to the offender; and (4) did not intervene when the Commission's decision was, in his submission, patently unreasonable.

[5]        At this stage it will be helpful to set out certain provisions of the Act:

Standard of review

[6]        The Appeal Division is a hybrid. It hears the offender's "appeal" and s. 147(4)(d) authorizes it to reverse, cancel or vary the decision made by the Commission against him. That is a power associated with an appeal. However, the grounds of appeal listed in s. 147(1) are essentially those associated with judicial review and s. 147(4) uses the phrase "on the completion of a review" (my emphasis). What is more, s. 147(5)(a) considerably reduces the Appeal Board's power of intervention, and at the same time significantly reinforces the status of the Commission's decision, when it requires the Appeal Division to be "satisfied" before rendering a decision "that results in the immediate release of an offender" that:

the decision appealed from cannot reasonably be supported in law, under the applicable policies of the Board, or on the basis of the information available to the Board in its review of the case . . .

[7]        Section 147(5)(a) is troubling, to the extent that it imposes a standard of review which for all practical purposes applies only when the Appeal Division, pursuant to s. 147(4)(d), reverses the Board's decision and permits the offender to be released. What standard should be applied when, as in the case at bar, the Appeal Division affirms the Board's decision pursuant to s. 147(4)(a)?

[8]        Section 147(5)(a) appears to indicate that Parliament intended to give priority to the Board's decision, in short to deny statutory release once that decision can reasonably be supported in law and fact. 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 which is alleged in the case at bar - is an unreasonable error by definition as it affects the Board's very function.

[9]        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 s. 147(5)(a) was only ensuring that the Appeal Division would at all times be guided by the standard of reasonableness.

[10]      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.

First ground: parole and statutory release

[11]      Counsel for the appellant argued that parole is a privilege while statutory release is a right, and one must be careful not to apply the principles developed by the courts for the former to the latter.

[12]      Statutory release is a right conferred by s. 127(1) "subject to any provision of this Act". In a case like that of Mr. Cartier, s. 129 imposes on the Commissioner a duty, before allowing the offender to exercise this right, to have the case reviewed by Corrections Canada, which may involve referral to the Commission; the latter after review may "order that the offender not be released" (s. 130(3)). The right to statutory release is therefore a right which may be withdrawn by the Commission even before it is exercised. In this sense, it is an uncertain right, a right which is not really guaranteed. The comparison made by the appellant between a "privilege" and a "right" is not very helpful in this context.

[13]      Additionally, Parliament intended that parole and statutory release, wherever they fall on the right-privilege scale, should both be governed by the same basic principles laid down in ss. 100 and 101. Section 100 deals with "conditional release", a phrase that is not defined but can only mean the various types of release described in Part II of the Act. Section 101 deals in general with any decision made by the Board. Thus, whether parole or statutory release is in question, when the time comes for the Board to exercise its discretion it is the overriding interests of society which must take precedence over the offender's interests.

[14]      In his reasons, the trial judge sometimes used the word "parole" when he was actually talking about statutory release. This is an insignificant error, which was in any case made before him by counsel for the respondent at the time, as it appears from the judge's reasons as a whole that, although he may have confused the terms, he in no way confused the concepts.

Second ground: extent "to which satisfied"

[15]      The appellant argued that both the Appeal Division and Nadon J. misunderstood the extent to which the Board should be "satisfied" in assessing the risk. In particular, the Appeal Division erred in using the words "satisfied that there were reasonable grounds to believe", whereas s. 130(3)(c) of the Act uses the words "offender is likely . . . to commit" (my emphasis). Nadon J., in his turn, erred by referring in para. 30 of his reasons to the conclusion "qu'il existe un risque que le demandeur commette" ([official translation] that there was a likelihood the plaintiff would commit).

[16]      This argument is attractive at first sight, but it does not stand up to analysis when we look at the context, and in particular the English version of the Act.

[17]      I set out the English and French versions of certain provisions side by side:

[18]      Counsel for the appellant argued that any ambiguity in the Act should be resolved in the offender's favour and that the test set out in the French wording of s. 130 ("convaincue . . . qu'il commettra") is more stringent, and so more favourable to the offender, than that contained in the English version ("satisfied that the offender is likely to commit").

[19]      The proposition that in the event of ambiguity the Act should be interpreted in the offender's favour is correct in so far as it means that once society's protection is guaranteed the Board should, in a given case, choose the solution which is less injurious to the offender's freedom. However, it is incorrect insofar as the Act has to ensure at the outset that society is protected: if there is any ambiguity in that regard, it will operate in favour of the public interest rather than in the interests of the offender. I understand from s. 101(a) of the Act that Parliament's intention was to make the "protection of society" test the "paramount consideration". This concern to give priority to the protection of society is also expressed in s. 101(d), according to which "parole boards [shall] make the least restrictive determination consistent with the protection of society" (my emphasis).

[20]      In [1980] 1 S.C.R. 821">Solosky v. The Queen, [1980] 1 S.C.R. 821, Dickson J. concluded that in weighing the duty to balance the public interest in maintaining the safety and security of a penal institution against the interest represented by insulating the solicitor-client relationship, "the scale must ultimately come down in favour of the public interest" (at 840). In Mooring v. Canada (National Parole Board), [1996] 1 S.C.R. 75, Sopinka J. noted that "The protection of the accused to ensure a fair trial . . . is overborne by the overriding societal interest" (at 92).

[21]      At first sight, the words "convaincue . . . qu'il commettra" appear to require a greater degree of certainty than is required by the words "satisfied that the offender is likely to commit". This is not because of the use of the words "convaincue" and "satisfied", which have the same meaning (see Oxford English Dictionary, Second, 1989 "satisfied": to convince; Black's Law Dictionary, 6th Edition, "satisfy": to convince; Employees of New Carlisle, Local 610 v. Radio CHNC Ltée (1985), 63 di 26 (Canada Labour Relations Board)), but because of the use of the future tense, in "qu'il commettra", which suggests quasi-certainty which is not found in "likely to commit", which is generally understood as meaning "probably, in all probability" (see Oxford English Dictionary, supra; Gayle v. Jevco Insurance Co. (1985), 16 C.C.L.I. 309, at 310 (British Columbia Court of Appeal); Re CC Chemicals Ltd. (1962), 52 C.P.R. 97, at 107-108 (Ontario Court of Appeal).

[22]      It is well established, as LeBel J. observed in 2002 SCC 62">Schreiber v. Canada (Attorney General), 2002 SCC 62, at para. 56, that:

A principle of bilingual statutory interpretation holds that when one version is ambiguous and the other is clear and unequivocal, the common meaning of the two versions would a priori be preferred . . . Furthermore, where one of the two versions is broader than the other, the common meaning would favour the more restricted or limited meaning . . .

[23]      The words "qu'il commettra" are less trenchant when seen in context than when read in isolation. Thus, in s. 132(1), when Parliament describes "any factor that is relevant" and must be taken into account by the Board in exercising the power conferred by s. 130, it uses terms such as "risque que le délinquant commette", rendered in English once again by "likelihood", the "risque" suggesting probability rather than virtual certainty. Further, when Parliament intends to require virtual certainty, it has used clear language, as in s. 132(1)(c), "compelling the conclusion".

[24]      Additionally, the regular use in the English version, whether dealing with the case review by the Service under s. 129 or the review by the Board under s. 130, of the words "likely" or "likelihood" incline me to think that it is this wording which best reflects Parliament's intent. Preference should be given to the meaning that emerges from the English version, where the language is consistent, rather than the meaning, if any, emerging from the French version, the language of which is inconsistent and ultimately contains shades of meaning which would make application difficult if not impossible.

[25]      The English version is clear, the French version ambiguous. The English version has a limited meaning which may include the meaning of the French version; the French version has a broader meaning, which does not allow for the meaning of the English version. The meaning common to both versions is that of the English one.

[26]      I accordingly conclude that the words "convaincue qu'il commettra" for all practical purposes mean "convaincue de la probabilité qu'il commette" [satisfied of the likelihood that he will commit].

[27]      That does not end the matter, insofar as the Appeal Division used the phrase, not used by the Board, [TRANSLATION] "satisfied there were reasonable grounds to believe". The requirement of "reasonable grounds to believe" is lower, as Nadon J. concluded, than that of "satisfied of the probability that he will commit". The Appeal Division used language which was actually in s. 129(2).

[28]      Nadon J. recognized this error, but saw it as a problem of style rather than substance. This is what he said in this regard:

[35]         In both cases, the reference to the concept of "reasonable grounds to believe" appears in a context in which the Appeal Division only adopted and explained the NPB's reasons. The Appeal Division did not at any time indicate that the NPB applied the wrong test and it seems to me that it also did not seek to alter the test applied by the NPB.

[36]         Although it is an error for the Appeal Division to say that the NPB said it was [TRANSLATION] "satisfied that there were reasonable grounds to believe" that the plaintiff would commit an offence if released, this is not an error of law in interpreting the Act, as the plaintiff suggested. The Appeal Division only summarized the NPB's decision. It is simply a mistranscription of the NPB's reasons which, in my view, has no impact on the legal test to be used pursuant to s. 130(3)(a) of the Act or on the Appeal Division's decision.

[37]         Consequently, since the NPB applied the proper test in assessing the evidence, I consider that the plaintiff's arguments must be dismissed.

[29]      In exercising his discretion Nadon J. could undoubtedly arrive at this interpretation of the Appeal Division's reasons. However, as the issue is to determine whether the Appeal Division applied the correct legal test, I prefer to consider the appellant's submission on the basis, for the purposes of argument, that the Appeal Division applied the wrong test, or at least did not really consider the nature of the test applicable.

[30]      It is well settled that "the relief which a court may grant by way of judicial review is, in essence, discretionary" (per Lamer C.J., Canadian Pacific Ltd. v. Matsqui Indian Band, [1995] 1 S.C.R. 3, at 28). At 29, the Chief Justice added:

The use of permissive, as opposed to mandatory, language in s. 18.1(3) [of the Federal Court Act] preserves the traditionally discretionary nature of judicial review. As a result, judges of the Federal Court, Trial Division . . . have discretion in determining whether judicial review should be undertaken.

And at 32:

This discretionary determination should not be taken likely by reviewing courts. It was Joyal J.'s discretion to exercise, and unless he considered irrelevant factors, failed to consider relevant factors, or reached an unreasonable conclusion, then his decision should be respected. To quote Lord Diplock in Hadmor Productions Ltd. v. Hamilton, [1982] 1 All E.R. 1042, at p. 1046, an appellate court "must defer to the judge's exercise of his discretion and must not interfere with it merely on the ground that the members of the appellate court would have exercised the discretion differently".

[31]      One of the reasons which may lead a judge not to grant the relief sought even when the decision on review is reviewable is the futility of reconsidering the said decision. In Mobil Oil Canada Ltd. v. Canada-Newfoundland Offshore Petroleum Board, [1994] 1 S.C.R. 202, at 228, Iacobucci J. for the Court cited with approval this passage from Prof. Wade, Administrative Law (6th ed. 1988), at p. 535:

A distinction might perhaps be made according to the nature of the decision. In the case of a tribunal which must decide according to law, it may be justifiable to disregard a breach of natural justice where the demerits of the claim are such that it would in any case be hopeless.

At 229, Iacobucci J. explained that this factor of hopelessness was "exceptional [in] character".

[32]      I readily admit that in Mobil Oil, supra, it was a case of a breach of natural justice and a matter in which the answer to the point of law at issue was "inevitable" (at 228) even if the party had an opportunity to be heard.

[33]      Nevertheless, I do not see any reason why the rule developed in Mobil Oil cannot be applied to other types of situation. A judge must of course act with extreme caution to avoid the process of reviewing the legality of a decision becoming a process of reviewing its merits. However, it seem to me that if a judge may ignore a breach of natural justice when the outcome is inevitable he must a fortiori be allowed to overlook an error of law when it is not conclusive or when he is satisfied that if the Court had applied the right test it would have come to the same conclusion. I note that this Court has applied Mobil Oil at least twice, in Yassine v. Canada (Minister of Employment and Immigration) (1994), 172 N.R. 308 (F.C.A.), in which Stone J.A. applied the futility rule, explaining that "The limits within which Professor Wade's distinction should operate are yet to be established" (para. 10), and in Patel v. Canada (Minister of Citizenship and Immigration), 2002 FCA 55, in which Evans J.A. dismissed an application for judicial review because "the error made by the visa officer was not material to the outcome of the visa application" (para. 5). Rothstein J.A. also referred to it at para. 88 of his dissent in Canadian Magen David Adom for Israel v. Canada (Minister of National Revenue), 2002 FCA 323.

[34]      Just recently also, in Wihksne v. Attorney General of Canada, 2002 FCA 356, this Court quashed a decision by a member of the Pension Appeals Board which had denied leave to appeal and referred the matter back with a direction to grant leave since in the Court's opinion that conclusion seemed unavoidable. In Rafuse v. Canada (Pension Appeals Board) (2002), 286 N.R. 385, 2002 F.C.A. 31, this Court also recognized that it had the power to make such orders "in the clearest of circumstances".

[35]      The case at bar is a special one. The error regarding the applicable test was made at the second level by the Appeal Division, it was not made at the first level by the Board. Despite this error, the Appeal Division affirmed the Board's decision. If the Court comes to the conclusion that the Board's decision was of impeccable legality, it would be futile to quash the Appeal Division's decision for error of law and refer the case back for re-determination, since the Appeal Division would unavoidably arrive at the same conclusion, although this time for the right reasons.

[36]      For the reasons which I will explain in considering the appellant's third and fourth arguments, the Board had good grounds for concluding that there was a probability of risk, and had the Appeal Division applied the right test it could only have dismissed the appeal, as the Board's conclusion was reasonable and so beyond challenge. In the circumstances, the judge could have dismissed the application for judicial review without doing violence to the rules of administrative law. Since I am empowered to make the judgment he should have made, I would have dismissed the application for judicial review on the ground that the error of law made by the Appeal Board was not conclusive and did not in any way vitiate the Board's decision.

[37]      Finally, the appellant objected to the use by Nadon J. of the words "à la conclusion qu'il existe un risque que le demandeur commette" in para. 30 of his reasons. This objection is without basis, as the judge only adopted the wording used by Parliament itself in the French text of ss. 132(1), which refers to the review by the Board under s. 130.

Third ground: relevant factors

[38]      The appellant objected to the passage from para. 28 of the trial judge's reasons:

[28]         In the plaintiff's submission, contrary to what the Appeal Division maintained at p. 3 of its decision, the factors set out in s. 132(1) of the Act should be assessed cumulatively. In my view, there is no basis for this argument by the plaintiff. First, the wording of s. 132(1) of the Act does not support the plaintiff's interpretation. The words "any factor that is relevant" (my emphasis) indicate in my view that the NPB should only consider the relevant factors, whether one or more of the factors listed in s. 132(1) or other factors which are submitted to it and which it regards as relevant, not all the factors set out in s. 132(1) of the Act. Additionally, the word "including" used to introduce the list of factors indicates that these are only examples of relevant factors, not that all these factors should be considered by the NPB.

[39]      Paragraph 28 should be read in conjunction with para. 29:

[29]         The plaintiff submitted no precedent in support of his interpretation of s. 132(1) of the Act. The defendant indicated that the decision of Noël J. in Knapp [v. Canada (Attorney General) (1997), 138 F.T.R. 201], supra, which was also upheld by the Federal Court of Appeal [(1998), 229 N.R. 22 (F.C.A.)], is directly at variance with the interpretation suggested by the plaintiff. In paras. 21 to 23 of his decision, Noël J. confirmed the interpretation suggested by the wording of s. 132(1) of the Act:

In my opinion neither the wording of the section nor the Board's interpretation renders it vulnerable to a s. 7 challenge. Section 132 of the Act directs the Board to consider "any factor" relevant to the likelihood of recidivism "including a pattern of persistent violent behaviour established on the basis of any evidence". The section goes on to enumerate, in particular, seven items of evidence which can serve to establish the existence of a "pattern of persistent criminal behaviour".

A plain reading of the section indicates that the focus of the enquiry is the determination of "likelihood" and not whether some or all of the stated factors are present. It is also clear that the section does not purport to identify all relevant factors in making this determination, nor does it purport to set out a comprehensive list of the type of evidence which can serve to establish the existence of "a pattern of persistent criminal behaviour".

That of course does not make the section moot for vagueness. The legislation frames the debate in a very coherent manner by reference to stated criteria. It also allows for the consideration of any other factor relevant to the question as to whether a given offender is likely to again cause death or serious harm to another person. That is a legislative recognition that unidentified factors can be referred to in applying s. 132 and as relevance is the statutory precondition to the consideration of any such factor, the section cannot be said to be unconstitutional [sic] vague. [My emphasis.]

[40]      What Nadon J., and Noël J.A. before him, decided was simply that the list of "relevant factors" in s. 132(1) was not exhaustive, that this list was drawn up only to provide examples of what the Board had to consider and that the Board's function was to weigh the factors, not add them together. These comments by Noël J. are especially relevant:

A plain reading of the section indicates that the focus of the enquiry is the determination of "likelihood" and not whether some or all of the stated factors are present.

[41]      Accordingly, when the Appeal Division decided that "the factors set out in section 132(1), paragraphs (a), (b), (c) and (d) of the Act are not cumulative, although the Board must address each of the factors mentioned in that section", it correctly described what s. 132(1) said and what the Board did.

[42]      Consequently, contrary to what was argued by the appellant, it may be that in a given case the Board will conclude that an offence is likely to be committed, even though for example in its opinion one or more or even a majority of the relevant factors are in the offender's favour.

[43]      This leads me to the appellant's final ground.

Fourth ground: patent unreasonableness of Board's decision

[44]      According to the appellant, the judge should have concluded that the Appeal Division erred in not finding the Board's decision to be patently unreasonable. Unlike the appellant, I concluded earlier that the standard is that of reasonableness, a standard more advantageous to the offender.

[45]      The Appeal Division found that the findings of fact made by the Board were based on the evidence. The appellant was unable, except by unsworn statements, to challenge any finding of fact whatever.

[46]      As regards the "relevant factors", the Board considered the factors mentioned in s. 132(1)(a), (b), (c) and (d) very carefully. It was entitled to see "persistent violent behaviour" in Mr. Cartier's actions since he was imprisoned (para. (a)). The psychological evidence filed was overwhelming for the appellant (para. (b)). The appellant's association with groups of bikers made it unlikely that the public and the appellant himself would be protected during his period of release (para. (d)). The only factor in the appellant's favour was the absence of reliable information that the appellant was planning to commit an offence (para. (c)). Counsel for the appellant did not maintain that other "relevant factors" were disregarded by the Board.

[47]      In the circumstances, it was reasonable for the Board to say that, after weighing all the factors it regarded as relevant, it was satisfied that the appellant would commit a violent offence causing serious harm to the victim. The Appeal Division did not err in refusing to intervene, nor did Nadon J.

[48]      The appeal should be allowed, but only to strike the words "with costs" from Nadon J.'s order.

[49]      The Attorney General of Canada asked that the costs be awarded to him. As this appeal succeeded on the question of costs and made it possible to clarify certain provisions of the Act in question, I do not feel costs should be awarded.

"I concur.

   Gilles Létourneau J.A."

"I concur.

    J.D. Denis Pelletier J.A."

Certified true translation

Suzanne M. Gauthier, C. Tr., LL.L.

                                                    FEDERAL COURT OF CANADA

                                                                 APPEAL DIVISION

                                                          SOLICITORS OF RECORD

FILE:                                                                               A-462-01

STYLE OF CAUSE:                                                     RÉMY CARTIER v. AGC

PLACE OF HEARING:                                                Montréal, Quebec

DATE OF HEARING:                                                   September 16, 2002

REASONS FOR JUDGMENT:                                  Décary J.A.

CONCURRED IN BY:                                                 Létourneau J.A.

Pelletier J.A.

DATE OF REASONS:                                                  October 10, 2002

APPEARANCES:

Daniel Royer                                                                      FOR THE APPELLANT

Nadia Hudon                                                                      FOR THE RESPONDENT

SOLICITORS OF RECORD:

Daniel Royer                                                                      FOR THE APPELLANT

Nadia Hudon                                                                      FOR THE RESPONDENT