Docket: T-1977-16
Citation:
2017 FC 914
Toronto, Ontario, October 13, 2017
PRESENT: The
Honourable Mr. Justice Campbell
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BETWEEN:
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INTHUNATHAN
NADESU
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Applicant
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and
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THE ATTORNEY
GENERAL OF CANADA
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Respondent
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JUDGMENT AND REASONS
[1]
By reasons dated October 10, 2016 the Parole
Board of Canada (Board) denied the Applicant’s request for a pardon in relation
to convictions he received between 1997 and 2004. The issue for determination
is whether the decision was made in error of law.
[2]
It is agreed that the provision of the Criminal
Records Act, R.S.C. 1985, c. C-47 (CRA) that the Board was required
to apply at the time the decision was rendered reads as follows:
Pardon
4.1 (1) The Board may grant a pardon for an
offence if the Board is satisfied that
(a) the applicant, during the applicable
period referred to in section 4, has been of good conduct and has not been
convicted of an offence under an Act of Parliament; and
(b) in the case of an offence referred to in
paragraph 4(a) granting the pardon at that time would provide a measurable
benefit to the applicant, would sustain his or her rehabilitation in society as
a law-abiding citizen and would not bring the administration of justice into
disrepute.
Onus on applicant
(2) In the case of an offence referred to in
paragraph 4(a), the applicant has the onus of satisfying the Board that the
pardon would provide a measurable benefit to the applicant and would sustain
his or her rehabilitation in society as a law-abiding citizen.
[3]
For clarification, the mention in s. 4.1(1)(b)
of “paragraph 4(a)” refers to time limits which
must pass for a particular offence before an application for a pardon can be
commenced. In the present case, it is agreed that the Applicant’s application for
a pardon conformed to the provision.
[4]
It is also agreed that a sequential approach is
required in the application of s. 4.1(1):
With respect to the two-part conjunctive
test in the CRA, the Applicant must first meet the initial criterion set
out in paragraph 4.1(1)(a) which is that they be of “good conduct” before
proceeding to [the] next set of criteria included in paragraph 4.1(1)(b).
(Respondent’s Memorandum of Fact and Law,
para. 85)
[5]
Therefore, s. 4.1 requires that the Board make
five positive findings in the following order before a pardon can be granted:
good conduct since the time of the convictions under consideration for pardon;
no convictions since the time of the convictions under consideration for
pardon; measurable benefit to the Applicant; sustaining rehabilitation for the
Applicant, and by granting the pardon does not bring the administration of
justice into disrepute. Thus, on this interpretation, if the evidence before
the Board results in a sustainable finding that an Applicant has not been of
good conduct, the analysis stops there. This was the case in the decision under
review.
[6]
On initial consideration of the Applicant’s
request for a pardon, the Board came to the following preliminary conclusion:
In March 2016 the Board proposed to deny
your request for a pardon. The Board considered information suggesting that
you may not meet the criterion of good conduct. The Board considered that
an immigration removal order was issued against you in December, 2004. You had
twice failed to appear for a pre-removal order interview. In May 2005 you were
arrested and investigated for attempted murder but charged with assault with a weapon.
At that time you were considered to have been a fugitive hiding from police
since July, 2004. On June 17, 2015 charges of possess / use credit card
obtained by offence, unauthorized use of credit card data, and fraud under
$5000 were withdrawn. The charges related to an incident in 2014.
The Board also considered that your criminal
history spans over seven years, and includes many convictions and withdrawn
charges of a serious and violent nature that included the use of weapons,
intimidation, threats and violence. Based on that information, including your
conduct since 2004, the Board was of the view that granting a pardon in your
case may bring the. administration of justice into disrepute.
[Emphasis added]
(Decision, paras. 3 and 4)
[7]
The Board provided the Applicant with an
opportunity to respond before reaching a final decision, and made the following
findings with respect to the Applicant’s submission:
In response, you provided lengthy
submissions and documents. These include descriptions of the background factors
that contributed to your criminality, evidence of a positive, productive
lifestyle and a recent psycho-social assessment expressing the opinion that you
are a reformed and changed man. In a sworn affidavit you explained that the
2014 charges were withdrawn in 2015 because store employees confirmed it was
not you who had used a fraudulent card to purchase items. Your explanation was
not consistent with police information, or the Board's investigation. According
to the relevant police report, the card you provided did not match the information
on your invoice and the card was fraudulent. Crown Counsel advised an
investigating officer for the Board that the charges were withdrawn because you
and your brother made significant donations to two charitable organizations. You
maintained you are innocent of all charges since your last conviction.
(Decision, para. 6)
[8]
In fairness, the Board asked for a further
submission from the Applicant which was received:
Through your lawyer you have responded that
your prior explanation was an innocent error. In your most recent affidavit you
explain that your lawyer at the time told you that the identifications of the
store employees were weak and that the Crown was willing to drop the charges if
you and your brother made significant charitable donations. You indicate you
understand that your previous statement was not a full reflection of the
events. You claim you misspoke in absolute good faith, that you failed to
provide full and clear detail regarding the events and that you are sorry. You
provided official documentation consistent with the Board's information
including proof of the donation you made. You claim you had no intention to
mislead the Board.
(Decision, para. 8)
[9]
In the result, the Board reached a final
conclusion:
Your written representations do not satisfy the
Board that you meet the criteria for a pardon. The Board finds the information
from police and crown to be reliable and persuasive. There is reliable and
persuasive information that you have been involved in criminal activity as
recently as 2014. Furthermore, you gave false and misleading information in a
sworn affidavit with respect to the reason those charges were withdrawn. The
Board concludes you do not meet the conduct criterion for a pardon.
Furthermore, having considered your very serious criminal history that included
weapons and violence, together with your conduct since your last conviction and
willingness to provide false and misleading information in an attempt to obtain
a pardon, the Board concludes that granting you a pardon at this time risks
bringing the administration of justice into disrepute.
The Board denies your request for a pardon.
[Emphasis added]
(Decision, paras. 9 and 10)
[10]
In challenging the Board’s decision to deny the
Applicant’s request, Counsel for the Applicant does not contest the accuracy of
the evidence upon which the Board decided. Counsel for the Applicant argues
that the decision under review was made in reviewable error of law:
The Applicant submits that the Member [who
delivered the decision on behalf of the Board] erred in reaching the conclusion
that [the Applicant] was not of good conduct by failing to consider the
totality of the evidence. Moreover, the Member erred by not assessing relevant
mitigating factors against the concern of bringing the administration of
justice in disrepute. The Applicant submits that as a result of the
aforementioned errors, the Member was unable to properly balance the factors
required to assess whether the Applicant was deserving of a pardon. Thus, the
decision is unreasonable.
[…]
It is submitted that it was incumbent on the
Member to properly consider and analyze the evidence regarding the good conduct
and the repute of the administration of justice globally once she embarked on
the substantive merits of the Applicant's application. Instead, it appears the
Member made a finding based solely on negative or aggravating factors. In doing
so, she wholly overlooked all other evidence tendered pertaining to the
Applicant's rehabilitation and pro-social lifestyle. This, it is submitted, is
precisely the type of scenario contemplated and addressed in Cepeda-Gutierrez
v Canada (1998), 157 F.T.R. at para. 27.
(Applicants Memorandum of Argument, paras. 14
and 32)
[11]
In the decision, the Board acknowledged the
Applicant’s efforts to become a law-abiding person:
In response, you provided lengthy
submissions and documents. These include descriptions of the background factors
that contributed to your criminality, evidence of a positive, productive
lifestyle and a recent psycho-social assessment expressing the opinion that you
are a reformed and changed man.
(Decision, para. 6)
[12]
Counsel for the Applicant argues that the
positive evidence on the record was required to be taken into consideration in
reaching the conduct finding. I cannot agree with this argument. It is clear
that the Board’s “good conduct” expectation was
exclusively directed towards the Applicant and criminality, and, in this
respect, the Applicant failed to meet the very important initial criterion set
out in paragraph 4.1(1)(a). As a result, the Board’s finding on conduct foreclosed
the opportunity to consider the positive evidence as a feature of the “measurable benefit” and “sustaining
rehabilitation” criteria of s. 4.1(1)(b).
[13]
In conclusion, the Board found that, because the
Applicant did not meet the conduct criterion for a pardon, the pardon could not
be granted because, to do so, would bring the administration of justice into
disrepute. I find that the Board was correct in its findings of law, and, as a
result, I find that the decision under review is reasonable.
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