Federal Court Decisions

Date: 20030303

Docket: T-1833-00

Neutral citation: 2003 FCT 268

Vancouver, British Columbia, this 3^rd day of March, 2003

PRESENT:      THE HONOURABLE MR. JUSTICE JOHN A. O'KEEFE

BETWEEN:

                                                                 BLAINE TANNER

                                                                                                                                                       Applicant

                                                                              - and -

                                            THE ATTORNEY GENERAL OF CANADA

                                                                                                                                                   Respondent

                                               REASONS FOR ORDER AND ORDER

O'KEEFE J.

[1]                 This is an application for judicial review of the decision of the National Parole Board dated August 21, 2000, wherein the pardon granted to the applicant by the National Parole Board on June 18, 1999 was revoked.

[2]                 The applicant requests that the decision of the National Parole Board, dated August 21, 2000, be set aside, and his pardon be restored.

Background

[3]                 The applicant, Blaine Tanner, is an individual who applied for a pardon for previous convictions.

[4]                 On January 9, 1975, the applicant was convicted for break, enter and theft. On February 1, 1988, the applicant was convicted for making a false statement. Both are offences contrary to the provisions of the Criminal Code of Canada, R.S.C. 1985, c. C-46.

[5]                 On September 24, 1993, the applicant was convicted of a summary offence under subsection 239.(1) of the Income Tax Act, R.S.C. 1985 (5th Supp.), c. 1, and sentenced on March 1, 1994.    The sentence included a fine in the amount of $100,000. The fine was paid by the applicant on April 14, 2000.

[6]                 In August 1997, the applicant decided to apply for a pardon. He obtained a package from the local post office, which contained the necessary materials to make the application.

[7]                 The applicant completed and submitted to the Royal Canadian Mounted Police ("RCMP") the National Parole Board's Request for Criminal Record.    The applicant received a copy of his criminal record, by letter, on September 5, 1997. Entitled "Criminal Convictions Conditional and Absolute Discharges and Related Information", the record contains two entries, recording the applicant's convictions for his offences contrary to the provisions of the Criminal Code of Canada, supra: (1) the conviction for break, enter and theft on January 9, 1975; and (2) the conviction for making a false statement on February 1, 1988.

[8]                 The applicant filled out the application form and filed it on April 2, 1998. Part 11 of the form states:

A pardon is requested for the following conviction(s). You must list all offences for which you were convicted except those for which you have already been awarded a pardon that has not been revoked or ceased to have effect.

[9]                 Under Part 11 of the form, the applicant wrote "SEE LIST", "LIST ATTACHED".    He did not write in any of his specific convictions. The applicant made no reference to his conviction under the Income Tax Act, supra.

[10]            On June 18, 1999, the applicant was granted a pardon under the Criminal Records Act, R.S.C. 1985 (1st Supp), c. 12, by the National Parole Board. The pardon was granted in relation to the two offences for which the applicant was convicted on January 9, 1975 and February 1, 1988.

[11]            On April 4, 2000, the National Parole Board received information that the applicant had also been convicted under the Income Tax Act, supra at the time he submitted his request for a pardon.

[12]            By letter dated April 7, 2000, the applicant was advised that the National Parole Board proposed to revoke his pardon for the following reasons:

Mr. Tanner failed to disclose at the time of applying that he had an additional conviction and an unpaid fine. This made him ineligible to be considered. As this person therefore obtained his pardon under false pretenses, the Board proposes to revoke it.

The letter also informed the applicant of his right to make representations to the Board.

[13]            On August 4, 2000, the applicant and his counsel attended the offices of the National Parole Board. The applicant made representations to a member of the Board. He described the steps he had taken to complete his application for a pardon. He explained that he had not deliberately failed to disclose his conviction under the Income Tax Act, supra, but rather he had not understood that a conviction under the Income Tax Act, supra constituted the type of conviction for which one could seek a pardon or that it was relevant to an application for pardon for criminal convictions under the Criminal Records Act, supra. The applicant explained that at the time he made the application for his pardon, he did not understand that a conviction under the Income Tax Act, supra constituted a criminal conviction. The applicant further explained that his belief was reinforced by the documentation he received from the RCMP, which did not make any reference to his conviction under the Income Tax Act, supra.

[14]            By letter dated August 21, 2000, the National Parole Board advised the applicant of its decision to revoke his pardon in accordance with section 7 of the Criminal Records Act, supra. The following reasons were provided:

It is the decision of the Board to revoke the pardon that was granted June 17, 1999.    We have concluded that you knowingly concealed relevant information at the time you applied for a pardon, April 2, 1998. This information was that you had been convicted of a summary offence under section 239(1) of the Income Tax Act on September 24, 1993 and sentenced on March 1, 1994. As of the date of your pardon application you knowingly failed to disclose this information, as well as the fact that you had been fined $100.000 as part of that sentence, and had not paid that fine. Thus, when you applied for a pardon, you were not eligible to do so. We do note for the record that the fine was paid on April 14, 2000.

In arriving at this decision, the Board concluded that the directions provided in the application form that you used were clear. That is, you were to list all offences for which you were convicted except those for which you have already been awarded a pardon that has not been revoked or ceased to have effect. You did not do this, and the Board believes that this was a deliberate decision.

. . .

[15]            On October 2, 2000, the applicant filed an application for judicial review.

[16]            This is the judicial review of the National Parole Board's decision.

Applicant's Submissions

[17]            The applicant submits that a person who has been pardoned is deemed not to have been convicted so that any disqualifications or stigma resulting from those convictions cease to exist. The applicant submits that section 7.1 of the Criminal Records Act, supra, reflects that the nature of the power exercised by the National Parole Board is one of depriving an individual of the rights which proceed from a pardon.

[18]            The applicant submits that although in part discretionary, the power conferred on the National Parole Board to revoke a pardon can only be exercised in the circumstances set out in section 7 of the Criminal Records Act, supra.

[19]            The applicant submits that the National Parole Board erred in law and based its decision on erroneous findings of fact which it made in a perverse or capricious manner without regard to the material before it.

[20]            The applicant submits that the National Parole Board failed to properly consider the applicant's explanation for not including his conviction under the Income Tax Act, supra in his pardon application. The applicant submits that the National Parole Board arrived at the conclusion that the applicant knew the conviction under the Income Tax Act, supra, was a criminal conviction for the purpose of the application, and deliberately failed to disclose it, based simply on the Board's own view about the manner in which the applicant, a person who had never previously filled out a pardon application form, had completed the form.

[21]            The applicant submits that while the National Parole Board provided the applicant with an opportunity to be heard, it failed to consider the material which supported the applicant's belief, namely the documentation which the applicant received from the RCMP.

[22]            It is submitted that the applicant's explanation, supported by the documentation from the RCMP, provided a cogent basis to conclude that the applicant's failure to list his conviction under the Income Tax Act, supra was not a deliberate concealment, but reflected a genuine belief that it was simply not a criminal conviction.

[23]            The applicant submits that the fact he did not write the particulars of the convictions on the pardon application form, but rather just attached the RCMP record, cannot constitute evidence sufficient to establish that the applicant knowingly concealed relevant information.

[24]            The applicant also submits that the Board was in error in concluding that the applicant was not eligible to be considered for a pardon. The applicant submits that under section 4 of the Criminal Records Act, supra, when five years has elapsed after the expiration of any sentence, an application for a pardon may be made to the National Parole Board. The applicant submits that because his summary conviction under the Income Tax Act, supra occurred more than five years after his previous criminal conviction he was eligible to apply for a pardon in relation to his earlier criminal convictions.

Respondent's Submissions

[25]            The respondent submits that in National Bank of Greece Canada v. Bank of Montreal, [2001] 2 F.C. 288, the Federal Court of Appeal decided that the standard of review in judicial review cases should always be considered before the Court embarks on an examination of the decision of an administrative tribunal.

[26]            The respondent submits that the applicable standard of review of the decision of the National Parole Board is that of patent unreasonableness.    The respondent submits that this is the appropriate standard of review even in the absence of a privative clause in the Criminal Records Act, supra pertaining to the National Parole Board's decisions.

[27]            The respondent submits that the applicant has not met his burden of showing that the National Parole Board made an erroneous finding of fact in a perverse or capricious manner or without regard to the material before it.

[28]            The respondent submits that the National Parole Board's decision is well founded in fact and in law. The respondent submits that even if the standard of review was correctness, the National Parole Board's decision is well-founded.

[29]            The respondent submits that section 3 of the Criminal Records Act, supra is a very broad disposition, which is not limited only to offences committed under the Criminal Code, supra.

[30]            The respondent submits that the applicant's submission that by virtue of a pardon, the conviction ceases to exist is inaccurate. The respondent notes that in Smith v. Canada (Minister of Citizenship and Immigration), [1998] 3 F.C. 144 (T.D.) at paragraphs 15 and 20, MacKay J. stated:

. . . In this case, if the Act were intended to vacate the conviction in the sense that the conviction is deemed never to have existed, there would be no need for reference to specific effects of pardoned convictions, for all potential effects would be precluded if the conviction were erased from this historic record by a pardon. There would be no logical basis for revocation of a pardon and restoration of the record of conviction.

. . .

I conclude from these authorities that the Act cannot be said to erase the conviction in the sense that the conviction is deemed not to have existed. . . .

[31]            The respondent submits that the National Parole Board properly applied all relevant statutory provisions, particularly sections 7 and 7.2 of the Criminal Records Act, supra.

[32]            The respondent submits the National Parole Board duly considered the applicant's explanations and made a clear finding that the applicant knowingly concealed relevant information at the time that he applied for his pardon.

[33]            The respondent submits that credibility is a question of fact and is within the sole jurisdiction of the National Parole Board. The respondent submits that the Court cannot substitute its opinion for that made by the National Parole Board.

[34]            The respondent submits that if the applicant had disclosed his conviction under the Income Tax Act, supra and his unpaid fine when he applied for a pardon, it would have been a bar to obtaining a pardon because of subsection 4.(b) of the Criminal Records Act, supra. The respondent submits that this is because this offence also falls under the definition of an offence pursuant to section 3 of the Criminal Records Act, supra. As such, the respondent submits that the applicant's conviction under the Income Tax Act, supra and his unpaid fine would have been a bar to a pardon had it been disclosed.

[35]            The applicant submits that the National Parole Board's decision is well-founded in fact and in law and that the application for judicial review should be dismissed.

[36]            Issue

Did the National Parole Board commit a reviewable error in revoking the applicant's pardon?

   

Relevant Statutory Provisions and Regulations

[37]            The relevant sections of the Criminal Records Act, supra state as follows:

2.1 The Board has exclusive jurisdiction to grant or issue or refuse to grant or issue or to revoke a pardon.    2.2 (1) Applications for pardons referred to in subsection 4.1(1) shall be determined, and decisions whether to revoke pardons under section 7 shall be made, by a panel that consists of one member of the Board.    3. (1) A person who has been convicted of an offence under an Act of Parliament or a regulation made under an Act of Parliament may apply to the Board for a pardon in respect of that offence and a Canadian offender within the meaning of the Transfer of Offenders Act who has been transferred to Canada under that Act may apply to the Board for a pardon in respect of the offence of which the offender has been found guilty.    4. Before an application for a pardon may be considered, the following period must have elapsed after the expiration according to law of any sentence, including a sentence of imprisonment, a period of probation and the payment of any fine, imposed for an offence, namely,

2.1 La Commission a compétence exclusive en matière d'octroi, de délivrance, de refus et de révocation des réhabilitations. 2.2 (1) L'examen des demandes de réhabilitation pour les infractions visées au paragraphe 4.1(1) ainsi que des dossiers en vue d'une révocation de réhabilitation visée à l'article 7 est mené par un membre de la Commission. 3. (1) Toute personne condamnée pour une infraction à une loi fédérale ou à ses règlements peut présenter une demande de réhabilitation à la Commission à l'égard de cette infraction et un délinquant canadien - au sens de la Loi sur le transfèrement des délinquants - transféré au Canada par application de cette loi peut présenter une demande de réhabilitation à l'égard de l'infraction dont il a été déclaré coupable. 4. La période consécutive à l'expiration légale de la peine, notamment une peine d'emprisonnement, une période de probation ou le paiement d'une amende, pendant laquelle la demande de réhabilitation ne peut être examinée est de:

   

   

  

(2) The Board shall, before making its decision, consider any representations made to it within a reasonable time after the notification is given to a person pursuant to subsection (1). 7.2 A pardon granted or issued to a person ceases to have effect if (a) the person is subsequently convicted of (i) an indictable offence under an Act of Parliament or a regulation made under an Act of Parliament,    (ii) an offence under the Criminal Code, except subsection 255(1), or under the Controlled Drugs and Substances Act, the Firearms Act, Part III or IV of the Food and Drugs Act or the Narcotic Control Act, chapter N-1 of the Revised Statutes of Canada, 1985, that is punishable either on conviction on indictment or on summary conviction, or      (iii) a service offence referred to in subparagraph 4(a)(ii); or (b) the Board is convinced by new information that the person was not eligible for a pardon at the time it was granted or issued.

(2) Avant de rendre sa décision, la Commission examine les observations qui lui sont présentées dans un délai raisonnable suivant l'avis.    7.2 Les faits suivants entraînent la nullité de la réhabilitation: a) le réhabilité est condamné:    (i) soit pour une infraction à une loi fédérale ou à ses règlements punissable sur déclaration de culpabilité par mise en accusation, (ii) soit pour une infraction - punissable sur déclaration de culpabilité par mise en accusation ou par procédure sommaire - au Code criminel, à l'exception de l'infraction prévue au paragraphe 255(1) de cette loi, à la Loi réglementant certaines drogues et autres substances, à la Loi sur les armes à feu, aux parties III ou IV de la Loi sur les aliments et drogues ou à la Loi sur les stupéfiants, chapitre N-1 des Lois révisées du Canada (1985), (iii) une infraction d'ordre militaire visée à l'alinéa 4a); b) la Commission est convaincue, à la lumière de renseignements nouveaux, que le réhabilité n'était pas admissible à la réhabilitation à la date à laquelle elle lui a été octroyée ou délivrée.

     

Analysis and Decison

[38]            Issue

Did the National Parole Board commit a reviewable error in revoking the applicant's pardon?

It is not in dispute that the applicant did not include in his application form his conviction under subsection 239.(1) of the Income Tax Act, supra on September 24, 1993 for which he was sentenced to pay a fine of $100,000 on March 1, 1994. This offence is a summary conviction offence.

[39]            Once a pardon has been granted, section 7 of the Criminal Records Act, supra provides for certain circumstances under which a pardon can be revoked. For ease of reference I will reproduce section 7:

7. A pardon may be revoked by the Board    (a) if the person to whom it is granted or issued is subsequently convicted of an offence punishable on summary conviction under an Act of Parliament or a regulation made under an Act of Parliament; (b) on evidence establishing to the satisfaction of the Board that the person to whom it was granted or issued is no longer of good conduct; or

7. La Commission peut révoquer la réhabilitation dans l'un ou l'autre des cas suivants: a) le réhabilité est condamné pour une nouvelle infraction à une loi fédérale ou à ses règlements punissable sur déclaration de culpabilité par procédure sommaire;    b) il existe des preuves convaincantes, selon elle, du fait que le réhabilité a cessé de bien se conduire;

    

[40]            The revocation in this case was based on subsection 7.(c) of the Criminal Records Act, supra. The allegation was that the applicant knowingly failed to disclose the fact that he had been convicted of an offence under subsection 239.(1) of the Income Tax Act, supra and that he had been fined $100,000 for this offence. The fine was not paid until April 14, 2000.

Standard of Review

[41]            The standard of review to be applied in this case to a finding of fact is patent unreasonableness and to a finding of law is correctness. The standard of review to be applied to a finding of mixed fact and law is reasonableness simpliciter. The respondent submitted that the standard of review to be applied in this case was patent unreasonableness. The applicant did not appear to take exception to this standard.

[42]            The National Parole Board has not been granted a general power to revoke pardons. Rather, the National Parole Board has jurisdiction to revoke pardons in the circumstances listed in section 7 of the Criminal Records Act, supra.

[43]            In the present case, the National Parole Board revoked the applicant's pardon pursuant to subsection 7.(c) of the Criminal Records Act, supra. In its reasons, the National Parole Board stated:

It is the decision of the Board to revoke the pardon that was granted on June 17, 1999. We have concluded that you knowingly concealed relevant information at the time you applied for a pardon, April 2, 1998. This information was that you had been convicted of a summary offence under Section 239 (1) of the Income Tax Act on September 24, 1993 and sentenced on March 1, 1994. As of the date of your pardon application you knowingly failed to disclose this information, as well as the fact that you had been fined $100.000 as a part of that sentence, and had not paid that fine. Thus, when you applied for a Pardon you were not eligible to do so. We do note for the record that the fine was paid on April 14, 2000.

In arriving at this decision the Board concluded that the directions provided in the application form that you used were clear. That is, you were to list all offences for which you were convicted except those for which you have already been awarded a pardon that has not been revoked or ceased to have effect. You did not do this, and the Board believes that this was a deliberate decision.

[44]            It is clear from the wording of subsection 7.(c) that the applicant must have "knowingly made a false or descriptive statement in relation to the application for a pardon, or knowingly concealed some material particular in relation to that application". The allegedly concealed relevant information in this case was the income tax conviction and fine. Parliament chose to grant jurisdiction to the National Parole Board under subsection 7.(c) to revoke pardons if an applicant "knowingly concealed some material particular in relation to the application." Parliament did not state revocation could occur if an applicant "concealed", but instead chose the words "knowingly concealed". Hence the evidence before the National Parole Board must be analysed to determine whether it establishes that the applicant "knowingly" concealed material information.

[45]            Paragraph 12 of the applicant's affidavit reads:

That during the course of the interview with the adjudicator, the adjudicator conceded that there were two possible explanations for not including the tax evasion conviction on the list which he termed 'his explanation' and 'my explanation'. I understood 'my explanation' was that I had not included a summary conviction income tax evasion conviction as I had not believed it to be the subject of a pardon that should be listed while 'his explanation' was that I had done so intentionally to deceive the National Parole Board.

The record does not show that the applicant was cross-examined on his affidavit.

[46]            The applicant stated that when he applied for his pardon, he requested and received from the RCMP, the details of his criminal convictions, conditional and absolute discharges and related information. This list did not contain his Income Tax Act, supra conviction.

[47]            The applicant did not believe that the conviction under the Income Tax Act, supra was a criminal conviction for which a pardon applied. He further stated that the absence of the conviction on the RCMP list confirmed his belief.

[48]            The applicant, in his affidavit at paragraph 15, stated:

". . . the adjudicator indicated verbally that he had drawn an adverse inference from the fact that where the application had 'requested' a list of offences, I had filled in 'see list attached' in reference to the record of criminal convictions as provided by the RCMP while the adjudicator observed that 'most people' filled that list in [b]y hand.

I have looked at the list, the space provided on the application form and I have considered that the form states "Attach list if necessary". It is my view that there is no basis to draw a negative inference against the applicant for attaching the list of his convictions provided to him by the RCMP.

[49]            MacKay J.of this Court discussed the significance of the use of the word "knowingly" in Canada (Minister of Citizenship & Immigration) v. Odynsky, (2001) Imm.L.R. (3d) 3 at page 54 (F.C.T.D.):

"Knowingly," as applying to "concealing," means "in a knowing manner, with knowledge, consciously, intentionally" to conceal. In Canada (Minister of Multiculturalism & Citizenship) v. Minhas, then Associate Chief Justice Jerome, speaking of the phrase "false representation or fraud or knowingly concealing material circumstances," in subs. 10(1), said:

In order to succeed, the Minister must do more than merely demonstrate that the respondent has committed a technical transgression of the Act. The words used in subs. 10(1) do not impute an offence requiring the full criminal standard of proof "beyond a reasonable doubt", but rather have the effect of saving innocent misrepresentations from the severe penalty of revocation of citizenship. An innocent statement or representation, although false and misleading, is not sufficient to invoke or justify such a penalty. There is a further element of proof required, relating to the respondent's state of mind, and the onus of that proof rests with the Minister. What is required, therefore, is some evidence that the respondent misrepresented pertinent facts with the intention to deceive and to obtain his citizenship on the basis of those false representations.

In sum, it is my opinion that the words "knowingly concealing material circumstances" used in ss. 10 and 18 require that the Court must find on evidence, and/or reasonable inference from the evidence, that the person concerned concealed circumstances material to the decision, whether he knew or did not know that they were material, with the intent of misleading the decision-maker.

I agree with the observations of MacKay J.

[50]            There is no doubt that an adjudicator can make inferences, but there must be evidence from which to draw such inferences. As stated earlier, there was no basis to draw the inference that the applicant had intentionally deceived the National Parole Board. The evidence includes: (1) the statement of the adjudicator that there were two possible explanations for not including the Income Tax Act, supra conviction; the applicant's explanation and the adjudicator's explanation; and (2) the explanation of the applicant that he did not believe that the Income Tax Act , supra conviction required a pardon and that this belief was reenforced when it was not included in the RCMP's list of "Criminal Convictions Conditional and Absolute Discharges and Related Information".

[51]            Based on the evidence before me, I am not satisfied that the applicant knowingly concealed the fact that he had a conviction under the Income Tax Act, supra and had an outstanding fine. There was no evidence on which the Board could base this conclusion. The Board therefore made a reviewable error.

[52]            Accordingly, I would allow the application for judicial review and set aside the decision of the National Parole Board dated August 21, 2000, which revoked the pardon granted to the applicant by the National Parole Board on June 18, 1999. The effect of this would be to leave the pardon granted in place.

  

ORDER

[53]            IT IS ORDERED that the application for judicial review is allowed and the decision of the National Parole Board dated August 21, 2000, which revoked the pardon granted to the applicant by the National Parole Board on June 18, 1999 be set aside. The effect of this would be to leave the pardon granted in place.

(Sgd.) "John. A. O'Keefe"

J.F.C.C.

Vancouver, B.C.

March 3, 2003

                      

                          FEDERAL COURT OF CANADA

                                       TRIAL DIVISION

    NAMES OF COUNSEL AND SOLICITORS OF RECORD

  

DOCKET:                   T-1833-00

STYLE OF CAUSE: BLAINE TANNER

- and -

ATTORNEY GENERAL OF CANADA

                                                         

PLACE OF HEARING:                                   Toronto, Ontario

DATE OF HEARING:                                     Tuesday, September 24, 2002

REASONS FOR ORDER AND ORDER OF O'KEEFE J.

DATED:                      Monday, March 3, 2003

APPEARANCES:

Mr. Brian Greenspan

FOR APPLICANT

Ms. Charleen H. Brenzall

FOR RESPONDENT

SOLICITORS OF RECORD:

Greenspan Humphrey Lavine

15 Bedford Road

Toronto, Ontario

M5R 2J7                        

FOR APPLICANT

Morris Rosenberg, Q.C.

Deputy Attorney General of Canada

FOR RESPONDENT