A-427-04
2005 FCA 132
The Attorney General of Canada (Appellant)
v.
Michele Coscia (Respondent)
Indexed as: Coscia v. Canada (Attorney General) (F.C.A.)
Federal Court of Appeal, Noël, Sexton, and Evans JJ.A. --Toronto, March 10; Ottawa, April 14, 2005.
Parole -- Appeal from Federal Court decision overturning decision of Appeal Division, National Parole Board (Appeal Division) upholding denial of parole by National Parole Board (Board) under Corrections and Conditional Release Act (CCRA), s. 102 -- Respondent serving sentence for multiple convictions, predominantly drug-related -- Declared to be danger to public, ordered deported -- Completion of several programs during incarceration but behaviour worsening -- Board questioning respondent's ties with organized crime at hearing -- Partially relying on respondent's evasiveness in denying parole -- Federal Court finding Board, Appeal Division committing error in denying parole because of respondent's involvement in organized crime; also committing breach of procedural fairness by using ambiguous terms in examining respondent and in drawing negative inferences from respondent's evasiveness in assessment of risk -- Under CCRA, s. 125(a)(1)(vi), inmate not eligible for early parole if inmate convicted of criminal organization offence under Criminal Code -- Organized criminal involvement also leading to inmate's identification under Commissioner's Directive 568-3 (Directive) as member of criminal organization -- Majority (Evans J.A. dissenting) holding applications Judge's conclusion Board's finding respondent implicitly or indirectly member of organized crime flawed -- Applying standard of correctness, applications Judge properly held Board committed breach of procedural fairness by insisting on questions having double meaning, without appreciating or understanding difficult position in which questions put respondent -- While entitled to inquire into respondent's relationships with other criminals or like-minded persons, Board should have avoided use of terms which could have resulted in admission criminal offence committed with respect to which no conviction obtained -- Boarding failing to hear respondent's responses on issue of criminal involvement -- Breach compounded when Board drew negative inference from respondent's denial of involvement with "mafia" and criminal others.
This was an appeal from a Federal Court decision overturning the decision of the Appeal Division of the National Parole Board (Appeal Division), which upheld a decision of the National Parole Board (Board) denying the respondent parole under section 102 of the Corrections and Conditional Release Act (CCRA). The respondent is currently serving a sentence after having been convicted of several serious offences involving mainly drugs, weapons and money laundering. A previous release on day parole was suspended as a result of his uttering death threats to his ex-spouse. In 1996 the respondent was ordered deported to Italy by the Department of Citizenship and Immigration and declared a danger to the public. During his incarceration, the respondent completed a number of programs but they were not successful and his institutional behaviour worsened. His application for parole was heard by the Board, which insisted on pursuing a line of questions involving the respondent's ties with organized crime. One of the numerous grounds the Board relied on in refusing the respondent's early release was the respondent's evasive answers regarding his involvement with organized crime and the "mafia". The respondent appealed the decision to the Appeal Division alleging, among other things, that the Board had improperly attempted to obtain an admission that he was a member of a criminal organization but the Appeal Division denied his appeal. On judicial review, the Federal Court found that the Board's and Appeal Division's conclusion that the respondent was involved with "traditional organized crime" could not be reached without a Criminal Code conviction; and that the Board had committed a breach of procedural fairness when examining the respondent by using terms that had more than one meaning and by drawing from the respondent's lack of responsiveness a negative inference in its assessment of risk.
Held (Evans J.A. dissenting), the appeal should be dismissed.
Per Noël J.A. (Sexton J.A. concurring): The purpose, principles and criteria that guide the Board in exercising its jurisdiction regarding conditional release are set out in sections 100, 101, and 102 of the CCRA. Also, under subparagraph 125(1)(a)(vi), an inmate is not eligible for early parole if the inmate has been convicted of a criminal organization offence under the Criminal Code. Commissioner's Directive 568-3 (Directive) provides a special procedure for identifying an inmate as a member of a "criminal organization" as defined and attaches a negative consequence to that designation, namely, that the offender will be considered a significant risk. The applications Judge's conclusion that the Board's finding that the respondent was implicitly or indirectly a member of organized crime and was denied early parole on this basis, was flawed. Neither the record nor the Board's decision supported the finding that parole was denied due to his involvement with organized crime. The Board was concerned about the respondent's failure to accept responsibility for his crimes and the line of questions was directed to the respondent's perception of his criminal activity.
But applying the standard of correctness, the applications Judge properly held that the Board committed a breach of procedural fairness by insisting on questions that had a double meaning, without appreciating or understanding the difficult position in which they put the respondent. If one admits to being a member of or participating in a criminal organization, one is exposed both to a Criminal Code conviction and to being found to be a member of a criminal organization pursuant to the Directive. The Board had no power to grant immunity in that regard and did not purport to do so.
Assuming that the applicant was or is a member of a criminal organization, yet has never been so found under the Criminal Code or under the Directive, the Board's line of questions placed the respondent in the very difficult position of responding to the satisfaction of the Board without providing a recorded admission that he was or is a member of or a participant in a criminal organization. While it was open to the Board to inquire into the respondent's relationships with other criminals who conspired with him or like-minded persons, it should have avoided the use of terms which, if acknowledged, could have resulted in an admission that a criminal offence had been committed with respect to which no conviction had been obtained, or should have at least been mindful of the difficulty its choice of words could pose. The Board could have explored all aspects of the respondent's prior convictions and ongoing relations without using ambiguous terms or having any appreciation for the difficulty they created for the respondent. The Board did not hear the respondent's responses with respect to that particular line of questioning. This breach was compounded when the Board drew a negative inference from the respondent's denial of his involvement with the "mafia" and criminal others.
Per Evans J.A. (dissenting): The Board did not breach the duty of fairness in pressing the respondent on the organized nature of the crimes of which he had been convicted or commit a reviewable error in finding that he was evasive in his answers. No inmate has a right to be granted parole. Under paragraph 107(1)(a) of the CCRA, parole is granted in the exercise of the Board's "exclusive jurisdiction and absolute discretion". This unusually broad grant of statutory power is a recognition by Parliament of the Board's extremely important and delicate responsibilities, as is the statutory limitation on the Appeal Division's jurisdiction to reverse for error or law. The Board's paramount responsibility is to protect society from crime on the basis of a fair and understandable process. It should not be discouraged from asking probing questions relevant to its assessment of risk to re-offend, and its reasons should not be subject to overly close scrutiny. Because of its expertise, the Board's assessment of that risk warrants the utmost deference. Therefore, to avoid jeopardizing the Board's ability to discharge its statutory mandate, the Court should only intervene if an unsuccessful applicant for parole clearly establishes that the Board breached the duty of fairness, or its decision was either erroneous in law, based on a finding of fact unsupported by the evidence before it, or otherwise patently unreasonable.
The standard of review in federal administrative law can only be determined on the basis of a pragmatic and functional analysis of the statutory scheme, the relative expertise of the tribunal and the reviewing court, and the nature of the question in dispute. It is not determined by the provisions of the Federal Courts Act (Act) (paragraphs 18.1(4)(a),(b),(c)), which merely prescribe the grounds of review. Since the question in dispute was one of procedural fairness, the standard of review to apply was correctness and the Board's decision could be set aside under paragraph 18.1(4)(d) if the finding of evasiveness was both made in a perverse or capricious manner or without regard for the material before it and the Board's refusal of parole was based on it.
The Board's reasons did not expressly link its finding of evasiveness to the respondent's responses to the questions about his involvement in organized criminal activity. It merely stated that it found the respondent to be "significantly evasive in responding to some of the questions presented to him". The references to the respondent's evasiveness by the Appeal Division were equally non-specific. Based on the hearing's transcript, the respondent's responses to most of the Board's questions seemed evasive and inconsistent. Also, his record disclosed a history of inconsistency, evasiveness and unwillingness to assume responsibility for his role in committing serious criminal offences. When the Board's reasons were considered with the transcript, it was reasonable to conclude that, in making a finding of evasiveness, the Board probably took into account the respondent's answers to the questions about organized crime.
The Board's questions about the respondent's involvement in organized crime did not curtail his participatory rights by preventing him from putting his case to the Board and there was no allegation that the questions raised a reasonable apprehension of bias. In taking into account the respondent's responses to its questions about his involvement with organized crime, the Board was basing its decision on a finding of fact--his evasiveness--and did not do so in a perverse or capricious manner or without regard to the material before it. The Board had ample material before it, both written and oral, to justify a finding that the respondent was evasive, particularly since the finding was essentially one of credibility. Even if his answers to the Board's questions played a part in its finding of evasiveness, the finding could not be characterized as patently unreasonable as defined by paragraph 18.1(4)(d) of the Act. In view of the generally very mixed assessment of the respondent's progress and conduct by his case management team, whose report did not recommend that parole be granted, the Board's refusal was manifestly reasonable.
In order that the Board not erroneously characterize a justifiable hesitation on the part of an applicant as evasiveness, it should take care neither to leave applicants confused about what it is asking, nor put them in the position of admitting an offence of which they have not been convicted or of appearing to prevaricate.
statutes and regulations judicially
considered
Corrections and Conditional Release Act, S.C. 1992, c. 20, ss. 100, 101, 102 (as am. by S.C. 1995, c. 42, s. 27(F)), 107(1)(a) (as am. by S.C. 2000, c. 24, s. 36; 2004, c. 21, s. 40), 125(1)(a)(vi) (as am. by S.C. 1995, c. 42, s. 39; 1997, c. 17, s. 24(E); 1999, c. 5, s. 53), 126 (as am. by S.C. 1995, c. 42, s. 40), 127 (as am. idem, s. 41; 1999, c. 31, s. 66(E)), 132(1), 147(4).
| Criminal Code, R.S.C., 1985, c. C-46, s. 467.1(1) (as am. by S.C. 2001, c. 32, s. 27), (3) (as am. idem), 467.11 (as am. idem). |
| Federal Courts Act, R.S.C., 1985, c. F-7, ss. 1 (as am. by S.C. 2002, c. 8, s. 14), 18.1(4) (as enacted by S.C. 1990, c. 8, s. 5; 2002, c. 8, s. 27). |
cases judicially considered
distinguished:
De Luca v. Canada (Attorney General) (2003), 231 F.T.R. 8; 2003 FCT 261.
referred to:
Cartier v. Canada (Attorney General), [2003] 2 F.C. 317; (2002), 2 Admin. L.R. (4th) 247; 300 N.R. 362; 2002 FCA 384; Migneault v. Canada (Attorney General) (2003), 232 F.T.R. 47; 2003 FCT 245; Canadian Pasta Manufacturers' Assn. v. Aurora Importing & Distributing Ltd. (1997), 208 N.R. 329 (F.C.A.); Stelco Inc. v. British Steel Canada Inc., [2000] 3 F.C. 282 (C.A.); (2000), 20 Admin. L.R (3d) 159; 252 N.R. 364 (C.A.).
authors cited
Correctional Service Canada. Commissioner's Directive No. 568-3, "Identification and Management of Criminal Organizations", dated January 3, 2003.
APPEAL from a Federal Court decision ((2004), 257 F.T.R. 101; 2004 FC 1004) overturning the decision of the Appeal Division of the National Parole Board, which upheld a decision of the National Parole Board denying the respondent parole pursuant to section 102 of the Corrections and Conditional Release Act. Appeal dismissed (Evans J.A. dissenting).
appearances:
John Hill for appellant.
Sadian G. Campbell for respondent.
solicitors of record:
John Hill, Toronto, for appellant.
Deputy Attorney General of Canada for respondent.
The following are the reasons for judgment rendered in English by
[1]Noël J.A.: This is an appeal from a decision of Phelan J. of the Federal Court [(2004), 257 F.T.R. 101] in which he overturned the decision of the Appeal Division of the National Parole Board (the Appeal Division) which upheld a decision of the National Parole Board (the Board) denying the respondent parole pursuant to section 102 [as am. by S.C. 1995, c. 42, s. 27(F)] of the Corrections and Conditional Release Act, S.C. 1992, c. 20 (CCRA).
Facts
[2]The respondent is currently serving a sentence of 14 years and 8 months after having been convicted between September 8, 1995, and April 22, 1996, for: conspiracy to import and traffic of narcotic (13 years); sale of prohibited weapon (1 year consecutive); laundering proceeds of crime (5 years concurrent); and conspiracy to traffic (3 years concurrent) (Appeal Book, Vol. I "Assessment for Decision" dated June 11, 2003, page 184).
[3]The respondent had previously been released on day parole, but this parole was suspended on January 19, 2000, as a result of the respondent being charged with uttering death threats to his ex-spouse in regard to an incident on May 31, 1999, that took place while he was incarcerated. The respondent was subsequently convicted of this charge on March 14, 2000 (Appeal Book, Vol. I "Correctional Plan Progress Report" dated April 10, 2003, page 186).
[4]In 1996, the respondent was ordered deported by the Department of Citizenship and Immigration. In 2001, the Minister of Citizenship and Immigration declared the respondent to be a danger to the public. Accordingly, the respondent is to be deported to Italy (Appeal Book, Vol. I "Transcript of July 15, 2003 Board Hearing" pages 90, 92-93. Appeal Book, Vol. I "Correctional Plan Progress Report" dated April 10, 2003, page 175).
[5]During his incarceration, the respondent completed a number of programs. However, as of the time of his parole application, these programs had not been successful and the respondent's institutional behaviour was getting worse (Appeal Book, Vol. I "Correctional Plan Progress Report" dated April 10, 2003, pages 186-187).
[6]On July 15, 2003, the respondent's application for parole was heard by the National Parole Board. During that hearing, the Board insisted on pursuing a line of questions involving the respondent's ties with organized crime. The following exchange took place (A.B., Vol. 1, applicant's record, transcript of July 15, 2003 National Parole Board hearing, pages 103-105):
THE CHAIRPERSON: Well, it seems like you're splitting hairs, but meanwhile, you knew that you were involved with --
THE APPLICANT: Yes.
THE CHAIRPERSON: -- criminally minded others who engaged with organized criminals, organized crime?
THE APPLICANT: That's correct. Because I don't want to sound -- For the first five years in the system, I was never labelled as an organized crime person. I've been coming back from -- having-been released on the same day and being charged, or the charges that I was given parole, from that day on, my paper work has changed. . . 60. I became a person of organized crime, and it all started from that institution.
THE CHAIRPERSON: Well perhaps there's two different definitions of organized crime here. One is a legal definition that the judge imposes, and it shows up on your FPS sheet. We don't see that particular designation. But the conversation we've being [sic] having for the past ten minutes is about organized criminals operating on a very large scale. And to me, it's organized crime. And I'm not talking the legal definition of a judge, otherwise you probably wouldn't have been entitled to an APR, depending on what your sentence was.
MR. HILL [the respondent's lawyer]: I think the confusion is, I think he's interpreting organized crime as mafia. And he's always maintained that he's never been involved in that kind.
THE CHAIRPERSON: Well, we all know there's lots more people involved in organized crime than just the mafia. Now, whether your criminal friends with whom you involved yourself, who were criminally minded, as you chose to euphemistically put it, were the mafia or they were some other organized criminals is somewhat moot. It was organized crime on a large scale. It was large-scale drug dealing. It was large-scale money laundering. And there's a most disturbing element of a submachine gun that you were able to obtain from someone.
[7]In its long-form decision, the Board commented about the respondent's evasive answers with respect to his involvement with organized criminal activity and the "mafia" (A.B., Vol. II, page 420):
You continue to dispute your involvement in organized criminal activity insisting that you were not involved with the `Mafia'. It is clear that your involvement was with criminal others, who were well organized with the sole purpose of committing large-scale crime. Your evasiveness and failure to demonstrate insight continue to be major stumbling blocks in the Board's view towards successful risk management in any community. The ongoing suspicions around continued involvement with others connected to organized crime contribute to the above-noted impediments to release.
[8]This was one of numerous grounds on which the Board relied in refusing the respondent's early release.
[9]The respondent appealed the decision of the Board to its Appeal Division pursuant to subsection 147(4) of the CCRA, alleging, amongst other things, that the Board had improperly attempted to obtain an admission that he was a member of a criminal organization. In this regard, the respondent invoked the decision of the Federal Court Trial Division in De Luca v. Canada (Attorney General) (2003), 231 F.T.R. 8.
Decision of the Appeal Division
[10]The Appeal Division denied the appeal. It disposed of the argument based on De Luca, as follows (A.B., Vol. I, page 78):
You may not have been a member of organized crime in the legal sense, which was discussed at the hearing. But you were, and did admit to having been involved with criminally-minded people, in large-scale criminal activities of an international nature, consisting of high-level cocaine trafficking and money laundering. The De Luca case referred to by your assistant is distinguishable. Its application would come into play in the accelerated review procedure under sections 125 and 126 of the C.C.R.A., when an inmate had been refused release on the basis of his/her membership in an organized crime group, but where that inmate had not been convicted of a "criminal organization offence" under the Criminal Code.
[11]The respondent challenged the Appeal Division's decision by means of judicial review before the Federal Court.
Decision of the Federal Court
[12]Phelan J. allowed the application. He found that the respondent was denied parole because of his involvement with "Traditional Organized Crime" (paragraphs 6-7), a conclusion that could not be reached in the absence of a conviction under the Criminal Code [R.S.C., 1985, c. C-46] (De Luca).
[13]He went on to hold that the Board's consider-ation of the respondent's criminal history gave rise to a question of law, which was to be reviewed on a standard of correctness (paragraphs 10-11).
[14]According to the applications Judge, the Board and its Appeal Division effectively found the respondent to be, in fact, if not in law, a member of organized crime, and denied the respondent's early release on that account (paragraph 15 and paragraphs 17 to 19).
[15]The applications Judge also found that the Board had committed a breach of procedural fairness by using, in the course of its examination of the respondent, terms which had more than one meaning and by drawing from the respondent's lack of responsiveness a negative inference in its assessment of risk (paragraphs 26-33).
[16]The applications Judge went on to quash the decision of the Appeal Division and to order that a new parole hearing be held before a differently constituted Board.
Alleged errors in the decision under appeal
[17]Counsel for the appellant maintains that the applications Judge applied the wrong standard of review in reviewing the decision of the Appeal Division and misconstrued the basis upon which early parole was denied by the Board.
[18]Counsel relies on the decision of this Court in Cartier v. Canada (Attorney General), [2003] 2 F.C. 317, at paragraphs 7, 8 and 9 for the proposition that decisions of the Appeal Division on questions of law are to be reviewed on a standard of reasonableness. He adds that, properly understood, the issue before the applications Judge was one of fact, (i.e. whether the respondent was a risk to society), which stands to be reviewed on a standard of patent unreasonableness.
[19]Counsel submits that the Board did not set out to find that the respondent was a member of a criminal organization and did not exercise its discretion to deny the respondent's release on that basis alone (compare De Luca). The numerous other grounds highlighted by the Board in declining to grant early parole make that clear.
[20]Counsel adds that under subsection 132(1) of the CCRA, the Board must (i.e., "shall") take into account "any factor that is relevant in determining the likelihood of the commission of an offence". The line of questioning about the respondent's ties with his co-conspirators was highly relevant in this regard, and since the decision reached by the Board was reasonable, the Appeal Division had no grounds for intervention.
[21]With respect to the applications Judge's further conclusion that the Board breached the duty of fairness by its pursuit of questions relating to the respondent's ties with organized crime, counsel concedes that the Board could have made a better choice of words, but insists that the process was conducted in a procedurally fair manner.
Relevant statutory provisions
[22]The purpose, principles and criteria which guide the Board in the exercise of its jurisdiction with respect to conditional release are set out in sections 100, 101 and 102 of the CCRA:
100. The purpose of conditional release is to contribute to the maintenance of a just, peaceful and safe society by means of decisions on the timing and conditions of release that will best facilitate the rehabilitation of offenders and their reintegration into the community as law-abiding citizens.
101. The principles that shall guide the Board and the provincial parole boards in achieving the purpose of conditional release are
(a) that the protection of society be the paramount consideration in the determination of any case;
(b) that parole boards take into consideration all available information that is relevant to a case, including the stated reasons and recommendations of the sentencing judge, any other information from the trial or the sentencing hearing, information and assessments provided by correctional authorities, and information obtained from victims and the offender;
(c) that parole boards enhance their effectiveness and openness through the timely exchange of relevant information with other components of the criminal justice system and through communication of their policies and programs to offenders, victims and the general public;
(d) that parole boards make the least restrictive determination consistent with the protection of society;
(e) that parole boards adopt and be guided by appropriate policies and that their members be provided with the training necessary to implement those policies; and
(f) that offenders be provided with relevant information, reasons for decisions and access to the review of decisions in order to ensure a fair and understandable conditional release process.
102. The Board or a provincial parole board may grant parole to an offender if, in its opinion,
(a) the offender will not, by reoffending, present an undue risk to society before the expiration according to law of the sentence the offender is serving; and
(b) the release of the offender will contribute to the protection of society by facilitating the reintegration of the offender into society as a law-abiding citizen.
[23]The right to parole in so far as the present proceeding is concerned is governed by the following provisions [ss. 126 (as am. by S.C. 1995, c. 42, s. 40), 127 (as am. idem, s. 41; 1999, c. 31, s. 66(E))]:
126. (1) The Board shall review without a hearing, at or before the time prescribed by the regulations, the case of an offender referred to it pursuant to section 125.
(2) Notwithstanding section 102, if the Board is satisfied that there are no reasonable grounds to believe that the offender, if released, is likely to commit an offence involving violence before the expiration of the offender's sentence according to law, it shall direct that the offender be released on full parole.
(3) If the Board does not direct, pursuant to subsection (2), that the offender be released on full parole, it shall report its refusal to so direct, and its reasons, to the offender.
(4) The Board shall refer any refusal and reasons reported to the offender pursuant to subsection (3) to a panel of members other than those who reviewed the case under subsection (1), and the panel shall review the case at the time prescribed by the regulations.
(5) Notwithstanding section 102, if the panel reviewing a case pursuant to subsection (4) is satisfied as described in subsection (2), the panel shall direct that the offender be released on full parole.
(6) An offender who is not released on full parole pursuant to subsection (5) is entitled to subsequent reviews in accordance with subsection 123(5).
(7) In this section, "offence involving violence" means murder or any offence set out in Schedule I, but, in determining whether there are reasonable grounds to believe that an offender is likely to commit an offence involving violence, it is not necessary to determine whether the offender is likely to commit any particular offence.
(8) Where the parole of an offender released pursuant to this section is terminated or revoked, the offender is not entitled to another review pursuant to this section.
. . .
127. (1) Subject to any provision of this Act, an offender sentenced, committed or transferred to penitentiary is entitled to be released on the date determined in accordance with this section and to remain at large until the expiration of the sentence according to law.
(2) Subject to this section, the statutory release date of an offender sentenced before November 1, 1992 to imprisonment for one or more offences shall be determined by crediting against the sentence
(a) any remission, statutory or earned, standing to the offender's credit on that day; and
(b) the maximum remission that could have been earned on the balance of the sentence pursuant to the Penitentiary Act or the Prisons and Reformatories Act, as those Acts read immediately before that day.
(3) Subject to this section, the statutory release date of an offender sentenced on or after November 1, 1992 to imprisonment for one or more offences is the day on which the offender completes two thirds of the sentence.
(4) Subject to this section, the statutory release date of an offender sentenced before November 1, 1992 to imprisonment for one or more offences and sentenced on or after November 1, 1992 to imprisonment for one or more offences is the later of the dates determined in accordance with subsections (2) and (3).
(5) Subject to subsections 130(4) and (6), the statutory release date of an offender whose parole or statutory release has been revoked is the day on which the offender has served two thirds of the unexpired portion of the sentence after being recommitted to custody as a result of a suspension or a revocation under section 135.
(6) Where an offender receives a sentence to be served in a provincial correctional facility and fails to earn or forfeits any remission under the Prisons and Reformatories Act and is transferred to penitentiary, otherwise than pursuant to an agreement entered into under paragraph 16(1)(b), the offender is not entitled to be released until the day on which the offender has served
(a) the period of imprisonment that the offender would have been required to serve under this section if the offender had not failed to earn or had not forfeited the remission; and
(b) the period of imprisonment equal to the remission that the offender failed to earn or forfeited and that was not recredited under that Act.
(7) An offender sentenced, committed or transferred (otherwise than pursuant to an agreement entered into under subsection 16(1)) to penitentiary on or after August 1, 1970 who is released on statutory release is subject to supervision in accordance with this Act, but no other offender released under this section is subject to supervision.
[24]It is also useful to note that pursuant to subpara-graph 125(1)(a)(vi) [as am. by S.C. 1995, c. 42, s. 39; 1997, c. 17, s. 24(E); 1999, c. 5, s. 53] of the CCRA, an inmate is not eligible for early parole if he or she has been convicted of a criminal organization offence under the Criminal Code:
125. (1) This section and section 126 apply to an offender sentenced, committed or transferred to penitentiary for the first time, otherwise than pursuant to an agreement entered into under paragraph 16(1)(b), other than an offender
(a) serving a sentence for one of the following offences, namely,
. . .
(vi) a criminal organization offence within the meaning of section 2 of the Criminal Code, including an offence under subsection 82(2);
[25]In this respect, subsections 467.1(1) [as am. by S.C. 2001, c. 32, s. 27] and (3) [as am. idem] and section 467.11 [as am. idem] of the Criminal Code provide:
467.1 (1) The following definitions apply in this Act.
"criminal organization" means a group, however organized, that
(a) is composed of three or more persons in or outside Canada; and
(b) has as one of its main purposes or main activities the facilitation or commission of one or more serious offences that, if committed, would likely result in the direct or indirect receipt of a material benefit, including a financial benefit, by the group or by any of the persons who constitute the group.
It does not include a group of persons that forms randomly for the immediate commission of a single offence.
"serious offence" means an indictable offence under this or any other Act of Parliament for which the maximum punishment is imprisonment for five years or more, or another offence that is prescribed by regulation.
. . .
(3) In this section and in sections 467.11 to 467.13, committing an offence means being a party to it or counselling any person to be a party to it.
. . .
467.11 (1) Every person who, for the purpose of enhancing the ability of a criminal organization to facilitate or commit an indictable offence under this or any other Act of Parliament, knowingly, by act or omission, participates in or contributes to any activity of the criminal organization is guilty of an indictable offence and liable to imprisonment for a term not exceeding five years.
(2) In a prosecution for an offence under subsection (1), it is not necessary for the prosecutor to prove that
(a) the criminal organization actually facilitated or committed an indictable offence;
(b) the participation or contribution of the accused actually enhanced the ability of the criminal organization to facilitate or commit an indictable offence;
(c) the accused knew the specific nature of any indictable offence that may have been facilitated or committed by the criminal organization; or
(d) the accused knew the identity of any of the persons who constitute the criminal organization.
(3) In determining whether an accused participates in or contributes to any activity of a criminal organization, the Court may consider, among other factors, whether the accused
(a) uses a name, word, symbol or other representation that identifies, or is associated with, the criminal organization;
(b) frequently associates with any of the persons who constitute the criminal organization;
(c) receives any benefit from the criminal organization; or
(d) repeatedly engages in activities at the instruction of any of the persons who constitute the criminal organization.
[26]Also relevant to this appeal is Commissioner's Directive 568-3 ["Identification and Management of Criminal Organizations"] (the Directive) which provides a special procedure for identifying an inmate as a member of a "criminal organization" as defined and which attaches negative consequences to such a designation. The following paragraph is of particular significance:
19. Membership and association with a criminal organization shall be considered a significant risk factor when making any decision related to the offender.
Analysis and decision
[27]In my respectful view, the conclusion of the applications Judge that the Board found the respondent implicitly or indirectly to be a member of organized crime as defined in the Criminal Code, or under the Directive, and denied early parole by reason of this finding, is flawed.
[28]In reaching this conclusion, the applications Judge applied the wrong standard of review (see Cartier) and misconstrued the reasons invoked by the Board in support of its decision.
[29]In De Luca, the Board denied an inmate an accelerated parole review pursuant to subparagraph 125(1)(a)(vi) of the CCRA because the applicant was, in its view, a member of a criminal organization although there had been no conviction under the Criminal Code to that effect. The Federal Court Trial Division held that the decision of the Board was contrary to subparagraph 125(1)(a)(vi) which expressly contemplates a prior conviction pursuant to the Criminal Code before an applicant can be considered to be ineligible for accelerated release.
[30]No such issue arises here. Neither the record nor the decision of the Board supports the applications Judge's finding that the respondent was denied parole "due to his involvement with `Traditional Organized Crime'" (reasons, paragraphs 1 and 6). What the Board did take into account in denying parole, amongst numerous other factors, was his evasiveness in responding to questions, including questions relating to his involvement in organizing criminal activities.
[31]It is clear that the Board did not embark on this line of questions with the view of finding that the respondent was participating in activities of a criminal organization for the purpose of subsection 467.11(1) of the Criminal Code or was a member or associate of a criminal organization for the purpose of the Directive. The Board was, however, concerned about the respondent's failure to accept responsibility for his crimes, including those committed by others. The Board said so explicitly, and its line of questions was directed to the respondent's perception of his criminal activity, a matter which is at the core of the Board's mandate.
[32]During the hearing before us, counsel for the respondent did not attempt to support the applications Judge's conclusion on the first branch of his decision. Rather, counsel for the respondent rested his case on the applications Judge's conclusion that the Board's line of questioning resulted in a breach of procedural fairness. This is the issue to which I now turn.
[33]It is generally accepted that the question whether a breach of the duty of fairness has been committed is to be reviewed against a standard of correctness. Applying this standard, I am of the view that the applications Judge properly held that the Board committed a breach of procedural fairness by insisting on questions that had a double meaning, without appreciating or understanding the difficult position in which they put the respondent.
[34]In this respect, it is no justification for the Board to say that it was not concerned with the respondent being a member of organized crime in the legal sense. Accepting that the Board had no such concerns, it remains that if one admits to being a member of or participating in a criminal organization, one is exposed both to a Criminal Code conviction and to being found to be a member of a criminal organization pursuant to the Directive. The Board had no power to grant immunity in this regard and did not purport to do so.
[35]Assuming that the applicant was or is a member of a criminal organization, as the Board believed, and recognizing that he has never been so found, under the Criminal Code or pursuant to the Directive, the Board's line of questions placed him in the very difficult position of responding to the satisfaction of the Board without providing a recorded admission that he was or is a member of or a participant in a criminal organization. Both the respondent and his counsel attempted to draw this difficulty to the attention of the Board, but to no avail. The Board went on to find that the respondent's evasiveness in answering these questions was attributable to his failure to assume responsibility for his criminal behaviour.
[36]While it is open to the Board to inquire into the respondent's relationships with (criminal) others who conspired with him to commit the offences of which he was convicted (and indeed to inquire into any ongoing relation with like-minded persons), it should avoid the use of terms which, if acknowledged, can give rise to an admission that a criminal offence has been committed with respect to which no conviction has been obtained, or at least be mindful of the difficulty which its choice of words can pose.
[37]Counsel for the appellant, during the course of her very able presentation, acknowledged that the Board could inquire into the respondent's relationships with his co-conspirators and others without using terms such as "organized crime." Indeed, nothing prevented the Board from exploring all aspects of the respondent's prior convictions and ongoing relations without using ambiguous terms.
[38]In my view, the Board's insistence on using such terms without seeming to have any appreciation for the difficulty which they created for the respondent is fundamentally unfair and shows that the respondent was not heard by the Board in so far as his response to this particular line of questioning was concerned. This breach was compounded by the Board when it went on to draw a negative inference from the respondent's denial of his involvement with the "mafia" and criminal others (see paragraph 7 above).
[39]Phelan J. came to the correct conclusion when he held that the respondent was denied procedural fairness.
[40]For these reasons, I would dismiss the appeal, with costs.
Sexton J.A.: I agree.
* * *
The following are the reasons for judgment rendered in English by
Evans J.A. (dissenting):
Introduction
[41]I have had the benefit of reading the reasons of my colleague, Noël J.A. However, I regret that I am unable to agree. In my view, the Board did not breach the duty of fairness in pressing Michele Coscia on the organized nature of the crimes of which he had been convicted. Nor did the Board commit a reviewable error in finding that Mr. Coscia was evasive in his answers.
[42]Noël J.A. reasons that the Board interpreted as evasiveness, and as further evidence of his inability to take responsibility for his past, Mr. Coscia's denial of ever having been a member of the mafia or a similar gang, despite his subsequent concession that the crimes of which he had been found guilty were organized with others.
[43]In drawing this inference, my colleague concludes, the Board breached the duty of fairness because it did not hear what Mr. Coscia was trying to say: it failed to appreciate the untenable position in which its questions put him when it pressed him into conceding that the nature of his offences necessarily implicated him in organized criminal activity or organized crime. An admission by Mr. Coscia that his offences constituted organized criminal activity might form the basis of a charge under subsection 467.11(1) of the Criminal Code, R.S.C., 1985, c. C-34, his identification as a member or associate of a criminal organization pursuant to the Commissioner's Directive, or the refusal of parole, both now and in the future.
Powers and functions of the Board
[44]No inmate has a right to be granted parole. Parole is granted in the exercise of the Board's "exclusive jurisdiction and absolute discretion": Corrections and Conditional Release Act, S.C. 1992, c. 20 (CCRA), paragraph 107(1)(a) [as am. by S.C. 2000, c. 24, s. 36; 2004, c. 21, s. 40].
[45]This unusually broad grant of statutory power is a recognition by Parliament of the Board's extremely important and delicate responsibilities, as is the statutory limitation on the Appeal Division's jurisdiction to reverse for error of law (see Cartier v. Canada (Attorney General), [2003] 2 F.C. 317 (C.A.), at paragraphs 6-10). In particular, the Board is charged with finding the least restrictive determination that is consistent with its paramount responsibility, namely, protecting society from crime, on the basis of a process that is fair and understandable: see CCRA, section 101.
[46]The Court should approach with great caution its review of the Board's exercise of its broad discretion, lest it jeopardize the Board's ability to discharge its statutory mandate. Thus, the Board's reasons should not be subject to overly close scrutiny. Because of its expertise, its assessment of the risk that an applicant for parole will re-offend if released warrants the utmost deference: Migneault v. Canada (Attorney General) (2003), 232 F.T.R. 47 (F.C.T.D.), at paragraphs 14 and 19. Nor should the Board be discouraged from asking probing questions relevant to its risk assessment.
[47]Hence, the Court should only intervene if an unsuccessful applicant for parole clearly establishes that the Board breached the duty of fairness, or its decision was either erroneous in law, based on a finding of fact unsupported by the evidence before it, or otherwise patently unreasonable.
Standard of review
[48]Without expressly working his way through the elements of the pragmatic and functional test, the applications Judge concluded that the test indicated that correctness was the standard of review for determining whether the Board had erred in law as alleged. He said (at paragraph 11) that paragraphs 18.1(4)(a) [as enacted by S.C. 1990, c. 8, s. 5; 2002, c. 8, s. 27] (b) [as enacted by S.C. 1990, c. 8, s. 5; 2002, c. 8, s. 27] and (c) [as enacted by S.C. 1990, c. 8, s. 5; 2002, c. 8, s. 27] of the Federal Courts Act, R.S.C., 1985, c.F-7 [s. 1 (as am. idem, s. 14)], "confirm that the applicable standard is correctness."
[49]With respect, these provisions of the Federal Courts Act (unlike paragraph 18.1(4)(d) [as enacted by S.C. 1990, c. 8, s. 5; 2002, c. 8, s. 27]) merely prescribe the grounds of review; they do not speak to the standard of review for determining whether an applicant has established that a federal administrative tribunal has exceeded its jurisdiction, breached the duty of fairness or erred in law. As in jurisdictions where the grounds of review have not been codified, the standard of review in federal administrative law can only be determined on the basis of a pragmatic and functional analysis of the statutory scheme, the relative expertise of the tribunal and the reviewing court, and the nature of the question in dispute.
[50]However, since I agree with Noël J.A. that, to the extent that the Board erred, its error should not be characterized as an error of law for standard of review purposes, it is unnecessary to comment further on the applications Judge's standard of review selection.
[51]If, as Noël J.A. finds, the question in dispute is one of procedural fairness, the standard of review is correctness. Or if, as I maintain, what is being attacked is the Board's finding of evasiveness, the question is one of fact. On this basis, the Board's decision may be set aside under the Federal Courts Act, paragraph 18.1(4)(d), if the finding of evasiveness was both made in a perverse or capricious manner or without regard for the material before it, and the Board's refusal of parole was based on it. This statutory standard of review is equivalent to patent unreasonableness: Canadian Pasta Manufacturers' Assn. v. Aurora Importing & Distributing Ltd. (1997), 208 N.R. 329 (F.C.A.), at paragraphs 6-7.
Was the Board's finding of "evasiveness" based on the responses to its questions regarding organized crime?
[52]A decision may be set aside under paragraph 18.1(4)(d) only if it was based on a patently unreasonable finding of fact. Noël J.A. concludes that Mr. Coscia's responses to questions from the Board about his involvement with organized crime formed at least part of the basis of the Board's finding that Mr. Coscia was evasive and inconsistent.
[53]I would note, however, that the Board's reasons do not expressly link its finding of evasiveness to Mr. Coscia's responses to the questions about his involvement in organized criminal activity. The Board merely stated that it found Mr. Coscia to be "significantly evasive in responding to some of the questions presented to" him. The references to Mr. Coscia's "evasiveness" by the Appeal Division, which did not hold an oral hearing, are equally non-specific.
[54]Mr. Coscia's responses to most of the questions put to him by the Board appear from the transcript of the hearing to have been evasive and inconsistent, including: whether he wanted to live in Canada or Italy; whether he had engaged in the "exchange" of money rather than money laundering, the offence for which he was convicted; the circumstances in which he had acquired a submachine gun; whether he was in contact with his ex-wife; and his plans after release. In addition, the Board noted, Mr. Coscia's record disclosed a history of inconsistency, evasiveness and unwillingness to assume responsibility for his role in the commission of serious criminal offences.
[55]Nonetheless, the Board returned to Mr. Coscia's evasiveness after noting that he continued to dispute his involvement with the mafia, or a similar gang, while admitting that he was involved with other criminals who were well organized for the purpose of committing large-scale crime.
[56]On the basis of the Board's reasons, especially when considered together with the transcript of the hearing, it is reasonable to conclude that, in making a finding of evasiveness, the Board probably took into account Mr. Coscia's answers to the "organized crime" line of questioning.
Nature of any error committed by the Board
[57]I do not agree that the Board breached the duty of fairness by taking into account his responses to questions concerning his involvement in organized crime when it found that Mr. Coscia was evasive. There is no indication in the record that the Board's questions curtailed Mr. Coscia's participatory rights by preventing him from putting his case to the Board, and there is no allegation that the questions raised a reasonable apprehension of bias.
[58]Rather, Noël J.A.'s concern is that the Board did not appreciate that Mr. Coscia was evasive in this part of his testimony because he was anxious not to admit to a Criminal Code offence or to bring himself within the Commissioner's Directive. In other words, in taking into account Mr. Coscia's responses to its questions about his involvement with organized crime, the Board was basing its decision on a finding of fact, namely, his evasiveness, which it made in a perverse or capricious manner or without regard to the material before it.
[59]However, as I have already indicated, the Board had ample material before it, both written and oral, to justify a finding that Mr. Coscia was evasive, particularly since the finding was essentially one of credibility. Hence, even if his answers to the Board's questions played a part in its finding of evasiveness, the finding cannot, in my respectful view, be characterized as patently unreasonable, as defined by paragraph 18.1(4)(d).
[60]Moreover, the finding of evasiveness was only one of the bases of the Board's discretionary decision to refuse parole. In view of the generally very mixed assessment of Mr. Coscia's progress and conduct by his case management team, whose report did not recommend that parole be granted, the Board's refusal was manifestly reasonable: Stelco Inc. v. British Steel Canada Inc., [2000] 3 F.C. 282 (C.A.), at paragraph 22.
[61]Finally, while it is not for the Court gratuitously to offer advice to the Board on the manner in which it performs its functions, the Board enters sensitive territory when it presses applicants for parole on their participation in organized crime, at least when they have neither been convicted of an offence under subsection 467.11(1) of the Criminal Code, nor labelled as members or affiliates of a criminal organization pursuant to the Commissioner's Directive.
[62]In order that the Board not erroneously characterize a justifiable hesitation on the part of an applicant as evasiveness, it should take care neither to leave applicants confused about what it is asking, nor to put them in the position of admitting an offence of which they have not been convicted or of appearing to prevaricate.
Conclusion
[63]For these reasons, I would have allowed the appeal.