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T-6086-80
Charles Vernon Myers (Applicant)
v.
National Parole Board (Respondent)
Trial Division, Mahoney J.—Calgary, January 30; Ottawa, February 5, 1981.
Prerogative writs — Application for (1 ) writ of prohibition prohibiting respondent from requiring settlement of tax liabil ity as a condition of grant of parole (2) writ of mandamus requiring respondent to grant parole and (3) writ of certiorari quashing respondent's decision to refuse parole — Applicant convicted of tax evasion — Board's refusal to grant parole prior to date set for hearing of application for parole — Whether application for writs are well founded — Whether conclusion of a settlement of tax liability and applicant's efforts to reach settlement are proper considerations — Parole Act, R.S.C. 1970, c. P-2, s. 10(1).
Applicant, who was convicted of tax evasion, seeks: (1) a writ of prohibition to prohibit respondent from requiring that appli cant, as a condition of a grant of parole, reach a settlement respecting his tax liability; (2) a writ of mandamus requiring the respondent to grant him parole and (3) a writ of certiorari quashing the respondent's decision refusing him parole as a result of his failure to return to jail after an unescorted temporary absence. The applicant contends that this latter decision took place prior to the date set for the hearing of his parole application. With respect to the writ of prohibition, the question is whether the conclusion of a settlement of the tax liability and the applicant's efforts to reach a settlement are proper considerations for the Board in the exercise of its discretion to grant parole.
Held, the application is dismissed. There is no merit in the application for certiorari and mandamus. The precedents, reports and works cited on behalf of applicant are unexception able in all respects but their relevance to the facts as they have been since applicant's failure to return to jail. With respect to the applicant's efforts to reach a settlement, the attitude toward satisfaction of the applicant's incidental debt is properly to be taken into account by the National Parole Board in the exercise of its discretion under subsection 10(1) of the Parole Act. However, if the Board regarded the conclusion of such a settlement as a relevant factor in itself rather than as evidence of the applicant's efforts, it was wrong. Moreover, the Board did not stipulate a condition as a prerequisite to a grant of parole: it gave advance notice of something that it proposed to take into account upon hearing the application.
Roncarelli v. Duplessis [1959] S.C.R. 121, referred to.
APPLICATION. COUNSEL:
J. Marshall and R. Hughes for applicant. B. Saunders for respondent.
SOLICITORS:
Macleod Dixon, Calgary, for applicant. Donald F. Sim, Q.C., Toronto, for applicant.
Deputy Attorney General of Canada for respondent.
The following are the reasons for judgment rendered in English by
MAHONEY J.: The applicant (hereinafter "Myers") seeks a writ of prohibition to prohibit the respondent (hereinafter "the Board") from requiring that Myers shall, as a condition of a grant of parole, make arrangements with the Department of National Revenue for the payment of any outstanding income tax liability; a writ of mandamus requiring it to grant him parole and a writ of certiorari quashing its decision refusing him parole. The application has nothing to do with the refusal to grant Myers parole by exception although a good deal of the supporting material is directed to that refusal. Myers has chosen to pro ceed with this application notwithstanding that the order for general and special discovery, made against the Board, January 12, 1981, pursuant to Rules 448 and 451, has been stayed and has not been complied with pending disposition of an appeal therefrom.
Myers was convicted of evading payment of taxes on income of $1,400,000 during his taxation years 1969 to 1974, inclusive.' He was sentenced to a two-year term in jail which he commenced to serve on January 10, 1979. He was eligible for "full" parole on September 10, 1979, and "day" parole on July 10. He applied for parole.
I The Queen v. Myers 77 DTC 5278; [1977] C.T.C. 507.
On June 18, 1979, the Board wrote Myers advis ing him that his application for parole by excep tion had been refused and that his application for full parole would be considered shortly before the September 10 eligibility date. The letter went on:
During the review of your file, the Board noted that there is an outstanding income tax assessment in the amount of $1,810,000.00. The Board is aware of your lawyer's May 1, 1979, letter to Revenue Canada Taxation; but it is concerned that you have made only minimal effort to discuss this matter with Revenue Canada Taxation and to reach an agreement for payment. As this will be an important factor for consideration during any parole review, the Board hopes that between now and your Parole Eligibility Date, you will take the initiative and try to reach an agreement with Revenue Canada Taxation for payment of the tax assessment.
On July 18, the Board heard Myers' application for day parole. It is clear from both a letter Myers wrote his solicitor on July 18 and the report of the hearing, dated the same day and signed by the Board members, that the Board remained con cerned about his efforts, or lack thereof, to under take settlement negotiations in respect of his tax liability. The Board's report says:
Until he makes a sincere effort to begin a settlement with Revenue Canada, his offense of evading payment of taxes appears to be continuing.
and, under the head of Recommendations for Future Activities, goes on:
We would support U.T.A.'s [i.e. unescorted temporary absences] to meet with lawyers & Revenue Canada to work on the matter referred to above.
Myers' letter confirms that the Board had approved temporary absences for that purpose. He reported the Board as saying:
Said non-payment was regarded as a continuing part of the crime.
Said they would check before (Sept. 10) meeting with Revenue Canada to see how I was satisfying them in their negotiations. Said find it hard to believe that in 6 months in Jail I couldn't have made more progress with Revenue Canada if I wanted to
take the initiative. Said I owed the debt—up to me to [illegible word] initiate moves more aggressively.
Both the report and letter indicate that the hearing of the application for full parole was to be resumed September 10, 1979.
Myers was released on an unescorted temporary absence of 48 hours at 6:00 p.m., July 28, 1979. He did not keep an appointment with his lawyer. He did not return when it expired. He remains at large outside Canada. On September 13, 1979, the Board wrote to Myers, apparently replying to a letter from him, at an address in Spokane, Wash- ington, U.S.A., advising him that:
... the Board reviewed your case again on August 30, 1979. Because you are presently at large, the Board voted Day Parole Denied and Full Parole Denied.
Myers seeks certiorari to quash that decision on the ground that the review took place prior to the September 10, 1979 hearing date previously set. There is absolutely no merit in the application. There is likewise no merit in the application for mandamus. The precedents, reports and scholarly works cited in argument on Myers' behalf are unexceptionable in all respects but their relevance to the facts as they have been since Myers failed to return to jail on July 30, 1979. It would be an exercise of some considerable leisure, suited to the talents of a latter-day Lewis Carroll, to deal with the argument. Clearly, in the circumstances, the Court ought not exercise its discretion to quash the refusal of parole and/or to direct the Board to grant Myers parole.
The mandate of the Board to grant parole is set forth in paragraph 10(1)(a) of the Parole Act: 2
10. (1) The Board may
(a) grant parole to an inmate, subject to any terms or
conditions it considers desirable, if the Board considers that
2 R.S.C. 1970, c. P-2.
(i) in the case of a grant of parole other than day parole, the inmate has derived the maximum benefit from imprisonment,
(ii) the reform and rehabilitation of the inmate will be aided by the grant of parole, and
(iii) the release of the inmate on parole would not consti tute an undue risk to society;
Since Myers' application for parole has, on other grounds, been properly refused and since parole from the presently interrupted sentence may be among the least of his concerns, if, as and when he returns, or is returned, to Canada, the present application for prohibition may be regard ed as somewhat academic. However, I accept the argument that there are well-defined issues be tween the parties that should be disposed of. They are whether either or both of the following are proper considerations for the Board in the exercise of its discretion to grant parole:
1. Conclusion of a settlement of the tax liability; and
2. Myers' efforts to reach a settlement.
While settlement of the tax liability would be conclusive proof of the bona fides of Myers' efforts to reach such a settlement, there is an important distinction. It is no part of the function of the Board to withhold parole for the purpose of assist ing the fisc in its collection efforts.' On the other hand, tax evasion is the offence for which Myers was incarcerated and it is from that incarceration that he seeks parole. The attitude of any convict to the satisfaction of the civil liability incidental to his offence is clearly among the factors to be weighed in deciding whether the inmate has derived the maximum benefit from his imprison ment. A major element of the benefit to be derived must, from the inmate's point of view, be a reduc tion of the likelihood that he will repeat. Infer ences material to that question may certainly be drawn from his attitude toward the financial obli gations incidental to his prior offence or offences. The tax evader is in no different position than any other cheater whose actions are deemed criminal at law. The Board is no more entitled to ignore Myers' attitude toward settlement of his tax liabil-
3 Roncarelli v. Duplessis [1959] S.C.R. 121.
ity than it would be entitled to ignore the attitude of an embezzler to restitution. There are distinct qualities to the different offences but, in each, the attitude toward satisfaction of the incidental debt is properly to be taken into account by the Board in the exercise of its discretion under subsection 10(1).
The Board clearly, and properly, had in mind Myers' efforts to reach a settlement. It may also have had in mind the conclusion of such a settle ment as a relevant factor in itself rather than as evidence of his efforts; if so, it was wrong. Should another application come before it, the Board should not regard failure to reach a settlement as being material in itself but should look to the reasons for that failure, in so far as they may reasonably be ascribed to Myers.
Much is made of the alleged impossibility of Myers doing anything while incarcerated inas much as he has no assets in Canada and his assets abroad are in a safety deposit box which only he can enter. Any but the totally naive would reject that in the absence of proof that the laws of the undisclosed foreign jurisdiction are so unusual as to preclude access by an attorney or otherwise than by Myers alone and in person. In any event, it is no excuse for not negotiating.
It is argued that the Board had no right to stipulate any condition, not provided in the Act, as a prerequisite to hearing an application for parole. I agree, but that is not what the Board did. The Board gave advance notice of something that it proposed to take into account when it did hear the application. That was not only legal, it was emi nently sensible and proper, predicated on the assumption that Myers wished his application to be disposed of quickly as well as favourably.
JUDGMENT
The application is dismissed with costs.
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