Date: 20041209
Docket: T-1450-04
Citation: 2004 FC 1722
Ottawa, Ontario, December 9, 2004
Present: The Honourable Mr. Justice Blais
BETWEEN:
MAHESH BEDI
Applicant
and
THE ATTORNEY GENERAL OF CANADA
Respondent
REASONS FOR ORDER AND ORDER
[1] This is an application for judicial review of a decision not to direct day parole of Mahesh Bedi (applicant). The applicant submits that the initial decision, the review by the two-member panel of the National Parole Board (NPB), and the affirmation on appeal by the National Parole Board's Appeal Division (Appeal Division) all erred in law and based their decisions on erroneous findings of fact.
RELEVANT FACTS
[2] The applicant was convicted on August 13, 2003 in the Ontario Court of Justice on the charges of: possession of the purpose of trafficking, possession of cocaine, four charges of possession of a loaded prohibited weapon, two charges of possession of a firearm with serial number defaced, possession of stolen property, four counts of possession of a firearm and possession of the proceeds of crime. He was sentenced to four and a half years in a federal penitentiary.
[3] On December 24, 2003, the Peel Parole Office completed an assessment for decision which recommended that the NPB direct accelerated day and full parole (the issue of full parole was not addressed by the NPB at that time).
[4] On February 13, 2004, based on the written submissions, a one member panel of the NPB refused to direct day parole, a decision which was subsequently upheld by an oral hearing before the NPB which took place on April 29, 2004.
[5] On June 28, 2004, the applicant appealed this decision to the National Parole Board's Appeal Division. On August 3, 2004, the Appeal Division dismissed the appeal.
ISSUES
[6] 1. What is the applicable standard of review?
2. Did the NPB and the Appeal Division apply the proper test in deciding not to direct day parole?
ANALYSIS
1. What is the applicable standard of review?
[7] The applicant submits that to the extent that the NPB confused the standard of "potential" with the necessity of finding "likelihood", the Board erred in law, which would imply that a standard of correctness should be applied. I do not believe that the standard to be applied is as clear cut as presented. Although a question of law would tip the balance in the favour of granting less deference to the NPB, the nature of the question is not the only factor which must be weighed in determining the applicable standard. One must also analyse the nature of the appeal, the relative expertise of the Board, and the purpose of the statute.
[8] This application for judicial review is not unique however, this exact question having already been dealt with many times over. That being the case, I find that the analysis done by my colleague, Justice Russell, in McMurray v. Canada (National Parole), [2004] F.C.J. No. 565, finds application in the case at hand:
¶ 40 The Applicant points out that Canadian Courts take a pragmatic and functional approach to the review of administrative decisions. In determining the applicable standard of review within this approach, Courts will take the following four (4) factors into account:
i) the presence or absence of a privative clause or statutory right of appeal;
ii) the expertise of the tribunal relative to that of the reviewing judge on the issue in question;
iii) the purposes of the legislation and the provision in particular;
iv) the nature of the problem.
Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R. 982, at paras. 23-38, Barrie Public Utilities v. Canadian Cable Television Assn., [2003] S.C.J. No. 27, 2003 SCC 28, para. 10.
¶ 41 In judicial review of findings of fact by the Appeal Division, where the Appeal Division has exercised its own jurisdiction of review under s. 147(4) of the CCRA, this Court has shown deference to the determinations of the Appeal Division and has applied a standard of review of "manifestly unreasonable" before judicial intervention is warranted (Costiuc v. Canada (Attorney General), [1999] F.C.J. No. 241 (F.C.T.D.), at para. 6; Dupuis v. Canada (Attorney General), [2002] F.C.J. No. 667, 2002 FCT 508, at paras. 21-23)
¶ 42 Where, however, the Appeal Division has exercised its jurisdiction under the CCRA, s. 147(4) to review determinations made by the Parole Board on questions of law, this Court has seen fit to apply the less deferential review standard of "reasonableness". In so doing, the Court has said that the determination made ultimately is to ensure that the Parole Board's decision was "lawful." (Cartier v. Canada (Attorney General), [2002] F.C.J. No. 1386, 2002 FCA 384, at paras.8-10)
[my emphasis]
Thus, I find that the above analysis properly covers the most current jurisprudence on the subject matter, and correctly arrives at the conclusion that the applicable standard of review for questions of fact is that of manifestly or patently unreasonable, and for questions of law, that of reasonableness.
2. Did the NPB and the Appeal Division apply the proper test in deciding not to direct day parole?
[9] At hand, we have the decision of the NPB not to direct day parole, as well as the decision of the Appeal Division confirming the order not to direct day parole. In such a circumstance, the role of this Court is to analyse the decision of the NPB and determine its lawfulness, rather than that of the Appeal Division:
The unaccustomed situation in which the Appeal Division finds itself means caution is necessary in applying the usual rules of administrative law. The judge in theory has an application for judicial review from the Appeal Division's decision before him, but when the latter has affirmed the Board's decision he is actually required ultimately to ensure that the Board's decision is lawful. (Cartier v. Canada, [2002] F.C.J. No. 1386 (C.A.) at paragraph 10.)
[10] The applicant submits that the NPB committed a reviewable error in substituting the applicable standard of "likely to commit" with that of the "potential to commit". Having carefully read the decision of the NPB as well as that of the Appeal Division, I find that the proper test of "likely to commit" was applied.
[11] In regards to the decision by the two-member panel of the NPB, the section marked "accelerated review decision" clearly reads:
The Board is satisfied that there are reasonable grounds to believe that, if released, you are likely to commit an offence involving violence before the expiration of your sentence and therefore, directs that you will not be released. (Page 2 of the NPB Accelerated Parole Review Decision Sheet)
[my emphasis]
[12] Then again, at the conclusion of the reasons for decision, the Board member states that:
In summary, the interplay between crime, drugs and dangerous weapons, combined with a lack of programming to address criminal values, attitudes and faulty decision-making skills, leads the Board to conclude that there are reasonable grounds to believe that you are likely to commit an offence involving violence prior to the expiration of your sentence. Therefore, day parole is not directed. (Page 3 and 4 of the NPB Accelerated Parole Review Decision Sheet)
[my emphasis]
[13] I find no mention of the "potential to commit" violence in the oral hearing before the NPB. As for the written decision, the word potential appears in two instances. The first being the Board members' assessment of risk. The first factor is:
a) Indication of behaviour that demonstrates a potential to commit an offence involving violence. (Page 2 of the NPB Accelerated Parole Review Decision Sheet)
[14] This factor is a direct paraphrase of paragraph 125(3)c) CCRA which states:
(3) A review made pursuant to subsection (2) shall be based on all reasonably available information that is relevant, including:
c) any information that discloses a potential for violent behaviour by the offender. [my emphasis]
[15] Therefore, the legislation requires the NPB to take into account indications of potential violence. I find that it is precisely that which was done, when the NPB mentioned that even though the applicant was a first time offender, his offences included numerous convictions for weapons offences, the applicant participated heavily in the cocaine dealing business, and he had criminal values and associations, all of which demonstrated a potential to commit an offence involving violence.
[16] Furthermore, the "potential for committing a violent offence" factor not only appears in the legislation, but also at page 7 of the NPB Policy Manual, in assessing the risk of re-offending with violence. This makes it abundantly clear that the NPB should take into consideration the potential for committing a violent offence as a factor in determining the likelihood of committing a violent offence.
[17] As for the second mention of the word potential, it appears near the beginning of the reasons for decision:
You were involved in high level crime, trafficking crack cocaine. As discussed in the hearing today, the indirect results of those actions is untold misery and potential violence. (Page 3 of the NPB Accelerated Parole Review Decision Sheet)
[18] I fail to see how this is confusing the test of "likely to commit" with "potential to commit". The use of "potential" in this case, simply seems to refer to one of the criteria which the NPB is to take into consideration in determining if the detainee is likely to commit an offence involving violence if released before the expiration of his sentence. This analysis is supported by the fact that the NPB mentioned numerous criteria (interplay between crime, drugs and dangerous weapons, lack of programming, faulty decision-making skills) in determining that there are reasonable grounds to believe that the applicant is likely to commit an offense involving violence prior to the expiration of his sentence.
[19] As for the determination of the NPB not to direct day parole, seeing as to how the appropriate test was applied, this becomes simply an analysis of the facts presented to the NPB. Being an expert in this field, the Board is in the best situation to analyse the facts presented to it, as well as the credibility of the applicant during the oral hearings.
First, this is a matter of judicial review and the reviewing Court, and this Court on appeal from the reviewing Court, cannot simply substitute its views of the facts and the law for those of the Tribunal and render what it considers the right conclusion. We must proceed on the record as we have it, confining ourselves to the criteria for judicial review, and remembering at all times that a denial of natural justice cannot readily be cured on such review. While we must ensure that the Tribunal conducts itself in a lawful way, it is for the Tribunal to render a decision on the facts once those facts are properly litigated before it. (Canada (A.G.) v. McKenna, [1999] 1 F.C. 401 at paragraph 6)
[20] During the evaluation of the facts presented to it, the NPB mentioned that the applicant was involved in high level crime, trafficking crack cocaine. Also, large quantifies of drugs, cash and weapons of death were at his apartment and that some were placed in areas to make them readily available. The NPB also found that the applicant's responses were not deemed to be credible, and that they merely deflected responsibility. There is also mention of the applicant's current allegations of drug involvement at the institution, as well as a lack of programming to address criminal values, attitudes and decision-making skills.
[21] Furthermore, the applicant submits that in contrast to some of the other cases in which day parole was denied:
· He has the support of a half way house accommodation where he would be supervised;
· Any weapons once available to him have been seized by police;
· There is a weapons prohibition order outstanding against him;
· Parole supervision can require non-association with criminals; and
· He has a wife and a family as community support.
[22] Although at first glance, these reasons might seem somewhat compelling, it should be apparent that the half way house would offer supervision, but cannot control all aspects of the applicant's activities; the weapons which were seized are admittedly unavailable to him, but the source of those weapons remains accessible. As for the weapons prohibition against him, the laws preventing the possession of illegal weapons did not prevent the applicant from acquiring weapons in the first place. Finally, in regards to the parole supervision and family support, the NPB seemed unconvinced of the credibility of the applicant and therefore weighed the relative success of these accordingly.
[23] This being a judicial review, I have certain duties and obligations, but substituting my view of the facts for those discerned by the NPB is not part of my mandate. The NPB properly reviewed the facts presented to them and supported their decision in the oral and written reasons.
[24] As such, I find that the "likely to commit violence" test was lawfully applied and that the ultimate decision of the NPB, based on the facts, is not unreasonable. The intervention of this Court is therefore not warranted.
ORDER
THIS COURT ORDERS that:
This application for judicial review be dismissed.
"Pierre Blais"
J.F.C.
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
DOCKET: T-1450-04
STYLE OF CAUSE: MAHESH BEDI v. AGC
DATE OF HEARING: Monday , December 6, 2004
PLACE OF HEARING: Toronto, Ontario.
REASONS FOR ORDER AND ORDER BY: Blais, J.
DATE: December 9, 2004
APPEARANCES BY: Mr. John Hill
For the Applicant
Mr. Derek Edwards
For the Respondent
SOLICITORS OF RECORD:
John Hill
127 Bishop Avenue
Toronto, Ontario
M2M 1Z6
For the Applicant
DEPARTMENT OF JUSTICE
130 King Street West
Suite 3400, Box 36
Toronto, Ontario
M5X 1K6
For the Respondent