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PARDON OR RECORD SUSPENSION - Appeals and judicial review - Parole boards

Tuesday, March 28, 2017 @ 6:35 AM  


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Application by Thanabalasingham for judicial review of a Parole Board of Canada decision denying the applicant’s request for a record suspension. The applicant, a Tamil citizen of Sri Lanka and, at the time of application, a permanent resident of New Zealand, was injured in a house fire and died in January 2017. The applicant was allegedly involved in a Tamil youth street gang in Canada and, in the 1990s, was convicted of three charges related to violent activity. The applicant was deported in 2006 following his arrest on the grounds that he was a member of an organized crime group and was subsequently charged with perjury for minimizing his involvement in the street gang. He had resided in New Zealand since his deportation. In 2009, he was denied a record suspension on the grounds that he had not demonstrated good conduct, he had unpaid fines and he had been deported as a danger to the public. He applied for a record suspension a second time in 2014. In 2015, the Board reached a preliminary decision to refuse the applicant’s request. In 2016, the applicant responded by letter providing context for his criminal involvement. In May 2016, the Board refused his request for a record suspension on the basis that, despite positive factors, the applicant involved himself in a violent lifestyle, he had been charged with numerous offences and his time in Canada had not produced positive achievements. At issue on the application was whether the Board erred in law in 1) misinterpreting its discretion under the Criminal Records Act, and 2) failing to consider relevant factors. The applicant’s counsel argued that good conduct was required to be assessed within the relevant time period, and that the Board committed a reviewable error in treating the applicant’s perjury charge as though it constituted bad conduct within the period of time under review. The applicant’s counsel argued the relevant time period should be ten years back from when he applied for the record suspension in 2014, which would have placed his perjury charges outside the period under consideration.

HELD: Application allowed. Due to the applicant’s tragic death, the application was, in fact, moot. A decision was rendered because of the confusion that existed with regard to the “applicable time” during which the Board should have considered the applicant’s conduct and how it should have been assessed. The central issue in the application transcended the applicant’s case and would be helpful to applicants and the Board in future decision making. There was a line of reasoning for the Board’s conclusion and the Board clearly stated the framework within which the decision had to be made. The applicant was given an opportunity to respond and the Board dealt with the salient points raised in the applicant’s response. The Board also addressed the applicant’s concerns regarding the quality of evidence used to characterize his gang involvement. The Board balanced the positive and negative factors in the applicant’s background. The rationale for the decision was clear: the applicant had a significant criminal past leading to his deportation and he had not been of good conduct prior to his deportation. The decision did not have to be exhaustive, as long as it provided sufficient clarity to allow the applicant and the court to understand the reasoning and evidence behind the decision. However, if the applicable provisions of the Criminal Records Act were applied literally, the relevant period for the review by the Board was from 1998 to 2008, as the applicant’s last sentence expired in 1998. The Board treated the laying of the perjury charge in 2006 as though it was evidence of bad conduct during the review period, but the conduct upon which the perjury charge was based occurred in 2001 and 2002. Because the applicant did not receive a sentence for the perjury charge, it was not relevant for the assessment of eligibility under the Criminal Records Act. On a literal interpretation, the charge did lie within the “applicable period”. However, a literal interpretation could, in some cases, result in a grave injustice, which happened here. Therefore, the Board’s approach to the ten-year time period caused a reviewable error, in that the Board should have addressed the purposes of the legislation. Using a static approach would never have allowed the applicant to redeem himself. The Board failed to consider strong evidence of good conduct and rehabilitation during a meaningful period of time. The Board’s decision was quashed.

Thanabalasingham v. Canada (Attorney General), [2017] F.C.J. No. 191, Federal Court, J. Russell J., February 15, 2017. Digest No. 3644-005