[2016] 3 F.C.R. D-6
Parole
Judicial review of Parole Board of Canada (PBC) decision denying applicant’s request for record of suspension (formerly known as pardon) pursuant to Criminal Records Act, R.S.C., 1985, c. C-47, s. 4.1(1) — Application denied on basis that, pursuant to Act, s. 4.1(1)(b), granting record suspension would bring administration of justice into disrepute notwithstanding measurable benefit to applicant — Applicant, former lawyer, disbarred for involvement in activities leading to criminal convictions — Pleading guilty to several charges of fraud involving institutional, individual complainants — After serving sentence, receiving parole — Since release, applicant paying restitution or settling with most complainants — Succeeding in real estate field — PBC reaching conclusion due to nature, gravity, duration of applicant’s offending, circumstances surrounding commission of offences, information relating to criminal history pursuant to Act, s. 4.1(3) — Decision not detailing Board’s credible concerns beyond referring to factors that Act, s. 4.1(3) setting out for consideration by PBC when determining whether ordering of record suspension would bring administration of justice into disrepute — What standard of review applying to PBC’s interpretation of concept of bringing administration of justice into disrepute as set out in Act, s. 4.1 — Whether PBC erring in failing to consider mitigating factors when finding that granting record suspension bringing administration of justice into disrepute — Whether PBC’s decision not to grant record suspension otherwise reasonable — Case law establishing that where decision of specialized tribunal interpreting, applying enabling statute subject to judicial review, presumption existing that reasonableness standard of review applying — Existence of privative clause relating to administrative tribunals also giving strong indication that reasonableness standard of review should apply to questions of interpretation relating to tribunal’s enabling statute — However, case law also recognizing that presumption of deference may be rebutted where, for example, interpretation engaging question of central importance to legal system outside specialized area of expertise of tribunal — In present case, repute of administration of justice constituting context specific concept — Contextual nature of concept within framework of Act demonstrated by Parliament’s choice to enumerate factors under s. 4.1(3) that PBC may consider when making determination on question of repute of administration of justice — Factors both in Act, Regulations all addressing considerations relating to offence, consequences of offence for which record suspension being sought, issues clearly within PBC’s expertise — What constitutes matter potentially bringing administration of justice into disrepute in context of deciding whether to grant record suspension difficult, nuanced question that Parliament asking PBC, not courts to answer — Therefore, reasonableness standard of review applying regarding PBC’s interpretation of Act, s. 4.1, to PBC’s decision not to grant record suspension — In considering repute to administration of justice in present case, PBC interpreting term in context of application for record suspension — Consideration of repute of administration of justice required by legislation; legislation in turn identifying specific factors that PBC may consider in deciding question of repute of administration of justice — PBC aware of positive aspects of applicant’s application, alive to balancing of factors against concerns regarding repute of administration of justice — Granting of records suspension highly discretionary decision entrusted to PBC by virtue of Act, s. 4.1(1) — PBC not committing reviewable error in identifying factors relevant to analysis of whether granting of record suspension bringing administration of justice into disrepute — However, PBC’s decision lacking transparency, intelligibility in concluding that granting applicant record suspension would bring administration of justice into disrepute —PBC’s credible concerns not indicated but forming crux of decision rejecting applicant’s application for record suspension — Therefore, absence thereof rendering decision unreasonable — Application allowed.
Spring v. Canada (Attorney General) (T-1944-14, 2016 FC 87, Gleeson J., judgment dated January 25, 2016, 21 pp.)