r v. ATTORNEY GENERAL OF CANADA, 2014 QCCA 240

Fabrikant c. Canada (Attorney General) 2014 QCCA 240 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No: 500-10-004242-085 (500-36-004596-089) DATE: FEBRUARY 10, 2014 CORAM: THE HONOURABLE FRANÇOIS DOYON, J.A. NICHOLAS KASIRER, J.A. CLAUDE C. GAGNON, J.A. V.I. FABRIKANT APPELLANT – petitioner v. ATTORNEY GENERAL OF CANADA RESPONDENT – respondent and ATTORNEY GENERAL OF QUEBEC RESPONDENT – respondent JUDGMENT [ 1 ] Valery Fabrikant has appealed a judgment of the Superior Court, District of Montreal (the Honourable Mr. Justice James Brunton, presiding), rendered on September 25, 2008, dismissing an application pursuant to

section 745.6 Cr.C . in which the appellant sought a reduction in the number of years of imprisonment he must serve before becoming eligible for parole. I Context [ 2 ] On August 24, 1992, the appellant shot and killed four people at Concordia University in Montreal where he worked as a professor in the Department of Mechanical Engineering. He shot and wounded a fifth person and used force to take two others hostage.

He was later arrested and eventually charged with four counts of first-degree murder, one count of attempted murder and two counts of forcible confinement. [ 3 ] On August 11, 1993, he was convicted of all charges following a trial held before a judge and jury.

This Court dismissed his appeal and his application for leave to appeal in the Supreme Court of Canada was dismissed. [ 4 ] In respect of the four counts of first-degree murder, the appellant received the mandatory sentence of life imprisonment without eligibility for parole for twenty-five years. [ 5 ] At the time of the proceedings in first instance, the law allowed a person convicted of murder and sentenced to imprisonment for life without eligibility for parole for more than fifteen years to apply to a judge to reduce the number of years of parole ineligibility, pursuant to

section 745.6 Cr.C ., in certain defined circumstances. The appellant was first entitled to bring such an application after have served fifteen years of imprisonment in 2007. In the judgment on appeal, Brunton, J. dismissed that application. [ 6 ] The rules relating to judicial review of ineligibility for parole in the Criminal Code were amended in 1996 by “Bill C-45”. [1] The amendments came into force on January 9, 1997, some three and one-half years after the appellant was sentenced and longer still from the time he committed the crimes for which he was convicted. [ 7 ] The new law amended

section 745.6 Cr.C . and, significantly for the present case, changed the manner in which applications for judicial review of parole ineligibility proceed. [ 8 ] Under the former regime, an application followed a “one-stage process” whereby the Chief Justice would designate a judge who, in turn, would empanel a jury to hear the motion. The jury could grant the motion if two-thirds of its members were in agreement with the result. [ 9 ] Following the amendments that came into force in 1997, the Criminal Code replaced the former one-stage evaluation with a two-stage process.

At the time of the judgment in first instance, the relevant provisions of the Criminal Code provided for the following. In the first stage, the Chief Justice or a designated judge decides whether the applicant has shown, on a balance of probabilities, that there is a reasonable prospect that the application will succeed (subs. 745.61(1)). If the applicant shows that such a prospect does exist, the Chief Justice designates a judge to empanel a jury in order to decide on the application (subs. 745.61(5)). Moreover, the two-thirds

majority rule for jury decisions was also changed: the amended rules provide that parole ineligibility cannot be reduced unless the members of the jury decide to do so unanimously (subs. 745.63(3)).

In the event that members of the jury unanimously agree to reduce the period of ineligibility, the number of years of the reduction requires a further decision in respect of which two-thirds of the members have to agree (subs. 745.63(5)). [ 10 ] In addition, subs. 745.6(2) Cr.C . , as amended, provides that a person who has been convicted of more than one murder cannot bring an application for reduction of parole ineligibility. [ 11 ] It should be underscored that the jury does not decide whether parole should be granted.

That decision falls to the Parole Board of Canada under the authority of the Corrections and Conditional Releases Act . [2] [ 12 ] The amended rules indicate the written material and the criteria that a judge must consider in the first stage of the process:

745.61

(1) Sur réception de la demande prévue au paragraphe 745.6(1), le juge — juge en chef compétent ou juge de la cour supérieure de juridiction criminelle qu’il désigne à cette fin — décide, en se fondant sur les documents suivants , si le requérant a démontré, selon la prépondérance des probabilités, qu’il existe une possibilité réelle que la demande soit accueillie :

a) la demande;

b) tout rapport fourni par le Service correctionnel du Canada ou une autre autorité correctionnelle;

c) tout autre document que le procureur général ou le requérant présente au juge.

(2) Le juge prend la décision visée au paragraphe (1) en fonction des critères énoncés aux alinéas 745.63(1)

a) à e ), compte tenu des adaptations nécessaires . […] 745.63

(1) Le jury constitué en vertu du paragraphe 745.61(5) pour entendre la demande du requérant décide s’il y a lieu de réduire le délai préalable à la libération conditionnelle de celui-ci, en fonction des critères suivants :

a) le caractère du requérant;

b) sa conduite durant l’exécution de sa peine;

c) la nature de l’infraction pour laquelle il a été condamné;

d) tout autre renseignement fourni par la victime au moment de l’infliction de la peine ou lors de l’audience prévue au présent article;

e) tout autre renseignement que le juge estime utile dans les circonstances. […] [Emphasis added.] 745.61

(1) On receipt of an application under subsection 745.6(1), the appropriate Chief Justice shall determine, or shall designate a judge of the superior court of criminal jurisdiction to determine, on the basis of the following written material , whether the applicant has shown, on a balance of probabilities, that there is a reasonable prospect that the application will succeed: (

a) the application; (

b) any report provided by the Correctional Service of Canada or other correctional authorities; and (

c) any other written evidence presented to the Chief Justice or judge by the applicant or the Attorney General.

(2) In determining whether the applicant has shown that there is a reasonable prospect that the application will succeed, the Chief Justice or judge shall consider the criteria set out in paragraphs 745.63(1)(

a) to ( e ), with such modifications as the circumstances require . […] 745.63

(1) The jury empanelled under subsection 745.61(5) to hear the application shall consider the following criteria and determine whether the applicant’s number of years of imprisonment without eligibility for parole ought to be reduced: (

a) the character of the applicant; (

b) the applicant’s conduct while serving the sentence; (

c) the nature of the offence for which the applicant was convicted; (

d) any information provided by a victim at the time of the imposition of the sentence or at the time of the hearing under this section; and (

e) any other matters that the judge considers relevant in the circumstances. […] [ 13 ] Bill C-45 provided transitional measures for the application of the new rules:

Le paragraphe 745.6(2) du Code criminel , édicté par l'article 2 de la présente loi, ne s'applique à une personne que si au moins un des meurtres dont elle a été déclarée coupable a été commis après l'entrée en vigueur de ce paragraphe. 7.

Les articles 745.61 à 745.63 du Code criminel - à l'exception de l' alinéa 745.3(1) d)[*] -, édictés par l'article 2 de la présente loi, s'appliquent à toute demande de révision judiciaire présentée après l'entrée en vigueur du paragraphe 745.6(1) du Code criminel, édicté par le même article, à l'égard de crimes commis avant ou après cette entrée en vigueur, sauf si, avant celle-ci, le requérant a présenté une demande en vertu du paragraphe 745.6(1) du Code criminel dans sa version antérieure à l'entrée en vigueur de ce même paragraphe, édicté par l'article 2 de la présente loi, et aucune décision à l'égard de cette demande n'a été rendue. 8.

L' alinéa 745.63(1)

d) du Code criminel , édicté par l'article 2 de la présente loi, s'applique à toute demande de révision judiciaire présentée après l'entrée en vigueur du paragraphe 745.6(1) du Code criminel, édicté par le même article, à l'égard de crimes commis après cette entrée en vigueur. [* There appears to be a clerical error in the French text which refers to “alinéa 745.3(1)d)” rather than paragraph 745.63(1) (d), as in the English text.] 6. Subsection 745.6(2) of the Criminal Code , as enacted by

section 2 of this Act, does not apply in respect of a person unless at least one of the murders for which the person was convicted was committed after the coming into force of that subsection. 7. Sections 745.61 to 745.63 of the Criminal Code , as enacted by

section 2 of this Act, other than paragraph 745.63(1) (d), apply in respect of applications for judicial review made after the coming into force of subsection 745.6(1) of the Criminal Code, as enacted by that section, in respect of crimes committed before or after the coming into force of that section, unless the applicant has, before the coming into force of that section, made an application under subsection 745.6(1) of the Criminal Code as it read immediately before the coming into force of that

section and the application had not yet been disposed of before that coming into force. 8. Paragraph 745.63(1) (

d) of the Criminal Code , as enacted by

section 2 of this Act, applies in respect of applications for judicial review made after the coming into force of subsection 745.6(1) of the Criminal Code, as enacted by that section, in respect of crimes committed after the coming into force of that section. [ 14 ] While the appellant was convicted of the murder of more than one person, the bar to applying for review of ineligibility for parole in subsection 745.6(2) does not preclude Mr. Fabrikant from bringing an application in this case.

He falls within the exception set forth in s. 6 of the transitional rules quoted above by reason of the fact that his multiple murders were committed in 1992, prior to the coming into force of the bar in subs. 745.6(2) in 1997. This matter is not in dispute in the appeal. [ 15 ] As a further part of this transitional regime, however,

section 7 of the transitional rules directs that the amendments do apply to motions for judicial review brought after the coming into force of Bill C-45 in 1997 in respect of crimes committed before that time. The appellant filed his motion for judicial review in December 2007 in respect of crimes committed in 1992. In 2007, the amended rules had been in force for nearly eleven years. II Judgment on appeal [ 16 ] Brunton, J. was designated by the Chief Justice to hear the appellant’s application as the first-stage judge pursuant to

section 745.6 Cr.C . [ 17 ] In addition to the judgment on the merits of the motion for judicial review (B), the judge rendered several interlocutory judgments relevant to the appeal (A). (

A) Interlocutory judgments [ 18 ] By interlocutory judgment rendered on April 25, 2008, the judge dismissed a motion brought by Mr. Fabrikant in which he argued that the amendments enacted by Bill C-45 were inapplicable to him as a matter of constitutional law. [3] [ 19 ] In short, the appellant’s position was that the transitional provisions which provided that the new rules applied to him were null and void because they violated his right to liberty and the protection against the retroactive application of law enshrined in sections 7 and 11(

i) of the Canadian Charter of Rights and Freedoms . Mr. Fabrikant contended that both the two-stage process and the jury unanimity requirement in the amended rules should not apply to him because he enjoys acquired rights to what he sees as the more favourable former regime by reason of the date of his conviction and sentencing in 1993. (The appellant chose not to frame his argument by reference to the date at which the crimes were committed in 1992). [ 20 ] The judge held that the appellant had not established a violation of

section 11(

i) of the Charter as a result of a change in the law and that the amendments to the procedure for judicial review did not deprive the appellant of his liberty in a manner that infringed

section 7 of the Charter . The judge also dismissed the appellant’s other constitutional arguments, including his submission that the new

law was illegal because the parliamentary system in Canada is, in his estimation, undemocratic. [ 21 ] The judge rendered an interlocutory judgment on May 5, 2008 relevant to the appeal. Michel Morin, a Parole Officer of the Correctional Service of Canada, had prepared a parole eligibility report relating to the appellant’s application pursuant to

section 9 of the Quebec Rules of Practice respecting reduction in the number of years of imprisonment without eligibility for parole . [4] The judge rendered an interlocutory judgment specifying the aspects of the report in respect of which he authorized the appellant to cross-examine its author and refusing the disclosure of certain documents to the appellant relating to Concordia University and to a physician, Dr. W. Steiner. [5] The judge rendered a further judgment on May 13, 2008 authorizing the appellant to cross-examine Mr. Morin on certain designated topics relating to the report. [6] (

B) Judgment on the application for judicial review [ 22 ] The judge dismissed the motion for judicial review. [7] [ 23 ] He first described the two-stage process applicable to Mr. Fabrikant’s motion under the amended rules in ss. 745.6 and following of the Criminal Code . He set out the grounds for the application and noted that the respondent argued, in answer, that the motion should be dismissed and that Mr.

Fabrikant should be barred from ever presenting another such motion in the future. [ 24 ] The judge explained his view of the role of the first-stage judge in determining whether the motion had a reasonable chance of success so that it might be left to a jury in the second stage. He reviewed the applicant’s grounds, explicitly refusing to allow Mr.

Fabrikant to present his account of his lack of blameworthiness for the crimes of which he was convicted. [ 25 ] Brunton, J. considered at length the evidence relating to the character of the petitioner, his conduct while serving his sentence, the nature of the offences for which he was convicted and evidence relating to Mr. Fabrikant’s age and failing health. [ 26 ] The judge concluded that the petitioner’s motion had no reasonable chance of success and should not be sent to a jury. He was of the view that Mr.

Fabrikant had not changed, psychologically, from the time of the murders for which he was convicted. [ 27 ] In dismissing the motion, the judge decided as well to prohibit Mr. Fabrikant from ever presenting a motion seeking a reduction of parole in the future. III Grounds for Appeal [ 28 ] Mr. Fabrikant has presented seven grounds of appeal, three of which bear more directly on the interlocutory judgments and the balance of which seek to impugn the judgment on the merits.

IV Analysis IV.1 Grounds of Appeal relating to the Interlocutory Judgments [ 29 ] The appellant stated the first such ground as follows: Q1: Brunton, J.S.C. erred in law when he dismissed the Constitutional Challenge of transitional provisions of the Act to amend the Criminal Code Judicial review, 1996, c. 34 . [ 30 ] Mr. Fabrikant argues that his motion for review should not be subject to the two-stage process and the jury unanimity rule set forth in

section 745.61 Cr.C . because it was enacted and came into force after the date of his conviction and sentencing. Noting that he was sentenced at a time when the one-stage regime was in place, he says that the application of the new rules in the circumstances would deprive him of his constitutional right under s. 11(

i) of the Charter to the benefit of “the lesser punishment/la peine la moins sévère” applicable under the former regime. [ 31 ] Mr. Fabrikant further contends that he has acquired rights, given the date of his conviction and sentence, to the previous regime.

To subject him to the two-stage process with jury unanimity, he says, also violates his rights under s. 7 of the Charter and the judge was mistaken to decide otherwise. [ 32 ] He also reiterates his view that the parliamentary system in Canada is undemocratic and that, accordingly, the law as enacted was invalid. [ 33 ] The grounds of appeal relating to the constitutional validity of the transitional provisions of Bill C-45 are without merit. [ 34 ] First, the judge was right to decide that the argument relating to the allegedly undemocratic character of the Canadian parliamentary system raised no justiciable issue. [ 35 ] Second, Mr.

Fabrikant has established no Charter violation. [ 36 ] The provisions of the Charter relevant to Mr. Fabrikant’s argument read as follows:

7. Chacun a droit à la vie, à la liberté et à la sécurité de sa personne; il ne peut être porté atteinte à ce droit qu’en conformité avec les principes de justice fondamentale. 11. Tout inculpé a le droit : […]

i) de bénéficier de la peine la moins sévère, lorsque la peine qui sanctionne l’infraction dont il est déclaré coupable est modifiée entre le moment de la perpétration de l’infraction et celui de la sentence. 7. Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice. 11. Any person charged with an offence has the right […] (

i) if found guilty of the offence and if the punishment for the offence has been varied between the time of commission and the time of sentencing, to the benefit of the lesser punishment. [ 37 ] The judge rightly held that Mr. Fabrikant cannot avail himself of the protection in

section 11(

i) of the Charter in the circumstances because he is no longer a “person charged with an offence/inculpé”, within the meaning of that expression in the constitutional text, but rather a person already convicted of an offence. In addition to the judgment in Vaillancourt v. Canada (Solicitor General) [8] cited by the judge as authority on this point, the Supreme Court of Canada also adopted this

interpretation in R. v. Milne . [9] In Milne , the majority of the Supreme Court explained in paragraph 24 that “ s. 11(

i) of the Charter [...] limits the rights of an accused in this regard to the benefit of a reduction in sentence made between the time of the commission of the offence and the time of sentencing ”. [ 38 ] Moreover, the transitional rules, and in particular

section 7 of Bill C-45, do not deprive Mr. Fabrikant of a liberty interest protected by s. 7 of the Charter . [ 39 ]

Section 7 of Bill C-45 reproduced above does not establish a retroactive application of law in the circumstances. The transitional rule provides that the changes to the judicial review of parole ineligibility enacted in 1996 apply in respect of applications for judicial review made after the date of the coming into force of the amendments, which was January 9, 1997. In this sense, it is of immediate application. [ 40 ] It is true that

section 7 of Bill C-45 further directs that the amendments, including the two-stage process and the jury unanimity rule, are to apply in respect of crimes committed before their coming into force. But even in respect of crimes committed prior to 1997 – such as those for which Mr. Fabrikant was found guilty – the application of the new rules requires that the date of the motion for judicial review be made after that of the coming into force of the amendments for the new rules to apply.

While retrospective in some of its effects, s. 7 the transitional provisions does not provide for the retroactive application of the amendments. [ 41 ] Mr. Fabrikant argues that the effect of the transitional rule in

section 7 is to deprive him of the advantages of the former one- stage process and jury unanimity rule. Specifically, he says that his ability to put his case directly to the jury has been curtailed. He says that the unanimity rule, as a matter of mathematical probability, lessens his chance of obtaining a reduction in parole ineligibility. As a result, he argues, his substantial rights in respect of his sentence have been adversely affected in a manner that deprives him of his residual liberty interest under the Charter . [ 42 ] Mr.

Fabrikant also says that he plainly acquired the right to apply for parole ineligibility under the one-stage process in 1993 and that the effect of the transitional rule in

section 7 of C-45 is to deprive him of that acquired right and, as a result, deprive him of his liberty interest even while he is in prison. The right to apply for judicial review under the former rules was “accruing”, [10] he argues, and he lost the benefit of that accrual when Parliament enacted s. 7 of Bill C-45 directing that the new rules applied to him notwithstanding the date of his crime and conviction. [ 43 ] Mr. Fabrikant is mistaken. [ 44 ] We agree with Brunton J. that Bill C-45 merely changed the procedure in respect of which Mr.

Fabrikant’s motion would be treated and that neither the two-stage process nor the unanimity rule affect his substantial rights in a manner that infringed the Charter . The judge correctly pointed out that it is not merely because the route to granting a successful motion is made more difficult that the principles of fundamental justice under s. 7 have been breached (paragraph [27] of the interlocutory judgment of April 25, 2008).

The amendments do not substantively change the right to apply for a reduction in parole ineligibility. [ 45 ] The impugned amendments, including the jury unanimity rule, affect the procedure by which a person achieves the right to apply for parole, but they do not affect the appellant’s substantive rights in respect of his sentence or the terms of his release. [11] [ 46 ] As LeSage, C.J.S.C. decided in Chaudhary v.

The Queen , [12] the new rules only affect the means of exercising the right to demand reduction in parole ineligibility: “The change to unanimity from two-thirds of the jury does not significantly change the terms and conditions of release, rather they alter only how the determination is arrived at”. Chief Justice LeSage further explained: [12] This legislation does not change the applicant’s right, that is the right to apply to have her period of parole ineligibility reduced. It does not lengthen her sentence. It does not increase her period of ineligibility.

What it does do is simply change the manner in which she is required to establish the right to seek earlier parole. The applicant has not had her right to parole nor even her right to apply for parole changed by the amendments. Her pre-existing right was simply to ask the court to permit her the right to seek parole. That has not changed. The change is in how she achieves the right to apply and that, in my opinion, is procedural, not substantive. The new legislation, therefore, is retrospective and not in violation of s. 7 of the Charter . [ 47 ] Moreover, the better view is that Mr.

Fabrikant does not enjoy acquired rights to have his application decided under the former

regime. The appellant cites R. v. Puskas[13] in support of his position but that case provides him no assistance. Lamer, C.J. consideredthe proper understanding of what it means to “acquire” a right or have it accrue to a person and wrote the following: A right can only be said to have been “acquired” when the right-holder can actually exercise it. The term “accrue” is simply a passiveway of stating the same concept (a person “acquires” a right; a right “accrues” to a person). Similarly, something can only be said to be“accruing” if its eventual accrual is certain, and not conditional on future events (Scott v.

College of Physicians and Surgeons ofSaskatchewan, (1992), (SK CA), 95 D.L.R. (4th) 706 (Sask. C.A.), at p. 719). In other words, a right cannot accrue,be acquired, or be accruing until all conditions precedent to the exercise of the right have been fulfilled.[14] [48] Mr. Fabrikant has mischaracterized Puskas. He had no acquired right to a review under the former rules in 1993 or at any timebefore the coming into force of Bill C-45 according to the understanding of acquired rights explained in the case.

The right to judicialreview was only acquired – and it only accrued – when he had completed 15 years of his sentence and applied for a reduction of paroleineligibility in 2007. Before that time, the right was not “accruing” in the sense spoken to by Lamer, C.J. because it was not certain butconditional on future events. [49] In any event, the application of the amendments to Mr. Fabrikant’s motion do not result in a deprivation of liberty, and certainlynot one that fails to conform to the principles of fundamental justice. [50] In this regard, the judge correctly considered and distinguished the case of R. v.

Gamble[15] decided under s. 7 in which aperson was sentenced to life imprisonment without the possibility of parole before 25 years, rather than 10 years, by reason of an error inthe application of the law. The Supreme Court held that Ms.

Gamble’s rights under s. 7 of the Charter had been breached in thecircumstances because the mistaken application of the parole ineligibility rule changed the quality of her incarceration and therebydeprived her of a residual liberty interest. [51] We agree with the manner in which the judge distinguished Gamble from the present case: [23] This Court holds that Gamble is distinguishable. Gamble dealt with a situation where a convicted person was being deniedaccess to a status which existed in law at the moment she was sentenced.

When the Petitioner was sentenced, he had access to judicialreview after 15 years in order to seek a reduction in his parole ineligibility. The amendments to the judicial review procedure have notaltered that situation. As on the day he was sentenced, he is subject to imprisonment for life, without possibility of parole for 25 yearsand he can seek a review of that latter status after 15 years. [24] As a result, the Court holds that the amendments to the judicial review procedure do not deprive the Petitioner of liberty so as topermit him to invoke s. 7 of the Charter.

The same conclusion was reached in the case of R. v. Chaudhary, (ON SC),139 C.C.C. (3d) 547, at para. 11 (Ont. S.C), motion seeking permission to appeal dismissed, [2000] 1 S.C.R. viii. [References omitted.] [52] The appellant has not been deprived of a “residual liberty interest”.

The grounds for challenging the application of the new rulesas a matter of constitutional law are rejected. *** [53] The appellant stated the second ground relating to the interlocutory judgments as follows: Q2: Brunton, J.S.C. erred in law when he disallowed cross examination of CSC representative Morin on numerous important subjects. [54] In substance, Mr. Fabrikant contends that the judge wrongly prevented him from cross-examining the representative from theCorrectional Service of Canada and he was thereby precluded from showing that the parole eligibility report filed in his case wasinadequate.

In particular, he submits that he was prevented from cross-examining the author of the report on the appellant’s version ofthe events that led to his conviction. In addition, he contends that the correctional plan mentioned in the report did not meet therequirements set forth in

section 15.1 of the Corrections and Conditional Release Act and the judge should have refused to consider thematerials from Corrections Canada on that basis. [55] This ground of appeal is also without merit. [56] It should first be noted that a judge has the discretionary authority, under s. 11 of the Quebec Rules of Practice respectingreduction in the number of years of imprisonment without eligibility for parole, to allow an applicant to cross-examine the author of acomprehensive parole eligibility report. The judge did just that, at the request of Mr.

Fabrikant, and allowed him to cross-examine Mr.Morin on certain aspects of the report in his interlocutory judgments of May 5, 2008 and May 13, 2008. [57] The appellant has failed to show any error committed by the judge in his decision to limit the purview of the cross-examinations. As the judge noted, Mr. Morin could not be properly cross-examined on evaluations in the report made by persons otherthan himself without violating the hearsay rule.

Moreover, as we shall see below, the judge was right to prevent the appellant fromasking questions relating to his version of the events leading to his conviction because that matter, having been definitively settled at histrial, was not relevant to his application. [58] As to Mr. Fabrikant’s argument that the correctional plan alluded to in the report did not meet the requirements of theCorrectional and Conditional Release Act thereby impugning the judge’s evaluation of the motion, it is unfounded. The judge had theauthority to consider the report pursuant to paragraph 745.61(1)(

b) at the first stage of the proceedings for judicial review. He adequatelysummarized the report submitted at paragraph [29] in the judgment in appeal, with due attention to the portions of it relevant to thedetermination of the appropriateness of a reduction in parole ineligibility. Specifically, the 36-page parole eligibility report containschapters on primary information sources; social, family and criminal background; current offence; important sentence management dates;transfers and disciplinary assessments; behavioural performance; psychological/psychiatric

summary; and personal development. It

includes explanations of Mr. Fabrikant’s various refusals to undergo psychological assessments and living skills programs. It records hisconflicts with institutional staff members. The report includes a mention of Mr. Fabrikant’s version of the events connected to themurder, in what is reported to be his words, where he is quoted as stating “I felt my life to be in danger; in this situation, deadly force isjustified”. [59] Mr.

Fabrikant has failed to show how any defect in his correction plan alluded to in the report, if such a defect exists, wouldhave any impact on the determination made by the judge to dismiss his motion for judicial review. [60] In sum, the judge made no reviewable error in considering the parole eligibility report or in his decisions relating to Mr.Fabrikant’s cross-examination of its author. *** [61] The final ground of appeal bearing on the interlocutory judgments is stated as follows: Q5: Brunton, J.S.C. erred in law when he disallowed Appellant's request for important documents from Concordia University andpsychiatrist Steiner, as described in Appellant's letter dated April 23, 2008. [62] Mr.

Fabrikant submits that the judge erred in refusing to order the disclosure of these documents which, he says, would havebrought to light circumstances relevant to his conviction for murder, in particular in respect of Concordia University’s administrativeresponse to the events. [63] The judge made no error in refusing to order disclosure of documents not relevant to the application for judicial review asstipulated in subsection 745.63(1) Cr.C.

The documents relating to the issue as to whether or not the appellant was justified incommitting the crimes of which he was convicted in 1992 are not the proper material upon which the application for judicial review ofparole ineligibility can be decided since arguments relating to the justification are unavailable as a matter of law. IV.2 Grounds for Appeal relating to the Judgment on the Merits [64] Four of Mr.

Fabrikant’s grounds for appeal relate most directly to the judgment dismissing his application for judicial review onthe merits. [65] His first two arguments bear on the criteria applicable to the motion: Q3: Brunton, J.S.C. erred in law when he misinterpreted the Supreme Court decision in R. vs. Swietlinski (SCC), [1994]3 S.C.R. 481. Q4: Brunton, J.S.C. erred in law when he claimed in paragraph 17 of his final judgment that three of Appellant's grounds were notadmissible, since they were subject of criminal trial. [66] Mr.

Fabrikant sought to bring evidence in support of his application relating to the circumstances in which he committed thecrimes for which he was convicted. He contended that because he did not have the opportunity to testify at his trial, his account of thefacts was new information in connection to his application to reduce the period of parole ineligibility. Specifically, grounds a),

b) and c)he advanced in support of his application before Brunton, J. related directly to the events surrounding his conviction for murder: 7.

a) I was deliberately and maliciously provoked into shooting, my life was threatened and I reacted accordingly;

b) I did not plan to kill anyone on August 24, 1992;

c) I was not allowed to testify at my trial, had the jury heard my testimony, they would not have convicted me of premeditatedmurder;

d) There were 3 ½ minutes in my life when I killed four people and there were remaining 67 years of my life, when I did not haveeven a speeding ticket.

e) While in jail, I had felt my life threatened at least 6 times, nevertheless, I have never even said a bad word to anyone or everraised my voice, and of course, there has never been any violent reaction. I am now immune to any provocation, and therefore, no threatto society.

f) I am old and gravely ill. I had two heart attacks and numerous angioplasties, and Correctional service fails to provide propermedical care. My family had to borrow money in order to save my life since jailers refused to pay for the life saving procedure. [Emphasis added.] [67] It should be recalled that the respondent argued in first instance that Mr. Fabrikant should be denied a reduction in paroleineligibility because he had not changed since the time he committed murder in August, 1992.

According to the respondent, Mr.Fabrikant still believed he had committed no wrong and constituted as substantial a danger to the community as he did in 1992. [68] In paragraphs [17] to [22] of his reasons, Brunton, J. declined to consider evidence relating to the appellant’s grounds 7a), b)and

c) because they amounted to a revisiting of matters decided at the trial on verdict. In his view, these grounds were not material to Mr.Fabrikant’s application for judicial review of parole ineligibility. [69] Mr. Fabrikant contends that this was wrong in law. [70] In order to decide whether, at the first stage of the two-stage process, he should refer the matter to a jury, Brunton, J.

determined that the appropriate starting point was the test set forth in R. v. Swietlinski.[16] He was mindful that the case was decided ata time when a motion under

section 745.6 Cr.C. was a one-stage process whereby an applicant had direct access to a jury. He was of theview that Swietlinski was nevertheless relevant: “since the first-stage judge has, to a certain extent, to place her or himself into the seat ofa jury panel, the Supreme Court’s discussion of the jury’s role provides guidance” (paragraph [12]). [71] The judge then cited the test set out by in Swietlinski: [13] The Supreme Court began by examining what is the purpose of the reassessment of parole eligibility.

The purpose of a reassessment procedure, especially when it takes place 15 years after the initial decision, is necessarily to re-examine adecision in light of new information or factors which could not have been known initially. It follows that the primary purpose of a s. 745hearing is to call attention to changes which have occurred in the applicant's situation and which might justify imposing a less harshpenalty upon the applicant. Accordingly, the jury's decision is not essentially different from the ordinary decision regarding the length ofa sentence.

It is similar to that taken by a judge pursuant to s. 744 of the Code as to the period of ineligibility in cases of second-degreemurder. [ (SCC), [1994] 3 S.C.R. 481, 492-3] (Emphasis in original.) [72] On this basis, Brunton, J. declined to consider the three grounds advanced by Mr. Fabrikant that related to his responsibility forthe crimes committed in 1992. In his view, all of the issues had been considered in the trial or appeal process and, accordingly, should beexcluded in the review of parole ineligibility.

In this connection, Brunton, J. wrote: [21] Due to these facts, the Court informed the petitioner early on in the process that it would not consider the grounds found at para.7(a), (

b) and (

c) of his petition since these same grounds could not be put to a jury at the second stage. The review process provided bys.745.6 Cr.C does not permit revisiting issues which were definitely decided at trial or following an appeal. As pointed out in R. v.Vaillancourt, [(1988) (ON SC), 66 C.R. 66, 74 (Ont. H.C.)]. The determination of guilt, made at trial beyond a reasonable doubt, concludes all questions of the applicant's blameworthiness in respectof that offence. [73] According to Mr. Fabrikant, the judge misapplied Swietlinski. Because he had not testified at his trial, Mr.

Fabrikant contendedthat his own version of the events constituted new information that was relevant to the judicial review. [74] The appellant is mistaken. The judge correctly applied Swietlinski and was right not to consider Mr. Fabrikant’s groundsrelating to his version of the events leading to his conviction. [75] The Criminal Code is clear on the manner to proceed under the two-stage process: subsection 745.61(2) Cr.C. directs that thejudge renders his decision, at the first stage, by considering the same criteria that the jury is to consider at the second stage undersubsection 745.63(1) Cr.C.

As Brunton, J. noted at paragraph [16] of his reasons, the burden at the first stage rests with the applicant, ona balance of probabilities, to demonstrate that the application is not an obviously hopeless application. The task of the judge isconstrained to a determination of this on the basis of the relevant factors set out in paragraphs 745.63(1)(

a) to (e). [76] Accordingly, the judge correctly decided that the first-stage of the judicial review was not the moment to undertake a newexamination of the circumstances leading to the conviction at trial. The right focus is on changes to the applicant’s situation followinghis conviction and sentencing that might justify reducing the number of years prior to his eligibility for parole. Grounds 7a),

b) and c)advanced by Mr. Fabrikant all deal with his view of things as they were in 1992 and why, in the final analysis, it was wrong to convicthim of a crime. This is irrelevant on an application relating to the reduction of the period of parole ineligibility. [77] As for Mr. Fabrikant’s argument that the information is new because he was not permitted to testify at his trial, this too iswithout merit. The matter of his right to testify was disposed of at his trial and on appeal and is now res judicata. [78] Finally in this regard, Mr.

Fabrikant argues that the judge erred in refusing to consider the documents prepared after the time thecrimes were committed, specifically certain documents dating in or around 1994 which, he says, is “new information” relevant to hismotion for judicial review. He says these documents explain, after the fact, what occurred at the University that prompted him to act ashe did. [79] In support of this argument, Mr.

Fabrikant cites Swietlinski and specifically an observation made by Lamer, C.J., at paragraph[12] of his reasons for the majority of the Supreme Court, in which he writes that “[t]he purpose of the reassessment procedure,especially when it takes place 15 years after the initial decision, is necessarily to re-examine a decision in light of new information orfactors which could not have been known initially” (emphasis added). [80] Mr. Fabrikant has misread Swietlinski.

Lamer, C.J. explains in the next sentence of the same paragraph: “It follows that theprimary purpose of a s. 745 hearing is to call attention to changes that have occurred in the applicant’s situation and which might justifyimposing a less harsh penalty upon the applicant” (emphasis added). The fact that the documents were prepared after the date on whichthe offences were committed does not make them “new information” for the purpose of the motion for judicial review; what is importantis whether or not they indicate a change in Mr. Fabrikant’s situation as an offender serving his sentence.

Brunton, J. decided that theappellant’s situation had not changed and that he was, in essence the same man who committed the murders and was sentenced to lifeimprisonment without eligibility for parole for 25 years. The judge was right to consider that the 1994 documents did not constitute newinformation relevant to the motion. *** [81] The remaining grounds for appeal have been stated by the appellant as follows:

Q6: When a judge writes in a judgment a finding of fact, which he knows to be wrong, such an error is generally considered as error of law, rather than error of fact. Mr. Brunton committed numerous errors of this kind. Q7: Brunton, J.S.C. erred in law when he used quotes from various judgments of other judges as evidence of Appellant's character. [ 82 ] Mr. Fabrikant submits that the judge erred in his

interpretation of the facts in many respects. He also argues that the judge misquoted or misunderstood reasons for judgment in other proceedings concerning his case. Mr. Fabrikant reproaches the judge for not appreciating the context in which the events of 1992 took place, noting that he was present and understands better what transpired than courts who look back on the facts second hand. [ 83 ] The appellant has failed to show a reviewable error that would allow for the judgment on appeal to be disturbed.

Moreover he has not shown that the judge misunderstood other proceedings or that the judge considered materials other than those he was entitled to consider, pursuant to subsection 745.63(1) Cr.C . , to decide the motion before him. [ 84 ] The appellant further argued that the judge misrepresented the truth concerning the evidence as to whether he had been in a position to prepare his motion adequately. The appellant says he had no help from a lawyer, no access to his personal effects necessary to prepare the case, no access to jurisprudence. [ 85 ] This complaint is also without foundation.

As is plain from the judgment reviewing the denial of legal assistance of the Superior Court, rendered on July 18, 2008, [17] and the judgment on a motion for legal assistance of the Court of Appeal rendered on March 2, 2011, [18] Mr.

Fabrikant himself refused ordinary assistance from legal aid and was unable to establish his right to have a lawyer appointed for him pursuant to s. 684 Cr.C . *** [ 86 ] In conclusion, it is plain that the judge’s view that the appellant’s motion for a reduction in parole ineligibility was “obviously hopeless” and had no reasonable chance of success is free from any error that would allow this Court to intervene. The judge decided, on the basis of the evidence presented to him, that “there is not an iota of proof to suggest that [Mr.

Fabrikant] is not, psychologically, the identical person who took the life of four persons in the context of a workplace dispute” (paragraph [43]). In the concluding paragraphs of his reasons, the judge wrote the following: [47] The character of the petitioner in 1992; the nature of the crime – multiple murders; the lack of personal development over the last fifteen years and the lack of psychological assessment and treatment are the factors which lead the Court to dismiss the motion.

It is simply not enough for the petitioner to advance that "I have not been violent in prison, I am immune to provocation and thus not a threat". [48] The dangerousness of the petitioner in the controlled environment of a penitentiary cannot be compared were he to be liberated. The death of four people is testimony to how the petitioner resolves conflicts when in society. Equally worrisome is that the groups of people he has entered into conflict with over the last fifteen years has expanded.

It is no longer limited to work colleagues but now includes correctional officials, doctors and justice system participants. None of the members of these groups could feel safe knowing that the petitioner was back amongst them. [ 87 ] The judge dismissed the motion for reduction of the period of parole ineligibility because the situation of the appellant had not changed since the time he committed the crimes of which he was convicted. This conclusion should be confirmed on appeal. [ 88 ] Lastly, his decision to prohibit Mr.

Fabrikant from ever bringing another motion for reduction of parole ineligibility, stated in paragraph [50] of his reasons and rendered pursuant to paragraph 745.61(3) Cr.C . , was not challenged and should also not be disturbed. FOR THE AFOREMENTIONED REASONS , the Court: [ 89 ] DISMISSES the appeal. FRANÇOIS DOYON, J.A. NICHOLAS KASIRER, J.A. CLAUDE C. GAGNON, J.A. V.I. Fabrikant In person Mtre Éric Lafrenière (absent) Mtre Michèle Lavergne (absent) Public Prosecution Service Department of Justice of Canada For the respondent Attorney General of Canada Mtre Carole LeBeuf Criminal and penal prosecuting of Quebec

For the respondent Attorney General of Quebec Date of hearing: January 15, 2014 [5] Fabrikant v. Attorney General (Quebec) et al. , 2008 QCCS 1742 . [6] Fabrikant v. Attorney General (Quebec) et al. , Que. Sup. Ct., No. 500-36-004596-089 , May 13, 2008 , Brunton J.