ANDRÉ ROBILLARD Applicant v. ATTORNEY, 2016 FC 495

Date: 20160504 Docket: T-2296-14 Citation: 2016 FC 495 [UNREVISED ENGLISH CERTIFIED TRANSLATION] Ottawa, Ontario, May 4, 2016 PRESENT: The Honourable Mr. Justice Martineau BETWEEN:ANDRÉ ROBILLARDApplicantandATTORNEY GENERAL OF CANADARespondent JUDGMENT AND REASONS [1] The applicant, André Robillard, will be 70 years old in a few weeks. His lengthy criminal record and many years’imprisonment in penitentiaries in this country were the result of significant maladjustment.

Nonetheless, over the last few years, theapplicant has made an effort to equip himself with tools that have helped him adopt more social behaviour. However, he is still stuckwith an unfortunate label. In fact, he has had it since the 70s. At age 25, he became the youngest “habitual criminal” in Canada. The legaldesignation of “fugitive from justice,” as used by Molière, is certainly more neutral than a literal translation of the English expression“habitual criminal.” However, for most people, the applicant will always be viewed as the latter.

This is a hard label to live with,especially for an ageing man who says he is rehabilitated and represents no danger to society. Like many other offenders, he is also analcoholic. He agrees that he is a criminal, but says he is not a dangerous offender. He certainly committed some violent crimes, but thatwas during a different period of time. In 1987, he killed a man who assaulted him in a bar, but he served his sentence for thatmanslaughter conviction. He paid his “debt” to society and says that he has since conquered his worst enemy: himself.

The applicant’ssobriety and alcohol avoidance have released him and given him back his freedom. However, this freedom that was regained throughconsiderable effort remains very precarious because the applicant is still subject to the preventive detention sentence resulting from hishabitual criminal designation in 1972. For this reason, in 2005, he asked the Governor General to grant him remission of thisindeterminate sentence that was causing him much upheaval and harm. Nine years later, the Honourable Steven Blaney, Minister ofPublic Safety and Emergency Preparedness (the Minister), denied his request.

This is the decision currently under review. [2] In a letter dated September 9, 2014, addressed to the applicant’s current counsel, Pierre Tabah, a Parole Board of Canada(PBC) representative, Pierre Richard Fidelia, explained the Minister’s reasons for denying the request: [translation] This is a response to Mr. Robillard’s application for remission of his sentence under the Royal Prerogative of Mercy and his request thathe be informed of the recommendation of the Parole Board of Canada (PBC).

As you know, in accordance with the principle of an independent judiciary, remission of a sentence may only be granted when it isshown that there was an error of law, a great injustice for example, a change to a law that would have unintentional and unexpectedconsequences for a person found guilty, who received a sentence or punishment that was too severe and disproportionate to the natureand severity of the offences committed, but that was also more severe than that which others in a similar situation would have received.

The Minister of Public Safety and Emergency Preparedness ordered the PBC to inform you that Mr. Robillard does not meet the criteriafor clemency and therefore no investigation will be initiated in his case. He has not provided evidence that he suffered an injustice or apunishment that was too severe or disproportionate to the nature and severity of the offences committed.

The Minister also ordered thatyou be advised that he does not sanction disclosure of the recommendation concerning the merit of the application to exercise the RoyalPrerogative of Mercy in this case. [3] The applicant simply does not accept this categorical refusal, because he claims the PBC and the Minister did not act fairlyand did not seriously review his clemency application. The Minister’s refusal was unreasonable, and the PBC’s recommendation was notcommunicated to him beforehand.

The Attorney General of Canada (the respondent) maintains that the contested ministerial decision islegal and reasonable, and that the PBC review process is also legal. [4] The standard of review applicable to the examination of the merit of the contested decision is that of reasonableness(Dunsmuir v New Brunswick, 2008 SCC 9 at paragraph 47 [Dunsmuir]; Bilodeau v Canada (Department of Justice), 2011 FC 886 atparagraph 64 [Bilodeau]; McArthur v Ontario (Attorney General), 2012 ONSC 5773 at paragraph 22; Walchuk v Canada (Minister ofJustice), 2013 FC 958 at paragraph 21).

In terms of verifying whether the duty to act fairly has been met, the correctness standard ofreview applies (Bilodeau at paragraph 63), bearing in mind that the scope of the obligation of procedural fairness is variable and to bedecided in the particular context of each case (Baker v Canada (Minister of Citizenship and Immigration), (SCC) atparagraph 21 [Baker]). [5] However, whether the issue is procedural fairness or the reasonableness of the Minister’s refusal, the judicial review cannottake place in a vacuum.

Fortunately, rule 317 of the Federal Courts Rules, SOR/98-106 (Rules) allows any party involved in a judicialreview to request relevant documents or materials that are in the possession of a tribunal whose order is the subject of the application.

Moreover, rule 318 states that where the tribunal or a party objects to a request under rule 317, the Court may give directions on how toproceed and order that all or some of the requested documents be provided. [6] On December 2, 2014, following the applicant’s request by way of his Notice of Application, the PBC provided a copy of itsrecommendation, this time with no objection from the Minister to its disclosure.

On March 9, 2015, subsequent to the respondent’sparallel request, the PBC also produced, with the exception of documents subject to solicitor/client privilege, the entire PBC file relatingto the clemency application, including the decision rendered by the Minister on August 29, 2014 and shared with the PBC onSeptember 9, 2014, the PBC’s recommendation, the applicant’s criminal record, as well as the decisions and other extraneous materialnot provided with the clemency application that the PBC consulted for the purposes of the recommendation. [7] In this case, the Minister’s refusal followed a negative recommendation from the PBC on March 18, 2014, which was notshared with the applicant or his counsel before the contested decision was made.

This failure to disclose raises two separate questions.First, was there a material breach of procedural fairness? Secondly, should the review of the reasonableness of the Minister’s decision belimited to the reasons given in Mr. Fidelia’s letter of September 9, 2014, or could it also include a review of the recommendation inquestion and other extraneous material that was not previously shared with the applicant or his counsel? [8] This application for judicial review should be allowed. On the one hand, there were serious material breaches of proceduralfairness.

On the other hand, the respondent cannot rely on the PBC’s recommendation to justify the reasonableness of the Minister’srefusal. For a better understanding of the final result, I will consider the parties’ submissions after providing a general description of thiscase, as well as the complex legal framework on which it is built. “HABITUAL CRIMINAL”: A DESIGNATION THAT ISFALLING INTO DISUSE [9] This issue has been raised before.

First of all, there is the idea that the “habitual criminal” is a particular breed of offenderwho, either through social determinism or voluntary life choices, has become an incorrigible repeat offender, who society is forced toquarantine, as if to protect itself from a sick and contagious body. Let us first review the criteria for and legal effects of designating anindividual as a “habitual criminal.” First adopted in 1947 (SC 1947, c 55,

section 18), and subsequently modified several times(SC 1953-54, c 51,

section 660; SC 1960-61, c 43,

section 33; 1968-69, c 38,

section 77), the former

section 688 of the Criminal Code,RSC 1985, c C-46 [Criminal Code] allowed the Superior Court of criminal jurisdiction, upon application, to designate an accused as a“habitual criminal” and sentence the individual to preventive detention in the interest of protecting the public (former

section 687). Afterreaching the age of 18, the accused must have been convicted of three or more separate indictable offences resulting in a sentence ofimprisonment for five years or more and be persistently leading a criminal life. [10] However, the Darwinian theory of criminal phenomena, which justified shutting away habitual criminals, gave way long agoto a sociological understanding. Crime is most often the result of an individual’s failed social adaptation; therefore, deviant behaviourcan be corrected by a reassessment of values.

However, even if opportunity makes thieves, a good number of these asocial individualswho are considered a “public nuisance” can still be rehabilitated. The “habitual criminal” category was done away with in Canada(SC 1976–77, c 53,

section 14). However, there is no question that a minority of dangerous individuals will never be rehabilitated. Therisk is too great to release these individuals, even on parole, hence the need for preventive detention in a penitentiary, even after theyhave served their initial sentence. In Canada, since 1977, only “dangerous offenders” can be sentenced to preventive detention, theultimate indeterminate sentence. [11] Obviously, we must now refer to the provisions of

section 687 of the Criminal Code. As pointed out by the Supreme Court inR v Lyons, (SCC) at paragraph 43 [Lyons]: First, the legislation applies only to persons convicted of a “serious personal injury offence” as defined in s. 687. These offences all relateto conduct tending to cause severe physical danger or severe psychological injury to other persons. Significantly, the maximum penaltyfor all these offences must be at least ten years’ imprisonment.

Secondly, it must be established to the satisfaction of the court that theoffence for which the person has been convicted is not an isolated occurrence, but part of a pattern of behaviour which has involvedviolence, aggressive or brutal conduct, or a failure to control sexual impulses. Thirdly, it must be established that the pattern of conduct isvery likely to continue and to result in the kind of suffering against which the

section seeks to protect, namely, conduct endangering thelife, safety or physical well-being of others or, in the case of sexual offences, conduct causing injury, pain or other evil to other persons.Also explicit in one form or another in each subparagraph of s. 687 is the requirement that the court must be satisfied that the pattern ofconduct is substantially or pathologically intractable. [Emphasis added] [12] This frame of reference can stand on its own. But then what became of the “former” habitual criminals? Were theyautomatically converted into “dangerous offenders?” [13] Obviously, the answer is no.

Because that would have required the retroactive application of the law. However, as we haveseen, the conditions for designating an individual as a dangerous offender are more stringent than those for designating a habitualcriminal could have been. Nonetheless, despite the repeal of the former

section 688 of the Criminal Code, a habitual criminal, today, isstill subject to the legal and human consequences of this designation, which are, in effect, of a permanent and inescapable nature. In otherwords, the applicant’s preventive detention sentence in 1972, almost 45 years ago, will follow him for the rest of his life. [14] The applicant is one of the last habitual criminals in Canada, but in the early 80s, they numbered a little more than 90.However, a separate event fundamentally changed the parameters of the debate: the entry into force in 1982 of the Canadian Charter ofRights and Freedoms,

part I of the Constitution Act, 1982,

schedule B to the Canada Act 1982 (UK), 1982, c 11 [Charter]. In the past, inthe name of parliamentary sovereignty, elected officials could enact laws to eradicate or avoid an increase in the social scourge of

criminal behaviour, without the possibility of review by the courts. Now, however, the system of protection for the individual provided for by the Charter must be taken into account. The Charter guarantees the rights and freedoms set out therein, subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society (

section 1 of the Charter ). [ 15 ] It was therefore not long before we asked ourselves whether the continuation, without any legal framework, of a system of preventive detention for habitual criminals was consistent with the Charter , and would be able to survive a constitutional challenge. Thus, in December 1982, in a report of some 200 pages, (Michael Jackson, Sentences That Never End: The Report on the Habitual Criminal Study , Vancouver, University of British Columbia, 1982), Professor Michael Jackson of the University of British Columbia noted that Parliament, by amending

section 678 of the Criminal Code in 1977, “had clearly indicated that henceforth only those persons who were dangerous should be sentenced to preventive detention,” and that after 1977, “the fact that a person had committed a number of non-dangerous offences and was leading persistently a life of crime, whilst relevant to fixing the sentence for any further offence such a person committed, would not be sufficient for the indeterminate life sentence of preventive detention” (pages 21-22).

This echoed the fact that, in 1969, the committee chaired by Justice Ouimet had concluded that “the habitual criminal legislation had been misdirected in Canada against serious social nuisances rather than the dangerous criminal.” Professor Jackson noted regarding the 18 habitual criminals he met in 1980 that “thirteen of the 18 habitual criminals or 72% have been identified by the Parole authorities as nuisance offenders rather than dangerous offenders” (pages 27-28).

Note that the applicant’s case was not studied by Professor Jackson, who concluded that “none of the men in the study can properly be viewed as dangerous offenders and that some of them present a low risk of criminal recidivism, there are some men who may well commit further offences” (page 50). After analysis of the case law, he concluded that “the continued application of preventive detention to the men in the study is a violation of

section 12 of the Charter of Rights and Freedoms” (page 63). But what do the courts themselves say? [ 16 ] In July 1983, in Re Mitchell and the Queen (1983), 6 CCC (3d) 183 (Ont H Ct J) [ Mitchell ], the following, now famous, ruling was handed down by the Ontario High Court of Justice. Mr. Justice Allen Linden flatly stated that the continued preventive detention of habitual criminals could, in certain specific cases, constitute “cruel and unusual treatment or punishment” within the meaning of

section 12 of the Charter : “I find that the continued detention of the applicant, if in fact he is no more than a social nuisance and not a danger to the public , satisfies the disproportionality test. . . [and] I find that the applicant may be entitled to relief pursuant to s. 24(1) of the Charter. . .” (page 219).

In this case, Linden J. adjourned the application for habeas corpus and informed the parties that the Superior Court of Justice in Ontario would be obliged to order the release of the applicant Mitchell if the Crown was unable to satisfy the Court, on the merits, that he still represented a danger to the public within the meaning of the new provisions of the Criminal Code concerning dangerous offenders. [ 17 ] In October 1983, Linden J. ordered the immediate release of applicant Mitchell, who would no longer be subject to the sentence of preventive detention that had been imposed in 1970.

This first legal analysis obviously compelled the government to reflect on the matter. Shortly thereafter, the Inquiry into Habitual Criminals in Canada, chaired by the Honourable Mr. Justice Stewart M. Legatt (Leggatt Commission), was mandated by the Solicitor General and the Minister of Justice to review the habitual criminal files to determine whether each of those individuals represented a danger to the safety of others in light of the new criteria and the general philosophy set forth in

Part XXI of the Criminal Code concerning dangerous offenders. The Leggatt Commission report was published in 1984 (Canada, Inquiry into Habitual Criminals in Canada, Report of the Inquiry into Habitual Criminals in Canada , Ottawa, Government of Canada, 1984, the Honourable Mr. Justice Stuart M. Leggatt [Leggatt report; Commission report]). [ 18 ] Leggatt J. sorted the habitual criminals into three categories:

a) Those who were not candidates for dangerousness proceedings and did not present a danger to the personal safety of others having regard for the philosophy of

Part XXI of the Criminal Code . This involved 73 individuals.

b) Those who did not present themselves as candidates for dangerousness proceedings based on their records, but who did present a danger to the personal safety of others. There were nine individuals in this category.

c) Those who presented themselves as candidates for dangerousness proceedings and represented a danger to the personal safety of others. There were five individuals in this category. [ 19 ] The possibility of rehabilitation and the offender’s level of dangerousness were central to justifying a continued sentence of preventive detention. But how can dangerousness be assessed? The Leggatt Commission found that “too much emphasis in the past has been placed on the capacity of psychiatrists and psychologists to predict future dangerous behaviour in both the Court system and the parole system” (page 82).

More objective elements should be considered, such as the offender’s past behaviour and age, and other external factors, such as alcohol and drugs, which increase the risk of recidivism. [ 20 ] Leggatt J. also noted the following on this subject on pages 82-84 of the Commission report: My own approach to assessing these cases has been determined not only by the criteria set forth in

Part XXI of the Criminal Code but also by common sense. I believe the best indicator of a person’s potential for dangerousness is what he has done in the past. In this context considerable emphasis has been placed by the Inquiry in ascertaining the specifics of the past behaviour of each of the habitual criminals with a view to ascertaining the potential danger which is evidenced by such conduct. The experts also acknowledge the decrease in dangerousness and criminality as persons age or “burn-out”.

My examination of each of these individuals has focused considerably upon the attitudinal and behavioural changes that have occurred as they grew older. A third factor upon which I have placed emphasis in my consideration of these cases is to identify those external influences on behaviour (drugs, alcohol, mental disorder) and attempt to discern the extent to which the habitual criminal has overcome his problems in these areas. I should like to make this comment with respect to alcohol abuse. Many of the habitual criminals are alcoholics.

This disease has been a significant factor in the “revolving-door syndrome” of these individuals. When released on parole a condition to abstain from alcohol is frequently included as a condition to such release. While some of the habitual criminals have been able to abide by this condition and successfully complete parole, many others have not. Those who have failed to abide by such conditions have found themselves, sooner or later, re-incarcerated as a result of the revocation of their parole.

If the purpose of conditions on parole for habitual criminals is to ensure behaviour in the community that will limit the danger to the public, then an abstinence clause is an appropriate condition if the habitual criminal has a history of committing dangerous or potentially dangerous acts while under the influence of alcohol. [Emphasis in the original.] [ 21 ] According to the Commission report, “alcohol and/or drug abuse played a major role in the criminal activities of at least 53 of the subjects reviewed” (pages 8-9).

In this case, “the best predictor of dangerousness lies in the past conduct and record of the subject,” whereas “the age of the subject is generally a positive consideration in most of the cases; the time elapsed since the last criminal offence having any element of violence or potential for violence was also a very serious consideration” (page 12). For a small number of these offenders, Leggatt J. recommended that clemency not be granted before the expiry of the period he specified. This was the case for the applicant. We will return to this later.

Leggatt J. recommended automatic and immediate release for the majority of the habitual criminals. [ 22 ] But herein lies the problem: What is to be done with sentences of preventive detention that were legally imposed by the courts? Should each and every habitual criminal who Leggatt J. recommended be released do as applicant Mitchell did and apply for a writ of habeas corpus to review the legality of a continued sentence of preventive detention? The Leggatt Commission proposed a practical, more economical and less risky solution than introducing a bill in Parliament.

It found that “pardon power provides the most appropriate mechanism for providing relief to those habitual criminals deserving of such relief.” The report explained that pardon “provides for appropriate flexibility in dealing with the different levels of achievements in the community that the various habitual criminals have attained” (pages 122-123).

For Leggatt J., it is obvious that the exercise of the prerogative of mercy is not restricted by the Letters Patent constituting the office of Governor General of Canada (page 110), whereas, in Canada, “the power to pardon has been utilized. . . to grant relief to persons convicted of the most serious offence alleged in the Criminal Code – murder” (page 122). [Emphasis in the original] [ 23 ] What is the royal mercy?

ROYAL PREROGATIVE AND APPLICATION FOR PARDON [ 24 ] The terms “pardon” and “royal mercy” are often linked, but beware: there is “Pardon” and “pardon.” It is important not to confuse the exercise of the royal mercy with the statutory power conferred on the PBC under the Criminal Records Act , RSC, 1985, c. C-47 to order that an applicant’s criminal record be suspended, and that is conditional on the expiration according to law of the sentence in question. This would mean 10 years for an offence that was prosecuted by indictment, or five years for an offence that was punishable on

summary conviction. The PBC can revoke this record suspension, formerly called a “pardon,” if the individual is subsequently convicted of a prescribed offence or is no longer of good conduct. [ 25 ] In contrast, the royal mercy is Her Majesty’s exceptional power to remit the sentence of anyone sentenced by a court, while the sentence is still in full effect, regardless of the ignominy or severity of the crime committed. It is a holdover from the absolute power to pardon their subjects that British monarchs used to hold.

When a sentence is thus remitted in Her Majesty’s name—this is what distinguishes the royal mercy from a regular pardon—the offender’s criminal record is not suspended. The previous sentence remains. However, the offender is completely and permanently freed from the consequences of the conviction. In this sense, the remission of sentence sought by the applicant will be permanent. It will not be a conditional pardon.

Obviously, this type of solution is exceptional. [ 26 ] To summarize: In a modern parliamentary monarchy, the Royal Prerogative of Mercy is exercised by the government that was democratically elected by the people. Historically, the royal mercy has had two strands and two objectives: to show compassion by relieving an individual of the full weight of his or her sentence, and to correct miscarriages of justice such as wrongful convictions ( Hinse v Canada (Attorney General) , 2015 SCC 35 at paragraph 28 [ Hinse ]).

These two strands were maintained in Canada. [ 27 ] In terms of correcting miscarriages of justice, Parliament has since adopted legislation, the former

section 690 of the Criminal Code , and, since 2002, the new subsections 696.1 to 696.6 of the Criminal Code , authorizing the Minister of Justice to order a new trial or refer the matter to a court of appeal. This review mechanism is available to anyone who has been convicted of an offence under

an Act of Parliament or a regulation made under

an Act of Parliament or has been found to be a dangerous offender or a long-term offender under

Part XXIV and whose rights of judicial review or appeal with respect to the conviction or finding have been exhausted. However, a habitual criminal cannot avail himself or herself of these provisions, which do not include any transitional measures. Before 1994, the Department of Justice “took a more or less ad hoc approach” to

section 690 applications ( Hinse at paragraph 62 ).

Now, the Minister of Justice must review subsection 696.1 clemency applications in accordance with the Regulations Respecting Applications for Ministerial Review — Miscarriages of Justice (SOR/2002-416) (subsection 696.2 of the Criminal Code ). [ 28 ] However, it is primarily the first, broader and less well-defined strand of the exercise of the Royal Prerogative of Mercy that is at issue in this file because it was already accepted that the applicant’s judicial designation as a habitual criminal in 1972 was perfectly legal at that time and supported by the evidence on record.

Therefore, today, we speak of granting the applicant a “remission of sentence,” which is explicitly allowed by subsection 748(1) of the Criminal Code , which states that “Her Majesty may extend the royal mercy to a person who is sentenced to imprisonment under the authority of

an Act of Parliament, even if the person is imprisoned for failure to pay money to another person.” That said, nothing in the Criminal Code “in any manner limits or affects Her Majesty’s royal prerogative of mercy” (

section 749 of the Criminal Code ). [ 29 ] As stated above, an individual’s prior status as a “habitual criminal” does not automatically make this individual a “dangerous offender” today within the meaning of

section 687 of the Criminal Code . Furthermore, according to the evidence on record, in the past, the Court remitted the sentences of several habitual criminals who did not represent a danger to public safety. Therefore, the Minister cannot pretend to be unaware of the favourable aspect of Leggatt J.’s comments in 1984 regarding the importance of the absence of

dangerousness factor for a habitual criminal applying to Her Majesty for clemency. Legally speaking, it is the Governor in Council who grants a remission of sentence on behalf of Her Majesty. However, in practice, the Governor in Council will only act after receiving approval from the Minister or, at least, from another minister, such that all positive recommendations for royal mercy are directed to the Cabinet. [ 30 ] In the 1980s, the royal prerogative was exercised through an internal ministerial review mechanism.

In an internal note dated March 21, 1988, that was considered by the PBC and filed in the Court record in accordance with rule 318, the deputy minister, John C. Tait, summarized the procedure to be followed in such cases for the benefit of the attorney general at the time, the Honourable Mr. Justice James Kelleher.

It involved focusing on the danger to public safety that the habitual criminal could still represent: If it is your view that any of the cases should not be recommended for relief from the status of habitual offender, the inmates in question will continue to be eligible for parole release, and of course may challenge their continued incarceration/supervision by way of legal action or may apply for the Royal Prerogative of Mercy at any time.

I believe it is important to bear in mind that in formulating your recommendation, the test is not whether any of these offenders might offend again, but rather whether they constitute a danger to the personal safety of the public. Continuing their status as habitual offender means that they are subject to lifetime parole (or custody).

For those of this last group who have been out on parole now for several years, removal of habitual status essentially removes that “safety net.” On the other hand, in the absence of proof of dangerousness, it can be said that that safety net is unnecessary and is cruel and unusual punishment. Should any of the pardoned habituals violate the law now, it can be argued that they can be dealt with under the normal process of the law. [Emphasis added] [ 31 ] The Attorney General of Canada was responsible for administering the penitentiary system and the PBC. That function was abolished in 2005.

Clemency applications under the royal prerogative are now handled by the Minister (formerly the Minister of Public Safety).

Section 110 of the Corrections and Conditional Release Act , SC 1992, c 20 [ Corrections Act ] specifies that “the Board shall, when so directed by the Minister, make or cause to be made any investigation or inquiry desired by the Minister in connection with any request made to the Minister for the exercise of the royal prerogative of mercy.” This explains the PBC’s involvement in the current case.

In theory, the Minister, whose expertise in this area is not being challenged, could have performed a [ translation ] “preliminary review” of the applicant’s clemency application, but, instead, he chose to refer it to the PBC. As we will see further on, this application returned to the Minister nine years later.

The PBC concluded that the applicant [translation] “did not submit evidence that would justify proceeding further.” If the Minister agreed with the PBC’s recommendation, he only needed to sign the memo dated March 18, 2014 [translation] “to indicate that an investigation regarding exercise of the [Royal Prerogative of Mercy] would not be initiated in this case.” [ 32 ] Since 1958, it has been the responsibility of the PBC to conduct this type of investigation regarding the exercise of the royal prerogative when ordered to do so by the Minister.

Thus, the PBC took over from the former Remission Service that was responsible for investigating clemency applications on behalf of the Minister before the Parole Act , SC 1958, c 38 was adopted, which was replaced by the Corrections Act in 1992.

According to the Fauteux Report completed in 1956 (Canada, Committee Appointed to Inquire into the Principles and Procedures Followed in the Remission Service of the Department of Justice of Canada, Report of a Committee Appointed to Inquire into the Principles and Procedures Followed in the Remission Service of the Department of Justice of Canada , Ottawa, Department of Justice of Canada, 1956), the Remission Service used to regularly investigate remission of sentence applications under the royal prerogative, particularly on the grounds that the punishment inflicted was excessively severe.

This practice ended in 1925 (page 36). [ 33 ] Today, the Royal Prerogative of Mercy Ministerial Guidelines , which were published and posted on the PBC website (http://pbc-clcc.gc.ca/prdons/rpmm-eng.shtml) [ Guidelines ] are intended to help the PBC evaluate the merits of clemency applications and determine whether or not it should recommend to the Minister that the royal prerogative be exercised.

On the subject of formulating a recommendation regarding a remission of sentence, in an internal note dated March 18, 2014, produced under rule 318, the executive vice-chairperson of the PBC, Marie-France Pelletier, advised the Minister as follows: [ translation ] A set test used by the PBC stipulates that in accordance with the principle that the independence of the judiciary must be respected, remission of a sentence may only be granted when it is shown that there was an error of law, a great injustice, for example, a change in a law that would have unintentional and unexpected consequences for a person recognized as guilty who received a sentence or punishment that was too severe and disproportionate to the nature and severity of the offences committed, but also, that was more severe than that which others in a similar situation would have received. [ 34 ] However, in the recommendation under review, the vice-chairperson specified that [translation] “the [PBC] finds that other factors should be taken into consideration when formulating a recommendation in Mr.

Robillard’s case. ” [Emphasis added] Although it was not explicitly stated in the recommendation, the Court understands the “other factors” to be the applicant’s dangerousness, his alcohol-related criminal behaviour, parole possibilities, and the fact that the applicant must now live with the consequences of his past actions and the inconveniences caused by the fact that he was designated as a habitual criminal in 1972 (see paragraph 53 of the present reasons). Thus, the exceptional nature of a pardon should take into account the applicant’s particular situation.

Obviously the Minister is not bound by a recommendation from the PBC, whether positive or negative. The essence of the royal prerogative is that its exercise not be limited (

section 749 of the Criminal Code ). APPLICANT’S CRIMINAL HISTORY AND PROCESSING OF THE REMISSION OF SENTENCE APPLICATION [ 35 ] General description: Since he was first charged in 1962 when he was only 16 years old until today, the applicant has had 59

convictions, including manslaughter in 1988. If the past was any indication of what was to come, young Mr. Robillard’s future was plainto see. During the 10 years following his designation as a habitual criminal in 1972, he amassed convictions for bodily harm, weaponspossession, escape attempt, forcible confinement, armed robbery and escape. In July 1979, the applicant was sentenced to 16 years’imprisonment in the United States for theft while he was unlawfully at large.

This was significant because, although the applicant hadnot yet killed anyone—(this would come in 1987)—he was a dangerous man, who was respected by his peers and feared by societybecause they knew he could kill.

Did this, however, make him an incorrigible repeat offender, who should be kept in preventivedetention for the rest of his life? [36] That is what Justice Rhéal Brunet, the learned magistrate of the Court of Sessions of the Peace, believed when, on March 7,1972, following the applicant’s previous convictions, he designated him a “habitual criminal” and sentenced him to preventive detention(indeterminate sentence). The applicant was only 25 years old.

The magistrate was of the opinion that the applicant [translation] “is anincorrigible repeat offender, who represents a constant threat to society, hence the current danger in leaving him at large.” [37] As was mentioned before, 12 years later, in February 1984, the applicant’s case was reviewed by the Leggatt Commission.The applicant was in his prime. He was 37 years old. In an appendix to the Commission report, on pages 520-530, Leggatt J. found thatthe applicant’s continued preventive detention was justified because of his dangerousness (past or potential): DANGEROUSNESS Mr.

Robillard has participated in active and serious crime since 1962. His period of reform and rehabilitation has only been since 1982but too little time has gone by to be certain whether this change is permanent. I believe that he would have been a candidate for dangerousness proceedings at the time he was found to be an habitual criminal and Ibelieve he continues to be a candidate for such proceedings. RELIEF I do not believe that Mr. Robillard is an appropriate candidate for relief at this time but if his progress continues he should be reviewedafter a further 4 years.

This recommendation should not in any way inhibit his progress towards parole. [38] Therefore, more than 30 years ago, Leggatt J. considered that remission of sentence was not justified in the applicant’s case.Nonetheless, he did not consider him an offender damaged beyond repair. Time alone would tell what progress the applicant would makein his rehabilitation.

An administrative review of the applicant’s file was to be conducted after four years, to allow departmental officialsto evaluate the possibility of granting a remission of his sentence. [39] However, on October 2, 1987, while the applicant was on parole, he was arrested and charged with murder. On August 4,1988, the applicant was convicted of manslaughter and sentenced to 10 years 4 months in prison. This was his last serious personal injuryoffence. At that time, the applicant was 42 years old. Today, he emphatically states that he has learned his lesson—the hard way. Shouldwe believe him?

In this case, everyone involved acknowledges that the applicant’s criminal behaviour, including the manslaughter, isdirectly related to his uncontrolled alcohol consumption. As a result, while he was on parole, the applicant was convicted of variousalcohol-related offences (1995, 2003 and 2010). Can an alcoholic offender who has already committed serious personal injury offencesreally escape that life one day? [40] That is what the applicant thought 10 years ago, as did several experts who had followed his progress.

So too did the PBC,which has already granted the applicant parole several times after he had served various sentences of imprisonment, so that he couldchange his ways. In August 2005, the applicant, with the help of his former counsel, Jacinthe Lanctôt, applied to the Governor Generalfor remission of his sentence of preventive detention in accordance with the Royal Prerogative of Mercy. At that time, the applicant was59 years old. In addition to a copy of the applicant’s criminal record, the following was attached to the clemency application:

a) A document from the research

section of the Department of Justice Canada concerning the applicant’s hearing before the LeggattCommission on February 8, 2014 (appendix 2)

b) Nine psychological counselling and treatment reports related to the applicant’s drinking problem (1976 to 2003) (appendix 3)

c) Ten psychiatric and psychological assessments (1981 to 2002) (appendix 4)

d) Two psychological assessment reports, one psychiatric assessment report, and one psychiatric assessment report requested bycounsel for the applicant (2004 and 2005) (appendix 5)

e) The complete Leggatt Commission report, including the Mitchell judgment (appendix 6)

f) An excerpt from the PBC’s decision-making policies regarding offenders serving an indeterminate sentence (dangerous offendersand dangerous sexual offenders (appendix 7)

g) R v Smith, [1987] 1 SCR 1054 [Smith] judgment (appendix 8)

h) Professor Michael Jackson’s study, Sentences That Never End: The Report on the Habitual Criminal Study, Vancouver,University of British Columbia, 1982 (appendix 9)

i) A sentence calculation by Suzanne Godin, Regional Chief, Sentence Management for Quebec (appendix 10)

j) Justice Rhéal Brunet’s judgment in R v Robillard (March 7, 1972), Montréal 1453-70 (QCCSP), regarding the applicant’spreventive detention application (appendix 11)

k) Court of Appeal of Quebec judgment in Robillard v R, (QC CA), [1985] CA 691 [Robillard 1985] (appendix

12) [41] In essence, in his clemency application, the applicant is not claiming that his status as a habitual criminal is the result of amiscarriage of justice. He acknowledges that imposing an indeterminate sentence, in and of itself, does not violate

section 12 of theCharter. Instead, he is asking those in charge of reviewing his clemency application to determine whether the continued sentence ofpreventive detention, which the PBC continues to use as a basis for limiting his freedom, is still justified today, since his degree ofdangerousness has dropped drastically since the period during which he was convicted of manslaughter.

Since preventive detention isnow imposed on a specific group of “dangerous offenders,” in which he is not legally included, the continuation of this sentence shouldbe qualified as “cruel and unusual punishment” (Mitchell at pages 8 and 11; R v Milne, (SCC), [1987] 2 SCR 512 atparagraphs 16–19; Smith at paragraph 56).

This is one of those exceptional cases where the Royal Prerogative of Mercy should beexercised, in light of the disproportionate nature of the preventive detention sentence and the fact that, objectively, the applicant nowrepresents no danger to the public. [42] However, the remission of sentence application also emphasizes the personal and human aspects, and seeks Her Majesty’scompassion. The perpetuation of the repulsive “habitual criminal” label is an affront to human dignity and is causing him serious moralharm.

The applicant also wants his age and rehabilitation, which has included many treatments for his alcoholism, to be taken intoconsideration.

In their reports supporting the clemency application, the psychologists and the psychiatrist consulted unanimously agree:[translation] “The fact that [the applicant] was designated as a habitual criminal has affected him for a long time and led to various typesof oppositional behaviour, including his escapes (never involving violence)” (Gilles Gadoua, psychologist, October 25, 2004);[translation] “The early years of his release were difficult for him because he had to distance himself from the underworld (into which hehad undoubtedly integrated), he felt constantly judged by society, he had little self-confidence” (Johanne Bergeron, psychologist,October 6, 2004); [translation] “Mr.

Robillard has a hard time accepting his status as a habitual criminal and finds that it is affecting hisphysical and psychological health” (Dr. Renée Fugère, psychiatrist, January 10, 2005); [translation] “This emotional and physicalexhaustion, and his major bouts of depression served as motivation and a strong reminder for him to stop drinking and, more importantly,to take care of himself” (Gilles Gadoua, psychologist, October 25, 2004). [43] The applicant’s “habitual criminal” status means that, although he has served his other sentences, he is practically on parolefor life.

In this context, if the preventive detention sentence is withdrawn, how much time will he have to serve? In 1985, the Court ofAppeal of Quebec ruled that the applicant’s previous sentences could be served consecutively among themselves, but concurrent to theindeterminate sentence (Robillard 1985).

In 2005, the applicant speculated that if he were released from his preventive detentionsentence, in five or six years, he could envisage an end to the remaining federal sentence. [translation] “This light at the end of the tunnelwill only encourage [the applicant] to continue on his current rehabilitation path and to remain a law-abiding citizen.” This optimism wasbased on the psychological and psychiatric evaluations that indicate the applicant’s low level of dangerousness and the low risk toreoffend. [translation] “The risk of reoffending with offences against the person seems low in the short and long term” (DanielHenroteaux, psychologist, January 17, 2002); [translation] “The subject was able to distance himself from the violent criminal behaviourthat characterized him 15 years ago. . .

Realistically, the potential for hostile acting out remains low” (Johanne Bergeron, psychologist,September 30, 2004); [translation] “Since 1988, although, due to a few setbacks, this social adaptation has not been without stumbles, hehas been able to avoid serious illegal acts that could have endangered the health and safety of others, as evidenced by the fact that he hasnot committed any further criminal offences, other than impaired driving” (Dr. Renée Fugère, psychiatrist, January 10, 2005). [44] Mr. Fidelia, of the Clemency and Pardons Division, was the contact between the PBC and Ms. Lanctôt.

On November 8,2005, Mr. Fidelia requested a local police records check form and indicated that [translation] “when we receive the document in question,the request will be reviewed to determine if an investigation should be initiated.” Mr. Fidelia also indicated [translation] “that it isimperative that you respond within two months. If we do not hear from you, we will assume that you no longer intend to pursue yourrequest [on behalf of André Robillard] and we will close the file.” [Emphasis added] [45] The PBC received the requested police document on November 28, 2005. However, that did not move things along.

Almosttwo and a half years later, on March 27, 2008, Ms. Lanctôt took over again and once more requested that [translation] “the file review becompleted as quickly as possible” since the applicant [translation] “could foreseeably finish serving his sentence sometime in2009/2010.” Ms. Lanctôt also requested a hearing before the PBC. [46] On April 23, 2008, Mr. Fidelia informed Ms.

Lanctôt that a hearing is [translation] “part of the process for a remission ofsentence application, but does not apply to the preliminary assessment stage”; however, [translation] “during the preliminary assessment,the [PBC] will accept any additional documents you consider useful for your client’s application.” At the same time, Mr. Fideliainformed Ms.

Lanctôt that the PBC [translation] “is in the process of completing the preliminary assessment for your client’s clemencyapplication to determine whether an investigation should be initiated.” He specified that [translation] “if, following the preliminaryassessment, the Minister of Public Safety decides that the [PBC] should conduct an investigation and following the investigation the[Board] recommends that clemency be denied, your client will be invited to make oral or written submissions with or withoutassistance.” [Emphasis added] [47] The only element that appeared to be delaying the completion of the preliminary assessment was the exact calculation of theremaining federal sentence if the indeterminate sentence were remitted.

In a letter dated April 23, 2008, Mr. Fidelia explained toMs. Lanctôt that the PBC was waiting for a reply from Suzanne Godin of Correctional Services Canada: [translation] “We hope toreceive this information shortly, which will allow us to complete the preliminary assessment of the application.” In July 2008, the PBCreceived a first calculation: the sentence would end on April 24, 2031, when the applicant had reached the venerable age of 84!However, Ms. Godin was mistaken and clearly did not take into account the Court of Appeal Robillard decision, about whichMs. Lanctôt hastened to remind the PBC.

The PBC had known about this decision since, at least, 2005 (appendix 12 of the clemencyapplication). A new calculation was therefore prepared in October 2008: the sentence would instead be finished on July 31, 2011. Exceptthat . . . [48] On October 17, 2009, the applicant was arrested for drunk driving. And yes, he was on parole. He was charged with impaireddriving and refusing to provide a breath sample. On January 19, 2010, he was sentenced to concurrent 12-month prison terms for eachcharge and, in the meantime, his parole was revoked and he had to return to the penitentiary.

Those were the applicant’s last convictions.

He has not reoffended since then. [ 49 ] On September 29, 2011, the applicant was granted day parole. At that time, according to the information provided to Ms. Lanctôt, a recommendation regarding the clemency application was (again, it seems) in the process of being finalized by Mr. Fidelia, who was supposed to forward it to Marie-France Pelletier, Executive Vice-Chairperson of the PBC. On October 11, 2011, Ms. Lanctôt wrote to the executive vice-chairperson to obtain a copy of the analysis and recommendation prepared by Mr.

Fidelia, and the recommendation that she would submit to the Minister, if necessary: [ translation ] “Given the complexity of the file, in the interest of procedural fairness, we must be able to make our submissions at all stages of the process.” At the same time, Ms. Lanctôt said [ translation ] “that a hearing before the [PBC] would allow her to better demonstrate how a remission of sentence under the Royal Prerogative of Mercy would be the most appropriate measure under the circumstances.” [ 50 ] However, Ms. Lanctôt’s request for a copy of the recommendation and a hearing, once again, received no response.

Almost two years went by. On July 1, 2013, Ms. Lanctôt asked the executive vice-chairperson how things were progressing and reminded her that during a conversation with Mr. Fidelia in August 2012, she was told that [ translation ] “the preliminary assessment had been sent to upper management for a recommendation to be made to the Minister of Public Safety and the Governor General.” At the same time, Ms.

Lanctôt repeated her written request of October 11, 2011 [ translation ] “requesting access to the recommendation in the file, so that we can make submissions, if necessary,” and again requested a hearing, saying that [ translation ] “the time frame for reviewing [the applicant’s file] was completely unreasonable and highly unfair, considering that [the applicant] should have been released since July 31, 2011.” Once again, there was no response from the PBC. [ 51 ] On March 14, 2014, Pierre Tabah, the applicant’s new counsel sent a demand letter to the PBC, reminding them that almost nine years had passed since the clemency application was filed. [ 52 ] On March 18, 2014, the executive vice-chairperson sent the Minister a seven-page PROTECTED B internal memo (document 36) with the following recommendation: [ translation ] I reviewed the application and the information submitted by Mr.

Robillard through his counsel in connection with the criteria and taking into consideration the above-mentioned circumstances. Based on this review, it is my opinion that he did not submit evidence that would justify proceeding further. If you agree, please sign the attached memo to indicate that an investigation in connection with the exercise of the RPM will not be initiated in this case . [Emphasis added] [ 53 ] We are omitting the general comments about the history, the type of application and the

summary of facts and reasons for clemency contained in the executive vice-chairperson’s memo dated March 18, 2014. The PBC’s reason for recommending that the Minister not conduct an investigation and refuse the clemency application is set out in the three following paragraphs: [ translation ] Since the Leggatt Commission in 1984 , Mr. Robillard has been sentenced for manslaughter, theft under $1,000 and for five driving offences involving alcohol.

His criminal record comprises robbery, impaired driving, narcotics offences, uttering threats of death or bodily injury, obstruction of justice and possession of a weapon for dangerous purpose, which have resulted in releases, stays of proceedings or acquittal. Although it has been suggested that the preventive detention sentence subjected Mr. Robillard to cruel and unusual treatment or to punishment that was contrary to sentencing principles, the [ PBC ] took into account the fact that individuals serving a preventive detention sentence were offered many opportunities for review.

Although a favourable decision was not rendered in Mr. Robillard’s case, the [PBC] also considers that he has experienced and continues to experience the normal consequences of his actions and convictions . The documentation produced in support of the clemency application specifies that Mr. Robillard’s habitual offender status has affected his physical and mental health. However, the [PBC] finds that he has not suffered an injustice or a punishment that was too severe or disproportionate to the nature and severity of the offences committed . Given the nature of the offences Mr.

Robillard committed, the confirmed absence of a prosocial lifestyle , as well as the fact that alcohol played a significant role in his criminal history, we recommend, in the interest of public safety , that no investigation be initiated in connection with this application for remission of sentence. [Emphasis added] [ 54 ] The PBC’s analysis and recommendation were not conveyed to the applicant, but, at that time, his counsel was advised that the PBC recommendation (no indication of whether it was positive or negative) had been sent to the Minister.

Moreover, in a separate two-page PROTECTED B memo, also dated March 18, 2014, the executive vice-chairperson reminded the Minister that [ translation ] “ there is a minimal duty of procedural fairness towards clemency applicants,” noting that the PBC [ translation ] “ recommends full disclosure of the file, ” and adding that [ translation ] “if you order disclosure, a possible consequence is that the recommendation may become a public document.” [Emphasis added] [ 55 ] On June 26, 2014, Mr. Tabah sent a demand letter to the Minister.

It read as follows: [ translation ] Although we were assured that the file had been forwarded for review by the Minister of Justice, we still have not received a confirmation of receipt, news about the upcoming proceedings, information about the current status of the file, or information about the identity of the individuals currently handling the file. The status of the file has therefore remained unchanged for nine years

now and Mr. Robillard still has not received a clear response regarding his application. We are unable to inform our client aboutthe progress in his file because we too are in the dark. Since Mr. Robillard’s file indicates that his original sentence is now disproportionate to the dangerousness he represents, it is normal thathe would expect a positive response or, at the very least, a response. We thought the file was on its way to finally being processed during our communication at the beginning of the year, but it is nowobvious that the situation is unchanged and we are still going nowhere.

Up to now, the actions of the various individuals involved in thisfile have been unfathomable and contrary to all our fundamental principles of justice. The harm our client has experienced is real, but thecurrent situation seems unreal to us. This therefore is a demand letter asking you to provide us with a formal response to ourquestions within seven days of receipt of this letter. This short deadline is due to the lack of cooperation shown in this file since therequest was filed in 2005.

If you do not respond or are unable to respond within the required time frame, we will promptly present this file before a court ofcompetent jurisdiction to have the case heard. Please act accordingly. [Emphasis in the original.] [56] On August 29, 2014, the Minister made a final decision regarding the merits of the clemency application. His decision did notinclude reasons and, in the certified record that the PBC filed with the Court in accordance with rule 318, the memo dated March 18,2014 (analysis and recommendation) was not signed by the Minister and returned to the PBC.

However, the Minister sent the PBC aletter dated August 29, 2014 (“PROTECTED B”), addressed to the executive vice-chairperson, signed by the Minister himself, advisingthe following: [translation] “I DO NOT AGREE with initiating an investigation in this case with a view to exercising the RoyalPrerogative of Mercy” (document 43). [57] At the same time, the Minister sent the PBC a second letter addressed to the executive vice-chairperson, also dated August 29,2014 (“PROTECTED B”), signed by the Minister himself, indicating the following: [translation] “I DO NOT AGREE with redacting anddisclosing the recommendation concerning the merits of the request to exercise the Royal Prerogative of Mercy” (document 44). [58] No official letter of refusal from the Minister was sent directly to the applicant or his counsel.

The letter from the PBC datedSeptember 9, 2014, was later sent to counsel for the applicant. In it, Mr. Fidelia indicated the Minister’s refusal. The complete letter hasbeen reproduced at the beginning of these reasons (see paragraph 2). LIMITED SCOPE OF THIS JUDICIAL REVIEW [59] Knowing that a sentence that is “grossly disproportionate,” “so excessive as to outrage standards of decency,” as well as“abhorrent or intolerable” to society is contrary to

section 12 of the Charter (Smith)—the Supreme Court of Canada again made referenceto this in R v Lloyd, 2016 SCC 13 at paragraph 24—the applicant wants an end to the suffering he is still experiencing today due to his“habitual criminal” status. Specifically, through this application for judicial review, the applicant requests a judgment from the Courtsetting aside and declaring illegal the Minister’s refusal and the negative recommendation.

He is seeking an order to compel the Ministerto review his clemency application and the PBC to initiate an investigation in accordance with the relevant statutes and regulations. [60] Note that the jurisdiction of the Federal Court in terms of extraordinary remedies against a federal board or the AttorneyGeneral of Canada is legally circumscribed by paragraphs (

a) and (

b) of subsection 1 of

section 18 of the Federal Courts Act, c F-7[FCA]. Although it has exclusive jurisdiction to review the legality of the final decision rendered by the Minister on August 29, 2014,this Court is not required to rule on the legality or reasonableness of the special conditions for parole imposed on the applicant by thePBC in the past.

Nor is this Court required to decide if the applicant, who was never officially declared a “dangerous offender” by acourt of competent jurisdiction, remained in prison for a significant period beyond the time when he could have been granted parole,when the Supreme Court of Canada had already decided, in a similar case, that the PBC’s decision to keep the offender in prison couldvery well violate

section 12 of the Charter (Steele v Mountain Institution, (SCC), [1990] 2 SCR 1385 at page 1412). [61] Furthermore, even if we agree that “indeterminate detention under the dangerous offender regime is warranted only insofar asit actually serves the purpose of protecting the public” (R v Johnson, 2003 SCC 46 at paragraph 20), and we wish to apply the samereasoning to habitual criminals who have not been granted a remission of sentence (Mitchell), the issue here is not to rule on the legalityof the application of the preventive detention sentence.

Note that Parliament deliberately did not mention habeas corpus insubsection 18(1) of the FCA, although subsection 18(2) of the FCA explicitly states that the Court has exclusive jurisdiction to grant awrit of habeas corpus in relation to a member of the Canadian Forces serving outside of Canada.

Although some Federal Courtcolleagues may have voiced some doubts on this matter (Warssama v Canada (Citizenship and Immigration), 2015 FC 1311 , atparagraphs 35-36), it now seems accepted that the provincial superior courts not only have general jurisdiction to grant a writ of habeascorpus, but that they also have concurrent jurisdiction with the Federal Court to verify the legality of any decision from a penitentiaryofficial affecting the “residual liberty” of an inmate: R v Miller, (SCC), [1985] 2 SCR 613; Mission Institution v Khela,2014 SCC 24 at paragraphs 31-50).

See also the recent decision from the Ontario Court of Appeal, to similar effect, but in the context ofimmigration: Chaudhary v Canada (Public Safety and Emergency and Preparedness, 2015 ONCA 700). [62] Also, as we well know, although the jurisdictions of the Federal Court and superior courts overlap to a certain point, there arefundamental differences in handling an application for judicial review and an application for habeas corpus.

Firstly, in the context of anapplication for judicial review, it is incumbent on the applicant to prove that the federal decision-maker made a reviewable error,whereas in the context of an application for habeas corpus, this responsibility falls to the prison authorities, once the prisoner hasestablished deprivation of liberty and raised a valid doubt concerning the legality of this deprivation. Secondly, during judicial review,the Federal Court must limit its review to only the evidence that was before the decision-maker, whereas, for habeas corpus, extrinsic

evidence may be considered. Thirdly, during judicial review, the Federal Court will show deference with respect to issues within thedecision-maker’s field of expertise, whereas, the superior courts hearing a habeas corpus application will examine the merits of thedetention without regard to any conflicting

interpretation from the decision-maker.

Fourthly, while judicial review constitutes anintrinsically discretionary recourse (the Court can refuse to hear the case or to grant the remedy requested), superior courts automaticallygrant the writ of habeas corpus when the detainee has shown deprivation of liberty and raised a valid doubt regarding the legality of thedetention. [63] Thus, the Mitchell judgment and the Leggatt Commission report, rather than being isolated incidents, have had extensivefollow-up, such that a habitual criminal who was unable to obtain a remission of sentence through the Royal Prerogative of Mercy is notwithout judicial recourse today to have the legality of the continuance of the preventive detention sentence reviewed.

Specifically, theapproach adopted by Linden J., under which continued detention can be considered cruel or unusual treatment or punishment under theterms of

section 12 of the Charter, has never been rejected by the Courts. The Supreme Court of Canada affirmed this in Steele vMountain Institution, (SCC), [1990] 2 SCR 1385, at pages 1405-1406.

It also seems to have been affirmed in subsequentdecisions with a legal framework similar to the one in this case. [64] In this regard, the first assessment criterion seems to be that of the dangerousness of the offender with respect to public safety.For example, in 1995, the Ontario Court of Appeal allowed the appeal of a habitual criminal who posed no danger and granted a writ ofhabeas corpus ordering his release although he was no longer incarcerated and was on parole (Gallichon v Commission of Correctionsand Attorney General for Ontario), (ON CA), [1995] OJ No 2744 (CA Ont)).

However, this case involves assessingthe legality and reasonableness of a decision rendered by the Minister in connection with the exercise of the royal prerogative. As wehave seen, the Minister has the discretion to consider several factors although, in the past, dangerousness could be a determining factor inthe cases of habitual criminals who obtained a remission of sentence based on recommendations from the Leggatt Commission.

REVIEWABILITY OF THE CONTESTED DECISION [65] First, the applicant pointed out that his clemency application had not been processed within a reasonable time frame, which isinconsistent with procedural fairness and the fundamental principles of justice recognized under

section 7 of the Charter. Nine yearswent by before a decision was rendered regarding the contested decision. In the absence of reasonable explanations, this much of a delayis “equivalent to an implied refusal to perform the duty to act” (Ben-Musa v Canada (Minister of Citizenship and Immigration), 2005FC 764 at paragraph 21). [66] The respondent claims that the applicant cannot obtain royal mercy solely on the basis of time elapsed and the Court cannotintervene even if the long delay in assessing the clemency application is unjustified and unreasonable in this case.

The Court’s onlyrecourse is to set aside the Minister’s decision and refer the file back to the Minister, if it finds that there has been a breach of proceduralfairness or that the Minister’s refusal was unreasonable, which the respondent is not prepared to concede today. [67] Let us be clear. In the case of the clemency application filed in 2005, the Minister never ordered a formal investigation inconnection with exercising the Royal Prerogative of Mercy.

The delay in this file was entirely for what the PBC described as the“preliminary assessment.” Nine years simply to render a decision, summarily and without an investigation, on the merits of the clemencyapplication is inconceivable, even shocking. The PBC and the Minister have no legitimate excuse to offer the Court for this excessiveand unreasonable delay. For this reason, if the application for judicial review is denied, the respondent indicated today that no costswould be claimed from the applicant. [68] If we accept the respondent’s reasoning based on

section 110 of the Corrections Act, the applicant should have requested thata writ of mandamus be issued to compel the PBC to make its recommendation in a more timely manner (Conille v Canada (Minister ofCitizenship and Immigration), (FC)). However, as the respondent pointed out, it is too late because the Ministerrendered a final decision in 2014. Also, the Court has no legal authority to order the Governor in Council, who acts on the advice of theMinister, to grant the applicant royal mercy.

The respondent is right regarding this last point, but I do not find that this is sufficientgrounds to close the assessment of this application for judicial review. [69] However, the applicant also pointed out to the Court that there was a reasonable fear of bias because the PBC was involved inthe applicant’s parole applications. The applicant also maintained that the process of referring the clemency application back to the PBCfor review and a recommendation was not consistent with the fundamental principles of justice guaranteed in

section 7 of the Charter.The fact that it is the same agency providing a recommendation to the Minister regarding an official investigation in connection with theremission of sentence application therefore raises reasonable doubt about the impartiality of the PBC and the thoroughness of itsassessment of the remission of sentence application. [70] The respondent replied that the Minister has the legal authority to ask the PBC to investigate clemency applications and thatnothing in the evidence on record showed or gave the Court reason to infer that the Minister and the PBC did not have an open mind.

Aswell, the applicant knew from the outset that the PBC would make a recommendation to the Minister. This has never been a problembefore. Therefore, the applicant has now forfeited the right to bring before the Court the existence of a reasonable fear of bias (Bilodeauat paragraph 117). [71] A distinction should be made between the apprehension of decision-maker bias on an institutional level and on an individuallevel (i.e. in a specific file). I do not find the argument of institutional bias in connection with the PBC convincing.

Section 110 of theCorrections Act explicitly allows the Minister to ask the PBC to investigate clemency applications. I understand that the applicant isclaiming that such a system of delegation of investigation powers, which must necessarily include the authority to proceed with apreliminary assessment of the clemency application, violates

section 7 of the Charter. However, before the Federal Court can declare astatutory provision inoperative under

section 52 of the Constitution Act, 1867, 30 & 31 Victoria, c. 3 (UK), a notice of constitutionalquestion must be served and filed in accordance with

section 57 of the FCA. This is not the case here. I might add that the single fact thatthe PBC is responsible for supervising the applicant is not sufficient to lead someone who is well apprised of the situation to concludethat a reasonable fear of bias exists in this case. Moreover, the Minister is independent of the PBC and is not obliged to follow its

recommendation. The applicant has known since the start of the assessment process that the PBC would assess his file and make arecommendation to the Minister. The applicant’s silence on this matter constitutes tacit agreement. [72] The behaviour adopted by the PBC or the Minister in this file could give the appearance of bias against the applicant, but heallowed the PBC this administrative freedom. It is therefore, at the very least, worrisome and shocking that the PBC took nine years tocomplete its “preliminary assessment” and make its recommendation to the Minister. Bad faith? Bias? Implicit refusal?

Administrativecarelessness? [73] The respondent has not submitted an affidavit for any of the parties involved. The absence of explanations and the PBC’s andMinister’s silence give the Court reason to draw negative inferences. Furthermore, in his communications with Ms. Lanctôt, Mr. Fideliasucceeded in feeding the applicant’s legitimate doubts about the integrity and neutrality of the clemency application assessment process.Had the PBC already reached a decision? Appearance is everything. . .

The PBC already knew the applicant, and his previousappearances when applying for parole seem to have played a significant role in the assessment of the merits of his clemency application.In her analysis dated March 18, 2014, the executive vice-chairperson referred to some important facts that were not mentioned byMs. Lanctôt in her application for remission of sentence: [TRANSLATION] “In connection with his manslaughter conviction in 1988,Mr. Robillard explained that, after he was assaulted in a bar, he left the premises and returned with a firearm. The argument continuedand he fired a shot.

He said he only wanted to intimidate his assailant and that he had no intention shooting.” Then, the executive vice-chairperson explained that she [translation] “tried in vain to obtain a transcript from the Montréal Court of Sessions of the Peace todiscover the ratio decidendi in this case; however, the file had been destroyed” (at page 503). [74] Nowhere in her analysis did the executive vice-president mention trying to obtain clarification from the applicant or fromMs.

Lanctôt, but she concluded that [translation] “the transcript, which described the mitigating and aggravating circumstances that weretaken into consideration to reach this sentence, could have provided additional information.” Who knows whether the applicant or one ofhis previous attorneys had the transcript in question or useful explanations for the executive vice-chairperson.

As the Court recalled inBilodeau at paragraph 90, “certain omissions may be compensated for by the simple fact that the applicant was given the opportunity torectify the situation by bringing such omissions to the attention of the decision-maker (Slattery v Canada (Human Rights Commission), (FC), [1994] 2 FC 574, at paras 56-57).” [75] Therefore, if the Minister’s contested decision to summarily dismiss the clemency application without ordering aninvestigation is to be set aside, it is also due to the obfuscation and total lack of transparency surrounding the entire process since theclemency application was filed in 2005.

In 2014, without valid justification and contrary to the principles of procedural fairness, theyrefused to share the PBC’s negative recommendation with the main party, the applicant. The Court has a hard time understanding whythe PBC and the Minister refused to be transparent throughout the process in spite of the letters or demand letters sent by counsel for theapplicant. All of this gives the impression of bad faith and bias. Did the fact that the recommendation and the PBC file were finally filedwith the Court in 2015 following this application for judicial review make up for this? [76] I think not.

The applicant also pointed out that the Minister has not provided any reasons to support the refusal to initiate aninvestigation in connection with the application for remission of sentence, which constitutes a violation of procedural fairness, while therespondent is using the recommendation and the PBC file to support the reasonableness of the Minister’s final decision.

The SupremeCourt has taught us that the absence of reasons or lack of sufficient reasons should no longer be considered through the lens ofprocedural fairness (Baker at paragraphs 40-43), but rather through that of the reasonableness of the contested decision (Newfoundlandand Labrador Nurses’ Union v Newfoundland and Labrador (Treasury Board), 2011 SCC 62, at paragraphs 9, 12 and 20[Newfoundland]). [77] The ministerial decision dated August 29, 2014 contained no reasons. Due to its generic nature, the letter from the PBC datedSeptember 9, 2014, is clearly insufficient.

All that is left is the executive vice-chairperson’s analysis dated March 18, 2014. However,this is not a question of assessing the reasonableness of the PBC’s decision by completing the reasons provided by the decision-makerwith the notes that he himself may have left on file after various communications with a party (Baker, for example). The Minister and thePBC are both independent. The Minister cannot act at the dictates of a third party. The PBC’s authority is exclusively one ofinvestigation and recommendation.

There is nothing in the Court record to indicate that the Minister personally reviewed the clemencyapplication and the documentation submitted by the applicant. The basic problem, which was never addressed in Newfoundland, is thatthe Minister is trying to base a decision on a negative recommendation from the PBC that was never communicated to the applicant. Todo so, the administrative process that led to the PBC’s recommendation and the Minister’s decision needed to be fair. [78] This is not the case here, even if the element of procedural fairness may be minimal.

Although no specific assessment (orinvestigation) procedure is provided for in

an act or regulation, the Guidelines, nonetheless, state that “the Royal Prerogative of Mercy isexercised according to general principles which are meant to provide for a fair and equitable process,” and that “in reviewing clemencyapplications, conducting investigations and making recommendations, the [Board] shall be guided by the principles [outlined in theGuidelines].” [Emphasis added] According to the evidence on record, the practices surrounding the clemency application have variedfrom one period of time to another, but one thing has not changed: the PBC and the Minister must act fairly. [79] Even if royal mercy is not a right, an applicant can, at least, expect a considered review of his or her application by an open-minded decision-maker.

The clemency application review should be neutral and thorough, and the Court should consider all the stepstaken, even after the PBC recommendation, to ensure that all relevant information is gathered and assessed before the Minister makes thefinal decision. The respondent never stated before this Court that the clemency application review or investigation process must be keptsecret and that the PBC could base its recommendation on extrinsic elements that were never shared with the applicant in the context ofthis process.

To be more specific, when the Minister makes a final decision on a clemency application based simply on review of the file,an applicant must be able to explain or refute any unfavourable element that the PBC failed to disclose to him or her.

Obviously, theapplicant must also be able to comment on any negative recommendation from the PBC. [80] This option is available to an applicant in the context of a complaint under the Canadian Human Rights Act, RSQ 1985, c H-6.The general procedure governing the process is similar to that at issue in this case: when an applicant files a claim, the Canadian HumanRights Commission (CHRC) reviews it to determine whether it should be heard by the Canadian Human Rights Tribunal. However,

before making such a decision, the CHRC prepares a report and allows the parties to comment on it. According to this Court’s (and theFederal Court of Appeal’

s) jurisprudence, not allowing the parties to comment constitutes a lack of procedural fairness (Mercier vCanada (Human Rights Commission), [1994] 3 FCR 3 (FCA); see also Syndicat des employés de production du Québec et de l’Acadie vCanada (Canadian Human Rights Commission), (SCC), [1989] 2 SCR 879 at pages 902-903). [81] Thus, I conclude without reservation that this file involved serious breaches of procedural fairness. The Minister decided notto conduct an investigation and not to inform the applicant of the PBC’s negative recommendation.

The Minister’s refusal was primarilybased on questionable or contested reasons that were not shared with the applicant in a timely manner.

The blatant laxity and lack ofinterest shown by the PBC and the Minister throughout the nine years spanned by the clemency application review justify legal redress.Allowing the respondent to use the PBC’s recommendation and elements of a file that was kept secret to justify the reasonableness of theMinister’s refusal would make a mockery of the system. [82] In the event that the Court concludes that there was a breach of procedural fairness, the respondent alternatively submittedthat the clemency application should not be referred back to the Minister for redetermination because the result is likely to be the same(Mobil Oil Canada Ltd v Canada-Newfoundland Offshore Petroleum Board, [1994] 1 SCR 202, (SCC) atpages 228–229).

Obviously the applicant objects to this dialectic. He submits that he has already suffered a substantial injustice, as aneutral and thorough investigation was not conducted by the PBC or the Minister in connection with his clemency application, inaccordance with the law and his constitutional rights. [83] I agree with the applicant. He has suffered flagrant and substantial injustice. The applicant suffered significant material injurydue to the failure to observe procedural fairness.

It is therefore appropriate to refer the clemency application back to the Minister forredetermination after the applicant has had the opportunity to complete his clemency application (almost 11 years have gone by) andgive the Minister his written submissions regarding the PBC recommendation that an investigation not be conducted and that hisclemency application be summarily dismissed. [84] At the risk of repeating myself, the question today is not whether the Minister’s decision represents an acceptable outcome,but whether the applicant really had the opportunity to make his case before a neutral and impartial decision-maker.

There is areasonable doubt in this case. I also exercised my discretion and took into consideration the fact that, without informing the applicant andgiving him the opportunity to comment, the PBC added other criteria to the list of criteria in the Guidelines, including some that werepotentially questionable.

For example, in the event that the applicant’s habitual criminal status was withdrawn, in its analysis, the PBCsuggested that the applicant remain ineligible to apply for a pardon under the Criminal Records Act, as he had been convicted of morethan three offences that were prosecuted by indictment with a sentence of two years’ imprisonment or more. During the oral arguments,counsel for the respondent repeated the same statements. However, this is not the point: there is “Pardon” and “pardon” (see paragraphs24 and 25 above). The appl

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