A recent Federal Court decision, Paul v. Canada (Attorney General), addressed the difference between a breach of the duty of procedural fairness and a lack of justification and transparency by the Parole Board of Canada. The applicant sought judicial review of a decision made by the Board concerning a 2006 criminal conviction for arson.

The applicant argued that the Parole Board had breached their duty of natural justice and procedural fairness. Although the Federal Court found that the Board had met its duty, it determined that its decision lacked justification and transparency.

Parole Board denied pardon based on post-conviction interactions with law enforcement

The applicant applied to the Parole Board of Canada for a pardon for her 2006 conviction for arson. The Board denied her application based on her interactions with law enforcement after the conviction, even though those interactions had not resulted in further criminal convictions.

In denying the application, the Parole Board sent the applicant a letter explaining the reasons for its decision. The Board allowed the applicant to respond before issuing its final decision. The applicant responded to the letter, providing additional information addressing her encounters with law enforcement.

Shortly thereafter, the Parole Board issued its final decision denying the pardon application. It stated that despite the applicant’s additional submission, she still “had not met the legal requirements for a pardon.”

Applicant alleged Parole Board breached natural justice & procedural fairness

The applicant sought a judicial review of this final decision, arguing that the Parole Board failed to consider her additional submission. She argued that this was a “breach of natural justice and procedural fairness.”

The applicant further argued that the Board’s decision to deny the pardon application was unreasonable for three reasons:

  1. The Board based its decision on “erroneous findings of fact and on facts that it should not have considered”;
  2. The Board wrongly concluded that the applicant’s post-conviction activities amounted to a “pattern of continued criminal behaviour”, even though the applicant was not convicted of any crime after 2006; and
  3. The Board mixed up the criteria for a pardon, namely good conduct and the absence of a conviction.

Federal Court: Parole Board committed no breach of procedural fairness or reasonableness

On judicial review, the Federal Court found that the Parole Board did not breach procedural fairness as it had considered the applicant’s additional submissions.

The Court also found that the Board had applied the proper test for good conduct and correctly considered whether the applicant’s interactions with the law amounted to a pattern of continued criminal behaviour. As receiving a pardon is not a right, the Court held that the Board was justified in basing its decision on police reports and the concept of “law-abating behaviour”, rather than convictions alone.

What is “reasonableness”?

The Federal Court confirmed that the standard of review of the Parole Board’s decision was reasonableness. As a result, the applicant was required to prove that the Board’s decision was unreasonable.

The guiding principles when determining reasonableness, as set out in the Supreme Court of Canada’s decision in Canada (Minister of Citizenship and Immigration) v. Vavilov, are as follows:

  1. A reasonable decision bears the hallmarks of “reasonableness”: justification, transparency, and intelligibility.
  2. A reasonable decision must come from an “internally coherent and rational chain of analysis”, based on the facts and law available to the decision-maker.

The standard of reasonableness is a lower threshold than correctness – i.e., to challenge a decision that has a standard of correctness, the applicant must prove the decision was inherently wrong. This would have been the standard applied if the Court allowed the argument that there was a breach of procedural fairness in the Parole Board’s decision-making process.

Federal Court found Parole Board’s decision lacked justification and transparency

Although the Federal Court disagreed with the applicant’s arguments, they still decided the judicial review application should be allowed. This was based on the finding that the Parole Board’s final decision did not reflect a meaningful consideration of the additional submissions made by the applicant.

In response to the Board’s letter, the applicant addressed all of the issues raised in the Board’s reasoning, set out her version of events, and provided additional context. Despite the applicant providing a comprehensive response, the Board’s final decision was identical to their initial letter. The Court stated:

“… apart from the assertion that [the applicant] had not presented a persuasive version of the incidents, the Decision does not substantively consider or address any aspect of [the applicant]’s response.”

The Court concludes that they could not understand the Parole Board’s reasoning without speculation due to the lack of additional justification for the Board’s decision after the applicant’s submissions. Therefore, the Court found that the Parole Board did not provide adequate justification and transparency for their decision. As a result, the Court allowed the applicant’s application for judicial review, with her pardon application to be reconsidered by a different Parole Board panel.

Contact Hicks Adams in Toronto for Trusted Representation in Parole Board Matters

As one of the largest criminal law firms in Canada, Hicks Adams has more than a century of combined experience defending clients in a variety of criminal matters, including hearings before the Parole Board of Canada. We take pride in advocating for our clients and helping them move forward with their lives. We also vigorously defend clients against a broad range of criminal charges, including assault, DUI, drug offences, and weapons charges. To schedule a consultation with a skilled criminal defence lawyer, contact us online or call 416-975-1700 (toll-free: 1-877-975-1700).