Buffone v. Canada (Attorney General)

Buffone v. Canada (Attorney General)
Court (s) Database
Federal Court Decisions
Date
2017-04-06
Neutral citation
2017 FC 346
File numbers
T-2036-15
Decision Content
Date: 20170406
Docket: T-2036-15
Citation: 2017 FC 346
Ottawa, Ontario, April 6, 2017
PRESENT: The Honourable Madam Justice Kane
BETWEEN:
VITTO BUFFONE
Applicant
and
ATTORNEY GENERAL OF CANADA
Respondent
JUDGMENT AND REASONS
[1] The Applicant, Vito Buffone, seeks judicial review of the October 27, 2015 decision by the Parole Board of Canada (the Board) made pursuant to the Criminal Records Act, RSC 1985, c C-47 [CRA] to revoke the pardon he was previously granted in 2008.
[2] In November 2014, the Board received information from the Intelligence Unit of the Niagara Regional Police Service that Mr. Buffone had been charged with offences pursuant to the Controlled Drugs and Substances Act, SC 1996, c 19 [CDSA] and the Criminal Code, RSC 1985, c C-46. The Board subsequently revoked his pardon pursuant to section 7 of the CRA.
[3] For the reasons below, the application for judicial review is dismissed. The Board’s decision is reasonable. The Board was not required to conduct a balancing of the Charter interests or values implicated in the revocation of the pardon with the statutory objectives of the CRA in the absence of any such submissions to the Board from Mr. Buffone. The Board was not, in the circumstances of this case, required to proactively conduct such a balancing exercise. The Board did not err in applying the statutory provisions and exercising its discretion to revoke Mr. Buffone’s pardon based on the information it relied on to determine that Mr. Buffone no longer met the good conduct criteria.
I. Background [4] On January 11, 2008, Mr. Buffone was granted a pardon by the National Parole Board, as it was formerly known, with respect to his two prior criminal convictions: a) the February 24, 1986 conviction for possession of a narcotic and, b) the June 7, 1994 conviction for possession of property obtained by crime over $1000.
[5] On September 25, 2014, Mr. Buffone was charged with 12 offences under the CDSA and the Criminal Code:
1) Possession of cocaine for the purpose of trafficking – CDSA subsection 5(2);
2) Trafficking cocaine – CDSA subsection 5(1);
3) Conspiracy to commit an indictable offence, namely importation of a controlled substance (cocaine) – Criminal Code paragraph 465(1)(c);
4) Conspiracy to commit an indictable offence, namely possession for the purposes of trafficking (cocaine) – Criminal Code paragraph 465(1)(c);
5) Conspiracy to commit an indictable offence, namely possession for the purposes of trafficking (cocaine) – Criminal Code paragraph 465(1)(c);
6) Possession of property obtained by crime exceeding $5,000 – Criminal Code paragraph 354(1)(a);
7) Laundering the proceeds of crime – Criminal Code paragraph 462.31(1)(a);
8) Possession (cocaine) for the purposes of trafficking and/or trafficking for a criminal organization – Criminal Code section 467.12;
9) Conspiracy to commit an indictable offence, namely importation of a controlled substance for a criminal organization – Criminal Code section 467.12;
10) Importation and/or possession for the purposes of trafficking a controlled substance (cocaine) for a criminal organization – Criminal Code section 467.12;
11) Possession of a prohibited weapon (stun gun) without a licence – Criminal Code subsection 91(2); and
12) Possession of property obtained by crime not exceeding $5,000 – Criminal Code paragraph 354(1)(a).
[6] In November 2014, the Niagara Regional Police Service Intelligence Unit sent a copy of the Information setting out the charges against Mr. Buffone to the Board.
[7] On December 10, 2014, the Board sent Mr. Buffone a notice advising him that the Board had received reliable information that he had been charged with several offences and that his pardon was under review. The Board enclosed a proposal for the possible revocation of his pardon.
[8] The Parole Board invited Mr. Buffone to make written representations in response to the notice but none were received. The Parole Board issued a decision revoking Mr. Buffone’s pardon on May 15, 2015, finding that it was satisfied that Mr. Buffone no longer met the criteria for good conduct.
[9] In June 2015, Mr. Buffone informed the Board that he had not received the notice sent in December 2014 advising him that a review of his pardon was underway. The Board agreed to reconsider its decision and to accept Mr. Buffone’s written representations. Mr. Buffone submitted his written representations by way of a letter on October 23, 2015, along with nine letters of support from various acquaintances.
[10] On October 27, 2015, the Board rendered its decision and revoked Mr. Buffone’s pardon.
II. The Parole Board’s Decision Under Review [11] The Board first noted that Mr. Buffone had been granted a pardon in 2008 for two prior convictions on the basis that he had met the legal criteria, including good conduct since his last conviction.
[12] The Board then described the criteria for granting a pardon, now known as a record suspension.
[13] The Board then addressed the circumstances related to the revocation of Mr. Buffone’s pardon. The Board noted that it was informed that Mr. Buffone was charged with several offences in August 2014, which included two offences under the CDSA and 10 Criminal Code offences. The Board noted the details of the charges, including that 13 co-accused were involved, some of whom were facing additional charges. The Board acknowledged that there was no indication whether the charges against Mr. Buffone would proceed.
[14] The Board stated that it had considered all the information on file: the information received from law enforcement and Mr. Buffone’s written representations, including his nine letters of reference. The Board explained that its authority to grant or deny a pardon (or as now known, a record suspension) is set out in the CRA. The Board further explained that the presumption of innocence has no application in the context of an application for a pardon, citing Conille v Canada (Attorney General), 2003 FCT 613 [Conille].
[15] The Board noted that the charges against Mr. Buffone were for the exact type of offence for which he was previously convicted (involvement with illicit drugs); that drug addiction is a serious problem for Canadian society; that the scale of undertaking and number of persons involved suggest a sophisticated scheme to deal in illicit drugs; and, that the charges reflect a disregard for Canadian law and public safety. The Board added that the involvement of the police raises doubts about whether Mr. Buffone continues to satisfy the good conduct criteria of the pardon.
[16] The Board found that Mr. Buffone’s written representations did not provide sufficient justification for altering its initial decision. As a result, the Board revoked Mr. Buffone’s 2008 pardon pursuant to section 7 of the CRA.
III. The Issues [17] The key issue is whether the decision of the Board is reasonable.
[18] Mr. Buffone argues that the Board’s decision is not reasonable because: the Board failed to consider his Charter protected rights and interests and balance these with the statutory objectives; the Board’s decision is not intelligible because it confused the test for granting a pardon with that of revoking a pardon; and, the Board based its decision on insufficient evidence and failed to make additional inquiries to satisfy itself whether he no longer met the good conduct criteria.
IV. The Standard of Review [19] The Parole Board’s decision is discretionary and is based on an assessment of the facts and the application of the law. The parties agree that the standard of reasonableness applies.
[20] To determine whether a decision is reasonable, the Court looks for “the existence of justification, transparency and intelligibility within the decision-making process” and considers “whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law” (Dunsmuir v New Brunswick, 2008 SCC 9 at para 47, [2008] 1 SCR 190 [Dunsmuir]).
[21] In Newfoundland and Labrador Nurses' Union v Newfoundland and Labrador (Treasury Board), 2011 SCC 62, [2011] 3 SCR 708 [Newfoundland Nurses], the Supreme Court of Canada elaborated on the requirements of Dunsmuir, noting that the reasons are to “be read together with the outcome and serve the purpose of showing whether the result falls within a range of possible outcomes” (at para 14). In addition, where necessary, courts may look to the record “for the purpose of assessing the reasonableness of the outcome” (at para 15). The key principle is summed up at para 16 that, “if the reasons allow the reviewing court to understand why the tribunal made its decision and permit it to determine whether the conclusion is within the range of acceptable outcomes, the Dunsmuir criteria are met.”
V. The Statutory Provisions [22] Excerpts of the relevant provisions of the CRA and the Decision-Making Policy Manual for Board Members [the Policy Manual], which provides guidance to Board members, are set out in Annex A.
VI. The Applicant’s Submissions [23] Mr. Buffone submits that the Parole Board erred in three ways and, as a result, the decision is not reasonable.
The Board failed to proportionately balance Mr. Buffone’s Charter rights, interests and values with the statutory objectives of the CRA [24] Mr. Buffone submits that the Board is required to exercise its discretion in a manner consistent with a balancing of the Charter rights, interests and values at stake as directed by the Supreme Court of Canada in Doré v Barreau du Québec, 2012 SCC 12 at para 24, [2012] 1 SCR 395 [Doré]. A reasonable decision is one that reflects a proportionate balancing of the Charter interests and values at play (Doré at para 58).
[25] He submits that the revocation of his pardon affected his right to liberty and security of the person in accordance with section 7 of the Charter without regard to the principles of fundamental justice, specifically the presumption of innocence. He acknowledges that paragraph 11(d) of the Charter, the right to be presumed innocent, applies only in the criminal proceedings and does not apply in revocation decisions per se, but argues that the presumption of innocence remains a principle of fundamental justice and, as such, must be part of the balancing of Charter rights, interests and values.
[26] Mr. Buffone submits that the revocation of his pardon would make his prior convictions potentially available as evidence at trial and will have a significant impact on how he conducts his defence to the criminal charges, thereby implicating his Charter rights under section 7.
[27] He submits that the Board was required to conduct the Doré analysis, even though he only asserted the presumption of innocence and did not make submissions on the balancing of Charter rights and interests. He points, as an example, to Trinity Western University v The Law Society of Upper Canada, 2016 ONCA 518 [Trinity Western], where the Law Society, as the first level decision-maker, proactively assessed the Charter rights and values in the context of its administrative decision.
[28] Mr. Buffone submits that the overall objective of the statutory provisions is to provide a benefit to persons with criminal records who have been of good conduct and points to Therrien (Re), 2001 SCC 35 at para 120, [2001] 2 SCR 3, where the Supreme Court of Canada stated that “the purpose of all these sections is to eliminate the potential future effects of the conviction”.
[29] Mr. Buffone elaborates that the statutory objectives are also derived from section 4.1 of the CRA. These objectives include: to provide a measurable benefit to an individual with a criminal history; to sustain that person’s rehabilitation; and, to not bring the administration of justice into disrepute (paragraph 4.1(1)(b)).
[30] He submits that the objectives of section 7 of the CRA, which permits the revocation of a pardon, can also be derived from section 4.1, but from the opposite perspective. According to Mr. Buffone, the objectives of revocation are that the pardon is no longer a measurable benefit to the person or is no longer necessary to sustain their rehabilitation.
[31] He submits that the Board could not conclude that his conduct reflects a disregard for Canadian law and public safety unless it equated the charges against him with his guilt, which ignores the presumption of innocence. He argues that revoking his pardon based only on the outstanding charges does not strike a proportionate balancing between his Charter rights and interests and the statutory objectives of the CRA that he proposes.
[32] Mr. Buffone also submits that a proportionate balancing requires consideration of alternatives to ensure that his Charter rights are limited as little as possible. A more proportionate balancing would result from awaiting the outcome of his criminal trial. If he is convicted of an indictable offence, his pardon would be revoked automatically pursuant to section 7.2. If he is acquitted, the Board would have more information from his trial upon which to assess whether he is no longer of good conduct. Mr. Buffone submits that the Board erred by not considering such an alternative.
The Board identified and applied the incorrect legal test [33] Mr. Buffone argues that the Board confused the tests for granting and revoking a pardon, and also confused who bears the onus of establishing good conduct in the revocation context. He notes that the Board set out the test for granting — as opposed to revoking — a pardon, and did not explain how the presumption of innocence is considered in the context of revocation.
[34] Mr. Buffone submits that when the Board considers whether to revoke a pardon, there is no onus on the person pardoned; the Board must satisfy itself that the person is no longer of good conduct. He argues that the Board erred by reversing the burden of proof by stating that it had “doubts about whether or not you continue to satisfy the good conduct criteria”. He submits that if the Board had doubts about his good conduct, the doubts should be resolved in his favour. He submits that he should not have to prove to the Board that he remains of good conduct, although his submissions and letters of reference support such a conclusion.
[35] Mr. Buffone relies on MY v Canada (Attorney General), 2016 FCA 170 [MY], where the Court of Appeal found that there was no burden on the applicant in the revocation process (para 23). He also submits that in MY the Court of Appeal found that the act of being convicted of an offence was not sufficient to support the Board’s finding that the applicant was no longer of good conduct.
There was insufficient evidence to establish that Mr. Buffone was no longer of good conduct [36] Mr. Buffone submits that the only evidence before the Board that called into question his good conduct was the Information from the Niagara Police Service listing the outstanding charges. He submits that the outstanding charges say nothing about the extent of his involvement or his disregard for Canadian law or public safety and are not sufficient to support the revocation of his pardon.
[37] He acknowledges that the Policy Manual allows the Board to consider non-law-abiding behaviour that does not result in a charge when assessing good conduct, but notes that it does not refer to outstanding charges for criminal offences. He adds that if serious charges alone were sufficient to revoke a pardon, Parliament would have specifically provided for this in the CRA.
[38] Mr. Buffone again points to MY where the Court of Appeal found that the Board erred by relying only on the “mere fact” of conviction rather than focusing on the applicant’s conduct. He submits that the Board erred in the same way because it relied on the mere fact of the charges he faced.
[39] He argues that this Court’s jurisprudence (Conille and Jaser v Canada (Attorney General), 2015 FC 4 [Jaser]), which found that reliance on outstanding charges is sufficient to support the revocation of a pardon, is inconsistent with the Federal Court of Appeal’s more recent and binding decision in MY.
[40] Mr. Buffone further argues that the Board should have made inquiries of justice system participants to gather more information in order to ensure that it met its onus to be satisfied that he was no longer of good conduct. In MY, the Federal Court of Appeal found that the Board should have made inquiries about M.Y.’s conviction.
[41] Mr. Buffone submits that the evidence relied on by the Board was insufficient for it to conclude he was no longer of good conduct. The Board chose not to make the inquiries it was required to make in order to gather sufficient evidence. Therefore, the Board should have waited for the outcome of his criminal trial, which would provide additional information.
VII. The Respondent’s Submissions [42] The Respondent submits that the Board’s decision is reasonable: the Board was not required to engage in a Charter analysis in the absence of submissions from Mr. Buffone; the Board did not err by confusing the test for granting and revoking the pardon, rather, it clearly applied the test for revocation and set out several reasons; and, the Board had sufficient evidence to find that Mr. Buffone was no longer of good conduct. The Respondent adds that a pardon is a discretionary privilege and not a right.
The Board was not required to proportionately balance Charter rights and values; the Charter issues were not raised by Mr. Buffone [43] The Respondent notes that Mr. Buffone had the opportunity to make submissions to the Board and had the benefit of counsel in doing so. Mr. Buffone’s brief reference to his presumption of innocence was not a submission to the Board that it should consider and apply the Doré framework to balance the Charter interests or values that may be implicated in the context of its decision whether to revoke a pardon.
[44] The Respondent submits that the Court has the discretion not to consider an issue that is raised for the first time on judicial review (Alberta (Information and Privacy Commissioner) v Alberta Teachers' Association, 2011 SCC 61 at paras 22-23). In addition, the Court should be reluctant to engage in an analysis of whether the decision reflects a proportionate balancing of Charter values without the benefit of an evidentiary record.
[45] The Respondent further submits that, in any case, the Board’s decision is not unreasonable for not engaging in a Doré-type analysis in making its determination, since Charter values were not engaged in the circumstances of this case. In order to engage section 7, an individual must demonstrate with non-speculative evidence that there is a sufficient causal connection between the impugned state actions—in this case the revocation of the pardon–and the deprivation of a protected interest—in this case the allegation that the presumption of innocence as a principle of fundamental justice is at stake.
[46] The Respondent notes that Mr. Buffone did not raise with the Board his intention to testify at his criminal trial or how the revocation of his pardon could or would impact his defence strategy. The Respondent acknowledges that the revocation of the pardon, and consequently Mr. Buffone’s criminal record, could have implications for the conduct of his defence, but submits that the implications remain speculative.
[47] The Respondent notes that in Jaser the Court found that Mr. Jaser’s section 7 interests were not engaged by a revocation of his pardon based on outstanding criminal charges. The same argument—that a revocation would make prior convictions available for use as evidence at trial—was rejected by the Court in Jaser as speculative (at para 39).
The Board did not apply the wrong test [48] The Respondent notes that a pardon does not erase a conviction; rather, a pardon (now called a record suspension) is an indication that the Board is of the view that an individual’s record should no longer reflect adversely on his or her character.
[49] The Respondent acknowledges that the Board began its decision by setting out the test for granting a pardon. The Respondent suggests that the Board may have intended to begin with the criteria for granting the pardon and then to assess whether that pardon should be revoked. However, if the Board included a statement about the criteria for granting a pardon in error, it is immaterial. The decision is clearly based on the Board’s application of the criteria for revoking a pardon pursuant to section 7. The ongoing entitlement to a pardon is contingent on remaining of good conduct. The sole issue for the Board’s consideration was whether there was evidence establishing to the satisfaction of the Board that Mr. Buffone no longer met the good conduct criteria.
[50] The Respondent notes that the Policy Manual provides that the Board may consider a range of information to assess good conduct, including police information even if no charges are outstanding or there is no finding of guilt. In Jaser, the Court found that the fact of the charges was sufficient to conclude that Mr. Jaser was no longer of good conduct (para 50). In Conille, the Board relied on information that Mr. Conille was suspected of a serious offence and this was sufficient to find that he was no longer of good conduct.
[51] The Respondent submits that the Board considered more than simply the fact that charges were laid. The decision must be read as a whole and should not be picked apart with a focus on one line to suggest that the Board put an onus on Mr. Buffone or that the Board did not satisfy itself as required by the CRA.
[52] The Respondent also distinguishes the present case from MY. In MY, the Federal Court of Appeal found that the Board conflated the considerations for revocation of a pardon pursuant to paragraph 7(b) (evidence establishing to the satisfaction of the Board that the person is no longer of good conduct) with paragraph 7(a) (that the person was subsequently convicted of a summary conviction offence). In the present case, the Board based its decision only on paragraph 7(b) to find that Mr. Buffone was no longer of good conduct. The Board considered the sworn Information which outlined 12 charges, including details on the nature of the offences charged, the number of persons involved, the affiliation with organized crime, and that a weapon was involved. Unlike in MY, the Board had considerable information about the nature of the charges against Mr. Buffone.
VIII. The Decision is Reasonable The Board did not err by failing to conduct an assessment and proportionate balancing of the Charter interests or values implicated with the statutory objectives [53] In Doré, the Supreme Court established that reviewing courts should apply the reasonableness standard to administrative decisions challenged on Charter grounds but, in doing so, the reviewing court must assess whether the decision reflects a proportionate balancing of the Charter protections at stake and the relevant statutory mandate or objectives.
[54] According to Mr. Buffone, the Board’s failure to assess and proportionately balance his Charter protected rights, interests or values with the statutory objectives of the relevant provisions of the CRA renders the decision unreasonable.
[55] As the Federal Court of Appeal noted recently in Taman v Attorney General of Canada, 2017 FCA 1 [Taman], such arguments should not be raised before the Court on judicial review unless the initial decision-maker has had the opportunity to consider them. In Taman, the Court of Appeal found that the applicant had raised the need to balance her Charter rights and interests in her written submissions to the Public Service Commission, but had not fully pursued the argument before the decision-maker. The Court of Appeal noted at paragraph 18:
…This Court is reluctant to embark upon Charter reviews where the parties have not pursued their Charter remedies before the initial decision maker: see Forest Ethics Advocacy Association v. Canada (National Energy Board), 2014 FCA 245, [2015] 4 F.C.R. 75 at para. 37. This reluctance is grounded in the need to allow the federal board, commission or tribunal an opportunity to lead evidence to support a “reasonable limitation” argument, which is best done before the trier of fact. It is grounded as well as in our recognition that the initial decision maker’s analysis will provide valuable insights into the proper balancing of the various factors at play.
[Emphasis added]
[56] It is apparent from the record that Mr. Buffone’s did not raise, in his submissions to the Board, any of the arguments he now makes regarding the need for the Board, as an administrative decision maker, to consider a proportionate balancing of Charter rights and interests.
[57] Mr. Buffone’s submissions to the Board were set out in a short letter which describes his lifestyle and his focus on family, work and community and includes the brief statement, “I know that I am presumed innocent but the reality is that the vast majority of people presume guilt”. This brief reference to the presumption of innocence is a far cry from the arguments he now makes regarding how his Charter rights, interests or values should be balanced with the statutory objectives in considering the revocation of his pardon. He did not make submissions with respect to the statutory objectives of the pardon and revocation provisions of the CRA. He did not raise the potential implications of a revocation of his pardon on the manner in which he may conduct his defence to the criminal charges. He did not advance the argument that the presumption of innocence should be considered as a principle of fundamental justice or that the potential deprivation of his liberty should be limited by this principle.
[58] Mr. Buffone points to Trinity Western as an example of the initial decision-maker proactively seeking submissions on the Charter rights at play and conducting the appropriate balancing of those rights. However, in Trinity Western, the key issue was how to address the competing Charter rights implicated and the initial decision-maker engaged in the analysis.
[59] Although Counsel for Mr. Buffone explained to the Court how such an analysis could have been conducted by the Board in its consideration of whether to revoke a pardon, the proposed approach is based on several assumptions or theories, without any opportunity for the Board to consider these assumptions or theories or for the Board to apply its expertise. The Court is without any evidentiary record to inform its assessment of the statutory objectives of the pardon and revocation provisions and whether the decision reflects a proportionate balancing of the rights or values implicated with those objectives. Heeding the guidance of the Court of Appeal in Taman, the Court will not engage in the detailed Doré type analysis. The Board’s decision cannot be found to be unreasonable because it did not conduct a balancing of the Charter interests or values that may be at play—which were not raised before it—against the statutory objectives of the CRA.
[60] In any event, even if the Court were to embark on a review in the absence of an evidentiary record, and determine whether the decision reflects a proportionate balancing of the Charter protections or values now raised by Mr. Buffone, the Court would find the decision to be reasonable.
[61] A few observations are in order. I do not share Mr. Buffone’s view that the statutory objectives of the pardon (now record suspension) regime are found in section 4.1 or that the objectives of revocation are the mirror image of the objectives of granting a pardon. In my view, section 4.1 sets out criteria for granting a pardon, not the statutory objectives. Section 7 sets out the criteria for revocation. In the present case, the Board is relying only on paragraph 7(b), which requires evidence establishing to the satisfaction of the Board that the person to whom it relates is no longer of good conduct. In addition, section 7.2 provides that a pardon is automatically revoked upon conviction for an indictable offence and for the majority of hybrid offences.
[62] In the present case, the revocation of the pardon may impact a person’s section 7 Charter interests to some extent, but that is the nature of the revocation. Revocation removes the privilege of having the criminal record suspended and kept separate from other criminal records and, thereby, avoids the usual consequences of a criminal record. A pardon is a privilege contingent on, among other things, remaining of good conduct.
[63] The jurisprudence has established that the presumption of innocence does not apply in the context of an application for a pardon (Conille) or in the revocation of a pardon (Jaser). I do not agree that MY has cast doubt on this jurisprudence.
[64] In Conille, Justice Blanchard noted (at para 30):
In my opinion, the "presumption of innocence" principle is not applicable in the context of an application for pardon. This principle and the rights pertaining thereto apply in the context of a criminal proceeding and not, in my opinion, in the case of an administrative proceeding such as the one involved in this case. The grant of a pardon is discretionary. It is not an entitlement and is done only when the Board is satisfied that the applicant is of good conduct and that he has not been convicted of an offence during the five-year period (subsection 4.1(1) of the Act).
[65] Mr. Buffone now suggests that the presumption of innocence must be taken into account as a principle of fundamental justice, along with his right to security of the person, and be balanced against the statutory objectives of the CRA.
[66] In my view, the presumption of innocence cannot take on a new role as a principle of fundamental justice to put persons facing revocation of a pardon due to subsequent charges for new offences in a different position than those who are not charged with offences, but whose good conduct is otherwise in question. The CRA provides that the Board may revoke the pardon in several circumstances, including where it is satisfied that the person is no longer of good conduct. It would be illogical and would undermine the intent of the CRA to prohibit revocation in the face of outstanding criminal charges due to the presumption of innocence, yet permit the Board to rely on conduct that falls short of criminal charges (for example that shows an association with persons involved in criminal activity) or on charges that are stayed or withdrawn. The provisions of the Policy Manual which guide the assessment of good conduct, and which this Court (Jaser) and the Court of Appeal (MY) have found apply to the assessment of good conduct for both granting and revoking a pardon, refer to, among other things, information from the police about non-law-abiding behaviour that did not result in a charge; information about charges that were withdrawn, stayed, or dismissed; and, information exchanged with justice system participants about suspected or alleged criminal behaviour.
[67] Finally, Mr. Buffone’s suggestion that if Parliament had intended to have pardons revoked based on outstanding charges, it could have specifically provided for this in the CRA, overlooks that Parliament did provide for this in paragraph 7(b), which permits the Board to consider a range of conduct and information to determine whether the person is no longer of good conduct. Similarly, the approach proposed by Mr. Buffone to await the outcome of the criminal process before determining whether to revoke his pardon ignores this provision of the CRA.
The Board did not apply the wrong test for revoking a pardon [68] I agree with the Respondent that the Board’s decision can be read in two ways. Regardless, even if the first paragraph, which refers to the criteria for granting a pardon, was included in error, it does not result in any error in the decision.
[69] As the Supreme Court of Canada held in Newfoundland Nurses, the reasons are to “be read together with the outcome and serve the purpose of showing whether the result falls within a range of possible outcomes” (at para 14). The reasons and the record demonstrate that the Board was considering a proposal to revoke Mr. Buffone’s pardon. The notice sent, the first decision, the agreement to reconsider the revocation proposal and to accept submissions, and the submissions provided by Mr. Buffone were all focussed on the issue of whether his pardon should be revoked. The Board clearly considered whether Mr. Buffone’s pardon should be revoked.
[70] With respect to Mr. Buffone’s reliance on MY at para 23, in support of his submission that there is no onus on the applicant to establish their good conduct, rather that there is an onus on the Board, I do not agree that MY established such a general proposition. In MY, the Court of Appeal stated (at para 23):
I also note that the requirement to obtain representations from M .Y. under the Act does not imply that it is M. Y. who has the burden of establishing his good conduct; rather, it reflects the Board's duty of procedural fairness (see also subsections 4.2(2) and (3) of the Act).
[71] In my view, this addresses a specific argument and clarifies the duty of procedural fairness under section 7.1, as well as subsections 4.2(2) and (3).
[72] The only references in the CRA to any onus are with respect to an application for a pardon. Subsection 4.1(2) applies to an applicant who seeks a pardon or record suspension in respect of an indictable offence and provides that “the applicant has the onus of satisfying the Board that the record suspension would provide a measurable benefit to the applicant and would sustain his or her rehabilitation in society as a law-abiding citizen”. Subsection 4(4) places an onus on an applicant who was convicted of sexual offences against a young person to satisfy the Board of certain things; for example, that there was no violence used or that the applicant was not in a position of trust or authority in relation to the victim of the offence.
[73] Both the granting and revocation of a pardon require that the Board be satisfied of the applicable criteria. Section 7 specifically provides that the Board may revoke a pardon “on evidence establishing to the satisfaction of the Board that the person…is no longer of good conduct” (emphasis added).
[74] I do not agree that the Board reversed any onus of proof by stating that “the involvement of the police raises doubts about whether or not you continue to satisfy the good conduct criteria”. This does not reflect the Board’s view on the applicable standard to be met in accordance with Section 7. This sentence followed from the Board’s reference to several factors arising from the nature and scope of the outstanding charges all of which pointed to the overall conclusion that the Board was satisfied that Mr. Buffone no longer met the good conduct criteria.
The Board had sufficient information, and reasonably found that it was satisfied that Mr. Buffone was no longer of good conduct [75] Justice Boswell noted in Jaser (at para 48):
The Board decided that the applicant was no longer of good conduct based only on the information supplied by the RCMP that he had been charged with some serious crimes. The applicant claims that this finding of fact was made perversely and capriciously, since a charge is merely an allegation and the Board had no knowledge of any facts that might support the charges. In my view, the applicant’s arguments in this regard miss the mark, since it was not the veracity of the allegations underlying the charges which the Board found reliable and credible but, rather, the very fact of the information itself setting out the charges. Even if these allegations may subsequently be proven to be unfounded, it was reasonable for the Board to determine that the applicant was no longer of good conduct in the face of the charges as alleged.
[Emphasis added.]
[76] Justice Boswell considered the Policy Manual which provides that in assessing good conduct, the Board may consider a range of information, including information about non-law‑abiding conduct that did not result in any charges and information about conduct that resulted in a charge that was withdrawn, stayed, dismissed or which resulted in an acquittal. Justice Boswell noted at paragraph 50, that these references in the Policy Manual “both suggest that the Board can and should consider police information about the applicant’s conduct even if it did not result in a charge or a guilty verdict.”
[77] Justice Boswell concluded at paragraph 53:
In my view, it was reasonable for the Board to infer that the applicant was no longer of good conduct from the mere fact that he was charged with the alleged offences. Although the Board did not look behind the information it received from the RCMP, it is difficult to see what more it needed to do since the mere fact of the information being laid speaks for itself irrespective of whether the allegations contained in the information are true or not. In these circumstances, I do not think the Board erred by relying on the information.
[78] I do not agree that Jaser needs to be reconsidered in light of MY. The Court of Appeal clearly stated in MY that its “conclusion is essentially grounded in the very specific facts of the case” (at para 16).
[79] The Board was clearly satisfied that Mr. Buffone was no longer of good conduct based on its consideration of the information received and Mr. Buffone’s own submissions. The Board relied on more than the involvement of police or the mere fact that charges were laid. The Board noted the nature of the charges, which were the same type of offences as the offences for which he was previously convicted; the large scale of the overall operation alleged, including the number of persons involved, which suggested a sophisticated scheme to deal in drugs; and that the charges reflected a disregard for public safety, referring to the impact of drugs on society.
[80] With respect to Mr. Buffone’s reliance on MY in support of his submissions that the Board should have alerted him to the nature of the representations he should make regarding his good conduct and that the Board should have conducted more “fact finding”, I note that the Board sent a detailed letter to him in December 2014 clearly indicating that the representations “must” address the reasons proposed to revoke the pardon and explaining the good conduct criteria.
[81] Although Mr. Buffone did not receive the first letter sent to him in December 2014, the subsequent letter that advised him that his pardon had been revoked set out similar information, including that the information from the police had informed its determination to revoke his pardon. Mr. Buffone was given an opportunity to make submissions for the reconsideration of the revocation and his counsel also liaised with the Board. Unlike in MY, it cannot be said that Mr. Buffone was not aware of the type of information the Board would find useful.
[82] Mr. Buffone also notes that in MY, the Court of Appeal found, at paragraph 20, that the Board did not conduct any investigation or seek details from the police about the circumstances of the offence for which M. Y. had been convicted to determine whether his conduct had placed others in danger. He argues that there was a duty on the Board to seek out information in order to satisfy itself that he no longer met the good conduct criteria and that the Board failed to use its “fact finding” powers.
[83] I do not agree that MY established, as a general proposition, that the Board must seek out additional information or do more “fact finding” to ensure it has everythin