Robillard v. Canada (Attorney General)

Robillard v. Canada (Attorney General)
Court (s) Database
Federal Court Decisions
Date
2016-05-04
Neutral citation
2016 FC 495
File numbers
T-2296-14
Notes
Digest
Decision Content
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 ROBILLARD
Applicant
and
ATTORNEY GENERAL OF CANADA
Respondent
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, the applicant has made an effort to equip himself with tools that have helped him adopt more social behaviour. However, he is still stuck with an unfortunate label. In fact, he has had it since the 70s. At age 25, he became the youngest “habitual criminal” in Canada. The legal designation 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 an alcoholic. He agrees that he is a criminal, but says he is not a dangerous offender. He certainly committed some violent crimes, but that was during a different period of time. In 1987, he killed a man who assaulted him in a bar, but he served his sentence for that manslaughter conviction. He paid his “debt” to society and says that he has since conquered his worst enemy: himself. The applicant’s sobriety and alcohol avoidance have released him and given him back his freedom. However, this freedom that was regained through considerable effort remains very precarious because the applicant is still subject to the preventive detention sentence resulting from his habitual criminal designation in 1972. For this reason, in 2005, he asked the Governor General to grant him remission of this indeterminate sentence that was causing him much upheaval and harm. Nine years later, the Honourable Steven Blaney, Minister of Public 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 that he 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 is shown that there was an error of law, a great injustice for example, a change to a law that would have unintentional and unexpected consequences for a person found guilty, who received a sentence or punishment that was too severe and disproportionate to the nature and 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 criteria for clemency and therefore no investigation will be initiated in his case. He has not provided evidence that he suffered an injustice or a punishment that was too severe or disproportionate to the nature and severity of the offences committed. The Minister also ordered that you be advised that he does not sanction disclosure of the recommendation concerning the merit of the application to exercise the Royal Prerogative 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 fairly and did not seriously review his clemency application. The Minister’s refusal was unreasonable, and the PBC’s recommendation was not communicated to him beforehand. The Attorney General of Canada (the respondent) maintains that the contested ministerial decision is legal 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 at paragraph 64 [Bilodeau]; McArthur v Ontario (Attorney General), 2012 ONSC 5773 at paragraph 22; Walchuk v Canada (Minister of Justice), 2013 FC 958 at paragraph 21). In terms of verifying whether the duty to act fairly has been met, the correctness standard of review applies (Bilodeau at paragraph 63), bearing in mind that the scope of the obligation of procedural fairness is variable and to be decided in the particular context of each case (Baker v Canada (Minister of Citizenship and Immigration), 1999 CanLII 699 (SCC) at paragraph 21 [Baker]).
[5] However, whether the issue is procedural fairness or the reasonableness of the Minister’s refusal, the judicial review cannot take place in a vacuum. Fortunately, rule 317 of the Federal Courts Rules, SOR/98‑106 (Rules) allows any party involved in a judicial review 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 to proceed 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 its recommendation, this time with no objection from the Minister to its disclosure. On March 9, 2015, subsequent to the respondent’s parallel request, the PBC also produced, with the exception of documents subject to solicitor/client privilege, the entire PBC file relating to the clemency application, including the decision rendered by the Minister on August 29, 2014 and shared with the PBC on September 9, 2014, the PBC’s recommendation, the applicant’s criminal record, as well as the decisions and other extraneous material not 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 not shared 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 be limited to the reasons given in Mr. Fidelia’s letter of September 9, 2014, or could it also include a review of the recommendation in question 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 procedural fairness. On the other hand, the respondent cannot rely on the PBC’s recommendation to justify the reasonableness of the Minister’s refusal. For a better understanding of the final result, I will consider the parties’ submissions after providing a general description of this case, as well as the complex legal framework on which it is built.
“HABITUAL CRIMINAL”: A DESIGNATION THAT IS FALLING 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 offender who, either through social determinism or voluntary life choices, has become an incorrigible repeat offender, who society is forced to quarantine, as if to protect itself from a sick and contagious body. Let us first review the criteria for and legal effects of designating an individual 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). After reaching the age of 18, the accused must have been convicted of three or more separate indictable offences resulting in a sentence of imprisonment 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 ago to a sociological understanding. Crime is most often the result of an individual’s failed social adaptation; therefore, deviant behaviour can be corrected by a reassessment of values. However, even if opportunity makes thieves, a good number of these asocial individuals who 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. The risk is too great to release these individuals, even on parole, hence the need for preventive detention in a penitentiary, even after they have served their initial sentence. In Canada, since 1977, only “dangerous offenders” can be sentenced to preventive detention, the ultimate 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 in R v Lyons, 1987 CanLII 25 (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 relate to conduct tending to cause severe physical danger or severe psychological injury to other persons. Significantly, the maximum penalty for all these offences must be at least ten years’ imprisonment. Secondly, it must be established to the satisfaction of the court that the offence for which the person has been convicted is not an isolated occurrence, but part of a pattern of behaviour which has involved violence, aggressive or brutal conduct, or a failure to control sexual impulses. Thirdly, it must be established that the pattern of conduct is very likely to continue and to result in the kind of suffering against which the section seeks to protect, namely, conduct endangering the life, 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 of conduct 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 they automatically converted into “dangerous offenders?”
[13] Obviously, the answer is no. Because that would have required the retroactive application of the law. However, as we have seen, the conditions for designating an individual as a dangerous offender are more stringent than those for designating a habitual criminal could have been. Nonetheless, despite the repeal of the former section 688 of the Criminal Code, a habitual criminal, today, is still subject to the legal and human consequences of this designation, which are, in effect, of a permanent and inescapable nature. In other words, 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 of Rights and Freedoms, part I of the Constitution Act, 1982, schedule B to the Canada Act 1982 (UK), 1982, c 11 [Charter]. In the past, in the 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 plain to see. During the 10 years following his designation as a habitual criminal in 1972, he amassed convictions for bodily harm, weapons possession, 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 had not yet killed anyone—(this would come in 1987)—he was a dangerous man, who was respected by his peers and feared by society because they knew he could kill. Did this, however, make him an incorrigible repeat offender, who should be kept in preventive detention 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 an incorrigible 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 that the 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 1982 but 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 I believe 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 reviewed after 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 make in his rehabilitation. An administrative review of the applicant’s file was to be conducted after four years, to allow departmental officials to 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 injury offence. At that time, the applicant was 42 years old. Today, he emphatically states that he has learned his lesson—the hard way. Should we believe him? In this case, everyone involved acknowledges that the applicant’s criminal behaviour, including the manslaughter, is directly related to his uncontrolled alcohol consumption. As a result, while he was on parole, the applicant was convicted of various alcohol-related offences (1995, 2003 and 2010). Can an alcoholic offender who has already committed serious personal injury offences really 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 could change his ways. In August 2005, the applicant, with the help of his former counsel, Jacinthe Lanctôt, applied to the Governor General for remission of his sentence of preventive detention in accordance with the Royal Prerogative of Mercy. At that time, the applicant was 59 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 Leggatt Commission 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 by counsel 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 offenders and 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’s preventive detention application (appendix 11)