[2016] 4 F.C.R. D-6
Parole
Judicial review of decision by Minister of Public Safety and Emergency Preparedness denying applicant’s request to grant him remission of indeterminate sentence — Applicant subject to preventive detention sentence resulting from “habitual criminal” designation in 1972 — Applying for clemency in 2005 — Minister determining in letter dated September 9, 2014 applicant not meeting criteria for clemency, i.e. no error, change in law, sentence not disproportionate to nature of offences — Minister’s refusal following negative recommendation from Parole Board of Canada (Board) not shared with applicant — Royal Prerogative of Mercy Ministerial Guidelines intended to help Board evaluate merits of clemency applications, determine whether or not it should recommend to Minister that royal prerogative of mercy be exercised — Board taking other factors into consideration in formulating recommendation in applicant’s case, i.e. applicant’s dangerousness, alcohol-related criminal behaviour, parole possibilities — Main issue whether failure to disclose recommendation to applicant material breach of procedural fairness — File involving serious breaches of procedural fairness — Minister never ordering formal investigation in connection with exercising prerogative of mercy in case of clemency application filed in 2005 — Nine years to render decision, summarily, without investigation on merits of clemency application inconceivable — Entire process since clemency application filed lacking transparency, leaving impression of bad faith, bias — Filing of recommendation, Board report with Court not correcting this — Even if royal mercy not a right, applicant can expect review of application by open-minded decision maker — Applicant must be able to explain or refute any unfavourable element that Board failed to disclose to him, to comment on any negative recommendation from Board — Appropriate here to refer clemency application back to Minister for redetermination after applicant has had opportunity to give Minister his written submissions regarding Board recommendation — Question not whether Minister’s decision acceptable outcome, but whether applicant had opportunity to make case before neutral, impartial decision maker — Ministerial decision not result of “proportional balancing” — Application allowed.
Robillard v. Canada (Attorney General) (T-2296-14, 2016 FC 495, Martineau J., judgment dated May 4, 2016, 52 pp.)