T-6086-80
Charles Vernon Myers (Applicant)
v.
National Parole Board (Respondent)
Trial Division, Mahoney J.—Calgary, January 30;
Ottawa, February 5, 1981.
Prerogative writs — Application for (1 ) writ of prohibition
prohibiting respondent from requiring settlement of tax liabil
ity as a condition of grant of parole (2) writ of mandamus
requiring respondent to grant parole and (3) writ of certiorari
quashing respondent's decision to refuse parole — Applicant
convicted of tax evasion — Board's refusal to grant parole
prior to date set for hearing of application for parole —
Whether application for writs are well founded — Whether
conclusion of a settlement of tax liability and applicant's
efforts to reach settlement are proper considerations — Parole
Act, R.S.C. 1970, c. P-2, s. 10(1).
Applicant, who was convicted of tax evasion, seeks: (1) a writ
of prohibition to prohibit respondent from requiring that appli
cant, as a condition of a grant of parole, reach a settlement
respecting his tax liability; (2) a writ of mandamus requiring
the respondent to grant him parole and (3) a writ of certiorari
quashing the respondent's decision refusing him parole as a
result of his failure to return to jail after an unescorted
temporary absence. The applicant contends that this latter
decision took place prior to the date set for the hearing of his
parole application. With respect to the writ of prohibition, the
question is whether the conclusion of a settlement of the tax
liability and the applicant's efforts to reach a settlement are
proper considerations for the Board in the exercise of its
discretion to grant parole.
Held, the application is dismissed. There is no merit in the
application for certiorari and mandamus. The precedents,
reports and works cited on behalf of applicant are unexception
able in all respects but their relevance to the facts as they have
been since applicant's failure to return to jail. With respect to
the applicant's efforts to reach a settlement, the attitude toward
satisfaction of the applicant's incidental debt is properly to be
taken into account by the National Parole Board in the exercise
of its discretion under subsection 10(1) of the Parole Act.
However, if the Board regarded the conclusion of such a
settlement as a relevant factor in itself rather than as evidence
of the applicant's efforts, it was wrong. Moreover, the Board
did not stipulate a condition as a prerequisite to a grant of
parole: it gave advance notice of something that it proposed to
take into account upon hearing the application.
Roncarelli v. Duplessis [1959] S.C.R. 121, referred to.
APPLICATION.
COUNSEL:
J. Marshall and R. Hughes for applicant.
B. Saunders for respondent.
SOLICITORS:
Macleod Dixon, Calgary, for applicant.
Donald F. Sim, Q.C., Toronto, for applicant.
Deputy Attorney General of Canada for
respondent.
The following are the reasons for judgment
rendered in English by
MAHONEY J.: The applicant (hereinafter
"Myers") seeks a writ of prohibition to prohibit
the respondent (hereinafter "the Board") from
requiring that Myers shall, as a condition of a
grant of parole, make arrangements with the
Department of National Revenue for the payment
of any outstanding income tax liability; a writ of
mandamus requiring it to grant him parole and a
writ of certiorari quashing its decision refusing
him parole. The application has nothing to do with
the refusal to grant Myers parole by exception
although a good deal of the supporting material is
directed to that refusal. Myers has chosen to pro
ceed with this application notwithstanding that the
order for general and special discovery, made
against the Board, January 12, 1981, pursuant to
Rules 448 and 451, has been stayed and has not
been complied with pending disposition of an
appeal therefrom.
Myers was convicted of evading payment of
taxes on income of $1,400,000 during his taxation
years 1969 to 1974, inclusive.' He was sentenced
to a two-year term in jail which he commenced to
serve on January 10, 1979. He was eligible for
"full" parole on September 10, 1979, and "day"
parole on July 10. He applied for parole.
I The Queen v. Myers 77 DTC 5278; [1977] C.T.C. 507.
On June 18, 1979, the Board wrote Myers advis
ing him that his application for parole by excep
tion had been refused and that his application for
full parole would be considered shortly before the
September 10 eligibility date. The letter went on:
During the review of your file, the Board noted that there is
an outstanding income tax assessment in the amount of
$1,810,000.00. The Board is aware of your lawyer's May 1,
1979, letter to Revenue Canada Taxation; but it is concerned
that you have made only minimal effort to discuss this matter
with Revenue Canada Taxation and to reach an agreement for
payment. As this will be an important factor for consideration
during any parole review, the Board hopes that between now
and your Parole Eligibility Date, you will take the initiative and
try to reach an agreement with Revenue Canada Taxation for
payment of the tax assessment.
On July 18, the Board heard Myers' application
for day parole. It is clear from both a letter Myers
wrote his solicitor on July 18 and the report of the
hearing, dated the same day and signed by the
Board members, that the Board remained con
cerned about his efforts, or lack thereof, to under
take settlement negotiations in respect of his tax
liability. The Board's report says:
Until he makes a sincere effort to begin a settlement with
Revenue Canada, his offense of evading payment of taxes
appears to be continuing.
and, under the head of Recommendations for
Future Activities, goes on:
We would support U.T.A.'s [i.e. unescorted temporary
absences] to meet with lawyers & Revenue Canada to work on
the matter referred to above.
Myers' letter confirms that the Board had
approved temporary absences for that purpose. He
reported the Board as saying:
Said non-payment was regarded as a continuing part of the
crime.
Said they would check before (Sept. 10) meeting with Revenue
Canada to see how I was satisfying them in their negotiations.
Said find it hard to believe that in 6 months in Jail I couldn't
have made more progress with Revenue Canada if I wanted to
take the initiative. Said I owed the debt—up to me to [illegible
word] initiate moves more aggressively.
Both the report and letter indicate that the hearing
of the application for full parole was to be resumed
September 10, 1979.
Myers was released on an unescorted temporary
absence of 48 hours at 6:00 p.m., July 28, 1979.
He did not keep an appointment with his lawyer.
He did not return when it expired. He remains at
large outside Canada. On September 13, 1979, the
Board wrote to Myers, apparently replying to a
letter from him, at an address in Spokane, Wash-
ington, U.S.A., advising him that:
... the Board reviewed your case again on August 30, 1979.
Because you are presently at large, the Board voted Day Parole
Denied and Full Parole Denied.
Myers seeks certiorari to quash that decision on
the ground that the review took place prior to the
September 10, 1979 hearing date previously set.
There is absolutely no merit in the application.
There is likewise no merit in the application for
mandamus. The precedents, reports and scholarly
works cited in argument on Myers' behalf are
unexceptionable in all respects but their relevance
to the facts as they have been since Myers failed to
return to jail on July 30, 1979. It would be an
exercise of some considerable leisure, suited to the
talents of a latter-day Lewis Carroll, to deal with
the argument. Clearly, in the circumstances, the
Court ought not exercise its discretion to quash the
refusal of parole and/or to direct the Board to
grant Myers parole.
The mandate of the Board to grant parole is set
forth in paragraph 10(1)(a) of the Parole Act: 2
10. (1) The Board may
(a) grant parole to an inmate, subject to any terms or
conditions it considers desirable, if the Board considers that
2 R.S.C. 1970, c. P-2.
(i) in the case of a grant of parole other than day parole,
the inmate has derived the maximum benefit from
imprisonment,
(ii) the reform and rehabilitation of the inmate will be
aided by the grant of parole, and
(iii) the release of the inmate on parole would not consti
tute an undue risk to society;
Since Myers' application for parole has, on
other grounds, been properly refused and since
parole from the presently interrupted sentence
may be among the least of his concerns, if, as and
when he returns, or is returned, to Canada, the
present application for prohibition may be regard
ed as somewhat academic. However, I accept the
argument that there are well-defined issues be
tween the parties that should be disposed of. They
are whether either or both of the following are
proper considerations for the Board in the exercise
of its discretion to grant parole:
1. Conclusion of a settlement of the tax liability;
and
2. Myers' efforts to reach a settlement.
While settlement of the tax liability would be
conclusive proof of the bona fides of Myers' efforts
to reach such a settlement, there is an important
distinction. It is no part of the function of the
Board to withhold parole for the purpose of assist
ing the fisc in its collection efforts.' On the other
hand, tax evasion is the offence for which Myers
was incarcerated and it is from that incarceration
that he seeks parole. The attitude of any convict to
the satisfaction of the civil liability incidental to
his offence is clearly among the factors to be
weighed in deciding whether the inmate has
derived the maximum benefit from his imprison
ment. A major element of the benefit to be derived
must, from the inmate's point of view, be a reduc
tion of the likelihood that he will repeat. Infer
ences material to that question may certainly be
drawn from his attitude toward the financial obli
gations incidental to his prior offence or offences.
The tax evader is in no different position than any
other cheater whose actions are deemed criminal
at law. The Board is no more entitled to ignore
Myers' attitude toward settlement of his tax liabil-
3 Roncarelli v. Duplessis [1959] S.C.R. 121.
ity than it would be entitled to ignore the attitude
of an embezzler to restitution. There are distinct
qualities to the different offences but, in each, the
attitude toward satisfaction of the incidental debt
is properly to be taken into account by the Board
in the exercise of its discretion under subsection
10(1).
The Board clearly, and properly, had in mind
Myers' efforts to reach a settlement. It may also
have had in mind the conclusion of such a settle
ment as a relevant factor in itself rather than as
evidence of his efforts; if so, it was wrong. Should
another application come before it, the Board
should not regard failure to reach a settlement as
being material in itself but should look to the
reasons for that failure, in so far as they may
reasonably be ascribed to Myers.
Much is made of the alleged impossibility of
Myers doing anything while incarcerated inas
much as he has no assets in Canada and his assets
abroad are in a safety deposit box which only he
can enter. Any but the totally naive would reject
that in the absence of proof that the laws of the
undisclosed foreign jurisdiction are so unusual as
to preclude access by an attorney or otherwise
than by Myers alone and in person. In any event, it
is no excuse for not negotiating.
It is argued that the Board had no right to
stipulate any condition, not provided in the Act, as
a prerequisite to hearing an application for parole.
I agree, but that is not what the Board did. The
Board gave advance notice of something that it
proposed to take into account when it did hear the
application. That was not only legal, it was emi
nently sensible and proper, predicated on the
assumption that Myers wished his application to
be disposed of quickly as well as favourably.
JUDGMENT
The application is dismissed with costs.
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