Rootenberg c. Canada (Attorney General), 2012 FC 1289 (2012)

Conférencier:The Honourable Mr. Justice de Montigny
Numéro de Registre:T-1228-11
Parties:Rootenberg c. Canada (Attorney General)

Federal Court - Rootenberg v. Canada (Attorney General)


Date: 20121102

Docket: T-1228-11

Citation: 2012 FC 1289

Ottawa , Ontario , November 2, 2012

PRESENT: The Honourable Mr. Justice de Montigny








[1] The Applicant seeks judicial review of the National Parole Board Appeal Division’s (the “Appeal Division”) confirmation of a parole revocation decision made by the National Parole Board (the “Board”) pursuant to paragraph 107(1)(b) of the Corrections and Conditional Release Act , SC 1992, c 20 [ CCRA ]. The Applicant essentially submits that both the Board and the Appeal Division misconstrued his parole condition and the evidence, and failed to provide adequate reasons for the decision to revoke his day parole. For the reasons that follow, I have come to the conclusion that the application ought to be dismissed.


[2] On May 29, 2005, the Applicant was sentenced to 3 years and 6 months imprisonment for three counts of fraud over $5,000 and two counts of failure to comply with recognizance. He was held in custody at the Beaver Creek minimum security institution in Gravenhurst, Ontario.

[3] As a first time offender serving a sentence for a non-violent crime, the Applicant’s case was reviewed by the Board on October 20, 2009, for accelerated parole release pursuant to what was then section 126 (now repealed) of the CCRA . The Board decided he should be released on day parole subject to the following condition of release (the “employment condition”):

You are not to be employed, paid or unpaid, in a position which provides you with access to the financial records of others or puts you in a position of knowledge, or responsibility, for the management of finances for any other person, business or charity.

Applicant’s Application Record, Tab 3, Exhibit “A”, p 15.

[4] As a result, the Applicant was released on December 13, 2009, to the St. Leonard’s House (Peel) on day parole.

[5] In February 2010, the Applicant accepted a job offer with a company named D-Bor without the approval of his parole officer. This company was in the business of recruiting athletes, connecting them with sports agents, offering them lucrative endorsement contracts, and advertising. After discussion with his employer, the Applicant’s supervision team permitted him to continue his employment, with the understanding that the job was an information technology position. During the first supervision appointment, the Applicant informed his parole officer about the possibility of traveling for business. At the second supervision appointment, the Applicant revealed that he had been negotiating with Apple for the supply of computers, iPods and iPads, but assured his parole officer that he had no involvement in financial transactions. Regardless, the parole officer raised concerns that the Applicant was in danger of stepping into the area of finances, contrary to his employment condition.

[6] Subsequently, the parole officer approved a business trip to London for the Applicant to meet a young golfer. This trip was approved on the premise that the Applicant was the only one available for this appointment and, as an avid golfer, would be able to assess the golfer’s skills and future prospects with the company.

[7] A short while later, the Applicant requested another permit, this time for travel to Vancouver. Initially, the Applicant had planned to leave on April 12, 2010, and to return on April 14, 2010. These travel arrangements changed a number of times. Ultimately, his parole officer believed that the Applicant had decided to shorten his trip to Vancouver to depart on April 13, 2010, but had yet to approve the plan. While the travelling dates were still unresolved, the Applicant presented himself at the 21 Division Peel Regional Police in an attempt to switch his appointed reporting date and time from April 14, 2010 to April 15, 2010 to accommodate his travel plans. During the course of the conversation, the police officer came to believe that the Applicant had breached his employment condition and obtained access to and acquired knowledge of the financial information of another person, namely information about the golfer and his father. He further suspected that the Applicant’s employer, Mr. Wells Davis, may have become a victim of fraud. The police opened an investigation.

[8] The investigation was inconclusive as the police were unable to contact the golfer or his father. After an interview with the Applicant’s employer, the investigating officer was also satisfied that the employer had not been defrauded and, as such, no charges were laid against the Applicant. Nevertheless, the police found that Mr. Davis was not fully aware of the Applicant’s criminal history and had entrusted the Applicant with the sole responsibility of running the company – apart from any actual financial transactions – as Mr. Davis had rather limited business acumen and was employed on a full-time basis elsewhere. On May 10, 2010, on the basis of the police investigation, the Applicant’s area parole officer recommended that his parole be revoked.

[9] On July 28, 2010, the Board conducted a hearing and decided to revoke the Applicant’s parole on the same day. The Board concluded:

… there are significant discrepancies between your [the Applicant’s ] version of events and the information provided by your supervision team. After careful consideration of all of the file information and the interview with you today, the Board is satisfied that you not only breached your employment condition as outlined above, but also, you were deceptive and manipulative by providing a less than truthful description of the scope of your employment duties and your activities to your supervision team. The Board accepts your case management team’s statements about the permission given for you to accept only an IT position with the company. Your assertion that your case management team was fully aware of your employment activities is not consistent with your parole officer’s expressed concerns about your negotiations with Apple and her reservations about giving you permission to go to London to play golf with a prospective client of the company. Your criminal history involves convictions for fraud and failures to abide by release conditions. The deception evident in your interactions with your case management team is similar to the behaviour involved in your criminal activities. Having found that you breached your employment condition and were deceptive and manipulative with your case management team, the Board has concluded that risk is not manageable for community release. Therefore, your day parole is revoked. …

Applicant’s Application Record, Tab 3, Exhibit “D”, Board Post Release Decision Sheet, p 130.

[10] On September 27, 2010, the Applicant appealed the Board’s decision. On March 4, 2011, the Appeal Division...

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