Criminal convictions and administrative law: what can’t be considered

Tribunals are not permitted to look behind a criminal conviction but a recent decision of the Ontario Divisional Court is a lesson in what adverse inferences a tribunal is NOT permitted to draw from a criminal conviction.

A wholesale car dealer was denied an annual license and this decision was appealed to the Licensing Appeals Tribunal of Ontario. The car dealer had been charged with sexual assault. He pleaded not guilty. He testified at his trial and gave a version of events significantly different from the complainant. The criminal trial judge gave extensive reasons for his adverse findings of credibility against the car dealer.

After he was convicted, the registrar of motor vehicles learned that the car dealer had previously filed false renewal applications. He was charged with a provincial offence and fined.

Subsection 6(1) of the Motor Vehicle Dealers Act provides:

(1) An applicant that meets the prescribed requirements is entitled to registration or renewal of registration by the registrar unless

(a) the applicant is not a corporation and,

(ii) the past conduct of the applicant… affords reasonable grounds for belief that the applicant will not carry on business in accordance with law and with integrity and honesty, or

(iii) the applicant… makes a false statement or provides a false statement in an application… for renewal of registration….

The licencing appeals tribunal found that, by itself, the providing of false information would not necessarily have been grounds for revocation. It also concluded that, although the sexual assault was of great concern, it did not necessarily preclude renewal with conditions, if he “were making sincere efforts to understand what motivated him to assault the victim and how to avoid acting on such impulses in future”.

The Tribunal considered that two additional factors tipped the balance against registration, even on terms and conditions:

(a) his denials of wrongdoing, which reflect a failure to take responsibility for and show insight into the sexual assault; and

(b) the strong adverse findings of credibility by the judge, which cast doubt on the his honesty and integrity, and was a further basis for concluding that he is in a state of denial over his conduct and thus at greater risk of reoffending.

The Divisional Court held that the Tribunal’s reliance on these two factors were, in both cases, serious errors of law. They undermined the Appellant’s right to assert his innocence, his right to pursue an appeal from his conviction, and his right to make full answer and defence at his criminal trial.

The court held:

An assertion of innocence at trial cannot be held against him. To do otherwise would derogate from the presumption of innocence and the right to make full answer and defence to a serious criminal charge.

The adverse findings of credibility by the judge are not evidence on which the Tribunal can rely for assessing the car dealer’s integrity. The Tribunal was required to make its own assessment of his integrity based on the evidence before the Tribunal.

The Tribunal cannot rely on the car dealer’s refusal to acknowledge his own guilt in the face of the strong findings of credibility made by the judge. This reliance on his pursuit of his appeal rights is a serious derogation of his substantive right to pursue an appeal.

The Tribunal was entitled to rely upon the fact of the conviction for sexual assault and to rely upon the circumstances of the sexual assault, as found by the trial judge.

The car dealer was entitled to explain his conduct in the aftermath of the charges and the trial, including why he had not undertaken remedial steps, such as counselling. His explanation was that he still maintains his innocence and is appealing the trial decision. The court held that this showed an absence of contrition and ameliorative conduct since the conviction. However, this was the absence of a mitigating factor, not an aggravating or negative circumstance. The strength of the case against the car dealer was not increased by the absence of mitigating factors. Because the Tribunal treated these neutral or irrelevant factors as aggravating factors in its assessment of his suitability for registration, the Court held that the decision could not stand.

The decision was set aside and remitted back to the Tribunal for a fresh hearing before a different adjudicator.

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Columns published on slaw.ca

"Chapter 22: Unions and Collective Agreements", in Palmer and Snyder, Collective Agreement Arbitration in Canada, 4th edition, 2009 and 5th edition, 2013.

“Non-consensual expedited processes: the intersection of fairness and expediency”, Lancaster House.

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