T-311-84
Lawrence William Hewitt (Applicant)
v.
National Parole Board (Respondent)
Trial Division, Muldoon J.—Winnipeg, March 29;
Ottawa, April 25, 1984.
Constitutional Caw — Charter of Rights — Life, liberty and
security of person — Revocation of parole — Conduct of
post-suspension hearing in violation of Charter, s. 7 — Defect
not cured by offer of new hearing — Subsequent conviction
and sentencing of applicant for criminal offences not homolo-
gating unlawful procedure, nor making application and
remedy moot — Object of constitutional entrenchment of
individual rights to require persons acting under state author
ity to act according to law or lose results of efforts —
Canadian Human Rights Act, S.C. 1976-77, c. 33, s. 54 —
Privacy Act, S.C. 1980-81-82-83, c. 111, Schedule II —
Canadian Charter of Rights and Freedoms, being Part I of the
Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c.
11 (U.K.), ss. 1, 7, 24 — Constitution Act, 1982, s. 52(1) —
Parole Regulations, SOR/78-428, s. 17.
Judicial review — Prerogative writs — Certiorari — Revo
cation of parole — Part of post-suspension hearing conducted
ex parte — Denial of fairness and violation of Charter, s. 7
Defect not cured by offer of new hearing — Subsequent
conviction and sentencing of applicant for criminal offences not
homologating unlawful procedure, nor making application and
remedy moot — Canadian Charter of Rights and Freedoms,
being Part I of the Constitution Act, 1982, Schedule B,
Canada Act 1982, 1982, c. 11 (U.K.), ss. 1, 7, 24 — Parole
Regulations, SOR/78-428, s. 17.
Parole — Revocation of parole — Post-suspension hearing
conducted ex parte — Denial of fairness and violation of
Charter, s. 7 (see Latham v. Solicitor General of Canada) —
Defect not cured by offer of new post-suspension hearing
(Morgan v. National Parole Board) — Subsequent conviction
and sentencing of applicant for criminal offences not homolo-
gating unlawful procedure, nor making application and
remedy moot — Canadian Charter of Rights and Freedoms,
being Part I of the Constitution Act, 1982, Schedule B,
Canada Act 1982, 1982, c. 11 (U.K.), ss. 1, 7, 24 — Parole
Regulations, SOR/78-428, s. 17.
The applicant, a penitentiary inmate, seeks a writ of certio-
rari to quash the decision whereby his parole was revoked.
While on parole, the applicant was arrested and charged with
the possession of stolen vehicles. His parole was suspended.
Parts of the ensuing post-suspension hearing were conducted in
the absence of the applicant and his lawyer. He has since been
convicted on two counts of possession and sentenced to a jail
term.
The applicant argues that in holding part of the post-suspen
sion hearing ex parte the National Parole Board failed to
comply with the duty of fairness in that the Board failed to
inform him of the case against him and to give him a full
opportunity of answering it.
The respondent argued that the proceedings and discussions
which took place ex parte were innocuous and that there was
no denial of fairness. It also argued that the Court ought not to
exercise its discretion in the applicant's favour because the
respondent has offered him a new post-suspension hearing. It is
finally submitted that the application and any remedy ordered
may be moot in view of the subsequent conviction and sentenc
ing of the applicant.
Held, the application should be granted.
The case of Latham v. Solicitor General of Canada is
directly on point. In that case, the applicant had been denied
the opportunity of being present during much of a National
Parole Board hearing concerning him. It was held that "this
exclusion also amounted to a denial of fairness ...". As in the
present case, the exclusion could not be justified by require
ments of confidentiality. Furthermore, if the proceedings and
discussions were so innocuous, one wonders why there had to be
any exclusion at all.
There was therefore a denial of fairness and hence, of
fundamental justice, in breach of section 7 of the Charter. As
for the respondent's offer of a new post-suspension hearing, it
is, as was said in Morgan v. National Parole Board, "no
substitute for certiorari to quash a decision made without
jurisdiction".
The subsequent conviction and sentencing of the applicant
cannot have the effect of homologating unlawful procedure.
Constitutionally entrenched individual rights are never merely
theoretical or without practical effect. The object of such an
entrenchment is to require those who do what they do under
state authority to do it right, or else to lose the results of their
efforts.
CASES JUDICIALLY CONSIDERED
APPLIED:
Latham v. Solicitor General of Canada et al. (1984), 39
C.R. (3d) 78 (F.C.T.D.); Morgan v. National Parole
Board, [1982] 2 F.C. 648; 65 C.C.C. (2d) 216 (C.A.).
REFERRED TO:
Re Lowe and The Queen (1983), 149 D.L.R. (3d) 732
(B.C.S.C.); Martens v. Attorney General of British
Columbia, et al. (1983), 35 C.R. (3d) 149 (B.C.S.C.).
COUNSEL:
Brian Hay for respondent.
APPEARANCE:
Lawrence William Hewitt on his own behalf.
SOLICITOR:
Deputy Attorney General of Canada for
respondent.
APPLICANT ON HIS OWN BEHALF:
Lawrence William Hewitt, Winnipeg.
The following are the reasons for order ren
dered in English by
MULDOON J.: The applicant is an inmate of the
Stony Mountain Penitentiary, in Manitoba. He
represented himself, in person, at the hearing of
his motion, and was without counsel. He seeks a
writ of certiorari to quash the determination made
by the respondent, on April 7, 1983, whereby the
applicant's parole was revoked. That decision to
revoke parole was later reviewed and affirmed by
the respondent's Internal Review Committee who
so informed the applicant by letter dated July 5,
1983.
Among the several grounds cited in support of
his application, the applicant asserted the follow
ing:
3. That the National Parole Board failed to comply with the
duty of fairness which requires that the applicant be informed
of the case against him and be given a full opportunity of
answering it;
8. That the National Parole Board conducted portions of the
post-suspension hearing ex parte, during which time it is prob
able information or evidence was taken by the Board from
persons including classification officer Schultz and/or parole
officer Bergan violating sections 14, 15 and 20.1 of the said
Parole Regulations, and further had the effect of depriving the
applicant of a fair hearing in accordance with the principles of
fundamental justice for the determination of his rights and
obligations, which constitutes the due process of law that the
applicant is entitled to before a decision is made by the Parole
Board that will affect his liberty.
9. That in the alternative to ground 8, the Parole Board's
practice to conduct portions of the post-suspension [hearing] ex
parte fails to comply with the procedural duty of fairness
imposed by the common law which requires as a minimum that
the applicant be informed of the case against him and be
afforded a fair opportunity of answering it.
In his affidavit filed in support of his applica
tion, the applicant swore to the following matters
and facts:
2. As a result of events occuring on July 18, 1969 I was
charged with Capital Murder and convicted of non-capital
murder in March of 1970 and sentenced to a life sentence with
• parole eligibility falling on July 18, 1979.
3. My entire term of incarceration was served in Manitoba
Penitentiaries and in February, 1979 [I] was granted a Day
Parole and subsequently Full Parole in November of 1979.
4. On September 23, 1979 I commenced employment as
Manager of Bison Auto Wreckers Inc. and continued in that
capacity until February 10, 1983.
5. My behavior on Parole supervision has been without
untoward incident and in January, 1983 [I] enjoyed the remov
al of some of the conditions of parole restricting my activities.
That is, the Parole Board acknowledged I had demonstrated
financial responsibility and allowed me to enter into financial
contracts without prior approval.
6. On February 10, 1983 while at work at approximately
9:30 a.m. I was shown a search warrant, told I could not leave
the property and at about 12:30 p.m. placed under arrest and
charged with the possession of stolen vehicles.
7. On February 11, 1983 at approximately 8:00 a.m. I met
with Mr. V. Bergan, my parole supervisor, who informed me of
the possibility of parole suspension and asked for a response to
the charges. I replied that my lawyer was to be present during
the meeting but answered his questions as accurately as I was
able to given the state of shock I was experiencing.
8. On February 17, 1983 I met with V. Bergan at the Stony
Mountain Institution and was formally given the Suspension/
Violation Report (see Exhibit "1"). During this meeting I was
informed the National Parole Board was prepared to conduct a
post-suspension hearing on March 2, 1983 but it was necessary
for me to sign a waiver permitting the Board to conduct the
post-suspension hearing before the 14 day waiting period.
11. On April 7, 1983 a short time before the commencement
of the post-suspension hearing I met with Ms. H. Leonoff, my
lawyer, and received from her a copy of the police indictment
(see Exhibit "5"). While in the waiting room Classification
Officer Schultz approached Ms. Leonoff and myself and
instructed that we would be excluded from the first part of the
meeting. I was told the first part of the meeting would be
devoted to written submissions received by my file and verbal
submissions from the institution and/or my parole officer and
therefore neither Ms. Leonoff nor myself could be present. Ms.
Leonoff and I were invited into the Board Room after comple
tion of this first part of the post-suspension hearing. Upon entry
into the room I noticed Ron Schultz, Vic Bergan and two
National Parole Board members already seated there.
18. At the conclusion the Board asked Ms. Leonoff and
myself to leave the Board Room while they remained cloistered
with Mr. Schultz and Mr. Bergan. After about 10 minutes we
were recalled and informed of the revocation decision. Mr.
Young commented that my case was a complicated one but
indicated he would make notation on my file to have recalled
quickly if there was a court acquittal.
21. In October, 1983 the National Parole Board changed the
Parole Hearing Procedure. This was confirmed on November 7,
1983 at 10:15 a.m. through conversations with Classification
Officer Ron Schultz. Mr. Schultz told me "the hearing proce
dure is in fact changed due to recent court rulings which made
the previous practice one against the Canadian Charter of
Rights and Freedoms." Schultz also indicated:
"The new practice allows the inmate and his agent (lawyer)
to be present throughout the entire meeting. He (the inmate)
is no longer excluded from the preliminary to the hearing, all
evidence taken is in the presence of the inmate and all
individuals taking part in the hearing leave the board room
with the inmate. That is, the National Parole Board Mem
bers remain alone to make their decision."
The document referred to as Exhibit 5 is an
information sworn on February 17, 1983, by a
member of the City of Winnipeg Police Force,
charging the applicant with seven counts of unlaw
ful possession of motor vehicles and parts of motor
vehicles "knowing that the same was [were]
obtained by the commission in Canada of an
offence punishable by indictment". At the post-
suspension hearing on April 7, 1983, the two mem
bers of the respondent questioned the applicant
about the circumstances of the offences charged in
the information. They did not accept his
explanations.
An affidavit sworn by one of those two Board
Members, Noel Sharp, was filed on behalf of the
respondent. Among the matters and facts to which
he deposed were the following:
2. On April 7, 1983, I attended at the Town of Stonewall,
Manitoba to the Stony Mountain Penitentiary to sit as a
member of the National Parole Board with respect to a number
of cases involving the granting or revoking of parole. Also in
attendance was Phillip Young, a member of the National
Parole Board from Ottawa.
3. That one of the cases scheduled for that day was with
respect to the Applicant herein, Lawrence William Hewitt.
4. That prior to interviewing Mr. Hewitt with respect to his
parole suspension and possible parole revocation, Mr. Young
and I interviewed Mr. Hewitt's Parole Officer, Vic Bergen, and
Mr. Hewitt's Classification Officer, Ronald Schultz. Mr.
Hewitt and his assistant, Heather Leonoff were not present
during this discussion with the Parole Officer and the Classifi
cation Officer.
5. That to the best of my knowledge and recollection we
spoke solely to Parole Officer Bergen at that time and the
discussion focused mainly on the circumstances surrounding the
suspension of Mr. Hewitt's parole, his activities since release on
parole and the post-suspension interview that Parole Officer
Bergen had conducted with Mr. Hewitt. To the best of my
knowledge and recollection, we did not discuss any significant
matters which were not mentioned during the subsequent inter
view with Mr. Hewitt.
6. That during a detailed interview with Mr. Hewitt, he was
unable to satisfactorily explain the circumstances surrounding
the suspension of his parole. Attached hereto and marked as
Exhibit "A" to this my Affidavit is a true copy of the summary
of the interview conducted by the Board with Mr. Hewitt,
including our conclusions, and dated April 7, 1983.
8. That at the conclusion of the interview with Mr. Hewitt,
we asked him and his assistant to leave the room. His Parole
Officer and Classification Officer remained in the room while
we considered our decision. To the best of my knowledge and
recollection, the discussion at this time was mainly between Mr.
Young and myself with a few questions being asked of Parole
Officer Bergen regarding the circumstances of the alleged
offence and the post-suspension interview that had taken place
between Parole Officer Bergen and Mr. Hewitt.
The document referred to as Exhibit "A" is an
official form titled Board Members Comments. It
concludes as follows:
In summation, it was evident to the Board that the subject's
various explanations pertaining to certain activities lacked cred
ibility and it was also our opinion that he appeared to be a
highly manipulative individual.
Decision: PAROLE REVOKED
Reasons:
Your business activities, which the Board notes have resulted in
the laying of serious charges against you, lead us to believe that
your continued release at this point in time would constitute an
undue risk.
If the proceedings and discussions which took
place while the applicant and his counsel were
excluded, were so innocuous as paragraphs 4, 5
and 8 of Mr. Sharp's affidavit indicate, one won
ders why the applicant and his counsel had to be
excluded.
There appears, by paragraph 11 of the appli
cant's affidavit, some question as to whether he
was properly informed, and in sufficient time to
prepare for the hearing, about the case he had to
meet. It is not absolutely clear that the respondent
made insufficient disclosure to the applicant in this
regard. Exhibit "A" to Mr. Sharp's affidavit indi
cates that at the hearing, (such as it was) the
applicant was "armed with copious documenta
tion", but that of itself does not establish that he
was accorded adequate, timely disclosure.
No claim was asserted by the respondent, either
by affidavit or argument, to the effect that the
respondent required certain matters to be kept
confidential; nor did the respondent purport to
invoke section 17 of the Parole Regulations
[SOR/78-428] to withhold information described
in paragraphs 54(a) to (g) of the Canadian
Human Rights Act [S.C. 1976-77, c. 33]. (The
latter provision has since been replaced by the
Privacy Act, S.C. 1980-81-82-83, c. 111, Schedule
II, proclaimed to come into force on July 1, 1983,
after the date of the revocation hearing in this
case.) This aspect of the matter bears (but doubt
fully) on the issue of disclosure prior to the hear
ing, as well of course, upon the exclusion of the
applicant from the first and last portions of "his"
hearing.
The resolution of the dispute between the parties
has, however, been rendered rather straightfor
ward by the recent decision of Mr. Justice Strayer
of this Court, in Latham v. Solicitor General of
Canada et al.' There, Strayer J. held that there
has been inadequate disclosure and went on to
hold [at page 91]:
' (1984), 39 C.R. (3d) 78 (F.C.T.D.).
The same considerations generally apply to the denial of the
opportunity for the applicant to be present during much of the
"hearing": Re Mason and R. (1983), 43 O.R. (2d) 321; 35
C.R. (3d) 393 (sub. nom. Re Mason; Mason v. Can.), 7 C.C.C.
(3d) 426, 1 D.L.R. (4th) 712 (H.C.). Since the applicant was
available and waiting outside, there can be no justification for
excluding him from the hearing except that of confidentiality.
Prima facie it appears to me that this exclusion also amounted
to a denial of fairness. It remains for the parole board in any
future proceedings to demonstrate that some law exists which
limits this right, otherwise guaranteed under s. 7 of the Chart
er, and that, as applied, the law represents a reasonable limita
tion on that right.
The cited judgment of Mr. Justice Strayer is both
pertinent and authoritative in its application to the
circumstances of the case at bar. 2 Indeed it seems
to provide a like conclusion for this case in that
here, too, the respondent's revocation on April 7,
1983, of the applicant's parole, including the sub
sequent affirmation of that revocation, ought to be
quashed. There was a denial of fairness and hence,
fundamental justice, in breach of section 7 of the
Canadian Charter of Rights and Freedoms [being
Part I of the Constitution Act, 1982, Schedule B,
Canada Act 1982, 1982, c. 11 (U.K.)].
This however does not conclude the arguments
raised against the applicant's case. The respond
ent's counsel, noting that the remedy sought is
discretionary, argues that the Court's discretion
ought not to be exercised in the applicant's favour
because, he says, the respondent has offered the
applicant a new post-suspension hearing. The
applicant in his written argument filed prior to this
hearing, and in oral argument at the hearing,
responded to that counter-attack. Basically he says
that he is not confident of the respondent's capaci
ty to deal with him fairly. He also questions the
respondent's good faith in making any such offer
because he says it came only after he had applied
to the Manitoba Queen's Bench for a remedy in
this matter. (He says, and the respondent does not
deny, that the Queen's Bench declined jurisdiction,
referring him to the Federal Court.) The respond
ent's good faith is not thereby jeopardized. How
2 In addition to the authorities cited by Strayer J. reference
has also been made to: Re Lowe and The Queen (1983), 149
D.L.R. (3d) 732 (B.C.S.C.); and Martens v. Attorney General
of British Columbia, et al. (1983), 35 C.R. (3d) 149
(B.C.S.C.).
ever, to quote Chief Justice Thurlow, in Morgan v.
National Parole Board:
Such a re-examination is, however, no substitute for certiorari
to quash a decision made without jurisdiction.;
Quite so. The applicant's quest is not to be blunted
on that ground.
The other consideration against the exercise of
discretion sought here is that this application and
any remedy ordered may be moot. What the
Parole Board did not know, and could not know on
April 7, 1983, but that which all concerned now
know, is that the applicant was convicted on two of
the six counts in the information on which he was
committed for trial. He was found guilty of those
two charges only a week before the hearing of this
application by Judge G. O. Jewers in the County
Court Judges' Criminal Court, at Winnipeg.
Despite the finding of wilful blindness signifying
guilt on two of the charges, Judge Jewers, in his 43
pages of reasons for judgment made certain find
ings which were both favourable and unfavourable
to the applicant.
Upon sentencing, on March 21, 1984, Judge
Jewers said this:
In this particular case, there is no doubt that Mr. Hewitt, as
a parolee and a life parolee, was in a position of trust in relation
to society as a whole, and in relation to the business with which
he had been entrusted. However, that aspect of the case, that
question of trust I think has been recognized and given effect to
by the action of the parole board in forfeiting the parole of Mr.
Hewitt. Therefore, I do not think that the trust aspect of the
case is one which I need to, or should, take into consideration. I
will leave that to the good offices of the parole board. I will
sentence in this case as though it was an ordinary case unaffect
ed by considerations of parole.
Judge Jewers then imposed sentence, thus:
In this case then I am going to impose a jail term of six months
on Count 2, and a jail term of six months on Count 3, which
3 [1982] 2 F.C. 648, at p. 656; 65 C.C.C. (2d) 216 (C.A.), at
p. 224.
will be concurrent with the sentence on Count 2. So that is a
total of six months altogether.
Naturally, because Mr. Hewitt is serving out the remainder
of his life sentence, those sentences which I have given today
will be concurrent with, and must be concurrent with, the life
sentence. I have the feeling that whatever I have done or might
do today is somewhat redundant. The matter is going to have to
be dealt with by the parole authorities. I would ask, however,
and I am sure that this will occur, that a copy of my findings in
this case, and a copy of my reasons for judgment, which I have
just delivered, be remitted to the parole authorities so that they
may be considered with respect to when, if at all, Mr. Hewitt is
to be released again into society.
Given that the applicant has now been convicted
and sentenced, is his application for certiorari to
quash the revocation of his parole rendered merely
theoretical and without practical effect? Is it
therefore now a case in which the Court's discre
tion ought to be exercised so as to decline the
application?
The procedures of the post-suspension hearing
violated fundamental justice and so, were in
breach of section 7 of the Charter. Those proce
dures were not demonstrably justified in contem
plation of section 1 of the Charter. The rights
expressed in section 7 are an integral part of the
"supreme law of Canada", according to subsection
52(1). Those rights are therefore never merely
theoretical or without practical effect. The Charter
buttresses individual rights, against official results.
Indeed in section 24, it authorizes every court of
competent jurisdiction to obviate or remedy those
results which have been obtained by means of
infringing or denying the rights and freedoms
which the Charter guarantees.
The subsequent finding of guilt, the conviction
and the imposition of sentence upon the applicant
cannot have the effect of homologating the unlaw
ful procedure of excluding the applicant and his
counsel from portions of his post-suspension hear
ing on April 7, 1983. If those later events could
homologate the tainted procedures then the consti
tutional guarantee of rights and freedoms would
be simply a misrepresentation. For example, how
could a person charged with an' offence ever
articulate the right to be tried within a reasonable
time, if the result of an unreasonably delayed trial
were later held to have homologated the unconsti
tutional conduct? The object of constitutionally
entrenched individual rights is to require those
who do what they do under state authority, to do it
right, or else to lose the results of their efforts.
There is, here, no indication that any member of
the Parole Board acted criminally or maliciously.
No doubt they all acted in good faith. But they did
not do it right.
The applicant still has the right not to have been
deprived of his highly qualified liberty—which is
parole—except in accordance with the principles
of fundamental justice. The result of that hearing
must, therefore, be quashed, even though the
applicant has again been sentenced to a term of
imprisonment.
Now that the applicant's recent convictions on
two of the offences charged are known, nothing in
these reasons is to be taken to prevent the respond
ent from commencing such proper proceedings as
it may lawfully be entitled to do in regard to the
applicant's parole.
In conclusion, certiorari should issue to remove
into this Court the decision of the National Parole
Board of April 7, 1983, as subsequently affirmed
by the Board, revoking the applicant's parole, and
that the said decision and any warrants or orders
based thereon ought to be quashed. The applicant
is entitled to costs.
ORDER
IT IS HEREBY ORDERED AND ADJUDGED that cer-
tiorari do issue to remove into this Court the order
of the National Parole Board of April 7, 1983, as
subsequently affirmed by the Board revoking Law-
rence William Hewitt's parole, and that the said
decision and any warrants or orders based thereon
be quashed; and that the respondent do pay the
applicant's taxable costs of and incidental to these
proceedings.
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