T-797-85
Lionel Staples (Applicant)
v.
National Parole Board (Respondent)
Trial Division, Strayer J.—Saskatoon, May 31;
Ottawa, June 26, 1985.
Parole — Denial of day parole — Board's exercise of
discretionary power not unreasonable — No jurisdiction in
Court to reconsider wisdom of Board's decision — Incumbent
upon day parole applicant to present, in suitable form, evi
dence wants Board to consider — Parole Act, R.S.C. 1970, c.
P-2, s. 11.
Constitutional law — Charter — Life, liberty and security
— Denial of day parole — Fundamental justice requiring day
parole applicant be made aware of substance of adverse ma
terial — 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 — Parole Act, R.S.C. 1970, c.
P-2, s. 11 (as am. by S.C. 1976-77, c. 53, s. 26) — Parole
Regulations, SOR/78-428, ss. 15 (as am. by SOR/81-487, s.
1), 17.
The National Parole Board denied the applicant's request for
day parole and confirmed that decision after a re-examination.
This is an application for certiorari to quash that decision
and for mandamus to require the Board to reconsider the
request for day parole "on the basis of complete and current
information".
The applicant contends that in failing to consider evidence he
wanted the Board to consider, and in considering evidence of
which he was unaware, the Board denied him common law
fairness or fundamental justice in contravention of Charter
section 7. The applicant also contends that the Board's use of
its discretion was unreasonable, thereby exceeding its
jurisdiction.
Held, certiorari should issue to quash the Board's decisions,
and also, mandamus, requiring the Board to reconsider the
request, giving the applicant reasonable notice of the material it
will consider in opposition to his request.
There is no basis for holding that the decision involved an
unreasonable use of discretion going to jurisdiction. There was
ample information on which the Board could reach the decision
it reached. This Court is not to sit as an appellate tribunal to
reconsider the wisdom of that decision.
The applicant's argument that the Board failed to consider
relevant evidence is based on the fact that, prior to the re-
examination, he informed the Board that certain penitentiary
officials, whom he named, could give information to the effect
that he had changed. He did not specify what the information
was and the Board did not contact these officials before render
ing its decision. The Board was under no obligation to gather
such evidence. It was up to the applicant to submit in suitable
form the information he wanted considered by the Board.
The Board did, however, consider evidence of which the
applicant was unaware: police reports, a community assessment
report and comments from the Superintendent of the Oskana
Centre in Regina. And the Board did not plead privilege to
justify non-disclosure. Charter section 7 applies to this situa
tion. In spite of certain case law to the contrary (O'Brien v.
National Parole Board), a decision to refuse day parole, just as
much as a decision to revoke parole, is a decision pertaining to
"liberty". The only differences should be in the requirements of
fundamental justice or in the Charter section 1 limitations
permitted in each case.
"Fundamental justice" as used in section 7 requires that the
applicant for day parole be made aware of the substance of the
materials adverse to his cause which the Board will be consider
ing, in order that he may have an opportunity to respond
thereto. No legislative provisions at present preclude a right of
the inmate to be informed of the case against him, but even if
there were, it would still have to be demonstrated that such
limitation is justifiable in a free and democratic society.
The applicant has not contended that he should have been
granted a hearing by the Board. The Court therefore need not
consider whether the general disentitlement to a hearing, as
provided by section 11 of the Act and applicable to day parole,
is in violation of the Charter right not to be deprived of liberty
except in accordance with the principles of natural justice.
CASES JUDICIALLY CONSIDERED
APPLIED:
Latham v. Solicitor General of Canada, [1984] 2 F.C.
734; 9 D.L.R. (4th) 393 (T.D.).
NOT FOLLOWED:
O'Brien v. National Parole Board, [1984] 2 F.C. 314; 43
C.R. (3d) 10 (T.D.).
REFERRED TO:
Beaumier v. National Parole Board, [1981] 1 F.C. 454
(T.D.).
COUNSEL:
Morris F. Morton for applicant.
Mark R. Kindrachuck for respondent.
SOLICITORS:
Saskatchewan Legal Aid Commission, Prince
Albert, for applicant.
Deputy Attorney General of Canada for
respondent.
The following are the reasons for order ren
dered in English by
STRAYER J.: This is an application to quash a
decision of the respondent Board, made on August
27, 1984 and confirmed after a re-examination on
October 25, 1984, denying day parole to the appli
cant. It is also an application for mandamus to
require the Board to consider once more the appli
cant's request for day parole "on the basis of
complete and current information".
The applicant relies essentially on two grounds
for quashing the decision. One ground is that the
respondent Board denied common law fairness, or
fundamental justice in contravention 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.)], in failing to consider "complete and cur
rent information relevant to the decision". The
other ground is that the Board's decision involved
an unreasonable use of its discretion and this was
in excess of its jurisdiction.
Taking the latter ground first, I can find no
basis for holding that the decision involved an
unreasonable use of discretion. It being a matter
for the Board, and not the Court, to decide as to
the merits of the applicant's request for day parole,
I could only find an unreasonable use of discretion
going to jurisdiction if I were satisfied that the
decision was based on completely extraneous rea
sons unrelated to the purpose for which the discre
tion is given to the Board in such cases. There is no
evidence of such a situation here. The Board had
ample information before it of a highly relevant
nature on which it could reach the decision it did
reach. I cannot sit as an appellate tribunal to
reconsider the wisdom of that decision.
As to the first-mentioned ground, namely that
the Board failed to consider the complete and
current information relevant to the decision, this
requires closer examination. The applicant is not
contending that he should have been granted a
hearing by the Board. It had been held before the
Charter was adopted that any common law
requirement of fairness as to holding a hearing on
applications for day parole has been eliminated by
section 11 of the Parole Act [R.S.C. 1970, c. P-2
(as am. by S.C. 1976-77, c. 53, s. 26)]. See
Beaumier v. National Parole Board, [1981] 1 F.C.
454 (T.D.). That section provides that, except as
where provided by the regulations, the Board is not
required in granting or revoking parole "to person
ally interview the inmate or any person on his
behalf". Section 15 of the Regulations [Parole
Regulations, SOR/78-428 (as am. by SOR/81-
487, s. 1)] requires that a hearing be held for a
review of full parole, and section 17 requires that
at least fifteen days before such review of full
parole the prisoner be given "all relevant informa
tion in the possession of the Board" subject to
limitations imposed by subsection 17(3). But the
Regulations apparently make no mention of a
hearing nor of procedures for day parole applica
tions, which must mean that at least the general
disentitlement to a hearing as provided in section
11 of the Act applies in such cases. There would
remain a question as to whether section 7 of the
Canadian Charter of Rights and Freedoms, which
provides that everyone has the right not to be
deprived of "liberty ... except in accordance with
the principles of fundamental justice", now
requires a hearing with respect to applications for
day parole. I need not consider that question as the
applicant has not raised it.
The applicant does contend, however, that the
Board has somehow failed to provide a fair proce
dure, or one in accordance with fundamental jus
tice, because it has not considered the "complete
and current information". I understood from the
argument and the affidavits that this alleged fail
ure consisted in part in the Board failing to consid
er evidence the applicant wanted it to consider,
and in considering evidence of which the applicant
was unaware.
As to the first complaint, this appeared in the
argument before me to relate to one situation
which arose after the Board initially denied the
day parole on August 27, 1984 and had so advised
the applicant by letter dated September 10, 1984.
The applicant then requested a re-examination of
the decision by other Board members and this
request was accepted. Prior to that re-examination
the applicant's lawyer wrote to the Board on Octo-
ber 2, 1984. He referred to two psychiatric reports
on his client with which the Board had provided
him and made certain submissions with respect
thereto. He also named five penitentiary officials
who, he implied, could give information to the
effect that there had been a change in the appli
cant. He did not specify what that information was
and apparently the Board did not contact these
officials before deciding, on October 25, 1984 to
confirm the previous decision denying day parole.
It is clear that the Board on the second consider
ation had before it the whole file with all material
the applicant and his lawyer had chosen to submit
in writing. The only real complaint in this respect
is that the Board did not initiate inquiries with the
persons named in the lawyer's letter of October 2.
I can see no obligation on the Board to gather such
evidence. If the applicant or his lawyer wanted to
submit information from the individuals they
should have gathered it in suitable form and sup
plied it to the Board.
I have more difficulty, however, with the second
complaint, namely that the Board considered evi
dence or material of which the applicant was
unaware. It appears to me from reviewing the
affidavits of the applicant and of John D. Bissett
(filed on behalf of the respondent) that the Board
did indeed consider materials, including police
reports, a community assessment report, and com
ments from the Superintendent of the Oskana
Centre in Regina, which neither the applicant nor
his lawyer saw before the decision was taken. The
Board does not deny that this was the case nor has
it pleaded privilege in respect of non-disclosure of
these documents.
I am of the view that section 7 of the Charter
applies to this situation. With the greatest respect
to those who hold another view (see, e.g., O'Brien
v. National Parole Board, [ 1984] 2 F.C. 314; 43
C.R. (3d) 10 (T.D.), at pages 326-327 F.C.; 22-23
C.R.), I believe that a decision to grant or refuse
day parole is a decision pertaining to "liberty". I
am unable to make a distinction between this
decision and one as to the revocation of parole. In
both cases the decision will mean that an individu
al will or will not be at liberty. If there are
distinctions to be drawn between such categories of
decisions, they should result in differences in the
requirements of fundamental justice or in the
kinds of limitations permitted by section 1 of the
Charter with respect thereto.
Applying section 7, then, what does "fundamen-
tal justice" require in the circumstances? I believe
it requires that the applicant for day parole be
made aware of the substance of the materials
adverse to his cause which the Board will be
considering, in order that he may respond to it
with evidence or argument. Such was not done in
this case. I have found such a situation in respect
of the revocation of parole to contravene section 7
of the Charter (see Latham v. Sôlicitor General of
Canada, [1984] 2 F.C. 734; 9 D.L.R. (4th) 393
(T.D.)) and so find in respect of granting of day
parole as well.
It may be that there is a need for day parole
applications to be handled with a minimum of
delay, frequency, travel or paper work, and for
certain information to be protected from disclo
sure; reasonable limits might well be prescribed by
law to limit the obligations otherwise imposed by
section 7 of the Charter. But such has not been
done as far as I can ascertain. It appears to me
that the present provisions of the Act and Regula
tions as referred to above do exclude, in respect of
day parole, a right to a hearing. But they do not
expressly preclude a right of the inmate to be
informed of the case against him. Therefore,
whether or not the existing legislative denial of a
right to a hearing on day parole will be held in a
proper case to be a justifiable limitation of
section 7 rights within the meaning of section 1 of
the Charter, no similar limitation appears to have
been adopted with respect to informing the inmate
of the case against him in such proceedings. If
such legal limitation exists and was not brought to
my attention, or if it is adopted in the future, it
will remain for the respondent to demonstrate that
such limitation is justifiable within the criteria of
section 1.
I have therefore concluded that the decisions of
the respondent denying day parole to the applicant
should be quashed, and the respondent ordered to
reconsider the applicant's request giving him
reasonable notice of the substance of the material
it will consider in opposition to his application so
that he will have an opportunity to respond
thereto.
ORDER
(1) The decisions of the respondent Board
denying the applicant's request for day
parole is quashed by an order in the nature
of certiorari;
(2) the respondent Board is required, by an
order in the nature of mandamus, to recon
sider the said request, giving the applicant
reasonable notice of the material it will
consider in opposition to his request so that
he may have an opportunity to respond
thereto; and
(3) the applicant is awarded costs.
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