T-2182-85
"H" (Applicant)
v.
The Queen (Respondent)
and
National Parole Board (Respondent)
INDEXED AS: H V. R.
Trial Division, Reed J.—Toronto, October 28 and
November 7, 1985.
Privacy — Parole — Privacy Act not applicable as exemp
tions therein relate only to requests for information made
pursuant thereto — Act cannot limit access to information
where right thereto resulting from other legal rules or princi
ples — Argument application premature due to failure to
pursue all available remedies under Act rejected as disclosure
rules under Act different in content and purpose from those
flowing from rules of natural justice — Privacy Act, S.C.
1980-81-82-83, c. 111, Schedule II, ss. 19, 22(1)(b), 23, 28
Parole Regulations, SOR/78-428, s. 17(3).
Parole — Application for day parole — Board having
information re offences of which applicant a suspect — Duty
to disclose information — Application re disclosure of infor
mation not premature though parole decision not yet made —
Application to be heard by different panel without knowledge
of undisclosed allegations against applicant — Canadian
Charter of Rights and Freedoms, being Part I of the Constitu
tion Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11
(U.K.), s. 7.
The applicant appeared before the National Parole Board for
a hearing to determine whether or not day parole should be
granted to him. He found out at the hearing that the Board was
taking into account the fact that the RCMP considered him a
suspect in the deaths of two young girls and in the disappear
ance of a third. He also learned that the Board had before it
considerable detail concerning these offences. The details were
not disclosed to the applicant. The decision on day parole has
not yet been taken.
The applicant seeks either an order of prohibition to prevent
the Board from taking into account information which it fails
to disclose to the applicant or, alternatively, an order of man-
damus requiring the Board to disclose sufficient details to give
the applicant a fair opportunity to respond. He further requests
that the order provide that any subsequent hearings be conduct
ed by a newly constituted panel of the Board.
Held, an order for prohibition will issue and the parole
application shall be heard by a differently constituted panel.
Both the common law and section 7 of the Charter require
the Board to follow the rules of natural justice according to
which, in the instant case, the applicant is entitled to know
sufficient details of the case being made against him to enable
him to respond thereto.
Section 23 of the Privacy Act cannot be invoked to oppose
further disclosure because the exemptions in the Act relate to
requests for information made pursuant to that Act. It does not
operate so as to limit access to information to which an
individual might be entitled as a result of other legal rules or
principles.
The argument was made that the applicant's motion is
premature because he has not pursued all the remedies avail
able under the Privacy Act. While the applicant did make an
application under the Act before the hearing and did not pursue
the available appeal procedures, his seeking further details
from the Board directly on the occasion of the hearing is
another matter entirely. The disclosure rules under the Privacy
Act are different in content and purpose from those flowing
from the rules of natural justice. Failure to follow the appeal
procedures under the Act cannot, therefore, be characterized as
a failure to exhaust all available remedies thereby precluding
the present application.
Nor is the application premature because the Board has not
yet made any decision on parole. The decision challenged is the
Board's refusal to disclose further information, it is not a
challenge to a decision respecting parole.
In any event, the Board argues that the details of the crimes
under investigation are simply irrelevant and that all it consid
ers is the fact that there is an on-going investigation. Given this
position and the fact that the Board accepts the applicant's
request for an order of prohibition, such an order will issue.
Whether the matter should be referred to a newly constituted
panel is a matter of discretion and circumstance, not binding
precedent. For the sake of the appearance of fairness, in this
case, the matter is referred to a differently constituted panel of
the Board.
CASES JUDICIALLY CONSIDERED
APPLIED:
Couperthwaite v. National Parole Board, [1983] 1 F.C.
274 (T.D.); Latham v. Solicitor General of Canada,
[1984] 2 F.C. 734; 39 C.R. (3d) 78 (T.D.); Cadieux v.
Director of Mountain Institution, [1985] 1 F.C. 378; 41
C.R. (3d) 30 (T.D.); Richards v. Nat. Parole Bd. (1985),
45 C.R. (3d) 382 (F.C.T.D.).
REFERRED TO:
Rogers v. Secretary of State for the Home Department,
[1972] 2 All ER 1057 (H.L.).
COUNSEL:
A. Manson for applicant.
J. E. Thompson for respondents.
SOLICITORS:
David P. Cole, Toronto, for applicant.
Deputy Attorney General of Canada for
respondents.
The following are the reasons for order ren
dered in English by
REED J.: On consent of the parties the appli
cant's name has been deleted from the style of
cause, the National Parole Board has been added
as a respondent, and it has been ordered that
neither the identity of the applicant nor any infor
mation that could disclose his identity shall be
published in any newspaper, journal, radio, televi
sion or other media communication.
The applicant seeks either an order of prohibi
tion, prohibiting the National Parole Board from
taking into account information which it fails to
disclose to the applicant, or alternatively, an order
of mandamus requiring the Board to disclose suffi
cient details of the information presently held by it
to permit him a fair opportunity to respond
thereto.
The applicant is serving a sentence of 12 years
for rape. On June 5, 1985 the applicant appeared
before the National Parole Board for a hearing as
to whether or not day parole should be granted to
him. The hearing was adjourned for two reasons:
(1) to obtain a fresh psychiatric assessment, (which was subse
quently prepared by a Dr. David Byers); and
(2) to investigate the "B.C. situation".
The "B.C. situation" referred to the fact that the
RCMP in that province consider him to be a
suspect in the deaths of two young girls and in the
disappearance of a third.
It is common ground that the National Parole
Board has before it considerable detail concerning
the offences which the applicant is suspected of
having committed, which it has not disclosed to the
applicant.
In response to enquiries by the applicant's coun
sel, Mr. Cole, for information concerning these
allegations, the National Parole Board wrote on
May 27, 1985:
The National Parole Board is advised that [H] continues to
remain a suspect in the deaths of 2 young girls and the
disappearance of a 3rd young girl, in the Matsqui, B.C. area.
In attempting to obtain further details in July
1985, the applicant's counsel sought information
directly from the RCMP in Vancouver. This
enquiry brought forward the information that the
deaths had occurred in 1978; that Mr. H had been
under suspicion by the police since that time; that
the police did not have enough evidence to lay
charges; and that it was unlikely that charges
would be laid.
Immediately before the hearing of this motion
an affidavit was filed by a member of the National
Parole Board which had appended thereto a docu
ment not previously disclosed to the applicant.
This document dated July 18, 1985, was edited to
remove all details concerning the offences being
investigated. Part of the unedited portion states:
In short, the investigating police force concludes that they have
considerable circumstantial evidence connecting the subject
with these three crimes. The suggestion has also been made
that there is some physical evidence implicating the subject,
although details could not be provided at this time for fear of
comprising a somewhat sensitive, long-standing investigation.
They are most interested in seeing the subject undergo a
polygraph test, but they indicate that no final decision has been
made, at present, regarding the laying of specific charges.
Counsel argues that no factual details of the
crimes of which the applicant is suspected have
been communicated to him, and that he does not
even know during what months the alleged
offences occurred. It is argued that the applicant is
entitled to more information than what has been
provided to him so far, to enable him to respond in
a meaningful way to the allegations being made
against him.
Counsel for the applicant's whole argument is
based on the ground that applicant knows little
more about the allegations against him than what
is set out above: in the letter to Cole, and in the
information Cole learned from the RCMP. A
statement of fact and law filed by counsel summa
rizes the applicant's affidavit stating that it was
while the applicant was undergoing a psychologi
cal testing program in December 1982 — July 1983
that
he first learned that he "was suspected of having committed
other sex-related offences in British Columbia" for which he
had not been charged;
and, that in January, 1984
the Applicant made a series of enquiries and enlisted the help
of various individuals in an attempt to learn the nature and
import of suspicions offered by the R.C.M.P. in British
Columbia.
These allegations of fact were not challenged;
they were admitted by the respondent, in the form
in which they were referred to in the memoran
dum. Yet, a report, dated July 1985, appended to
an affidavit filed in support of the respondent's
position, just before the hearing of this motion,
contains the following:
"on 08 December 1981 the subject was interviewed by two
members of the R.C.M.P. Serious Crime Section at Kent
Institution. He was questioned regarding a total of six unsolved
cases, for a period of three and a half hours. Police eventually
focused on the three cases in question, concluding that he is a
prime suspect in all three crimes."
I have considered whether this statement of fact
entitles me to draw the inference that the appli
cant knows more about the details of the allega
tions against him than appears in the record before
me. After considerable hesitation I have decided
that it does not. I base this conclusion on the fact
that the respondent concurred in the applicant's
statement of fact concerning his state of knowl
edge; that the applicant's affidavit in that respect
was not challenged; that no affidavit was filed by
the respondent alleging that the applicant had
more extensive knowledge of the events than the
record discloses (either as a result of the process of
December 1981, or as a result of any oral com
munications between himself and the Board or
correctional staff).
It is clear that the National Parole Board is
governed by the rules of natural justice (fairness)
by virtue of the common law, and by virtue 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.)]: Couperthwaite v. National Parole Board,
[1983] 1 F.C. 274 (T.D.); Latham v. Solicitor
General of Canada, [1984] 2 F.C. 734; 39 C.R.
(3d) 78 (T.D.); Cadieux v. Director of Mountain
Institution, [1985] 1 F.C. 378; 41 C.R. (3d) 30
(T.D.); Richards v. Nat. Parole Bd. (1985), 45
C.R. (3d) 382 (F.C.T.D.). The rules of natural
justice provide that an individual is entitled to
know the case being made against him in order to
enable him to respond thereto.
Counsel for the applicant argues that the degree
of detail that is required to be disclosed must be
assessed by reference to the purpose for which it is
required: to enable the individual to make a full
and fair response to the adverse allegations against
him. This is clearly right. This is the sense in
which Mr. Justice Strayer in Latham v. Solicitor
General of Canada, [1984] 2 F.C. 734; 39 C.R.
(3d) 78, at page 746 F.C.; 89 C.R. indicates that
"it would be important for the applicant herein to
know the main focus of the Board's preoccupa
tions" [emphasis added], and at page 748 F.C.; 91
C.R. "fairness requires at least an outline being
given to the person affected of the allegations
being considered by a tribunal". [emphasis added].
It is the sense in which I spoke in Cadieux v.
Director of Mountain Institution, [1985] 1 F.C.
378; 41 C.R. (3d) 30, at page 397 F.C.; 49 C.R. of
it being necessary to disclose "at least the gist of
the reasons against him" [emphasis added] (mir-
roring the words of Lord Reid in Rogers v. Secre
tary of State for the Home Department, [ 1972] 2
All ER 1057 (H.L.), at page 1061). It is the sense
which the Associate Chief Justice used in Rich-
ards v. Nat. Parole Bd. (1985), 45 C.R. (3d) 382,
at page 387, when saying that "the explanation
must at least be sufficient to permit the accused
person to defend himself'.
In the Latham case (supra) Mr. Justice Strayer
found [at page 746 F.C.; 89 C.R.] that "A Child
Welfare matter involving Latham and his step
daughter" was not sufficient. In the Cadieux deci
sion (supra) I found [at page 399 F.C.; 50 C.R.]
that "The Board is in receipt of confidential infor
mation which satisfies us that you are a risk to
re-offend on any form of release at this time" was
not sufficient. In the Richards case (supra)
Associate Chief Justice Jerome found [at page
384] that "it related to the uttering of threats by
the applicant to members within the community"
was not sufficient. Similarly, in this case, being
told you are suspected of having committed crimes
involving the deaths of two young girls and the
disappearance of a third in British Columbia in
1978 is not enough. Something more must be
given. Clearly, at the very least, the applicant
would be entitled to information concerning the
dates of the alleged offences, the place, presum
ably some indication of time and the identity of
the victims. It is difficult in the abstract to set out
what should be provided to him without more
detailed argument being given thereon, and I do
not propose to do so.
Counsel for the Board argues that the Board has
disclosed all it can to the applicant since disclosure
of more is prescribed by section 23 of the Privacy
Act [S.C. 1980-81-82-83, c. 111, Schedule II]. It
is argued that the application is premature since
the applicant has not exhausted all his remedies
under the Privacy Act, and that in any event the
Parole Board has not yet made any decision on the
parole request.
Dealing first with the argument that the Privacy
Act precludes the disclosure of any further infor
mation to the applicant. Sections 19 to 28 of the
Act set out certain circumstances in which a
person seeking information pursuant to that Act
may be refused information. Section 22 (particu-
larly paragraph 22(1)(b))' provides for refusal in
cases where the information was obtained in the
course of investigating the commission of a crime.
These provisions are not controlling of the issue in
the present case. The Privacy Act established a
right, that had not existed before its enactment,
allowing individuals to obtain access to informa
tion about themselves contained in government
files. The exemptions in the Act relate to requests
for information made pursuant to that Act. They
do not operate so as to limit access to information
to which an individual might be entitled as a result
of other legal rules or principles, as for example,
the right to subpoena evidence in trial proceedings
before a Court, or, as in this case, to have the case
one has to meet disclosed pursuant to the rules of
natural justice. (It is common ground that subsec
tion 17(3) of the Parole Regulations, SOR/78-428
does not apply in this case to the application for
day parole, and in any event I would refer to
Cadieux (supra) at page 55.)
With respect to the argument that the appli
cant's motion is premature because he has not
pursued all the remedies available to him under
the Privacy Act, it must be noted that the appli-
22. (1) ...
(b) the disclosure of which could reasonably be expected to
be injurious to the enforcement of any law of Canada or a
province or the conduct of lawful investigations, including,
without restricting the generality of the foregoing, any
such information
(i) relating to the existence or nature of a particular
investigation,
(ii) that would reveal the identity of a confidential
source of information, and
(iii) that was obtained or prepared in the course of an
investigation; or
cant did make application, in April 1985, under
the Privacy Act, and received much of the material
on his files. All the details of the crimes of which
he is suspected were blanked out. The reasons
given for deletion were various exempting sections
of the Act, particularly section 22 mentioned
above. The applicant did not pursue the appeal
procedures under that Act. But, on the occasion of
the Board hearing on June 5 (and its continuation
on August 6) he sought from the Board directly
further details of the allegations being made
against him. The rules allowing for the disclosure
of information under the Privacy Act are different
from and designed to serve a different purpose
from those flowing from the rules of natural jus
tice. In such circumstances, failure to follow the
appeal procedure of the Privacy Act cannot be
characterized as a failure to exhaust all available
remedies and thereby preclude an application in
this case against the National Parole Board seek
ing to enforce the rules of natural justice
(fairness).
Nor is the application premature because the
Board has not yet made any decision on parole. In
the course of the Board's hearing on August 6,
1985 (which was a continuation of that of June 5
referred to on page one supra) applicant's counsel
asked the Board for further details concerning the
information before it. When such information was
not forthcoming, applicant's counsel sought and
obtained from the Board an adjournment to allow
this Court to review that refusal. Accordingly, as
counsel for the applicant argues, the decision chal
lenged is that of the Board not to disclose further
information to the applicant; it is not a challenge
to a decision respecting parole.
The main thrust of the Board's position, how
ever, is that the details of the crimes under investi
gation are simply irrelevant to the Board's decision
making. It is argued that all the Board considers is
the fact that there is an on-going investigation
involving the applicant. Indeed, counsel for the
Board agreed that it would be acceptable to issue
an order prohibiting the Board from taking into
account any of the details received from the police
authorities. I took counsel's position to be essen
tially, acceptance of the applicant's request that an
order be granted:
in the nature of prohibition, prohibiting the National Parole
Board from taking into account any information received from
police authorities or other sources [relating to the investigations
of the three crimes] which it chooses not to disclose to the
Applicant.
Since it is clear from the reasons given so far that
either an order of prohibition or mandamus is
appropriate in this case, and counsel for the
respondent has expressed a preference for the
former, an order of prohibition will issue.
Counsel for the Board did not agree with coun
sel for the applicant's additional submission, how
ever, that the order provide for any subsequent
hearings to be conducted by a freshly constituted
panel of the National Parole Board. That is, that
subsequent hearing be heard by a panel composed
of members who do not have information (either
written or oral) which the present panel has and
which has been denied to the applicant. A newly
constituted panel was said not to be acceptable
because: (1) it would set an unwelcome precedent
and imply that the Board had to establish a two-
stage procedure whereby one panel reviewed the
evidence and submitted only that which was perti
nent to a second panel; (2) many tribunals and
courts routinely hear a great deal of evidence
which they then discount as irrelevant in coming to
their decisions; and (3) the National Parole
Board's assertion that it would not take into
account the details of the crimes or investigations
should be relied upon.
I do not agree that an order of the nature sought
might set a precedent. Decisions of tribunals are
frequently referred back to administrative tri
bunals on the ground of failing to observe a rule of
fairness. Sometimes referral is to a newly con
stituted panel; sometimes it is not. This is a matter
of discretion and circumstance, not binding prece
dent. While many courts and tribunals hear evi
dence which they eventually declare to be irrele
vant and which they consequently ignore, this is
often in the context of public disclosure of that
evidence and of the court or tribunal decision.
While I have no doubt that the presently constitut
ed panel of the National Parole Board would act
properly and conduct itself as it says it will, the
applicant is entitled to the appearance of fairness
as well as fairness itself. This is the purpose of the
rules of natural justice (fairness). Accordingly, an
order will go requiring consideration by a newly
constituted panel.
ORDER
THIS COURT DOTH ORDER AND ADJUDGE THAT:
(1) the National Parole Board, in considering
the applicant's application for day parole to
which the hearings of June 5, 1985 and
August 6, 1985 relate, is prohibited from
taking into account any information
received from police authorities or other
sources relating to the investigation of the
three offences referred to in the reasons for
this order, which it chooses not to disclose
to the applicant;
(2) the parole application shall be heard by a
differently constituted panel of the Nation
al Parole Board who do not have knowledge
of the details of the allegations against the
applicant which have not been disclosed to
the applicant;
(3) the applicant is entitled to his costs of this
motion.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.