T-2439-90
Brian Gough (Applicant)
v.
National Parole Board (Respondent)
INDEXED AS: GOUGH v. CANADA (NATIONAL PAROLE BOARD)
(T.D.)
Trial Division, Reed J.—Toronto, November 26;
Vancouver, December 14, 1990.
Parole — Suspension based on allegations, details of which
withheld from applicant pursuant to Parole Regulations, s.
17(5) (permitting non-disclosure where disclosure threatening
safety of individuals or revealing source of information) —
Knowledge of incidents not ground for non-disclosure as con
cealing identity of informants then pointless Applicant
entitled to sufficient details to enable him to respond intelli
gently to allegations Charter, s. 7 breached — National
Parole Board not proving s. 17(5) reasonable limit within
Charter, s. I — Evidentiary basis justifying non-disclosure not
established Reliance on exemptions in Access to Informa
tion Act and Canada Evidence Act misplaced.
Constitutional law — Charter of Rights Life, liberty and
security Parole suspended due to allegations, details of
which withheld to protect identities of informants Applicant
on "parole reduced" status (lowest level of restrictions) S.7
guarantees differing with circumstances — Applicant's liberty
as close to unconditional as possible within correctional system
— Institutional considerations re: identification of informants
non-existent as alleged incidents occurring outside prison
Individual's liberty weighs heavily in comparison with compet
ing interests Applicant entitled to sufficient detail to
respond intelligently to allegations Cases setting out s. 7
requirements involving inmates distinguished — Applicant not
provided even "gist" of allegations — Charter, s. 7 breached.
Constitutional law Charter of Rights Limitation
clause — Parole Regulations, s. 17(5) requiring disclosure of
information leading to suspension of parole unless Board of
opinion safety of individuals threatened or identities of infor
mants would be revealed, thus impeding investigations under
Act or Regulations — Not reasonable limit demonstrably
justified under Charter, s. I — No evidence of ongoing investi
gation prejudiced by disclosure — No evidentiary basis justi-
fying non-disclosure — No evidence other democratic juris-
dictions having adopted similar procedures.
Access to information — National Parole Board withhold
ing details of allegations forming basis for parole revocation
— Reliance on exemptions in Access to Information Act and
Privacy Act misplaced Not applicable when information
forming basis of decisions affecting liberty of individual seek
ing information.
Judges and courts — National Parole Board withholding
details of allegations forming basis for revocation of parole —
Argument damage to parole system if information revealed at
in camera hearing not credible — Reference to various public
interest situations where Court privy to confidential informa
tion.
This was an application to quash the National Parole Board's
decision suspending the applicant's parole, and for mandamus.
The applicant had been on parole for five and one half years,
when his parole was revoked as a result of complaints of sexual
assault involving use of illegal drugs and coercion, the details of
which were withheld from him. His parole record had been
exemplary. He had held "parole reduced" status, the least
restrictive parole conditions which can be given to a parolee.
The applicant's position was that the failure to provide details
of the allegations upon which the Board relied was a breach of
his Charter, section 7 right not to be deprived of liberty except
in accordance with the principles of fundamental justice. The
Board responded that the applicant had been given enough
information to answer the allegations because he already knew
of the incidents. The Board further argued that non-disclosure
was justified by Parole Regulations, subsection 17(5) which
permits non-disclosure of information forming the basis of the
decision to revoke parole where, in the Board's opinion, disclo
sure would threaten the safety of individuals or could impede
investigations under the Act or Regulations. It was argued that
the parole system would break down if individuals were not
able to supply information to Correctional Service officers
without fear of reprisal. In any case, the constitutional require
ments had been met because "the gist" of the allegations had
been communicated to the applicant, thus satisfying the
requirements of section 7 in the parole/penitentiary context
according to the Cadieux and Latham cases. The issues were
whether Charter, section 7 had been breached by the Board's
non-disclosure pursuant to Parole Regulations, subsection
17(5), and if so, whether subsection 17(5) was justified under
the circumstances or Charter, section 1.
Held, the application should be allowed.
If, as suggested by the Board, the applicant knew of the
incidents underlying the parole suspension, he would already
know the identity of the informants and there would be no
reason for non-disclosure.
The applicant's Charter, section 7 rights had been infringed
by the refusal to provide him with the confidential information
upon which the Board relied. The principles of fundamental
justice entitle an individual to know the case against him in a
decision-making process which leads to a diminution of liberty.
The applicant was entitled to sufficient detail respecting the
allegations against him to enable him to respond intelligently
thereto unless the respondent demonstrated otherwise. The
guarantees provided by Charter, section 7 vary with the cir
cumstances. Although the applicant's liberty was conditional,
and subject to revocation without all the procedural guarantees
which pertain in a court of law, his position was as close to that
of an individual who has unconditional liberty as it could be
within the correctional system. Because the incidents com
plained of took place outside the prison situation, institutional
considerations as to the identification of informants did not
exist. An individual's liberty (even the conditional liberty which
a parolee enjoys) must weigh heavily in the scales when com
pared to competing interests. In addition to the public interest
in ensuring the safety of society from paroled inmates, there is
the public interest in employing procedures which are fair for
dealing with all members of society, including paroled inmates.
Cases indicating that section 7 requires only that inmates be
provided with the "gist" or an "outline" of the allegations, were
distinguished as, in each case, the inmate's liberty had been
more restricted than the applicant's. In any event, the applicant
had not even been provided with the "gist" of the allegations.
The Board failed to demonstrate either that the particular
circumstances justified the non-disclosure or that a parole
system which authorizes the Board to refuse disclosure of
information in accordance with subsection 17(5) was justifiable
pursuant to Charter, section 1. There was no evidence of an
ongoing police investigation which would be prejudiced by the
disclosure of the information. The only investigation was the
one which led to revocation of the applicant's parole, and
administrative convenience does not justify a denial of funda
mental justice. The Correctional Service could not rely on the
exemptions in the Access to Information Act and Privacy Act,
which prescribe circumstances under which individuals will not
be given certain information which they seek from the govern
ment. Those provisions do not apply where the individual
seeking information is faced with loss of liberty as a result of
decisions being made on the basis of that information. The
assertion that the information was accurate was self-serving
and was no answer to the applicant's perception that he was
being dealt with arbitrarily and capriciously. There was no
compelling evidence that disclosure would reveal the identity of
the informers or that their safety was threatened or that the
parole system would be undermined if the information was
disclosed. Nor was there any comparative evidence of similar
procedures in other democratic jurisdictions.
The argument that disclosure at an in camera hearing would
have an adverse effect on the working of the parole system, was
not credible. The Court deals with many situations in which
confidential information is brought before it under legislation
such as the Access to Information Act and the Canada Evi
dence Act.
It was not necessary to decide whether subsection 17(5) was
ultra vires. Subsection 17(5) was not applicable to deny a
paroled inmate information forming the basis for the decision
to revoke parole. That subsection is disturbingly broad in that it
does not distinguish between non-disclosure of information
essential to allow an individual to know the case against him,
and more peripheral information. It seems to authorize non-dis
closure simply because information was received in confidence.
This can never justify limiting the guarantees of fundamental
justice. Furthermore it seems to require only the possibility, not
the probability of harm. Finally, it is doubtful that a procedure
permitting the same body to decide both the merits of the
applicant's parole revocation and how much of the information
which is before it will be disclosed to the applicant, meets the
requirements of Charter, section 1.
STATUTES AND REGULATIONS JUDICIALLY
CONSIDERED
Access to Information Act, R.S.C., 1985, c. A-1.
Canada Evidence Act, R.S.C., 1985, c. C-5, s. 37.
Canadian Charter of Rights and Freedoms, being Part I
of the Constitution Act, 1982, Schedule B, Canada Act
1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II,
No. 44], ss. 1, 7.
Parole Act, R.S.C., 1985, c. P-2.
Parole Regulations, C.R.C., c. 1249, s. 17(5) (as am. by
SOR/86-817, s. 4).
Privacy Act, R.S.C., 1985, c. P-21.
CASES JUDICIALLY CONSIDERED
APPLIED:
Howard v. Stony Mountain Institution, [1984] 2 F.C.
642; (1985), 19 D.L.R. (4th) 502; 11 Admin. L.R. 63; 19
C.C.C. (3d) 195; 45 C.R. (3d) 242; 17 C.R.R. 5; 57 N.R.
280 (C.A.); Singh et al. v. Minister of Employment and
Immigration, [1985] I S.C.R. 177; (1985), 17 D.L.R.
(4th) 422; 12 Admin. L.R. 137; 14 C.R.R. 13; 58 N.R. 1;
Hunter et al. v. Southam Inc., [1984] 2 S.C.R. 145;
(1984), 55 A.R. 291; 11 D.L.R. (4th) 641; [1984] 6
W.W.R. 577; 33 Alta. L.R. (2d) 193; 27 B.L.R. 297; 14
C.C.C. (3d) 97; 2 C.P.R. (3d) 1; 41 C.R. (3d) 97; 9
C.R.R. 355; 84 DTC 6467; 55 N.R. 241.
DISTINGUISHED:
Latham v. Solicitor General of Canada, [1984] 2 F.C.
734; (1984), 9 D.L.R. (4th) 393; 5 Admin. L.R. 70; 12
C.C.C. (3d) 9; 39 C.R. (3d) 78 (T.D.); Cadieux v.
Director of Mountain Institution, [1985] 1 F.C. 378;
(1984), 9 Admin. L.R. 50; 13 C.C.C. (3d) 330; 41 C.R.
(3d) 30; 10 C.R.R. 248 (T.D.); Demaria v. Regional
Classification Board, [1987] 1 F.C. 74; (1986), 21
Admin. L.R. 227; 30 C.C.C. (3d) 55; 53 C.R. (3d) 88; 5
F.T.R. 160; 69 N.R. 135 (C.A.).
CONSIDERED:
Gough v. Canada (National Parole Board), [1991] 1 F.C.
160 (T.D.); Gough v. Canada (National Parole Board),
[1991] 1 F.C. 171 (C.A.); Gough v. Canada (National
Parole Board), T-2439-90, F.C.T.D., Reed J., directions
dated 8/11/90, not yet reported.
REFERRED TO:
Maxie v. Canada (National Parole Board), [1987] 1 F.C.
617; (1986), 32 C.C.C. (2d) 231; 55 C.R. (3d) 143; 27
C.R.R. 337; 79 N.R. 176 (C.A.).
AUTHORS CITED
Evans, J. M. de Smith's Judicial Review of Administra
tive Action, 4th ed., London: Stevens & Sons Ltd.,
1980.
COUNSEL:
David P. Cole for applicant.
Geoffrey S. Lester for respondent.
SOLICITORS:
David P. Cole for applicant.
Deputy Attorney General of Canada for
respondent.
The following are the reasons for order ren
dered in English by
REED J.: The issue in this application is the
extent to which 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.) [R.S.C., 1985, Appendix
II, No. 44] ] requires that a paroled inmate be
given information concerning the allegations upon
which the National Parole Board is relying when
deciding to revoke his parole.
The application first came before me on October
3, 1990. I rendered a decision [[1991] 1 F.C. 160]
from the bench which gave the National Parole
Board an option of choosing one of two possible
orders which I proposed to issue. The first was an
order quashing the Board's decision of June 21,
1990, which decision had revoked the applicant's
parole. The second was an order requiring an in
camera hearing, before the Court, at which the
Board would have an opportunity to demonstrate
that its refusal to disclose certain information to
the applicant was justified. (The information in
question formed the basis for the Board's decision
to revoke the applicant's parole.) The Board chose
the second option, on the understanding that it
would appeal whichever order was given.
The Court of Appeal rendered a decision on
October 29, 1990 [[1991] 1 F.C. 171] returning
the matter to me for resumption of the hearing,
with the admonition that I could not compel the
Board to bring forward for review by the Court the
confidential information in question. In written
reasons, Mr. Justice Mahoney stated, that on the
resumption of the hearing, I was not "bound to
renew or continue the options" which I had previ
ously offered. Nor was I required "to devise new
options"; he added that whether I did so or not
"will be in her discretion". I subsequently issued
directions, dated November 8, 1990 [T-2439-90,
not yet reported] with respect to the resumed
hearing. That hearing was held on November 26,
1990.
Facts
I do not propose to reiterate the facts and
analysis which are set out in the three decisions
which have already been given. Suffice it to say
the applicant had been on parole for 5' years
when he was apprehended and his parole revoked.
His parole record had been exemplary. He held, at
the time, a "parole reduced" status. I understand
this to be the least restrictive parole conditions
which can be given to a parolee.
The applicant's parole was suspended as a result
of complaints made to the Correctional Service
Office on May 2 and 3, 1990. The complaints
allege that he had committed acts of sexual assault
which involved the use of illegal drugs and that
there had been acts of coercion towards a number
of adult females. The information given to the
applicant concerning these alleged acts is set out in
my reasons of October 3, 1990. The general qual
ity of the information given can be demonstrated
by the following excerpts:
[one report] completed April 10th, 1990 by the Correctional
Service of Canada, contains information from a community
source regarding a sexual assault ... in November of 1989.
[the report] refers to the use of drugs, and that the victim was
finally able to defend herself with a knife. The same [report]
reports a second incident of sexual assault in the fall of 1989,
against a second victim.
No information was given to the applicant as to
the precise or even approximately precise dates or
places or times when the alleged acts took place,
nor were the names of the alleged victims given.
(Some of the questioning of the applicant by the
Board indicated that its attention was also focused
on the July 23 - 24, 1989 weekend.)
He Already Knows?
The Board's first argument is that the applicant
has been given enough information to enable him
to answer the allegations against him because he
knows of the incidents in question. This first con
tention can be easily answered. If the applicant has
knowledge of the alleged incidents which underlie
his parole suspension, then, there can be no reason
not to disclose to him the Board's information
concerning those incidents. If he knows about the
incidents he will know the alleged victims. He may
not know the informants but this is not, in any
event, a relevant fact. To repeat, it is no answer to
say that the applicant need not be given the infor
mation because he already knows it.
Compliance With Regulation 17(5)
Even if the applicant does not know exactly
which precise incidents were referred to in the
information upon which the Board relied, it is
argued that the non-disclosure is justified by virtue
of subsection 17(5) of the Parole Regulations
[C.R.C., c. 1249 (as am. by SOR/86-817, s. 4)].
Subsection 17(5) authorizes the Parole Board not
to disclose (to an inmate or paroled inmate) infor
mation on which it is basing its decision when, in
the Board's opinion, disclosure of the information:
17(5) ...
(a) could reasonably be expected to threaten the safety of
individuals;
(e) could reasonably be expected to be injurious to the
conduct of lawful investigations or the conduct of reviews
pursuant to the Act or these Regulations, including any such
information that would reveal the source of information
obtained in confidence.
Counsel for the respondent argues that it is neces
sary, before making any other decision, for me to
determine whether or not the Board has complied
with subsection 17(5). That section, as noted
above, requires disclosure to the paroled inmate of
the information on which the Board is going to
rely unless "in its opinion" that disclosure could
reasonably be expected to threaten the safety of an
individual or be injurious to the conduct of investi
gations under the Act [Parole Act, R.S.C., 1985,
c. P-2]. I do not think a determination of whether
the Board has complied with subsection 17(5)
advances the argument one way or the other. The
question is not whether the Board complied with
subsection 17(5). The question is whether and in
what circumstances the Board can revoke the
parole of a person in the applicant's position with
out giving him enough information to answer the
case against him, and in so doing not offend
section 7 of the Charter.
It may very well be that in the absence of the
Charter the Board's action in the present case
would be unassailable. There is no doubt that
Parliament can derogate from the common law
principles of natural justice should it decide to do
so. In this case the derogation was by regulation,
not by Parliament through statute, but no argu
ment was made that subsection 17(5) was in any
way an unauthorized subdelegation or unauthor
ized exercise of regulation-making authority. No
argument was made that the Board did not fulfil
the requirements of subsection 17(5) by relying on
the decision of the Correctional Service officers
regarding the necessity to keep the information
confidential rather than making that decision
itself. I did not understand counsel for the appli
cant to be challenging the Board's decision on the
ground that the Board had not complied with
subsection 17(5). I do not find it necessary to
decide the question which counsel for the respond
ent insists must be answered.
Section 7 of the Charter
Section 7 of the Canadian Charter of Rights
and Freedoms provides:
7. Everyone has the right to life, liberty and security of the
person and the right not to be deprived thereof except in
accordance with the principles of fundamental justice.
It is trite law that both at common law and
under section 7 of the Charter the rules of funda
mental justice require that an individual is entitled
to know the case against him in a decision-making
process which leads to a diminution of his liberty.
The Board concedes that if the applicant were not
a paroled inmate it would be a flagrant breach of
his Charter rights for him to be deprived of his
liberty without being given details of the allega
tions which underlie that deprivation. Concomi-
tantly, counsel for the applicant points out that his
client would be much better off if he had been
charged with criminal offences in relation to the
incidents which are alleged. If charges had been
laid, there would be an obligation to reveal the
names of the victims and to disclose some degree
of specificity regarding dates, times and places of
the events.
The requirement that an individual is entitled to
know, and be given an opportunity to respond to
the case against him is essential not only to prevent
abuses by people making false accusations but also
to give the person who has been accused the
assurance that he or she is not being dealt with
arbitrarily or capriciously. A particularly eloquent
history of the principle is found in de Smith's
Judicial Review of Administrative Action (4th ed.,
1980) at pages 157-158:
That no man is to be judged unheard was a precept known to
the Greeks, inscribed in ancient times upon images in places
where justice was administered, proclaimed in Seneca's Medea,
enshrined in the scriptures, mentioned by St. Augustine,
embodied in Germanic as well as African proverbs, ascribed in
the Year Books to the law of nature, asserted by Coke to be a
principle of divine justice, and traced by an eighteenth-century
judge to the events in the Garden of Eden. [Footnotes omitted.]
Guarantees Provided by Section 7 Will Vary With
the Circumstances
It is clear that the requirements of fundamental
justice operate on a spectrum. The content of such
requirements vary with the circumstances of the
case. The Federal Court of Appeal made this very
clear in Howard v. Stony Mountain Institution,
[1984] 2 F.C. 642, at page 661:
... the standard of what is required to satisfy the section
[section 7 of the Canadian Charter of Rights and Freedoms] in
its procedural sense, as it seems to me, is not necessarily the
most sophisticated or elaborate or perfect procedure imaginable
but only that of a procedure that is fundamentally just. What
that may require will no doubt vary with the particular situa
tion and the nature of the particular case. An unbiased tri
bunal, knowledge by the person whose life, liberty or security is
in jeopardy of the case to be answered, a fair opportunity to
answer and a decision reached on the basis of the material in
support of the case and the answer made to it are features of
such a procedure. [Underlining added.]
And at page 663, Thurlow C.J. explained with
respect to an inmate's right to counsel:
... it appears to me that whether or not the person has a right
to representation by counsel will depend on the circumstances
of the particular case, its nature, its gravity, its complexity, the
capacity of the inmate himself to understand the case and
present his defence. The list is not exhaustive. And from this, it
seems to me, it follows that whether or not an inmate's request
for representation by counsel can lawfully be refused is not
properly referred to as a matter of discretion but is a matter of
right where the circumstances are such that the opportunity to
present the case adequately calls for representation by counsel.
It may be that where the circumstances do not point to that
conclusion a residual authority to permit counsel nevertheless is
exercisable by the appropriate official but that area is not I
think within the purview of section 7. [Underlining added.]
Mr. Justice Strayer made a similar observation in
Latham v. Solicitor General of Canada, [1984] 2
F.C. 734 (T.D.), at pages 747-748:
... fundamental justice requires procedural fairness commen
surate with the interest affected .... and fairness requires at
least an outline being given to the person affected of the
allegations being considered by a tribunal in deciding whether
to deny that person his liberty. [Underlining added.]
Paroled Inmate Conditional Liberty Only
The respondent argues that the applicant, as a
paroled inmate, enjoys only a conditional liberty
and that this reduced right to liberty justifies the
refusal, by the Board, to make the information in
question available. It is argued that the public
interest in non-disclosure (as expressed in subsec
tion 17(5)) must be weighed against the individu
al's interest in having sufficient information to
answer the case against him. It is argued that the
parole system will break down and become
unworkable if individuals are not able to supply
information to Correctional Service officers with
out fear of reprisal. It is argued that people must
be able to supply information concerning the
activities of paroled inmates on the understanding
that that information will be kept confidential and
that the Parole Board must be allowed to rely on
this information in making decisions respecting the
continuation of an inmate's parole.
There is no doubt that the applicant's liberty is
conditional.' It can be revoked without the
requirement to prove criminal offences beyond a
reasonable doubt and without all the procedural
guarantees which pertain in a court of law. At the
same time, there can be little doubt that the
applicant's conditional liberty interest, in this case,
is at the high end of the spectrum. The applicant's
position is close to that of an individual who has
Latham v. Solicitor General of Canada, [1984] 2 F.C. 734
(T.D.), at pp. 744-745; Cadieux v. Director of Mountain
Institution, [1985] 1 F.C. 378 (T.D.), at pp. 396-398; Maxie v.
Canada (National Parole Board), [1987] 1 F.C. 617 (C.A.).
unconditional liberty. It is as close to that position
as it can be within the correctional system. The
applicant is on full parole and has been for many
years. He has a "parole reduced" status. The
incidents which allegedly took place, took place
outside the prison situation. Institutional consider
ations with respect to the identification of infor
mants within the prison walls do not exist. An
individual's liberty (even the conditional liberty
which a parolee enjoys) weighs very heavily in the
scales when compared to competing interests.
I would note in passing that while it is usual to
characterize the applicant's rights as "individual"
rights, which are counterpoised to the public inter
est (in ensuring that paroled inmates do not
commit acts harmful to members of the public),
there is also a public interest in employing proce
dures which are fair, for dealing with all members
of society including paroled inmates. Procedures
which have the appearance of being arbitrary and
capricious are by their very nature not in the
public interest.
Section 7 Requirements in the Parole/Penitentiary
Context
Counsel argues that the constitutional require
ments have been met because "the gist" of the
allegations which are made against the applicant
has been communicated to him. In Cadieux v.
Director of Mountain Institution, [1985] 1 F.C.
378 (T.D.), I indicated that section 7 of the Chart
er required that an inmate who had had his unes-
corted temporary absence program cancelled was
entitled to know the "gist" of the allegations
against him. In Latham v. Solicitor General of
Canada, [1984] 2 F.C. 734 (T.D.), Mr. Justice
Strayer held that the requirements of fundamental
justice in section 7 require that a paroled inmate
who has his day parole revoked should be given an
"outline" of the allegations being considered by
the Board [at page 748]:
A law which purports to deny even this is not a reasonable
limitation within the meaning of section 1 of the Charter of the
rights guaranteed in section 7 thereof. Section 17 of the Parole
Regulations should therefore not be applied in a manner to
deny this right.
Whether the requirement be described as one
requiring that the "gist" of the allegations be
provided or as one requiring that "an outline of the
allegations" be provided is not important. In both
cases what is required is enough detail to allow the
individual to answer the allegations. The respond
ent in the present case has not provided the appli
cant with "the gist" of the allegations in the sense
in which that term was used in Cadieux.
In Demaria v. Regional Classification Board,
[1987] 1 F.C. 74, Mr. Justice Hugessen, speaking
for the Federal Court of Appeal, examined the
requirements of section 7 as they apply to an
inmate who was being transferred from a medium
security prison to a maximum security prison. He
stated that an inmate has a right to have adequate
notice of the allegations which form the reasons
for the transfer and that he has a right to have fair
opportunity to respond thereto. Mr. Justice
Hugessen wrote, at pages 77-78:
The purpose of requiring that notice be given to a person
against whose interests it is proposed to act is to allow him to
respond to it intelligently.... Where, as here, it is not intended
to hold a hearing or otherwise give the person concerned a right
to confront the evidence against him directly, it is particularly
important that the notice contain as much detail as possible,
else the right to answer becomes wholly illusory. Indeed the
present case is an excellent example of the right to answer
being frustrated and denied by the inadequacy of the notice.
The appellant is told that there are reasonable grounds for
believing him to have brought in cyanide. He is given no hint of
what those grounds are. The allegations against him are devoid
of every significant detail. When? Where? How? Whence came
the poison? How was it obtained? For what purpose? How
much? The allegation is said to be based on information
obtained by the Millhaven staff and the Ontario Provincial
Police. What information comes from which source? Is there
an informer involved? If so, how much of the substance of his
statement can be revealed while protecting his identity? Have
the police pursued their enquiries? Have they made any
arrests? The list of questions is almost endless.
In the absence of anything more than the bald allegation that
there were grounds to believe that he had brought in cyanide,
the appellant was reduced to a simple denial, by itself almost
less convincing than a positive affirmation, and futile specula
tion as to what the case against him really was.
There is, of course, no doubt that the authorities were
entitled to protect confidential sources of information. A peni
tentiary is not a choir school and, if informers were involved
(the record here does not reveal whether they were or not), it is
important that they not be put at risk. But even if that were the
case it should always be possible to give the substance of the
information while protecting the identity of the informant. The
burden is always on the authorities to demonstrate that they
have withheld only such information as is strictly necessary for
that purpose. A blanket claim, such as is made here, that "all
preventive security information" is "confidential and (cannot)
be released", quite apart from its inherent improbability, is
simply too broad to be accepted by a court charged with the
duty of protecting the subject's right to fair treatment. In the
final analysis, the test must be not whether there exist good
grounds for withholding information but rather whether enough
information has been revealed to allow the person concerned to
answer the case against him. But whichever way it be stated,
the test is not met in the present case. [Footnote omitted.]
[Underlining added.]
The Latham, Cadieux and Demaria cases all
dealt with situations in which the inmate had a
much more limited liberty interest than does the
applicant in the present case. Those cases dealt
with day parole, the unescorted temporary absence
program and a transfer between penitentiaries.
There is no doubt that the applicant, in the present
case, is entitled to sufficient detail respecting the
allegations being made against him to enable him
to respond intelligently thereto unless the respond
ent can demonstrate otherwise.
Limitation "Prescribed by Law"—Section 1
The method of analysis for determining whether
an abrogation of Charter rights has occurred is
one under which the applicant must first prove a
prima facie Charter right and, then, the responsi
bility shifts to the respondent to prove that the
limitation in question is "reasonable" and
"demonstrably justified in a free and democratic
society". Section 1 of the Charter provides:
1. The Canadian Charter of Rights and Freedoms guaran
tees the rights and freedoms set out in it subject only to such
reasonable limits prescribed by law as can be demonstrably
justified in a free and democratic society.
In the case of section 7, since the rights guaran
teed thereunder constitute a spectrum of guaran
tees, this involves first determining the content of
the principles of fundamental justice flowing from
section 7 applicable to the particular decision-
making process being challenged (by reference to
the particular circumstances of the case, the
nature of the interests involved, and the reasons
and evidence which have been put forward to
justify the limitations which have been placed in
what are claimed as section 7 guarantees). When
the limitations are not "prescribed by law" the
enquiry stops at that stage. When the limitations
are prescribed by law, however, the enquiry moves
on to consider whether a section 1 justification
might exist.
Subsection 17(5) is a limitation prescribed by
law. The burden, then, is on the respondent to
demonstrate that it is a "reasonable limit[] ...
demonstrably justified in a free and democratic
society."
National Parole Board's Justification
Three affidavits were filed, two by a Mr. Stien-
burg and one by a Mr. Harvey. The justifications
set out therein can, in a general sense, be charac
terized as asserting that non-disclosure is neces
sary for the operation and effective working of the
parole system. Indeed, counsel for the respondent
went so far as to assert that an order which did not
protect the type of confidential information which
is in question in this case would undermine the
whole parole system and the Board would simply
have to cease granting paroles. (This was counsel's
argument, it is not a consequence asserted in the
affidavits filed.) Another ground upon which non-
disclosure of the information is claimed to be
justified is that the accuracy of that information is
carefully checked before it is relied upon by the
Board. I will quote from the affidavits.
Mr. Stienburg's affidavit of November 20, 1990
reads, in part, as follows:
7. That as appears on the face of several of the confidential
information reports, information contained therein relating to
the allegations of sexual assault were made in confidence. The
said allegations were made to members of and social workers
connected with the Correctional Services system.
8. That the said information reports clearly indicated that both
victims did not want to press charges out of fear of reprisal by
the applicant, and one of them did not want to sign a statement
for reasons which I am unable to divulge without giving
sufficient information to enable the applicant to deduce her
identity. One of the victims took certain steps to avoid the
applicant, which steps I again cannot further detail without
enabling the applicant to deduce her identity.
9. That the said confidential information reports also contained
details of behaviour patterns on the part of the alleged assault
victims, that the writers of the said reports believed were
causally related to the said assaults and consequent thereon.
Again, I am not at liberty to disclose further details without
running the risk that the applicant will be able to deduce the
sources' identities.
10. That I crave leave to refer to my previous affidavit and in
particular to paragraph 24 thereof. Based on the information in
the confidential information reports, and in particular the
information that there was a series of sexual assaults alleged,
the panel was of the view that from the very nature of the
alleged assaults and the expressions of fear on the part of
sources for the safety of the victims that the allegations
implicated the victims and spelled danger for their safety.
11. That further to paragraph 10 hereof, the entire, body of
evidence was obtained by the several authors of the reports
from sources, and the authors stated that some of the sources
had obvious and objective fears of reprisals at the hands of the
appellant.
13. That further to paragraph 1 l thereof, furthermore in light
of the highly confidential nature of the information and the
refusal of the sources to agree to the release of the information
in fear of reprisals, the panel shared all the information it could
and withheld only such minimal information that it had author
ity to withhold under section 17(5) of the Parole Regulations.
14. That the said confidential information reports relied upon
by the panel were all brought into existence as part of lawful
investigations and the conduct of reviews pursuant to the
Parole Act, and on the face of those reports where the point
was mentioned and it was material to the context, the informa
tion from the sources had been given in confidence. In my
opinion, backed by my experience with the police, the commu
nity, the prison system and the parole system in general, if
information gathered in the course of an investigation pursuant
to the Parole Act and Regulations cannot be given with an
assurance that it will be kept confidential, that would be
injurious to the conduct of such investigations, and consequent
ly for the Board's capacity to assess risk.
15. That I am of the view that to share the contents of the
confidential information reports in their entirety would not be
in the public interest. The information was provided in confi
dence on the condition that it not be shared with the applicant
16. That I crave leave to refer further to my previous affidavit
and in particular to paragraph 1 thereof. Based on my experi
ence as a member of the Parole Board, I am of the definite view
that to be required by law to share the complete contents of
confidential information reports or any other information of a
confidential nature without exception, or even to have such
documents scrutinized by counsel for the applicant or by a
judge of this Honourable Court, albeit in camera, would have a
very serious and adverse effect on the process of gathering of
information by the Correctional Service of Canada and there
fore be injurious to the capacity of the National Parole Board
to assess risk.
17. That in my view it is most important to the proper func
tioning of the parole system as established under the Parole Act
and Regulations made thereunder that the Parole Board main
tain the authority it has under section 17(5) of the Regulations
that it is not required to supply information that, in its opinion,
should not be disclosed on grounds of public interest including
information the disclosure of which would fall within the
various subparagraphs of that subsection. [Underlining added.]
The reasons set out in Mr. Stienburg's Novem-
ber 20, 1990 affidavit do not differ appreciably
from those found in his earlier affidavit of October
18, 1990. I will however, quote one paragraph
therefrom:
24. That further to paragraph 23 hereof, the Panel was of the
opinion that Correctional Services Canada had taken all
reasonable and necessary steps to verify the reliability of the
information contained in the said Reports, and that under the
circumstances it was safe for the Panel to proceed on the basis
of the information contained in the said several Reports. In
attempting to assess the quality of validity of the information,
the Board reviewed and was forced to review very carefully the
contents of the several Confidential Information Reports and it
became quite impossible to ignore the very serious nature of the
allegations.
The Panel was of the view that there was no compelling reason
to believe that the allegations were anything but descriptions of
incidents that the victims experienced. The Panel was further
strengthened in its confidence in the reliability of the informa
tion in that some of the information was received from an
essentially uninvolved source, which very graphically or clearly
pointed out that one person had been advised of the Applicant's
behaviour, and in fact confirmed that the Applicant did
attempt to enter the private dwelling of one of the victims.
Accordingly, the Panel was satisfied that the evidence submit
ted pointed to a very substantial increase in the level of risk
which the Applicant presented to he [sic] community. In sum,
it was the Panel's feeling that the weight of evidence that it had
before it clearly pointed to behaviour which was not only
unacceptable for a person on conditional release, but also
criminal in nature. [Underlining added.]
Mr. Harvey's affidavit of November 19, 1990
explains the procedure by which information is
gathered:
10. In the case of PIRs [Protected Information Reports], the
information is only given to the Correctional Service of Canada
on the specific condition that the Service guarantee that any
information specified by the source to be kept in confidence will
be kept in confidence. Not all such information is accepted
under these conditions and the Correctional Service will only
accept such confidential information if it falls under the specif
ic exceptions listed in the Access to Information Act and the
Privacy Act (specifically sections 16(1)(c) and 17 of the Access
to Information Act and sections 22(1) and 25 of the Privacy
Act), i.e. only in situations where the safety of individuals could
reasonably be expected to be threatened or where divulging
such information would jeopardize an ongoing police investiga
tion.
12. In the case of an ongoing police investigation, any sharing
of knowledge, including even the simple fact that such an
investigation is in progress, may ruin months or years of work
by police forces. However, this information may be of direct
importance to a parole decision as, although it may not be
conclusive in terms of laying new charges or obtaining convic
tions, it may be clear evidence to meet the different standard of
proof of a breach of a condition of parole, for example, to not
associate with known criminals, etc.
13. Where such information is received, reasonable steps are
taken to verify the reliability of the information. The Parole
Officer in the field or the Case Management Team will investi
gate the allegations and will present in the report all of the
circumstances surrounding such information, including whether
or not it can be independently substantiated and the existence
of any factors or motives which might affect credibility of the
source.
15. Parole officers and Case Management Officers are well
aware of the potential for abuse in that such information may
be made up by persons who are interested in revenge and not
telling the truth. It is for this reason that such information is
investigated and an assessment is made as to whether the
information can be independently verified as well as the credi
bility and any potential conflict of interest of the source.
20. Use of PIRs is carefully monitored to prevent abuse of the
process by sources and by Service personnel. However, the
question of sharing the information with the inmate is not a
simple one. Although subsequent changes in circumstances may
result in a release of the information, or the information may be
released pursuant to a decision under the Privacy Act or the
Access to Information Act, our major concerns are two-fold:
first, without the guarantee of anonymity, in many cases infor
mation vital to the protection of society would not be brought
forward; and second, where such information is released against
the request of a source, the present system is not able to protect
that person from threat of violence. [Underlining added.]
Assessment of the Affidavits
In assessing the affidavits filed on behalf of the
National Parole Board, it is important, first, to
keep clearly in mind that the issue in this case does
not challenge the right of Correctional Service
officers to receive information in confidence and
keep it confidential. The issue in this case does not
affect the process of information gathering by the
Correctional Service of Canada (paragraph 16 of
Mr. Stienburg's affidavit of November 20, 1990).
The issue is not whether the Parole Board should
be required to disclose the complete Correctional
Services' file to the paroled inmate (paragraph 16
of Mr. Stienburg's affidavit of November 20,
1990). The issue is not whether the Board has to
disclose the identity of informants. It clearly does
not. There is never a requirement to disclose the
names of informants since that fact is never rele
vant to the decision which must be made. An issue
only arises when the disclosure of information will
necessarily disclose the identity of the informant.
The issue is whether the National Parole Board is
required to either release information to the appli
cant (when disclosure will necessarily reveal the
source of that information) or forego reliance on
that information in making a decision on the appli
cant's parole.
With respect to the particular points made in
the affidavits, there is no evidence that there is an
on-going police investigation, in this case, which
investigation would be prejudiced by the disclosure
of the information in question (paragraph 12 of
Mr. Harvey's affidavit). The only investigation
about which there is any evidence is the one
pursuant to the Parole Act and Regulations which
led to the revocation of the applicant's parole
(paragraphs 14 and 17 of the Stienburg affidavit
of November 20, 1990). It was established in
Singh et al. v. Minister of Employment and
Immigration, [1985] 1 S.C.R. 177, that adminis
trative convenience does not justify a denial of
fundamental justice. As I understand the respond
ent's argument, in this case, it is more than just
administrative convenience which is alleged to
require the limitations which have been imposed.
Nevertheless, to the extent that any part of the
respondent's argument might be based on adminis
trative convenience, that argument has been
answered by the decision in the Singh case
(supra).
The reliance on provisions of the Access to
Information Act, R.S.C., 1985, c. A-1 and the
Privacy Act, R.S.C., 1985, c. P-21 is misplaced. As
has been said before those legislative provisions
prescribe circumstances under which individuals
will not be given certain information which they
seek from the government. Those exemptions,
however, are not designed to operate in the context
of a situation where the individual seeking the
information is faced with serious consequences
respecting his liberty as a result of decisions being
made on the basis of that information. Those
statutes prescribe limits to an individual's access to
information when the information being sought
may be required for no more serious reason than
idle curiosity. Also, in that context, this Court has
a reviewing function which ensures that the
exemptions claimed are properly so claimed—a
role which the respondent categorically denies is
appropriate in the more serious circumstances in
which the applicant finds himself.
The respondent claims that the accuracy of the
information in question has been carefully vetted.
That may be true but I do not think it justifies
refusing to provide the applicant with the informa
tion he seeks. The assertion, that the information is
accurate, is self-serving and it is no answer to the
applicant's perception that he is being dealt with
arbitrarily and capriciously. The process of
restricting an individual's liberty without being
required to give details of the accusations against
him is not rescued from invalidity by the decision
maker's assertion that the information is true.
This leaves for consideration the main focus of
the respondent's argument: the information was
provided in confidence; the individuals who pro
vided the information expressed concern that if
their identities were known they would suffer
reprisals at the hands of the applicant; the infor
mation cannot be disclosed without disclosing, at
the same time, the identity of the informers. And,
if the Parole Board cannot rely on such informa
tion, the ability of the Board to assess risk is
seriously impaired and the functioning of the
parole system undermined.
The affidavits address two questions: the par
ticular facts of the applicant's case, and the
rationale for the procedure established by, and
content of subsection 17(5). Evidence with respect
to the particular circumstances of the applicant's
case might more properly be seen as relevant in
determining whether or not a breach of fundamen
tal justice has occurred than to determining
whether a section 1 justification exists. In any
event, in so far as the particular circumstances of
the applicant's case is concerned, Mr. Stienburg's
assertion that on the basis of statements set out in
the various confidential reports, the Parole Board
panel is persuaded that disclosure of additional
information to the applicant would disclose the
identity of the source, is not compelling evidence
as to whether disclosure would in fact have that
consequence. Similarly, Mr. Stienburg's assertion
that, on the basis of the descriptions contained in
the confidential reports (of the alleged assaults
and the expressions of fear by the informants) the
panel concluded that a threat to the safety of the
informants would exist if disclosure took place, is
not convincing evidence that in fact disclosure
would have that result.
One wonders, for example, why the difficulties
of protecting the informants in the present circum
stances is any more severe than is the case with
many situations of domestic violence. One wonders
why the difficulty is any greater than that of
protecting many witnesses who testify at criminal
trials. These types of problems are not unique to
the situation of a paroled inmate.
In so far as the evidence concerning the proce
dure of refusing disclosure, in accordance with
subsection 17(5), is concerned, again there is a
lack of persuasive evidence. The assertion that the
operation of the parole system will be undermined
if information of the kind in question is disclosed
to the applicant (and by analogy to other appli-
cants in similar situations) is an expression of
opinion unsupported by any factual underpinnings.
In addition, I note that there is a complete lack of
evidence of the usual comparative nature, which is
often adduced in these kinds of cases, to demon
strate that other democratic jurisdictions have
found it necessary to establish procedures of a
similar kind.
The respondent was given the opportunity to
bring specific evidence forward to demonstrate
that either the particular circumstances of the
claimant's case justified the limitation which had
been imposed, or that the operation of a parole
system which authorizes the Parole Board to
refuse disclosure of information in accordance with
the terms of subsection 17(5) is justifiable pursu
ant to section 1 of the Charter. The Board did not
adduce any such specific evidence.
Review by the Courts
The respondent was offered an in camera hear
ing for the purpose of establishing a factual basis
for its assertions, accompanied by an undertaking
from counsel for the applicant that any confiden
tial information to which he became privy would
not be disclosed to his client, nor indeed to any
other person. The respondent alleges that even this
would have a serious and adverse effect on the
working of the parole system (paragraph 16 of Mr.
Stienburg's affidavit). This is simply not credible.
This Court deals with many situations in which
confidential information is brought before it and
used or not used in litigation, as the case may be.
Often restrictions are imposed with respect to the
use of that information in order to protect its
confidentiality. Under some procedures only the
Court and the party tendering the information has
access to it. Under other procedures, while counsel
and the Court have access to the information, the
relevant opposing party does not. (In this case, the
respondent had no objection to applicant's counsel
seeing the information, what was objected to was
the setting of a precedent.)
As has already been noted, this Court performs
a reviewing function under the Access to Informa-
tion Act. This Court has jurisdiction under the
Canada Evidence Act, R.S.C., 1985, c. C-5 to
decide issues such as whether national defence or
security, might be injuriously affected by the
public disclosure of certain information in a Court.
It may also be asked to decide whether interna
tional relations might be injuriously affected by
the disclosure of information. Under section 37 of
the Canada Evidence Act, the Court is authorized
to determine whether information which a Minis
ter considers should not be disclosed "in the public
interest" is rightly so characterized. It is hard to
conclude that a disclosure to this Court of specific
information regarding the applicant's particular
situation or to support a justification for a non-dis
closure rule as set out in subsection 17(5) would
have the adverse consequences which are alleged.
The respondent asserts that it is not within this
Court's jurisdiction to compel production of the
confidential information reports concerning the
applicant or other types of information relevant to
the present case. Whether or not the information
respecting the applicant is part of the record and
could be compelled to be brought before the Court,
on that basis, is an argument which has been
eclipsed by the arguments respecting the appli
cant's Charter rights. An argument that such
could be compelled, as part of the record, was
initially asserted, but it has not been pursued as a
vigorous argument in the more recent phase of
these proceedings. Regardless of whether or not
the Court has any compulsory authority, in this
regard, the consequence of not adducing further
evidence is that the respondent, in this case, has
not established an evidentiary base to support the
arguments it seeks to make.
Limitation by Regulation 17(5)
I turn to the text of subsection 17(5) itself. The
policy considerations underlying that regulation
and the particular facts relating to the applicant's
case, as attested to in the affidavits of Mr. Stien-
burg and Mr. Harvey, have been considered. But
what of the provisions of the Regulation itself?
I note, first of all, that subsection 17(5) is very
broadly framed. No distinction is made between
the non-disclosure of information essential to allow
an individual to know the case against him or her
and the non-disclosure of information which is
more peripheral in nature. In addition, paragraph
17(5)(e) is so broad that it seems to authorize
non-disclosure merely because the information was
received in confidence. This can never be a justifi
cation for limiting the guarantees of fundamental
justice as was clearly set out in the Demaria case
(supra) at page 78. What is more, paragraph
17(5)(a) seems to require only the possibility of a
threat and not a probability that harm would likely
occur to an individual. These are disturbingly
broad provisions. While I do not find it necessary
to decide whether subsection 17(5) is ultra vires
(perhaps it can operate in certain circumstances),
it suffices to say that when that regulation is used
to deny a paroled inmate the kind of information
which was denied in this case, it is inapplicable for
that purpose.
In addition, I am not convinced that a system
which puts in the hands of the same body both the
decision on the merits (the applicant's parole revo
cation) and the decision as to how much of the
information which is before it will be disclosed to
the applicant, is one which can meet the require
ments of section 1 of the Charter. I certainly doubt
that such a procedure can be justified when deal
ing with a person in the applicant's position. (A
person who has been paroled for many years and
whose record is exemplary.) A parallel can be
drawn to the decision in Hunter et al. v. Southam
Inc., [ 1984] 2 S.C.R. 145 where it was held that a
search warrant was invalid if not issued by a
judicial body independent of the investigating
agency.
Conclusion
In conclusion, the applicant's section 7 Charter
rights have been infringed by the refusal to provide
him with the confidential information upon which
the Board is relying. The respondent has not estab
lished an evidentiary basis justifying non-disclo
sure neither with respect to the specific circum-
stances of this applicant's case nor by justifying
subsection 17(5) as establishing a reasonable limi
tation on the applicant's rights pursuant to section
1 of the Charter. Accordingly, an order will issue
quashing the Board's decision and an order of
mandamus will issue requiring a new hearing by a
differently constituted panel of the National
Parole Board.
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.