T-561-84
Bryan Rolston Latham (Applicant)
v.
Solicitor General of Canada and his agents, Na
tional Parole Board and Correctional Service of
Canada, part of which used to be called Parole
Service of Canada (Respondents)
Trial Division, Strayer J.—Prince Albert, Sas-
katchewan, March 8; Ottawa, March 28, 1984.
Judicial review — Prerogative writs — Certiorari — Revo
cation of parole — Post-suspension hearing not meeting
standards of fairness — Failure by Board to inform applicant
adequately of reasons for revocation, and to provide opportu
nity to answer allegations before Board constituting major
denial of fairness — Nature of consequences of denial of
fairness to be considered in determining requirements offair-
ness — Exclusion from revocation hearing denial of fairness
— Presence of counsel at hearing important factor in assuring
fairness — No evidence applicant denied counsel — Failure by
Board, in future hearings, to demonstrate taking of initiatives
to provide parolee reasonable opportunity to retain counsel
giving rise to attack on ground of denial of fairness —
Certiorari to issue quashing Board's revocation of day parole.
Constitutional law — Charter of Rights — Fundamental
justice — Revocation of parole — S. 17(3) Parole Regulations
providing for non-disclosure of certain information not to be
applied so as to deny parolee's right to procedural fairness
under s. 7 — Applicant entitled to outline of allegations before
Board — S. 10(b) right on arrest or detention to retain counsel
not applicable as covering initial arrest or detention — S. 7
requiring Board to provide applicant with reasonable opportu
nity to retain counsel at revocation hearing — Failure to do so
giving rise to attack on ground of denial of fairness — S. 20
Parole Act re cancellation of remission upon revocation of
parole not contrary to s. 7 fundamental justice — S. 7
intended to guarantee only procedural justice or fairness, not
imposing substantive test of fairness of laws — "Due process
of law" in s. 1(a) of Canadian Bill of Rights deliberately
avoided in favour of 'fundamental justice" in s. 2(e) — Latter
words interpreted by Supreme Court of Canada as having
procedural content — Assumption words subsequently
employed in Charter in same sense — Certiorari to issue
quashing Board's decision to revoke parole — 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.), ss. 1, 7, 10(b), 24 — Canadian Bill of Rights, R.S.C.
1970, Appendix III, ss. 1(a), 2(e).
Parole — Revocation — Post-suspension hearing —
Habeas corpus, certiorari, injunction and damages sought —
S. 6 Parole Act conferring on Board exclusive jurisdiction to
revoke parole — S. 17(3) Parole Regulations providing for
non-disclosure of certain information described in s. 54(a) to
(g) of Canadian Human Rights Act not to be applied in
manner denying applicant right under s. 7 Charter to proce
dural fairness — Habeas corpus, injunction and damages not
proper remedies — S. 24 of Charter of no assistance —
Certiorari to issue quashing revocation of parole — Parole
Act, R.S.C. 1970, c. P-2, ss. 6 (rep. and sub. S.C. 1976-77, c.
53, s. 23), 16 (idem, s. 29), 20 (idem, s. 31) — Canadian
Human Rights Act, S.C. 1976-77, c. 33, s. 54 — Parole
Regulations, SOR/78-428, ss. 17, 20, 20.1 (as added by
SOR/81-318), 22.
The applicant was convicted of rape and assault and sen
tenced to imprisonment. He was subsequently released on day
parole. Following an investigation into the allegations of his
stepdaughter that he had threatened to rape her—allegations
which he did not deny—he agreed to return voluntarily to
prison on the assumption that if he did so, his parole would not
be revoked. A warrant of apprehension and suspension of
parole nevertheless issued. He requested a post-suspension
hearing. At the end of the hearing, the Board revoked his day
parole, a decision which it later confirmed after re-examina
tion. The applicant has remained incarcerated ever since. He
now seeks various remedies: habeas corpus; certiorari to quash
the Board's decision; an interim injunction and damages. The
applicant argues that the Board lacked jurisdiction to make a
revocation order under section 16 of the Parole Act since there
was nothing for the Board to revoke, the applicant having
terminated his own day parole by surrendering himself. He also
asserts a denial of fairness and of Charter requirements on the
grounds that he was not adequately informed of the reasons for
revocation, was not allowed to be present during most of the
post-suspension hearing and was not informed of his right to
retain counsel. The applicant finally argues that section 20 of
the Act, which provides for automatic cancellation of statutory
and earned remission upon revocation of parole, is contrary to
section 7 of the Charter. The argument proceeds on the
assumption that the words "fundamental justice" in section 7
impose a substantive test of fairness of laws, not merely a test
as to the procedures by which life, liberty or security may be
denied.
Held, certiorari should issue quashing the revocation
decision.
The applicant's argument as to the Board's lack of jurisdic
tion to revoke parole fails. The applicant's voluntary surrender
did not have the legal effect of terminating his parole. The
parole was thus still in effect and the Board had the power to
revoke it, pursuant to section 6 of the Parole Act.
While the revocation of parole does not require the judicial-
type process more commonly associated with the concept of
natural justice, it does require at least an observance of fair
ness. The major denial of fairness herein flowed from the
failure to notify the applicant adequately of the grounds for
revocation and to give him an opportunity to answer the
allegations considered by the Board. Section 16 of the Act
authorizes revocation for either a breach of the terms of parole
or "to protect society". The parole certificate stated no terms
directly relevant to the situation. Yet, the warrant of apprehen
sion and suspension stated that parole had been suspended to
prevent a breach of a term of parole. The "Violation Report"
used similar language but also referred in its summary to "A
Child Welfare matter". Those were the written allegations
given to the applicant prior to the hearing. The Board's written
reasons explained it as being to "protect society". While there
may be a considerable overlapping between revocation reasons
based on a past breach of terms of parole and those based on a
need to protect society, they are different in their time orienta
tion and their emphasis. It is important for the applicant to
know the main focus of the Board's preoccupations. The infor
mation thus conveyed to the applicant was inadequate and
unfair in this respect; it was also unfair in not specifying more
precisely the nature of the information the Board had gathered
to enable the applicant to comment on it.
In determining the requirements of fairness, it is also neces
sary to consider the nature of the consequences of the denial of
fairness. In the case at bar, the direct consequence for the
applicant was a loss of freedom of some two and a half to five
years. A decision with such grave consequences is clearly one
which must be taken with a proper regard for fairness.
Counsel for the Board referred to subsection 17(3) of the
Parole Regulations which specifies that the Board is not
required to furnish an inmate with any information described in
paragraphs 54(a) to (g) of the Canadian Human Rights Act.
Although subsection 17(3) may provide a legally effective
limitation on any common law fairness requirement of disclo
sure, it is not effective in limiting the right of the parolee under
section 7 of the Charter. The parolee's "liberty" is clearly at
stake, and fundamental justice requires procedural fairness
commensurate with the interest affected. Fairness requires that
the person be given an outline of the allegations considered by
the Board. A law which purports to deny this is not a reason
able limitation, within the meaning of section 1 of the Charter,
of the rights guaranteed in section 7. Section 17 of the Regula
tions should therefore not be applied in a manner to deny this
right.
The same considerations generally apply to the denial of the
opportunity for the applicant to be present during the hearing.
Since the applicant was available, there was no justification for
excluding him. It appears prima facie that this exclusion
amounted to a denial of fairness. It remains for the Board in
future proceedings to demonstrate that some law exists which
constitutes a reasonable limitation of that right.
The guarantee provided for in paragraph 10(b) of the Chart
er (the right on arrest or detention to retain and instruct
counsel) does not apply here. Paragraph 10(b) is designed to
cover the situation of initial arrest or detention. However, the
section 7 guarantee does require that the applicant be given
every reasonable opportunity to be represented by counsel at a
revocation hearing. The presence of counsel in a matter of this
gravity is an important factor in assuring the fairness of the
process.
With respect to future hearings concerning the applicant's
revocation of parole, it is not within the authority of the Court
to order the Board, or appropriate federal or provincial agen
cies, to provide counsel at such hearings. However, failure by
the Board to demonstrate in future hearings that it took some
initiatives to give the parolee every reasonable opportunity to
retain counsel, may result in an attack on the integrity of its
process for reasons of denial of fairness.
The applicant's argument that fundamental justice imposes a
substantive test of the fairness of laws must be rejected. It is
clear from the legislative history of section 7 that it was
intended to guarantee only procedural justice or fairness. The
words "due process of law" in paragraph 1(a) of the Canadian
Bill of Rights were deliberately avoided in favour of the words
"fundamental justice" in paragraph 2(e). Those words have
been interpreted by the Supreme Court of Canada to have a
procedural content and it can be assumed that they were
subsequently employed in the Charter in that sense.
Neither an injunction nor damages are available in this
proceeding. The proceeding was not framed as an action nor
could it have been appropriate for an action. As to habeas
corpus, it is well settled that, save minor exceptions, the
Federal Court, Trial Division, cannot issue habeas corpus.
Section 24 of the Charter does not alter the situation as it only
allows a court of competent jurisdiction to give remedies it is
already empowered to give.
CASES JUDICIALLY CONSIDERED
REFERRED TO:
Starr v. National Parole Board, [1983] 1 F.C. 363
(T.D.); Morgan v. National Parole Board, [1982] 2 F.C.
648 (C.A.); Couperthwaite v. National Parole Board,
[1983] 1 F.C. 274 (T.D.); R. v. Caddedu; R. v. Nunery
(1982), 32 C.R. (3d) 355 (Ont. H.C.); Re Mason and the
Queen (1983), 43 O.R. (2d) 321 (H.C.); Duke v. The
Queen, [1972] S.C.R. 917; Ex p. Quevillon (1974), 20
C.C.C. (2d) 555 (F.C.T.D.); Noonan v. The Queen in
right of Canada et al., judgment dated March 17, 1983,
Federal Court, Appeal Division, A-277-83, not reported;
Re Morgan and the Queen (1982), 1 C.C.C. (3d) 436
(Man. C.A.); Truscott v. Dir. of Mountain Institution
(1983), 33 C.R. (3d) 121 (B.C.C.A.); Oag v. The Queen
et al.; R. v. Moore, [1983] 1 S.C.R. 658; 41 O.R. (2d)
271; 33 C.R. (3d) 97.
COUNSEL:
Lucinda Vandervort for applicant.
L. P. MacLean for respondents.
SOLICITORS:
Lucinda Vandervort, Saskatoon, for appli
cant.
Deputy Attorney General of Canada for
respondents.
The following are the reasons for order ren
dered in English by
STRAYER J.: The applicant herein is an inmate
in the Saskatchewan Penitentiary at Prince Albert.
His application is essentially for habeas corpus
with certiorari in aid to quash an order made by
the National Parole Board on October 6, 1982
which revoked his day parole and thus continued
his imprisonment.
Without going into detail, it is relevant to note
some salient facts concerning the applicant's back
ground. He was sentenced in British Columbia on
January 22, 1971 to four years in penitentiary for
rape and four months concurrent for unlawfully
detaining a female with intent to have sexual
intercourse with her. He was released on mandato
ry supervision on October 25, 1973. Mandatory
supervision was revoked by the National Parole
Board on August 15, 1974. On October 25, 1974
he was convicted in the Court of Queen's Bench in
Manitoba for rape and assault of one woman and
assault of another, together with unlawfully having
in his possession a knife or imitation thereof for a
purpose dangerous to the public peace. These
offences all occurred on May 25, 1974 at or near
Winnipeg. He was sentenced to 12 years on the
rape charge, and 5 years on each of the other
charges to be served concurrently with the 12-year
sentence. The Manitoba Court of Appeal subse
quently dismissed appeals both against the convic
tions and the sentences.
The applicant was released from the Rockwood
Institution in Manitoba on day parole on August
17, 1982. In the meantime while an inmate he had
married in 1975 and had two small children. His
wife also had a daughter Diana Lee who was about
twelve years old in 1982. Mrs. Latham and the
three children lived in Winnipeg. Upon his release
on day parole the applicant spent much of his time
there and in looking for employment.
On September 2, 1982, a neighbour of the
Lathams contacted Winnipeg City Police with
respect to concerns she had about the welfare of
Diana Lee Latham, the applicant's stepdaughter.
The police interviewed Diana Lee who said in
effect that she was afraid of the applicant and that
he had said to her at least twice that he felt like
raping her. The police then interviewed the girl's
mother, Mrs. Latham who said she was aware of
this situation, that she had discussed it with her
husband, and that in her view it would not recur.
Later that day the police met with both Mr. and
Mrs. Latham together. Mr. Latham did not deny
much of what had been alleged, but assured the
police that Diana was perfectly safe. His parole
officer, Victor Bergen, then phoned and it was
agreed between them that Latham would volun
tarily return to Rockwood.
Latham now says that he understood that if he
voluntarily returned his parole would not be
revoked by the Board and that he wanted to avoid
such revocation because it would automatically
have the effect of cancelling some 1,800 days of
earned remission to which he was entitled from his
current sentence. Mr. Bergen, his parole officer,
said that in their telephone conversation he had
told Latham to return to Rockwood that evening
and that if he did not Bergen would have a war
rant of apprehension and suspension issued. In any
event, Latham did return to Rockwood the evening
of September 3, 1982, but the warrant was never
theless issued that day and served on Latham on
September 7. Latham has remained incarcerated
ever since.
Latham was interviewed by a parole officer on
September 10, 1982 and on that day signed a
request for a post-suspension hearing. The hearing
was held on October 6 pursuant to sections 20 and
20.1 of the Parole Regulations, SOR/78-428, as
added by SOR/81-318.
Latham says that he tried unsuccessfully to
obtain legal counsel for the hearing but was unable
to do so. He was assisted by Mr. Epp, a prison
chaplain. The details of this hearing will be dis
cussed later: suffice it to say that at the end of the
hearing the Board panel, consisting of Board mem
bers Denis Chisholm and Dorothy Betz, revoked
Latham's day parole. This was subsequently con
firmed by the Board in a re-examination of the
decision pursuant to section 22 of the Regulations.
The applicant applied in 1983 to the Court of
Queen's Bench for Saskatchewan (he being then
incarcerated at Prince Albert) for habeas corpus.
Sirois J. dismissed the application on October 27,
1983, on the grounds that what was really involved
was an attack on the revocation order of the
National Parole Board. In his view the proper
procedure would be to seek certiorari in this
Court.
The applicant in his material has asked for
various forms of remedies: habeas corpus; certio-
rari to quash the decision; an interim injunction to
allow for his release pending final determination of
the matter; and, semble, damages.
I am satisfied that neither an injunction nor
damages are available in this proceeding. Quite
apart from any other legal constraints, this pro
ceeding was not framed as an action nor has the
procedure been appropriate for an action. Nor is
there any other interim relief normally available in
this Court such as habeas corpus or stay of the
revocation order. I have treated the application
essentially as one for certiorari, although I will
consider further the question of habeas corpus or
equivalent relief.
Jurisdiction to Revoke Day Parole
In his material the applicant contends that
because he had already surrendered himself on
September 3, 1982, he had terminated .his own day
parole and there was nothing for the Board to
revoke. Therefore it lacked jurisdiction to make a
revocation order under section 16 of the Parole
Act, R.S.C. 1970, c. P-2, [rep. and sub. S.C.
1976-77, c. 53, s. 29]. His counsel, who was only
brought into the matter three days before the
hearing in this Court, did not press this argument
and I think it is without foundation. It is no doubt
possible to contend that parole cannot be revoked
if it is not yet in effect' or is no longer in effect.
But here the parole was still in effect because the
voluntary surrender by Latham could not have the
legal effect of terminating parole. By section 6
[rep. and sub. S.C. 1976-77, c. 53, s. 23] of the
Parole Act the Board has the exclusive jurisdiction
to revoke parole or terminate day parole.
Fairness or Charter Requirements in the Post-Sus
pension Hearing
It is now clear that common law fairness
requirements apply to such hearings. 2 The effect
on these of the Canadian Charter of Rights and
Freedoms [being Part I of the Constitution Act,
See, e.g., Starr v. National Parole Board, [1983] 1 F.C.
363 (T.D.).
2 Morgan v. National Parole Board, [1982] 2 F.C. 648
(C.A.); Couperthwaite v. National Parole Board, [1983] 1
F.C. 274 (T.D.).
1982, Schedule B, Canada Act 1982, 1982, c. 11
(U.K.)] has been less clearly defined so far. 3
The applicant asserts a denial of fairness and of
Charter requirements because he was not ade
quately informed of the grounds upon which the
Board was considering revocation of his day
parole, was not allowed to be present during most
of the hearing, and was not informed that he had a
right to a lawyer.
With respect to the first point, I believe it is well
taken. It is true that in the discussions with the
police at his home on September 3, 1982, Latham
became fully aware of the nature of the allegations
that had been made against him by his stepdaugh
ter, Diana Lee. He realized that if he did not leave
the home voluntarily his stepdaughter would be
removed by Children's Aid (in fact she was tem
porarily removed in spite of his voluntary return to
prison). But from that point on it would have been
only by conjecture that he would have been aware
of the precise grounds of revocation. The warrant
of apprehension and suspension of parole issued on
September 3, 1982, and served on him in the
institution on September 7, 1982 gave as the
reason for suspension of day parole "to prevent a
breach of a term or condition of parole". The
"Violation Report" also dated September 3 and
sent to him also gave as the reason for suspension
"To prevent a breach of a term or condition of
parole". It did also, under a heading "Summary
(How violation occurred)", say simply "A Child
Welfare matter involving Latham and his step
daughter [sic] in which police requested our
involvement". This must be taken to be an expla
nation of why suspension was necessary "to pre
vent a breach of a term or condition of parole".
Yet if one looks at the parole certificate dated
August 16, 1982, there were no conditions speci
fied except the directions as to where to report for
parole supervision and the times for which the
release was to be effective. There is nothing to
specify what kind of conversations with members
of his family the inmate was required to avoid.
3 See, e.g., R. v. Caddedu; R. v. Nunery (1982), 32 C.R. (3d)
355 (Ont. H.C.).
No other source of information as to the reasons
for suspension or possible revocation was conveyed
to Latham before the hearing by the Board panel
on October 6. I am satisfied that at that hearing
little or nothing was communicated to him in this
respect until after a decision was made. The evi
dence seems clear that just prior to meeting with
Latham and Epp the panel members met with the
parole officer and classification officer. This dis
cussion, according to the affidavit of Mr. Chis-
holm, was "surrounding confidential Police Infor
mation". When Latham and Epp then appeared
before them, Latham according to his own evi
dence expressed regret to the Board for the further
trouble he had caused his family. According to
Latham he then asked what information the Board
was considering and was simply told that they had
all they needed. The only direct evidence of the
hearing put in by the respondents was in the
affidavit of Mr. Chisholm who simply said that
"At the commencement of the hearing the con
cerns before the Board were shared with Mr.
Latham and his assistant and he was given an
opportunity to respond to those concerns." This in
my view is quite inadequate to establish that
Latham was properly informed as to the nature of
the allegations under consideration by the Board.
There is very precise evidence by the applicant in
his affidavit that when he asked Mr. Chisholm
what information they had, Mr. Chisholm replied
"We are quite satisfied with the information we
have received, in fact it is more than adequate." In
the face of that precise evidence, I am not pre
pared to take Mr. Chisholm's vague euphemisms
as evidence of clear information having been con
veyed to Mr. Latham.
After this brief encounter which apparently
lasted five or ten minutes at most, Latham and
Epp were asked to withdraw. The officers
remained with the members of the Board while
they reached a decision, and then Latham and Epp
were admitted to be advised of that decision which
was to revoke his parole.
After this hearing, the applicant was formally
advised by a letter dated October 20, 1982, from
the National Parole Board as to its decision to
revoke his parole. The stated reasons were:
Despite long period of gradual release and therapeutic treat
ment, subject's behaviour (sexual deviance) is totally unaccept
able and given his serious record of sexual assaults he is viewed
as an extremely high risk to the community and revocation of
day parole is seen as being in order.
Subsequently the Board re-examined the revoca
tion decision pursuant to section 22 of the Regula
tions. On January 19, 1983, it sent the applicant a
letter advising that it had decided not to modify
that decision. It stated, inter alia, that:
In this particular instance, suspension and subsequent revoca
tion were effected to protect society.
In my view the procedure adopted by the Na
tional Parole Board here did not meet the stan
dards of fairness appropriate to the situation.
While parole is not a right but a privilege, and
therefore its revocation does not require the judi-
cial-type process more commonly associated with
the concept of natural justice, it does require at
least an observance of fairness. 4 In determining
the requirements of fairness in any given situation
I believe it is necessary to consider what the nature
of the consequences is for the person who has
allegedly been denied fairness. Here the direct
consequence for the applicant was a loss of free
dom of some two and a half years to five years. At
the time of the hearing, if his day parole had not
been revoked he would have enjoyed at least par
tial freedom until April 1983, when he would have
been entitled to release on mandatory supervision
in lieu of completing his sentence in prison to its
Morgan v. National Parole Board, supra, fn. 2.
expiry date of November 29, 1987. Instead, once
his day parole was revoked on October 6, 1982, he
returned to prison and lost the earned remission
which would otherwise have entitled him to release
in April 1983. He must now remain there until at
least October 24, 1985 when he will be entitled, if
he continues to earn remission, to release on man
datory supervision. A decision with such grave
consequences is surely one which must be taken
with a proper regard for fairness.
In this case the major denial of fairness flowed
from the failure to notify the applicant adequately
of the reasons for which revocation was being
considered and to give him an opportunity to
answer the allegations apparently taken into
account by the Board. Section 16 of the Parole Act
authorizes revocation for either breach of the
terms of parole or "to protect society". As noted
above, the parole certificate of August 12, 1982,
stated no terms directly relevant to the situation.
Yet the warrant of apprehension and suspension of
day parole of September 3, 1982 stated that parole
had been suspended to prevent a breach of a term
or condition of parole. The "Violation Report" of
the same date, also sent to him, used similar
language but then, as noted above, referred in its
summary of the violation of parole to "A Child
Welfare matter involving Latham and his step-
daugher [sic]...". These were the written allega
tions given to the applicant prior to the hearing.
The written reasons for its decision given by the
Board after the hearing, on both October 20, 1982,
and January 19, 1983, however, explained it as
being "to protect society".
While there may be a considerable overlapping
between revocation reasons based on a past breach
of terms of parole and those based on a need to
protect society, they are different in their time
orientation and their emphasis. In preparing him-
self for a revocation hearing it would be important
for the applicant herein to know the main focus of
the Board's preoccupations. 5 Therefore the notice
to him of the reasons for possible revocation were
inadequate and unfair in this respect. They were
also unfair in not specifying to him more precisely
the nature of the information the Board had gath
ered, to enable him to comment on it.
Counsel for the Board referred to the confiden
tiality requirements of the Board and to the provi
sions of section 17 of the Parole Regulations
which specify that the Board is not required to
furnish an inmate with any information "described
in paragraphs 54(a) to (g) of the Canadian
Human Rights Act" [S.C. 1976-77, c. 33]. While
he did not specifically relate the information with
held in this case to any specific part of paragraphs
54(a) to (g), it appears to me that the only ones
conceivably relevant would be (c), (d) and (e)
which describe information that:
54....
(c) would be likely to disclose information obtained or pre
pared by any government institution or part of a government
institution that is an investigative body
(i) in relation to national security,
(ii) in the course of investigations pertaining to the detec
tion or suppression of crime generally, or
(iii) in the course of investigations pertaining to the
administration or enforcement of any Act of Parliament;
(d) might, in respect of any individual under sentence for an
offence against any Act of Parliament
(i) lead to a serious disruption of that individual's institu
tional, parole or mandatory supervision program,
(ii) reveal information originally obtained on a promise of
confidentiality, express or implied, or
(iii) result in physical or other harm to that individual or
any other person;
(e) might reveal personal information concerning another
individual;
5 Morgan v. National Parole Board, ibid.
(Section 54 of the Canadian Human Rights Act
has now been replaced by certain sections of the
Privacy Act, S.C. 1980-81-82-83, c. 111, Schedule
II, but was the relevant law at the time of the
hearing in question here.)
First it should be noted that this does not appear
to be an invocation of the actual provisions of the
Canadian Human Rights Act, which in section 54
would require a ministerial order to exempt infor
mation thereunder. Instead the Parole Regula
tions, section 17, merely incorporate by reference
the description of certain information as used in
the Canadian Human Rights Act. It may be ques
tionable whether these Regulations of themselves
would be a sufficient justification for withholding
information from an individual who had made a
proper request under Part IV of that Act for
"general information" concerning himself held in
government data banks. I need not consider that
here as there is nothing to indicate the applicant
made such a request. Moreover the Act in question
has now been replaced by the Privacy Act as
noted.
It appears that subsection 17(3) of the Parole
Regulations would provide a legally effective limi
tation on any common law fairness requirement of
disclosure. It would not be effective, in my view, in
limiting the right which the parolee has under
section 7 of the Canadian Charter of Rights and
Freedoms. Section 7 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.
Unquestionably the parolee's "liberty" is at stake
when he is threatened with revocation of parole. 6
In my view fundamental justice requires proce
dural fairness commensurate with the interest
affected. For the same reason that the common
law would not require here a more judicialized
process normally associated with the concept of
"natural justice", section 7 would not either. But it
6 R. v. Caddedu; R. v. Nunery, supra, fn. 3.
does require fairness and fairness requires at least
an outline being given to the person affected of the
allegations being considered by a tribunal in decid
ing whether to deny that person his liberty. A law
which purports to deny even this is not a reason
able 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. As neither the evidence nor the
argument demonstrated to me in the present case
that section 17 was invoked for this purpose, I
need go no further than to say that it cannot, by
virtue of the Charter, be so invoked. Nor need I
consider the changes which have been effected by
the new Privacy Act, which provide for judicial
review of refusal to supply an individual with such
personal information concerning himself, and by
the amendments to Canada Evidence Act [R.S.C.
1970, c. E-10] (see S.C. 1980-81-82-83, c. 111,
Schedule III) which broaden the grounds for judi
cial review of refusals by government to disclose
information before courts and other tribunals.
The same considerations generally apply to the
denial of the opportunity for the applicant to be
present during much of the "hearing".' Since the
applicant was available and waiting outside, there
can be no justification for excluding him from the
hearing except that of confidentiality. Prima facie
it appears to me that this exclusion also amounted
to a denial of fairness. It remains for the Parole
Board in any future proceedings to demonstrate
that some law exists which limits this right, other
wise guaranteed under section 7 of the Charter,
and that as applied the law represents a reasonable
limitation on that right.
The applicant also contended that there had
been a denial of fairness because the Board failed
to notify him that he was entitled to counsel. He
invoked paragraph 10(b) of the Charter, which
provides that
10. Everyone has the right on arrest or detention
7 Re Mason and the Queen (1983), 43 O.R. (2d) 321 (H.C.).
(b) to retain and instruct counsel without delay and to be
informed of that right; ...
I have concluded that this guarantee does not
apply to the present situation. While counsel cited
no authority on this point, it appears to me that
this paragraph is designed to cover the situation of
initial arrest or detention. The phrase "on arrest or
detention" would suggest as much. Otherwise, in
the context of prison there would be a continuing
duty, day by day, for prison authorities to advise
inmates of their right to counsel.
In my view, however, the guarantee in section 7
of the Charter requires that a parolee should have
every reasonable opportunity to be represented by
counsel at a revocation hearing. The importance of
the outcome to him, at least in a case like the
present, means that a fair procedure requires that
he should have counsel if he so wishes and if he
can find counsel willing to serve. Sufficient time
should be assured to him to make all reasonable
efforts to achieve this.
I am not satisfied from the evidence here that
Latham was in any way denied counsel by the
Board. He tried to get a lawyer to represent him
but his efforts failed. He apparently also consented
to the hearing being held earlier than originally
planned. Therefore I would not quash the decision
of the Board here on the ground of failure to notify
of the right to, or denial of, counsel.
This does not mean, however, that the Board
can remain indifferent to whether a parolee has
counsel in such circumstances. It must provide a
hearing procedure which is fair, and the presence
of counsel in a matter of this gravity will be an
important factor in assuring the fairness of the
process. Notwithstanding the urgings of counsel
for the applicant here that I order the Board, or
appropriate federal or provincial agencies, to pro
vide counsel in any future hearing concerning the
revocation of the applicant's parole, I do not
believe it to be within the authority of this Court
to do so. But if the Board proceeds in future with
hearings such as these involving such grave conse
quences, and is not able to demonstrate that it took
some initiatives to give the parolee every reason
able opportunity to retain counsel, the integrity of
its processes will in my view be vulnerable to
attack on the ground of denial of fairness. 8
Section 20 of the Parole Act and section 7 of the
Charter
Counsel for the applicant argued that section 20
[rep. and sub. S.C. 1976-77, c. 53, s. 31] of the
Parole Act, providing as it does for automatic
cancellation of statutory and earned remission
upon revocation of parole for whatever reason, is
contrary to fundamental justice and thus contrary
to section 7 of the Charter. This argument pro
ceeds on the assumption that "fundamental jus
tice" as referred to in section 7 imposes a substan
tive test of the justness or fairness of laws, not
merely a test as to the procedures by which life,
liberty, or security of the person may be denied.
She thus contended that a complete nullification of
all remission, no matter how long, for any reason
upon which parole can be revoked, is "draconian"
and thus contrary to fundamental justice.
I am unaware of any authority binding on me as
to this interpretation of section 7 of the Charter
and I reject it. It is clear from the legislative
history of section 7 that it was intended to guaran
tee only procedural justice or fairness. The poten
tially broader language of the comparable provi
sion in the Canadian Bill of Rights, R.S.C. 1970,
Appendix III, paragraph 1(a) which referred to
"due process of law" was obviously deliberately
avoided. The language employed in paragraph 2(e)
of the Bill, which referred to "fundamental jus
tice", was instead used. These words had been
interpreted by the Supreme Court' to have a
procedural content and it can be assumed that the
words were subsequently employed in the Charter
in this sense. Indeed, to give them a substantive
8 See Morgan v. National Parole Board, supra, fn. 2, at p.
656.
9 Duke v. The Queen, [1972] S.C.R. 917, at p. 923.
content would be to assume that those legislative
bodies and governments which adopted the Char
ter were prepared to commit to initial determina
tion by the courts issues such as the propriety of
abortion or capital punishment or the proper
length of prison sentences. This flies in the face of
history.
Remedies Available
I was invited not only to quash the revocation
decision of the Board but also to issue habeas
corpus for the immediate release of the applicant.
It now appears to be well settled that, with minor
exceptions not relevant here, the Federal Court,
Trial Division cannot issue habeas corpus. 10 Nor
in my view does section 24 of the Charter alter
that situation, as it only allows a "court of com
petent jurisdiction" to give remedies it is already
empowered to give but to give them on new
(Charter) grounds. This situation is somewhat
anomalous since the present applicant first sought
habeas corpus in the Saskatchewan Court of
Queen's Bench which held it could not give such a
remedy, involving as it did judicial review of a
federal board. However, this Court can adequately
deal with the merits by way of certiorari. When
the order is quashed there will be no authority for
detaining the applicant since the suspension of his
day parole is no longer effective." As he was
entitled to be released on mandatory supervision in
April 1983, he should now be released and the
Parole Board cannot resort to pre-release conduct
to suspend his parole again pursuant to section 16
of the Act. 12
10 Ex p. Quevillon (1974), 20 C.C.C. (2d) 555 (F.C.T.D.);
Noonan v. The Queen in right of Canada et al., judgment dated
March 17, 1983, Federal Court, Appeal Division, A-277-83,
not reported.
" Re Morgan and the Queen (1982), 1 C.C.C. (3d) 436
(Man. C.A.); Re Mason and the Queen, supra, fn. 7.
12 Truscott v. Dir. of Mountain Institution (1983), 33 C.R.
(3d) 121 (B.C.C.A.), approved in Oag v. The Queen et al.; R. v.
Moore, [1983] 1 S.C.R. 658; 41 O.R. (2d) 271; 33 C.R.
(3d) 97.
Conclusion
I have therefore concluded that certiorari should
issue to remove into this Court the decision of the
National Parole Board of October 6, 1982, as
subsequently confirmed by the Board, revoking the
applicant's day parole, and that the said decision
and any orders or warrants based thereon be
quashed. The applicant is entitled to costs.
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