T-900-84
Wayne William O'Brien (Applicant)
v.
National Parole Board (Respondent)
Trial Division, McNair J.—Ottawa, May 15 and
November 23, 1984.
Parole — Certiorari — National Parole Board seven-mem
ber panel denying request for unescorted temporary absence
following hearing by three members thereof members present
thereat voting for, absent members voting against — Hearing
not required by legislation — Whether presence of full panel
of voting members required at hearing — Procedure not in
violation of Charter s. 7 right not to be deprived of liberty
except in accordance with principles of fundamental justice
but violating common law fairness principle — Canadian
Charter of Rights and Freedoms, being Part I of the Constitu
tion Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11
(U.K.), s. 7 — Parole Act, R.S.C. 1970, c. P-2, ss. 2 (as am. by
S.C. 1976-77, c. 53, s. 17), 6 (as am. idem, s. 23), 8, 9 (as am.
idem, s. 24), 11 (as am. idem, s. 26) — Penitentiary Act,
R.S.C. 1970, c. P-6, ss. 26.1(1), 26.2 (as enacted by S.C.
1976-77, c. 53, s. 42) — Parole Regulations, SOR/78-428, ss.
2, 14, 15 (as am. by SOR/81-487, s. 1), 23(2),(3) (French
version as am. by SOR/81-487, s. 4), 24.
Constitutional law — Charter of Rights — Right to liberty
— Application for unescorted temporary absence by prisoner
— Seven-member panel of National Parole Board denying
parole following hearing by three members thereof members
present thereat voting in favour but majority, absent at hear
ing, voting against — Procedure not in violation of Charter s. 7
— Hearing not required by legislation — Unescorted tempo
rary absence matter of privilege, not constitutionally
entrenched right — Word "liberty" in Charter s. 7 not to be
read in isolation — However, decision of Parole Board in
violation of common law principle of fundamental fairness —
Canadian Charter of Rights and Freedoms, being Part I of the
Constitution Act 1982, Schedule B, Canada Act 1982, 1982,
c. 11 (U.K.), s. 7.
Judicial review — Prerogative writs — Certiorari — Na
tional Parole Board seven-member panel denying prisoner's
request for unescorted temporary absence following hearing by
three members thereof members present voting for, absentees
later voting against — Hearing not required by legislation —
Once administrative authority grants hearing, even when no
legal obligation to do so, hearing to be conducted in accord
ance with rudiments of natural justice — Absent members'
knowledge gleaned from record without hearing applicant
deemed ignorance sufficient to preclude exercise of fair judg
ment on merits, thereby violating common law principle of
fundamental fairness — Full panel of voting members of
Board to hear application — Parole Act, R.S.C. 1970, c. P-2,
ss. 2 (as am. by S.C. 1976-77, c. 53, s. 17), 6 (as am. idem, s.
23), 8, 9 (as am. idem, s. 24), 11 (as am. idem, s. 26) —
Penitentiary Act, R.S.C. 1970, c. P-6, ss. 26.1(1), 26.2 (as
enacted by S.C. 1976-77, c. 53, s. 42) — Parole Regulations,
SOR/78-428, ss. 2, 14, 15 (as am. by SOR/81-487, s. 1),
23(2),(3) (French version as am. by SOR/81-487, s. 4), 24.
The applicant, a prisoner serving a life sentence, applied to
the National Parole Board for a three-day unescorted tempo
rary absence. Although not required by legislation to do so,
three members of the seven-member panel of the Board in
charge of the case attended a hearing at which they interviewed
the applicant. Those three members voted in favour of granting
the request but the four others later voted, in absentia and
without having interviewed the applicant, against granting it.
That decision is attacked by an application for certiorari or
mandamus on the grounds that the common law duty of
fairness or section 7 of the Charter required all the members of
the Board who voted on the application to personally interview
the applicant.
Held, the motion is granted. While there is no express
statutory requirement for an in-person hearing or interview by
all voting Board members, once it has been decided to embark
upon a hearing, it automatically follows that such hearing must
be conducted in accordance with the rudiments of natural
justice. The knowledge gleaned by the absent members from
the written record only without having heard the applicant in
person, must be deemed to be ignorance sufficient to preclude
the exercise of any fair judgment upon the merits of the
application. The full panel of voting members of the Board
must hear the application and the failure to do so constitutes a
violation of the principle of fundamental fairness.
However, the applicant's right not to be deprived of his right
to liberty except in accordance with the principles of fundamen
tal justice, guaranteed by section 7 of the Charter, has not been
violated. Unescorted temporary absence is not a constitutional
ly enshrined right, it is merely a privilege, the request for which
was denied in accordance with the clearly mandated legislative
provisions. Furthermore, the word "liberty" in section 7 of the
Charter should not be read in isolation and cannot be taken to
create an absolute ideal. Section 7 was intended for the protec
tion of liberty against arbitrary interference and declared the
right not to be deprived of it except in accordance with the
principles of fundamental justice.
CASES JUDICIALLY CONSIDERED
APPLIED:
Nicholson v. Haldimand-Norfolk Regional Board of
Commissioners of Police, [1979] 1 S.C.R. 311; Mar-
tineau v. Matsqui Institution Disciplinary Board, [1980]
1 S.C.R. 602; Selvarajan v. Race Relations Board,
[1976] 1 All E.R. 13 (C.A.); Re Mason and The Queen
(1983), 7 C.C.C. (3d) 426; 1 D.L.R. (4th) 712 (Ont.
H.C.); The Queen, et al. v. Operation Dismantle Inc., et
al., [1983] 1 F.C. 745 (C.A.); R. v. Committee on Works
of Halifax City Council, Ex p. Johnston (1962), 34
D.L.R. (2d) 45 (N.S.S.C.); R. v. Minister of Labour, Ex
parte General Supplies Co. Ltd. (1964), 47 D.L.R. (2d)
189 (Alta. S.C.).
DISTINGUISHED:
Greenholtz v. Nebrasca Penal Inmates, 442 U.S. 1
(1979).
REFERRED TO:
R. v. Cadeddu (1982), 32 C.R. (3d) 355; 146 D.L.R.
(3d) 629 (Ont. H.C.).
COUNSEL:
David P. Cole for applicant.
J. A. Pethes for respondent.
SOLICITORS:
David P. Cole, Toronto, for applicant.
Deputy Attorney General of Canada for
respondent.
The following are the reasons for order ren
dered in English by
MCNAIR J.: The applicant, who is a prisoner
serving out in penitentiary a sentence of life
imprisonment for second degree murder, has
applied by motion for an order in the nature of
certiorari quashing a decision rendered by the
National Parole Board denying him unescorted
temporary absence. The applicant seeks in the
alternative an order in the nature of mandamus
requiring the National Parole Board to render a
decision granting unescorted temporary absence
or, in the alternative, an order requiring a new
hearing consistent with the principles of funda
mental justice and the duty to act fairly. The
grounds asserted are set out in the notice of motion
as follows:
1. That the procedure followed in this case by the National
Parole Board in denying the Applicant his parole, violates
section 7 of the Charter of Rights and Freedoms (hereinafter
referred to as the Charter) because the determining Board
members cast their vote for denying parole without providing
a hearing to the Applicant.
2. That the procedure followed in this case by the National
Parole Board was procedurally unfair because the deciding
Board members did not see the Applicant nor hear his
submissions in person before rendering their decision.
3. That the Federal Court of Canada is a court of competent
jurisdiction to grant the relief sought pursuant to section 24
of the Charter.
The applicant is presently incarcerated at Wark-
worth Penitentiary in the Province of Ontario. On
the recommendation of his case management
team, he applied for a three-day unescorted tem
porary absence from prison for the purpose of
visiting his aged grandmother then living in Wind-
sor, Ontario. Three members of the National
Parole Board attended a hearing at Warkworth
and interviewed the applicant. He was questioned
regarding his conviction, conduct in prison, and his
reasons for the requested temporary absence. He
was advised at the conclusion of the hearing by the
chairperson, Ms. Benson, that the three Board
members had voted affirmatively to grant his
request for unescorted temporary absence but that
his application required the additional votes of
four Board members in Ottawa, and that he would
be advised by mail of the result.
On January 24, 1984 the National Parole Board
wrote a letter to the applicant in the following
terms:
Dear Mr. O'Brien:
Further to your application for Unescorted Temporary
Absence, the National Parole Board recently made a careful
review of your case and, further, had an interview with you on
11 January 1984. Your file was then forwarded to the Ottawa
Headquarter's [sic] of the Board for the required additional
votes.
At that time, the Board decided to deny Unescorted Temporary
Absence.
This decision was rendered in view of the following reasons:
"Poor ability to handle stress or examine himself, and sufficient
evidence on file to indicate that Mr. O'Brien is still an undue
risk for any type of conditional release."
Please note that the decision to deny Temporary Absence is not
subject to re-examination.
Yours sincerely,
(Sgd.) E. Warder
Elizabeth Warder
Correspondence and
Information Officer
The Board wrote the applicant another letter on
February 15 in answer to his letter of January 28
requesting a re-examination, which stated in part
as follows:
With respect to your temporary absence application, as you
probably know, seven (7) National Parole Board members were
reviewing your case. The 3 members who interviewed you did
vote in favour of an unescorted temporary absence program as
described by Ms. Benson; however, as the voting process con
firmed, you did not get enough positive votes to be granted that
temporary absence program ....
The issues posed are simply these:
(1) whether the common law duty of fairness
necessitates that an applicant for unescorted
temporary absence be personally interviewed by
all the members of the National Parole Board
who vote on the application; and
(2) whether, in the alternative, such in-person
procedure is mandated by section 7 of the
Charter.
In essence, counsel for the applicant argues that
an injustice was perpetrated because the final
result of the hearing was dictated by the votes of
four absent members of the Board in Ottawa, who
neither saw the applicant nor heard his story,
despite the fact that the statutory provisions do not
mandatorily require a personal interview.
He submits, in the alternative, that where the
Board elects to grant a personal interview elemen
tary fairness requires that all members of the
Board who decide the fate of the application must
be personally present at the interview.
Counsel for the respondent contends that there
is no statutory provision requiring a hearing and
that what was done here was simply a review of an
application for unescorted temporary absence. He
draws the distinction between the revocation of
parole involving some sort of status of conditional
liberty and the granting or denial of a privilege.
On this basis, he rejects section 7 of the Charter.
Counsel for the respondent conceded that a - duty of
fairness could well apply but only in the limited
sense that a hearing once embarked on might
conceivably attract the fairness principle to compel
a hearing by all Board members required to vote.
As a starting point, it is necessary to consider
the concept of unescorted temporary absence and
its implications with reference to the statutory
framework and scheme of the legislation as
embodied in the applicable provisions of the
Parole Act, R.S.C. 1970, c. P-2, the Penitentiary
Act, R.S.C. 1970, c. P-6, and the Parole Regula
tions, SOR/78-428, all as amended.
Section 2 of the Parole Act [as am. by S.C.
1976-77, c. 53, s. 17] defines and distinguishes
"parole" and "day parole". There is no express
definition of "unescorted temporary absence".
Parole is the authority granted to a prisoner to be
at large during the term of his imprisonment. Day
parole is a more limited parole by the terms and
conditions of which a prisoner is required to return
to prison from time to time during its duration or
after a specified period. Except where otherwise
indicated, parole is defined as including day
parole.
Section 6 [rep. and sub. S.C. 1976-77, c. 53, s.
23] of the Act is very relevant and reads:
6. Subject to this Act, the Penitentiary Act and the Prisons
and Reformatories Act, the Board has exclusive jurisdiction
and absolute discretion to grant or refuse to grant parole or a
temporary absence without escort pursuant to the Penitentiary
Act and to revoke parole or terminate day parole.
Section 8 requires the Board "at the times pre
scribed by the regulations" to review the case of
every inmate who has applied or is eligible for
parole and to "decide whether or not to grant
parole".
Section 9 [rep. and sub. S.C. 1976-77, c. 53, s.
24] of the Act authorizes the Governor in Council
to make regulations, inter alla:
9....
(a) prescribing the manner in which the Board is to review
cases of inmates pursuant to section 8 and prescribing when
the review must be by way of a hearing before the Board;
(b) prescribing the portion of the terms of imprisonment that
inmates or classes of inmates must serve before temporary
absence without escort may be authorized pursuant to section
26.1 or 26.2 of the Penitentiary Act or parole may be
granted;
(d) prescribing the times when the Board must review cases
of inmates serving sentences of imprisonment;
(J) prescribing the minimum number of members of the
Board who must vote on a review of a case of an inmate or on
a hearing of a parole application by an inmate, and prescrib
ing the minimum number of affirmative votes required in any
such review or hearing to grant a parole;
(o) providing for such other matters as are necessary to carry
out the provisions of this Act or to facilitate the carrying out
of the functions of the Board.
Section 11 [rep. and sub. S.C. 1976-77, c. 53, s.
26] of the Act states:
11. Subject to such regulations as the Governor in Council
may make in that behalf, the Board is not required, in consider
ing whether parole should be granted or revoked, to personally
interview the inmate or any person on his behalf.
Section 6 of the Parole Act made express refer
ence to the Penitentiary Act in dealing with the
Board's exclusive jurisdiction to grant temporary
absence without escort. The applicable section of
the Penitentiary Act is subsection 26.1(1) [as
enacted by S.C. 1976-77, c. 53, s. 42], which
reads:
26.1 (1) Subject to any regulations made pursuant to the
Parole Act in that behalf, where, in the opinion of the National
Parole Board, it is necessary or desirable that an inmate should
be absent, without escort, for medical or humanitarian reasons
or to assist in the rehabilitation of the inmate, the absence may
be authorized by the Board for an unlimited period for medical
reasons and for a period not exceeding fifteen days for humani
tarian reasons or to assist in the rehabilitation of the inmate.
The Parole Regulations define [in section 2]
"full parole" as parole other than day parole.
"Temporary absence" is said to mean absence
without escort authorized under section 26.1 or
26.2 of the Penitentiary Act. Section 14 of the
Regulations provides for the review for full parole
of an inmate's case as required by paragraph
8(1)(a) of the Act. Section 15 [as am. by SOR/81-
487, s. 1] of the Regulations says that the review
referred to in section 14 must be by way of hearing
before not less than two Board members, unless
the inmate waives the hearing or is a federal
inmate confined in a provincial institution. There
is nothing in the Act or Regulations to require any
hearing of an application for unescorted temporary
absence nor is the Board required to even personal
ly interview the applicant or any person on his
behalf.
In this case, the applicant was personally inter
viewed by three Board members who voted in
favour of the request for unescorted temporary
absence. This affirmative result was overridden by
the negative vote given in absentia by the four
other Board members.
Sections 23 and 24 of the Parole Regulations
deal with the general matter of voting. Subsections
23(2) and (3) [French version as am. by SOR/81-
487, s. 4] and paragraph 24(1)(a) are the ones
which are particularly applicable to voting on a
review to grant or deny unescorted temporary
absence. The number of members of the Board
required to vote in this instance was seven.
Before the Charter became law of the land,
several landmark decisions of the Supreme Court
of Canada had extended to the sphere of adminis
trative or executive decision-making the general
notion of a duty to act fairly in investigations,
reviews or other like administrative processes,
having regard to the circumstances of each par
ticular case and the subject-matter involved. The
fairness concept was cast much in the same mould
as the principle of natural justice but its form
reached beyond judicial and quasi-judicial func
tions to the administrative sphere. The cases I
refer to are Nicholson v. Haldimand-Norfolk
Regional Board of Commissioners of Police' and
Martineau v. Matsqui Institution Disciplinary
Board. 2 In Nicholson, Laskin C.J. stated the fair
ness principle at page 324:
He should be treated "fairly" not arbitrarily. I accept, there
fore, for present purposes and as a common law principle what
Megarry J. accepted in Bates v. Lord Hailsham, at p. 1378,
"that in the sphere of the so-called quasi-judicial the rules of
natural justice run, and that in the administrative or executive
field there is a general duty of fairness".
The fairness doctrine took a long step forward in
the Martineau case where the Supreme Court held
that the common law remedy of certiorari lay to
redress a violation of the duty to act fairly in an
administrative decision involving prison discipline.
The reasons of the minority members of the Court
expressed by Dickson J. are broader in scope than
those of the majority, although the result was
unanimous.
The underlying rationale is stated by Mr. Jus
tice Dickson at pages 622-623:
The authorities to which I have referred indicate that the
application of a duty of fairness with procedural content does
not depend upon proof of a judicial or quasi-judicial function.
Even though the function is analytically administrative, courts
may intervene in a suitable case.
In the case at bar, the disciplinary board was not under
either an express or implied duty to follow a judicial type of
procedure, but the board was obliged to find facts affecting a
subject and to exercise a form of discretion in pronouncing
judgment and penalty. Moreover, the board's decision had the
effect of depriving an individual of his liberty by committing
him to a "prison within a prison". In these circumstances,
elementary justice requires some procedural protection. The
rule of law must run within penitentiary walls.
' [1979] 1 S.C.R. 311.
2 [1980] 1 S.C.R. 602.
In my opinion, certiorari avails as a remedy wherever a
public body has power to decide any matter affecting the rights,
interests, property, privileges, or liberties of any person.
In the Nicholson case, the Supreme Court [at
pages 326-327] approved of what Lord Denning
had to say about the duty to act fairly in Selvara-
jan v. Race Relations Board: 3
... In recent years we have had to consider the procedure of
many bodies who are required to make an investigation and
form an opinion ... In all these cases it has been held that the
investigating body is under a duty to act fairly; but that which
fairness requires depends on the nature of the investigation and
the consequences which it may have on persons affected by it.
The fundamental rule is that, if a person may be subjected to
pains or penalties, or be exposed to prosecution or proceedings,
or deprived of remedies or redress, or in some such way
adversely affected by the investigation and report, then he
should be told the case made against him and be afforded a fair
opportunity of answering it. The investigating body is, however,
the master of its own procedure. It need not hold a hearing. It
can do everything in writing. It need not allow lawyers. It need
not put every detail of the case against a man. Suffice it if the
broad grounds are given. It need not name its informants. It
can give the substance only. Moreover it need not do everything
itself. It can employ secretaries and assistants to do all the
preliminary work and leave much to them. But, in the end, the
investigating body itself must come to its own decision and
make its own report. (Emphasis added.)
Then came the Canadian Charter of Rights and
Freedoms." Section 7 of the Charter reads:
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.
In R. v. Cadeddu,s Mr. Justice Potts, with
characteristic boldness, broke new ground by hold
ing that section 7 of the Charter requires that a
parolee be given the opportunity for an in-person
hearing before his parole can be revoked. The
principle of the case is thus stated at page 368
C.R..
I turn now to consider whether the applicant's rights under s.
7 of the Charter have been violated. It appears to me that there
are two questions that must be addressed: was the applicant at
liberty while on parole, and, if so, was he deprived of liberty
3 [ 1976] 1 All E.R. 13 (C.A.).
4 Part I of the Constitution Act, 1982, Schedule B, Canada
Act 1982, 1982, c. 11 (U.K.).
5 (1982), 32 C.R. (3d) 355; 146 D.L.R. (3d) 629 (Ont.
H.C.).
except in accordance with the principles of fundamental
justice?
My answer to the first question is: yes, the applicant was at
liberty during his parole. Although it is clear law that parole is
a privilege which an inmate cannot claim of right, that while on
parole he is serving his sentence of imprisonment, and that a
decision to grant or revoke parole is a decision as to where an
inmate shall serve his sentence (see McCaud, Howarth, and
Mitchell, all supra), none of these considerations, in my view, is
helpful in assessing what the applicant's condition was during
his parole. His condition, obviously, was that he had a condi
tional or qualified liberty to be at large during the term of his
imprisonment. Although it was a qualified liberty, which might
be revoked, that, in my view, is sufficient to attract the
constitutionally mandated protections of s. 7 of the Charter.
Accordingly, the board, if it was not to violate the applicant's
rights, could revoke the applicant's parole only in accordance
with the principles of fundamental justice.
I have reviewed the authorities submitted by
counsel. It is unnecessary to elaborate because, in
my view, each case falls to be determined by its
particular facts. What may be viewed in one case
as the contravention of a guaranteed Charter right
or the roughshod violation of 'fair play in action'
may in another game situation with different play
ers be seen to be fair and legal.
A case which bears close similarity to the one at
bar is Re Mason and The Queen. 6 Here Mr.
Justice Ewaschuk held that the procedure pre
scribed by paragraph 24(2)(b) of the Parole
Regulations, whereby if the two members of the
Parole Board voting on a review of mandatory
supervision suspension are unable to agree the
Chairman may delegate the casting of the deciding
vote to a third person who has not heard the
inmate's representations, is contrary to the guaran
tee to fundamental justice in section 7 of the
Canadian Charter of Rights and Freedoms. The
learned Judge put forward these grounds (at page
430 C.C.C.):
... on considering whether the procedure adopted in this case
was a "fair and decent procedure", I find it was not. Instead, it
was an impersonal procedure based on a paper record of what
should be an in-person hearing and not a review proceeding.
The fact that a further non in-person appeal review is provided
is in my view beside the point.
6 (1983), 7 C.C.C. (3d) 426; 1 D.L.R. (4th) 712 (Ont. H.C.).
Mindful that all s. 7 of the Charter guarantees is a minimum
safeguard to a fair procedure which may vary within the
individual circumstances, I find that s. 24(2)(b) of the Parole
Regulations is inherently unfair. By violating s. 7 of the
Charter s. 24 (2)(b) is therefore ultra vires and by virtue of s.
52 of the Constitution Act, 1982 of no force and effect.
He went on to conclude [at pages 430-431]:
... what the applicant merits is a fair and decent hearing which
can be accomplished by a new panel of three Board members
personally attending to decide whether the applicant merits
liberty or detention. It does not follow that three members must
sit on all hearings though a majority must. However, where a
majority decision is not initially reached, an inmate must be
afforded an in-person hearing before each Board member
necessary to constitute a full panel in the particular case.
Counsel for the respondent placed much reliance
on Greenholtz v. Nebraska Penal Inmates,' a case
before the Supreme Court of the United States,
involving an initial review hearing for parole of a
prison inmate. The procedure entailed an interview
of the inmate and reception of letters or statements
in support of the claim for release, which was
followed. The Parole Board determined from its
examination of the record and the personal inter
view that the inmate was not a good risk for
release and denied parole, informing the inmate of
its reasons. It was objected that the Board's proce
dure constituted a denial of due process. The
majority of the Court held otherwise on the ground
that there was a distinction between discretionary
parole release and parole revocation and that the
affording of an opportunity to be heard and the
specifying of reasons for denial reasonably com
plied with the requirements of due process in the
case of the former. The essential ratio of the
majority decision is contained in the following
passage from the judgment of Burger C.J. [at page
15]:
At the Board's initial interview hearing, the inmate is permitted
to appear before the Board and present letters and statements
on his own behalf. He is thereby provided with an effective
opportunity first, to insure that the records before the Board
7 442 U.S. 1 (1979).
are in fact the records relating to his case; and second, to
present any special considerations demonstrating why he is an
appropriate candidate for parole. Since the decision is one that
must be made largely on the basis of the inmate's files, this
procedure adequately safeguards against serious risks of error
and thus satisfies due process.
I fail to see how the case conclusively supports
the respondent's position in view of the procedural
requirements for personal interview.
The first question requiring answer is whether
the vote in absentia of the four members of the
Board who did not see and hear the applicant is a
clear and manifest violation of section 7 of the
Charter in depriving the applicant of his right to
liberty in a manner not in accordance with the
principles of fundamental justice?
The legislative scheme did not require any hear
ing but one was held. The three members present
who personally interviewed the applicant voted in
favour of the request for unescorted temporary
absence. The subject-matter of the application was
simply a request. There was no question of the
deprivation of any constitutionally enshrined right
of liberty, conditional or otherwise, such as might
occur with the revocation of parole and its conse
quences on earned remission or the suspension of
mandatory supervision. The applicant made a
request for the granting of a privilege which was
denied in accordance with the clearly mandated
legislative provisions. To my mind, a distinction
must be drawn between a denial affecting the
expectation of enjoyment of some anticipated
privilege of liberty and the deprivation of some
right of liberty, presently existing and enjoyed,
where such deprivation is contrary to fundamental
justice.
The use of the word "liberty" in section 7 of the
Charter cannot be taken to create an absolute
ideal standing in isolated grandeur. There is logic
in the argument that the word must not be dis
sociated from the complete phrase "liberty and
security of the person" which, read in context of
the whole, generally connotes a normal and
accepted concept of freedom from arrest and
detention and the protection of that broad concept
of liberty against arbitrary interference. Even if
read separately, the text emphasis of section 7 is
on the protection of the guaranteed right to liberty
in the sense that a person cannot be deprived of it
except in accordance with the principles of funda
mental justice, rather than on liberty in the
abstract. In my view, courts should be reasonably
circumspect about interpreting any given section
of the Charter in such a wide and dissociative
manner as to substitute their opinions for those of
Parliament. The words of Mr. Justice Pratte in
The Queen, et al. v. Operation Dismantle Inc., et
a1. 8 carry a timely message (at page 752):
The Charter was enacted for the purpose of protecting certain
fundamental rights and freedoms; it was not meant to confer
legislative and executive powers on the judges.
For the foregoing reasons, it is my opinion that
the administrative decision to deny the applicant's
request for unescorted temporary absence did not
constitute the deprivation of any constitutionally
enshrined right to liberty under section 7 of the
Charter.
The remaining question is whether the duty to
act fairly requires an in-person hearing or inter
view by all members of the Board required to vote
on the application for unescorted temporary
absence. It will be recalled that three members of
the Board voted affirmatively at the conclusion of
the hearing. The remaining complement of four
members required to complete the vote overruled
their in-person colleagues by voting in absentia to
deny the application. There is no express statutory
requirement for an in-person hearing or interview
by all voting Board members. The decision is an
administrative one which must stand or fall
according to the proper application of the common
law duty of fairness.
The subject-matter under consideration was the
granting of a request for a temporary sort of
liberty and not the revocation or curtailment of an
existent liberty. The procedure envisaged was that
of review or investigation rather than that of a
full-scale hearing with all the usual panoply of
safeguards, such as, the right to know in advance
8 [1983] 1 F.C. 745 (C.A.).
the adverse case against the party, the right of the
party to counsel or at least assistance in the con
duct of his case, and the right generally to make
full answer to the case against him.
In my opinion, what the case essentially comes
down to is simply this—once having extended the
latitude of fair review procedure and embarked on
a hearing, does the duty of fairness then dictate
that all members of the Board required to vote
must have personally seen and heard the applicant
before casting the final ballot? The case of volun
tary hearings poses something of a very real
conundrum in the context of determining the
proper balance between administrative practicabil
ity and the minimum requirements of fairness, as
eminent text writers have been wont to point out. 9
Room must always be left for the implication of an
impression of justice appearing to be done. de
Smith gives the answer with this clear statement of
principle at pages 219-220:
Must he who decides also hear? In general the answer is in
the affirmative. It is a breach of natural justice for a member of
a judicial tribunal or an arbitrator to participate in a decision if
he has not heard all the oral evidence and the submissions. The
same principle has been applied to members of administrative
bodies who have taken part in decisions affecting individual
rights made after oral hearings before those bodies at which
they have not been present; "for bias and ignorance alike
preclude fair judgment upon the merits of a case."
In R. v. Committee on Works of Halifax City
Council, Ex p. Johnston 10 , the Supreme Court of
Nova Scotia held that a demolition order of the
works committee of the city council was invalid
and must be quashed because four members of the
committee voting for demolition had not been
present at all meetings where evidence had been
given and argument made, which was contrary to
the principles of natural justice. Mr. Justice Mac-
Donald puts forward this broad ground as the
de Smith's Judicial Review of Administrative Action, 4th
ed., pp. 220, 237-238. Reid and David, Administrative Law and
Practice, 2nd ed., pp. 20-21.
10 (1962), 34 D.L.R. (2d) 45 (N.S.S.C.).
basis of decision at page 57:
... where one or more members of an adjudicatory body (such
as a City Council) has failed to attend meetings at which
important aspects of a matter involved in the adjudication have
been presented or discussed, he thereupon becomes disqualified
from participating in the final deliberations of that body or in
the decision of that body upon that matter; and that if he does
so participate therein, the decision of that body is vitiated
thereby and must be set aside.
I reached this conclusion first upon the basis of the close
analogy between the situation in question and that of a member
disqualified by bias; for bias and ignorance alike preclude their
judgment upon the merits of a case and affect the exercise of a
proper influence upon others. (Emphasis added.)
There is too the identifiable thread of a broad
principle to the effect that once an administrative
authority elects to embark upon a hearing, even
though not legally obliged so to do, then it
automatically follows that such hearing must be
conducted in accordance with the rudiments ` of
natural justice."
In Martineau (No. 2), supra, Mr. Justice Dick-
son formulated the following test to be applied in
cases involving administrative decision-making (at
page 631):
8. In the final analysis, the simple question to be answered is
this: Did the tribunal on the facts of the particular case act
fairly toward the person claiming to be aggrieved? It seems to
me that this is the underlying question which the courts have
sought to answer in all the cases dealing with natural justice
and with fairness.
Applying this test to the particular circum
stances of this case, I find that the Board did not
act fairly toward the applicant. Fundamental fair
ness surely must dictate that the applicant should
have been afforded an in-person hearing before all
the members of the Board who had to vote on his
application. The critical, determinative vote in this
instance was cast by four members voting in
absentia who had never seen the applicant nor
heard his plea but instead, presumably, based their
decision on the file record. Indeed, there is no
evidence whatever of how the absent members
addressed themselves to the question calling for
their decision. In any event, their knowledge
gleaned only from the written record without
" de Smith, ibid., at p. 237. R. v. Minister of Labour, Ex
parte General Supplies Co. Ltd. (1964), 47 D.L.R. (2d) 189
(Alta S.C.).
having heard the applicant in person must be
deemed to be ignorance sufficient to preclude the
exercise of any fair judgment upon the merits of
the application. In my opinion, the full panel of
voting members of the Board must hear the
application and the failure to do so constitutes a
violation of the principle of fundamental fairness.
In the result, the decision of the Board is invalid.
For the foregoing reasons, the applicant's
motion is granted, with costs.
ORDER
1. The decision of the National Parole Board
denying the applicant's application for unescorted
temporary absence is hereby quashed.
2. The Board shall forthwith grant the applicant a
new hearing before the full panel of Board mem
bers required to determine the merits of the
application.
3. The applicant shall have his costs of and inci
dental to the motion.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.