T-1986-87
Ernest Scott (Applicant)
v.
National Parole Board (Respondent)
INDEXED AS: SCOTT V. CANADA (NATIONAL PAROLE BOARD)
Trial Division, Strayer J.—Ottawa, October 6 and
19, 1987.
Parole — Day parole cancelled based on psychiatric report
filed after first hearing — Report constituting "new informa
tion" under Parole Regulations, s. 14.2(1) — Board's duty to
further rehabilitation while protecting society — That rehear-
ing by different Board members not denial of natural justice
principle "he who decides must hear" — Rehearing to focus on
question of whether some factors changed since previous deci-
sion-maker hearing matter.
Constitutional law — Charter of Rights — Life, liberty and
security — Parole Regulations, s. 14.2(1) permitting review
and reversal of decision to grant parole at later date based on
new facts or information — No denial of fairness — Duty to
assess current condition of inmate; not adjudicating guilt or
innocence as to past events — Content of fairness varying with
nature of proceeding— S. 14.2 review administrative function
— Res judicata not applicable.
Estoppel — Whether Parole Board estopped from changing
conclusion applicant psychiatrically suitable for release on day
parole — Same issues, same parties — Act and Regulations
intended to keep parole decision under continuing review — S.
14.2(1) contemplating reversal of decision.
This is an application for certiorari to quash a decision of the
National Parole Board, cancelling the applicant's day parole.
The decision to grant day parole commencing at a later date
was made without the benefit of a psychiatric evaluation. After
the psychiatric report, advising against release on day parole,
was filed, a rehearing by different Board members was held.
Day parole was denied based on this "new information". Sub
section 14.2(1) of the Parole Regulations permits the review
and reversal of decisions to grant parole commencing at a later
date based on new facts or information. The applicant argued
that the use made of the psychiatric report contravened section
7 of the Charter or paragraphs 1(a) and 2(e) of the Canadian
Bill of Rights.
Held, the application should be dismissed.
The psychiatric report was "information that was not avail
able to the Board when parole was granted" within subsection
14.2(1). Such information need not be confined to facts arising
after the first decision was made.
There was no denial of fairness in subsection 14.2(1) of the
Regulations nor in the conduct of the rehearing by the Board.
The Board's duty is to assess the current condition of the
inmate, as it may change from time to time, in order to
determine whether day parole would be likely to contribute to
the offender's rehabilitation while not representing an undue
risk to society. It does not adjudicate upon guilt or innocence
with respect to some past event. The purpose of the Act and
Regulations is to ensure that the Board is free to look at the
best information available to it when making decisions about
parole. The content of fairness varies with the nature of the
proceeding, and these proceedings are not such as to oblige the
Board to ignore information about matters occurring before the
first hearing. Res judicata does not apply to an administrative
function such as a review under subsection 14.2(1).
Although the same parties and issue were involved, the
Board was not estopped from rehearing the matter. The inten
tion of the Act and Regulations is for the Board to keep such
matters under continuing review. Subsection 14.2(1) clearly
contemplates a reversal of decision.
A rehearing under subsection 14.2(1) may be conducted by
different personnel. What they must focus on is whether some
factors have changed since the previous decision-maker heard
the matter so as to justify a change in the previous order.
The Board did not make an unreasonable finding of fact,
which would deprive it of jurisdiction, when it relied upon the
psychiatric report in cancelling the applicant's day parole. The
Court must be careful not to substitute its view of the facts for
that of the tribunal.
STATUTES AND REGULATIONS JUDICIALLY
CONSIDERED
Canadian Bill of Rights, R.S.C. 1970, Appendix III, ss.
1(a), 2(e).
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.
Parole Act, R.S.C. 1970, c. P-2.
Parole Regulations, SOR/78-428, s. 14.2(1) (as enacted
by SOR/86-915, s. 2).
CASES JUDICIALLY CONSIDERED
DISTINGUISHED:
Blanchard v. Control Data Canada Ltd. et al., [1984] 2
S.C.R. 476; 14 Admin.L.R. 133.
REFERRED TO:
Greenberg v. National Parole Board (respondent) and
Kaplin (mis -en-cause) (1983), 48 N.R. 310 (F.C.A.).
COUNSEL:
Elizabeth Thomas, Q.C. for applicant.
I. M. Donahoe for respondent.
SOLICITORS:
Elizabeth Thomas, Q.C., Ottawa, for appli
cant.
Deputy Attorney General of Canada for
respondent.
The following are the reasons for order ren
dered in English by
STRAYER J.: This is an application for certiorari
to quash a decision of the National Parole Board
of September 10, 1987, which decision cancelled
the applicant's day parole.
The applicant was convicted of second degree
murder on February 5, 1980 and is presently
serving a life sentence. He will be eligible for full
parole in 1990. A panel of the National Parole
Board met with him on May 15, 1987 at the
Regional Reception Centre at Ste-Anne-des-
Plaines, Quebec to consider his application for day
parole. Although the Board noted that Correction
Services of Canada (CSC) had asked for a psy
chiatric evaluation of Scott this evaluation had not
yet been provided but the Board, in its reasons for
its decision, "did not see fit to penalize you for the
unavailability of this evaluation for the 15 of
May". The formal decision of the Board resulting
from this hearing was as follows:
Day parole granted for projects
Destination: from a minimum preferably in the area of
Kingston penitentiary
Effectivity date: on or after July 15, 1987
Expiry date: 1 year
In its written explanation of its decision, the Board
indicated that day parole was being granted for an
"educational project" which would involve Scott
being transferred to a minimum security institu
tion from which he would go on day parole to
pursue some educational programme. It was fur
ther explained that day parole was being granted
effective "on or after July 15, 1987" in order to
give the CSC time to structure his arrangements
for day parole but that
should this delay prove insufficient, the Board can always
modify its decision ....
On May 28, 1987 Dr. Alfred Thibault, a psy
chiatrist, met with Scott, apparently at the request
of the Parole Board. According to the affidavit of
Scott, he was not informed prior to the meeting
that Dr. Thibault was a psychiatrist or that he was
going to do a psychiatric assessment which could
affect the status of Scott's day parole. He further
says that the meeting with Dr. Thibault lasted no
more than ten minutes. The respondent has pro
duced no evidence to the contrary with respect to
these allegations. As a result of this meeting, Dr.
Thibault made a written report to the Parole
Board dated June 4, 1987. He came to the conclu
sion that if Scott were released on day parole at
this time
... we should fear impulsive reactions that would greatly
increase the possibility of him getting into more trouble (escape
or relapse into crime) ....
He therefore recommended "an institutional cas
cading" in which Scott would be moved progres
sively to institutions of lesser security and that he
should have successful stays in such institutions
"as well as clinical work" before his release into
society. On july 21, 1987 Scott was notified in
writing by the acting warden of his institution that
CSC had decided not to transfer him (presumably,
to a minimum security institution) prior to the
acceptance by the National Parole Board of the
education project being planned for him. On July
27, 1987 he was advised by Telex from the Board
that because the Board had received new informa
tion, namely the report of Dr. Thibault, it pro
posed to hold a rehearing on his day parole, pursu
ant to subsection 14.2(1) of the Regulations
[Parole Regulations, SOR/78-428 (as enacted by
SOR/86-915, s. 2)] under the Parole Act [R.S.C.
1970 c. P-2]. This hearing was held on September
10 and Scott was present with his counsel. As I
understand it, Scott or his counsel had been pro
vided with a copy of Dr. Thibault's report prior to
the hearing but Dr. Thibault was not present for
the hearing. The hearing was conducted by mem
bers of the Board other than those who had been
present for the decision of May 15 granting day
parole. As a result of this hearing, the Board
issued a decision to the effect that the day parole
project was cancelled and day parole was denied to
Scott. In its reasons it treated the psychiatric
report as "new information" which was not avail
able at the May 15 hearing because the interview
with Dr. Thibault had not yet taken place. It
stated that it had no reason to disregard the
conclusions of the psychiatric report and went on
as follows:
The Board considers that relying on the psychiatrist opinion
must conclude that you actually represent an unassumable risk
for society because you are unable to deal with stress, anxiety,
and you feel an urgent need to free yourself of all tension by
resorting to action.
It is this decision which the applicant seeks to have
quashed.
Counsel for the applicant presented several
grounds in support of this application. First, she
submitted that the psychiatric report could not
come within the meaning of "new facts or infor
mation" as used in subsection 14.2(1) of the
Parole Regulations and that if it did, in the cir
cumstances of this case its use was contrary to
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.)] or contrary to paragraphs 1(a) and 2(e) of
the Canadian Bill of Rights [R.S.C. 1970, Appen
dix III].
Subsection 14.2(1) of the Parole Regulations
provides as follows:
14.2 (1) Where the Board grants an inmate a parole to be
effective at a later date, the Board may, after a review based on
new facts or information that was not available to the Board
when parole was granted, reverse its decision and cancel parole
before the inmate is released.
I am satisfied that the psychiatric report comes
within the phrase "information that was not avail
able to the Board when parole was granted" and
that such information need not be confined to facts
arising after the first decision was made. I am also
satisfied that, while section 7 of the Charter is
applicable so as to provide a constitutional require
ment of fairness in any such rehearing, neither the
subsection of the Regulations nor the conduct of
the Board in this case on the rehearing amount to
a denial of fairness. (In this respect I think the
requirements of the Canadian Bill of Rights are
no more stringent and their invocation add nothing
to the argument of the applicant which can be
dealt with on the basis of the potentially more
binding requirements of the Charter). One must
keep in mind that the duty of the National Parole
Board in such matters is to assess the current
condition of the inmate, as it may change from
time to time, in order to determine whether day
parole would be warranted, on the one hand as
likely to contribute to his rehabilitation at that
stage of the serving of his sentence, and on the
other hand would not represent an undue risk to
society at large. Its duty is not to make a binding
adjudication of guilt or innocence, liability or non-
liability, with respect to some events of the past. I
am satisfied that it is the purpose of the Act and
Regulations to ensure that the Board when making
decisions from time to time about parole is free to
look at the best information available to it at that
time in making these difficult assessments which
are of such critical importance both to the inmate
and to those outside of prison with whom he may
be associated. The constitutional requirement of
fairness in such rehearings no doubt entitles an
inmate to know in a general way the facts alleged
which may be relied on by the Board in the
possible cancellation of parole, subject to limita
tions imposed by the necessity for confidentiality
of sources, etc. But the content of "fairness" must
vary with the nature of the proceeding and I do not
think that the nature of these proceedings are such
as to oblige the Board to ignore information about
matters occurring before the hearing at which the
first decision was made on May 15. The concept of
res judicata does not apply so as to support a
claim of unfairness where the Board changes its
mind; the Board in conducting the review under
subsection 14.2(1) is exercising an administrative
function and the doctrine of res judicata does not
apply.'
Secondly, counsel for the applicant argued that
the Board was estopped from changing its conclu
sion at the May 15, 1987 hearing that the appli
cant was psychiatrically suitable for release on day
parole. It was argued that the same issue and the
same parties were involved when the matter came
up for rehearing on September 10 and, the Board
having previously decided on May 15 as to the
applicant's suitability, it could not on September
10 deny that suitability. For the reasons given
above, I interpret the intention of the Act and
Regulations to be that the Board can keep such
matters under continuing review in order that it
may reconsider earlier decisions on the basis of the
best information available as to the current state
of an inmate's suitability for day parole. Subsec
tion 14.2(1) of the Regulations clearly contem
plates a reversal of decision in this respect and, for
the reasons given previously, I can see no legal or
constitutional impediment to the Board taking a
Greenberg v. National Parole Board (respondent) and
Kaplin (mis -en-cause) (1983), 48 N.R. 310 (F.C.A.), at p.
313.
different view at a later date as to an inmate's
suitability for release.
Thirdly, counsel for the applicant argued that,
because the hearing of September 10 was held by
different board members from those involved in
the May 15 hearing, there was a denial of the
principle of natural justice that he who decides
must hear. It was contended that the "new infor
mation" in the psychiatric report had to be related
to the information already before the Board at the
first hearing, but the personnel at the second hear
ing charged with this responsibility had not heard
the evidence presented at the first hearing. In
other words, there can only be a rehearing under
subsection 14.2(1) if the same board members are
involved. This would be a very restrictive interpre
tation of the Regulations and I would need to be
firmly convinced that such an interpretation is
necessary. Instead, I am inclined to think that
counsel for the respondent presented the right
analogy when he suggested that rehearings as to
day parole should be viewed in the same way as a
series of hearings with respect to matters such as
bail, custody, or an interlocutory injunction. That
is, it must be accepted that such hearings may be
conducted by different personnel and that what
they must focus on is the question of whether some
factors have changed since the previous decision-
maker heard the matter so as to justify a change in
the previous order. I believe that is the appropriate
way to view the procedure under subsection
14.2(1). In the present case, the panel which was
assembled on September 10 could look at the
conclusion and the reasons of the panel which met
on May 15 and see if the new information, in the
form of the psychiatrist's report, would indicate a
change from the conclusion reached by the previ
ous panel. The previous panel had noted that it
had no psychiatric report before it and had pro
nounced the applicant to be "a level-headed
individual with a healthy mind". Given those facts,
it was open to the September 10 panel to decide
whether the new information in the form of Dr.
Thibault's report might justify a different conclu
sion and it so decided. I see nothing more unfair in
this than would be found for example in the hear
ing by a different judge, of an application to
modify an injunction issued by another judge, on
the grounds of new information having come to
light. I therefore do not think this procedure vio
lates any constitutional principles.
Finally, counsel for the applicant contended that
the National Parole Board had exceeded its juris
diction in its decision based on the hearing of
September 10 because that decision amounted to
an unreasonable finding, being based "on a psy
chiatric report which was of no weight and there
fore inadmissible". In the first place I might
observe that a finding that evidence is of no weight
is not a judgment that it is inadmissible; on the
contrary, such evidence is admissible but has no
persuasive effect on the outcome. Counsel for the
applicant cited Blanchard v. Control Data Canada
Ltd. et al 2 for the proposition that an unreasonable
finding of fact by a tribunal deprives it of jurisdic
tion. Assuming that principle to apply to a decision
to cancel parole pursuant to subsection 14.2(1) of
the Parole Regulations, I am unable to say that
the Board here made an unreasonable finding of
fact when it relied on the psychiatric report of Dr.
Thibault as a basis for deciding to cancel the
applicant's day parole. It is worthwhile underlin
ing, even at the risk of stating the obvious, that in
judicial review such as this it is not for the Court
to substitute its own view of the facts for that of
the tribunal. It may be that Dr. Thibault's report
suffers from weaknesses. If it is true that it was
based on a ten-minute interview, one must be
somewhat skeptical of it. On the other hand it is
apparent from the report that he had also reviewed
Scott's file. He had noted, inter alia, Scott's crimi
nal record which is not inconsiderable and which
includes several offences involving, or potentially
involving, violence. He interviewed Scott and he
concludes, in part:
[TRANSLATION] The subject's attitude during the interview did
not reflect much erosion of the character organization which
would allow him to become more emotionally mature ....
2 [1984] 2 S.C.R. 476; 14 Admin. L.R. 133.
Dr. Thibault went on to recommend an alternative
to day parole which is noted above. I am unable to
say that it was patently unreasonable for the panel
of the National Parole Board meeting in Septem-
ber to consider this as meaningful evidence upon
which they could conclude that Scott should not be
released on day parole. I cannot go beyond that in
judging the merits of the panel's decision: if I were
empowered to do so, I might be as readily persuad
ed that the panel which met on May 15 erred in
dismissing the need for a psychiatric report at that
time when it could easily have adjourned to await
such a report, particularly having regard to the
fact that this inmate was being held in a Special
Handling Unit while being considered for day
parole. But I have no authority to "second-guess"
either panel with respect to their findings of fact,
at least if they appear not to be patently
unreasonable.
The application is therefore dismissed.
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