T-2439-90
Brian Gough (Applicant)
v.
National Parole Board (Respondent)
INDEXED AS: GOUGH V. CANADA (NATIONAL PAROLE BOARD)
(T.D.)
Trial Division, Reed J.—Ottawa, October 3 and 5,
1990.
Constitutional law — Charter of Rights — Life, liberty and
security — Parole suspended based on complaints, details of
which withheld pursuant to Parole Regulations, s. 17(5) to
protect identity of complainants and to preserve ability to
conduct investigations — Breach of Charter, s. 7 right not to
be deprived of liberty except in accordance with principles of
fundamental justice as insufficient information for applicant
to respond to allegations.
Constitutional law — Charter of Rights — Limitation
clause — Charter, s. 7 breached when parole suspended based
on allegations, details of which withheld from parolee —
Process resulting in loss of liberty based on vague allegations,
and in which withholding of details not subject to independent
review not reasonable limit justified under Charter, s. 1.
Constitutional law — Charter of Rights — Enforcement —
Suspension of parole based on allegations, details of which
withheld, breach of Charter, s. 7 and not justified under s. I —
Under Charter, s. 24(1) Court empowered to grant applicant
appropriate remedy — As Parole Board order not to be lightly
quashed, in camera hearing at which Board to justify non-dis
closure appropriate remedy, unless Board preferring quashing
of its decision with rehearing conditional upon provision of
further information to applicant.
Parole — National Parole Board suspending parole due to
complaints, details of which withheld under Parole Regula
tions, s. 17(5) — Breach of common law principle of natural
justice requiring person to know case against him and Charter,
s. 7 as insufficient information to enable applicant to respond
to allegations — Regulations subject to Charter rights —
Non-compliance with s. 7 not justified under s. 1 — In camera
hearing to be held giving Board opportunity to justify non-dis-
closure, unless Board preferring quashing of its decision with
rehearing conditional upon provision of further information.
This was an application for certiorari to quash an order of
the National Parole Board suspending the applicant's parole
due to allegations of sexual assault, illegal drug use and coer
cion, the details of which were withheld under Parole Regula
tions, subsection 17(5). The Board asserted that non-disclosure
was necessary to protect the identity of the complainants and to
preserve the Board's ability to conduct investigations. The issue
was whether the applicant had been given sufficient informa
tion as to the allegations to satisfy the Charter, section 7
requirement that the rules of fundamental justice be complied
with.
Held, there should be an in camera hearing at which the
Board might substantiate, with more specificity, its reasons for
non-disclosure. Should the Board prefer, an order would go
quashing its decision and ordering a rehearing on condition that
further information be supplied to applicant.
The applicant had not been given enough information to
enable him to answer the allegations. Neither the common law
principles of natural justice nor the Charter section 7 require
ments of fundamental justice had been met. The Parole Regu
lations do not alter the applicant's Charter rights.
Non-disclosure was not justified under Charter, section I. A
process resulting in loss of liberty based on allegations which
the accused could not answer because he was not given suffi
cient details and in which the withholding of that information is
not subject to review by any court or other independent body, is
not a reasonable limit within section 1.
Charter, subsection 24(1) enables a Court, seized of a case in
which a violation of a Charter right has been found, to give the
applicant "such remedy as the court considers appropriate."
Although the normal consequence of finding a breach of natu
ral justice would be to quash the Board's decision and order a
rehearing on condition that the applicant be given details
sufficient to permit him to respond to the allegations, an order
of the Parole Board should not be lightly quashed. In the
circumstances, it would be appropriate to order an in camera
hearing at which the Board could justify non-disclosure. The
Court would, however, be prepared to quash the Board's deci
sion if it preferred that option.
STATUTES AND REGULATIONS JUDICIALLY
CONSIDERED
Canadian Charter of Rights and Freedoms, being Part I
of the Constitution Act, 1982, Schedule B, Canada Act
1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II,
No. 44], ss. 1, 7, 24(1).
Parole Regulations, C.R.C., c. 1249, s. 17(5) (as am. by
SOR/86-817, s. 4).
CASES JUDICIALLY CONSIDERED
APPLIED:
Demaria v. Regional Classification Board, [1987] 1 F.C.
74; (1986), 21 Admin. L.R. 227; 30 C.C.C. (3d) 55; 53
C.R. (3d) 88; 5 F.T.R. 160; 69 N.R. 135 (C.A.).
CONSIDERED:
Pulice v. National Parole Board (1990), 34 F.T.R. 318
(F.C.T.D.).
REFERRED TO:
Cadieux v. Director of Mountain Institution, [1985] 1
F.C. 378; (1984), 9 Admin. L.R. 50; 13 C.C.C. (3d) 330;
41 C.R. (3d) 30; 10 C.R.R. 248 (T.D.); Tatham v.
National Parole Board et al., B.C.S.C., No. CC900534,
MacDonell J., judgment dated 18/4/90, not yet reported;
Ross v. Kent Inst. (1987), 12 B.C.L.R. (2d) 145; 34
C.C.C. (3d) 452; 29 C.R.R. 125 (C.A.); H. v. R., [1986]
2 F.C. 71; (1985), 17 Admin. L.R. 39 (T.D.); People v.
Thurman, 787 P.2d 646 (Colo., 1990).
COUNSEL:
David P. Cole for applicant.
Geoffrey S. Lester for respondent.
SOLICITORS:
David P. Cole, Toronto, for applicant.
Deputy Attorney General of Canada for
respondent.
The following are reasons for order delivered
orally in English by
REED J.: The applicant had his parole cancelled
by reason of a decision of the Parole Board dated
June 21, 1990. Prior to that time he had been on
parole for 5' years. This paroled status was a
result of his having been convicted of non-capital
murder in 1973. He served 11 years of a life
sentence, before being released on parole in 1984.
The parole suspension arose as a result of com
plaints made to the Correctional Service Office on
May 2 and 3, 1990. As a result of those complaints
and after an investigation relating thereto, a war
rant was issued for the applicant's arrest. This was
executed on May 11, 1990. At the time of the
applicant's arrest, he had established a good work
record, a stable relationship with his girlfriend,
was about to graduate from community college
and had full-time employment available. Refer
ence in this regard can be made to a special report
dated June 14, 1990 prepared for the use of the
National Parole Board.'
' Activities Since Release
As noted previously, GOUGH was released on Full Parole to
the Kingston community on the 26 October 1984 after
serving 11 years of a Life Sentence for Non Capital Murder.
He was subsequently granted Parole Reduced on the 5
February 1990.
A Special Report dated 28 December 1989 (attached) which
was prepared in support of Subject's Parole Reduced applica
tion notes in detail Subject's activities since release. To
summarize briefly, GOUGH was released to the Kingston area
and immediately took up residence with his girlfriend, Moira
Duffy. The couple have maintained a common-law relation
ship over the last 5 years and apparently plan to get married
in the near future.
For the last 3 years GOUGH has been attending St-Lawrence
College where he is enrolled in a Behavioural Science pro
gram. He wrote his last exam for the course on 27 April
1990. At the time of his arrest GOUGH was in the process of
completing his final job placement at the Christian Horizon
Group Home in Kingston.
The final job placement was to have been completed on
the 23 June 1990 at which time GOUGH would have graduat
ed from St. Lawrence College. He was then to have been
taken on at the Christian Horizon Group Home as a full-
time staff member.
During the summer months when GOUGH was not attending
St. Lawrence College he obtained work in the construction
field to supplement his income and help pay the family bills.
Neither GOUGH or Miss Duffy have any immediate family in
the Kingston area but both have family members in the
Maritimes with whom they keep in touch and visit as often as
they can. As well, the couple have occasionally travelled to
Ottawa to visit Miss Duffy's brother.
File information notes that over the past five years GOUGH's
transition through the parole system was fairly smooth with
no problems being noted. He has maintained his common-
(Continued on next page)
The complaints which gave rise to the parole
suspension proceedings allege that Mr. Gough
committed acts of sexual assault, use of illegal
drugs and coercion towards a number of adult
females. The main issue in this application is
whether he was given sufficient information with
respect to the nature of those allegations in order
to satisfy the requirements of section 7 of the
Charter, that is, [Canadian Charter of Rights and
Freedoms, being Part I of the Constitution Act,
1982, Schedule B, Canada Act 1982, 1982, c. 11
(U.K.) [R.S.C., 1985, Appendix II, No. 44]], were
the rules of fundamental justice complied with?
Section 7 provides that:
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.
The law is fairly straight forward. Mr. Cole has
referred to Cadieux v. Director of Mountain Insti
tution, [1985] 1 F.C. 378 (T.D.); Tatham v. Na
tional Parole Board et al., B.C.S.C., April 18,
1990 (not yet reported) No. CC900534 per Mac-
Donell J.; Ross v. Kent Inst. (1987), 12 B.C.L.R.
(2d) 145 (C.A.); H. v. R., [1986] 2 F.C. 71 (T.D.);
and Demaria v. Regional Classification Board,
[1987] 1 F.C. 74 (C.A.). It suffices for present
purposes to refer to the Federal Court of Appeal
decision in Demaria, especially pages 76-77. On
pages 77-78, Mr. Justice Hugessen wrote:
There is, of course, no doubt that the authorities were
entitled to protect confidential sources of information. A peni
tentiary is not a choir school and, if informers were involved
(the record here does not reveal whether they were or not), it is
important that they not be put at risk. But even if that were the
case it should always be possible to give the substance of the
information while protecting the identity of the informant. The
burden is always on the authorities to demonstrate that they
have withheld only such information as is strictly necessary for
that purpose. A blanket claim, such as is made here, that "all
preventive security information" is "confidential and (cannot)
be released", quite apart from its inherent improbability,
(Anyone who has ever seen a so-called "security" file knows
(Continued from previous page)
law relationship with Miss Duffy with the couple being
mutually supportive of one another.
Overall, couGH's performance was such that he was recom
mended for, and subsequently granted, Parole Reduced in
February 1990.
that a large proportion of the material in it is routine informa
tion readily available elsewhere.) is simply too broad to be
accepted by a court charged with the duty of protecting the
subject's right to fair treatment. In the final analysis, the test
must be not whether there exist good grounds for withholding
information but rather whether enough information has been
revealed to allow the person concerned to answer the case
against him. But whichever way it be stated, the test is not met
in the present case.
In the present case, there is no doubt that the
applicant was not given enough information to
enable him to answer the allegations being made
against him. I refer in this regard to pages 20-23
of the transcript 2 of the hearing before the Board
and to Mr. Stienburg's affidavit (paragraphs
8-15). The general quality of the information given
to the applicant is demonstrated by the following
excerpts:
2 Okay. A number of C.I.R.'s have been submitted, and I'm
going to go through them as fully as I can, one by one, to give
your assistant and yourself and Moira an understanding of
what we have received.
The first one, the C.I.R. that was completed April the 10th,
1990, by the Correctional Service of Canada Parole, contains
information from a community source regarding a sexual
assault by the offender, that's you, in November of 1989.
The C.I.R. refers to the use of drugs, and that the victim was
finally able to defend herself with a knife. The same C.I.R.
reports a second incident of sexual assault in the fall of 1989,
against a second victim.
The second C.I.R. is dated May the 8th by the Correctional
Service of Canada Parole. It refers to an attempted sexual
assault in August of 1989 and it indicates that you were under
the influence of drugs and/or alcohol. The C.I.R. also states
that you entered the victim's dwelling on or about April the
24th of 1990, and that you were forced to leave by a third
party.
A third CAR. dated May the 8th, 1990, again offered by the
Correctional Service of Canada, refers to information stating
that one of the victims had been assaulted on four occasions.
The first incident occurred in the offender's residence, and the
remaining incidents in the victim's home. The offenses took
place between November of 1989 and January of 1990.
C.1.R. dated May the 14th, 1990, again offered by C.S.C.
Parole, is really just a follow up to the earlier C.I.R. dated May
the 8th, and it provides information regarding the offender's
use of travel authorities. One victim pointed out that you would
plan trips to Ottawa but would cancel out at the last minute.
(Continued on next page)
... information from a community source regarding a sexual
assault [sometime] in November 1989 ... the use of drugs ...
the victim was finally able to defend herself with a knife ... a
second incident of sexual assault in the fall of 1989 against a
second victim
... a sexual assault in August 1989 ... the applicant was under
the influence of drugs and/or alcohol ... the Applicant entered
the victim's dwelling on or about April 24, 1990 and ... was
forced to leave by a third party ... there may even have been a
fight .... [Underlining added.]
(Continued from previous page)
This type of behaviour would usually precede one of the
assaults.
The C.I.R. clearly indicates that you did plan a trip to
Ottawa for the weekend of July 22nd, 23rd, 1989, and you did
cancel that trip on July the 20th, 1989, and that has been
confirmed in activity reports kept by the Parole Supervisor.
On July 20th, 1989, the activity report emphasizes that you
were very indecisive as to the reasons for cancelling the travel
permission, that you stated initially that it was for a dental
appointment, and then indicated that it was related to employ
ment. Later information revealed that that weekend is very
possibly the date of one of the sexual assaults.
C.I.R. dated May the 14th, 1990, by the Correctional Ser
vice of Canada, contains information from a third party which
very clearly indicated an awareness that a friend had been
sexually assaulted during the summer of 1989, and that you
had visited the victim's residence apartment, again in April of
1990, approximately the 24th of April, 1990. The C.I.R. refers
to an incident at the residence at that time.
A C.I.R. dated the 18th of May, 1990, by the Correctional
Service of Canada, contains references to an incident in
December of 1989, in which you introduced the victim to
cocaine, for which you were paid $60. C.I.R. dated 14th of
June by a senior social worker, refers to the impact of the
sexual assaults and confirms that the behaviour was initially
reported in December the 7th, 1989.
The C.I.R. provides a description of the seriousness of the
assault, as far as the consequences for the victim was con
cerned. The report also provides the rationale for the failure to
report the incidents earlier.
Finally, C.I.R. dated June the 18th, 1990, by a community
social worker, and that C.I.R. indicates more precisely when
one of the sexual assaults occurred, and it has been arrived at
that it occurred between July the 5th, 1989 and August the
2nd, 1989, and that reports also continued to describe the
distraught condition of one of the alleged victims.
That is the substance of the confidential information that has
been received by the Board and on which we are conducting
this hearing today. Did you wish to make any comments at this
point regarding those C.I.R.'s?
MR. GOUGH: I've never assaulted anybody in my life, never,
Never at any time. I'm forty years old. I'm going to be forty
years old in February.
It is abundantly clear that both the common law
principles of natural justice, which require a
person to know the case against him, and the
section 7 Charter requirements of fundamental
justice have not been met.
Counsel for the respondent argues that in so far
as common law principles are concerned these
have been statutorily altered by subsection 17(5)
of the Parole Regulations [C.R.C., c. 1249 (as
am. by SOR/86-817, s. 4)] which allows the Parole
Board to make decisions on the basis of informa
tion not disclosed to the applicant where such
disclosure would among other things
17. (5) ...
(a) ...reasonably be expected to threaten the safety of
individuals;
(e) ... reasonably be expected to be injurious to the conduct
of ... reviews pursuant to the Act ... including any such
information that would reveal the source of information
obtained in confidence.
In this case, the Board relies on that provision. I
refer, in this regard, to Mr. Stienburg's affidavit,
paragraphs 16, 25 and 26.'
7 16. That further to paragraphs 3 and 5 to 15 inclusive
hereof, the Panel considered that under all the circumstances of
the case the Panel could not properly give more information
than that mentioned aforesaid, and that as much of the sub
stance of the allegations, with as much detail as possible, was
given to the Applicants. To have given more details could, in
the Panel's opinion, reasonably be expected to threaten the
safety of individuals, and could also reasonably be expected to
be injurious to he [sic] conduct of lawful investigations or the
conduct of reviews pursuant to the Parole Act or the Regula
tions inasmuch as the substance of the allegations had been
obtained from sources which gave the information to the agen
cies involved in the post-suspension hearing in confidence and
that to give more information than that mentioned herein
would be to reveal the source of that information obtained in
confidence.
25. That the Panel was deeply conscious of the impact of not
disclosing the information in the Confidential Information
Reports to the Applicant, especially in light of the serious
consequences for the Applicant if parole were revoked in his
case. It was for those reasons that the Panel gave as much
detail as was possible under all of the circumstances, giving as
much particularly as to dates, places, and times of the alleged
(Continued on next page)
Subsection 17(5) does not of course control the
applicant's Charter rights—it is the other way
around. Having found that section 7 of the Chart
er was not complied with, one, then, has to ask
whether the non-compliance can be justified pur
suant to section 1 of the Charter, as a "reasonable
limit prescribed by law ... demonstrably justified
in a free and democratic society." 4 I have no doubt
that a process which allows an individual, in the
position of the applicant, to be deprived of his
liberty, on the basis of allegations which it is
impossible for him to answer because he is not
given enough detail with respect thereto, and in
which, the withholding of that information is not
subject to review by any court or other body
independent of the Board, cannot be said to be "a
reasonable limit".
Counsel for the applicant argues that a blanket
assertion that disclosure could "reasonably be
expected to threaten the safety of individuals" and
could also "reasonably be expected to be injurious
to the conduct of lawful investigations" is not
sufficient. It is argued that some more case specif
ic explanation,' either appearing from the record
and related documentation, or demonstrated by
affidavit material filed in the present application,
is required to meet the burden imposed by section
1 of the Charter. The mere assertion by Mr.
(Continued from previous page)
assaults as the Panel could without, in the nature of the case,
betraying the sources of the said information.
26. That from the nature of the information and the sources of
information in the said Confidential Information Reports and
the circumstances under which the said information was gath
ered the Panel saw no other way of putting the Applicant in a
better position to meet the case raised against him other than
by giving him the information at the said hearing, and giving
him as much information as all the circumstances would allow.
1. The Canadian Charter of Rights and Freedoms guaran
tees the rights and freedoms set out in it subject only to such
reasonable limits prescribed by law as can be demonstrably
justified in a free and democratic society.
5 Reference was made to People v. Thurman, 787 P.2d 646
(Colo., 1990) for an example of the concept "case specific".
Stienburg that the requirements of subsection
17(5) of the Regulations have been met does not
meet the burden of proof.
At the very least, it is argued that, the Court
should review the confidential documents in an in
camera hearing for the purpose of ascertaining the
validity of the Board's assertion (when that asser
tion is of the blanket nature which exists in this
case and there is no obvious or specific explanation
which appears from the record or from other
material). A review by the Court would, it is
argued, give the applicant at least some assurance
that the Board's judgment was not spurious or
arbitrary (if it was not) but has a reasonable
foundation (if it has).
Counsel for the respondent argues, on the basis
of the decision of Mr. Justice Pinard in Pulice v.
National Parole Board (1990), 34 F.T.R. 318
(F.C.T.D.), and the decisions cited therein, that
there is no jurisdiction in this Court to require that
the confidential information be brought before the
Court as part of the application for certiorari and
mandamus. It is argued that that information is
not under review because it is not part of the
record. I have reviewed those decisions and I make
no determination as to whether the confidential
information in question (the "CIR's") forms part
of the record. I do not think it is necessary to do
so. I might say, that, I certainly do not need them
to ascertain whether there has been a breach of the
section 7 guarantee of fundamental justice. The
filing with the Court of the confidential reports is
not relevant to the issue of whether there has been
a lack of fundamental justice and therefore a
breach of section 7. The documents are relevant to
an independent review of the subsection 17(5)
assertion and as to whether the respondent can
demonstrate a section 1 justification.
I do not need to decide whether the reports in
question form part of the record to enable this
Court to call for the filing of the confidential
documents because in my view subsection 24(1) of
the Charter 6 can be relied upon. Subsection 24(1)
enables a court, seized of a case in which a viola
tion of a Charter right has been found, to give the
applicant "such remedy as the court considers
appropriate and just in the circumstances."
In the present case, the normal consequence of
finding a breach of natural justice would be to
quash the Board's decision and require it to rehear
the matter but only on the condition that sufficient
detail, from the confidential information concern
ing the alleged sexual assaults, is released to the
applicant to allow him to intelligently respond to
the allegations made against him. To quash an
order of the Parole Board, in a situation such as
the present, is not something which should be
lightly undertaken.
In the circumstances, I think the appropriate
and just remedy is that which Mr. Cole suggests:
an in camera hearing at which the Parole Board is
given the opportunity to substantiate its reasons,
for refusing to disclose, with more specificity. In
that way the applicant's interests, can be protect-
ed—in that some assurance will be given to him
that the Board's decision is not arbitrary—while at
the same time the Board's interests, in not having
to disclose information which it alleges would rea
sonably result in danger to the safety of individuals
or prejudice the conduct of investigations, will be
met (if the assertion that disclosure would reason
ably result in those consequences is established). If
the Board prefers, instead, that I enter an order
quashing its decision and ordering a rehearing only
on condition that further information be supplied
to the applicant, I am prepared to do so. The
applicant shall have his costs of this application.
6 24. (1) Anyone whose rights or freedoms, as guaranteed
by this Charter, have been infringed or denied may apply to a
court of competent jurisdiction to obtain such remedy as the
court considers appropriate and just in the circumstances.
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.