T-3763-81
Keith Frederick Couperthwaite (Applicant)
v.
National Parole Board (Respondent)
Trial Division, Smith D.J.—Winnipeg, November
23, 1981 and June 30, 1982.
Judicial review — Prerogative writs — Mandamus —
Parole hearing — Manual prepared under Parole Regulations
prohibiting inmate from attending meeting just prior to hear
ing — Purpose of meeting being to update Board on develop
ments subsequent to preparation of written reports — Question
whether parole should be granted considered at meeting —
Whether meeting part of hearing — Board having duty to act
fairly — Board able to adopt safeguards to prevent informa
tion within s. 54, Canadian Human Rights Act, from coming to
inmate's attention — Application granted — Parole Act,
R.S.C. 1970, c. P-2, ss. 6 (as am. by S.C. 1976-77, c. 53, s.
23), 8, 9 (as am. idem, s. 24), 10, 11 (as am. idem, s. 26) —
Parole Regulations, SOR/78-428, ss. 14, 15 (as am. by SOR/
81-487, s. 1), 17, 20.1 (as added by SOR/81-318, s. 1), 25 —
Canadian Human Rights Act, S.C. 1976-77, c. 33, ss. 49, 54.
A provision in a Policy and Procedures Manual, issued
pursuant to section 25 of the Parole Regulations, prohibits an
inmate and his assistant from being present at a meeting held
immediately prior to the full parole hearing. At this meeting,
the Board members are familiarized with the case by custodial
officials and written reports which have been supplied to the
Board are updated. An inmate requested that his counsel and
he be permitted to attend during this meeting as well as at the
hearing itself. The hearing was reserved and the inmate applied
for mandamus to compel the Parole Board to comply with
certain provisions of the Parole Act and Regulations, the
Canadian Bill of Rights and the common law duty to act fairly.
Held, the application should be granted. The submission of
applicant's counsel, that the entire parole review referred to in
section 14 of the Regulations was to be held by way of a
hearing was well-founded. Part of the review could not be
conducted in advance of the hearing. The suggestion by the
witnesses for the Board to the effect that the preliminary
meeting was not part of the hearing was contradicted by section
104-3.3.1 of the manual which referred to this meeting as "the
first stage of the hearing". Although the Board's witnesses
testified that the manual incorrectly stated the Board's true
policy for the conduct of hearings, the question remained as to
whether in fact the meeting should be considered as part of the
hearing. It was admitted that the merits of the case were
sometimes discussed at this preliminary meeting and this creat
ed a danger that Board members might reach the conclusion
that parole should be denied without having heard from the
inmate. Even if the Board is acting in a purely administrative,
as opposed to quasi-judicial capacity, it must nevertheless act
fairly. Save for the information to be treated as confidential
under s. 17 of the Parole Regulations, the right to a hearing,
which includes an entitlement to hear the evidence against one
and to be afforded a full opportunity for reply, applies to parole
hearings. The evidence disclosed that the substantive question
as to whether the inmate should be paroled was considered at
the preliminary meeting and it should be regarded as part of
the hearing. The amount of information coming before the
Board which could not, under section 54 of the Canadian
Human Rights Act, be shared with the inmate was not great
and the Board could easily have a consultation and, if neces
sary, adjourn briefly to decide whether certain information
must be withheld from the inmate.
APPLICATION.
COUNSEL:
Arne Peltz for applicant.
Theodore K. Tax and Kim Prost for
respondent.
SOLICITORS:
Ellen St. Community Legal Services, Win-
nipeg, for applicant.
Deputy Attorney General of Canada for
respondent.
The following are the reasons for order ren
dered in English by
SMITH D.J.: This is an application for a writ of
mandamus or relief in the nature thereof to
compel the respondent to comply with the provi
sions of the Parole Act, R.S.C. 1970, c. P-2, and
sections 14, 15 and 20.1 of the Parole Regulations,
SOR/78-428 [as am. by SOR/81-318 and SOR/
81-487] thereunder, and paragraphs 1(a) and (b)
and paragraph 2(e) of the Canadian Bill of
Rights, S.C. 1960, c. 44 [R.S.C. 1970, Appendix
III], as amended, and in addition, or in the alter
native, the common law duty to act fairly. The
application is based on the following grounds:
1. THAT the Respondent's intention to conduct a portion of the
parole review hearing ex parte, during which time information
or evidence will be taken by the Respondent from persons,
including the living unit officer, classification officer and/or
parole officer, violate Sections 14, 15 and 20.1 of the said
Regulations, and further has the effect of depriving the Appli
cant of a fair hearing in accordance with the principles of
fundamental justice for the determination of his rights and
obligations, which constitutes the due process of law that the
Applicant is entitled to before a decision is made by the
Respondent that will affect his liberty;
2. In addition, or in the alternative, that the Respondent's
practice as set forth in paragraph 1 herein fails to comply with
the procedural duty of fairness imposed by the common law
which requires as a minimum that the Applicant be informed of
the case against him and be afforded a fair opportunity of
answering it;
3. In the further alternative, in the event that the Respondent
has already conducted a portion of the parole review in the
absence of the Applicant and his counsel, the court will be
moved for an order of prohibition restraining the Respondent
Board from rendering a final determination with respect to the
Applicant's parole review until such time as a fresh parole
hearing has been recommenced and conducted according to
law.
4. And such further and other relief, upon such further and
other grounds, as counsel may advise and this Honourable
Court may permit.
At the opening of the hearing counsel for the
applicant stated that paragraph 3 of these grounds
would not be argued, as no part of the parole
review had been conducted.
The facts in relation to this application may be
summarized as follows:
On March 31, 1980 the applicant was sentenced
in Saskatoon, Saskatchewan, on a charge of man
slaughter, to a term of imprisonment of three years
and nine months. He was committed to the federal
penitentiary at Prince Albert, Saskatchewan, and
subsequently transferred in May, 1980 to Stony
Mountain Institution in Manitoba. Having been
notified by the respondent, shortly after being
transferred, of the dates on which he would be
eligible for parole, the date for full parole being
July 1, 1981, he applied on June 25, 1980, for
parole. On November 6, 1980, he was interviewed
by the Parole Board with respect to an application
for day parole, which application was refused.
The applicant was refused disclosure, in advance
of his full parole hearing, of the written material
on his file. On June 3, 1981 he applied to the
Court for an order of mandamus to compel, inter
alia, disclosure of this material prior to the hear
ing. I made an order for disclosure in advance of
the hearing. This order was complied with. When
the hearing was called on July 13, 1981 there was
some discussion of a request that the applicant and
his counsel be permitted to be present throughout
the whole of the hearing. The hearing was not
continued but was "reserved" until August 10,
1981. On July 20, 1981 the applicant launched the
present motion, which was heard by me on
November 23, 1981, at Winnipeg.
The success or failure of this application
depends upon the proper interpretation and
application, in the circumstances, of certain legis
lative provisions. The most important of these are
found in the Parole Act and Parole Regulations,
and the Canadian Human Rights Act, S.C. 1976-
77, c. 33. The relevant portions of these provisions
are as follows:
1. Parole Act:
6. Subject to this Act, the Penitentiary Act and the Prisons
and Reformatories Act, the Board (meaning the Parole Board)
has exclusive jurisdiction and absolute discretion to grant or
refuse to grant parole ....
8. (I) The Board shall at the times prescribed by the
regulations
(a) review the case of every inmate who is sentenced to
imprisonment in or transferred to a penitentiary for two
years or more ....
(2) Upon reviewing the case of an inmate as required by
subsection (I) the Board shall decide whether or not to grant
parole.
9. (I) The Governor in Council may make regulations
(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;
(g) prescribing the circumstances in which an inmate is
entitled to a hearing upon any review of his case for parole;
(h) prescribing the information, and the form thereof, to be
supplied or made available to an inmate by the Board or
other persons before any hearing is held by the Board in
respect of parole for that inmate;
(Note: section 17 of the Parole Regulations has
been enacted pursuant to this paragraph. See
infra.)
(i) prescribing the circumstances in which an inmate is to be
entitled to assistance at a hearing before the Board, the kind
and extent of such assistance and the persons or class of
persons who may provide the assistance;
(Note: sections 14, 15 and 20.1 of the Parole
Regulations have been enacted pursuant to para
graphs (g) and (i). See infra.)
10. (1) The Board may
(a) grant parole to an inmate, subject to any terms or
conditions it considers desirable, if the Board considers that
(i) in the case of a grant of parole other than day parole,
the inmate has derived the maximum benefit from
imprisonment,
(ii) the reform and rehabilitation of the inmate will be
aided by the grant of parole, and
(iii) the release of the inmate on parole would not consti
tute an undue risk to society;
(e) in its discretion, revoke the parole of any paroled
inmate ....
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.
(Note: for full parole this section has been
superseded by sections 14 and 15 of the Parole
Regulations.)
2. Parole Regulations:
14. The review for full parole required by paragraph 8(1)(a)
of the Act shall be carried out by the Board on the inmate's full
parole eligibility date unless the Board has, of its own motion or
on application by or on behalf of the inmate, reviewed the case
of the inmate prior to that date.
15. (1) Subject to subsections (2) and (3), the review
referred to in section 14 shall be by way of a hearing before not
less than two members of the Board unless the inmate requests,
in writing, that the review be conducted without a hearing.
(Note: subsection (2) of this section has no rele
vance to this case.)
17. (1) Subject to subsection (3), the Board shall furnish an
inmate whose case is to be reviewed for full parole pursuant to
paragraph 8(1)(a) of the Act, orally or in writing, with all
relevant information in the possession of the Board.
(2) Where the Board decides to provide an inmate with
information in writing referred to in subsection (1), such
information shall be provided at least fifteen days before the
review.
(3) The Board is not required pursuant to subsection (1) to
furnish an inmate with any information
(b) described in paragraphs 54(a) to (g) of the Canadian
Human Rights Act.
20.1 (1) Where a hearing is conducted pursuant to subsec
tion 15(1) or 20(2), the Board shall permit the inmate to be
assisted by a person of his choice.
(3) The person referred to in subsection (1) shall be entitled
(a) to be present at the hearing at all times when the inmate
he is assisting is present at the hearing;
(b) to advise the inmate in respect of any questions put to
that inmate by the Board during the hearing; and
(c) at the conclusion of the hearing, to address the members
of the Board conducting the hearing, for a period of ten
minutes, on behalf of the inmate.
25. The executive committee referred to in subsection 3(2.1)
of the Act shall, in consultation with the Board,
(a) develop and promulgate policies and procedures to be
followed by the Board in carrying out the duties and func
tions of the Board under the Act; ....
3. Canadian Human Rights Act:
49. In this Part,
"federal information bank" means a store of records within the
control of a government institution where any of the records
comprised therein are used for administrative purposes;
Section 52 provides that every individual is en
titled to ascertain what records concerning that
individual that are used for administrative pur
poses are contained in federal information banks,
to ascertain the uses to which such records have
been put, and to examine each such record or a
copy thereof, whether or not that individual pro
vided all or any of the information contained in the
record.
Section 54 enacts that the appropriate Minister
in relation to a government institution that has
control of a federal information bank may provide
that the provisions of subsection 52(1) mentioned
supra do not apply in respect of a record or part
thereof where, in the opinion of the Minister,
knowledge of the existence of the record or the
information contained therein might lead to any of
the results described in paragraphs 54(a) to (g)
inclusive. The purpose of section 54 is to empower
the Minister to see that information that might
lead to any of such results is kept confidential.
Therefore if the Minister so provides, it must not
be disclosed to an inmate for the purpose of his
parole application or otherwise.
From the day on which an inmate is first admit
ted to a correctional institution, information con
cerning the inmate is gathered and recorded in
writing. This information comes from a number of
sources and may consist of personal information
about the inmate's health, data about his life prior
to the offence for which he was sentenced to the
term of imprisonment he is serving, as well as
reports on his conduct, attitude and progress while
he has been in the institution.
The Board has a heavy load of parole hearings.
Paragraph 8 of a document published by the
Board in April, 1981, which bears the title Assist
ance at Hearings and which is Exhibit 2 to the
affidavit of William Outerbridge (Chairman of the
Board) states: "Board Members each currently
hold an average of 8 to 10 hearings a day, three
weeks out of every four." With their other duties,
which include writing decisions and reviewing case
files, it seems clear that theirs is a pretty tight
schedule, which no doubt accounts for the rule
that the hearing must normally be held on the day
scheduled and the rule limiting the time allowed
the inmate's assistant to address the Board at the
hearing to ten minutes.
Pursuant to section 25 of the Regulations,
supra, a Policy and Procedures Manual has been
developed and promulgated, section 4 of which
deals with Reviews and Hearings. Section 104-3.3
of this manual states the Board's policy concerning
the attendance of the inmate's assistant at the
hearing. The first two sentences of it read:
3.3.1 The assistant will attend the same stages of the hearing as
the inmate. The assistant does not attend the first stage of the
hearing which consists of presentations to the Board by the
Correctional Service of Canada staff.
The preparation for an appeal hearing begins
months before the date of the hearing. All the
known information that might affect the inmate's
prospects of being granted parole is reviewed by
staff officers of the Parole Service, chiefly by the
inmate's parole service officer and a living unit
development officer (commonly abbreviated to
LUDO). The LUDO is a staff member of the penal
institution. They prepare factual reports, which,
together with the original written material on
which they are based, are furnished, a week or two
prior to the date of the hearing, to the Board
members (not less than two) who are to hear and
review the parole application. Sometimes one or
both of these officers recommend that parole be
granted or that it be refused. Sometimes they
make no recommendation.
The evidence indicates to me that, at least prior
to my order of June 3, 1981, the Board's practice
was to provide the inmate with the information
that was in its possession, orally at the hearing.
Following my order of June 3, 1981, the Board
supplied the applicant (inmate) with this informa
tion in writing prior to the date of the hearing,
November 23, 1981. As a result, no question arises
on this application about compliance with section
17 of the Regulations on this point.
It is the regular practice of the Board to have a
meeting of those of its members who are to con
duct the hearing with the parole officer, the LUDO
and any police officer, prison officer or other
person who has information that may have some
significance to the case. This meeting is completed
before the inmate is admitted to the hearing room.
The evidence of three officers of the Board,
namely, Mr. William Outerbridge, the Board
Chairman, Mr. Ken Howland, a Board member,
and Mr. John Bissett, Regional Manager for Case
Presentation, given by affidavit and on their sepa
rate cross-examinations on their affidavits, is that
the purpose of this meeting is to familiarize the
Board members with all the information on the
particular case and to bring that information up to
date by stating any information that has come to
hand since the staff made up their reports and
supplied them to the Board, with copies of the
original written information. In the view of these
three witnesses it was important that the inmate
and his assistant be excluded from this meeting,
because some of the new information might fall
within one or more of paragraphs (a) to (g) of
section 54 of the Canadian Human Rights Act,
and the Minister might order that it be kept
confidential and not disclosed to the inmate. These
witnesses also took the position that this meeting
was not part of the hearing but merely the final
stage of preparation for the hearing, and therefore
neither the inmate nor his assistant had any right,
under section 20.1 of the Regulations to be
present.
When this meeting has been completed the
inmate and his assistant are permitted to come
into the room. If new information has been pro
duced before they enter the room the Board
informs them of it, except that if some part of it is
such that they consider the Minister might order
that it be kept confidential under section 54 of the
Canadian Human Rights Act, that part is not
disclosed to them. The Board also informs them of
all the evidence they had prior to that meeting.
At the hearing on this application counsel for
the applicant objected strongly to the Board's
policy of excluding the inmate and his assistant
from the meeting described supra. He first
referred to sections 14 and 15 of the Regulations,
pointing out that section 15 states that "the review
(ie: the review for parole) referred to in section 14
shall be by way of a hearing before not less than
two members of the Board ...". He contended
that these words do not mean that part of the
Board's review may be held before the hearing but
that the whole review is to be by way of a hearing.
1 agree with this submission.
In answer to the contention of the Board's wit
nesses that the meeting held before the inmate and
his assistant are admitted to the hearing room is
not part of the hearing he referred to the Board's
Policy and Procedures Manual. Section 104-3.3.1
of this document, quoted supra, may usefully be
repeated here. It reads:
3.3.1 The assistant will attend the same stages of the hearing as
the inmate. The assistant does not attend the first stage of the
hearing which consists of presentations to the Board by the
Correctional Service of Canada staff.
Section 104-4 of this document has the heading
"Stages of the hearing". The first three para
graphs of it read:
4.1 Prior to the hearing, the inmate's parole case file is
reviewed by the Members. Consideration is given to any special
written representations submitted by persons not attending the
hearing.
4.2 The first stage of the hearing itself includes presentations
by the Parole Service Officer and institutional staff, and intro
ductory discussion in case conference fashion.
4.3 During the next stage of the hearing the Members conduct
an interview with the inmate. When it is a full parole review,
this commences with the provision of information relevant to
the decision to be made.
This document, of course, is not a statute and
has not the compelling force of a statute, but is a
policy and procedure manual adopted by the
Board for its own guidance. The exact date of its
adoption has not been made known to me, but
from Mr. Outerbridge's evidence it was as early as
1980, possibly 1979. It is clear that the extracts
quoted supra had not been amended at the date of
the hearing before me. Apparently no question had
arisen about sections 104-3.3.1 and 104-4.1, 4.2
and 4.3 prior to this case.
Counsel for the applicant submits that the lan
guage used in the quoted paragraphs indicate
clearly that the Board itself looked on the meeting
from which the inmate and his assistant have been
excluded as being part of the hearing, the first
stage of it. To my mind that is the only interpreta
tion that can be given to what is said in those
paragraphs. In fact there is really nothing to inter
pret, because that is what the words say expressly.
In his cross-examination on his affidavit, Mr.
Outerbridge was questioned on this point at some
length. He stated emphatically that the quoted
portions of sections 104-3.3.1 and 104-4.1, 4.2 and
4.3 were in error, that they did not state the true
policy for the conduct of hearings. In his view the
conference meeting prior to admitting the inmate
and his assistant is not part of the hearing. He
explained that they had been working on the
manual for two or three years and were anxious to
get it passed and in operation, with the idea that
any bugs that turned up could be corrected after
they were discovered. He said that this error,
having been discovered, would be corrected as soon
as possible.
It seems almost certain that whoever drafted the
paragraphs in question must have thought that
what he was stating was what the Board intended.
If he knew something else was intended it is hardly
likely that he would make the same mistake twice,
in paragraphs so close together. If any proof-read
ing of the document was done it must have been
done either with insufficient care or by someone
who was not aware of the procedure intended to be
followed at parole hearings.
The evidence of all three of the Board's wit
nesses on cross-examination on their affidavits, in
so far as they were questioned on similar matters,
was in agreement. There was no conflict between
them. There was no parol evidence given at the
hearing on this application, so I have not had the
advantage of observing any of these witnesses in
the witness box. Nevertheless I see no reason why I
should not think they were telling the truth
according to their understanding of the policy and
practice actually followed at parole hearings.
Accordingly I accept their evidence on this point,
the significant part of which is that in their opin
ion, the meeting of the Board members with parole
and institutional staff prior to admitting an inmate
and his assistant to the hearing room, which has
been their regular practice, is not part of the
parole hearing, but only preparation for the hear
ing. There still remains to be answered the ques
tion whether in fact that meeting should properly
be considered to be part of the hearing. For this
purpose some further examination of the evidence
is required.
On cross-examination on his affidavit, Mr.
Outerbridge was questioned at length about what
occurs at the meeting that is held prior to the
inmate and his assistant being admitted to the
hearing room. Some of his evidence has been
summarized supra. Beginning on page 16 of the
transcript of his examination and continuing on
page 17 there were the following questions and
answers:
56. Q. At that time, there is a discussion between the Board,
the parole officer and the LUDO relating to the merits of
the case of the inmate?
A. No. The discussion usually is a matter of receiving an
update on information that was not available to the
Board when they did their file study at the office. The
reason for this is that in order for the Board members to
prepare themselves for the hearing, they receive the
inmate's file which contains information that is limited
to six or eight weeks before the hearing. As a result,
when the hearing in the institution to which you are
referring first starts, that discussion primarily is an
opportunity for the living unit development officer and
the parole officer to bring the Board members up to date
about information that was not available on the file
when the study was made, to answer questions that
arose during the process of the case study. The question
of merits of the case may be discussed but that really is
not usually the matter because it is a matter of trying to
ensure that the Board members have the most updated
information available at the time.
57. Q. The discussion that takes place, whether it is an update
or otherwise, is part of the substantive question before
the Board; that is, the inmate's progress and whether he
should be released?
A. That's correct.
58. Q. It is not peripheral or merely procedural?
A. No. It can be. It can be a matter of, has a job been
found, is there a home for the person to go to, have there
been disciplinary matters that have taken place since the
hearing, and so on.
59. Q. You agree that those are all substantive questions?
A. I do. They are.
60. Q. And this takes place in the absence of the inmate and
his assistant?
A. That is correct.
I attach some significance to the fact that in the
answer to question 56 Mr. Outerbridge said: "The
question of merits of the case may be discussed,
but that really is not usually the matter because it
is a matter of trying to ensure that the Board
members have the most updated information avail
able at the time." The fact that the merits of the
case are sometimes discussed with the parole offi
cer and the LUDO is important, because in any case
where this has occurred it is impossible to say that
what was said in that discussion cannot have had
any influence on the minds of the Board members
in reaching their final decision to grant or refuse
parole. It is very likely that much of what is said in
a discussion of the merits will not be information
about facts, but opinion about what conclusions
may or should be drawn from the facts. To the
extent that it is opinion of this kind, it is not
information and is not required to be shared with
the inmate, who, not having been present and not
having heard the discussion, is in no position to
explain, clarify or correct the facts on which the
opinion is based.
There is always some danger, notwithstanding
that it is not intended, that discussions of this kind
may result in one or more members of the Board
coming to the conclusion that parole should be
refused, though they have not yet seen the inmate
or heard what he has to say.
The Parole Board is not a court of law. It is an
administrative body. It does not sit in a judicial
capacity. There is, to my mind, some doubt wheth
er its functions are not, in some circumstances,
quasi-judicial in nature. Be that as it may, the
Board's parole decisions do affect seriously the
inmate-applicant's interest to be at liberty. To be
at liberty on parole and not confined to prison is an
important interest, though it is conditional. Even
assuming that the Board in this case is acting in a
purely administrative, not quasi-judicial, capacity,
it is still bound to act in accordance with the
general rule to act fairly. Where the person whose
position is being reviewed is entitled to a hearing,
as is the case here, he is normally, under the
principle of fairness, entitled to hear the evidence
against him and to have full opportunity to reply
to it. That principle, in my opinion, applies to
parole hearings, save only information that, under
section 17 of the Parole Regulations and para
graphs 54(a) to (g) of the Canadian Human
Rights Act, is required to be treated as confiden
tial and not shared with the inmate. In the situa
tion we are discussing, where, in the absence of the
inmate, facts and sometimes merits are discussed,
that principle may be breached, because it is pos
sible and I think probable that not all of the things
discussed will be made known to him following his
admittance to the hearing room.
I consider that questions 57, 58 and 59 and the
answers thereto are equally, if not more important,
than the portion of the answer to question 56
quoted in the third paragraph before this one. In
answer to question 57 Mr. Outerbridge agreed
that the discussion that takes place, whether it is
an update or otherwise, is part of the substantive
question before the Board, that is, the inmate's
progress and whether he should be released.
In question 58 he was asked: "It is not periph
eral or merely procedural?" He said: "No. It can
be. It can be a matter of, has a job been found, is
there a home for the person to go to, have there
been disciplinary matters that have taken place
since the hearing, and so on." In answer to ques
tion 59 he agreed that all the matters he had just
mentioned were substantive questions.
From these answers it is clear that this meeting
of the Board with staff officers immediately before
the inmate and his assistant are admitted to the
hearing is closely connected with the purpose of
the hearing and that what takes place there may
have some influence on the decision subsequently
made by the Board. This being so, after consider
ing all the evidence, and notwithstanding the con
trary view so strongly and well expressed by Mr.
Outerbridge, supported by Mr. Howland and Mr.
Bissett, I have come to the conclusion that this
meeting should properly be regarded as being part
of the parole hearing.
The question of the effect of subsection 17(3) of
the Parole Regulations and paragraphs 54(a) to
(g) of the Canadian Human Rights Act in the
present case requires further consideration. Sec
tion 17 of the Parole Regulations has been quoted
supra. For convenience the relevant portion of
subsection (3) of that section is quoted again. It
reads:
17. ...
(3) The Board is not required pursuant to subsection (1) to
furnish an inmate with any information
(b) described in paragraphs 54(a) to (g) of the Canadian
Human Rights Act.
Section 54 of the Canadian Human Rights Act
authorizes the appropriate Minister to provide, in
effect, inter alia, that a record or information
concerning an individual in the information bank
of an institution be not furnished to him if in the
opinion of the Minister, knowledge of the record or
of information contained therein
(a) might be injurious to international relations, national
defence or security or federal-provincial relations;
(b) would disclose a confidence of the Queen's Privy Council
for Canada;
(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;
(/) might impede the functioning of a court of law, or a
quasi-judicial board, commission or other tribunal or any
inquiry established under the Inquiries Act; or
(g) might disclose legal opinions or advice provided to a
government institution or privileged communications be
tween lawyer and client in a matter of government business.
The only paragraphs that have any application
in the present case are (d) and (f). There was some
discussion at the hearing before me as to whether
the Board, or only the Minister, has power to
decide that information described in any of these
paragraphs is not to be disclosed to an inmate. In
my view there is no real problem on this point.
Section 17 of the Regulations makes no mention of
the Minister. It simply states that the Board is not
required to furnish an inmate with any informa
tion described in paragraphs (a) to (g) of section
54 of the Canadian Human Rights Act. The Board
must, of course, satisfy itself that the information
asked for falls within the description stated in one
or more of those paragraphs, but in my view it has
the power to make the decision, subject to any
right of appeal permitted to the inmate.
Mr. Outerbridge was greatly concerned that
permitting the inmate and his assistant to be
present at the meeting between the Board and
staff officers, which by Board policy is held in the
absence of the inmate and his assistant immediate
ly before they are admitted to the hearing room,
might result in some information described in
paragraphs (d) or (f) of said section 54 being
disclosed to the inmate. He was concerned both
about the consequences of such disclosure men
tioned in paragraph (d) and about the likelihood
(which he regarded as a certainty) that anticipa-
tion of such confidences would have two serious
results, namely: persons who possess information
of the kinds described would not give the informa
tion to the parole officer, the LUDO or other staff
officer, and in many cases the parole officer or
LUDO might consider it improper or at least unwise
to bring forward, in the presence of the inmate,
information which might endanger the safety of
the inmate or some other person. If such results
should occur, the sources of much relevant infor
mation would dry up and the administration of the
Board's duties would be handicapped.
Mr. Outerbridge's concerns are fully appreciat
ed. There are however, to my mind, two questions
that need to be answered. How serious is the
problem in respect of parole hearings, and can that
problem be avoided?
In so far as the purely updating of facts purpose
of the meeting in question is concerned, Mr.
Outerbridge had no serious objection to the inmate
and his assistant being present. Such updating
information would necessarily be disclosed to the
inmate when he is admitted to the hearing room. It
was the possibility that some information that
should be kept confidential might be disclosed that
gave him real concern. How great is that
possibility?
The evidence indicates that in a great many
cases there is no new or updated information at the
date of the parole hearing. Again, where there is
updated information, very frequently none of it
falls within the limits of paragraphs (a) to (g) of
section 54 of the Canadian Human Rights Act.
Mr. Outerbridge suggested that the proportion of
information that could not be shared with the
inmate was a maximum of ten per cent. He was
referring to the information accumulated through
out the whole period of the inmate's imprisonment,
not merely the updating information that had been
obtained during the six or eight weeks that had
passed since the reports of the parole officer and
the LUDO had been completed.
All of the information except that obtained
during the last 6 or 8 weeks prior to the hearing is
in the hands of the Board members who are to
conduct the hearing for a week or two and has
been reviewed by them. In the relatively few cases
where one or more items of that information is of a
kind described in paragraphs (a) to (g) of section
54 of the Canadian Human Rights Act, it will
have come to their attention, probably with some
notation concerning it in the report of the parole
officer or LUDO. It should not be difficult in these
circumstances for the said Board members to have
whatever consultation they deem necessary and
decide whether to supply the information to the
inmate or not. In fact, as they are required to
supply all relevant information prior to the date of
the hearing they must do so.
For information that only comes to the attention
of the Board members on the day of the parole
hearing it should not occasion much difficulty or
delay, either on being advised that some informa
tion that perhaps should not be disclosed is coming
up or on their own motion to adjourn the hearing
for a few minutes and either empty the hearing
room of all persons other than themselves and the
staff officers concerned with that information, or
themselves retire to an adjoining room, in either
case to consider the question, reach a decision and
resume the hearing. In this way the inmate would
not know anything about any information that is
withheld from him.
In the present case all of the relevant informa
tion in the possession of the Board was, pursuant
to my order on the prior application, supplied to
the inmate (applicant on this application) prior to
the date of the hearing, nothing being withheld on
the ground that it should be kept confidential and
not disclosed.
I understand Mr. Outerbridge's concern that
information which should not be given to the
inmate is in fact not given to him, but I believe
there are procedures by which improper disclosure
can be pretty effectively prevented, one of such
procedures is outlined above, one which to my
mind would not be difficult to apply. There is,
admittedly, some risk that on some occasions some
confidential information might slip out, but such
risk is not entirely eliminated by the present prac
tice. On balance I think that the risk can be
reduced to a minimum without excluding the
inmate from the first stage of the hearing.
I deem it unnecessary to discuss the effect of
paragraphs 1(a) and (b) and paragraph 2(e) of the
Canadian Bill of Rights, about which little or no
argument was presented.
There will be an order granting the application,
with costs.
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.