A-583-76
André Desjardins (Plaintiff) (Appellant)
v.
Claude Bouchard, Jean-Paul Gilbert, National
Parole Board, and Attorney General of Canada
(Respondents)
Court of Appeal, Pratte, Le Dain JJ. and Lalande
D.J.—Montreal, January 19; Ottawa, April 30,
1982.
Parole — Revocation of pardon — Whether National Parole
Board impartial in recommending revocation to Governor in
Council — Latter revoking pardon without hearing appellant
— Governor in Council having duty to give appellant opportu
nity to be heard and to advise him of essential facts before
revoking pardon under s. 7 of Criminal Records Act — Appeal
allowed — Criminal Records Act, R.S.C. 1970 (1st Supp.), c.
12, ss. 4, 5, 7, 9 — National Transportation Act, R.S.C. 1970,
c. N-17, s. 64(1).
Judicial review — Equitable remedies — Declarations —
Appeal against Trial Division judgment refusing declaration
National Parole Board lacked jurisdiction to recommend
pardon revocation to Solicitor General — Natural justice and
duty of fairness — Governor in Council may not revoke
pardon under s. 7 of Criminal Records Act without advising
person concerned of essential facts against him and giving him
an opportunity to be heard — Criminal Records Act, R.S.C.
1970 (1st Supp.), c. 12, ss. 4, 5, 7, 9 — National Transporta
tion Act, R.S.C. 1970, c. N-17, s. 64(1).
Following an inquiry at which the Board refused to disclose
to the appellant the allegations or evidence against him and he
in turn refused to make representations, the National Parole
Board determined that he was no longer of good conduct and
recommended to the Solicitor General that his pardon be
revoked. Acting on advice of the Solicitor General and pursuant
to section 7 of the Criminal Records Act, the Governor in
Council revoked the appellant's pardon.
The Trial Judge who heard the action brought by the appel
lant to attack that revocation refused to declare the actions,
decisions and recommendations of the Board invalid since they
were devoid of any legal effect. He also refused to vacate the
revocation Order because he concluded that the Governor in
Council had observed the requirements of natural justice. The
Trial Judge assumed that the pardon had been revoked on
account of allegations contained in the Cliche Report, that the
appellant knew of these allegations before he appeared before
the Board and that he had an opportunity to refute them on
that occasion.
Held, the appeal should be allowed.
Per Pratte J.: The Trial Judge properly refused to make the
findings sought by the appellant in respect of the Board and
two of its members since they have no part in the revocation of
a pardon. As for the Order itself, it is not vitiated by the actions
of the Board and its members since there was no reason to
doubt their impartiality. It was incorrect to assume that the
appellant knew of the allegations against him. The power to
revoke a pardon is not entirely discretionary since it can only be
exercised in the circumstances described by section 7. Further
more, the person concerned will be deprived of rights. The
Governor in Council, therefore, has a duty to give the person
concerned an opportunity to be heard before revoking his
pardon. The appellant's pardon was revoked without that op
portunity being afforded. This does not mean that the Governor
in Council has to hear the person concerned himself or that the
person is entitled to know more than the facts which were
brought to the attention of the Governor in Council or his
advisers and which are said to justify revoking the pardon.
Per Le Dain J.: The record does not support a conclusion
that the appellant knew the precise facts relied upon by the
Board and the Solicitor General as showing he was "no longer
of good conduct". The authority to revoke a pardon is purely
statutory and has no basis in the royal prerogative. In spite of
the way it conducts its business and the rule of secrecy which
governs its proceedings, Cabinet is nevertheless required, by
statutory implication, to comply with the duty of procedural
fairness when revoking a pardon. It is better that there should
be an approximation to procedural fairness than no procedural
fairness at all. The Governor in Council must clearly have an
inherent or implied power to delegate the hearing function.
Per Lalonde D.J.: The quasi-judicial power conferred on the
Governor General in Council by the Act must be exercised in
accordance with the requirements of natural justice. The refus
al of the members of the Board to disclose to the appellant the
way in which he, in their opinion, was no longer of good
conduct contravened an elementary rule of justice and vitiated
the Order in Council.
CASES JUDICIALLY CONSIDERED
DISTINGUISHED:
The Attorney General of Canada v. Inuit Tapirisat of
Canada et al., [1980] 2 S.C.R. 735.
REFERRED TO:
L'Alliance des professeurs catholiques de Montreal v.
The Labour Relations Board of Quebec, [1953] 2 S.C.R.
140; Nicholson v. Haldimand-Norfolk Regional Board
of Commissioners of Police, [ 1979] 1 S.C.R. 311.
COUNSEL:
M. Proulx for plaintiff (appellant).
G. Côté for respondents.
SOLICITORS:
Proulx, Barot & Masson, Montreal, for
plaintiff (appellant).
Deputy Attorney General of Canada for
respondents.
The following is the English version of the
reasons for judgment rendered by
PRATTE J.: The appellant is challenging the
judgment of the Trial Division' which dismissed
with costs the action brought by him to have an
Order of the Governor in Council set aside. By
that Order, made on October 9, 1975, pursuant to
section 7 of the Criminal Records Act (R.S.C.
1970 (1st Supp.), c. 12), the Governor in Council
revoked the pardon he had granted the appellant
on May 8, 1973.
In order to understand this case, the principal
provisions of the Criminal Records Act must be
borne in mind. Under that Act, a person who has
been convicted of an offence under an Act of the
Parliament of Canada may, after a certain time
has elapsed since he served his sentence, apply to
be granted a pardon. This application must be
made to the Solicitor General of Canada, who will
forward it to the National Parole Board, and the
latter will inquire into the behaviour of the appli
cant since his conviction. When it has completed
its inquiry, the Board must report its findings to
the Solicitor General and make a recommendation
to him as to whether the pardon should be granted.
However, the Board may not send the Minister a
recommendation against granting the pardon
unless it has first notified the applicant and given
him an opportunity to make to the Board any
representations that he believes relevant. If the
Board recommends that the pardon be granted, its
recommendations must be forwarded to the Gover
nor in Council, who may in his discretion grant or
deny the pardon. If the pardon is granted, so long
as it has not been revoked pursuant to section 7 it
has the effects set out in section 5. These two
sections read as follows:
' [1976] 2 F.C. 539 [T.D.].
5. The grant of a pardon
(a) is evidence of the fact that the Board, after making
proper inquiries, was satisfied that an applicant was of good
behaviour and that the conviction in respect of which the
pardon is granted should no longer reflect adversely on his
character; and
(b) unless the pardon is subsequently revoked, vacates the
conviction in respect of which it is granted and, without
restricting the generality of the foregoing, removes any dis
qualification to which the person so convicted is, by reason of
such conviction, subject by virtue of any Act of the Parlia
ment of Canada or a regulation made thereunder.
7. A pardon may be revoked by the Governor in Council
(a) if the person to whom it is granted is subsequently
convicted of a further offence under an Act of the Parliament
of Canada or a regulation made thereunder; or
(b) upon evidence establishing to the satisfaction of the
Governor in Council
(i) that the person to whom it was granted is no longer of
good conduct, or
(ii) that such person knowingly made a false or deceptive
statement in relation to his application for the pardon, or
knowingly concealed some material particular in relation
to such application.
I come now to the facts which gave rise to the
action. They are not in dispute and are set forth in
the [TRANSLATION] "Joint Statement of Facts"
entered by counsel for the parties in the record of
the Trial Division, and in the documentary evi
dence filed by them.
The text of this "Joint Statement of Facts" is as
follows:
[TRANSLATION] The parties to the case at bar, through their
undersigned counsel, are in agreement that this case shall be
decided on the basis of the following facts, which are admitted
by either side, and on the documents to be entered in the
record.
1. On May 8, 1973, the plaintiff was granted a pardon by the
Governor in Council pursuant to the provisions of the Criminal
Records Act, R.S.C. 1970 (1st Supp.), c. 12.
2. As a result of information brought to its attention and in
accordance with the wishes of the Solicitor General of Canada,
the National Parole Board in fall 1974 undertook an inquiry
into the conduct of plaintiff, to determine whether it should
recommend that the said pardon be revoked.
3. By a letter dated May 8, 1975, the Minister of Justice of the
province of Quebec asked the Solicitor General of Canada if
the pardon granted to the plaintiff might be revoked by the
Governor in Council, pursuant to the provisions of section 7 of
the Criminal Records Act.
4. In the said letter from the Minister of Justice of the province
of Quebec, references were made to the report of the Commis-
sion of inquiry into the freedom of activity in the trade union
movement in the construction industry. It is admitted by the
parties that this Commission was created by the Government of
the province of Quebec, with Robert Cliche J. as chairman, and
submitted its report to the Government of Quebec on May 2,
1975; it is further admitted that one of the recommendations of
the said Commission was that the law should be amended so as
to exclude from union duties any persons convicted of certain
crimes.
5. By a letter dated May 21, 1975, signed by Mr. Pierre L.
Dupuis of the Clemency and Criminal Records Division, the
plaintiff was invited to appear before two members of the
Board, namely Messrs. Claude Bouchard and Jean-Paul Gil-
bert, so that he could have an opportunity to make whatever
representations he felt relevant against the recommendation
that the Board intended to make to the Solicitor General of
Canada, namely that his pardon be revoked.
6. Plaintiff appeared before Messrs. Bouchard and Gilbert on
June 2, 1975.
7. At the start of the hearing counsel for the plaintiff, in
reference to the notice to appear, raised the lack of jurisdiction
by members of the National Parole Board over revocation of
the pardon granted to plaintiff on May 8, 1973 pursuant to the
Criminal Records Act, in that:
(a) the Criminal Records Act confers no jurisdiction on the
Board or its members regarding the revocation of a pardon;
(b) neither the Board nor its members have any jurisdiction
to summon the plaintiff, conduct an investigation and make a
recommendation to the Solicitor General of Canada.
8. In response to this objection, the members of the Board
found that the Criminal Records Act conferred on them juris
diction over the revocation of a pardon similar to that which the
Act confers on them over the granting of a pardon.
9. During the hearing, the members of the Board did not
establish or mention that they were authorized to conduct such
an investigation by the Governor General in Council or by any
other person.
10. Subject to his objection as to jurisdiction, counsel for the
plaintiff argued that the procedure followed by the members
created a real apprehension of partiality, since the Board had
already decided to recommend to the Solicitor General of
Canada that the pardon be revoked before it had even sum
moned or heard the plaintiff.
11. The Board members dismissed this objection and invited the
plaintiff to make his representations in accordance with the
notice to appear.
12. Before making his representations, counsel for the plaintiff
asked the members to indicate to him the nature of the
allegations or the evidence of misconduct against the plaintiff,
so that he could make the representations necessary to refute
the allegations or rebut the evidence of misconduct.
13. The members categorically refused to disclose to the plain
tiff the allegations or evidence against him, merely stating that
their recommendation was based on subparagraph 7(b)(i) of
the Criminal Records Act.
14. The members further stated that it was for the applicant to
show why the pardon should not be revoked.
15. In view of the position taken by the members, the plaintiff
refused any invitation to make representations, stating that he
did not know the reasons why his pardon was being revoked or
the reasons for the recommendation made by the members or
the Board.
16. The hearing was adjourned to allow the plaintiff to make
written submissions on the objections in law and as to proce
dure, and these were filed.
17. The plaintiff was again summoned to appear on August 15,
1975; counsel for the plaintiff repeated his request regarding
the allegations of evidence against the plaintiff.
18. The members of the Board made the same refusal, and the
plaintiff refused to make representations for the same reasons.
19. The members of the Board then indicated to the plaintiff
that their recommendations would be sent to the Solicitor
General of Canada within four to six weeks.
20. Following the aforementioned events, the National Parole
Board submitted to the Solicitor General of Canada a report
recommending that the pardon granted to the plaintiff be
revoked.
21. As appears from Exhibit D-1, the Solicitor General of
Canada then recommended to the Governor in Council that the
pardon granted to the plaintiff be in fact revoked, pursuant to
section 7 of the Criminal Records Act.
22. By an Order in Council dated October 9, 1975, the Gover
nor in Council in fact revoked the pardon granted to the
plaintiff, on the ground that the latter was no longer of good
conduct, the whole in accordance with the provisions of section
7 of the Criminal Records Act.
To this statement of the facts it only needs to be
added that counsel for the appellant was informed
of the Governor in Council's decision to revoke his
client's pardon by a letter from the Registrar of
the National Parole Board, the essence of which
reads as follows:
[TRANSLATION] You are requested to inform your client
that, following a recent review of his record, the Board contin
ues to be reasonably certain that Mr. Desjardins is associating
with persons closely connected with organized crime, and that
his relations with such persons are such as to suggest that these
meetings are more than accidental. As the Board therefore has
very good reason to believe that Mr. Desjardins is no longer of
good conduct, it has recommended to the Governor General in
Council that the pardon granted to Mr. Desjardins on April 3,
1973, be revoked.
On October 9, 1975, acting on advice by the Solicitor
General and pursuant to section 7 of the Criminal Records Act,
His Excellency the Governor General in Council revoked the
pardon previously granted to Mr. Desjardins.
A few weeks later, the appellant brought the
action dismissed by the Trial Judge. In his state
ment of claim, he first complained that respond
ents Bouchard and Gilbert and the National
Parole Board had no jurisdiction over the case at
bar, that they had acted in a manner which cast
doubt on their impartiality, and finally, that they
had failed to observe the requirements of natural
justice, and in particular the "audi alteram par-
tern" rule; the appellant further complained that
the Governor in Council had acted at the instance
of a third party, without exercising independent
judgment, and that he also had disregarded the
requirements of natural justice and fairness. The
appellant concluded by asking the Court, first, to
find that the National Parole Board and respond
ents Bouchard and Gilbert had no jurisdiction over
the case at bar, and that their actions, decisions
and recommendations were invalid, and second, to
vacate the Order made on October 9, 1975 revok
ing the appellant's pardon.
I think it is clear that the Trial Judge properly
refused to make the findings sought by the appel
lant in respect of the National Parole Board and
respondents Bouchard and Gilbert. It is apparent
that, under the Act, the Board and its members
have no part in the revocation of a pardon, and
accordingly, the recommendation made by them
and the decisions they may have taken in this
matter were devoid of any legal effect. However,
the appellant had no interest in having the Court
make a finding to that effect. His interest is
limited to a ruling on the validity of the revocation
of the pardon. As that revocation was made by an
Order of the Governor in Council on October 9,
1975, the only real problem presented by the case
at bar is as to the validity of that Order.
Counsel for the appellant argued that the Order
of October 9, 1975 was void for two reasons: first,
because it had been made on the recommendation
of persons whose impartiality might be doubted,
and second, because it had been made without
observing the requirements of natural justice and
fairness.
Counsel for the appellant did not suggest that
the Governor in Council could not, in the circum
stances, act on the recommendations of third par
ties. What he said was that such third parties, in
the case at bar respondents Bouchard and Gilbert
and the National Parole Board, had acted in a
manner which cast doubt on their impartiality, and
that the effect of acting in such a manner was to
vitiate the decision of the Governor in Council. In
my view, the Trial Judge properly dismissed this
argument. Even if I assume that the decision a quo
could have been vitiated merely by the fact that it
was not taken on the recommendation of impartial
persons, I consider, like the Trial Judge, that there
was no reason to doubt the impartiality of the
Board and of respondents Bouchard and Gilbert.
The letter which they wrote to appellant on May
21, 1975 could perhaps have been worded differ
ently, but contrary to what counsel for the appel
lant argued, I see nothing in the terms of that
letter to cast doubt on the impartiality of the
Board or its members.
The second and principal argument of counsel
for the appellant is that the Governor in Council
could not validly revoke the pardon he had granted
the appellant without first giving him an opportu
nity to be heard. In other words, counsel for the
appellant maintained that the power of revocation
conferred on the Governor in Council by section 7
of the Criminal Records Act could only be validly
exercised if it was exercised in accordance with the
requirements of natural justice and fairness, which
in his submission had not been done in the case at
bar. The Trial Judge dismissed this second argu
ment of the appellant not because he considered
that the Governor in Council was not required, in
exercising his power to revoke a pardon, to observe
the requirements of natural justice and fairness,
but because he concluded that these requirements
had been observed in the case at bar. In arriving at
this conclusion, the Judge assumed that the pardon
granted to the appellant had been revoked on
account of allegations contained in the Cliche
Report, that the appellant knew of these allega
tions when he appeared before respondents Bou-
chard and Gilbert, and that he had an opportunity
to refute them on that occasion. I cannot share
that view. All that the record shows regarding the
decision of the Governor in Council is that it was
made "acting on advice by the Solicitor General"
who, in the written recommendation he submitted
to the Cabinet, stated that "certain confidential
information" had led the Board to find that the
appellant was no longer of good conduct, because
he was associating with persons closely linked to
organized crime. The Cliche Report is not in the
record, and we do not know its contents. In these
circumstances I cannot assume, as the Trial Judge
did, that the pardon which was granted to the
appellant was revoked because of allegations con
tained in that report; I further cannot conclude
that appellant did in fact have an opportunity to be
heard before his pardon was revoked. If the appel
lant had a right to be heard, he also had a right to
be first informed of the facts on which the authori
ties were relying in exercising the power of revoca
tion, since without that information he could not
properly be heard. In the case at bar, the appellant
was never informed of the reasons why the revoca
tion of his pardon was being considered. For this
reason, it appears to me that in the circumstances
the pardon was revoked without the appellant
being furnished an opportunity to be heard.
To decide this case, therefore, it is necessary to
know whether the Governor in Council, before
revoking the pardon he had granted to the appel
lant, was required to observe the "audi alteram
partem" rule or, more generally, the requirements
of natural justice and fairness. If he was, the
appeal must succeed; otherwise, it must be
dismissed.
When the legislator confers on a body the power
to make decisions affecting the rights of individu
als without specifying the way in which this power
is to be exercised, it has to be determined by a
process of interpretation whether the body con
cerned, in exercising this power, must observe the
requirements of natural justice and fairness.
Accordingly, it was by interpretation of the appli
cable legislation, in light of the nature of the
power conferred by it, the nature of the body on
which the power was conferred and the conse
quences of exercising the power, that the Supreme
Court of Canada held that the power conferred on
the Governor in Council by subsection 64(1) of the
National Transportation Act [R.S.C. 1970, c.
N-17] is a power of a legislative nature the exer
cise of which is not subject to the requirements of
natural justice and fairness. 2
2 The Attorney General of Canada v. Inuit Tapirisat of
Canada et al., [1980] 2 S.C.R. 735.
The power conferred on the Governor in Council
by section 7 of the Criminal Records Act does not
resemble the power conferred on him by subsec
tion 64(1) of the National Transportation Act. It
is a power the exercise of which affects an
individual, rather than the community, by depriv
ing him of the rights which proceeded from his
pardon. It is a power which is not entirely discre
tionary, since it can only be exercised in the cir
cumstances described by section 7. It is also not a
legislative power which must be exercised primari
ly in light of social and political considerations. On
the other hand, it is a power which, like that which
the Supreme Court had to consider in Inuit
Tapirisat, is conferred on the Governor in Council
without any direction in the statute as to how it
must be exercised.
The Criminal Records Act does not indicate
how the power of revocation conferred by section 7
should be exercised. However, it sets out in minute
detail in section 4 the procedure to be followed in
granting a pardon: the application for a pardon is
submitted to the National Parole Board, which
causes inquiries to be made and makes its recom
mendation; the Board may not recommend against
granting the pardon without giving the applicant
an opportunity to be heard; if the Board's recom
mendation is favourable, it is referred to the Gov
ernor in Council who may then grant or deny the
pardon.
Counsel for the respondents argued that the
Criminal Records Act states in section 4 that a
pardon cannot be denied without the applicant
being heard. As section 7 is silent on this point, he
maintained, relying on the maxim "expressio
unius est exclusio alterius", that there was no
intention to give an applicant the right to be heard
before a pardon was revoked. This argument is
based on a false premise. Section 4 does not state
that an application for a pardon cannot be dis
missed without the applicant being heard: it
merely provides that the Board may not recom
mend dismissal of an application for a pardon
without hearing the applicant. If the Board recom
mends that the pardon be granted, the applicant
does not have a right to be heard and I think it is
clear that, in that case, the Governor in Council
can still refuse to follow the recommendation and
dismiss the application for a pardon without hear
ing the person concerned.
The Governor in Council may thus refuse to
grant a pardon without hearing the applicant. Is
the same true for the case of revocation? I do not
think so. First, the revocation of a pardon seems to
me more fraught with consequences for the person
concerned than a mere refusal to grant an applica
tion for a pardon. In the first case, the person will
be deprived of rights, while in the second, he will
be denied a privilege. Secondly, while the power to
grant a pardon is purely discretionary, this is not
true of the power of revocation, which can only be
exercised in the circumstances set forth in
section 7. It would seem fair that a pardon should
not be revoked without first giving the person
concerned an opportunity to refute the existence of
the facts on which the authority in question will
rely in exercising the power of revocation.
I accordingly consider that the Governor in
Council may not revoke a pardon under section 7
without giving the person concerned an opportu
nity to be heard. Does this mean that the Governor
in Council is required, when he wishes to revoke a
pardon, to act as a judge would, or that he is
subject to all the requirements which, in other
words, would be associated with natural justice?—
no. The statute confers the power to revoke par
dons on the Governor in Council and not on any
other authority. The Governor in Council is an
executive entity which has its ways of proceeding
and which is subject to special rules, such as those
regarding the secrecy of its deliberations and the
confidential nature of its sources of information.
The legislator is familiar with these ways of pro
ceeding and these rules, and when he confers a
power on the Governor in Council it has to be
presumed, in the absence of any indication to the
contrary, that this power is to be exercised in
accordance with these rules and ways of proceed
ing. Because of that, the Governor in Council is
not required to hear the person concerned himself
before revoking a pardon. For the same reason, the
person concerned does not have a right before
being heard to know the evidence against him: he
is only entitled to know the facts which were
brought to the attention of the Governor in Coun
cil or his advisers and which are said to justify
revoking the pardon.
For these reasons, I would allow the appeal, set
aside the judgment of the Trial Division and,
allowing the appellant's action, vacate the Order
of October 9, 1975 revoking the pardon which was
granted to the appellant. Appellant should be en
titled to his costs both at trial and on appeal.
* * *
The following are the reasons for judgment
rendered in English by
LE DAIN J.: I have had the advantage of read
ing the reasons of my brothers Pratte and Lalande,
and while I have experienced considerable difficul
ty with this case, I agree with them that the appeal
should be allowed and the Order in Council revok
ing the appellant's pardon declared null on the
ground that he was not given a fair opportunity to
meet the case against him.
I am satisfied that the record does not support a
conclusion that the appellant knew the precise
facts which the National Parole Board and the
Solicitor General were relying on as showing that
he was a person who was "no longer of good
conduct" within the meaning of section 7 of the
Criminal Records Act, R.S.C. 1970 (1st Supp.), c.
12. Like my brother Pratte, I think the assumption
made by the learned Trial Judge on this question
was without foundation, particularly in view of the
reference, in the Solicitor General's memorandum
to Cabinet, to "confidential" information.
There is, further, no doubt in my mind that the
decision to revoke a pardon under section 7 is,
because of the grounds on which it may be made
and its effect on the rights or interests of the
person affected, of a nature which would ordinar
ily give rise to a duty to observe the principles of
natural justice or at least to comply with the lesser
duty of procedural fairness. I do not think it is
necessary to cite authority in support of that
proposition. This is true, in my opinion, despite the
fact that pardons were granted before the Crimi
nal Records Act as an exercise of the royal pre
rogative of mercy, and that prerogative is pre-
served by section 9 of the Act. The authority to
revoke a pardon that has been granted under the
Act is purely statutory in nature and has no basis
in the royal prerogative. Its character is to be
determined entirely from the terms of section 7.
The difficulty, as I see it, is whether, in view of
the way the Cabinet conducts its business and the
rule of secrecy which governs its proceedings, it is
reasonable to ascribe to Parliament an intention
that the Governor in Council should be subject to
a requirement of procedural fairness in respect of
notice, disclosure and hearing when he revokes a
pardon pursuant to section 7 of the Act. As the
authorities indicate, a fair hearing requires that
the person affected be given sufficient notice of
what is alleged against him, that he be given
sufficient disclosure of the evidence or other ma
terial, such as reports, on which the allegations are
based, and finally that he be given a sufficient
opportunity to meet the case against him by evi
dence, if necessary, and representations. How are
these requirements to be applied, as a practical
matter, to the decision-making process of the
Cabinet, which I would characterize, with respect,
as informal, inaccessible and inscrutable? The pos
sible grounds of decision are not susceptible of
being limitatively determined in advance of a
meeting of the Cabinet or a committee of Cabinet
that effectively deals with the matter. The mem
bers of Cabinet cannot be prevented or foreclosed
from making their own contribution to the identifi
cation and definition of the possible grounds of
decision nor, indeed, from submitting additional
material in support of them. Notice, to afford a
full measure of procedural fairness, would have to
be notice of the facts or grounds which the Cabinet
agreed to treat as relevant for purposes of decision.
A similar problem exists with reference to the duty
of disclosure. How, in view of the principle of
cabinet secrecy, is the person affected to be given a
sufficient disclosure of the basis of the allegations
against him, as they are presented to Cabinet, to
enable him to meet the case against him? Finally,
if there is to be a true opportunity to be heard the
evidence adduced and the submissions made on
behalf of the person affected must be sufficiently
brought to the attention of the Cabinet.
These difficulties have raised a serious question
in my mind as to whether a meaningful and
reviewable standard of procedural fairness can be
imposed, by statutory implication, on the Governor
in Council when revoking a pardon. Despite the
difficulties, however, I have been unable to per
suade myself that it could have been intended by
Parliament that a pardon may be revoked on the
ground that one has ceased to be a person of good
conduct without the person affected having any
opportunity whatever to meet the case against him,
as that case is presented by the recommendation to
Cabinet. It is better in such a matter that there
should be an approximation to procedural fairness
than no procedural fairness at all.
That it is feasible to have some form of inquiry
and to afford some opportunity to be heard before
a recommendation is made to revoke a pardon is
indicated by the provision in section 4 of the
Criminal Records Act for an inquiry by the Na
tional Parole Board on an application for pardon
and by the fact that the Solicitor General saw fit
to cause an inquiry to be made by the Board in the
present case. The Governor in Council must clear
ly have an inherent or implied power to delegate
the hearing function. As for the maxim "expressio
unius est exclusio alterius", which is invoked
because of the express provision for such an inqui
ry in section 4 and the absence of a similar provi
sion in section 7, the Supreme Court of Canada
appears to have held, in effect, that this principle
of interpretation should not be applied to deny a
right to fair hearing. See L'Alliance des profes-
seurs catholiques de Montreal v. The Labour
Relations Board of Quebec, [1953] 2 S.C.R. 140,
at pages 153-154; Nicholson v. Haldimand-Nor-
folk Regional Board of Commissioners of Police,
[1979] 1 S.C.R. 311, at pages 321-322.
In coming to the above conclusion I have pro
ceeded, with respect, on the assumption that the
judgment of the Supreme Court of Canada in The
Attorney General of Canada v. Inuit Tapirisat of
Canada et al., [1980] 2 S.C.R. 735, does not
contain any general implication determinative of
the issue in this case. The decision in that case
turned essentially on the nature of the review
authority conferred on the Governor in Council by
subsection 64(1) of the National Transportation
Act, R.S.C. 1970, c. N-17, as it applied particular
ly to a decision to fix the tolls of Bell Canada, and
not on the institutional peculiarities of the deci-
sion-making process of the Governor in Council or
Cabinet. Estey J., who delivered the judgment of
the Court, did say at page 753, "The very nature
of the body must be taken into account in assessing
the technique of review which has been adopted by
the Governor in Council", but that was said with
reference to the contention that the whole of the
record should have been put before the Cabinet. I
do not read into this particular observation an
implication that an implied duty of procedural
fairness can never be applied to a decision of the
Governor in Council, regardless of its nature.
* * *
The following is the English version of the
reasons for judgment rendered by
LALANDE D.J.: The power conferred on the
Governor General in Council by the Criminal
Records Act is a power of a quasi-judicial nature,
since section 7 provides, in the case under con
sideration, that revocation of a pardon may be
ordered "upon evidence establishing" that the
person is no longer of good conduct. Such a power
must be exercised in accordance with the require
ments of natural justice.
Respondents Bouchard and Gilbert, conducting
an inquiry for the Solicitor General as members of
the National Parole Board, refused to disclose to
the appellant, whom they had summoned so that
he could make representations to them, the way in
which he in their opinion was no longer of good
conduct.
The refusal contravened an elementary rule of
justice and vitiated the Order in Council made on
the recommendation of the Solicitor General.
I would dispose of the appeal as suggested by
Pratte J.
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.